[Cite as In re S.D., 2015-Ohio-354.]


                                       IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                       ASHTABULA COUNTY, OHIO


IN THE MATTER OF:                                  :      OPINION

S.D., P.D., P.D.-L., AND C.D.                      :
                                                          CASE NO. 2014-A-0063
                                                   :


Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division
Case No. 12 JC 17.

Judgment: Affirmed.


Anita B. Staley, Barthol & Staley, L.P.A., 7327 Center Street, Mentor, OH 44060 (For
Appellant).

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Laura M. DiGiacomo, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Appellee).

Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor,
OH 44060 (Guardian ad Litem).



DIANE V. GRENDELL, J.

        {¶1}     Appellant, Kyle Leonard, appeals from the judgment of the Ashtabula

County Court of Common Pleas, Juvenile Division, granting permanent custody of his

children, P.D.-L. and C.D., to appellee, the Ashtabula County Children Services Board

(ACCSB). The issues to be determined in this case are whether the trial court erred in

finding it was in the best interest of the children to grant permanent custody to ACCSB

when their father did not have adequate housing or employment and whether trial

counsel was ineffective in failing to file a motion for legal custody under such
circumstances and by failing to file a pretrial motion for the recusal of the magistrate due

to bias. For the following reasons, we affirm the decision of the court below.

        {¶2}    Leonard is the biological father of C.D., born July 26, 2012, as was

established through a paternity test. Leonard also signed the birth certificate of P.D.-L.,

born November 17, 2010, although no paternity test was taken. Stephanie Davis is their

biological mother. The two are not presently married or in a relationship.

        {¶3}    On February 28, 2012, an ex parte emergency order granted temporary

custody of S.D., P.D., and P.D.-L. to ACCSB.1

        {¶4}    On February 29, 2012, ACCSB filed a Complaint for Temporary Custody,

alleging that the children were neglected. The Complaint asserted that the children,

living with their mother, lacked proper parental care and that “the family home was in

horrendous condition and * * * is packed with trash and miscellaneous items.” The

caseworker “observed the home to be in deplorable condition and unsafe for the

children.” Further, the Complaint alleged that there had been cases regarding these

same concerns in the past. As of that date, Leonard was also living in Davis’ home.

Following a Shelter Care Hearing, on February 29, 2012, the children continued in the

custody of ACCSB.

        {¶5}    A case plan was filed on March 15, 2012. It required that Leonard provide

safe and sanitary housing for his child, P.D.-L.

        {¶6}    In a March 28, 2012 Magistrate’s Decision, the children were found to be

neglected, pursuant to R.C. 2151.03(A)(2). On May 21, 2012, following a disposition

hearing, the magistrate accepted the case plan and ACCSB’s custody of the children

was continued. These decisions were adopted by the court.

1. S.D. and P.D. have different biological fathers and are not the subjects of the present appeal.

                                                     2
      {¶7}    Following a request for emergency temporary custody, on April 22, 2013,

C.D., born July 26, 2012, was also placed in the custody of ACCSB. On April 23, 2013,

ACCSB filed a Complaint for Temporary Custody of C.D. The Complaint alleged that

C.D. was an abused child, as he had bruises covering his body.

      {¶8}    A case plan filed on May 13, 2013, included C.D. and added the

requirement that Leonard participate in a parenting evaluation with Dr. Fabian and

complete parenting classes.

      {¶9}    On May 22, 2013, pursuant to the parties’ stipulation, C.D. was found to

be an abused child, under R.C. 2151.031(C). Following a disposition hearing, on July

18, 2013, it was ordered that C.D. remain in the custody of ACCSB.

      {¶10} ACCSB filed a Motion to Modify Temporary Custody to Permanent

Custody on January 29, 2014.

      {¶11} At the hearing on ACCSB’s Motion on May 22, 2014, Leonard’s counsel

requested that the magistrate recuse herself due to Leonard’s view that she was

prejudiced, based on her presiding over a juvenile case when he was 16. This request

was denied.

      {¶12} Prior to the presentation of testimony, Davis agreed that ACCSB should

be granted permanent custody of all four children and that all had been in the custody of

ACCSB for 12 out of 22 consecutive months.

      {¶13} Katie Balog, a visitation supervisor for Rooms to Grow, supervised visits

between P.D.-L., C.D., and Leonard. She testified that over a period of two years, the

visits were “sporadic” and there was a “long period of time” when Leonard did not come.

He attended 3 visits from August 24, 2012, until visits were suspended after several

consecutive cancellations by Leonard. From November 16, 2012, until June 21, 2013,

                                           3
Leonard did not visit with the children and did not contact Rooms to Grow. Following

June 21, 2013, Leonard began to visit more frequently, although he still missed a few

visits. Over two years, Leonard attended 15 of 35 possible visits. The visits went “fairly

well” and Balog had no concerns. She noted that Leonard walked to his visits due to

transportation issues.

        {¶14} Jennifer Mochoskay, an ACCSB caseworker, testified that there were brief

periods of time when she could not get in contact with Leonard.        None of Leonard’s

residences were deemed appropriate for the children, due to various issues including

occupants with child endangerment charges or ACCSB involvement.                Mochoskay

explained that the agency offered help regarding housing, which Leonard refused.

Leonard never provided proof of employment, although he reported holding several

jobs.

        {¶15} According to Mochoskay, all four children were placed in a foster home on

August 13, 2013, have remained in that home, and are doing “very well.” She testified

that they should remain together. Mochoskay would not recommend reunification with

Leonard because he has not shown he is capable of providing an appropriate home or

having an adequate income to care for the children.

        {¶16} The foster mother, who stays at home with the children while her husband

works, testified that they were doing well. In the future, the foster parents would like to

adopt all four children, who were bonded with them and each other.

        {¶17} Leonard explained that, at the time P.D.-L. was taken from Davis’ home,

he had been residing with her. He left her home due to a disagreement on her failure to

clean and noted that the home was a health hazard, with mold and electrical problems.




                                            4
       {¶18} Since Leonard had moved out, he has lived in “quite a few residences,”

due to his inability to find work. He and his wife, Krystal Leonard, to whom he has been

married since 2007, lived with various relatives during that time and currently reside with

her grandmother, where the children could not live.

       {¶19} Regarding his case plan requirements, Leonard testified that he complied

with the requirement to have an evaluation with the psychologist, Dr. Fabian, but did not

have stable housing over the past five years and had not had adequate income. He has

held several jobs during the past few years, including seasonal employment. Over the

past two years, he had periods where he played “phone tag” with his caseworker but he

had kept in contact.

       {¶20} Leonard explained that he sees a psychiatrist and has “anxiety issues,” as

well as several health problems, including “small respiratory issues.” A recent visit had

been cancelled due to a rash on his hand.

       {¶21} Leonard testified that he would “push [his] body to the point where [he]

break[s]” to take care of his children. He walked up to eight miles to attend visitation.

Leonard believed that he should be reunified with the children, but he needs to find

stable employment, which he is attempting to do, and to move. He admitted that he did

not have suitable housing for the children at the time of the hearing.

       {¶22} Leonard’s wife, Krystal, testified that although she was not the mother of

the two children, she would support Leonard and had expressed an interest in visiting

with the children. She was working on obtaining support in paying for housing and

gaining employment.

       {¶23} The guardian ad litem, Eileen Noon Miller, did not believe Leonard would

be in a position “at any reasonable time to be able to parent [the] children.”        She

                                             5
believed that it was in their best interest for ACCSB to be granted permanent custody,

especially given that “there is an absolute probability that they will be adopted and that *

* * all four children will be kept together as a unit.” She expressed the same opinion in

her Guardian Ad Litem Report.

       {¶24} In a June 19, 2014 Magistrate Decision, the magistrate found that the

Motion for Permanent Custody was proven by clear and convincing evidence, noting

that the children could not be placed with either parent within a reasonable time, and

that Leonard had failed “continuously and repeatedly to substantially remedy the

conditions” causing the children to be placed outside of their home. The magistrate also

found that Leonard abandoned the children, the children had been in the temporary

custody of ACCSB for 12 months out of a consecutive 22 month period, that ACCSB

had made reasonable efforts to finalize the permanency plan, and that the children’s

best interest was served by granting permanent custody to ACCSB. The magistrate

addressed the best interest factors and found that the children were placed together in

foster care, the GAL believed that it was in the best interest of the children to be placed

in ACCSB’s custody, and they needed a permanent and legally secure placement.

       {¶25} On June 25, 2014, Leonard filed Objections to Magistrate Decision, based

on the lack of clear and convincing evidence to support the decision, which were

overruled by the trial court on October 6, 2014.

       {¶26} On the same date, the trial court issued a Judgment Entry, adopting the

Magistrate Decision, and granting permanent custody of the children to ACCSB, for the

same reasons outlined above.

       {¶27} Leonard timely appeals and raises the following assignments of error:




                                             6
       {¶28} “[1.] The trial court erred in granting the motion for permanent custody as

such decision was against the manifest weight of the evidence.

       {¶29} “[2.] The appellant’s due process rights as guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution and Article I, Section 10 of

the Ohio Constitution were violated by ineffective assistance of counsel.”

       {¶30} “[P]arents who are suitable persons have a ‘paramount’ right to the

custody of their minor children.” (Citations omitted.) In re Murray, 52 Ohio St.3d 155,

157, 556 N.E.2d 1169 (1990). The “extreme disposition” of permanently terminating a

parent’s rights with respect to a child, however, “is nevertheless expressly sanctioned *

* * when it is necessary for the ‘welfare’ of the child.” In re Cunningham, 59 Ohio St.2d

100, 105, 391 N.E.2d 1034 (1979).          “[T]he fundamental or primary inquiry at the

dispositional phase of these juvenile proceedings is not whether the parents * * * are

either fit or unfit,” rather, it is “the best interests and welfare of that child [that] are of

paramount importance.” (Emphasis sic.) Id. at 106.

       {¶31} A trial court must apply R.C. 2151.414(B) to determine the outcome of a

motion for permanent custody.        The statute provides, in pertinent part: “Except as

provided in division (B)(2) of this section, the court may grant permanent custody of a

child to a movant if the court determines at the hearing * * *, by clear and convincing

evidence, that it is in the best interest of the child to grant permanent custody of the

child to the agency that filed the motion for permanent custody and that any of the

following apply: “(a) The child * * * has not been in the temporary custody of one or

more public children services agencies * * * for twelve or more months of a consecutive

twenty-two-month period, * * * and the child cannot be placed with either of the child’s

parents within a reasonable time or should not be placed with the child’s parents; * * *

                                              7
(d) The child has been in the temporary custody of one or more public children services

agencies * * * for twelve or more months of a consecutive twenty-two-month period * *

*.” R.C. 2151.414(B)(1).

       {¶32} “In determining the best interest of a child * * *, the court shall consider all

relevant factors, including, but not limited to, * * * [t]he 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; * * * [t]he

custodial history of the child * * *; [t]he 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”; and whether any relevant factors in (E)(7) to (11) of

this section apply. R.C. 2151.414(D)(1)(a)-(e).

       {¶33} The trial court’s determination regarding the best interest issue must be

supported by clear and convincing evidence, which is “more than a mere

preponderance of the evidence; it is evidence sufficient to produce in the mind of the

trier of fact a firm belief or conviction as to the facts sought to be established.” In re

Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-2449, ¶ 36.

       {¶34} In his first assignment of error, Leonard raises various arguments in

support of his contention that the court’s decision was against the manifest weight of the

evidence.

       {¶35} In cases involving the termination of parental rights, an appellate court

applies the manifest weight of the evidence standard of review. In re B.R.C., 11th Dist.

Portage Nos. 2013-P-0059 and 2013-P-0060, 2014-Ohio-69, ¶ 41. Weight of the

evidence, in both civil and criminal cases, concerns “‘the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

                                              8
than the other. It indicates clearly to the [finder of fact] that the party having the burden

of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they

shall find the greater amount of credible evidence sustains the issue which is to be

established before them.’” (Emphasis sic.) Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

       {¶36} “In undertaking this limited reweighing of the evidence, however,

       we are guided by the presumption that the factual findings of the trial court

       were correct.” Sparre [v. Ohio Dept. of Transp., 2013-Ohio-4153, 998

       N.E.2d 883,] ¶ 12 [(10th Dist.)]. “Accordingly, the weight to be given the

       evidence and the credibility of the witnesses are primarily questions to be

       answered by the trier of fact.” Id., citing State v. DeHass, 10 Ohio St.2d

       230 (1967), paragraph one of the syllabus.            The rationale for this

       deference is the trier of fact is in the best position to view witnesses and

       observe their demeanor, voice inflections, and gestures. Seasons Coal

       Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Moreover, though

       sufficiency and manifest weight are different legal concepts, a finding that

       a judgment is supported by the manifest weight of the evidence

       necessarily includes a finding that sufficient evidence supports the

       judgment. * * *

(Citations omitted.) In re M.J., 2nd Dist. Greene Nos. 2014-CA-32 and 2014-CA-33,

2015-Ohio-127, ¶ 35, citing In re C.G., 10th Dist. Franklin Nos. 13AP-632 and 13AP-

653, 2014-Ohio-279, ¶ 32.




                                             9
         {¶37} Leonard argues that the record does not support a finding that the children

could not be placed with him within a reasonable time, given that he had housing and

employment at the time of the hearing and he and his wife would be in a program that

would provide adequate housing.

         {¶38} Regarding P.D.-L., the trial court was not required to make the finding that

she could be returned to Leonard in a reasonable period of time, since it properly found

that she had been in the custody of ACCSB for more than 12 months of a consecutive

22 month period. In re B.R.C. at ¶ 54 (When the 12 of 22 months finding is made, “the

court need not find that the child cannot or should not be placed with either parent within

a reasonable time as required by R.C. 2151.414(B)(1)(a). The only consideration is the

best interest of the child.”) (citation omitted). Although the court made a finding that

P.D.-L. could not be placed with Leonard within a reasonable time, it was not required to

do so.

         {¶39} Regarding C.D., the court also found that he had been in ACCSB’s

custody for 12 of 22 months as of the date of the trial. ACCSB, however, filed its

January 29, 2014 Motion to Modify Temporary Custody to Permanent Custody on the

grounds that he could not be placed with either parent for a reasonable time. At the

time of the Motion, he had not been in the custody of ACCSB for 12 months, since

emergency custody had been granted to ACCSB on April 22, 2013.               As the Ohio

Supreme Court has held, “the time that passes between the filing of a motion for

permanent custody and the permanent-custody hearing does not count toward the 12-

month period set forth in R.C. 2151.414(B)(1)(d).”          In re C.W., 104 Ohio St.3d

163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26.




                                             10
      {¶40} Regardless, the court also made the finding that C.D. could not be placed

with Leonard in a reasonable time, pursuant to R.C. 2151.414(B)(1)(a). We agree with

this finding. Leonard admitted that he did not have suitable housing for the children at

the time of the hearing. There was no indication when he would be able to do so, as he

had not been able to during the period while the case plan had been in existence.

Although his wife testified that she was about to attend a meeting for the Shelter Plus

Program, which is “supposed to help pay for housing,” and assist with employment, it

was not clear that this was a guarantee of housing or that they had even been accepted

into the program. Given Leonard’s failure to obtain housing over more than a two year

period, it cannot simply be assumed that he will now be able to do so.

      {¶41} Next, Leonard argues that there was not clear and convincing evidence

that he failed to remedy the conditions that caused his children to be placed with

ACCSB. Specifically, he asserts that ACCSB had an unreasonable housing expectation

and he had done what he was asked to do on the case plan, including having housing.

Suitable housing was part of the reason the children were taken into ACCSB custody

initially and it is entirely reasonable that ACCSB would require him to have stable

housing. While working on the case plan, Leonard moved from house to house, staying

with relatives and in temporary places. Mochoskay testified that the residences where

he stayed were inappropriate for children, including ones with occupants who had child

endangerment charges or ACCSB involvement.          Leonard refused help in obtaining

appropriate housing. ACCSB had difficulty visiting several of the homes because he did

not report his location. He did not establish a permanent home for the children and

admitted at the hearing that his housing was inadequate. It cannot be said that it was




                                           11
unreasonable for ACCSB to require a permanent home which it could inspect and

ensure was safe for the children.

       {¶42} Leonard also argues that the court erred in finding that he failed to show

commitment to the children, since he visited them many times and reestablished contact

after he did not see them for a period of time. Testimony established that Leonard

visited on 15 of 35 opportunities. He also did not visit for a period of seven months in

2012-2013, leading to the court’s finding that Leonard had “abandoned the children.”

See R.C. 2151.011(C) (“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”). He missed many more visits than he attended. The fact that Leonard

cares about his children does not allow him to retain custody when it is not in the

children’s best interest, considering all necessary and relevant factors.

       {¶43} Leonard also asserts that reasonable efforts were not made to help him

with the case plan. Specifically, he argues that ACCSB did not provide services for his

mental health issues.

       {¶44} “In determining whether the agency made reasonable efforts [pursuant to

R.C. 2151.419(A)(1)] 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.” (Citation omitted.) In re Elliott, 11th Dist.

Ashtabula No. 2005-A-0018, 2006-Ohio-738, ¶ 16. “‘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.”

(Citation omitted.) Id. Also R.C. 2151.414(C) (“[t]he court shall not deny an agency’s

                                            12
motion for permanent custody solely because the agency failed to implement any

particular aspect of the child’s case plan”).

       {¶45} In this case, ACCSB has been involved with P.D.-L. and C.D. for a

majority of their lives.   During this period, Leonard was provided with supervised

visitation with the children, which he frequently missed, case supervision, help with

obtaining rides to visitation, a parenting evaluation, and referrals for housing, which he

refused. Such services were reasonable efforts at reunification. See In re S.P., 11th

Dist. Lake Nos. 2011-L-032 and 2011-L-033, 2011-Ohio-3747, ¶ 73. It also does not

appear that ACCSB had any indication that Leonard was in need of mental health

services or that such services would be beneficial in reuniting him with the children.

       {¶46} Leonard also asserts that his wife, the children’s stepmother, was not

allowed to attend visits. He fails to explain how this has any bearing on the outcome of

this case. Even if she had been allowed to visit, Leonard’s failure to comply with the

case plan is the main basis for his inability to regain custody of the children.

       {¶47} Finally, Leonard asserts that the court erred in finding that it was in the

children’s best interest to be placed in the permanent custody of ACCSB. He raises

similar issues to those discussed above, noting that the housing problem would be

remedied, emphasizing that he wanted to parent his children, and arguing that no

serious problems existed, such as drug use.

       {¶48} Given Leonard’s inability to fully comply with the case plan, the lack of

stable and adequate housing, his failure to retain a job that could support the children,

the children’s current living arrangement and relationship with their foster family, and the

guardian ad litem’s recommendation, it was not against the manifest weight of the

evidence to find that, pursuant to R.C. 2151.414(B)(1)(a), the child cannot be placed

                                                13
with either of the child’s parents within a reasonable time or should not be placed with

the child’s parents and it was in the children’s best interest to be placed in the

permanent custody of ACCSB. While Leonard essentially characterizes his financial

and housing problems as not serious enough to terminate his parental rights, he was

unable to take the children into his custody for the entire period they were with ACCSB

and there is no indication that this problem has been remedied. Without any ability to

provide a home or financial support for the children, it is hard to imagine how it could be

in their best interest to be in Leonard’s custody. Their current relationship with their

foster family, who is willing to adopt them, is also an important consideration that

weighed into the ultimate best interest conclusion.

       {¶49} The first assignment of error is without merit.

       {¶50} In his second assignment of error, Leonard argues that his counsel was

ineffective by failing to properly raise the issue of bias in a motion, rather than orally at

the hearing, and by failing to file a motion for legal custody.

       {¶51} “The test applied to evaluate a claim of ineffective assistance of counsel in

a proceeding to terminate parental rights is the two-step test of Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.” In re L.M., 11th Dist. Ashtabula

No. 2010-A-0058, 2011-Ohio-1585, ¶ 57. Accordingly, Leonard must demonstrate “(1)

that counsel’s performance fell below an objective standard of reasonableness, and (2)

that counsel’s deficient performance prejudiced the defendant resulting in an unreliable

or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 687-688.

       {¶52} As to the issue of bias, regardless of whether counsel should have filed a

motion prior to the hearing, it is unclear how this caused prejudice to Leonard. The

                                             14
magistrate considered the oral motion and determined that she was not biased against

Leonard, giving justifications for this decision. The magistrate did not deny the motion

based on the fact that it was made orally rather than in writing. A review of the record

and the foregoing analysis regarding the basis for the court granting permanent custody

to ACCSB also reveals no evidence that there was bias in the custody determination.

Without a showing that the outcome would have been different had counsel filed a

written motion for disqualification, there is no basis for reversal on this issue. Madrigal

at 388-389.

       {¶53} A similar rationale applies to the contention regarding the failure to file a

motion for legal custody, pursuant to R.C. 2151.353(A)(3) (“if a child is adjudicated an

abused, neglected, or dependent child, the court may * * * [a]ward legal custody of the

child to either parent * * * who, prior to the disposition hearing, files a motion requesting

legal custody of the child”). It is difficult to say that a request for custody would have

been granted, given the circumstances outlined above. It was not shown that Leonard

ever had the capability to be granted custody of the children throughout the time they

were in ACCSB’s custody, given his housing situation. If such a motion would not have

been granted, then the failure to file it does not warrant a finding of ineffective

assistance of counsel. See In re G.W., 12th Dist. Butler No. CA2013-12-246, 2014-

Ohio-2579, ¶ 25 (finding no ineffective assistance when counsel failed to file a motion

for legal custody, since there was no “reasonable probability such a motion would have

been granted”).

       {¶54} While Leonard also argues that counsel was ineffective by failing to

request a mental health element to the case plan, we again find no merit in this

argument. Aside from a minor mention of “anxiety” issues at the hearing, he did not

                                             15
explain how, if at all, this impacted his ability to comply with his case plan. Leonard

presents no specific argument as to how the outcome would have been different had

counsel requested such a component, merely asserting the conclusory statement that

“the outcome could have been different.”       This is not sufficient to demonstrate

ineffective assistance of counsel.

      {¶55} The second assignment of error is without merit.

      {¶56} Based on the foregoing, the judgment of the Ashtabula County Court of

Common Pleas, Juvenile Division, granting permanent custody of C.D. and P.D.-L. to

ACCSB, is affirmed. Costs to be taxed against appellant.


TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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