In re T.C. , 2016 Ohio 7631 ( 2016 )

[Cite as In re T.C., 2016-Ohio-7631.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re T.C., T.H. Court of Appeals No. L-16-1154
Trial Court No. JC 14243697
DECISION AND JUDGMENT
Decided: November 4, 2016
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Stephen D. Long, for appellant.
Bradley W. King, for appellee.
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PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, Juvenile Division, which awarded permanent custody of the minor children T.C.
and T.H. to appellee, Lucas County Children Services (“LCCS”), thereby terminating
mother-appellant’s, T.H., parental rights.1 For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On October 21, 2014, LCCS filed a complaint in dependency and neglect,
and a motion for a shelter care hearing, in which it alleged that T.C. complained to school
personnel that he was exhausted from walking all weekend while carrying his belongings
because the family had been kicked out of where they were living. The complaint also
alleged that appellant and the children were moving from place to place; that appellant
has a history of substance use; that appellant has left the children with family and friends
for long stretches of time; that LCCS has been involved with appellant since 1989; and
that appellant has eight older children and she has lost custody of several of those
children. On the same day, a shelter care hearing was held at which the children were
placed in the temporary custody of LCCS.
{¶ 3} At the adjudication and disposition hearing held on December 2, 2014,
mother agreed to the allegations in the complaint as written, and consented to a finding
that the children were dependent. Temporary custody of the children was awarded to
LCCS.
{¶ 4} An amended case plan was provided with the goal of reunification. As part
of the case plan, appellant was to complete a diagnostic assessment for emotional/mental
1
The parental rights of father, T.H., were also terminated by the trial court. Father did
not appear at the hearing, and has not appealed the trial court’s decision, thus we will not
discuss the court’s findings relative to him.
2.
health counseling to address concerns that her emotional/mental health affected her
ability to parent and placed the children at risk. Appellant also was to complete a drug
and alcohol assessment and submit to random drug screens to address concerns that she
was abusing prescription medications. Third, to address concerns that appellant had no
stable housing and was essentially homeless, appellant was to obtain safe and stable
housing for herself and the children, pay her rent on time, and maintain her housing in a
safe and sanitary manner. Fourth, appellant was to attend and actively participate in
domestic violence counseling to address concerns of domestic violence dating as far back
as 2009. Finally, appellant was to engage in counseling to address the instability she has
experienced.
{¶ 5} On August 31, 2015, LCCS moved for an extension of temporary custody,
which, after a hearing, the trial court granted on October 13, 2015. On January 21, 2016,
LCCS filed its motion for permanent custody. The matter proceeded to a trial on the
motion on May 23, 2016.
{¶ 6} At the trial, LCCS called Linda Rosenbloom, the ongoing caseworker, as its
only witness.
{¶ 7} Rosenbloom testified to concerns regarding appellant’s mental health and
substance abuse. She testified that appellant was a recovering alcoholic, and that
although appellant stated that she has been clean and sober for years, there were reports
from various people that appellant was abusing pain medications, i.e., percocets, and
there were also concerns that appellant was exhibiting drug seeking behavior.
3.
Rosenbloom testified that she has observed some irregularities in appellant’s behavior in
that appellant has reported having to use a walker, but Rosenbloom has observed her run
out of the courtroom “quite quickly and looked fully capable of doing it.” Relative to the
pain management, Rosenbloom recalls seeing a prescription for something in the past, but
does not remember what medication was prescribed. Additionally, Rosenbloom testified
that appellant admits to using marijuana. Notably, appellant has missed several drug
screens.
{¶ 8} Rosenbloom also testified regarding domestic violence concerns. She stated
that appellant had been a victim of domestic violence dating back to 2009, and also to her
childhood. Appellant was referred to Project Genesis for domestic violence services, and
completed the course. However, instead of taking the typical three months to complete
the course, it took appellant six to nine months to complete. Rosenbloom posited that the
delay was due, in part, to appellant’s work schedule. Appellant was also referred for
trauma therapy, but did not complete it. The reason she did not complete the therapy was
because the therapy center asked appellant to sign some paperwork, and when they
insisted that she sign it after she stated that she could not due to her disability, appellant
fell to the ground in pain, necessitating a call for an ambulance. Appellant then
threatened to sue the therapy center.
{¶ 9} Turning to appellant’s work history and financial situation, Rosenbloom
testified that appellant had no current income whatsoever, and that her older son is paying
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her rent of $25 a month. She stated on cross-examination that appellant has lived in her
current residence for the past nine months. However, Rosenbloom testified that appellant
has said that she has no money for food, and struggles to get food for herself.
Furthermore, Rosenbloom testified on cross-examination that the older son would not
stipulate that he would help pay a certain amount every month to help appellant, and the
other family members have expressed that they are tired and do not want to help raise
appellant’s children anymore.
{¶ 10} Rosenbloom also stated that during her involvement, appellant has had two
jobs, but neither lasted long. Rosenbloom conveyed that appellant has stated her lack of
employment is due to a disability stemming from a work injury she suffered in 2006.
Beginning in July 2015, after her last job ended, appellant claimed that she had hired an
attorney out of Cleveland to pursue some type of workers’ compensation or disability
benefits. Notably, she claimed that she hired a Cleveland attorney because no Toledo
attorney would take her case. Rosenbloom testified that appellant has been referencing a
“huge settlement”—three or four million dollars—that is going to be reached soon, but
when Rosenbloom spoke with appellant’s attorneys she found no correlation between
what appellant was saying and what the attorneys said. Rosenbloom further testified on
cross-examination that appellant was denied workers’ compensation or disability
payments in 2016.
{¶ 11} Rosenbloom also testified to a staffing meeting that occurred six months
before the trial where they were going to discuss a permanency plan for the children.
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Several members of appellant’s family were at the meeting, during which appellant
became agitated and stormed out of the meeting.
{¶ 12} Finally, regarding the children, Rosenbloom testified that they are currently
in foster care where they are enrolled in lots of extracurricular activities and are doing
well. Rosenbloom also stated that appellant has made most of her visits with the
children. If permanent custody were awarded to the agency, Rosenbloom testified that
the plan was that a maternal aunt would adopt the children. The maternal aunt has
specified that she has no interest in only getting legal custody. Rosenbloom testified that
her opinion is that permanent custody is in the best interest of the children because
although the children love their mother, appellant cannot offer any stability or
consistency and the children are exhausted.
{¶ 13} Appellant testified next on her own behalf. Appellant testified that in April
2016, she won an appeal in the Industrial Commission, and that her workers’
compensation case is going back “to reactivate me on serious -- on degenerative [disk
disease in my lumbar].” She stated that she is in chronic pain, but that doctors in Toledo
have lied to her and told her nothing was wrong for the past ten years. She further stated
that she has not received a prescription for pain medication since November 2015 when
the doctor refused to treat her because she had on too much perfume.
{¶ 14} Appellant also testified that she has completed every part of her case plan,
except for maintaining a stable income, even though her caseworker offered her no
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assistance, not even bus tokens or food. Appellant asked the court to give her another
month to receive her ten years of back-pay stemming from her disability claim.
{¶ 15} Finally, the guardian ad litem, Fanny Effler, testified. Effler testified that
she believes the only way the children will have stability in their lives is through an
award of permanent custody to the agency. She noted that the other family members
would not accept legal custody because they did not want to deal with appellant. Effler
also testified that she does not believe it is true that appellant is going to be the recipient
of a monetary settlement. She explained that appellant had sought work throughout the
case until all of a sudden in July 2015 appellant started talking about a settlement from an
injury that occurred in 2006. Effler stated that everyone has been waiting for that
settlement for the past 11 months, but it never came, and she does not think the children
can wait any longer.
{¶ 16} Following the presentation of testimony, the trial court took the matter
under advisement, and on May 25, 2016, orally conveyed its ruling awarding permanent
custody of the children to LCCS. The trial court’s findings subsequently were
memorialized in a journal entry on June 13, 2016.
II. Assignments of Error
{¶ 17} Appellant has timely appealed the trial court’s judgment, and now asserts
three assignments of error on appeal:
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1. The trial court’s decision to terminate parental rights and
responsibilities was not supported by clear and convincing evidence and
was against the manifest weight of the evidence.
2. The trial court’s decision to terminate the parental rights of
mother violates the equal protection clauses of the United States and Ohio
constitutions and substantive due process considerations where the award
of permanent custody was based upon mother’s poverty rather than her
actions or inactions.
3. Mother was denied the effective assistance of counsel.
III. Analysis
{¶ 18} Appellant’s first two assignments of error are interrelated, thus we will
address them together.
{¶ 19} In order to terminate parental rights and award permanent custody of a
child to a public services agency under R.C. 2151.414, the juvenile court must find, by
clear and convincing evidence, two things: (1) that one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(d) apply, and (2) that permanent custody is in the best interests of the
child. R.C. 2151.414(B)(1). Clear and convincing evidence is that which is sufficient to
produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to
be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
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three of the syllabus. The clear and convincing standard requires more than a
preponderance of the evidence, but it does not require proof beyond a reasonable doubt.
Id.
{¶ 20} “A trial court’s determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H.,
6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th
Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that,
as the trier of fact, the trial court is in the best position to weigh the evidence and evaluate
the testimony. Id., citing In re Brown, 98 Ohio App. 3d 337, 342, 648 N.E.2d 576 (3d
Dist.1994). Thus, “[j]udgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St. 2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 21} R.C. 2151.414(B)(1)(a) provides that a trial court may grant permanent
custody of a child to the agency if it finds that, in addition to the placement being in the
best interest of the child,
The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, * * * and the child cannot be placed with either
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of the child’s parents within a reasonable time or should not be placed with
the child’s parents.
R.C. 2151.414(E) requires a trial court to find that a child cannot be placed with either of
the child’s parents within a reasonable time or should not be placed with either parent if
any of sixteen factors are met. Here, the trial court found that R.C. 2151.414(E)(1) and
(4) applied. Those sections provide:
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
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when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child.
{¶ 22} In reaching its findings, the trial court reasoned that despite being involved
in some case plan services, appellant has not demonstrated an ability to provide any
stability for the children, noting that appellant has no current income, has not maintained
employment or shown that she has a legitimate claim for worker’s compensation, has
trouble providing basic necessities even for herself, and has repeatedly shown that she is
incapable of caring for the children’s needs.
{¶ 23} In her brief, appellant argues that the trial court essentially terminated her
parental rights because she was poor. Appellant notes that the children were initially
removed because she was homeless. However, at the time of the hearing, appellant had
resided at the same location for the previous nine months, thereby resolving the
homelessness issue. Furthermore, appellant argues that there is no “lack of commitment”
as evidenced by her visits to the children and the fact that the children want to be with
her. Thus, appellant concludes the sole basis for terminating parental rights was that she
had no income.
{¶ 24} Appellant cites In re K., 8th Dist. Cuyahoga No. 83410, 2004-Ohio-4629, ¶
40, in which the Eighth District stated, “Poverty in and of itself is not a crime. Nor is it a
basis for permanently removing children from their parents.” Appellant contends that she
worked until a degenerative injury from 2006 prevented her from finding gainful
employment. She then sought to obtain a steady source of income either through
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workers’ compensation or social security. Appellant asserts that the evidence at trial
shows that while she is actively seeking governmental assistance, she has not yet been
approved. Therefore, appellant concludes that the trial court’s decision to terminate
parental rights was against the manifest weight of the evidence and violated equal
protection.
{¶ 25} Upon our review of the record, we disagree. Notably, in In re K., the
Eighth District continued, “When an impoverished parent’s actions, however, result in
parental neglect, our society would be remiss if it did not intervene for the sake of the
child’s welfare. Appellant had more than two years to remedy the situation in which she
found herself. Her children should not be penalized because she did not do so.” Id.
{¶ 26} Here, appellant’s ninth and tenth children, the previous eight of whom
appellant no longer had custody of,2 were removed from appellant’s care because they
were homeless. Early in LCCS’ intervention, appellant had a series of jobs, but was not
able to maintain consistent employment. Suddenly, in July 2015, nine months after the
children were removed, appellant began referencing a settlement from an injury nearly 10
years ago. Notably, the trial court found appellant’s testimony to be un-credible, stating,
“Based on [appellant’s] demeanor, testimony, and answers to questions, the Court has
concerns that [appellant] does not have the capacity to understand the circumstances of
her pain, maintenance, and condition and whether she in fact has an appropriate worker’s
compensation claim.” Additionally, Rosenbloom testified that information from
2
One of appellant’s children is deceased.
12.
appellant’s attorneys in Cleveland was inconsistent with appellant’s view of whether she
was entitled to a settlement.
{¶ 27} Thus, the evidence demonstrates that in the 21 months since the children
were removed, appellant has not changed her circumstances; appellant has no income,
has difficulty providing food for herself, is relying on her older son to pay her rent—
which he will not commit to continuing to do—has not maintained employment, and has
not demonstrated any realistic possibility of receiving a financial settlement from her
previous injury. Furthermore, there is nothing in the record to suggest that appellant’s
situation will improve in the near future. Therefore, we hold that the trial court’s findings
under R.C. 2151.414(E)(1) and (4) are not against the manifest weight of the evidence
and are not in violation of the equal protection clauses of the United States and Ohio
constitutions.
{¶ 28} Accordingly, appellant’s first and second assignments of error are not well-
taken.
{¶ 29} In her third assignment of error, appellant argues that she received
ineffective assistance of counsel based on counsel’s failure to understand and examine
appellant’s workers’ compensation or social security claims.
{¶ 30} The test for ineffective assistance of counsel in a parental rights termination
proceeding is the same as that used in criminal cases. Jones v. Lucas County Children
Servs. Bd., 46 Ohio App. 3d 85, 86, 546 N.E.2d 471 (6th Dist.1988). To prevail on a
13.
claim of ineffective assistance, appellant must satisfy the two-prong test developed in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
That is, appellant must demonstrate that counsel’s performance fell below an objective
standard of reasonableness, and a reasonable probability exists that, but for counsel’s
error, the result of the proceedings would have been different. Id. at 687-688, 694. “The
object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” Id. at 697.
{¶ 31} Here, appellant has failed to demonstrate any reasonable probability that,
but for counsel’s failings, the result of the proceedings would have been different.
Appellant argues that counsel failed to examine the viability of appellant’s workers’
compensation or social security claims. However, the record contains no evidence that
those claims were, in fact, viable. Instead, the trial court found appellant’s testimony to
be un-credible, Rosenbloom testified that the information from appellant’s Cleveland
attorneys was inconsistent with appellant’s belief, and although appellant implied that a
settlement was imminent beginning in July 2015, as of May 2016 nothing had
materialized. Therefore, we hold that appellant has failed to demonstrate that she
received the ineffective assistance of counsel.
{¶ 32} Accordingly, appellant’s third assignment of error is not well-taken.
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IV. Conclusion
{¶ 33} For the foregoing reasons, we find that substantial justice has been done the
party complaining and the judgment of the Lucas County Court of Common Pleas,
Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
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