[Cite as In re C.S., 2018-Ohio-4786.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




IN THE MATTER OF:                                  :

                        C.S.                       :      CASE NO. CA2018-07-080

                                                   :              OPINION
                                                                   12/3/2018
                                                   :

                                                   :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. 18-DN000042



Kim Bui, 8080 Beckett Center Drive, Suite 112, West Chester, Ohio 45069, for appellant,
K.S.

The Kollin Firm, Nathan D. Boone, 3725 Pentagon Blvd., Suite 270, Dayton, Ohio 45431, for
D.J.

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee, Warren County Children Services

The Search Law Firm, Lorraine Search, 6 South Second Street, Suite 309, Hamilton, Ohio
45011, for CASA



        PIPER, J.

        {¶ 1} Appellant, the biological mother of C.S., appeals a decision of the Warren

County Court of Common Pleas, Juvenile Division, granting permanent custody of the child to

a children services agency.
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       {¶ 2} C.S. was born on April 9, 2018, while appellant was incarcerated at the Warren

County Jail on charges of drug possession and possession of drug abuse instruments.

Warren County Children Services filed a complaint the following day alleging that the child

was dependent and neglected and at an emergency shelter hearing, temporary custody was

granted to the agency.

       {¶ 3} The complaint alleged that the agency met with appellant in March 2018 while

she was in jail. Appellant informed the agency that she was due to be released in August

2018, and she was unsure of the whereabouts of her husband, the baby's father. The

agency determined that the father had an active warrant for his arrest on drug possession

charges.

       {¶ 4} Appellant provided a nonrelative option for placement of the child, but ultimately

the individual indicated she was not able to care for the child on a long-term basis. The

agency further alleged in the complaint that permanent custody of the couple's two older

children had previously been granted to the agency. The complaint requested a disposition

of permanent custody to the agency.

       {¶ 5} At an adjudication hearing, the parents entered into stipulations based on the

facts alleged in the complaint, including a stipulation that the facts were sufficient to establish

the child was neglected and dependent. Accordingly, the court adjudicated C.S. a neglected

and dependent child.

       {¶ 6} At the dispositional hearing, an agency caseworker discussed the previous

case involving the couple's two older children. She indicated that the family had a history

with the agency dating back to 2013 when the oldest child tested positive for marijuana at

birth. The caseworker testified she became involved with the family in 2015 when the

couple's second child tested positive for cocaine and opiates at birth. During the course of

the case, the caseworker learned that both parents had significant, longstanding drug-use
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issues. The parents completed drug assessments as part of the case plan, but failed to

follow through with the recommendations and instead continued to use drugs throughout the

case. Due to the lack of progress, the agency eventually requested and was granted

permanent custody of the two children.

       {¶ 7} An agency intake caseworker testified that she met with appellant at the jail

prior to the child's birth in order to find a placement for the child. Appellant informed the

caseworker that she continued to use heroin until she was incarcerated on September 17,

2018. The caseworker indicated that she attempted to find a placement for the child and

explored an option provided by appellant, but it did not work out. Because there were no

placement options, the agency filed for custody.

       {¶ 8} The caseworker testified that she was aware that permanent custody of the

parents' two older children had been granted to the agency and that drug use was an

ongoing problem for the parents in the two prior agency cases. She indicated C.S. was

placed into the same foster-to-adopt home where the child's two biological siblings had been

previously placed and adopted. The child is doing well, is bonded to the family and is

developmentally on target.

       {¶ 9} Although the agency requested permanent custody, the caseworker gave

appellant a referral to address her drug abuse issues. The caseworker indicated the child's

father is living with his new girlfriend, who has had all her children removed from her home.

The father's girlfriend also has drug abuse issues.

       {¶ 10} The agency's ongoing caseworker testified that although the case plan did not

include services for the parents, she was aware of appellant's referral for a drug assessment.

However, she testified that appellant is also required to complete and participate in the same

program as part of her criminal probation requirements.

       {¶ 11} She indicated that there were concerns because appellant does not have
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stable housing and is currently living in a hotel with her boyfriend and her mother. Appellant's

boyfriend has a criminal history that involves burglary, along with trafficking and other drug

offenses. Appellant's mother also has a criminal history that involves drug charges and a

recent arrest in May 2018. The caseworker testified that appellant was initially working at

Burger King and is now working at a Shell gas station.

       {¶ 12} The caseworker testified that although appellant has now been sober for

several months, the majority of the sobriety was during incarceration, as appellant has only

been out of jail from late April to June. She indicated appellant has engaged in treatment,

but it would take considerable time to alleviate the concerns that led to the child's removal.

Appellant has not engaged in any services beyond what is required for probation in the

criminal case.

       {¶ 13} Appellant testified at the dispositional hearing and admitted that she had been

incarcerated on felony drug charges when C.S. was born. She stated that she had the

opportunity to use drugs while incarcerated but did not do so. However, she admitted that if it

were not for her incarceration and not having access to drugs, she does not know if C.S.

would have testified positive for drugs at birth. She indicated she is currently living in a hotel

with her mother who was recently charged with domestic violence. Appellant does not have

a driver's license and relies on her mother or on her brother's ex-girlfriend for transportation.

Appellant stated that she wants a chance to reunify with C.S. and she believes she will follow

a case plan.

       {¶ 14} After considering the evidence, the trial court granted a disposition of

permanent custody to the agency.          Appellant now appeals that decision, raising two

assignments of error for our review.

       {¶ 15} Assignment of Error No. 1:

       {¶ 16} THE TRIAL COURT'S DECISION AND ORDER GRANTING PERMANENT
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CUSTODY WAS NOT SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE AND WAS

CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 17} Assignment of Error No. 2:

       {¶ 18} MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS

PREJUDICED FROM COUNSEL'S FAILURE TO OBJECT THROUGHOUT THE TRIAL.

       {¶ 19} In her first assignment of error, appellant argues that the trial court's decision

to grant permanent custody was not supported by sufficient evidence and was against the

manifest weight of the evidence. Specifically, she argues that C.S. could be placed with her

within a reasonable amount of time and that the child should be placed with her. Appellant

also argues that granting permanent custody of an infant to children's services despite

appellant's stability, sobriety and relationship with the child is not in the child's best interest.

       {¶ 20} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982); In re E.G., 12th Dist. Butler

No. CA2013-12-224, 2014-Ohio-2007, ¶ 6-7. Clear and convincing evidence is that which

will produce in the trier of fact a firm belief or conviction as to the facts sought to be

established. Cross v. Ledford, 161 Ohio St. 469, 477 (1954); In re McCann, 12th Dist.

Clermont No. CA2003-02-017, 2004-Ohio-283, ¶ 11.

       {¶ 21} A public children services agency may obtain permanent custody of an

abused, neglected, or dependent child in one of two ways. In re Ament, 142 Ohio App.3d

302, 309, 755 N.E.2d 448 (12th Dist.2001); In re E.P., 12th Dist. Fayette Nos. CA2009-11-

022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An agency may either (1) obtain temporary

custody of the child and then file a motion for permanent custody, or (2) request permanent

custody as part of its original abuse, neglect, or dependency complaint. In re A.A., 12th Dist.
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Clermont No. CA2015-12-098, 2016-Ohio-2992, ¶ 9.

        {¶ 22} As discussed above, the agency sought a disposition of permanent custody in

the complaint. Therefore, the statutory framework for granting permanent custody as found

in R.C. 2151.353(A)(4) applies in this case.1.

        {¶ 23} Pursuant to R.C. 2151.353(A)(4), in order to grant permanent custody as part

of its original disposition, a juvenile court must apply a two-prong test. In re A.A. at ¶ 10.

First, using the factors in R.C. 2151.414(E), the court must determine that the child cannot be

placed with either parent within a reasonable time or should not be placed with either parent.

Id.   Second, using the factors in R.C. 2151.414(D)(1), the court must determine that

permanent custody is in the best interest of the child. Id.

        {¶ 24} In this case, the juvenile court determined that C.S. could not be placed with

either of her parents within a reasonable time or should not be placed with either of her

parents. R.C. 2151.414(E)(11) provides that "[i]n determining* * * whether a child cannot be

placed with either parent within a reasonable period of time or should not be placed with the

parents, the court shall consider all relevant evidence." The statute further provides that if

the court determines that any of several factors apply, "the court shall enter a finding that the

child cannot be placed with either parent within a reasonable time or should not be placed

with either parent[.]"

        {¶ 25} The court determined that the following factor found in R.C. 2151.414(E)(11)

applied to this case:

                The parent has had parental rights involuntarily terminated with
                respect to a sibling of the child * * * and the parent has failed to
                provide clear and convincing evidence to prove that,
                notwithstanding the prior termination, the parent can provide a

1. Both parties rely on R.C. 2151.414(B)(1), a statute that generally applies when a public children services
agency files a motion for permanent custody after an initial disposition finding a child abused, neglected, or
dependent. This is the same statute the juvenile court applied in granting permanent custody of C.S. to the
agency in this case. Nevertheless, although applying the wrong statutory framework, the juvenile court made the
necessary findings for granting permanent custody as required by R.C. 2151.353(A)(4).
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              legally secure permanent placement and adequate care for the
              health, welfare, and safety of the child.

       {¶ 26} Appellant argues that the trial court's determination was premature and

unwarranted given the short amount of time after the birth of the child. She argues she

demonstrated positive achievements, obtained housing and was gainfully employed, was

drug-free for nine months, was actively involved in outpatient treatment and attended all visits

and interacted well with the child.

       {¶ 27} However, the trial court determined that appellant failed to provide clear and

convincing evidence that she can provide a legally secure placement and adequately care for

the health, welfare and safety of the child. The court found that although appellant has

maintained sobriety, it was not enough for the agency to believe she was rehabilitated given

the agency's involvement in the past five years of appellant's drug issues. The court also

found that appellant "tries to tout being sober for the last nine months, but gives no credit to

the fact that she was incarcerated for most of that time." The court further found appellant's

argument that she "could have used drugs in jail" either unbelievable or shocking.

       {¶ 28} In addition, appellant was living in a hotel with her mother and boyfriend, both

of whom had issues with drugs, and her mother had a recent charge of domestic violence.

The court also reviewed the history of appellant's involvement with the agency, including her

two children born with drugs in their system who were eventually placed in the permanent

custody of the agency. Given these facts, we find no error in the trial court's determination

that appellant failed to establish by clear and convincing evidence that she could provide a

legally secure placement and adequately care for the health, welfare and safety of the child.

       {¶ 29} In considering the second factor, the court determined that it was in the child's

best interest to grant permanent custody to the agency. Again, appellant argues that she

was able to meet the child's needs and that reunification was possible within a reasonable


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time.

        {¶ 30} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in

a permanent custody hearing:

               [T]he court shall consider all relevant factors, including, but not
               limited to the following:

                      (a) The interaction and interrelationship of the
                      child with the child's parents, siblings, relatives,
                      foster caregivers and out-of-home providers, and
                      any other person who may significantly affect the
                      child;

                      (b) The wishes of the child, as expressed directly
                      by the child or through the child's guardian ad
                      litem, with due regard for the maturity of the child;

                      (c) The custodial history of the child, including
                      whether the child has 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 * * *;

                      (d)   The child's need for a legally secure
                      permanent placement and whether that type of
                      placement can be achieved without a grant of
                      permanent custody to the agency;

                      (e) Whether any of the factors in divisions (E)(7) to
                      (11) of this section apply in relation to the parents
                      and child.

        {¶ 31} In considering these factors, the court found that C.S. is thriving in her current

placement, is developmentally on track and her foster family is meeting all her needs. The

foster family has adopted her siblings and the court determined the child's only chance at

stability is to be adopted, hopefully by the same foster family. The court further considered

the fact that C.S. has been in the agency's custody from birth and that the Court Appointed

Special Advocate recommended that the motion for permanent custody be granted. The

court weighed the factors and determined that permanent custody was in the child's best


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interest.   We find the court's determination is supported by the record.         Accordingly,

appellant's first assignment of error is overruled.

       {¶ 32} In her second assignment of error, appellant argues she received ineffective

assistance of counsel and was prejudiced by counsel's failure to object throughout the

hearing. Specifically, appellant argues that counsel failed to object to leading questions and

argumentative questions, failed to object to questions regarding her mother's domestic

violence "conviction," and failed to object to questions that assumed facts not in evidence.

She also argues that her counsel asked questions that were not helpful to her.

       {¶ 33} "A parent is entitled to the effective assistance of counsel in cases involving

the involuntary termination of his or her parental rights." In re B.J. & L.J, 12th Dist. Warren

Nos. CA2016-05-036 & CA2016-05-038, 2016-Ohio-7440, ¶ 68; In re L.J., 12th Dist. Warren

No. CA2014-10-124, 2015-Ohio-1567, ¶ 33. In determining whether counsel was ineffective

in a permanent custody hearing, a reviewing court must apply the two-tier test of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In re G.W., 12th Dist. Butler No. CA2013-

12-246, 2014-Ohio-2579, ¶ 12. The parent must show that counsel's performance was

outside the wide range of professionally competent assistance and that counsel's deficient

performance prejudiced the parent. Id.

       {¶ 34} "[A] reviewing court need not determine whether counsel's performance was

deficient before examining the prejudice suffered by the [parent] as a result of the alleged

deficiencies." Id. at ¶ 13. To show that she was prejudiced by her counsel's deficient

performance, the parent must show that there is "a reasonable probability that but for * * *

her counsel's alleged errors, the result of the proceedings would have been different." In re

L.J. at ¶ 33. A "reasonable probability" is one sufficient to undermine confidence in the

outcome of the proceedings. Id.

       {¶ 35} After reviewing the record, we find no merit to appellant's arguments that her
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counsel was ineffective. The questions appellant argues are leading did not instruct the

witness how to answer, nor were they argumentative or assume facts not in evidence. In

addition, it is unclear from the record whether appellant's mother has a domestic violence

conviction or was charged with the offense. More critically, appellant cannot establish there

is a reasonable probability that the result of the hearing would have been different if counsel

had objected to the issues she now raises. Accordingly, appellant's second assignment of

error is overruled.

       {¶ 36} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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