[Cite as In re K.M.D., 2012-Ohio-755.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

In the Matter of: : 

 : 

K.M.D. : 

 : Case No. 11CA3289 

Adjudicated Dependent Child. : 

 : DECISION AND 

 : JUDGMENT ENTRY

 : 

 : Filed: February 24, 2012 

____________________________________________________________________ 

APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Appellant. 

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross 

County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee. 

____________________________________________________________________ 

Kline, J.: 

{¶1} M.D. (hereinafter “Father”) appeals the judgment of the Ross County 

Court of Common Pleas, Juvenile Division. Following a hearing, the trial court entered 

an order that granted Ross County Job and Family Services’ (hereinafter the “Agency”) 

motion for permanent custody of Father’s daughter, K.M.D. (hereinafter “Child”). On 

appeal, Father first contends that the trial court erred when it determined that granting 

the Agency’s motion for permanent custody of Child was in Child’s best interest. 

Because there is competent, credible evidence supporting the trial court’s decision, we 

disagree. Next, Father contends that the trial court erred by denying his motions for a 

continuance so that the Agency could investigate Child’s paternal grandfather as a 

placement option for Child. Because the trial court did not abuse its discretion when it 
Ross App. No. 11CA3289 2 

denied Father’s motions for a continuance, we disagree. Next, Father contends that the 

trial court erred by failing to hold the Agency in contempt for not completing its home 

investigation of Child’s paternal grandfather, despite the magistrate’s order that the 

Agency should conduct the investigation. Because Father cannot show that the trial 

court’s failure to hold the Agency in contempt was plain error, we disagree. Next, 

Father contends that the trial court erred by not placing Child with her paternal 

grandfather. Because (1) placing Child with her paternal grandfather was not an issue 

before the trial court and (2) competent, credible evidence supports the trial court’s 

decision to grant the Agency’s motion for permanent custody of Child, we disagree. 

Next, Father contends that the trial court erred by failing to find that the Agency did not 

make reasonable efforts to investigate Child’s paternal grandfather as a potential 

placement for Child. We disagree for two reasons. First, the Agency did not have a 

statutory duty to investigate Child’s paternal grandfather as a potential placement for 

Child before obtaining permanent custody. And second, competent, credible evidence 

supports the trial court’s finding that the Agency did make reasonable efforts to place 

Child with a relative. Next, Father contends that the trial court erred in finding that 

Child’s paternal grandfather did not show any interest in working with the Agency. 

Because competent, credible evidence supports the trial court’s finding that Child’s 

paternal grandfather did not show any interest in cooperating with the Agency when the 

Agency contacted him shortly after Child’s birth, we disagree. Next, Father contends 

that the trial court erred when it determined that, even though the Agency did not 

complete a home investigation of Child’s paternal grandfather, Child’s paternal 

grandfather introduced all relevant information when he testified at the July 14, 2011 
Ross App. No. 11CA3289 3 

permanent custody hearing. Because Father has not articulated any additional 

information that could have been introduced at the hearing had the Agency conducted 

its home investigation of Child’s paternal grandfather, we disagree. Finally, Father 

contends that he received ineffective assistance of counsel at the permanent custody 

hearing. Because Father cannot demonstrate that he was prejudiced by any alleged 

deficient performance by his trial counsel, we disagree. 

{¶2} Accordingly, we affirm the judgment of the trial court. 

I. 

{¶3} H.S. (hereinafter “Mother”) gave birth to Child in a motel bathroom on 

October 1, 2010. Child was born addicted to opiates due to Mother’s prenatal drug use. 

On October 4, 2010, Child was placed in the temporary custody of the Agency, and 

Child has been in the continuous custody and care of the Agency since that time. 

{¶4} Shortly after her birth, Child was taken to a hospital. Child spent the first 

several weeks of her life suffering from withdrawal due to her addiction to opiates. She 

was released from the hospital on December 14, 2010, and she was placed into the 

care of her foster parents, R.P. and T.P. Child has lived with her foster parents since 

her release from the hospital. 

{¶5} Mother and Father have had essentially no contact with Child since her 

birth. The record indicates that Mother was arrested near the end of October 2010, on a 

drug charge, and she was released from jail on June 6, 2011. Mother’s contact with 

Child has been sporadic since her release from jail. The Agency developed a case plan 

for Mother. The goals of the case plan were (1) for Mother to seek substance abuse 

counseling and remain drug free and (2) for Mother to meet Child’s basic needs. As of 
Ross App. No. 11CA3289 4 

the date of the permanent custody hearing, Mother had not completed her case plan, 

and she had not maintained regular contact with the Agency. Mother did not attend the 

permanent custody hearing, and Mother did not provide the Agency with an address 

where she could be contacted. Father was in prison on a felony drug conviction at the 

time of Child’s birth. Father’s sentence runs until February 17, 2013. Father has two 

previous drug convictions. Additionally, Mother and Father are the parents of two other 

children. Mother and Father had their parental rights to those children involuntarily 

terminated in April of 2010. 

{¶6} On December 1, 2010, Child was adjudicated an “abused child” based on 

Mother’s prenatal drug use. And on December 4, 2010, the Agency moved for 

permanent custody of Child under R.C. 2151.413. A hearing on the permanent custody 

motion was held before a magistrate on July 14, 2011. On August 8, 2011, the 

magistrate issued a decision granting the Agency’s motion for permanent custody. 

Father filed timely objections to the magistrate’s decision. On September 8, 2011, the 

trial court entered an order requesting clarification of certain issues from the magistrate, 

and the magistrate issued her clarification decision on September 9, 2011. 

{¶7} On September 15, 2011, the trial court issued an Entry, which 

incorporated and adopted both the magistrate’s August 8, 2011 and September 9, 2011 

decisions. The September 15, 2011 Entry terminated Mother and Father’s parental 

rights and responsibilities as to Child and granted the Agency’s motion for permanent 

custody of Child. 
Ross App. No. 11CA3289 5 

{¶8} Father appeals and asserts the following assignments of error:1 I. “THE 

TRIAL COURT ERRED BY FINDING THAT PERMANENT CUSTODY WAS IN THE 

BEST INTEREST OF THE CHILD.” II. A. “THE TRIAL COURT ERRED IN REFUSING 

TO GRANT A CONTINUANCE ON TWO (2) OCCASIONS SO THAT APPELLANT’S 

FATHER (‘GRANDFATHER’) COULD BE SERIOUSLY CONSIDERED AS A 

PLACEMENT AND/OR CUSTODIAN FOR THE MINOR CHILD.” II. B. “THE TRIAL 

COURT ERRED IN FAILING TO HOLD CHILDREN’S SERVICES IN CONTEMPT FOR 

FAILURE TO COMPLY WITH THE COURT’S ORDER TO CONDUCT A HOME STUDY 

RELATED TO GRANDFATHER.” II. C. “THE TRIAL COURT ERRED IN REFUSING 

TO PLACE THE MINOR CHILD WITH APPELLANT’S FATHER (‘GRANDFATHER’) AS 

A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. D. “THE TRIAL COURT 

ERRED IN FAILING TO FIND THAT CHILDREN’S SERVICES DID NOT MAKE 

REASONABLE EFFORTS TO INVESTIGATE APPELLANT’S FATHER 

(‘GRANDFATHER’) AS A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. E. 

“THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S FATHER 

(‘GRANDFATHER’) DID NOT SHOW ANY INTEREST IN WORKING WITH 

CHILDREN’S SERVICES.” II. F. “THE TRIAL COURT ERRED IN FINDING THAT 

APPELLANT’S FATHER (‘GRANDFATHER’) INTRODUCED ALL RELEVANT 

INFORMATION AND EVIDENCE THROUGH HIS TESTIMONY AT THE HEARING.” 

And, III. “THE FATHER M.D. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.” 

 

1

 We note that, in his brief, Father lists his second assignment of error as “ISSUES 

RELATED TO APPELLANT’S FATHER (‘GRANDFATHER’)”. And under that 

assignment of error, Father lists six reasons (lettered A – F) why the trial court’s 

decision should be reversed. We will list all six arguments here, and we will address 

each argument in the section below devoted to Father’s second assignment of error. 
Ross App. No. 11CA3289 6 

II. 

{¶9} In his first assignment of error, Father argues that the trial court erred by 

finding that permanent custody was in the best interest of Child. 

{¶10} A parent’s “interest in the care, custody, and control of [his or her] children 

‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 113 Ohio St.3d 

88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 8, quoting Troxel v. Granville, 530 U.S. 57, 65, 

120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Further, “[p]ermanent termination of parental 

rights has been described as ‘the family law equivalent of the death penalty in a criminal 

case.’” In re D.A., 2007-Ohio-1105, ¶ 10, quoting In re Smith, 77 Ohio App.3d 1, 16, 

601 N.E.2d 45 (6th Dist.1991). As such, “parents ‘must be afforded every procedural 

and substantive protection the law allows.’” In re D.A., 2007-Ohio-1105, ¶ 10, quoting 

In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). “‘[I]t is plain that the natural 

rights of a parent are not absolute, but are always subject to the ultimate welfare of the 

child, which is the polestar or controlling principle to be observed.’” In re Cunningham, 

59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 

(Fla.App.1974). 

{¶11} “A public or private child-placement agency may file a motion under R.C. 

2151.413(A) to request permanent custody of a child after a court has committed the 

child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re 

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. Once a motion is filed 

under R.C. 2151.413(A), the court must follow R.C. 2151.414. Id.

{¶12} A trial court may grant the agency’s motion for permanent custody if it 

determines by clear and convincing evidence that: (1) one of the four conditions outlined 
Ross App. No. 11CA3289 7 

in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C. 

2151.414(B)(1); In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-1429, ¶ 13. “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.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986). 

Thus, “[i]t 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.” Id.

{¶13} We will not reverse the judgment of the trial court in a permanent custody 

case when some competent, credible evidence supports the trial court’s findings. In re 

Marano, 4th Dist. No. 04CA30, 2004-Ohio-6826, ¶ 12. “We give the trial court’s final 

determination ‘the utmost respect, given the nature of the proceeding and the impact 

the court’s determination will have on the lives of the parties concerned.’” Id., quoting In 

re Alfrey, 2d Dist. No. 01CA0083, 2003-Ohio-608, ¶ 102. 

{¶14} Accordingly, we must determine if competent, credible evidence supports 

the trial court’s findings regarding both the best interest of the child and the 

requirements of R.C. 2151.414(B)(1)(a)-(d). In re D.N., 4th Dist. No. 11CA3213, 2011-

Ohio-3395, ¶ 17. 

A. 

{¶15} First, we must address whether Father has waived any arguments under 

his first assignment of error. “The juvenile rules require written objections to a 

magistrate's decision to be filed within 14 days of the decision.” In re D.S., 12th Dist. 

Nos. CA2010-08-058, CA2010-08-064, & CA2010-08-065, 2011-Ohio-1279, ¶ 31, citing 
Ross App. No. 11CA3289 8 

Juv.R. 40(D)(3)(b)(i). Under Juv.R. 40(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a 

party shall not assign as error on appeal the court’s adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a finding of fact or conclusion 

of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or 

conclusion as required by Juv.R. 40(D)(3)(b).” This “embodies the long-recognized 

principle that the failure to draw the trial court’s attention to possible error when the error 

could have been corrected results in a waiver of the issue for purposes of appeal.” In re 

D.S., 2011-Ohio-1279, ¶ 31, citing In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 

694 (1st Dist.1998). Objections under Juv.R. 40(D)(3)(b)(i) “must be ‘specific’ and must 

‘state with particularity all grounds for objection.’” In re D.S., 2011-Ohio-1279, ¶ 31, 

quoting Juv.R. 40(D)(3)(b)(ii). The “[f]ailure to file specific objections is treated the 

same as the failure to file any objections.” In re D.R., 12th Dist. No. CA2009-01-018, 

2009-Ohio-2805, ¶ 29. See also In re D.N., 2011-Ohio-3395, ¶ 18. 

{¶16} In challenging the trial court’s determination that permanent custody is in 

Child’s best interest, Father argues that the trial court erred in finding that “[Child] 

cannot and should not be reunited with either parent.” Sept. 15, 2011 Entry (adopting 

and incorporating Magistrate’s Aug. 8, 2011 Decision). Father did not specifically object 

to this finding before the trial court. Consequently, we review this particular argument 

under a plain error standard. 

{¶17} “In appeals of civil cases, the plain error doctrine is not favored and may 

be applied only in the extremely rare case involving exceptional circumstances where 

error, to which no objection was made at the trial court, seriously affects the basic 

fairness, integrity, or public reputation of the judicial process, thereby challenging the 
Ross App. No. 11CA3289 9 

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 

116, 679 N.E.2d 1099 (1997), syllabus. 

{¶18} We conclude that the trial court did not err, much less commit plain error, 

in finding that Child cannot and should not be reunited with either parent. Initially, we 

note that the determination of whether a child cannot or should not be reunited with 

either parent is not part of the best-interest-of-the-child analysis in a permanent custody 

case. As indicated above, under R.C. 2151.414(B)(1), a trial court may grant the 

agency’s motion for permanent custody if it determines by clear and convincing 

evidence that: (1) one of the four conditions outlined in R.C. 2151.414(B)(1)(a)-(d) 

applies; and (2) it is in the child’s best interest. 

{¶19} Specifically, R.C. 2151.414(B)(1)(a)-(d) provides as follows: 

Except as provided in division (B)(2) of this section, the 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 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, or 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 if, as 
Ross App. No. 11CA3289 10 

described in [R.C. 2151.413(D)(1)], the child was previously in the 

temporary custody of an equivalent agency in another state, 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, as described [R.C. 

2151.413(D)(1)], the child was previously in the temporary custody of an 

equivalent agency in another state. (Emphasis added.) 

{¶20} Here, R.C. 2151.414(B)(1)(a) applies, and the determination of whether 

Child cannot or should not be reunited with her parents is part of that analysis (i.e., it is 

not part of the best-interest-of-the-child analysis). 

{¶21} As of July 14, 2011 hearing, Child “[was] not abandoned or orphaned, 

[had] 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, or [had] not been in the temporary custody of one or more 

public children services agencies or private child placing agencies for twelve or more 
Ross App. No. 11CA3289 11 

months of a consecutive twenty-two-month period if, as described in [R.C. 

2151.413(D)(1)], the child was previously in the temporary custody of an equivalent 

agency in another state.” R.C. 2151.414(B)(1)(a). 

{¶22} Furthermore, the trial court found that “[Child] cannot and should not be 

reunited with either parent.” Sept. 15, 2011 Entry (adopting and incorporating 

Magistrate’s Aug. 8, 2011 Decision). 

{¶23} The record supports the trial court’s finding that Child cannot and should 

not be reunited with either parent based on R.C. 2151.414(E). That statute enumerates 

circumstances under which a trial court must find that a child cannot be placed with 

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

Specifically, R.C. 2151.414(E) provides, in relevant part, as follows: 

If the court determines, by clear and convincing evidence, * * * that one or 

more of the following exist as to each of the child’s parents, the court shall 

enter a finding that the child cannot be placed with either parent within a 

reasonable time or should not be placed with either parent: * * * (4) The 

parent has demonstrated a lack of commitment toward the child by failing 

to regularly support, visit, or communicate with the child when able to do 

so, or by other actions showing an unwillingness to provide an adequate 

permanent home for the child; * * * (12) The parent is incarcerated at the 

time of the filing of the motion for permanent custody or the dispositional 

hearing of the child and will not be available to care for the child for at 

least eighteen months after the filing of the motion for permanent custody 
Ross App. No. 11CA3289 12 

or the dispositional hearing. (Emphasis added.) R.C. 2151.414(E)(4) & 

(12). 

{¶24} Regarding Father, R.C. 2151.414(E)(12) applies. Father’s release date 

from prison is February 17, 2013, which is approximately nineteen (19) months from the 

July 14, 2011 hearing. Therefore, as of the July 14, 2011 hearing, “[Father was] 

incarcerated at the time of * * * the dispositional hearing of the child and [would] not be 

available to care for the child for at least eighteen months after * * * the dispositional 

hearing.” R.C. 2151.414(E)(12). 

{¶25} In challenging the trial court’s finding that Child cannot and should not be 

reunited with either parent, Father argues that the trial court failed to consider the 

possibility of Father obtaining judicial release from prison. Father previously applied for 

judicial release, but the trial court denied his application. However, based on the trial 

court’s statements when denying his application, Father asserts the trial court will 

“seriously consider” granting a second application once Father completes a program 

that Father has enrolled in while in prison. Appellant’s Brief at 10-11. Thus, Father 

argues that he could be out of prison within months of the hearing, and, therefore, 

reunited with Child in a reasonable time. 

{¶26} Father’s argument, however, is based on pure speculation regarding the 

action the trial court may or may not take in considering Father’s application for judicial 

release. There is no guarantee (1) that Father will complete the program he enrolled in 

or (2) that, even if he does complete the program, he will obtain judicial release from 

prison. Thus, Father cannot show that he could be or should be reunited with Child in a 

reasonable time. 
Ross App. No. 11CA3289 13 

{¶27} Regarding Mother, R.C. 2151.414(E)(4) applies. Child was born addicted 

to opiates based on Mother’s drug use during her pregnancy. As a result, Child was 

adjudicated an abused child. Additionally, Mother has not maintained contact with the 

Agency regarding her efforts to rehabilitate her substance abuse problems. Mother’s 

contact with Child has been sporadic at best. As of the July 14, 2011 hearing, Mother 

did not have a known address. Furthermore, Mother did not attend the July 14, 2011 

hearing. Consequently, “[Mother] has demonstrated a lack of commitment toward the 

child by failing to regularly support, visit, or communicate with the child when able to do 

so, or by other actions showing an unwillingness to provide an adequate permanent 

home for the child[.]” R.C. 2151.414(E)(4). 

{¶28} Thus, the record demonstrates that R.C. 2151.414(E)(12) applied to 

Father, and R.C. 2151.414(E)(12) applied to Mother. As a result, we conclude that the 

trial court did not err, much less commit plain error, in finding that Child cannot and 

should not be reunited with either parent. Therefore, R.C. 2151.414(B)(1)(a) of the 

permanent-custody analysis was satisfied. 

B. 

{¶29} We now turn to the remainder of Father’s argument that the trial court 

erred in finding that permanent custody was in Child’s best interest. 

{¶30} Father contends that the trial court erred because the four requirements of 

R.C. 2151.414(D)(2) cannot be satisfied. Father’s argument, however, ignores the plain 

language of the statute. R.C. 2151.414(D)(2) provides, in pertinent part, as follows: “If 

all of the following apply, permanent custody is in the best interest of the child and the 

court shall commit the child to the permanent custody of a public children services 
Ross App. No. 11CA3289 14 

agency or private child placing agency[.]” (Emphasis added.) Under the plain language 

of the statute, if the requirements of R.C. 2151.414(D)(2) are satisfied, then the trial 

court must grant the permanent custody motion. That does not mean, however, that 

permanent custody is in a child’s best interest only if the requirements of R.C. 

2151.414(D)(2) are satisfied. Thus, Father’s arguments that the trial court erred based 

on an inability to satisfy the requirements of R.C. 2151.414(D)(2) must fail. 

{¶31} Here, R.C. 2151.414(D)(1) governs the best-interest-of-the-child analysis, 

and that statute provides as follows: 

In determining the best interest of a child * * * 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 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 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 [R.C. 2151.413(D)], the 
Ross App. No. 11CA3289 15 

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 [R.C. 2151.414(E)(7) to (11)] in relation 

to the parents and child. 

{¶32} The evidence supports the trial court’s determination that permanent 

custody is in Child’s best interest. As indicated above, Child spent the first several 

weeks of life in the hospital as she suffered from withdrawal caused by being born 

addicted to opiates. Child was then placed in the care of her foster parents, R.P. and 

T.P., and Child has been in her foster parents’ care ever since her release from the 

hospital. Child’s foster mother, T.P., testified that Child has been thriving in her foster 

parents’ home. Child’s caseworker also testified that Child was thriving while in the care 

of her foster parents. T.P. testified that Child has bonded with her entire foster family 

(i.e., T.P., R.P., Child’s foster brother, and Child’s foster grandmother). T.P. also 

testified that Child has exceeded developmental milestones while in the care of her 

foster parents. Furthermore, T.P. testified that she and R.P. own their home and are 

financially secure. Additionally, T.P. testified that she and R.P. plan on adopting Child. 

{¶33} The trial court determined that Child “[was] in need of a legally secure 

permanent placement which [could not] be obtained without a grant of permanent 

custody to the agency.” Sept. 15, 2011 Entry (adopting and incorporating Magistrate’s 

Aug. 8, 2011 Decision). The court also determined that “[t]he conditions giving rise to 
Ross App. No. 11CA3289 16 

the child’s removal have not been remedied.” Id. at 1. And although Child is too young 

to express her wishes, Child’s guardian ad litem recommended that the trial court grant 

the Agency’s motion for permanent custody of Child. 

{¶34} Additionally, Child has had little or no interaction with Mother, Father, or 

any relative of Mother or Father since birth. Father has been in prison, and the 

evidence demonstrated that, other than filling out some paperwork, Father did little to 

contact the Agency regarding Child. Mother’s involvement in Child’s life has been 

minimal. And in addition to not attending the permanent custody hearing, Mother’s 

address was not known at time of the hearing. 

{¶35} Father argues at length that the trial court should have placed Child in the 

temporary care of A.B., Child’s paternal grandfather. A.B. testified at the hearing that 

he owns his home and that he has been employed with the City of Columbus for many 

years. A.B. also testified that he was willing to care for Child. The evidence, however, 

demonstrates that A.B. had done little, if anything, to initiate contact with Child, despite 

being contacted regarding Child shortly after Child’s birth. In fact, A.B. admitted at the 

hearing that he never “went to visit [Child] or [tried] to arrange a visit with [Child.]” Tr. at 

52-53. Additionally, the trial court found that A.B. did not cooperate with the Agency’s 

attempts to investigate A.B. as a possible placement option prior to the July 14, 2011 

hearing. (We will discuss Father’s challenges to this finding in more detail under 

Father’s second assignment of error.) Moreover, the Agency investigated the possibility 

of placing Child with other relatives, but the Agency was unable to find a suitable 

placement for Child. 
Ross App. No. 11CA3289 17 

{¶36} Considering the reasons stated above, there was competent credible 

evidence to support the trial court’s conclusion that granting the permanent custody 

motion was in Child’s best interest. Accordingly, we overrule Father’s first assignment 

of error. 

III. 

{¶37} In his second assignment of error, Father advances several arguments 

that the trial court erred based on “issues” relating to A.B. For ease of analysis, we will 

address Father’s arguments relating to A.B. in a different order than Father lists them in 

his Appellant’s brief. 

A. 

{¶38} We begin with Father’s argument that the trial court erred in finding that 

A.B. “did not show any interest in working with [the Agency] when contacted in October 

2010.” Magistrate’s Aug. 8, 2011 Dec. at 1. As stated above, we will uphold the trial 

court’s finding as long as some competent, credible evidence supports it. In re Marano, 

2004-Ohio-6826, ¶ 12. 

{¶39} Shortly after Child’s birth, the caseworker assigned to Child’s case 

explored relative placement for Child, and she contacted A.B. in October 2010, to obtain 

information about A.B. The caseworker testified that A.B. would not provide her with the 

information she requested. Instead, A.B. informed the caseworker that she could get 

his information from “Franklin County.” (Presumably, A.B. was referring to information 

that Franklin County Job and Family Services would have as a result of the termination 

of Mother and Father’s parental rights for their other two children in that county.) The 

caseworker also testified that, during this conversation, A.B. refused to provide either 
Ross App. No. 11CA3289 18 

his date of birth or his social security number to assist the caseworker in her effort. 

Furthermore, the caseworker testified that Franklin County officials did not have any 

information on A.B. 

{¶40} A.B. claimed that he did not remember the conversation with the 

caseworker. A.B. testified that, at some point, he contacted the Agency, but he got the 

“run around.” Tr. at 45-46. A.B., however, could not name anyone at the Agency with 

whom he spoke. Additionally, when asked whether he told the caseworker that she 

could get his information from Franklin County, A.B. testified, “Maybe I did. But I don’t 

remember saying it.” Tr. at 53. The trial court determined that “[a]t best, [A.B.’s] 

testimony was confused and inconsistent, if not evasive.” Sept. 15, 2011 Entry at 2. 

{¶41} Thus, there was some competent credible evidence to support the trial 

court’s finding that A.B. “did not show any interest in working with [the Agency] when 

contacted in October 2010[.]” Consequently, we cannot conclude that the trial court 

erred when it made this finding. 

B. 

{¶42} Next, we consider Father’s arguments that the trial court erred by failing to 

find that the Agency did not make reasonable efforts to investigate A.B. as a potential 

placement for Child. 

{¶43} We recently rejected a similar argument in In re M.O., 4th Dist. No. 

10CA3189, 2011-Ohio-2011. As we observed, “a public children services agency has 

no statutory duty to make ‘reasonable efforts’ to place the child with an extended family 

member before it can obtain permanent custody of the child.” Id. at ¶ 16. See also In re 

Warren, 5th Dist. No. 2007CA00054, 2007-Ohio-5703, ¶ 23 (“[T]he Department’s duty 
Ross App. No. 11CA3289 19 

to use reasonable efforts applies only to efforts to avoid removal of a child from her 

home or to reunify the child with her family, following removal. The Department is under 

no statutory duty to make reasonable efforts to place a child with relatives although 

relative placement is to be investigated.”); In re D.N., 2011-Ohio-3395, ¶ 24. 

{¶44} We also note that the trial court determined that the Agency did make 

reasonable efforts to place Child with a relative. As indicated above, the Agency 

attempted to contact A.B. to investigate potentially placing Child with him, but A.B. was 

not cooperative. Additionally, the caseworker was unable to obtain information 

regarding A.B. from Franklin County officials, despite A.B.’s assertion that the Agency 

could obtain information about him from “Franklin County.” The evidence also shows 

that the Agency contacted one of Child’s aunts. The aunt was initially cooperative, but 

then she cancelled a scheduled home visit due to illness. And the Agency was unable 

to reschedule the visit. Additionally, the record indicates that the Agency investigated 

placing Child with her maternal grandmother. Child’s maternal grandmother, however, 

ultimately decided that she did not want Child placed in her care. Thus, there was 

competent, credible evidence supporting the trial court’s finding that the Agency “made 

reasonable efforts” to place Child with a relative. Accordingly, Father’s argument that 

the trial court erred in failing to find that the Agency did not make reasonable efforts to 

investigate A.B. as a potential placement for Child lacks merit. 

C. 

{¶45} Father also argues that the trial court erred by not placing Child with A.B. 

Father’s argument, however, misstates the nature of the proceeding before the trial 
Ross App. No. 11CA3289 20 

court. After Child was adjudicated an abused child as a result of being born addicted to 

opiates, the Agency moved for permanent custody of Child under R.C. 2151.413. 

{¶46} As discussed in Father’s first assignment of error, the trial court could 

grant the Agency’s motion for permanent custody under R.C. 2151.414(B)(1) if it 

determined by clear and convincing evidence that: (1) one of the four conditions 

outlined in R.C. 2151.414(B)(1)(a)-(d) applied; and (2) it was in the child’s best interest. 

See R.C. 2151.414(B)(1); In re McCain, 2007-Ohio-1429, ¶ 13. And as detailed above, 

there was competent, credible evidence demonstrating that R.C. 2151.414(B)(1)(a) 

applied and that permanent custody was in Child’s best interest. Thus, Father’s 

argument that the trial court erred by not placing Child with A.B. is not applicable to the 

issues the trial court had to determine at the July 14, 2011 hearing. As we concluded 

above, the trial court did not err in granting the Agency’s motion for permanent custody 

of Child. Accordingly, Father’s argument that the trial court erred by not placing Child 

with A.B. lacks merit. 

D. 

{¶47} Father contends that the trial court erred in finding that A.B. introduced all 

relevant information and evidence through his testimony at the July 14, 2011 hearing. 

At the hearing, A.B. testified regarding his desire to have Child placed in his care. A.B. 

also testified about his living and financial circumstances. Father argues that additional 

information would be available had the Agency conducted its home investigation of A.B. 

On appeal, however, Father does not indicate what additional information could have 

been obtained at the hearing had the Agency conducted a home investigation of A.B. 
Ross App. No. 11CA3289 21 

Consequently, we cannot conclude that the trial erred in finding that A.B. introduced all 

relevant information and evidence when he testified at the July 14, 2011 hearing. 

E. 

{¶48} Father contends that the trial court erred in refusing to grant a continuance 

on two occasions so that A.B.’s home could be considered as a placement option for 

Child. 

{¶49} We review a trial court’s decision regarding whether or not to grant a 

motion for a continuance under an abuse of discretion standard. Labonte v. Labonte, 

4th Dist. No. 07CA15, 2008-Ohio-5086, ¶ 9. “The term ‘abuse of discretion’ connotes 

more than an error of law or judgment; it implies that the court’s attitude is 

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 

404 N.E.2d 144 (1980). “[W]hen applying the abuse of discretion standard, we may not 

substitute our judgment for that of the trial court.” Labonte at ¶ 9, citing Berk v. 

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1993). 

{¶50} “Our review of a denial of a motion for a continuance requires us to ‘apply 

a balancing test, thereby weighing the trial court’s interest in controlling its own docket, 

including the efficient dispensation of justice, versus the potential prejudice to the 

moving party.’” Foley v. Foley, 10th Dist. Nos. 05AP-242 & 05AP-463, 2006-Ohio-946, 

¶ 16, quoting Fiocca v. Fiocca, 10th Dist. No. 04AP-962, 2005-Ohio-2199, ¶ 7. 

{¶51} “In evaluating a motion for a continuance, a court should note, inter alia: 

the length of the delay requested; whether other continuances have been requested 

and received; the inconvenience to litigants, witnesses, opposing counsel and the court; 
Ross App. No. 11CA3289 22 

whether the requested delay is for legitimate reasons or whether it is dilatory, 

purposeful, or contrived; whether the defendant contributed to the circumstance which 

gives rise to the request for a continuance; and other relevant factors, depending on the 

unique facts of each case.” State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 

(1981). Although Unger was a criminal matter, appellate courts have also applied these 

factors in civil cases. See, e.g., King v. Kelly, 4th Dist. No. 02CA42, 2003-Ohio-4412, ¶ 

11; Henson v. Highland Dist. Hosp., 143 Ohio App.3d 699, 707, fn. 4, 758 N.E.2d 1166 

(4th Dist.2001); Integrated Payment Systems, Inc. v. A & M 87th Inc., 8th Dist. Nos. 

91454 & 91473, 2009-Ohio-2715, ¶ 73; Truex v. Truex, 179 Ohio App.3d 188, 2008-

Ohio-5690, 901 N.E.2d 259 (5th Dist.) ¶ 15. 

{¶52} On July 7, 2011, Father moved to continue the July 14, 2011 hearing so 

that the Agency could investigate A.B. as a possible placement option. The magistrate 

denied this motion, but she ordered the Agency to investigate A.B. as a placement 

option. The record indicates that the investigation was not completed prior to the July 

14, 2011 hearing. At the beginning of the July 14, 2011 hearing, Father moved for a 

continuance. However, Father’s stated reason for requesting the continuance did not 

pertain to the Agency investigating A.B. as a placement option. Instead, Father sought 

a continuance so that A.B. could file a motion for legal custody of Child. The magistrate 

denied this continuance as well. 

{¶53} As the trial court noted, the magistrate was not aware of the Agency’s 

earlier attempts to investigate A.B. when she ordered the investigation on July 7, 2011. 

Additionally, the trial court found that A.B. was not cooperative when the Agency 

contacted him to investigate him as a placement option for Child shortly after Child’s 
Ross App. No. 11CA3289 23 

birth. Considering these facts, an additional continuance so that the Agency could 

investigate A.B., who did not cooperate with the Agency in the first place, was 

unwarranted. Moreover, the trial court determined that A.B. testified at the July 14, 

2011 hearing and provided information that the Agency would discover through any 

potential investigation. And Father has not articulated what additional information could 

have been introduced at the hearing had the Agency conducted the home investigation. 

Therefore, Father did not suffer any prejudice from the denial of the continuance. 

{¶54} Thus, we conclude that the trial court did not abuse its discretion when it 

denied Father’s motions for a continuance. 

F. 

{¶55} Father also argues that the trial court erred by failing to hold the Agency in 

contempt for disobeying the court’s order that the Agency conduct a home investigation 

of A.B. as a potential placement option for Child. Although Father did not move to hold 

the Agency in contempt before the trial court, Father argues that the trial court should 

have sua sponte held the Agency in contempt. 

{¶56} Because Father could have argued to the trial court that the Agency 

should be held in contempt, but he chose not to, we review his argument under a plain 

error standard. See Rocky v. Rockey, 4th Dist. No. 08CA4, 2008-Ohio-6525, ¶ 37, 

quoting Sprouse v. Miller, 4th Dist. No. 07CA32, 2008-Ohio-4284, ¶ 11 (“It is a cardinal 

rule of appellate procedure that ‘an appellate court will not consider any error which 

could have been brought to the trial court’s attention, and hence avoided or otherwise 

corrected.’”). 
Ross App. No. 11CA3289 24 

{¶57} We conclude that the trial court did not commit plain error by failing to hold 

the Agency in contempt. As indicated above, the magistrate was not aware of the 

Agency’s previous efforts to investigate A.B. as a placement option, and the trial court 

found that A.B. did not cooperate with the Agency when it contacted him shortly after 

Child’s birth. This implies that, had the magistrate been aware of these facts, she would 

not have issued the July 7, 2011 order to investigate A.B. in the first place. Additionally, 

the trial court determined that the Agency used reasonable efforts to investigate A.B. (in 

addition to other members of Child’s extended family). Finally, the trial court determined 

that A.B. provided the information that the Agency would discover through any potential 

investigation when A.B. testified at the July 14, 2011 hearing. Therefore, Father 

suffered no prejudice as a result of the Agency’s failure to investigate A.B. as a 

placement prior to the hearing. Consequently, the trial court’s failure to find the Agency 

in contempt for not investigating A.B. as a placement option does not amount to plain 

error. 

G. 

{¶58} For all the above reasons, we conclude Father’s arguments regarding 

“issues” related to A.B. lack merit. Consequently, we overrule Father’s second 

assignment of error. 

IV. 

{¶59} In his third assignment of error, Father contends that he suffered from 

ineffective assistance of counsel. 

{¶60} “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 
Ross App. No. 11CA3289 25 

counsel.” In re A.C.H., 4th Dist. No. 11CA2, 2011-Ohio-5595, ¶ 50, citing In re Wingo, 

143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th Dist.2001), in turn citing In re Heston, 

129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998). “‘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 criminal cases is equally 

applicable to actions seeking to force the permanent, involuntary termination of parental 

custody.’” Wingo at 666, quoting Heston at 827. 

{¶61} “To reverse a trial court’s judgment based upon a claim of ineffective 

assistance, the [appellant] must show, first, that counsel’s performance was deficient 

and, second, that the deficient performance prejudiced the defense so as to deprive the 

[appellant] of a fair trial.” In re A.C.H., 2011-Ohio-5595, ¶ 51, citing Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Noling, 

98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 108; State v. Bradley, 42 Ohio 

St.3d 136, 538 N.E.2d 373 (1989). “Failure to satisfy either prong is fatal as the 

[appellant’s] burden requires proof of both elements.” State v. Hankison, 4th Dist. No. 

09CA3326, 2010-Ohio-4617, ¶ 104, quoting State v. Hall, 4th Dist. No. 07CA837, 2007-

Ohio-6091, ¶ 11. 

{¶62} In its September 15, 2011 Entry, the trial court stated, “[Father’s trial 

counsel] did not raise the issue of [the Agency’s] failure to take any action [regarding 

investigating A.B. as a placement option for Child] after the July 7, 2011 order or make 

any objections or request for continuance based on that issue.” September 15, 2011 

Entry at 2. At the July 14, 2011 hearing, Father’s trial counsel sought a continuance so 

that A.B. could move for custody of Child. Father’s trial counsel did not, however, raise 
Ross App. No. 11CA3289 26 

the issue of the Agency’s investigation of A.B. as a placement option for Child. 

Consequently, Father argues that he suffered from ineffective assistance of counsel 

based on his trial counsel’s failure to raise the investigation issue. 

{¶63} Even assuming trial counsel’s failure to raise the investigation issue after 

the July 7, 2011 order constituted deficient performance, Father cannot demonstrate the 

prejudice necessary to prevail on an ineffective assistance of counsel claim. As noted 

above, the magistrate was unaware of the Agency’s previous attempt to investigate A.B. 

when she issued the July 7, 2011 order. This indicates that the magistrate would not 

have ordered the investigation on July 7, 2011 had she been aware of the Agency’s 

previous attempt to investigate A.B. Moreover, the trial court determined that A.B. 

presented all relevant information through his testimony at the July 14, 2011 hearing. 

And finally, Father has not indicated what additional information the Agency could have 

obtained had it conducted a home investigation of A.B. prior to the July 14, 2011 

hearing. As a result, Father was not prejudiced by his trial counsel’s failure to raise the 

investigation issue after July 7, 2011. Consequently, Father’s ineffective assistance 

claim must fail. 

{¶64} Accordingly, we overrule Father’s third assignment of error. 

V. 

{¶65} Having overruled all of Father’s assignments of error, we affirm the 

judgment of the trial court. 

JUDGMENT AFFIRMED. 
Ross App. No. 11CA3289 27 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs 

herein taxed. 

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 Court of Common Pleas, 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. Exceptions. 

Harsha, J. and McFarland, J.: Concur in Judgment and Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, 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.