[Cite as In re S.U., 2014-Ohio-5748.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




IN RE:                                             :

         S.U., et al.                              :      CASE NO. CA2014-07-055

                                                   :              OPINION
                                                                  12/30/2014
                                                   :

                                                   :



            APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. 2012 JC04394



Mary Lou Cooper, 2400 Clermont Center Drive, #204A, Batavia, Ohio 45103, guardian ad
litem (CASA)

Brafford & Phillips, Suellen M. Brafford, 285 East Main Street, Batavia, Ohio 45103, for
appellant, Michael S.

Denver Law Firm, LLC, Scott A. Hoberg, 9146 Cincinnati-Columbus Road, West Chester,
Ohio 45069, for Destiny U.

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee, Clermont County Dept. of Job
and Family Services



         HENDRICKSON, J.

         {¶ 1} Appellant, the biological father of M.S., appeals a decision of the Clermont

County Court of Common Pleas, Juvenile Division, granting permanent custody of the child to
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a children services agency.

       {¶ 2} Clermont County Children's Protective Services filed a complaint on April 18,

2012, alleging that M.S. was a neglected child and his half-sibling, who has a different father,

was a dependent child. The complaint indicated that the agency had been working with the

children's mother, who was then living in a homeless shelter. The agency received reports

that M.S., who was seven months old, was not being fed enough and was very thin. M.S.

was taken to the pediatrician and on examination, weighed 12 pounds and 15 ounces and

was diagnosed with failure to thrive. In addition, the complaint alleged that the mother was

"kicked out" of the homeless shelter because she threatened to kill other residents.

       {¶ 3} On July 5, 2012, M.S. was adjudicated neglected and his half-sister was

adjudicated dependent. The agency prepared a case plan and provided services for the

mother to assist in reunification. At the time, appellant indicated that he did not want a case

plan and he did not participate in any services toward reunification. The mother made little

progress on the case plan and after two six-month extensions on the case, the agency filed

for permanent custody of the children on August 28, 2013.

       {¶ 4} After considering all of the evidence at the hearing, the magistrate granted

permanent custody of the children to the agency. The mother filed objections to the

magistrate's decision which were overruled. Appellant's attorney did not file objections to the

magistrate's decision. However, after a hearing on the mother's objections was scheduled,

appellant's attorney filed a request to convey appellant from prison to the objection hearing.

The trial court denied the motion on the basis that mother's counsel indicated he was not

going to present argument at the hearing. The trial court overruled the mother's objections to

the magistrate's decision and granted permanent custody of the children to the agency.




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        {¶ 5} In this delayed appeal, appellant appeals the trial court's decision to grant

permanent custody of M.S. to the agency and raises the following two assignments of error

for our review:

        {¶ 6} Assignment of Error No. 1:

        {¶ 7} THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY

TO CLERMONT COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES.

        {¶ 8} Assignment of Error No. 2:

        {¶ 9} FATHER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

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

and custody of his 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). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re A.W., 12th Dist.

Fayette No. CA2014-03-005, 2014-Ohio-3188. A reviewing court will reverse a finding by the

juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in

the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th Dist.).

        {¶ 11} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. First, the court must find that the grant of permanent custody to the agency is

in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the

court must find that any of the following apply: the child is abandoned; the child is orphaned;


1. This court granted appellant's motion for a delayed appeal on September 18, 2014. The mother's appeal was
previously considered and the trial court's decision was affirmed. In re S.U., Clermont No. CA2014-07-047,
2014-Ohio-5166.


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the child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period; or where the preceding three factors do not apply, the child

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

either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Warren Nos.

CA2009-10-139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.

        {¶ 12} The juvenile court considered the statutory factors and found, by clear and

convincing evidence, it was in the best interest of M.S. to grant permanent custody to the

agency. In addition, the trial court further found that M.S. had been abandoned by appellant.

        {¶ 13} For purposes of R.C. 2151.414(B)(1)(b), "abandoned" is defined by R.C.

2151.011(C), which provides that "a child shall be presumed abandoned when the parents of

the child have failed to visit or maintain contact with the child for more than ninety days,

regardless of whether the parents resume contact with the child after that period of ninety

days." The trial court found M.S. had been abandoned by his father because the father failed

to maintain contact with the child for more than 90 days.2

        {¶ 14} In his first assignment of error, appellant argues that the trial court erred in

granting permanent custody of M.S. to the agency because children services failed to make

reasonable efforts to reunite him with the child. He argues that the agency failed to provide

him with a case plan and failed to maintain contact with him during the case. He contends

that if the agency had maintained contact, it would have known he was released from prison

in September 2014 and could have begun reunification attempts at that time.

        {¶ 15} Except for a few narrowly defined statutory exceptions, R.C. 2151.419 requires

a children services agency to make reasonable efforts to reunify a family prior to the


2. Because this finding did not apply to the child's mother, the court also found that the children have been in the
temporary custody of the agency for more than 12 months of a consecutive 22-month period as of the date the
agency filed the permanent custody motion.


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termination of parental rights.3 In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 21. The

children services agency has the burden of proving that it made those reasonable efforts.

R.C. 2151.419(A)(1).          While the court is not required to make a reasonable efforts

determination at a hearing on a permanent custody motion, this finding must have been

made at other stages of the child-custody proceeding. In re C.F. at ¶ 42. In this case,

reasonable efforts findings were made prior to the permanent custody hearing and in the

magistrate's permanent custody decision.

        {¶ 16} When examining whether the agency made reasonable efforts to prevent the

removal of the child from the home, the issue is not whether the agency could have done

more, but whether it did enough to satisfy the reasonableness standard under the statute. In

re A.D., 12th Dist. Fayette No. CA2014-06-014, 2014-Ohio-5083. "Reasonable efforts" does

not mean all available efforts. Otherwise, there would always be an argument that one more

additional service, no matter how remote, may have made reunification possible. In re K.L.,

12th Dist. Clermont No. CA2012-08-062, 2013-Ohio-12, ¶ 18. Moreover, courts have

recognized an implied exception to the reasonable efforts requirement where case planning

efforts would be futile. In re T.F., 4th Dist. Pickaway No. 07CA34, 2008-Ohio-1238; see, e.g.,

In re L.J., 12th Dist. Clermont No. CA2007-07-080, 2007-Ohio-5498.

        {¶ 17} At the permanent custody hearing, the caseworker testified that appellant was

present during the initial stages of the agency's involvement because he was living with the

mother at the time. She indicated his only involvement in the case was as the mother's

significant other. The caseworker explained that when the issue was discussed, appellant

told the agency he did not want a case plan, so no case plan for appellant was ever


3. We note that an exception to the reasonable efforts requirement exists when a parent has abandoned a child.
R.C. 2151.419(A)(2)(b)(d). However, the exception does not apply in this case because the statute requires the
court to make a determination that the agency is not required to make reasonable efforts and the trial court failed
to make this finding. R.C. 2151.419(A)(2).

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prepared. The caseworker further testified that shortly after the agency obtained custody of

the children, appellant moved to Toledo, Ohio. She indicated that appellant has been

incarcerated on and off during the case and she believed he was currently scheduled to be

released in 2015. She also testified that appellant has never contacted the agency and has

had no contact with the child while he has been in foster care.

       {¶ 18} The agency's efforts toward reunification in this case were directed solely at the

mother. We find these efforts were reasonable under the facts before us. Appellant showed

no interest in participating in a case plan, moved several hours away, showed no interest in

reunifying with M.S. at any point during the case, and failed to communicate with the children,

the agency or his own attorney. Appellant's first assignment of error is overruled.

       {¶ 19} In his second assignment of error, appellant claims his trial counsel was

ineffective for failing to file a motion to convey him to the permanent custody hearing and for

failing to file objections to the magistrate's decision.

       {¶ 20} Because parental rights involve a fundamental liberty interest, procedural due

process, which includes the right to effective assistance of counsel, applies to permanent

custody hearings. R.C. 2151.352; Juv.R. 4; In re Spillman, 12th Dist. Clinton App. No.

CA2002-06-028, 2003-Ohio-713, ¶ 8. In determining whether counsel's performance is

deficient, an appellate court must find that counsel's actions fell below an objective standard

of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington

(1984), 466 U.S. 668-687-688, 104 S.Ct. 2052.

       {¶ 21} In demonstrating prejudice, appellant must show that there is a reasonable

probability that, but for counsel's errors, the result of the trial would have been different. Id.

at 694. A strong presumption exists that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the wide range of

professional assistance. Id. at 689.
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       {¶ 22} We find no merit to appellant's argument that his trial counsel was ineffective

for failing to file a motion to convey him to the hearing. Appellant cannot establish he was

prejudiced, as there is no evidence the result of the hearing would have been different if the

motion had been filed.

       {¶ 23} First, we note that if the motion to convey had been filed, there is no guarantee

it would have been granted. While an incarcerated individual does not have an absolute right

to appear in a permanent custody proceeding, that same individual has a fundamental

parental right with regards to his children. In re Sprague, 113 Ohio App.3d 274 (12th

Dist.1996). Generally, no due process violation occurs when an incarcerated parent does not

appear at a parental rights termination hearing, as long as the parent has alternate means of

participating. In re S.F.T., 12th Dist. Butler Nos. CA2010-02-043, CA2010-02-044, CA2010-

02-045, CA2010-02-046, 2010-Ohio-3706. In this case, appellant was represented by

counsel, who questioned witnesses on his behalf and protected his rights at the hearing.

       {¶ 24} In addition, even if the motion to convey had been filed and granted, appellant

has not presented any argument that that the result of the hearing would have been different.

The mother failed to complete the case plan and was unable to provide a safe home for the

children. As discussed above, appellant showed no desire to work towards reunification with

the children at any point in the case and failed to maintain contact with the children and the

agency throughout the case.

       {¶ 25} Likewise, appellant has not presented any argument that the results of the

hearing would have been different if his counsel had filed objections to the magistrate's

decision. The mother's attorney filed objections challenging the magistrate's findings with

regard to the weight of the evidence and the best interest finding. These objections were

fully considered by the trial court. Appellant has not presented any further argument

indicating how the result would have been different with regard to the abandonment finding if
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counsel had filed objections.     Accordingly, we find appellant has not established any

prejudice as a result of counsel's failure to file objections to the magistrate's decision. As

appellant is unable to establish that he was prejudiced by counsel's failure to file a motion to

convey or failure to object to the magistrate's decision, he cannot establish that his trial

counsel was ineffective. Appellant's second assignment of error is overruled.

       {¶ 26} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




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