[Cite as In re K.J. , 2020-Ohio-1479.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: K.J. C.A. No. 29585

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 17-04-0274

DECISION AND JOURNAL ENTRY Dated: April 15, 2020

HENSAL, Judge. {¶1} Appellant E.S. (“Grandmother”) ap peals the judgment of the Summ it County Court of Common Pleas, Juvenile Division, that terminated the parenta l rights of all alleged fathers of K.J. and awarded permanent custody of the child to Summit Count y Children Services Board (“CSB”). This Court affirms.

I. {¶2} Grandmother is the maternal gr andmother of K.J. (d.o.b. 11/15/0 6). Mother is deceased, and paternity for the child has never been establishe d. Grandmother became the child’s legal custodian after Mother died when K.J. was two years old. CSB received emergency temporary custody of the ch ild in 2017, after Grandmother overd osed in the child’s presence, and no other family member was available to care for the child. CS B filed a complaint alleging that K.J. was a dependent child. Grandmother stipulated to the alle gations in the complaint, and the child was adjudicated dependent . Grandmother filed a motion fo r legal custody.2

{¶3} After a dispositional hearing, K.J. was placed in the temporary custody of the agency. The juvenile court adopted CSB’s case plan which sough t to reunify the child with her prior legal custodian. Grandmot her initially had two hours of monitored visitation and one monitored phone call each week with the child. Based on Grandm other’s inappropriate behavior during visits and phone calls, threats made to the foster famil y, and the tumultuous and disrespectful nature of the relationship between K.J. and Grand mother, visitations and phone calls were suspended. {¶4} K.J.’s initial foster placement disrupted after alleged associa tes of Grandmother went to the foster home and made threats. During the proceedin gs, the child was placed in three

different foster homes and with t wo different maternal relative s in Georgia. CSB moved for permanent custody but withdrew its motion when the child’s gran dfather in Georgia was approved for placement. The child herself moved for permanent custody b ut later withdrew her motion to join in the agency’s pursuit of legal custody to the grandfathe r. The grandfather changed residences, thereby delaying approval by Georgia child protecti ve services for the child’s placement. Because the case had been pending for 23 months, CS B again filed a motion for permanent custody, asserting that the agency could not move for legal custody to the grandfather until Georgia child protective services had approved that dispo sition. After eventual placement with her grandfather, K.J. was returned to foster care after a domestic conflict in that home. Although she was placed with other maternal relatives in Georgi a, that family indicated that it

could not maintain the child in t heir home. K.J. was returned to foster care in Ohio. {¶5} Based on evidence adduced at the permanent custody hearing, the juvenile court found that K.J. had been in the temporary custody of CSB in exc ess of twelve months during the past 22-month period and that it was in the child’s best intere st to terminate all alleged fathers’3

parental rights and place the child in the permanent custody of CSB. Grandmother filed a timely appeal in which she raises one a ssignment of error for review.

II.

ASSIGNMENT OF ERROR [GRANDMOTHER’S] COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING A CONTINUANCE WHEN [GRANDMOTHER] WAS NOT PRESENT FOR THE PERMANENT CUSTODY HEARING, AND STIPULATING TO VARIOUS TESTIMONY, WITHOUT SHOWING SHE DISCUSSED SUCH WITH [GRANDMOTHER]. {¶6} Grandmother argues that trial counsel was ineffective for faili ng to request a continuance of the permanent cus tody hearing after Grandmother did not appear for the hearing. She further argues that counsel was ineffective for stipulating to certain evidence without showing

that counsel had discussed the sti pulations with Grandmother. This Court disagrees. {¶7} To establish a claim of ineffec tive assistance of counsel, Gran dmother must

demonstrate that her trial couns el’s performance was deficient, and that the deficient performance prejudiced her case. Strickland v. Washington , 466 U.S. 668, 687 (1984). A “deficient performance” is one that fell below an objective standard of re asonableness. Id. at 687-688. To establish prejudice, Grandmother m ust demonstrate that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have b een different. Id. at 694. An appellate court may dispose of a claim of ineffective assistanc e of counsel based solely on the aggrieved party’s failure to dem onstrate the requisite prejudic e. In re A.B. , 9th Dist. Wayne Nos. 04CA0017 and 04CA0018, 2004-Ohio-4724, ¶ 7. {¶8} This Court has held that, althoug h a parent has a due process r ight to be present at a permanent custody hearing, the right is not absolute. In re J.S. , 9th Dist. Lorain No. 10CA009908, 2011-Ohio-985, ¶ 17, citing In re J.W. , 9th Dist. Summit No. 24924, 2009-Ohio-4

6957, ¶ 20. Where a parent has received proper notice of the p ermanent custody hearing and is represented by counsel during the proceedings, a parent’s unexp lained failure to attend the hearing does not implicate due process concerns. In re J.S. at ¶ 16. {¶9} In this case, Grandmother is not K.J.’s parent. Grandmother ci tes no authority, and this Court finds none, for the proposition that a former nonpar ent-legal custodian attains the same paramount rights as those accorded to parents. In any event, h owever, Grandmother does not dispute that she was personally served with notice of the perma nent custody hearing. In addition, she was represented by counsel throughout the entire proceeding s. Her attorney asserted that she attempted to call Grandmother the day before the hearing, but t hat Grandmother’s phone number was no longer in service. At the hearing, trial counsel for Gr andmother cross-examined witnesses, presented a case-in-chief on beha lf of Grandmother, and made nu merous objections throughout the proceedings to the admission of certain evidence. Grandmot her’s interests were protected in her unexplained absen ce. Even a ssuming without deciding that c ounsel was ineffective in failing to move for a continuance, under these circumstances, Grandmoth er has not demonstrated that she suffered prejudice as a result of her absence. {¶10} Grandmother additiona lly argues that trial counsel was ineffect ive for stipulating

to the admission of certain exhibits in her client’s absence. Grandmother does not identify the challenged exhibits in her brief. Significantly, a review of t he record indicates that Grandmother’s trial counsel challenged the ad missibility of certain agency ex hibits, including Grandmother’s counseling records from two different providers. In addition, counsel challenged the admissibility

of the entire docket from a ci vil foreclosure action involving Grandmother. {¶11} Trial counsel stipulated to the admissibility of four agency ex hibits, all of which were certified copies of court or ders regarding Grandmother, an d one of which was the instant5

case before the juvenile court. Grandmother asserts that she w ould not have agreed to stipulate to the admission of those four exhibits, but she makes no argument as to how their admission prejudiced her. This Court declines to make such an argument o n her behalf. See First Natl. Bank of Pennsylvania v. Nader , 9th Dist. Medina No. 16CA 0004-M, 2017-Ohio-1482, ¶ 80, citing

Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that can support this assignment of error, it i s not this court’s duty to root it out.”);

see also App.R. 12(A)(2) and App.R. 16(A)(7). {¶12} For the foregoing reasons, Grandmother has not demonstrated tha t trial counsel was ineffective. The assignme nt of error is overruled.

III. {¶13} Grandmother’s sole assignment of error is overruled. The judgm ent of the Summit County Court of Common Pleas, J uvenile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to6

mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CALLAHAN, P. J. CARR, J. CONCUR.

APPEARANCES: DENISE E. FERGUSON, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.