[Cite as In re C.O., 2015-Ohio-4290.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 IN RE: C.O. and D.O.                          :
                                               :
                                               :   Appellate Case No. 26610
                                               :
                                               :   Trial Court Case Nos. 2013-2587
                                               :                      2013-2588
                                               :
                                               :
                                               :   (Civil Appeal from Common Pleas
                                               :   Court, Juvenile Division)

                                         ...........

                                         OPINION

                           Rendered on the 16th day of October, 2015.

                                         ...........

MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Appellee-Montgomery County Children Services

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 West First Street, Suite 518,
Dayton, Ohio 45402
      Attorney for Appellant-D.C.


                                        .............
                                                                                         -2-


WELBAUM, J.

         {¶ 1} In this case, D.C., father of C.O. and D.O., appeals from a judgment

terminating his parental rights and awarding permanent custody of C.O. and D.O. to

Montgomery County Children Services (“MCCS”).1 Father contends that the trial court

erred in granting permanent custody to MCCS because the agency failed to prove that

permanent custody was in the children’s best interests.         Father also maintains that

MCCS failed to provide reasonable efforts prior to seeking permanent custody.             In

addition, Father argues that the permanent custody proceedings violated his procedural

and due process rights. Finally, Father contends that his trial counsel was ineffective.

         {¶ 2} We conclude that the award of permanent custody to MCCS was supported

by sufficient competent and credible evidence. We further conclude that Father waived

error in the conduct of the proceedings below, other than plain error, by failing to raise

any objections in the trial court. There was also no plain error. Finally, trial counsel did

not render ineffective assistance. Accordingly, the judgment of the trial court will be

affirmed.



                               I. Facts and Course of Proceedings

         {¶ 3} On April 12, 2013, MCCS filed dependency complaints concerning Father’s

two minor children, C.O. and D.O., who were 11-year-old twins. The twins had been in

foster care in either Ohio or Kansas for six of the 11 years.

         {¶ 4} The complaints alleged that the children were dependent under several

grounds, including that they lacked adequate parental care based on their parent’s or


1
    For purposes of convenience, we will refer to the parents as Father and Mother.
                                                                                       -3-


custodian’s mental or physical condition; that their condition or environment was such to

warrant the state in assuming their guardianship; and that they were residing in a

household in which a parent, custodian, or guardian, or other member of the household

had committed an act that was the basis for an adjudication that a sibling who resided in

the household was an abused, neglected, or dependent child, and because of the

circumstances surrounding the abuse, neglect or dependency of the sibling or other child

and other conditions in the household, the child was in danger of being abused by the

parent, custodian, guardian, or member of the household.

      {¶ 5} MCCS initially became involved with C.O. and D.O. when another minor child

of Mother was found wandering outside in the snow in January 2010, a block away from

home. Previously, Mother had been convicted of four counts of Child Abuse (Intentional

Torture) in Kansas, and had been in prison for those crimes from 1997 to 2000. She

also lost permanent custody of three other minor children in 1997, due to the abuse.

      {¶ 6} The complaints asked the court to adjudicate the children dependent and to

grant a preferred disposition of permanent custody to MCCS pursuant to R.C. 2151.413;

R.C. 2151.414(B)(1)(b) and (d) and (B)(2); and R.C. 2151.414(E)(1),(2),(4),(10),(14),(15),

and (16). In addition, the complaints were accompanied by affidavits outlining essentially

the same facts.    On April 12, 2013, MCCS also filed a motion and affidavit for interim

temporary custody at an ex parte hearing. The motion and affidavit were sent to Father

at an address in Kansas City, Kansas. On the same day, MCCS filed an affidavit for

service by posting, indicating that Father’s last known address was the Kansas City

address, and that diligent searches for other addresses had been unsuccessful.

      {¶ 7} A shelter care hearing was held on April 15, 2013, and an attorney for Father
                                                                                       -4-


appeared on his behalf at the hearing. Father did not appear. The magistrate noted at

the hearing that Father had no relationship with his sons and was not able to care for the

children. Mother appeared at the hearing with counsel, and agreed to interim temporary

custody to MCCS. A copy of the decision, which was filed on April 16, 2013, was sent

to Father’s attorney, and a copy of the decision was also sent to Father, at an address in

Pittsburg, Kansas. An envelope was returned to the court, marked “Return to Sender,”

and “Not Here.”

      {¶ 8} Subsequently, on April 26, 2013, the court sent a summons to Father by

certified mail, at the Kansas City address, summoning him to appear at an adjudicatory

and/or dispositional hearing on June 4, 2013. See Case No. JC 2013-2588, Doc. #106.

On April 29, 2013, Father’s name was signed for the certified mail issued to that address.

A notice was also posted on April 29, 2013, informing Father of the adjudicatory and

dispositional hearing to be held on June 4, 2013.

      {¶ 9} Father was represented by counsel at all times from the beginning to the end

of the court proceedings. On May 17, 2013, the dependency hearing was continued until

June 21, 2013. A copy of the entry continuing the hearing was sent to Father’s counsel

and to Father at the Kansas City address. On June 13, 2013, Father’s counsel was given

discovery materials by the State. The initial report of the Guardian Ad Litem (“GAL”),

filed in June 2013, indicated that MCCS had been unable to make contact with Father

after obtaining his phone number in October 2012. A copy of the GAL’s report was sent

to Father’s attorney. The GAL recommended that permanent custody be granted to the

agency based on the children’s need for permanency.

      {¶ 10} In the report, the GAL noted that Mother had been without permanent
                                                                                        -5-


housing since December 2010, became friendly with strangers very quickly, and was

willing to place herself and her children at risk by moving in with people of whom she had

no real knowledge. Her newest roommate was a man she met on August 28, 2012 at a

dentist’s office.   Mother was living in his home full-time a few weeks later. She paid no

rent, had no contract or legal agreement, and paid no bills at the home. This individual,

R.M., said he had no long-term plans for her to live in his home.

       {¶ 11} According to the GAL, a psychological report indicated Mother did not

currently have the capability to independently parent her children.          Mother had

completed a parenting class and a class at Artemis, as well as parenting-related classes

and intervention in Kansas, but seemed unable to implement things she had learned.

Mother had been told of the need for a mental evaluation in June 2010, but had not begun

it until February 2012. She also had no permanent employment since arriving in Dayton,

Ohio, in December 2009.

       {¶ 12} The GAL’s report also discussed Mother’s prior incarceration in Kansas

from 1997 to 2000 on four counts of Abuse of a Child (Intentional Torture). According to

the GAL, “[w]hen asked about the abuse Mother denied it but she could not give any

reason, or explanation, or any other suspected party for the charges. She seemed to

not believe that there was any abuse, answering the questions about the abuse with, ‘well

they said.’ ” JC 2013-2588, Doc. #89, p. 4. The report also noted that the twins had

previously been in foster care in Kansas from October 2005 through December 2008,

and, therefore, had spent five of the last 11 years living with someone else other than

Mother.

       {¶ 13} An adjudicatory hearing was held on June 21, 2013, as scheduled.
                                                                                       -6-


Father’s attorney was present, but Father did not appear. The magistrate filed an entry

shortly thereafter, on July 3, 2013. The entry noted that Father’s counsel had discussed

the adjudication with Father, and that Father would stipulate to dependency. JC 2013-

2588, Doc. #81, p. 1; JC 2013-2587, Doc. # 86, p. 1. The order also set a permanent

custody hearing for October 3 and 4, 2013. Copies of the order were sent to Father’s

attorney and to Father at the Kansas City address. No objections were filed to the

magistrate’s order, and no further appeal was taken.

      {¶ 14} A semi-annual administrative review was filed with the court on July 1, 2013.

The review noted that Father resided in Kansas and was reportedly not interested in

involvement with the children. The review also stated that Father wanted the children

brought to him.

      {¶ 15} In late August, 2013, the GAL filed another report. She again noted that

she had been unable to make contact with father. A copy of the report was sent to

Father’s attorney.

      {¶ 16} On September 6, 2013, MCCS filed a motion for a reasonable efforts

bypass, based on the termination of Mother’s parental rights in Kansas with respect to

three siblings of D.O and C.O. Attached to the motion as Exhibit 1 was a copy of a

November 20, 1997 Memorandum Opinion and Journal Entry from the Juvenile

Department of the District Court of Wyandotte County, Kansas. A certified copy of this

journal entry was later admitted into evidence during the permanent custody hearing.

      {¶ 17} The juvenile court opinion and entry involved the termination of parental

rights to 10 minor children, who were living in a home with Mother and eight other adults

who either lived in the home full time or visited frequently. Transcript of Proceedings,
                                                                                        -7-


Vol. I, Ex. 1, p. 3. Among those children were three of Mother’s children, L.O, R.O., and

S.O., who were ages six years, three years, and 20 months old at the time of the

termination. The juvenile court decision, which terminated Mother’s rights to the three

children in her custody, further stated that:

              In the present cases involving [Mother’s] children [L.O.], age 6,

       [R.O.], age 3, and [S.O.], age 20 months, the evidence at trial was

       overwhelming that they are children in need of care.

              [Mother’s] treatment of L.O. was appalling. In a statement to Det.

       J.B. Smith of the KCK Police Dept., she admitted handcuffing [L.O.] to the

       bed; shaking [L.O.] and shoving her to the floor; admitted [L.O.’s] feet were

       swollen and purple for three or four months, claimed not to know why and

       stated [other residents of the house] had also handcuffed [L.O.].

              [A resident of the house, L.R.,] related numerous instances of

       physical abuse of [L.O.] by [Mother]. She stated [L.O.] was tied up or

       handcuffed almost nightly. She further stated that [Mother] would bend

       L.O.’s fingers backward and told of an incident in which [Mother] put [L.O.]

       behind a rocking chair on the front porch and then sat rocking it thereby

       forcing [L.O.’s] head to hit the wall behind her. In addition, [L.O.] would be

       forced to stand in a corner of the house for hours at a time during which she

       would not be allowed to use the bathroom, thereby urinating and defacating

       [sic] on herself. [L.R.] heard [Mother] state in reference to [L.O.], “I can’t

       stand that little bitch, I wish she was dead” and in reference to all her

       children that she had kids too young and wanted to get rid of them.
                                                                                        -8-


Transcript of Proceedings, Vol. I, Ex. 1, p. 5.

        {¶ 18} Other residents of the house testified in detail about the abuse that Mother

inflicted on all the children. They stated that in addition to the abuse of L.O., Mother

locked R.O. in an upstairs room to punish him and keep him out of her way, and had hit

him with a board. Other residents of the house also abused L.O. After considering the

evidence, which included medical documentation of the injuries to the children, the

juvenile court concluded that the evidence overwhelmingly justified termination of

Mother’s parental rights. In this regard, the court observed that:

               Mother’s attitude toward her children evidences a complete and

        callous disregard of her duties as a parent. This Court would consider any

        attempt to reintegrate children with such a mother to be an act bordering on

        criminal negligence. To say reintegration is not a viable alternative in this

        case is a gross understatement of the heinous, reprehensible and patently

        criminal conduct of Mother.

Id. at p. 9.

        {¶ 19} On September 25, 2013, the GAL filed an updated report, again

recommending that MCCS receive permanent custody of the children. The GAL once

more noted that she had not been able to make contact with Father. A copy of the report

was sent to Father’s attorney. Subsequently, on September 30, 2013, the State provided

Father’s attorney with additional discovery.

        {¶ 20} On October 16, 2013, the magistrate filed a decision and order of temporary

custody concerning a dispositional hearing and motion for reasonable efforts bypass that

was held on October 3, 2013. Father’s attorney appeared for the hearing; Father did not
                                                                                        -9-


appear. The magistrate granted the motion for reasonable bypass based on the grant

of permanent custody in Kansas with respect to Mother’s three children. The magistrate

noted that “[t]he parties do not contest the Agency’s motion.” JC 2013-2588, Doc. #67,

p. 1; JC 2013-2587, Doc. #70, p. 1. The decision also noted that all parties were in

agreement with temporary custody being given to MCCS. Doc. #67 at p. 2; Doc. #70 at

p. 2. The trial judge immediately signed the order, and the parties were notified that they

had 14 days to object to the decision. Copies of the order were sent to Father’s attorney

and to Father at the Kansas City address. No objections were filed.

      {¶ 21} On October 21, 2013, MCCS filed a motion for permanent custody, claiming

that an order of permanent custody was in the children’s best interests. An affidavit

attached to the motion indicated that Father had not had contact with MCCS and had

expressed no interest in receiving custody of the children. JC 2013-2588, Doc. #66,

Affidavit of MCCS Caseworker p. 2; JC 2013-2587, Doc. #69, Affidavit of MCCS

Caseworker, p. 2. A copy of the motion was sent to Father’s attorney. In addition, a

copy of the motion and a summons, indicating that the permanent custody hearing would

be held on January 23, 2014, was sent to Father by certified mail at the Kansas City

address.   JC 2013-2588, Doc. #64.        Once again, a certified mail card signed with

Father’s name was returned to the court. See JC 2013-2587, Supplemental Summary

of Docket and Journal Entries, Doc. #7.

      {¶ 22} In early December 2013, the GAL filed an updated report and

recommendation. The GAL’s concerns continued to be the same, and the GAL again

noted that she had not been able to communicate with Father. This document was sent

to Father’s attorney. JC 2013-2587, Doc. #65; JC 2013-2588, Doc. #61. A final pre-
                                                                                        -10-


trial was then held on December 13, 2013. The entry filed in connection with that hearing

indicated that Father’s attorney was at the pretrial. JC 2013-2587 and JC 2013-2588,

Doc. #53.

      {¶ 23} On January 6, 2014, MCCS filed its semi-annual review. The case review

that was attached noted that Father did not have contact with the agency or the children.

Id. at Doc. #49, Case Review, p. 3. Another GAL report was filed on January 16, 2014,

again noting that the GAL had not been able to make contact with Father. As before, the

GAL recommended that permanent custody be granted to MCCS, based on Mother’s

history, mental health status, and lack of initiative and/or ability to meet the children’s

needs. A copy of the report was sent to Father’s attorney. See Doc. #40.

      {¶ 24} The January 23, 2014 custody hearing was continued until late May 2014,

due to the fact that MCCS had provided additional discovery. Father’s counsel was sent

notice of the continuance. A further GAL report filed on May 22, 2014, indicated that the

GAL still had not been able to get in touch with Father. The same recommendations

were made as before, and the report was sent to Father’s attorney. JC 2013-2587, Doc.

#26; JC 2013-2588, Doc. #27.

      {¶ 25} When the case came before the court for a permanent custody hearing in

late May 2014, the matter was continued to September 11, 12, and 15, 2014, because

Father’s attorney asked to withdraw due to a conflict with Father. JC 2013-2587 and JC

2013-2588, Doc. #22. This order was sent to Father’s attorney. Id. New counsel was

also appointed for father. Id. at Doc. #23.

      {¶ 26} The semi-annual review form filed on June 23, 2014, indicates for the first

time that Father was interested in being involved.      According to the GAL, “[Father]
                                                                                       -11-


resides in Kansas. He resides with his parents and there is not enough room. [Father]

has had some past with DUI’s and past alcohol offenses. [Father] has not seen his

children since they were in diapers.” Id. at Doc. #20, Case Review attached to Semi-

Annual Review Form, p. 3.

      {¶ 27} In an updated report filed in September 2014, the GAL noted that she had

finally been able to interview Father in May 2014. At that time, Father stated that he had

not seen the children since they were in diapers. He also said he did not know where

the children were until MCCS contacted him in February 2010. In addition, Father said

he would like to have custody of his sons. However, the GAL noted that “[Father] for all

intents and purposes, was and is a stranger to his children.” Id. at Doc. #18, pp. 11-12.

      {¶ 28} After reviewing the history of the case, including the events that have

already been discussed, the GAL again recommended that the court grant permanent

custody to MCCS.

      {¶ 29} The trial court heard testimony on September 15, 2014, October 29, 2014,

and December 5, 2014.       Father did not appear for any of the permanent custody

hearings, but Father’s counsel appeared on his behalf and was given an opportunity to

question witnesses.

      {¶ 30} During the hearings, the trial judge (not the magistrate) heard testimony

from the following individuals: the GAL; Dr. Julia King, a clinical psychologist who had

performed psychological examinations of Mother in April 2011 and August 2013; the

foster father for the twins; the caseworker who had been assigned to the case since April

2013; Mother’s most recent counselor from Solutions, who had met with her on two

occasions; and a property manager from Warren Metropolitan Housing Agency. Mother
                                                                                        -12-


did not testify. The trial judge also conducted an in camera interview with the children.

       {¶ 31} After hearing the evidence, the court filed a decision on January 27, 2015,

granting permanent custody of C.O. and D.O. to MCCS.             In its decision, the court

concluded that there was clear and convincing evidence, in accordance with R.C.

2151.414(E), that the children could not or would not be placed with either parent within

a reasonable period of time, and there was also clear and convincing evidence under

R.C. 2151.414(D) that the children’s commitment to MCSS’s permanent custody was in

their best interests. Father timely appealed the decision of the trial court.



                 II. Was Permanent Custody in the Children’s Best Interests?

       {¶ 32} Because the first two assignments of error are related, we will address them

together. Father’s First Assignment of Error states that:

              The Trial Court Erred in Granting Permanent Custody to Montgomery

       County Children Services Because That Agency Failed to Prove By Clear

       and Convincing Evidence That Permanent Custody Was in the Best Interest

       of the Minor Children.

       {¶ 33} Father’s Second Assignment of Error states that:

              The Trial Court Erred in Granting Permanent Custody to Montgomery

       County Children Services Because That Agency Failed to Provide

       Reasonable Efforts.

       {¶ 34} Under these assignments of error, Father contends that the grant of

permanent custody was not supported by sufficient evidence because reunification with

Father was a possibility at the hearing held on October 29, 2014. In this regard, Father
                                                                                           -13-


focuses on the fact that no home study or interstate compact was initiated to explore the

possibility of placing the children with Father.

       {¶ 35} “In a proceeding for the termination of parental rights, all the court's findings

must be supported by clear and convincing evidence.” In re K.W., 185 Ohio App.3d 629,

2010-Ohio-29, 925 N.E.2d 181, ¶ 15 (2d Dist.), citing R.C. 2151.414(E) and In re J.R., 2d

Dist. Montgomery No. 21749, 2007-Ohio-186, ¶ 9. “However, the court's decision to

terminate parental rights will not be overturned as against the manifest weight of the

evidence if the record contains competent, credible evidence by which the court could

have formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established.”         (Citation omitted.)   Id.   “We

review the trial court's judgment for an abuse of discretion.” Id., citing In re C.F., 113

Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48.

       {¶ 36} “Clear and convincing evidence is that measure or degree of proof which *

* * will produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.       Furthermore, “issues relating to the credibility of

witnesses and the weight to be given the evidence are primarily for the trier of fact. In

this regard, ‘[t]he underlying rationale of giving deference to the findings of the trial court

rests with the knowledge that the trial judge is best able to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.’ ” In re A.J.S., 2d Dist. Miami No. 2007 CA 2,

2007-Ohio-3433, ¶ 22, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984).
                                                                                         -14-


       {¶ 37} “R.C. 2151.414(B) sets forth the circumstances under which a court may

grant permanent custody of a child to a children services agency. Pursuant to R.C.

2151.414(B)(1)(a), the court may grant permanent custody of a child to the agency if the

court determines, by clear and convincing evidence, that it is in the best interest of the

child to grant permanent custody of the child to the children services agency, and ‘The

child is not abandoned or orphaned, has not been in the temporary custody of one or

more public services agencies or private child placing 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 parent's within a reasonable time or should not be placed with the child's

parents.’ ” In re S.K., 2d Dist. Clark No. 2009 CA 29, 2009-Ohio-5533, ¶ 50.

       {¶ 38} Insofar as Father’s case is concerned, the trial court held that the children

could not be placed with Father within a reasonable time or should not be placed with

Father. R.C. 2151.414(E) contains 16 factors to be considered with respect to whether

the children can be placed with the parents within a reasonable time or should be placed

with the parents. Based on the trial court’s findings, the factors that would apply to Father

are found in R.C. 2151.414(E)(1) and (4), which provide that:

              (E) In determining at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code 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. If the court determines, by clear and

       convincing evidence, at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the
                                                                                                -15-


       Revised Code that one or more of the following exist as to each of the child's

       parents, 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:

               (1) Following 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;

       ***

               (4) The parent has demonstrated a lack of commitment toward the

       child by failing to regularly support, visit, or communicate with the child when

       able to do so, or by other actions showing an unwillingness to provide an

       adequate permanent home for the child * * *.

       {¶ 39} Once a finding under R.C. 2151.414(E) has been made, the court then

determines the best interests of the child. In this regard, “R.C. 2151.414(D) directs the

trial court to consider all relevant factors * * * including but not limited to ‘(1) the interaction
                                                                                          -16-


and interrelationship of the child with the child's parents, siblings, relatives, foster

caregivers, * * * and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child, * * *;

[and](4) 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.’ ”

K.W., 185 Ohio App.3d 629, 2010-Ohio-29, 925 N.E.2d 181, at ¶ 20.

        {¶ 40} In the case before us, the trial court observed that Father had no contact

with the children for many years and had never supported them in any way. The court

also noted that despite having had no contact, Father had expressed interest in having

custody of the children, but had made no attempts to follow through or to work his case

plan.

        {¶ 41} These findings are supported by sufficient competent and credible evidence

supporting termination of Father’s parental rights. As was noted, Father had not seen

the children since they were in diapers; at the time of the hearing, the twins were almost

13 years old and did not have any relationship with their father. Despite knowing the

twins’ whereabouts since 2010, Father made no attempt to communicate with them, and

did even not ask if he could send a note or card to them.

        {¶ 42} According to the caseworker, Father was very difficult to contact. When

she was finally able to talk with him in the beginning of 2014, he was not interested in

custody. Subsequently, Father said he was interested, but also said he could not come

to court. The last time Father talked to the caseworker was in September 2014. The

caseworker told Father that MCCS would have to do an interstate compact, which is a
                                                                                            -17-


home study. However, Father said a home study could not be done where he lived. He

was staying with his mother, and there was not room enough for the children. Transcript

of Proceedings, Vol. II, p. 165. Father also told the caseworker that he was not interested

in working the case plan at that point in time. Id. In addition, Father said he did not

have any relatives who could be possible placements for the children. No evidence

contrary to these facts was submitted.

       {¶ 43} “ ‘Reasonable efforts means that a children's services agency must act

diligently and provide services appropriate to the family's need to prevent the child's

removal or as a predicate to reunification.’ ” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-

15, 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re D.A., 6th Dist. Lucas No. L-11-1197,

2012-Ohio-1104, ¶ 30.       “ ‘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.) In re

K.M., 12th Dist. Butler No. CA 2004-02-052, 2004-Ohio-4152, ¶ 23.

       {¶ 44} Our review of the record reveals sufficient competent and credible evidence

to support the trial court’s finding that terminating Father’s rights was in the children’s best

interests and that MCCS made reasonable efforts with respect to Father. An agency

cannot be faulted for failing to force a home study on a party who does not want the study

to be done. Furthermore, although the trial court did not make a finding that Father had

abandoned his children, R.C. 2151.011(C) provides that for purposes of R.C. Chap. 2151,

“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 record
                                                                                         -18-


indicates that Father failed to visit or maintain contact with the children for many years.

Even when he knew where the children were, he did nothing.

       {¶ 45} Based on the preceding discussion, the First and Second Assignments of

Error are overruled.



                 III. Did the Trial Court Violate Father’s Due Process Rights?

       {¶ 46} Father’s Third Assignment of Error states that:

              The Court Error [sic] in Proceeding on the Permanent Custody

       Request in Violation of Appellant’s Procedural and Due Process Rights.

       {¶ 47} Under this assignment of error, Father argues that he did not have notice of

the proceedings and an opportunity to be heard. He bases this argument on the fact that

the first mailing to him (of the dependency complaints) was addressed to an incorrect

address.

       {¶ 48} “A parent's relationship with his or her child is among the ‘associational

rights’ sheltered by the Fourteenth Amendment to the United States Constitution against

unwarranted usurpation, disregard, or disrespect by the state.” (Citations omitted.) In

re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 17. “The fundamental

requisites of due process of law in any proceeding are notice and the opportunity to be

heard. It is ‘flexible and calls for such procedural protections as the particular situation

demands.’ ” (Citations omitted.) Id., quoting Morrissey v. Brewer, 408 U.S. 471, 481,

92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “In the context of termination of parental rights,

due process requires that the state's procedural safeguards ensure that the termination

proceeding is fundamentally fair.” (Citation omitted.) Id.
                                                                                           -19-


        {¶ 49} As a preliminary matter, we note that Father waived the due process issue

by failing to object during the trial court proceedings. Specifically, after the case was

filed on April 12, 2013: (1) Father stipulated to a finding of dependency at the adjudication

hearing held by a magistrate on June 21, 2013, and did not thereafter either file objections

or appeal from the decision; and (2) Father agreed to give MCCS temporary custody at

the dispositional hearing and did not contest MCCS’s motion for bypass, both of which

were heard by a magistrate on October 3, 2013. Father did not thereafter either file

objections to the magistrate’s order or appeal. See JC 2013-2587, Doc. #86, p. 1 and

Doc. #70, pp.1-2; JC 2013-2588, Doc. #81, p. 1 and Doc. #67, pp. 1-2.

        {¶ 50} At no time did Father challenge the proceedings in the trial court, and we

conclude that he has waived any objections, other than plain error. See, e.g., In re C.B.,

2d Dist. Montgomery Nos. 24564, 24565, 24566, 2011-Ohio-4537, ¶ 9; In re A.J.S., 2d

Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 15.

        {¶ 51} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), the

Supreme Court of Ohio held that “the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of

the underlying judicial process itself.” Id. at syllabus. We do not consider this such a

case.

        {¶ 52} We stress that we are aware of the importance of parental rights.

However, the termination process was fundamentally fair to Father.               Father was

represented by counsel at every stage of the proceedings, including the initial shelter care
                                                                                        -20-


hearing that followed the filing of the dependency complaints.          Furthermore, the

pleadings in the case, including notices of adjudication and dispositional hearings, the

motion for permanent custody, and the motion for reasonable efforts bypass, were sent

to Father’s attorney.   In addition, the pleadings, other than the initial complaints for

dependency and amended dependency complaints, were sent to Father’s correct

address. In this regard, we note that Father’s closing argument makes a point of stating

that his correct address is in Kansas City, Kansas, and that notices should be sent to that

address. See JC 2013-2587 and JC 2013-2588, Doc. #9, p. 1. This is the address used

on almost all the pleadings, and on two occasions, certified mail service to father was

accepted at that address. Based on the trial court record, Father had ample notice of

the proceedings and was able to adequately protect his interests.

      {¶ 53} Accordingly, the Third Assignment of Error is overruled.



                                 IV. Was Trial Counsel Ineffective?

      {¶ 54} Father’s Fourth Assignment of Error is that:

             Appellant’s Counsel Was Ineffective.

      {¶ 55} Under this assignment of error, Father contends that his trial counsel was

ineffective because counsel failed to object to issues regarding service of the motions

and complaints in this matter.

      {¶ 56} We have previously held that “both R.C. 2151.352 and Juv.R. 4 establish a

parent's right to counsel in termination proceedings.” (Citation omitted.) In re S.A., 2d

Dist. Clark No. 07-CA-110, 2008-Ohio-2225, ¶ 8. “A parent's right to counsel arises from

the guarantees of due process and equal protection contained in the constitutions of Ohio
                                                                                         -21-

and the United States.” Id., citing State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399

N.E.2d 66 (1980), paragraph two of the syllabus. “That right to counsel includes the right

to the effective assistance of trial counsel. The test for ineffective assistance of counsel

used in criminal cases is equally applicable to actions seeking the permanent, involuntary

termination of parental custody.” (Citations omitted.) Id.

       {¶ 57} In S.A., we further noted that:

              In order to prevail on a claim of ineffective assistance of counsel, the

       defendant must show both deficient performance and resulting prejudice.

       Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

       674. To show deficiency, the defendant must show that counsel's

       representation fell below an objective standard of reasonableness.          Id.

       Trial counsel is entitled to a strong presumption that his conduct falls within

       the wide range of effective assistance. Id. The adequacy of counsel's

       performance must be viewed in light of all of the circumstances surrounding

       the trial court proceedings. Id. Hindsight may not be allowed to distort the

       assessment of what was reasonable in light of counsel's perspective at the

       time. State v. Cook (1992), 65 Ohio St.3d 516, 524, 605 N.E.2d 70.

              Even assuming that counsel's performance was ineffective, the

       defendant must still show that the error had an effect on the judgment.

       State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. Reversal

       is warranted only where the defendant demonstrates that there is a

       reasonable probability that, but for counsel's errors, the result of the

       proceeding likely would have been different. Id.
                                                                                      -22-

S.A. at ¶ 9-10.

       {¶ 58} For the reasons previously stated, trial counsel was not ineffective. Even

if counsel had objected, the process given to Father was fundamentally fair. Accordingly,

the Fourth Assignment of Error is overruled.



                                        V. Conclusion

       {¶ 59} All of Father’s assignments of error having been overruled, the judgment of

the trial court is affirmed.




                                    .............



FROELICH, P.J. and DONOVAN, J., concur.



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