[Cite as In re S.M., 2015-Ohio-4627.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    WILLIAMS COUNTY


In re S.M.                                        Court of Appeals No. WM-15-005

                                                  Trial Court No. 20143007



                                                  DECISION AND JUDGMENT

                                                  Decided: November 6, 2015

                                           *****

        Kimberly A. Smith, for appellant.

        Kirk E. Yosick, Williams County Prosecuting Attorney, and
        Katharine Zartman, Assistant County Prosecutor, for appellee.

                                           *****

        YARBROUGH, P.J.

                                        I. Introduction

        {¶ 1} Appellant, J.M., appeals the judgment of the Williams County Court of

Common Pleas, Juvenile Division, terminating his parental rights and awarding custody

of his child, S.M., to appellee, Williams County Department of Job and Family Services

(“the agency”). For the following reasons, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} In November 2013, appellant was living in an apartment with his girlfriend,

V.S., and her son, D.R. V.S. was pregnant with appellant’s child. At that time, police

searched the apartment and found narcotics, leading to felony charges for both appellant

and V.S. As a result, the agency was granted protective supervision of D.R., and a case

plan was put in place for both appellant and V.S.

       {¶ 3} On February 16, 2014, S.M. was born with methadone, cocaine and opiates

in her system. Due to drug use by V.S. during her pregnancy, and both her and

appellant’s lack of follow-through with the case plan for D.R., S.M. was removed from

the hospital on February 18, and placed in the ex parte custody of the agency. An

emergency custody hearing was held on February 19, at which point the agency was

granted emergency custody of S.M. On March 19, 2014, despite receiving proper notice,

V.S. and appellant failed to attend a hearing at which the agency was granted temporary

custody of S.M.

       {¶ 4} A case plan was set up for V.S. and appellant with the ultimate goal of

reunification. Specifically, appellant was to submit to drug testing, undergo substance

abuse treatment, participate in parenting classes, have regular visits with S.M. to establish

a bond, complete home visits with the caseworker monthly, maintain stable housing, and

obtain and maintain employment.

       {¶ 5} On February 10, 2015, the agency filed for permanent custody of S.M. The

hearing to determine permanent custody took place on April 21, 2015. V.S. was present




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for the hearing and was represented by an attorney. Appellant did not attend this hearing,

as he was incarcerated on a 30-month prison sentence at the time. However, counsel was

appointed to represent him. Before any testimony was taken, appellant’s attorney stated

that he had sent correspondence to appellant indicating his representation, and asking

appellant to write if he desired to participate in any way, including the submission of a

sworn statement. The attorney stated that he did not receive any correspondence back,

nor had he been contacted via telephone by appellant, or any relative of appellant,

regarding the case.

       {¶ 6} Prior to any witness testimony, the court admitted several exhibits into

evidence over the objection of appellant’s attorney. These exhibits consisted of several

judgment entries from appellant’s prior convictions. Appellant’s attorney argued that

many of appellant’s prior convictions were inadmissible as irrelevant. The court

determined that they were relevant to establish the factors in R.C. 2151.414(B), and the

exhibits were admitted for that purpose.

       {¶ 7} The state’s first witness was a drug counselor from Recovery Services. She

testified that appellant made contact with Recovery Services on three separate occasions

by phone. He made contact on February 25, 2014, and scheduled an appointment for

March 12. The Recovery Services office was closed on March 12 due to the weather, and

that appointment had to be cancelled. Appellant made contact again on March 26, 2014,

and scheduled an April 15 appointment, but appellant failed to show up on April 15, and

that assessment was cancelled. Likewise, appellant made an appointment for May 27,




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2014, and once again failed to appear causing that assessment to be cancelled. The

counselor testified that appellant was never seen for an assessment at Recovery Services.

       {¶ 8} The state also solicited testimony from Emily Monroe, the agency’s ongoing

caseworker for S.M. She testified that appellant was offered two visits per week, each

lasting two hours. Ms. Monroe testified that appellant’s only visit with S.M. took place

on April 4, 2014. She testified that appellant arrived 15 minutes late to the visit. Upon

arrival, appellant was asked to submit to a drug test, to which he refused. Ninety minutes

into the two hour visit, appellant informed the agency that he was going outside to

smoke. Appellant was again asked to submit to a drug screen, and appellant again

refused. Appellant never returned to the visit. Ms. Monroe testified that this was the

only contact appellant ever had with S.M.

       {¶ 9} Ms. Monroe testified that appellant was offered parenting courses through

Community Pregnancy Centers and also through the agency’s Unit Support Worker.

Appellant did not attend any parenting classes with either source. Ms. Monroe further

stated that appellant did not take advantage of any substance abuse treatment that was

offered to him. She testified that appellant did not obtain employment, nor did he

maintain stable housing, as he was bouncing from home to home, living with friends.

       {¶ 10} The last contact that Ms. Monroe had with appellant was on July 30, 2014.

Ms. Monroe made an unannounced visit at a home where appellant was staying. He was

initially asked to provide a drug screen, and he refused. According to Ms. Monroe,

appellant became agitated and aggressive towards her. Appellant told Ms. Monroe that




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he did not want to work the case plan anymore. Ms. Monroe explained to him what that

meant, and appellant stated that he was going to prison anyway. He argued that when he

was released he would not have time to work the case plan and requested to be taken off

the case plan. Ms. Monroe felt threatened due to the confrontational nature of the

conversation and left at that time.

       {¶ 11} Ms. Monroe testified that several relatives were considered for placement,

including appellant’s sister and brother-in-law who live out of state. That placement was

denied due to the criminal history of appellant’s brother-in-law. The agency also

considered placement with relatives of V.S., but a suitable relative placement could not

be found. Ms. Monroe opined that it would be in S.M.’s best interest to be adopted by

S.M.’s foster parents, who have bonded with S.M., and have expressed interest in

adoption.

       {¶ 12} Before the hearing broke for lunch, the state also solicited testimony from a

foster parent of S.M., and a probation officer who had worked with appellant and V.S.

After the lunch break, the state called Darrell Higbie, an officer from the Montpelier

Police Department. He testified to several incident reports taken by the Montpelier

Police Department concerning appellant, including narcotics cases as well as a domestic

violence incident.

       {¶ 13} V.S., the mother of S.M., was then called as a witness by the state. She

testified to appellant’s drug habit and her opinion that he would not be able to change his

ways. She also spoke to appellant’s violent temper and lack of interest in S.M.




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       {¶ 14} The state’s case concluded with the testimony of Rachael Sostoi, the

guardian ad litem appointed to represent S.M. Her testimony focused primarily on

S.M.’s foster parents. She explained that S.M. was getting good care with the foster

parents, and that S.M. seemed to have bonded with them. Her only testimony concerning

appellant was that she never observed appellant and S.M. together, and only saw

appellant once, before S.M. was born.

       {¶ 15} The state rested its case and the court asked appellant’s attorney if he had

any evidence to present, to which he replied,

       Your Honor I have nothing to present. I would note for the record that I did

       ask [appellant] while incarcerated if he had any written information he

       wanted to submit. I asked him to either provide that to me from his

       placement or if he needed my assistance in preparing something and

       sending it down. I got no response to my March letter so and had no

       contact from other witnesses who desire to be here so we have nothing to

       present Your Honor.

       {¶ 16} In closing arguments, V.S.’s attorney stated that V.S. wanted to proceed

with a voluntary surrender of her parental rights. Appellant’s attorney again reiterated,

       I have limited information to present and haven’t been able to have any

       meaningful communication with my client given his incarcerated status and

       was given no guidance or direction from his as to how to proceed. So with

       that, I would have no further comment.




6.
       {¶ 17} The court adjourned for the day at that point, and reconvened on the

morning of April 28, 2015. On that date, V.S. completed her voluntary surrender of her

parental rights. The court then found that termination of appellant’s parental rights was

supported by clear and convincing evidence, and granted permanent custody of S.M. to

the agency. Appellant’s timely appeal followed.

                                 B. Assignments of Error

       {¶ 18} On appeal, appellant assigns the following errors for our review:

              1) The court failed to safeguard appellant’s right to due process

       when it proceeded with the permanent custody hearing in the absence of his

       counsel.

              2) Counsel for appellant failed to provide his client adequate

       participation in the hearing resulting in an unfair trial and amounting to

       ineffective assistance.

                                       II. Analysis

       {¶ 19} In his first assignment of error, appellant argues that his due process rights

were violated when the court proceeded with the permanent custody hearing without the

presence of appellant’s counsel. We disagree.

       {¶ 20} A trial court has discretion to decide whether to proceed with a permanent

custody hearing in the absence of an incarcerated parent. State ex rel. Vanderlaan v.

Pollex, 96 Ohio App.3d 235, 236, 644 N.E.2d 1073 (6th Dist.1994). However, an

individual has a “basic,” “fundamental,” and “essential” civil right to raise his or her own




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children. See In re Sprague, 113 Ohio App.3d 274, 276, 680 N.E.2d 1041 (12th

Dist.1996); In the Matter of: Dylan R., 6th Dist. Lucas No. L-02-1267, 2003-Ohio-69,

¶ 21. Because of this very important right, when an incarcerated parent is not transferred

to a permanent custody hearing, this court has repeatedly held that “a parent’s due

process rights are not violated when: (1) the parent is represented at the hearing by

counsel, (2) a full record of the hearing is made, and (3) any testimony that the parent

wishes to present could be presented by deposition.” In re Joseph P., 6th Dist. Lucas No.

L-02-1385, 2003-Ohio-2217, ¶ 52; In re Jesse P., 6th Dist. Lucas No. L-04-1028, 2004-

Ohio-3801, ¶ 51; In re Johnny H., 6th Dist. Lucas No. L-06-1044, 2007-Ohio-748, ¶ 21.

       {¶ 21} Appellant argues that his due process rights were violated when his

attorney was late to court after a lunch recess, and the court proceeded without the

attorney’s presence. Essentially, appellant is arguing that the first factor, having an

attorney present at all stages of the proceeding, cannot be met. Appellee argues that

appellant’s counsel was present for all stages of the hearing, including the portion

immediately after the lunch recess. For clarification of this issue, we look to the trial

transcript, which reads in pertinent part:

              LUNCH BREAK

              JUDGE BIRD: Okay, the time now is 1:25, we’re back on the

       record.

              MR. WALKER: Your Honor Mr. Shaffer’s not here yet.




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              JUDGE BIRD: Too bad. I said 1:15. In the Matter of [S.M.],

       20143007; everybody is back now and I believe the State was about to call

       a witness.

       {¶ 22} As appellee points out in her brief, although it initially appears that the

court is proceeding without appellant’s counsel, appellant’s attorney was present for all

of the questioning. This is supported by the court’s statement, “everybody is back now.”

This statement makes clear that everyone, including appellant’s attorney, were present in

the courtroom. The record also reveals that at the conclusion of the state’s first witness

following the lunch recess, the courts asked appellant’s attorney if he had any questions,

to which appellant’s attorney responds in the negative. Appellant’s speculation that his

attorney was not present for all stages of the proceeding is not supported by the record in

this case.

       {¶ 23} Since appellant was represented at the hearing by counsel, and a full record

of the hearing was made, the only other determination to be made is whether any

testimony appellant wished to present could be presented by deposition. In this case,

appellant was given the opportunity to present evidence in the form of a written

statement, and chose not to participate. Therefore, the three requirements set forth in

In re Joseph P. were met, and appellant’s right to due process was not violated. The first

assignment of error is not well-taken.

       {¶ 24} In his second assignment of error, appellant argues that he received

ineffective assistance of counsel. For a claim of ineffective assistance of counsel,




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appellant must demonstrate that counsel’s performance was deficient and that this

deficiency operated to the prejudice of the represented. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The existence of prejudice only

occurs when the lawyer’s performance renders the result of the trial unreliable or the

proceeding unfair. Id. It must also be shown that there exists a reasonable probability

that a different result would have been returned but for counsel’s deficiencies. Id. at 694.

See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of

the syllabus, cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990), citing

State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976).

       {¶ 25} In contending that his attorney’s performance was deficient, appellant’s

argument is twofold. First, he argues that his attorney did not make enough of an effort

to afford appellant the opportunity to participate in the hearing. Second, he asserts that

his attorney missed a portion of the hearing. As noted in the first assignment of error, the

attorney was present during the hearing, and this argument is not persuasive.

       {¶ 26} Appellant argues that one letter sent by his attorney while appellant was

incarcerated did not adequately provide him with a meaningful opportunity to participate

in the hearing. This argument is also unpersuasive. The record shows that appellant

made no effort throughout the pendency of the case to have any meaningful relationship

with S.M. It is evident that appellant had no interest in working a case plan with the

agency, he failed to schedule or show up to visitations with S.M., and he announced to

the caseworker that he wanted to be taken off the case plan. The attorney fulfilled his




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duty by sending a letter asking for any witnesses or testimony appellant would like to

present. The attorney’s representation was not deficient.

      {¶ 27} Had we determined that counsel’s performance was deficient, appellant

still would not be able to show that any deficiency would have impacted the outcome of

the case. The court determined, and the record supports, that the evidence presented at

the hearing was overwhelmingly in favor of termination. Notably, appellant does not

argue that any determination made by the court was incorrect. Appellant offered no

evidence that he would have presented on his behalf, had he been present for the hearing.

His only argument is the mention of one alternative family placement. The record shows

that the family placement offered by the appellant had already been considered, and

denied, by the agency. This evidence would not have affected the outcome of the

hearing. Accordingly, appellant’s second assignment of error is not well-taken.

                                    III. Conclusion

      {¶ 28} Based on the foregoing, the judgment of the Williams County Court of

Common Pleas, Juvenile Division, is affirmed. Costs are hereby assessed to appellant in

accordance with App.R. 24.


                                                                      Judgment affirmed.




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                                                               In re S.M.
                                                               C.A. No. WM-15-005




       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
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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