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In Re: B.M. (A Minor Child)

October 6, 2011


Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Court Division Case No. AD 10900242

The opinion of the court was delivered by: Eileen A. Gallagher, J.:

Cite as

In re B.M.,




BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.

{¶1} C.M. ("mother") appeals from the decision of the trial court granting permanent custody of B.M. to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). C.M. argues that her trial counsel rendered ineffective assistance, that the trial court erred when it did not issue an order within two hundred days of the filing of the motion for permanent custody, that the trial court did not make a finding that the evidence provided was clear and convincing, that the court erred in not fully addressing the five best interest factors in its journal entry, and that the judgment was against the manifest weight of the evidence. Finding no merit to this appeal, we affirm the judgment of the trial court.

{¶2} C.M. gave birth to B.M. on January 8, 2010. At the time of her birth, both B.M. and her mother tested positive for cocaine. C.M. had used drugs throughout her pregnancy and tested positive on December 17, 2009 and December 25, 2009. As a result of the positive drug test, CCDCFS investigated the situation. Throughout the course of its investigation, the department learned that the mother had a decades long history of cocaine use, which had previously led to the removal of four older children from her care, two of them permanently. Based on C.M.'s drug history and the concern of CCDCFS in regards to the mother's ability to provide for B.M., the department requested and was granted, a telephonic order of removal of the child on January 10, 2010.

{¶3} On January 11, 2010, CCDCFS filed a complaint alleging B.M. to be an abused and dependent child and requested a disposition of permanent custody. The department sought a concurrent plan both for attempted reunification of C.M. with her child and, should C.M. fail to comply with services and address the issues causing B.M.'s removal, a plan for permanent custody.*fn1 That same day, the trial court conducted a hearing on the department's motion. C.M. appeared and stipulated to B.M.'s emergency, temporary custodial commitment to CCDCFS. The trial court also referred C.M. to its Family Treatment Drug Court program.

{¶4} In an attempt to assist C.M. with reunification, CCDCFS developed a case plan that initially included objectives for housing and substance abuse and later, a domestic violence objective. In order to assist C.M. to address her chronic cocaine addiction, CCDCFS intake social worker Tammy Lebron referred C.M. for a substance abuse assessment. C.M. completed the assessment and the department referred her for residential treatment at Hitchcock Center For Women. C.M. entered the program on January 14, 2010.

{¶5} On February 3, 2010, C.M. appeared in court with counsel. The trial court arraigned C.M. and accepted her into its drug court program. At that time, C.M. executed a waiver of the 90 day statutory time requirement, a waiver of service, and signed a notice of the adjudicatory hearing scheduled for March 31, 2010. On February 6, 2010, the Hitchcock Women's Center discharged C.M., unsuccessfully, after she got into an argument with another client at the facility. The intake social worker met with C.M. and attempted to re-engage her in treatment but C.M. refused to comply.

{¶6} On March 31, 2010, C.M. failed to appear for the adjudicatory hearing. Counsel requested, and received a continuance of the hearing to allow C.M. more time and an opportunity to attend. Nonetheless, the trial court discharged C.M. from its drug court program and continued the matter for adjudication on May 4, 2010.

{¶7} Around that same time, CCDCFS transferred B.M.'s case to an ongoing social worker, Shelley Woods-Ferguson. The department's concurrent plans remained in effect and Woods-Ferguson repeatedly tried to contact C.M. to engage her in services to address her substance abuse and housing issues. In an attempt to locate C.M., Woods-Ferguson called a relative, with whom she had previously lived and left several messages for C.M. to contact her; she made approximately twelve attempts to locate C.M. at her last known address, leaving letters and cards for C.M.; and she also consulted with a colleague at the department who had been receiving phone calls from C.M. C.M. had left numbers with the staff member and Woods-Ferguson made several attempts to contact C.M. through those numbers. Despite all of the above, Woods-Ferguson had no contact with C.M. from the time she received the case at the beginning of March until October 4, 2010, when C.M. walked into CCDCFS' offices and asked for Woods-Ferguson.

{¶8} During the months of March through August, C.M. failed to appear for each and every court appearance and further, failed to comply with any of CCDCFS' objectives.

In her absence, the trial court adjudged B.M. to be an abused and dependent child and located and involved the father of B.M., B.W. On August 24, 2010, C.M. appeared at the court's dispositional hearing and, at the request of counsel, received a continuance of the hearing to allow counsel an opportunity to confer with her client.

{¶9} As stated above, on October 4, 2010, C.M. walked into CCDCFS offices and asked for Woods-Ferguson. Woods-Ferguson asked C.M. where she had been for the past several months and C.M. simply stated that she was "just out there." Woods-Ferguson arranged for C.M. to complete an updated drug and alcohol assessment. C.M. was diagnosed as cocaine and alcohol dependent and the department recommended residential treatment. On October 19, 2010, C.M. again entered residential substance abuse treatment at the Hitchcock Center For Women.

{¶10} On November 9, 2010, C.M. appeared in court with counsel for the dispositional hearing. At that time, C.M. was still a resident at the Hitchcock House but had not completed any of the objectives of her case plan. The trial court heard the testimony of Lebron, Woods-Ferguson, Rebecca Wolfe, B.M.'s foster mother, and B.W., B.M.'s biological father. During trial, Lebron testified that after B.M. was placed into the custody of CCDCFS, she arranged for visitation between the child and C.M. C.M. visited with B.M. within a week after the birth and then again approximately two weeks later. After that time, C.M. failed to appear for repeated visits and never saw B.M. again. CCDCFS eventually stopped visitation because the child's foster parents were transporting the child to the department for visitation while C.M. never appeared.

{¶11} Rebecca Wolfe testified that B.M. had been placed with her, her husband, and their two-year old daughter when she was four days old. On initial placement in the home, B.M. struggled, and screamed constantly. The foster parents worked with B.M., and learned infant massage in an attempt to calm B.M. The child eventually improved. At the time of the hearing, B.M. had lived continuously with the Wolfe family and was on target developmentally. Rebecca Wolfe testified that she considered B.M. to be a part of her family and was willing to provide B.M. with a permanent home. The guardian ad litem report reflected that B.M. was happy and well-adjusted and recommended that the petition for permanent custody be granted.

{¶12} The following day, all parties re-appeared for the court's decision. The trial court issued an oral decision finding that "the State has proven its case by clear and convincing evidence and the prayer for permanent custody is granted." The trial court issued a journal entry documenting its decision on November 30, 2010.

{¶13} C.M. appeals, raising the five assignments of error contained in the appendix to this opinion.

{¶14} In her first assignment of error, C.M. argues that her trial counsel rendered ineffective assistance in failing to (1) secure her presence for the November 9, 2010 dispositional hearing, or (2) obtain a continuance to allow her to attend the hearing. This assignment of error lacks merit.

{ΒΆ15} As stated by this Court in In re B.S., 184 Ohio App.3d 463, 2009-Ohio-5497, 921 N.E.2d 320, the standard of review for ineffective ...

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