[Cite as In re T.B., 2022-Ohio-4734.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

In the Matter of: : 

: Case No. 22CA15

T.B. : 

:

Adjudicated Dependent Child. : 

: 

: DECISION AND JUDGMENT 

: ENTRY 

:

: RELEASED: 12/20/2022

APPEARANCES:

Brian A. Smith, Fairlawn, Ohio, for Appellant.

Jeffrey C. Marks, Ross County Prosecutor, and Jennifer L. Ater, Ross County 

Assistant Prosecutor, Chillicothe, Ohio, for Appellee.

 

Wilkin, J.

{¶1} Appellant, the minor child’s father, appeals a decision of the Ross

County Court of Common Pleas, Juvenile Division, that placed his biological 

child, T.B., in the permanent custody of South Central Ohio Job and Family 

Services, Children’s Division (“the agency”).

{¶2} Appellant raises four assignments of error. First, he argues that the 

trial court’s permanent custody decision is void, because he was not properly 

served with notice of the motion and of the hearing. Second, Appellant claims 

that trial counsel rendered ineffective assistance of counsel by failing to object to 

the alleged lack of proper service. Third, Appellant asserts that the trial court’s 

permanent custody decision is against the manifest weight of the evidence, 

because the evidence fails to support the court’s finding that placing the child in 
Ross App. No. 22CA15 2

the agency’s permanent custody is in the child’s best interest. Last, Appellant 

contends that the trial court’s permanent custody decision is against the manifest 

weight of the evidence, because the record fails to show that the agency used 

reasonable efforts to reunify the family.

{¶3} After our review of the record and the applicable law, we do not find 

any merit to Appellant’s assignments of error. Therefore, we affirm the trial 

court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

{¶4} On February 10, 2020, the agency filed a complaint that alleged the 

nearly three-year-old child is a dependent child and requested the court to grant 

the agency temporary custody of the child. The attached statement of facts 

indicated the following.

{¶5} The agency first became involved with the family in early June 2017, 

shortly after the child’s birth. The agency learned that the child’s “cord stat result 

returned positive on [June 5, 2017] for Subutex and cocaine.” The report stated 

that the child’s mother had been receiving Subutex services during her 

pregnancy but was discharged for testing positive for cocaine. 

{¶6} A caseworker phoned the parents’ home on August 9, 2017, and 

heard the parents yelling. The caseworker called the Chillicothe Police 

Department to report the disturbance. After the police left the parents’ home, 

Appellant informed the caseworker that the mother “left the residence out of a 

window of the home before police arrived.” Appellant advised the caseworker 

“that he was not able to ensure [the mother] would not bring drug instruments 
Ross App. No. 22CA15 3

into the home, or that he could stop the drug activity, dealers, and other users 

from coming into the home.” He further stated that “working full time and 

providing care to [the child] was too difficult to him.” Shortly thereafter, the 

agency sought and received temporary custody of the child.

{¶7} Over the next couple of years, the agency worked with the parents in 

an attempt to reunify the family. The parents, however, did not consistently visit 

the child or comply with the case plan requirements. The agency eventually 

dismissed the original complaint and refiled the present action.

{¶8} On February 12, 2020, the father appeared with counsel for a 

hearing. At this hearing, the father denied the allegations of the complaint. The 

court found that the agency had used reasonable efforts to prevent the child’s 

continued removal from the home. The court continued the child in the agency’s 

temporary custody.

{¶9} On July 29, 2020, the magistrate adjudicated the child a dependent 

child. The court found that the agency used reasonable efforts. On that same 

date, the trial court adopted the magistrate’s decision and adjudicated the child a 

dependent child. The court later entered a dispositional order that continued the 

child in the agency’s temporary custody.

{¶10} On February 8, 2022, the agency filed a permanent custody motion. 

The agency alleged that the child has been in its temporary custody for 12 or 

more months of a consecutive 22-month period and that placing the child in its 

permanent custody is in his best interest. The agency requested that both 

parents be served via personal service.
Ross App. No. 22CA15 4

{¶11} About one month later, the trial court held a pretrial hearing and 

noted that Appellant’s counsel appeared, but Appellant did not. The court further 

observed that the record did not indicate that the parents had been served with 

notice of the permanent custody motion and of the hearing date. The court thus 

ordered the agency to verify that the parents have been served or to issue new 

instructions for service. 

{¶12} On March 15, 2022, the agency filed a motion to serve the parents 

by posting and by mail. The affidavit stated that the summons could not be 

served upon the parents because their residence is “unknown.” The affidavit 

listed the parents’ last known address and stated that reasonable efforts (a public 

records search) were undertaken to determine the parents’ residence.

{¶13} On April 11, 2022, the court held a hearing to consider the agency’s 

permanent custody motion. The court noted that neither parent was present but 

that an attorney represented each. Caseworker Sarah Swenson testified that the 

agency’s concerns included the parents’ lack of appropriate housing and lack of 

employment, and the mother’s drug addiction. Additionally, Appellant did not 

have reliable transportation and had “explosive angry outbursts in front of the 

child.” 

{¶14} Swenson explained that the case plan required the mother to 

continue receiving treatment for her drug addiction and required the parents to 

maintain safe and stable housing, to attend regular visitation with the child, and 

to engage in a mental health evaluation and follow any recommended treatment. 

Swenson testified that the parents did not establish stable housing, did not 
Ross App. No. 22CA15 5

consistently visit the child, and Appellant did not successfully complete 

recommended counseling for his anger issues. 

{¶15} Swenson stated that the parents “were very inconsistent” in their 

visits with the child. Swenson reported that in June 2021, the parents “had a 

hard time keeping appointments.” She explained that the parents claimed not to 

have transportation, or they complained about the weather or the time scheduled 

for the visits. Swenson stated that the agency moved the visits to a more 

accommodating time for the parents, yet the parents still did not consistently visit 

the child. Around August 2021, the parents’ visits became even less consistent, 

and they “stopped showing up almost completely.” Furthermore, during visits, 

Appellant “tended to yell in front of [the child] and scare him” and was 

confrontational with the foster parents. 

{¶16} Swenson stated that the child has been in the agency’s temporary 

custody since he was a few months old and that he has remained in the same 

foster home throughout that time. Swenson reported that the child is “very 

comfortable,” “very well adjusted,” and “very bonded” with the foster family. She 

further explained that due to Appellant’s violent behaviors, the child was referred 

for counseling. 

{¶17} Caseworker Nathan Winston stated that he is the current 

caseworker for the family. Winston testified that the parents have not completed 

the case plan goals. Winston reported that neither parent visited the child 

between August 2021 and early December 2021. Appellant attended a visit on 

December 7, 2021, but he has not seen the child since that time. The mother 
Ross App. No. 22CA15 6

last visited the child in August 2021. Winston also stated that the parents have 

not established stable housing and that Appellant has not resolved his anger 

issues. Winston indicated that the child is “very bonded” with the foster family 

and “has a strong love for them.”

{¶18} On April 13, 2022, the trial court granted the agency permanent 

custody of the child. The court found that all parties were properly notified of the 

hearing. The court determined that the child cannot be placed with either parent 

within a reasonable time or should not be placed with them and that placing the 

child in the agency’s permanent custody is in the child’s best interest. The court 

additionally found that the child has been in the agency’s temporary custody for 

12 or more months of a consecutive 22-month period and “has essentially been” 

in the agency’s temporary custody “since a few days after he was born.” The 

court observed that the child shares a strong bond with the foster parents and is 

doing well in their care. 

{¶19} The court stated that the parents did not complete “significant 

portions of the case plan.” The mother has been unable to overcome her drug 

addiction, is on felony probation, and has a bench warrant for her arrest. 

Appellant did not consistently visit the child and has not seen the child since 

December 7, 2021. During visits, Appellant “was often confrontational with the 

foster parents and acted in an aggressive manner.” Furthermore, Appellant’s

“outbursts have frightened the child.” Appellant “was referred to counseling to 

address his outbursts but he has failed to follow through with that counseling 

referral.” 
Ross App. No. 22CA15 7

{¶20} The court also noted that Appellant “has not consistently remained 

in contact with his case workers” and that the “parents have not maintained 

stable housing.” Moreover, the parents have a history of domestic violence, and 

they have not adequately addressed the concerns. The court determined that 

the child needs a permanent placement and cannot achieve that type of 

placement without granting the agency permanent custody of the child. The 

court thus granted the agency permanent custody of the child. This appeal 

followed.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT DECISION GRANTING APPELLEE’S 

MOTION FOR PERMANENT CUSTODY WAS VOID, BECAUSE IT 

DENIED DUE PROCESS TO APPELLANT DUE TO 

INSUFFICIENT SERVICE, IN VIOLATION OF APPELLANT’S 

RIGHT TO DUE PROCESS UNDER THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO 

CONSTITUTION.

II. THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO OBJECT 

TO THE TRIAL COURT’S IMPROPER SERVICE AND LACK OF 

JURISDICTION OVER APPELLANT CONSTITUTED 

INEFFECTIVE ASSISTANCE OF COUNSEL AND VIOLATED 

APPELLANT’S RIGHTS TO COUNSEL AND DUE PROCESS 

UNDER ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO 

CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

III. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S 

MOTION FOR PERMANENT CUSTODY, WAS AGAINST THE 

MANFEST WEIGHT OF THE EVIDENCE.

IV. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S 

MOTION FOR PERMANENT CUSTODY, WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE, BECAUSE APPELLEE 

DID NOT SHOW THAT IT HAD MADE “REASONABLE EFFORTS” 

TO REUNITE THE FAMILY PURSUANT TO R.C. 2151.419.
Ross App. No. 22CA15 8

ANALYSIS

FIRST ASSIGNMENT OF ERROR

{¶21} In his first assignment of error, Appellant argues that the trial court’s 

permanent custody decision is void because he was not properly served with the 

agency’s permanent custody motion or notice of the hearing date. Specifically, 

he contends that the agency failed to establish that serving him with notice by 

publication was necessary. Appellant alleges that the agency incorrectly claimed 

that the agency could not ascertain his address. Appellant asserts that he had 

maintained the same address since the inception of the case and that the 

complaint had been served upon him at this address. He also argues that the 

clerk’s office should not have sent notice via regular mail, but instead, should 

have sent notice via certified mail.

{¶22} The Due Process Clause of the Fifth Amendment to the United 

States Constitution, as applicable to the states through the Fourteenth 

Amendment, provides: “No person shall * * * be deprived of life, liberty, or 

property, without due process of law.” “[P]arents’ interest in the care, custody, 

and control of their children ‘is perhaps the oldest of the fundamental liberty 

interests recognized by this Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 

S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one’s “child is an 

‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 157, 556 

N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 

(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 
Ross App. No. 22CA15 9

599 (1982) (stating that “natural parents have a fundamental right to the care and 

custody of their children”). Thus, “parents who are ‘suitable’ have a ‘paramount’ 

right to the custody of their children.” B.C. at ¶ 19, quoting In re Perales, 52 Ohio 

St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310 

(1877); Murray, 52 Ohio St.3d at 157.

{¶23} Additionally, the Ohio Supreme Court has described the permanent 

termination of parental rights as “ ‘the family law equivalent of the death penalty 

in a criminal case.’ ” Hayes, 79 Ohio St.3d at 48, quoting In re Smith, 77 Ohio 

App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Consequently, courts must afford 

parents facing the permanent termination of their parental rights “ ‘every 

procedural and substantive protection the law allows.’ ” Id., quoting Smith at 16; 

accord B.C. at ¶ 19. Thus, because parents possess a fundamental liberty 

interest in the care and custody of their children, the state may not deprive 

parents of their parental rights without due process of law. In re James, 113 

Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 16; e.g., In re A.G., 4th Dist. 

Athens No. 14CA28, 2014-Ohio-5014, ¶ 12; In re M.H., 4th Dist. Vinton No. 

11CA683, 2011-Ohio-5140, ¶¶ 49–50. Moreover, a parent’s right to due process 

“does not evaporate simply because” that parent has “not been [a] model parent[ 

] or [has] lost temporary custody of their child to the State.” Santosky, 455 U.S. 

at 753.

{¶24} Although “due process” lacks precise definition, courts have long 

held that due process requires both notice and an opportunity to be heard. In re

Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 12, citing 
Ross App. No. 22CA15 10

Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 28 L.Ed. 

569 (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348, 31 N.E. 602 (1892). “An 

elementary and fundamental requirement of due process in any proceeding 

which is to be accorded finality is notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action and 

afford them an opportunity to present their objections.” Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); accord

In re Thompkins at ¶ 13.

{¶25} Moreover, given the importance of the parent-child bond, “a Juvenile 

Court cannot make a valid order changing temporary commitment of a 

dependent child to a permanent one without a service of notice upon the parent 

of the child, strictly in accordance with the law.” In re Frinzl, 152 Ohio St. 164, 

173, 87 N.E.2d 583 (1949); accord In re S.S., 9th Dist. Wayne No. 10CA0010, 

2010-Ohio-6374, ¶ 43, quoting In re Cowling, 72 Ohio App.3d 499, 500–501, 595 

N.E.2d 470 (9th Dist.1991). “ ‘[A] judgment rendered without proper service or 

entry of appearance is a nullity and void.’ ” State ex rel. Ballard v. O’Donnell, 50 

Ohio St.3d 182, 183–184, 553 N.E.2d 650 (1990), quoting Lincoln Tavern, Inc. v.

Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956). Thus, “a valid court 

judgment requires both proper service under the applicable Ohio rules and 

adequate notice under the Due Process Clause.” In re A.G., 4th Dist. Athens No. 

14CA28, 2014-Ohio-5014, ¶ 14, citing Samson Sales, Inc. v. Honeywell, Inc., 66 

Ohio St.2d 290, 293, 421 N.E.2d 522 (1981). 
Ross App. No. 22CA15 11

{¶26} When, however, “parents of minor children have the notice and 

opportunity to assert their rights in a permanent-custody proceeding,” no due 

process violation occurs. Ross v. Saros, 99 Ohio St.3d 412, 2003-Ohio-4128, 

792 N.E.2d 1126, ¶ 17. Accordingly, “a notice issue may be waived on appeal 

when a parent’s attorney is present for various permanent custody hearings and 

does not raise the improper notice issue.” In re C.B., 2020-Ohio-5151, 161 

N.E.3d 770, ¶ 19 (4th Dist.).

{¶27} When the state seeks to interfere with a parent’s liberty interest in 

the care, custody, and management of his or her child, the Due Process Clause 

requires the state to “attempt to provide actual notice” to the parents. Thompkins

at ¶ 14 (emphasis sic.), citing Dusenbery v. United States, 534 U.S. 161, 170, 

122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Due process does not, however, require 

the state to undertake “ ‘heroic efforts’ ” to provide actual notice. Id., quoting 

Dusenbery, 534 U.S. at 170. Additionally, due process does not require that a 

parent receives actual notice before the state may permanently sever the parentchild relationship. Id. Instead, the state satisfies its due process obligation to 

provide notice and an opportunity to be heard if the state employs means that are 

“reasonably calculated” to inform the parent of the proceeding involving his or her 

child. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64. 

Furthermore, the state must exercise “reasonable diligence in attempting to notify 

[parents] that [their] parental rights [are] subject to termination.” Thompkins at ¶ 

15; accord In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-6374, ¶ 49.
Ross App. No. 22CA15 12

{¶28} R.C. 2151.29 sets forth the requirements for serving notice of a

permanent custody motion and of the hearing. See R.C. 2151.414(A)(1) (stating

that “the court shall schedule a hearing and give notice of the filing of the motion

and of the hearing, in accordance with” R.C. 2151.29). The statute provides as

follows:

Service of summons, notices, and subpoenas, prescribed by 

section 2151.28 of the Revised Code, shall be made by delivering a 

copy to the person summoned, notified, or subpoenaed, or by leaving 

a copy at the person’s usual place of residence. If the juvenile judge 

is satisfied that such service is impracticable, the juvenile judge may 

order service by registered or certified mail. If the person to be 

served is without the state but the person can be found or the 

person’s address is known, or the person’s whereabouts or address 

can with reasonable diligence be ascertained, service of the 

summons may be made by delivering a copy to the person personally 

or mailing a copy to the person by registered or certified mail.

Whenever it appears by affidavit that after reasonable effort 

the person to be served with summons cannot be found or the 

person’s post-office address ascertained, whether the person is 

within or without a state, the clerk shall publish such summons once 

in a newspaper of general circulation throughout the county. The 

summons shall state the substance and the time and place of the 

hearing, which shall be held at least one week later than the date of 

the publication. A copy of the summons and the complaint, 

indictment, or information shall be sent by registered or certified mail 

to the last known address of the person summoned unless it is shown 

by affidavit that a reasonable effort has been made, without success, 

to obtain such address.

A copy of the advertisement, the summons, and the 

complaint, indictment, or information, accompanied by the certificate 

of the clerk that such publication has been made and that the 

summons and the complaint, indictment, or information have been 

mailed as required by this section, is sufficient evidence of 

publication and mailing. When a period of one week from the time 

of publication has elapsed, the juvenile court shall have full 

jurisdiction to deal with such child as provided by sections 2151.01 

to 2151.99 of the Revised Code.
Ross App. No. 22CA15 13

{¶29} In the case before us, Appellant claims that service by publication 

was improper because the agency could have ascertained his address. He 

states that he had maintained the same address at which the agency previously 

had served him and that the agency thus should have attempted to serve him at 

this address. We observe, however, that on February 8, 2022, the agency did 

request personal service be made upon Appellant at this address. 

{¶30} Moreover, about one month later, the trial court noted that the 

record did not indicate that the parents had been served with notice of the motion 

and hearing date.1 The court thus ordered the agency to verify that the parents 

have been served or to issue new instructions for service. 

{¶31} One week later, the agency filed a motion to serve the parents by 

posting and by mail. The agency submitted an affidavit for publication by posting 

and mail that contained the parents’ last known address, that stated the agency 

had used reasonable efforts to determine the parents’ residence by conducting a 

public records search, and that averred that the parents’ residence could not be 

ascertained with reasonable diligence. The trial court granted the agency’s 

motion. 

{¶32} Here, the agency first attempted to personally serve Appellant with 

notice of the motion and hearing at the same address that Appellant had 

maintained throughout the pendency of the case. After about one month, the 

agency still had not successfully personally served Appellant. The agency then 

1 On February 14, 2022, the Sheriff’s Returns were filed with the court, but they are blank; none of 

the information was completed on the form to indicate whether service had or had not been 

made.
Ross App. No. 22CA15 14

requested the clerk’s office to serve Appellant by posting and by ordinary mail, 

which the clerk’s office did. 

{¶33} Appellant contends, however, that the clerk also should have sent 

notice via certified mail to his last known address and that the failure to do so 

shows that service by publication was not properly made upon him. Yet at no 

point did Appellant’s counsel, who appeared at both the pretrial and the 

permanent custody hearing, assert that the attempt to serve Appellant was 

invalid. Instead, Appellant’s counsel appeared at the permanent custody hearing 

and did not argue that service was defective. Therefore, Appellant waived the 

issue for purposes of appeal. In re D.H., 177 Ohio App.3d 246, 2008-Ohio-3686, 

894 N.E.2d 364 (8th Dist.), ¶ 38 (stating that the “issue of notice is waived on 

appeal when the parent’s attorney is present for various permanent custody 

hearings and never argues improper notice”); Matter of Jennifer L., 6th Dist. 

Lucas No. L-97-1295, 1998 WL 230808, *3 (May 1, 1998) (determining that 

father waived argument that trial court lacked personal jurisdiction “when counsel 

who appeared on his behalf at the permanent custody hearings did not argue 

that the trial court had no jurisdiction to consider a motion for permanent custody

against him”); see State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 

N.E.3d 776, ¶ 36 (stating that a person “submits to the court’s jurisdiction if he 

does not object to the court’s exercise of jurisdiction over him”); Gliozzo v. Univ.

Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 

714, ¶ 13 (stating that a party voluntarily submits to a court’s jurisdiction “by 

failing to raise the defense of insufficiency of service of process in a responsive 
Ross App. No. 22CA15 15

pleading or by filing certain motions before any pleading”). We additionally point 

out that when the agency filed its permanent custody motion, Appellant’s child 

had been in the agency’s temporary custody for about four and a half years. 

Thus, Appellant’s claim that he did not have adequate notice of the proceedings 

rings especially hollow. Consequently, we do not agree with Appellant that the 

trial court’s permanent custody decision is void.

{¶34} Accordingly, based upon the foregoing reasons, we overrule 

Appellant’s first assignment of error.

SECOND ASSIGNMENT OF ERROR

{¶35} In his second assignment of error, Appellant asserts that his trial 

counsel was ineffective for failing to object to the allegedly improper service. 

Appellant claims that if trial counsel had raised the issue, then “the trial court 

would not have granted permanent custody to [the agency], and [Appellant]’s 

parental rights would not have been terminated.”

{¶36} The right to counsel, guaranteed in permanent custody proceedings 

by R.C. 2151.352 and by Juv.R. 4, includes the right to the effective assistance 

of counsel. In re Wingo, 143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th 

Dist.2001), citing In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st 

Dist.1998); e.g., In re J.P.B., 4th Dist. Washington No. 12CA34, 2013-Ohio-787, 

¶ 23; In re K.M.D., 4th Dist. Ross No. 11CA3289, 2012-Ohio-755, ¶ 60; In re 

A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 50. “ ‘Where the 

proceeding contemplates the loss of parents’ ‘essential’ and ‘basic’ civil rights to 

raise their children, * * * the test for ineffective assistance of counsel used in 
Ross App. No. 22CA15 16

criminal cases is equally applicable to actions seeking to force the permanent, 

involuntary termination of parental custody.’ ” Wingo, 143 Ohio App.3d at 666, 

quoting Heston.

{¶37} “To establish constitutionally ineffective assistance of counsel, a 

defendant must show (1) that his counsel’s performance was deficient and (2) 

that the deficient performance prejudiced the defense and deprived him of a fair 

trial.” State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15, 

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 

865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v. 

Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.

{¶38} “ ‘In order to show deficient performance, the defendant must prove 

that counsel’s performance fell below an objective level of reasonable 

representation.’ ” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155 ¶ 89 (4th 

Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 

N.E.2d 810, ¶ 95. When considering counsel’s performance, “ ‘a court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington 

Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland, 466 U.S. at 

689. “Thus, ‘the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.’ 

” State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 49 (4th Dist.), 

quoting Strickland, 466 U.S. at 689.
Ross App. No. 22CA15 17

{¶39} To establish prejudice, a defendant must demonstrate that a 

reasonable probability exists that “ ‘but for counsel’s errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine the outcome.’ ” Hinton v. Alabama, 571 U.S. 263, 134 

S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014), quoting Strickland, 466 U.S. at 694; e.g.,

State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; 

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of 

the syllabus. Furthermore, courts ordinarily may not simply presume the 

existence of prejudice but must require the defendant to affirmatively establish 

prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22. As 

we have repeatedly recognized, speculation is insufficient to demonstrate the 

prejudice component of an ineffective assistance of counsel claim. E.g., State v.

Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 

4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. 

Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 

08CA24, 2009-Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 

2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (an argument that is purely speculative 

cannot serve as the basis for an ineffectiveness claim). 

{¶40} In the case at bar, we do not agree with Appellant that trial counsel 

provided ineffective assistance of counsel by failing to assert that Appellant had 

not been properly served with the permanent custody motion and notice of the 

hearing. Even presuming that Appellant can establish that trial counsel 

performed deficiently by failing to raise the issue, Appellant cannot demonstrate 
Ross App. No. 22CA15 18

that the result of the proceeding would have been different if counsel had raised 

the issue. Instead, Appellant can only speculate that had counsel raised the 

issue, the trial court would not have placed the child in the agency’s custody. We 

believe that the more likely scenario is that if the trial court had determined that 

Appellant had not been properly served, then the court would have continued the 

permanent custody hearing until proper service was obtained. Moreover, 

Appellant has not claimed that if the trial court had continued the hearing, (1) he 

would have appeared to testify, (2) he would have presented evidence that would 

have changed the result of the proceeding, or (3) he otherwise would have been 

able to allay the agency’s concerns about placing the child in his care. 

Consequently, Appellant cannot show that any purported deficient performance 

affected the outcome of the proceedings. Therefore, Appellant cannot establish 

that trial counsel failed to provide ineffective assistance of counsel.

{¶41} Accordingly, based upon the foregoing reasons, we overrule 

Appellant’s second assignment of error.

THIRD ASSIGNMENT OF ERROR

{¶42} In his third assignment of error, Appellant contends that the trial 

court’s decision to grant the agency permanent custody of the child is against the 

manifest weight of the evidence. He asserts that he “substantially complied with 

several conditions of the case plan.” Appellant points out that a June 23, 2021 

progress report notes that he and the mother were “actively looking for housing.” 

He additionally states that he completed a mental health assessment and 

parenting classes and that he “submitted a negative drug screen on July 30, 
Ross App. No. 22CA15 19

2019.” Appellant also argues that many of the issues that caused the agency 

concern resulted from the mother’s actions and not from his actions.

STANDARD OF REVIEW

{¶43} Generally, a reviewing court will not disturb a trial court’s permanent 

custody decision unless the decision is against the manifest weight of the 

evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 

27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29. When an 

appellate court reviews whether a trial court’s permanent custody decision is 

against the manifest weight of the evidence, the court “ ‘ “weighs the evidence 

and all reasonable inferences, considers the credibility of witnesses and 

determines whether in resolving conflicts in the evidence, the [finder of fact] 

clearly lost its way and created such a manifest miscarriage of justice that the 

[judgment] must be reversed and a new trial ordered.” ’ ” Eastley v. Volkman, 

132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. 

Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001), 

quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 

1983). We further observe, however, that issues relating to the credibility of 

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

fact. As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 

80, 461 N.E.2d 1273 (1984): “The 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 
Ross App. No. 22CA15 20

inflections, and use these observations in weighing the credibility of the proffered 

testimony.” Moreover, deferring to the trial court on matters of credibility is 

“crucial in a child custody case, where there may be much evident in the parties’ 

demeanor and attitude that does not translate to the record well.” Davis v. 

Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); accord In re 

Christian, 4th Dist. Athens No. 04CA 10, 2004-Ohio-3146, ¶ 7.

{¶44} The question that an appellate court must resolve when reviewing a 

permanent custody decision under the manifest weight of the evidence standard 

is “whether the juvenile court’s findings * * * were supported by clear and 

convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 

N.E.2d 809, ¶ 43. “Clear and convincing evidence” is:

the measure or degree of proof that will produce in the mind of the 

trier of fact a firm belief or conviction as to the allegations sought to 

be established. It is intermediate, being more than a mere 

preponderance, but not to the extent of such certainty as required 

beyond a reasonable doubt as in criminal cases. It does not mean 

clear and unequivocal.

In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986).

{¶45} In determining whether a trial court based its decision upon clear 

and convincing evidence, “a reviewing court will examine the record to determine 

whether the trier of facts had sufficient evidence before it to satisfy the requisite 

degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 

(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), 

citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the 

clear and convincing standard has been met to the satisfaction of the [trial] court, 
Ross App. No. 22CA15 21

the reviewing court must examine the record and determine if the trier of fact had 

sufficient evidence before it to satisfy this burden of proof.”).

{¶46} Thus, if a children services agency presented competent and 

credible evidence upon which the trier of fact reasonably could have formed a 

firm belief that permanent custody is warranted, then the court’s decision is not 

against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 

N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2d Dist. Greene Nos. 2012CA32 and 

2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re A.U., 2d Dist. Montgomery No. 

22287, 2008-Ohio-187, ¶ 9 (“A reviewing court will not overturn a court’s grant of 

permanent custody to the state as being contrary to 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 

* * * have been established.’ ”). A reviewing court should find a trial court’s 

permanent custody decision against the manifest weight of the evidence only in 

the “ ‘exceptional case in which the evidence weighs heavily against the 

[decision].’ ” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d 

at 175.

PERMANENT CUSTODY PROCEDURE

{¶47} Before a court may award a children services agency permanent 

custody of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The 

primary purpose of the hearing is to allow the court to determine whether the 

child’s best interests would be served by permanently terminating the parental 

relationship and by awarding permanent custody to the 
Ross App. No. 22CA15 22

agency. R.C. 2151.414(A)(1). Additionally, when considering whether to grant a 

children services agency permanent custody, a trial court should consider the 

underlying purposes of R.C. Chapter 2151: “to care for and protect children, 

‘whenever possible, in a family environment, separating the child from the child's 

parents only when necessary for the child's welfare or in the interests of public 

safety.’ ” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 29, 

quoting R.C. 2151.01(A).

{¶48} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody 

of a child to a children services agency if the court determines, by clear and 

convincing evidence, that the child’s best interest would be served by the award 

of permanent custody and, as applicable here, “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 ending on or after March 18, 1999.” R.C. 2151.414(B)(1)(d).

A. R.C. 2151.414(B)(1)(d)

{¶49} In the case at bar, the trial court found that the child has been in the 

agency’s temporary custody for 12 or more months of a consecutive 22-month 

period. Appellant does not dispute the trial court’s R.C. 2151.414(B)(1)(d) 

finding, so we do not address it.

B. BEST INTEREST

{¶50} R.C. 2151.414(D) directs a trial court to consider “all relevant 

factors,” as well as specific factors, to determine whether a child’s best interest 

will be served by granting a children services agency permanent custody. The 
Ross App. No. 22CA15 23

listed factors include: (1) the child’s interaction and interrelationship with the 

child’s parents, siblings, relatives, foster parents and out-of-home providers, and 

any other person who may significantly affect the child; (2) the child’s wishes, as 

expressed directly by the child or through the child’s GAL, with due regard for the 

child’s maturity; (3) the child’s custodial history; (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; and (5) whether 

any factors listed under R.C. 2151.414(E)(7) to (11) apply. 

{¶51} Deciding whether a grant of permanent custody to a children 

services agency will promote a child’s best interest involves a delicate balancing 

of “all relevant [best interest] factors,” as well as the “five enumerated statutory 

factors.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57, 

citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 

56. However, none of the best interest factors requires a court to give it “greater 

weight or heightened significance.” Id. Instead, the trial court considers the 

totality of the circumstances when making its best interest determination. In re 

K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-142, ¶ 

24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general, 

“[a] child’s best interest is served by placing the child in a permanent situation 

that fosters growth, stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos. 

15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of Ridenour, 61 

Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
Ross App. No. 22CA15 24

{¶52} In the case at bar, we believe that the record contains ample, clear 

and convincing evidence to support the trial court’s decision that placing the child 

in the agency’s permanent custody is in his best interest. The record does not 

support a finding that the trial court committed a manifest miscarriage of justice. 

Therefore, the trial court’s judgment is not against the manifest weight of the 

evidence.

1. Child’s Interactions and Interrelationships

{¶53} The evidence shows that Appellant did not consistently visit the 

child and that he has not visited the child since December 7, 2021. When

Appellant did attend visits, he had frequent outbursts during visitations, and these

outbursts frightened the child. 

{¶54} On the other hand, the foster family provides for the child’s wellbeing, and the child appears to have a “strong bond” with the family. 

2. Child’s Wishes

{¶55} The guardian ad litem recommended that the court grant the agency 

permanent custody of the child. In re I.A.-W., 8th Dist. Cuyahoga No. 111217, 

2022-Ohio-1766, ¶ 37; In re S.M., 4th Dist. Highland No. 14CA4, 2014–Ohio–

2961, ¶ 32 (both recognizing that R.C. 2151.414 permits juvenile courts to 

consider a child’s wishes as child directly expresses or through the guardian ad

litem).

3. Custodial History

{¶56} The record shows that the child has been in the agency’s temporary 
Ross App. No. 22CA15 25

custody since August 10, 2017, when he was barely two months old. Since that 

time, the child has lived with the same foster family.

4. Legally Secure Permanent Placement

{¶57} “Although the Ohio Revised Code does not define the term, ‘legally 

secure permanent placement,’ this court and others have generally interpreted 

the phrase to mean a safe, stable, consistent environment where a child’s needs 

will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56, 

citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9, 

2001) (implying that “legally secure permanent placement” means a “stable, safe, 

and nurturing environment”); see also In re K.M., 10th Dist. Franklin Nos. 15AP64 and 15AP-66, 2015-Ohio-4682, ¶ 28 (observing that legally secure permanent 

placement requires more than stable home and income but also requires 

environment that will provide for child's needs); In re J.H., 11th Dist. Lake No. 

2012-L-126, 2013-Ohio-1293, ¶ 95 (stating that mother unable to provide legally 

secure permanent placement when she lacked physical and emotional stability 

and that father unable to do so when he lacked grasp of parenting concepts). 

Thus, “[a] legally secure permanent placement is more than a house with four 

walls. Rather, it generally encompasses a stable environment where a child will 

live in safety with one or more dependable adults who will provide for the child’s 

needs.” In re M.B. at ¶ 56.

{¶58} In the case at bar, the evidence shows that the child needs a legally 

secure permanent placement and that he cannot achieve this type of placement 

without granting the agency permanent custody. The parents do not have a 
Ross App. No. 22CA15 26

stable home for the child and have not adequately resolved the concerns 

regarding domestic violence in the home. Moreover, neither parent maintained 

consistent communication with the agency caseworkers or demonstrated a 

consistent commitment to the child. The parents have not demonstrated that 

they have a stable environment where the child can live in safety with a 

dependable adult who will provide for the child’s needs.

{¶59} Moreover, even if Appellant complied with some aspects of the case 

plan, as we have observed in the past, a parent’s case plan compliance may be 

a relevant, but not necessarily conclusive, factor when a court considers a 

permanent custody motion. In re B.P., 4th Dist. Athens No. 20CA13, 2021-Ohio3148, ¶ 57; In re T.J., 4th Dist. Highland No. 2016-Ohio-163, ¶ 36, citing In re

R.L., 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-3117, ¶ 34 (“although 

case plan compliance may be relevant to a trial court’s best interest 

determination, it is not dispositive of it”); In re S.C., 8th Dist. Cuyahoga No. 

102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a case plan is not, in and of 

itself, dispositive of the issue of reunification”); accord In re K.M., 4th Dist. Ross 

No. 19CA3677, 2019-Ohio-4252, ¶ 70, citing In re W.C.J., 4th Dist. Jackson No. 

14CA3, 2014-Ohio-5841, ¶ 46 (“[s]ubstantial compliance with a case plan is not 

necessarily dispositive on the issue of reunification and does not preclude a grant 

of permanent custody to a children’s services agency”); In re N.L., 9th Dist. 

Summit No. 27784, 2015-Ohio-4165, ¶ 35 (“substantial compliance with a case 

plan, in and of itself, does not establish that a grant of permanent custody to an 

agency is erroneous”). “Indeed, because the trial court’s primary focus in a 
Ross App. No. 22CA15 27

permanent custody proceeding is the child’s best interest, ‘it is entirely possible 

that a parent could complete all of his/her case plan goals and the trial court still 

appropriately terminate his/her parental rights.’ ” W.C.J. at ¶ 46, quoting In re

Gomer, 3d Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-Ohio1723, ¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14, 2008-Ohio-5227, ¶ 

24 (“when considering a R.C. 2151.414(D)(1)(d) permanent custody motion, the 

focus is upon the child’s best interests, not upon the parent’s compliance with the 

case plan”). Thus, a parent’s case plan compliance will not preclude a trial court 

from awarding permanent custody to a children services agency when doing so 

is in the child’s best interest. Id.

{¶60} In the case sub judice, as we noted above, we believe that the 

record contains ample clear and convincing evidence that placing the child in the 

agency’s permanent custody is in his best interests. Furthermore, contrary to 

Appellant’s argument that he “substantially complied with several conditions of 

the case plan,” the trial court specifically found that Appellant “did not complete 

significant portions of the case plan.” 

{¶61} Based upon all of the foregoing evidence, the trial court could have 

been firmly convinced that placing the child in the agency’s permanent custody is 

in the child’s best interest. Therefore, the court’s judgment is not against the 

manifest weight of the evidence.

{¶62} Accordingly, based upon the foregoing reasons, we overrule 

Appellant’s third assignment of error.
Ross App. No. 22CA15 28

FOURTH ASSIGNMENT OF ERROR

{¶63} In his fourth assignment of error, Appellant argues that the trial 

court’s decision is against the manifest weight of the evidence due to the 

agency’s failure to establish that it used reasonable efforts to allow the child to be 

returned to the family’s home. He alleges that the agency did not attempt to help 

him obtain childcare so that he would be able to maintain full-time employment. 

Appellant asserts that his inability to manage both full-time employment and 

taking care of the child was the primary obstacle to reunification and that the 

agency should have done more to help him. He also contends that the agency 

did not present sufficient evidence throughout the proceedings that it otherwise 

used reasonable efforts to reunify the family.

{¶64} When a trial court “removes a child from the child’s home or 

continues the removal of a child from the child’s home,” R.C. 2151.419(A)(1) 

requires a trial court to determine whether a children services agency “made 

reasonable efforts to prevent the removal of the child from the child's home, to 

eliminate the continued removal of the child from the child's home, or to make it 

possible for the child to return safely home.” “In determining whether reasonable 

efforts were made, the child's health and safety shall be paramount.” R.C.

2151.419(A)(1). The agency bears the burden to prove that it has made 

reasonable efforts. R.C. 2151.419(A)(1).

{¶65} However, R.C. 2151.419(A)(1) applies only at “adjudicatory, 

emergency, detention, and temporary-disposition hearings, and dispositional 

hearings for abused, neglected, or dependent children * * *.” C.F., supra, at ¶ 41; 
Ross App. No. 22CA15 29

accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio916, ¶ 72. Thus, “ ‘[b]y its plain terms, the statute does not apply to motions for 

permanent custody brought pursuant to R.C. 2151.413, or to hearings held on 

such motions pursuant to R.C. 2151.414.’ ” C.F. at ¶ 41, quoting In re A.C., 12th 

Dist. Clermont No. CA2004-05-041, 2004-Ohio-5531, ¶ 30. Nonetheless, “[t]his 

does not mean that the agency is relieved of the duty to make reasonable efforts” 

before seeking permanent custody. Id. at ¶ 42. Instead, at prior “stages of the 

child-custody proceeding, the agency may be required under other statutes to 

prove that it has made reasonable efforts toward family reunification.” Id. 

Additionally, “[if] the agency has not established that reasonable efforts have 

been made prior to the hearing on a motion for permanent custody, then it must 

demonstrate such efforts at that time.” Id. at ¶ 43.

{¶66} In the case sub judice, appellant’s appeal does not emanate from 

one of the types of hearings specifically listed in R.C. 2151.419(A): “adjudicatory, 

emergency, detention, and temporary-disposition hearings, and dispositional 

hearings for abused, neglected, or dependent children.” The agency, therefore, 

did not have the burden to prove at the permanent custody hearing that it used 

reasonable efforts to reunify the family, unless it had not previously done so. 

Here, our review of the record reflects that the trial court made multiple 

reasonable efforts findings before the agency filed its permanent custody motion. 

Thus, the court did not need to again find that the agency used reasonable 

efforts before it could grant the agency permanent custody of the child. E.g., In 
Ross App. No. 22CA15 30

re M.H.–L.T., 4th Dist. Washington No. 17CA12, 2017-Ohio-7825, ¶ 64; In re 

S.S., 4th Dist. Jackson Nos. 16CA7 and 16CA8, 2017-Ohio-2938, ¶ 168. 

{¶67} Accordingly, based upon the foregoing reasons, we overrule 

Appellant’s fourth assignment of error.

CONCLUSION

{¶68} Having overruled appellant’s four assignments of error, we affirm 

the trial court’s judgment. 

JUDGMENT AFFIRMED.
Ross App. No. 22CA15 31

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay 

the costs. 

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the 

Ross County Common Pleas Court, Juvenile Division, to carry this judgment into 

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.