[Cite as In re I.G., 2014-Ohio-1136.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY


IN RE:
                                                         CASE NO. 9-13-43
       I.G.
                                                         OPINION
[CHEALSEY M. REYES - APPELLANT].


IN RE:
                                                         CASE NO. 9-13-44
       G.G.
                                                         OPINION
[CHEALSEY M. REYES - APPELLANT].


IN RE:
                                                         CASE NO. 9-13-45
       C.S.
                                                         OPINION
[CHEALSEY M. REYES - APPELLANT].


              Appeals from Marion County Common Pleas Court
                               Juvenile Division
        Trial Court Nos. 2011 AB 0048, 2011 AB 0049 and 2011 AB 0050

                                        Judgments Affirmed

                             Date of Decision: March 24, 2014


APPEARANCES:

        Robert C. Nemo for Appellant

        David Stamolis for Appellee
Case No. 9-13-43, 9-13-44, 9-13-45


SHAW, J.

       {¶1} Mother-appellant Chealsey M. Reyes (“Reyes”) appeals the August 6,

2013 judgment entries of the Marion County Common Pleas Court, Family

Division, granting the Marion County Children Services’ (“MCCS”) motions for

permanent custody of Reyes’ three children, “G.G.,” “I.G.,” and “C.S.”

       {¶2} The facts relevant to this appeal are as follows. In March of 2010

MCCS became involved with Reyes and her first two children G.G., born in

October of 2007, and I.G., born in January of 2009, when I.G. was hospitalized for

ingesting marijuana.     At the time, Reyes was pregnant and living with her

boyfriend, Christopher Santiago. Santiago was not the father of G.G. or I.G. As a

result of I.G. ingesting marijuana, Reyes was charged with child endangering and

convicted of that offense. (State’s Ex. C).

       {¶3} In the months that followed, MCCS remained involved with Reyes

and her children, periodically testing her and the children for drugs. The children,

who were mainly tested by “palm swabs,” tested positive for cocaine on multiple

occasions.

       {¶4} Reyes’ third child, C.S., was born in September of 2010. Around that

time, all three children were removed from Reyes’ care after the children again

tested positive for cocaine.




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        {¶5} The caseworker for MCCS, Matt Coldiron, believed that the positive

cocaine tests might have been a result of the children’s living environment rather

than Reyes using drugs, so Reyes’ house was professionally cleaned. When traces

of cocaine were still found on the children after the residence was cleaned,

Coldiron helped Reyes secure a new residence. The children were then returned to

Reyes’ care at the new residence. Over the following months, the children were

repeatedly tested for drugs and the drug screens came back negative. MCCS then

closed its original case.

        {¶6} On April 5, 2011, MCCS filed motions for emergency ex parte orders

to remove all three children from Reyes as I.G. and G.G. tested positive for

ingesting cocaine. The ex parte motions were granted, and the children were

placed into the temporary custody of MCCS. Subsequently, the children were

placed into foster care with Joshua and Heather Tackett, where they remained

during the pendency of this case.

        {¶7} On April 8, 2011, MCCS filed complaints regarding all three children,

alleging that the children were abused, neglected, and dependent. On May 6,

2011, Reyes and Christopher Santiago, the father of C.S., stipulated that C.S. was

dependent. Reyes also stipulated that I.G. and G.G. were dependent.1


1
  The court set the matter for a further adjudication hearing as to the absent father of I.G. and G.G. The
absent father was reportedly in Mexico, and had not been involved in the children’s lives. He was served
legally by publication, and did not appear at his adjudicatory hearing, thus the court ultimately found I.G.
and G.G. dependent.

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      {¶8} As a result of I.G. and G.G. testing positive for cocaine, Reyes was

again charged with Child Endangering, two counts, both felony offenses due to her

having a prior Child Endangering conviction. She pled guilty to the offenses and

was sentenced to two years of community control.

      {¶9} MCCS developed a case plan for Reyes and conducted regular

reviews of Reyes’ progress. From October 2011, to February of 2012, Reyes’

whereabouts were unknown. Throughout that time she made no progress on her

case plan and made no visits with her children. Reyes would later admit that

during this period of time she was regularly taking “pills” and heroin along with

Santiago.

      {¶10} In February of 2012 Reyes resurfaced and was arrested for a

probation violation. She was then sent to the multi-county jail. Reyes remained in

jail until April of 2012, at which time she was sent to “West Central,” a

community based correctional facility.       While Reyes was at West Central,

Coldiron took the children to visit Reyes once a month at the facility. In October

of 2012, Reyes was released from West Central.

      {¶11} On October 17, 2012, MCCS filed motions requesting that the

agency be granted permanent custody of the three children. The motions alleged

that MCCS had custody of the children for more than twelve out of the previous

twenty-two months, that MCCS did not believe the parents would be able to


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Case No. 9-13-43, 9-13-44, 9-13-45


provide for the children within a reasonable period of time, and that it would be in

the children’s best interests if MCCS was granted permanent custody.

        {¶12} On December 6, 2012, Reyes tested positive for opiates, violating her

probation, and was taken back to jail.2 On December 18, 2012, she was sent to

prison at the Ohio Reformatory for Women. On March 1, 2013, Reyes was

granted judicial release. Upon release Reyes went to live with a friend, Kelly

Ring.

        {¶13} On April 3, 2013, Reyes was jailed for another probation violation

when she was charged with Possession of Heroin. Reyes was convicted of the

charge on April 19, 2013. As a result of the “Possession” case, Reyes was ordered

to complete a residential treatment program at “Foundations” in Marion. Reyes

began the program, and while there, on May 20, 2013, filed motions for legal

custody of her children.

        {¶14} The final hearing on MCCS’s motions for permanent custody and

Reyes’ motions for legal custody was scheduled to take place on May 28, 2013.

The day before the final hearing began, Reyes left the treatment facility at

Foundations, and was found in violation of her probation.                            She was then

incarcerated from May 28, 2013, to June 5, 2013.



2
 It is also indicated that in the time Reyes was not incarcerated between October 2012 and December 2012,
Reyes was charged with, and later convicted of, two Theft offenses, which apparently occurred in
November of 2012.

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      {¶15} The final hearing in this case took place over four days: May 28,

2013, June 21, 2013, July 2, 2013, and July 19, 2013. The GAL filed his report in

this case on July 12, 2013, recommending that the agency be granted permanent

custody of the three children. In support, the GAL cited Reyes’ drug problem and

the children’s need for permanency.       Throughout the final hearings, Reyes

remained on house arrest at the Ring’s residence.

      {¶16} On August 6, 2013, the trial court filed its judgment entries granting

permanent custody of G.G., I.G., and C.S. to MCCS. The trial court found that the

children had been in the custody of the agency for more than twelve of the prior

twenty-two months and that it would be in the children’s best interests if the

agency was awarded permanent custody. It is from this judgment that Reyes

appeals, asserting the following assignments of error for our review.

                  ASSIGNMENT OF ERROR 1
      THE TRIAL COURT LACKED JURISDICTION TO GRANT
      PERMANENT CUSTODY TO APPELLEE BECAUSE
      APPELLANT WAS NEVER SERVED WITH NOTICE OF
      APPELLEE’S MOTION FOR PERMANENT CUSTODY.

                  ASSIGNMENT OF ERROR 2
      ASSUMING, ARGUENDO, THAT APPELLANT WAIVED
      ANY JURISDICTIONAL ARGUMENTS DUE TO HER
      FAILURE TO RAISE SAID ISSUES AT TRIAL, THE
      FAILURE OF APPELLANT’S TRIAL COUNSEL TO RAISE
      SUCH    ERRORS    CONSTITUTED     INEFFECTIVE
      ASSISTANCE OF COUNSEL.




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Case No. 9-13-43, 9-13-44, 9-13-45


                   ASSIGNMENT OF ERROR 3
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       BY GRANTING APPELLEE’S MOTION FOR PERMANENT
       CUSTODY WHEN THERE WAS NOT CLEAR AND
       CONVINCING EVIDENCE THE CHILDREN BE PLACED IN
       THE PERMANENT CUSTODY OF APPELLEE.

                            First Assignment of Error

       {¶17} In Reyes’ first assignment of error, Reyes argues that she was never

served with notice of MCCS’s motions for permanent custody.           Specifically,

Reyes argues that as a result of the lack of proper service, the judgments of the

trial court are void.

       {¶18} Complete participation in a permanent custody hearing waives any

possible inadequacy of the notice. In re Thompson, 10th Dist. Franklin No. 02AP-

557, 2003-Ohio-580, ¶ 32, citing In re Shaeffer Children, 85 Ohio App.3d 683,

688 (3d. Dist.1993). Similarly, “[t]he issue of notice is waived on appeal when the

parent's attorney is present for various permanent custody hearings and never

argues improper notice.” In re Keith Lee P., 6th Dist. Lucas No. L-03-1266, 2004-

Ohio-1976, ¶ 9 citing In re Billingsley, 3d Dist. Putnam Nos. 12–02–07, and 12–

02–08, 2003–Ohio–344, at ¶ 10; In re Jennifer L. (May 1, 1998), Lucas App. No.

L–97–1295.

       {¶19} Even assuming that service was not perfected in this case, Reyes

waived any claim of defect when she fully participated in the final hearing,

represented by counsel, over multiple final hearing dates and never raised any

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Case No. 9-13-43, 9-13-44, 9-13-45


claim of defect. In addition, Reyes testified at the final hearing on June 21, 2013,

that she knew MCCS had filed the “Motion for Permanent Placement” in October

of 2012. (Tr. at 260-61). Furthermore, Reyes also testified at the final hearing

that she knew what the hearing was for. (Tr. at 262-63).

       {¶20} Thus Reyes completely participated in the permanent custody

hearing, was aware of what the hearing was for, and admitted to knowing about it

ahead of time. Even assuming a defect in service was present, Reyes’ argument is

waived. Accordingly, Reyes’ first assignment of error is overruled.

                            Second Assignment of Error

       {¶21} In Reyes’ second assignment of error, she contends her trial counsel

was ineffective for failing to bring the alleged “defect” in service of the permanent

custody motions to the trial court’s attention.

       {¶22} In order to succeed on a claim of ineffective assistance of counsel, an

appellant must “show that his trial counsel was deficient and that such deficiency

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). Specifically, an appellant must establish 1) that the trial counsel's

representation fell below an objective standard of reasonableness, and 2) that there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. Id.; State v. Bradley, 42 Ohio St.3d

136 (1989).


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Case No. 9-13-43, 9-13-44, 9-13-45


       {¶23} As stated previously, Reyes completely participated in the final

hearing and stated that she was aware of it ahead of time. Moreover, there is

absolutely no indication in the record that Reyes would have called any witnesses

other than those she did call at the final hearing, or would have had her counsel

prepare differently for the final hearing even assuming she was not properly

served. In fact, at that final hearing she was also arguing for her motion for legal

custody of the children. As there is no indication that pointing out any purported

defect in service would have altered the proceedings, we cannot find Reyes was

denied effective assistance of counsel. Accordingly, Reyes’ second assignment of

error is overruled.

                            Third Assignment of Error

       {¶24} In Reyes’ third assignment of error, she argues that the trial court

erred in granting MCCS’s permanent custody motions.            Specifically, Reyes

contends that clear and convincing evidence was not present because the main

issue in this case was Reyes’ drug use, and at the time of the final hearing Reyes

had been maintaining her sobriety.

       {¶25} “The standard for appellate review in a permanent-custody case is

whether the trial court had clear and convincing evidence to make an award of

permanent custody.” In re Terrence, 6th Dist. Lucas No. L–05–1018, 2005–Ohio–

3600, ¶ 86, citing In re Hiatt, 86 Ohio App.3d 716, 725 (4th Dist.1993). The


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Case No. 9-13-43, 9-13-44, 9-13-45


“clear and convincing evidence” standard is a higher degree of proof than the

“preponderance of the evidence” standard generally used in civil cases, but is less

stringent than the “beyond a reasonable doubt” standard used in criminal cases.

State v. Schiebel, 55 Ohio St.3d 71, 74, (1990).        On appeal from an order

terminating parental rights, an appellate court will not reverse the trial court’s

judgment if, upon a review of the record, it determines that the trial court had

sufficient evidence to satisfy the clear and convincing evidence standard. In re

Wise, 96 Ohio App.3d 619, 626, (9th Dist.1994).

        {¶26} As an initial matter, we note that “[i]t is well recognized that the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d

Dist. Marion Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶ 9, citing In re Hayes, 79

Ohio St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent

“must be afforded every procedural and substantive protection the law allows.” In

re Hayes, supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). It is

with these constructs in mind that we proceed to determine whether the trial court

erred in granting permanent custody of the children to MCCS.

        {¶27} Section 2151.414(B)(1) of the Revised Code provides that a trial

court

        may grant permanent custody of a child to a movant if the court
        determines at the hearing held pursuant to division (A) of this
        section, by clear and convincing evidence, that it is in the best
        interest of the child to grant permanent custody of the child to

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Case No. 9-13-43, 9-13-44, 9-13-45


       the agency that filed the motion for permanent custody and that
       any of the following apply:

       (a) The child is not abandoned or orphaned, has not 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, * * * 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.

       (b) The child is abandoned.

       (c) The child is orphaned, and there are no relatives of the
       child who are able to take permanent custody.

       (d) 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, or 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 and * * * the child was previously in
       the temporary custody of an equivalent agency in another state.

R.C. 2151.414(B)(1)(a-d).

       {¶28} Based on the statute, there are two steps to the analysis in

determining a permanent custody motion. First a court must determine which, if

any, of the factors in R.C. 2151.414(B)(1) are present. Second, if one of the

factors in R.C. 2151.414(B)(1) is present, the court must determine if granting

permanent custody to the agency is in the children’s best interests.

       {¶29} Turning first to the factors of R.C. 2151.414(B)(1), in this case, the

court specifically found in its judgment entries that the children had been in “the


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Case No. 9-13-43, 9-13-44, 9-13-45


temporary custody of MCCS since April 5, 2011, or over twenty-seven (27)

months from their removal from [Reyes].” The record supports the trial court’s

finding in that the children were placed into the temporary custody of MCCS on

April 5, 2011, were in the agency’s custody when MCCS filed its motion on

October 17, 2012, and the children were still in MCCS’s temporary custody

throughout the final hearing, which took place on four separate dates ranging from

May 28, 2013, to July 19, 2013.

      {¶30} Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when a

child has been in an agency’s temporary custody for twelve or more months of a

consecutive twenty-two month period, a trial court need not find that the child

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

Compare R.C. 2151.414(B)(1)(d) with R.C. 2151.414(B)(1)(a). Thus, the court

was not required to go into a separate “reasonable time” analysis under R.C.

2151.414(B)(1)(a).

      {¶31} Nevertheless, Reyes appears to contend that the children could be

placed with her within a reasonable time. She contends that she had been able to

maintain her sobriety since being on house arrest and that she would be looking

into drug treatment and securing a job.

      {¶32} However, as the trial court’s finding regarding how long the children

had been in MCCS’s custody was clearly supported by the record, we cannot find


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Case No. 9-13-43, 9-13-44, 9-13-45


that the trial court erred on this issue because the trial court was not required to

engage in the “reasonable time” analysis under R.C. 2151.414(B)(1)(a) when it

had made a finding under R.C. 2151.414(B)(1)(d).3 Accordingly, we cannot find

Reyes’ argument on this issue well-taken.

         {¶33} Once one of the factors of R.C. 2151.414(B)(1) was determined to be

present in this case, the trial court was required to determine whether it was in the

children’s best interests for the agency to be granted permanent custody. In

determining the best interests of the children under this statute, R.C.

2151.414(D)(1), directs a court to 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

3
  Perhaps the confusion for Reyes is that the trial court made the additional, albeit unnecessary, finding that
the children “cannot be placed with any parent within a reasonable period of time, and further, should not
be placed with any parent due to the current circumstances of each parent with no expectation for
improvement within a reasonable period of time.” Thus the trial court seemed to find both R.C.
2151.414(B)(1)(d) and (B)(1)(a) applicable to the case before us. As (B)(1)(d) was clearly established in
the record, we need not further analyze the trial court’s additional unnecessary finding under (B)(1)(a).
Nevertheless, after reviewing the record, we find that the trial court’s decision on that issue was supported
by clear and convincing evidence as well.

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Case No. 9-13-43, 9-13-44, 9-13-45


       period, or 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 and, as described in division (D)(1) of section
       2151.413 of the Revised Code, the child was previously in the
       temporary custody of an equivalent agency in another state;

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

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

R.C. 2151.414.

       {¶34} On the issue of the children’s best interests, the trial court stated the

following in its judgment entries.

       In examining the factors contained in * * * 2141.414(D),
       including all other relevant factors presented with regard to all
       three (3) minor children, continuing their current placement
       together with their foster family is in their best interests. This is
       evidenced by their bonding and integration with the foster
       family over the past twenty-seven (27) months. All three (3)
       children have resided together in foster care since April 5, 2011,
       in excess of the required twelve (12) or more months in a
       consecutive twenty-two (22) month period, and the children are
       in need and deserving of a legally secure permanent placement.
       The current and continuing circumstances of Mother and both
       Fathers prevent this from occurring with any of them in the
       foreseeable future, and permanency and stability can only be
       accomplished through a grant of permanent custody to MCCS.

       ***

       [A]ll three (3) parents have demonstrated a lack of commitment
       toward their children by their absence, failure to regularly
       support or visit with them and their inability to provide an

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Case No. 9-13-43, 9-13-44, 9-13-45


      adequate permanent home * * *[.] Failure to comply with the
      Case Plan, continued incarceration, drug addiction, lack of
      employment to provide financial support, suitable stable
      housing, and lack of commitment to the basic needs of the
      children have demonstrated parental unwillingness to provide
      food, clothing, shelter, and other basic needs of the children[.]

      {¶35} On appeal, Reyes contends that this case “always involved the issue

of drugs only” and that since Reyes maintained her sobriety, the children should

have been returned to her care. (Appt.’s Br. at 18). In addition, Reyes argued that

she had a better support system for maintaining her sobriety, that she was

optimistic she would get a job and receive Social Security benefits, and that she

had a strong bond with her children.

      {¶36} Our review of the record shows that with regard to factor (a) of R.C.

2151.414(D)(1) all three children had been in the same foster home for over two

years. The children’s foster mother, Heather Tackett, testified that the children

had bonded with her, her husband, and their other children. Tackett testified that

she would consider adopting the children should the agency be granted permanent

custody.

      {¶37} Reyes, however, had been incarcerated for the majority of the

children’s lives. In fact, she was still on house arrest during the multiple final

hearing dates. While there was testimony that Reyes had a bond with her children,

at one point during this case Reyes was completely out of contact with her



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Case No. 9-13-43, 9-13-44, 9-13-45


children and her probation officer, while she was, admittedly, doing heroin. Reyes

also missed several visits and failed to complete her case plan.

       {¶38} With regard to factor (b), GAL Todd Workman filed a report

wherein he recommended that MCCS’s permanent custody motions be granted.

Workman testified at the final hearing that although Reyes’ progress in staying

clean carried weight with him, Reyes had consistently failed to recognize her own

problems. (Tr. at 408). His recommendation was ultimately based upon Reyes’

addiction, her “numerous relapses,” and her continued involvement with the legal

system. (Doc. 96).

       {¶39} With regard to factor (c), as previously stated, the children had been

in the temporary custody of the agency for well over twelve months.

       {¶40} With regard to factor (d), the children had been in the custody of the

agency for over two years by the time the final hearing was completed. Reyes had

not fulfilled all of the requirements of her case plan, failing to complete drug

treatments. She had been incarcerated multiple times for a variety of offenses and

probation violations. Although Reyes claimed at the final hearing that she had

been sober for 100 days, she had been in trouble for drugs after MCCS filed its

permanent custody motions. She was charged with, and convicted of, Possession

of Heroin nearly six months after MCCS filed its motions. In addition, she was

charged with, and convicted of, two counts of Theft after MCCS filed its motions.


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       {¶41} Moreover, while Reyes’ sobriety is to be commended, she had

obtained sobriety while on house arrest. Presumably she had similar sobriety

while incarcerated previously, and broke that sobriety upon release. Reyes had

over two years to make progress on the case plan, and failed to complete it. There

is no indication that Reyes will follow-through with her assertions that she will

finish her next drug treatment, and in fact she left Foundations on the night before

the final hearing, knowing that it placed her in violation of court orders.

       {¶42} Factor (e) is inapplicable to the case before us.

       {¶43} Based on the record and the evidence presented, we cannot find that

the trial court erred in finding that it was in the children’s’ best interests that the

agency be granted permanent custody. Accordingly, Reyes’ third assignment of

error is overruled.

       {¶44} For the foregoing reasons Reyes’ assignments of error are overruled

and the judgments of the Marion County Common Pleas Court, Family Division,

are affirmed.

                                                                 Judgments Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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