[Cite as In re M.U., 2014-Ohio-1640.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



IN RE: M.U., C.U., and J.D.              :            APPEAL NOS. C-130809
                                                                  C-130827
                                         :             TRIAL NO. F07-2858

                                         :                  O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 18, 2014




Susannah M. Meyer, for Appellant Mother,

Erik Laursen, for Appellants M.U. and C.U.,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis, for
Appellee Guardian Ad Litem.




Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

       {¶1}    On November 22, 2013, the trial court terminated the parental rights

of mother to her three children, M.U., C.U., and J.D.       Mother and two of her

children, M.U. and C.U., now appeal. We affirm the decision of the trial court.

       {¶2}    The Hamilton County Department of Job and Family Services

(“HCJFS”) became involved in the lives of mother’s children in 2007 when it filed a

complaint alleging that the children were dependent. Mother suffered from mild

mental retardation, and HCJFS was concerned that she was unable to provide a safe

environment for the children. Her care for the children was inconsistent and, at

times, inadequate. In addition, HCJFS was concerned with mother’s involvement

with men who presented a risk to the children. One man from Iowa moved in with

mother after she had known him for about one week through only telephone

conversations. This man had a history of substance abuse and a criminal record.

While living in the home, he refused to participate in either a diagnostic or

substance-abuse assessment through HCJFS. Eventually, allegations arose that the

man was sexually assaulting one of the children. An investigation commenced, but

was halted when the child refused to cooperate with workers from the Mayerson

Center. Mother eventually obtained a restraining order against him. The magistrate

determined that the children could remain with mother, with various protective

orders in place, and a pending motion to terminate her parental rights was denied in

June 2008.

       {¶3}    One month later, HCJFS filed a new complaint alleging that the

children were neglected and dependent, and requesting temporary custody. The

home had bed bugs, and this prevented the children from attending the protective



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daycare that had been part of the June 2008 order. In addition, HCJFS alleged that

mother was not attending to the children’s basic needs. M.U. had glass embedded in

her foot, J.D. was wearing a filthy diaper, and all three children were dirty. HCJFS

further alleged that the home was filthy, and that the children were not receiving

proper nutrition or medical care. The magistrate adjudicated the children dependent

and granted the request for temporary custody.       Mother was offered numerous

programs to help her improve her parenting skills.

       {¶4}   At a case review hearing one year later, HCJFS announced the

decision to again seek termination of mother’s parental rights. While mother had

made some progress with her parenting skills, she did not seem to be making lasting

changes in her behavior or decision-making. In addition, HCJFS had learned that

mother had begun seeing a registered sex offender. This man, whom mother had

met on the internet, had been convicted of a sex offense involving a minor. She also

became involved with another man, with whom she had a child that was placed with

the father’s parents. As a result of these relationships, HCJFS was concerned that

she was still making bad decisions regarding the men with whom she involved

herself.

       {¶5}   After conducting the permanent-custody trial, the magistrate

determined that mother’s progress with the various programs in which she had been

enrolled demonstrated that she had advanced to the point where the children could

return to her custody. Regarding her judgment about men, the magistrate noted his

concern that this issue had not been addressed in her counseling, and determined

that it could properly be addressed through counseling and the issuance of a

protective order requiring that mother have no other adult living in the home and




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that she report the identity of any adult who had regular contact with the children to

HCJFS and the children’s guardian ad litem.

       {¶6}    On June 11, 2012, HCJFS filed an amended complaint alleging that

the children were dependent, and seeking permanent custody. The agency once

again complained that mother was exercising poor judgment when it came to the

men with whom she associated. The agency presented evidence that mother had

violated the court’s protective orders by allowing at least two men to live in her home

and have ongoing contact with the children without providing notice to HCJFS or the

children’s guardian.   She actively concealed her relationships and the children’s

contact with these men, and indicated that she did not believe that she was required

to comply with the court’s orders for protective supervision. The children reported

that at least one of the men was mean, had stolen property from mother, had hit the

children, and had disciplined them without mother’s knowledge. The identities and

background of the men were unknown—other than the fact that the children knew

one of them as “Michael”—because HCJFS was unable to investigate them. The

magistrate found the children to be dependent and granted HCJFS’s motion for

permanent custody. The trial court overruled the objections filed by M.U. and C.U.,

as well as those filed by mother.

       {¶7}    In her first assignment of error, mother claims that her counsel was

ineffective for failing to seek dismissal of HCJFS’s motion for permanent custody

because the trial court failed to timely rule on it. To have the case reversed on a

claim of ineffective assistance of counsel, mother must prove that counsel violated an

essential duty that he owed to her and that she was prejudiced by the violation. See

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); see also Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny


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of counsel's performance must be highly deferential. An appellant must overcome

the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy. Strickland at 689. An appellant is not deprived of

effective assistance of counsel when counsel chooses, for strategic reasons, not to

pursue every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528

N.E.2d 523 (1988).

        {¶8}    R.C. 2151.35(B)(1) requires that, when the state seeks permanent

custody of a child, the dispositional hearing on that motion must be held within 90

days. If it is not, “the court, on its own motion or the motion of any party or the

guardian ad litem of the child, shall dismiss the complaint without prejudice.”

        {¶9}    Mother argues that trial counsel is necessarily ineffective in failing to

seek dismissal whenever the deadline set by R.C. 2151.35(B)(1) passes. We cannot

accept this proposition. The problem with this argument is that it supposes that

there is no situation in which competent trial counsel would decide that it was better

to proceed with the matter than to seek dismissal.

        {¶10}   Dismissal of a parental-termination case without prejudice is not

always the best outcome for the parties involved—even for the parents. The Ohio

Supreme Court discussed a similar issue when analyzing another statute, R.C.

2151.35(B)(3). That statute provides that a juvenile court must enter its disposition

of a child adjudicated as abused, neglected or dependent within seven days of the

conclusion of the hearing. In re Davis, 84 Ohio St.3d 520, 523, 705 N.E.2d 1219

(1999). Finding that the statutory deadline was not mandatory, the court reasoned

that:

        a missed deadline would require either that the child be returned to a

        potentially risky home situation, or that a new complaint be filed and


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       the process begun anew, delaying the final resolution of the issue even

       further. Such consequences would not serve the interests of children,

       who are too often relegated to temporary custody for too long.

Id. at 523.

       {¶11}   The same rationale applies when considering the time limitation

imposed by R.C. 2151.35(B)(1). There are certainly situations, such as the case at bar,

in which competent counsel would not seek dismissal of the permanent-custody

petition without prejudice.   Dismissal would have only delayed the proceedings

further, and would not have allowed mother the continued opportunity to show

compliance with the trial court’s orders and progress in the various programs in

which she participated. And there is nothing in the record to suggest that dismissal

would have ended the case. The history of the case indicates that HCJFS would

certainly have refiled its request for the termination of mother’s parental rights had

the case been dismissed without prejudice under the statute. Furthermore, there is

no evidence in the record that mother even wanted to expedite the matter, as she had

expressly waived “any objection to the completion of the adjudication and/or

disposition within 90 days of the filing of the complaint” at the first hearing held

after the 90-day period had expired. It is also worth noting that, not only was

mother represented by trial counsel, but also, because of her mental health issues,

the trial court had appointed her a guardian ad litem. So, in this case, mother’s

interests were protected by two professionals over the course of this seven-year

process.

       {¶12}   In light of this record, the detrimental impact that having the case

begin anew would have had on all parties involved, and the deference that courts

afford to the tactical decisions of trial counsel, we cannot say that mother has shown


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that counsel was ineffective in this case. Therefore, we overrule her first assignment

of error.

       {¶13}   In mother’s second assignment of error, she claims that the trial court

erred when it failed to properly consider the factors listed in R.C. 2151.414(D)(1) in

support of its decision to terminate her parental rights. In a related assignment of

error, M.U. and C.U. specifically argue that the trial court failed to properly consider

their wishes, as required by R.C. 2151.414(D)(1)(b). We disagree.

       {¶14}   Before it could grant permanent custody to HCJFS, the trial court was

required to determine by clear and convincing evidence that permanent custody was

in the best interest of the children. See R.C. 2151.414(B); In re Schaefer, 111 Ohio

St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Under R.C. 2151.414(D)(1), to

determine a child's best interest,

       the court shall consider all relevant factors, including, but not limited

       to, the following:

       (a) The interaction and interrelationship of the child with the child's

       parents, siblings, relatives, foster caregivers and out-of-home

       providers, and any other person who may significantly affect the child;

       (b) The wishes of the child, as expressed directly by the child or

       through the child's guardian ad litem, with due regard to the maturity

       of the child;

       (c) The custodial history of the child * * *;

       (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;




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       (e) Whether any of the factors in divisions (E)(7) to (11) of this section

       apply in relation to the parents and child.

“There is not one element that is given greater weight than the others pursuant to the

statute.” Schaefer at ¶ 56.

       {¶15}   We conclude that the trial court considered each of the factors listed

above, including its consideration of the fact that M.U. and C.U. had “expressed a

desire to return to Mother’s home.” But the trial court concluded that this one factor

supporting reunification did not outweigh the factors that supported termination of

mother’s parental rights. She refused to properly notify HCJFS and the children’s

guardian ad litem about the men that she brought into the lives of her children, and

stated that she did not think she had to follow the court’s order in that regard. And

her decisions regarding men have been a problem in this case since its inception in

2007. Additionally, the children’s guardian ad litem joined HCJFS in its opposition

to reunification. Therefore, there was ample justification in the record to support the

decision of the trial court to terminate mother’s parental rights, even though the

children wished to return to her. We overrule mother’s second assignment of error

and the sole assignment of error of M.U. and C.U.

       {¶16}   Having considered and overruled all assignments of error, we affirm

the judgment of the trial court.

                                                                     Judgment affirmed.



CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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