[Cite as In re K.E. , 2020-Ohio-4572.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTERS OF: : JUDGES: : Hon. William B. Hoffman, P.J. K.E. AND D.E.II : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. NEGLECTED/DEPENDENT CHILDREN : : : Case Nos. 2020 AP 02 0004 : 2020 AP 02 0006 : : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Court Division, Case No. 18 JN 00377

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 23, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant Mother

JEFF M. KIGGANS DAN GUINN Tuscarawas County Job and Family Services P. O. Box 804 389 16th Street, SW New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

GERRIT DENHEIJER Guardian ad Litem 222 W. Main Street Ravenna, Ohio 44266Tuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 2

Baldwin, J. {¶1} Appellant, Karlea E., mother of D.E., II and K.E., minor childr en, appeals the decision of the Tuscarawas Court of Common Pleas, Juvenile Division granting permanent custody to the Tuscarawas County Department of Job an d Family Services. Appellee is the Tuscarawas County Department of Job and Family Services.

STATEMENT OF FACTS AND THE CASE {¶2} Prior to the commencement of a hearing on a motion for permanen t custody, Karlea E., through her counsel, stated that she “under stands she's not in a situation right now where the children can be placed back with her" and she asked that the court consider “grandma” as a placement. After a hearing, t he trial court granted appellee’s motion for permanent custody and determined placemen t with Teresa Green, presumably “grandma,” was not in the children’s best interest. Appellant now claims the trial court failed to engage in a colloquy with her regarding t he impact of her statement and that her trial counsel was ineffective for not demanding th at the court insure that she understood the consequences of her position and for not present ing her testimony. {¶3} Appellee filed a complaint on December 5, 2018 in this matter c ontending the two minor children were dependent as a result of their pare nt’s use of illegal drugs and the living circumstances of the family. The guardian ad li tem filed a lengthy and comprehensive report, recommending that the children remain in foster care and that the parents complete a case plan to resolve the problems that led t o the removal of the children from the home, with a focus on their drug addiction. The children were placed in the temporary custody of appellee and the parents were provided a reunification plan.Tuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 3

{¶4} The father of the children had little subsequent contact with t he caseworker and ended his participa tion. He tested positive for illegal dr ugs on January 29, 2019 and he did nothing to demonstrate that he had resolved his addictio n. In her final report to the court, the guardian ad litem concluded that “Drew has done noth ing on his Case Plan and has not cooperated with the agency in any way, after admitting to his relapse on Meth in January, 2019.” {¶5} Karlea, the mother, worked toward the return of the children bu t refused to break contact with the father, even after she was warned that c ontinued contact with the father would jeopardize her future with the children, given his failure to address his drug

addiction. Karlea insisted that she has had no further contact with the father, but the testimony at the hearing on the permanent custody motion contra dicted her statements

as she had been seen with Drew. {¶6} The guardian ad litem noted that the mother had worked on her c ase plan, but had serious concerns regarding the mother’s continued conta ct with the father and illicit drugs: Karlea insists she and Drew are not together, yet we have polic e reports in February, March, and April, 2019, when Drew was at h er home; 2 of those reports involve other individuals being at the Evans home who overdosed; one of those reports indicate both Drew and Karlea g ave the person CPR and Narcan. Thus not only do we have evidence that D rew is in the house, but, by their own admission, they keep Narcan in the house, thus there is obviously still drug use in the home.Tuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 4

{¶7} Karlea has reported to the Income Maintenance Department of TJF S that she is pregnant, but has denied that she is pregnant when quest ioned by the Children’s Services caseworker, strongly suggesting that she is lying to o ne department at TJFS. Finally, the guardian noted that she was unemployed as of the d ate of her report and unable to provide for herself or her children. {¶8} On October 30, 2019, appellee requested permanent custody of th e children after the parents failed to complete the terms of the reunification plan. The trial court scheduled a hearing for January 9, 2020 for the motion to modify disposition to permanent custody. On November 26, 2019, the paternal grandmot her, Teresa Green, filed a motion to intervene which was denied during an Annual R eview hearing on December 3, 2019. {¶9} The trial court conducted the hearing on January 9, 2020 as sch eduled with the mother and grandmother in attendance with counsel. The fat her did not attend the hearing. Despite the fact that grandmother’s motion to interve ne in the matter had been denied, the trial court permitted her to testify in support of her request that the children be placed with her. {¶10} At the opening of the hearing, counsel for mother stated that h is client was “not in a situation right now where the children can be placed back with her” and was “willing to stipulate to the motion for permanent custody, that the children cannot be placed with her at this time” and she asked the court to “to co nsider grandma as a placement” referring to the paternal grandmother. {¶11} The caseworker testified on behalf of the state and the grandmo ther testified in support of her request that she receive custody of the child ren. The trial court took theTuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 5

matter under advisement and issued an order granting the motion for permanent custody, holding that “the Court finds that [K.E.] and [D.E.] II cannot and should not be placed with either parent within a reasonable time. This evidence supports a finding that despite diligent, reasonable efforts and planning by the Tuscarawas Cou nty Job and Family Services to remedy the problems which caused removal of the chi ldren, said parents have failed continually and repeatedly to substantially remedy the c onditions causing removal.” The Court also found that “Said parents have demonstrated a lac k of commitment toward their children and have failed to provide an adequate home for the children at this time and cannot do so within a year of this litigation.” {¶12} Appellant, Karlea E. filed a notice of appeal and has submitted two assignments of error: {¶13} “I. THE COURT ERRED IN FINDING THAT APPELLANT STIPULATED TO

THE TERMINATION OF HER PARENTAL RIGHTS WITHOUT MAKING INQUIRY.” {¶14} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.” {¶15} In her first assignment of error, Karlea contends the court err ed by failing to engage her in a colloquy to confirm that she knowingly, intelli gently and voluntarily stipulated to permanent custody to the agency. We have reviewed the record and concluded that Karlea did not stipulate to termination of her p arental rights, or agree that the appellee’s assumption of permanent custody was in the best interest of the children. She agreed that she was not “in a situation right now where th e children can be placed back with her” and that trial court consider “consider grandma as a placement," leaving the trial court to determine whether termination of her parenta l rights was warranted andTuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 6

what disposition would be in the best interest of the children. In the context of this case, the trial court had no obligation to engage in a review of Karl ea’s rights. {¶16} Juvenile Rule 29 does provide express requirements for review o f a party’s rights prior to accepting a waiver of those rights at an adjudi catory hearing. The adjudicatory hearing in the case below occurred in December 201 8 and the matter presently before this court is the result of a dispositional he aring conducted in January 2020, so the requirements of Juvenile Rule 29 are inapplicable. At this stage the trial court is guided by Juv.R. 34 and R.C. 2151.414 to consider all releva nt and material evidence, including, but not limited to, hearsay, opinion, and documentar y evidence to determine whether permanent custody is in the best interest of the childr en. The latter Rule does not contain the same language as Juv.R. 29 regarding a review of ri ghts prior to acceptance of a plea and we are not inclined to add such a requirement. {¶17} This court and others have required that the court engage a par ent in a discussion of rights when a parent surrenders a child, but the parents in those cases offered a comprehensive admission surrendering their children, agreeing that all of the requirements of the Revised Code had been fulfilled for the gra nt of permanent custody and that it was in the best interest of the children to be plac ed in the permanent custody

of the state. In re Foresha/Kinkel Children, 5th Dist. Stark No. 2003CA00364, 2004-Ohio578, ¶ 5; In re B.Y., 9th Dist. Wayne No. 16AP0071, 2017-Ohio-833, ¶¶ 13-14; In the matter of Isreal Y., 6th Dist. Lucas No. L-07-1030, 2007-Ohio-3685, ¶ 7. No such stipulation exists in this case. Karlea agreed only that she i s unable to accept custody at the time of the hearing and, rather than agreeing to permanent custody or that permanent custody was in the children’s best interest, she requested that Teresa Green, theTuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 7

children’s’ paternal grandmother, be granted custody. After sh e offered this limited stipulation, the trial court proceeded with the dispositional h earing. {¶18} “Because the proceedings in question did not concern adjudicato ry but, rather, dispositional matters, Juv.R. 29 does not apply. In re C.M. at ¶ 36 (“Accordingly, because a hearing to modify temporary custody to permanent cust ody is a dispositional hearing, Juv.R. 29 is inapposite.”).” In re A.J., 10th Dist. Franklin No. 14AP-284, 2014- Ohio-5046, ¶ 26. “Juv.R. 34, pertaining to dispositional heari ngs, does not require the court to engage in a colloquy with a parent in an R.C. 2151.414 proceeding, which this proceeding was, such as that required by Juv.R 29 at adjudicato ry hearings.” In re Lakes , 2nd Dist. No. 19028, 149 Ohio App.3d 128, 2002-Ohio-3917, 776 N .E.2d 510, ¶ 34. {¶19} We find that the trial court did not err by not engaging in a r eview of Karlea’s rights after she offered a limited stipulation as the Revised C ode, the Juvenile Rules and the relevant precedent do not require such a colloquy in the co ntext of this case. {¶20} Appellant’s first assignment of error is overruled.

INEFFECTIVE ASSISTANCE {¶21} Appellant argues she was denied effective assistance of counsel because her trial attorney did not insist that she be questioned by the trial court to insure that she understood “the rights she was giving up and the potential for what could occur” and because trial counsel did not present her testimony in support of her request that the children be placed with Teresa Green. {¶22} With regard to the alleged obligation of trial counsel to insis t that the trial court engage in a colloquy with Karlea, we held in the disposit ion of the first assignmentTuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 8

of error that no such review is required. “Counsel was, therefo re, not derelict in not asking the magistrate to engage [Karlea] in such a colloquy.” In re Lakes, supra , at ¶ 34 {¶23} With regard to the alleged failure to present testimony, Appell ant has the burden of proof to establish ineffective assistance of counsel “because in Ohio, a properly licensed attorney is presumed competent.” (Citations omitted.) State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62 (2006). Judicial scrutiny of counsel's performance must be highly deferential. The defendant must over come the presumption that, under the circumstances, the challenged action might be c onsidered sound trial strategy. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant is not deprived of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible tr ial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319, 528 N.E.2d 523, 539, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. {¶24} In State v. Davis, 2020-Ohio-309 (Ohio), ¶10 the Supreme Court of Ohio reaffirmed the appellant’s burden for establishing that she suf fered from ineffective

assistance of counsel: In order to prevail on an ineffective-assistance-of-counsel cla im, a defendant must prove that counsel's performance was deficient a nd that the defendant was prejudiced by counsel's deficient performance. Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373; Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Thus, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and that there exists a reasonable probab ility that, but for counsel's e rror, the resultTuscarawas County, Case No. 2020 AP 02 0004, 2020 AP 02 0006 9

of the proceeding would have been different. See Bradley at paragraphs two and three of the syllabus. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” Id . at 142, 538 N.E.2d 373, quoting Strickland at 694, 104 S.Ct. 2052. {¶25} Counsel’s decision not to present Karlea’s testimony is a matte r within the purview of trial tactics that is not subject to review in this context. State v. Coulter , 75 Ohio App.3d 219, 230, 598 N.E.2d 132 4, 1331 (12th Dist.1992). Fina lly, even if any of these matters could be considered ineffective assistance, appellant h as failed to provide persuasive evidence t hat there exists a rea sonable probability that, but for counsel's alleged error, the result of the proceeding would have been dif ferent. {¶26} Appellant’s second assignment of error is denied. {¶27} The decision of the Tuscarawas County Court of Common Pleas, Ju venile Division, is affirmed.

By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.