[Cite as In re Z.S., 2010-Ohio-5038.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY


IN THE MATTER OF: Z.S.,                       :
A Minor Child                                 :
                                              :   Case No: 10CA16
                                              :
                                              :   DECISION AND
                                              :   JUDGMENT ENTRY
                                              :
                                              :   File-stamped date: 10-4-10



                                        APPEARANCES:

C. Michael Gleichauf, Ironton, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and Kevin Waldo, Lawrence County
Assistant Prosecutor, Ironton, Ohio, for Appellant.


Kline, J.:

{¶1}         Vivian Gamble, mother of Z.S., appeals the judgment of the juvenile court

awarding permanent custody of Z.S. to the Lawrence County Department of Job and

Family Services, Children Services Division (“Children Services”). Grady Smith, Z.S.’s

father, did not take part in this appeal and is presently incarcerated. On appeal,

Gamble contends that the trial court’s determination that the child be placed in the

permanent custody of Children Services was against the manifest weight of the

evidence. Because we find that the record contains competent, credible evidence

supporting the decision of the trial court, we disagree. Gamble also contends that her

attorney below provided ineffective assistance. Because Gamble failed to show that her
Lawrence App. No. 10CA16                                                                   2


trial counsel’s performance was deficient and that the deficient performance prejudiced

her, we disagree. Accordingly, we affirm the judgment of the juvenile court.

                                             I.

{¶2}      On June 26, 2008, Children Services requested an ex parte order of custody

of Z.S. to remove him from his home because the child was alleged to be abused,

dependent, or neglected. The next day, the juvenile court granted Children Services

temporary custody of Z.S.

{¶3}      Children Services filed a complaint in juvenile court that alleged Z.S. was an

abused, dependent, or neglected child. The complaint alleged that the “child’s mother

admits the use of non-prescribed pain pills, marijuana and use of crack cocaine and

ingesting several morphine pills during pregnancy. Said mother’s continued drug use

contributed to the premature birth of this child and medical records reveal that the

mother has serious drug issues. The father of the child has apparently done nothing to

protect the unborn child from the mother’s drug usage.”

{¶4}      The case came to court for an adjudicatory hearing on July 3, 2008, and both

parents admitted to the charges. The trial court found that Z.S. was an abused,

neglected, and dependent child and entered an order in its journal instructing Children

Services to prepare a case plan for reunification.

{¶5}      Children Services proposed a plan requiring Gamble to complete the

following objectives for potential reunification: 1) submit to a psychological examination;

2) attend and complete a drug or alcohol assessment by an approved service provider

and all recommended counseling treatments; 3) seek a domestic violence group to work

through domestic violence issues; 4) attend a parenting class in order to obtain the skills
Lawrence App. No. 10CA16                                                                                  3


needed to cope with a special needs child1; 5) sign the necessary releases so that

Children Services can obtain any necessary information from mental health agencies;

and 6) obtain appropriate housing and be able to provide items necessary for Z.S.’s

welfare (e.g., bedding, clothing, baby care supplies).

{¶6}        On August 25, 2008, the court accepted the case plan and incorporated it into

the court’s dispositional order. It is uncontested that Gamble did not make progress on

any of these objectives during the pendency of the case below. At least in part, this is

due to Gamble’s incarceration in Kentucky on drug charges. Gamble was incarcerated

on August 21, 2008, about two months after the filing of the complaint. Initially, Gamble

was eligible for parole in September of 2009, but she was not released until January 11,

2010, about two weeks prior to the permanency hearing.

{¶7}        Children Services had filed a motion for permanent custody on August 18,

2009, during Gamble’s incarceration. The matter came to a hearing before the trial

court on January 26, 2010. The State presented two witnesses. First, Alyssa Anaya

testified that she was the case worker responsible for Z.S. for the first two months of the

present case. She also testified that the child’s father had an extensive criminal history

and that Z.S. had been placed in foster care because there was no relative available for

placement. Second, Ginger Baker testified that she was the case worker for the

remainder of the case. She testified that she received only three letters and a phone

call from Gamble over a period of a year and a half. Baker also testified that other

incarcerated individuals had successfully worked on their case plans in the past. And


1
  The record reflects that Z.S. suffers from a medical condition known as Capillary Venous Lymphatic
Malformation with Overgrowth, more commonly known as a “port wine stain.” This particular condition
requires frequent medical examinations for potential tumors, has caused the entire left side of Z.S.’s body
to be larger than his right side, and presents additional risks of internal bleeding as well as infection.
Lawrence App. No. 10CA16                                                                  4


she concluded that, notwithstanding a previously granted continuance of the sunset

date of the plan, Gamble had failed to take any action on the plan objectives.

{¶8}      In response, Gamble testified that while she was incarcerated in Kentucky,

she did not have any access to resources necessary to complete any plan objectives.

She also testified that she had attempted to call Children Services numerous times, but

that she had to call collect and Children Services did not accept the charges. And,

finally, that she hoped to shortly move out of the halfway house where she presently

lived and move in with a friend she had met in prison.

{¶9}      Subsequent to the hearing, the guardian ad litem for Z.S. filed a report that

concluded “it is in Z.S.’s best interest that some permanency be achieved. The

mother’s plans for parole and case plan completion include too many unknown factors.

It is unknown whether her home placement with a fellow inmate will or even should be

approved. It is unknown how long it will take her to transfer her probation to Lawrence

County, Ohio. She is not financially independent, has made no educational or

vocational progress while incarcerated and has not begun counseling. It is unknown

whether she could successfully complete the case plan objectives even if given

additional time. Further, her plans are completely dependent on receiving help from

other people. Regardless of how well-intentioned [Gamble] may be, it is unknown

whether these people will come through for her.” Guardian ad Litem’s Report at 4-5.

Neither party objected to the report of the guardian ad litem.

{¶10}     The trial court issued an order on February 24, 2010 that granted Children

Services’ motion for permanent custody. Gamble appeals and assigns the following

errors for our review: I. “THE TRIAL COURT ERRED IN ORDERING PERMANENT
Lawrence App. No. 10CA16                                                                      5


CUSTODY TO THE LAWRENCE COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES, CHILDREN SERVICES DIVISION, AS SUCH WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.” And, II “APPELLANT WAS DENIED HER

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE PERMANENT

CUSTODY HEARING.”

                                              II.

{¶11}     Gamble first contends that the decision of the trial court was against the

manifest weight of the evidence.

{¶12}     We note that a parent’s “interest in the care, custody, and control of [his or

her] children ‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A.,

113 Ohio St.3d 88, 2007-Ohio-1105, at ¶8, citing Troxel v. Granville (2000), 530 U.S.

57, 65. Further, “[p]ermanent termination of parental rights has been described as ‘the

family law equivalent of the death penalty in a criminal case.’” In re D.A. at ¶10, quoting

In re Smith (1991), 77 Ohio App.3d 1, 16. As such, “parents ‘must be afforded every

procedural and substantive protection the law allows.’” In re D.A. at ¶10, quoting In re

Hayes (1997), 79 Ohio St.3d 46, 48. “‘[I]t is plain that the natural rights of a parent are

not absolute, but are always subject to the ultimate welfare of the child, which is the

polestar or controlling principle to be observed.’” In re Cunningham (1979), 59 Ohio

St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.

{¶13}     “A public or private child-placement agency may file a motion under R.C.

2151.413(A) to request permanent custody of a child after a court has committed the

child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, at ¶22. Once an R.C. 2151.413(A) motion is
Lawrence App. No. 10CA16                                                                    6


filed, the court must follow R.C. 2151.414. Id. “[T]he court shall schedule a hearing and

give notice of the filing of the motion and of the hearing[.]” R.C. 2151.414(A)(1).

{¶14}      A trial court may grant the agency’s motion for permanent custody if it

determines by clear and convincing evidence that: (1) one of the four conditions outlined

in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.

2151.414(B)(1); In re McCain, Vinton App. No. 06CA654, 2007-Ohio-1429, at ¶13.

{¶15}      Gamble contends that the trial court erred in making the required findings

because they are against the manifest weight of the evidence. An award of permanent

custody must be supported by clear and convincing evidence. In re Hiatt (1993), 86

Ohio App.3d 716, 725. The Supreme Court of Ohio has defined “clear and convincing

evidence” as “[t]he measure or degree of proof that will produce in the mind of the trier

of fact a firm belief or conviction as to the allegations sought to be established. It is

intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. It does not mean

clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 104.

{¶16}      We will not reverse the judgment of the trial court when some competent,

credible evidence supports the trial court’s findings. In re Marano, Athens App. No.

04CA30, 2004-Ohio-6826, at ¶12. As such, we must determine if competent, credible

evidence supports the trial court’s findings concerning R.C. 2151.414(B)(1) and the best

interest of the child.

{¶17}      First we consider the required finding under R.C. 2151.414(B)(1). The record

demonstrates that Z.S. has been in the temporary custody of Children Services since

June 27, 2008. R.C. 2151.414(B)(1)(d) provides that the trial court may grant
Lawrence App. No. 10CA16                                                                          7


permanent custody to a movant if “[t]he 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[.]” See, also, In re C.W., 104

Ohio St.3d 163, 2004-Ohio-6411, syllabus. Here, Gamble admitted on the stand she

spent sixteen and one half months in prison during the pendency of these proceedings.

Transcript at 95. During the entirety of this time, Z.S. was in the temporary custody of

Children Services. We find competent, credible evidence in the record to support the

trial court’s finding under R.C. 2151.414(B)(1)(d).

{¶18}      Second, the trial court concluded that the best interest of the child supported

granting the motion for permanent custody. R.C. 2151.414(D) provides, in part, that the

trial court in determining the best interest of a child “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[.].”

{¶19}      The first statutory best interest factor is the child’s relationship with his foster

caregivers and with his parents. Baker testified that Z.S. was doing well in his current
Lawrence App. No. 10CA16                                                                     8


placement. Transcript at 82. The report of the guardian ad litem indicated that Z.S. had

“bonded” with his foster mother. Guardian ad Litem’s Report at 2. Due to Gamble’s

incarceration, she has spent very little time with Z.S. She has also had little or no

communication with him. As such, there was competent, credible evidence in the

record that this factor supported granting Children Services permanent custody.

{¶20}      The second statutory best interest factor is the child’s wishes. The trial

court’s order did not consider this factor. Apparently, the trial court agreed with the

guardian ad litem that the child was too young to express a meaningful preference. See

Guardian ad Litem’s Report at 2. Gamble does not contest this finding and entered no

objection to the report of the guardian ad litem before the trial court. There was

competent, credible evidence in the record supporting the trial court’s decision to

disregard this factor.

{¶21}      The third statutory best interest factor is the custodial history of the child. The

trial court expressly found that the child had spent at least twelve or more months of a

consecutive twenty two month period in the custody of Children Services. The docket of

the case supports this finding. There was competent, credible evidence in the record to

support the trial court’s finding that this factor supported granting permanent custody to

Children Services.

{¶22}      The fourth statutory best interest factor is the child’s need for a permanent

placement. The guardian ad litem concluded that the child was in need of a permanent

placement. Guardian ad Litem’s Report at 4. Again, Gamble raised no objection to this

report. There was competent, credible evidence in the record to support the trial court’s

finding on this factor.
Lawrence App. No. 10CA16                                                                        9


{¶23}      Gamble does not really argue in her brief that the trial court could not have

found any of these statutory best interest factors. That is, she appears to accept that

the foster parents have a closer relationship with Z.S. than she does. She certainly

accepts that Z.S. has spent twelve or more months in the custody of Children Services.

And she also accepts that she has made no progress in compliance with the

reunification plan.

{¶24}      Gamble does argue that she is not to blame for any of these issues. She

testified that it was impossible, or at least extremely difficult, for her to communicate

while she was imprisoned in Kentucky. She also noted that the Kentucky prison did not

offer any kind of substance abuse programs for her to enroll in. Finally, she notes that

Children Services knew that she would be incarcerated before they wrote the

reunification plan. Therefore, she argues that the fact she did not complete the

reunification plan should not be held against her.

{¶25}      We note that Gamble’s argument misunderstands the nature of a trial court’s

decision in a permanency hearing. In this context, a trial court does not primarily

apportion guilt or find fault. Instead, the trial court focuses on the best interest of the

child. In Matter of Clark (Apr. 4, 1995), Harrison App. No. 461. Even should we agree

that Gamble is not at fault for failing to satisfy any of the conditions of the reunification

plan, nonetheless, the trial court may have held that the best interests of the child

required that the court grant Children Services’ motion for permanent custody.

{¶26}      Significantly, the trial court concluded that Z.S. was in need of a secure

permanent placement. At the time of the permanency hearing, there is no question but

that Gamble was not capable of taking care of Z.S. She had no independent housing,
Lawrence App. No. 10CA16                                                                   10


no job, and was on parole in a different state. As the guardian ad litem concluded,

“[f]urther, according to [Gamble’s] testimony, the earliest she can hope to be a free

person in Ohio is mid to late March, 2010, providing that everything goes as planned,

and then she would still have to complete all of the case plan requirements.” Guardian

ad Litem’s Report at 4. The trial court reasonably concluded that Z.S. needed some

permanent placement, and, as the trial court noted, the only possible placement at the

time of the hearing was with Children Services. And based on the foregoing, we find

that there was competent, credible evidence in the record to support the trial court’s

finding that the best interest of the child supported granting the motion for permanent

custody.

{¶27}      Finally, there is competent, credible evidence in the record that supports the

trial court’s finding that the child could not be placed with either parent within a

reasonable period of time. We note that this finding was unnecessary. R.C.

2151.414(B)(1)(d), unlike R.C. 2151.414(B)(1)(a), does not require the court to make a

finding of whether the child can be placed with the child’s parents within a reasonable

period of time. Nonetheless, the trial court’s finding, while statutorily unnecessary,

influenced the court’s decision to grant Children Services’ motion. In the trial court’s

opinion, this finding goes hand in glove with the court’s conclusions regarding the child’s

need for permanent placement and the best interests of the child. In a sense, the trial

court concluded that the child was in need of a permanent placement, and the court

concluded that the only possible placement within the near future was with Children

Services. In context, the trial court’s finding that the child could not be placed with

either parent within a reasonable period of time is intertwined with its conclusion
Lawrence App. No. 10CA16                                                                     11


regarding the child’s best interest. The gist being that the child was in need of a

permanent placement and the only available placement within a reasonable period of

time was with Children Services. This factor constitutes a permissible factor under R.C.

2151.414(D), which empowers a court to consider “all relevant factors” in determining a

child’s best interest.

{¶28}      Under R.C. 2151.414(E)(1), a trial court may find that a child cannot be

placed with a parent within a reasonable time where “[f]ollowing 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.”

{¶29}      Again, Gamble largely agrees with the trial court’s facts but argues that her

failure to complete any stated objectives in the reunification plan is not her fault. Again,

even if we credit this argument, this misunderstands the nature of the proceeding. The

focus here is not on any fault or lack thereof of the parent. The question is whether the

child can be placed with either parent within a reasonable period of time. Here based

on Gamble’s testimony and the report of the guardian ad litem, we find that there was
Lawrence App. No. 10CA16                                                                  12


some competent, credible evidence in the record to support the trial court’s conclusion

that the child could not be placed with either parent within a reasonable period of time.

{¶30}     We have found competent, credible evidence in the record supporting the trial

court’s conclusions, and we therefore overrule Gamble’s first assignment of error.

                                            III.

{¶31}     In her second assignment of error, Gamble contends that she was denied the

effective assistance of counsel.

{¶32}     The two part test for ineffective assistance of counsel in criminal cases, as

announced in Strickland v. Washington (1984), 466 U.S. 668, is equally applicable to

state actions for permanent custody. In re A.M., Adams App. No. 08CA862, 2008-Ohio-

4835, at ¶33 (internal citations omitted); In re King (Aug. 11, 1999), Adams App. No.

99CA671, citing Jones v. Lucas Cty. Children Services Bd. (1984), 46 Ohio App.3d 85,

86. “In Ohio, a properly licensed attorney is presumed competent and the appellant

bears the burden to establish counsel’s ineffectiveness.” State v. Wright, Washington

App. No. 00CA39, 2001-Ohio-2473, citing State v. Hamblin (1988), 37 Ohio St.3d 153,

155-56, cert. den. Hamblin v. Ohio (1988), 488 U.S. 975; Vaughn v. Maxwell (1965), 2

Ohio St.2d 299, 301. As this court has noted, the “benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Wright, citing Strickland at 685-86.

{¶33}     The party alleging ineffective assistance of counsel must show two things: (1)

“that counsel’s performance was deficient[,]” which “requires showing that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
Lawrence App. No. 10CA16                                                                       13


defendant by the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced

the defense[,]” which “requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland at 687.

Unless both prongs are shown, it cannot be said that there was a “breakdown in the

adversary process that renders the result unreliable.” Id.

{¶34}      Specifically, Gamble claims the following: “In the case at hand the attorney for

the Appellant presented the court with little evidence to counter the State’s contentions

for permanent custody. The only witness the attorney for the Appellant called was the

[A]ppellant. The attorney for the [A]ppellant introduce[d] two letters into evidence that

the [A]ppellant had written, but failed to introduce any additional evidence. Additionally

the Appellant’s trial counsel failed to challenge the [report of the guardian ad litem], or to

cross examine the [guardian ad litem] as to her findings.”

{¶35}      However, when considering an appeal based on the ineffective assistance of

counsel, we “will not presume prejudice but will require an affirmative showing thereof.”

Matter of Shelton (Mar. 16, 1993), Highland App. No. 818. See, also, State v. Sanders,

92 Ohio St.3d 245, 273, 2001-Ohio-189 (“A reviewing court must strongly presume that

‘counsel’s conduct falls within the wide range of reasonable professional assistance[.]’”),

quoting Strickland at 689. In the present case, Gamble provides absolutely nothing

other than the bare speculation that her attorney could have, and should have, called

more witnesses and cross-examined the guardian ad litem. Gamble provides no

evidence that the outcome of the proceedings would have been different had Gamble’s

trial counsel called these unnamed witnesses or asked these unstated questions. As
Lawrence App. No. 10CA16                                                               14


such, she fails to carry her burden to demonstrate the prejudice prong of the Strickland

test.

{¶36}     We therefore overrule Gamble’s second assignment of error.

                                           IV.

{¶37}     Having overruled both of Gamble’s assignments of error, we affirm the

judgment of the Lawrence County Common Pleas Court, Juvenile Division.



                                                               JUDGMENT AFFIRMED.
Lawrence App. No. 10CA16                                                               15


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.


      McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.



                                         For the Court


                                         BY:
                                               Roger L. Kline, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
