Court of Appeals of Ohio, Eleventh District, Ashtabula
Appeal from the Ashtabula County Juvenile Court, Case No.
2016 JC 0111.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
and Margaret A. Draper, Assistant Prosecutor, Ashtabula
County Children Services Board, (For Appellee, Ashtabula
County Children Services Board).
J. Cherry, The Law Offices of Eric J. Cherry, (For Appellant,
V. GRENDELL, J.
Appellant, Kenneth Wiley, appeals from the judgment of the
Ashtabula County Juvenile Court granting permanent custody of
his child, S.W., to appellee, the Ashtabula County Children
Services Board (ACCSB). The issues to be determined in this
case are whether a children services agency made reasonable
efforts to return a child to her home when the parent has
been imprisoned and on post-release control, was unable to
exercise visitation, and had not seen the child for several
years; whether a child can be reunited with a parent in a
reasonable time under the same circumstances; and whether
trial counsel is ineffective by failing to call a witness
whose potential testimony is unspecified, counsel's
inaccurate objection caused the court to enter an additional
finding against his client, and counsel was alleged to have
provided insufficient argument as to the issue of
abandonment. For the following reasons, we affirm the
decision of the court below.
Wiley is the biological father of S.W., born January 12,
2009. Her biological mother is Amanda Callaghan.
On April 28, 2016, ACCSB requested ex parte emergency
temporary custody of S.W., which was granted through a
Magistrate's Order on that date.
ACCSB's Verified Complaint for Temporary Custody was
filed on April 29, 2016, alleging that S.W. and her sibling,
J.V., were neglected. It contended that their mother,
Callaghan, was using drugs, there was little food in the
home, and the children reported caring for themselves and
having no adult present in the home during the night.
On June 9, 2016, Wiley, who requested reunification services,
was added to the case plan in relation to S.W. Goals added
included attending parenting classes and completing
post-release control, which arose from his imprisonment on a
Child Endangering conviction. The case plan also provided for
A Magistrate's Decision was issued on June 29, 2016,
which noted that Wiley had stipulated to neglect by
Callaghan. S.W. was found to be a neglected child, which
finding was subsequently adopted by the trial court.
Following a dispositional hearing, a Magistrate's
Decision was issued on July 22, 2016, in which the court
found that a return home would be contrary to S.W.'s best
interest, that Wiley was on post-release control and there
was a no contact order with S.W., and that reasonable efforts
were made to return the child home. This was adopted by the
A semiannual administrative review document filed by ACCSB on
October 27, 2016, noted that all supervised contact had to be
approved by the Adult Parole Authority and that the APA
"is not recommending contact between [Wiley and S.W.]
due to fears that have been expressed by [S.W.]."
ACCSB filed a Motion Requesting Modification of Temporary
Custody to Permanent Custody on February 9, 2017.
On April 14, 2017, Wiley filed a Motion for Visitation,
noting that he had completed post-release control and would
now be able to visit with S.W.
An Amended Guardian Ad Litem Report and Recommendation was
filed on May 30, 2017. The GAL recommended that permanent
custody be granted to ACCSB, noting that both children are
doing well in their foster care placement. She concluded that
Wiley "does not have the ability to properly care for
A hearing on the motion for permanent custody was held on
June 1, 2017. The following testimony was presented:
Jenelle Schafer, an ongoing caseworker for ACCSB, has worked
with S.W. and her family since May 2016. Callaghan did not
meet any of the goals provided in her case plan. According to
Schafer, Wiley's case plan required maintaining housing
for S.W., attending parenting classes, finishing any
"issues that he had with his parole, " and to have
no additional criminal involvement. It also included
counseling and addressing anger management concerns. Wiley
completed a mental health assessment, attended counseling and
parenting classes, and followed recommendations resulting
from the assessment.
Schafer testified that Wiley had been convicted of child
endangering in relation to J.V. Wiley did not have contact
with S.W. as it was recommended by the Adult Parole Authority
that he not have unsupervised visits with her and could not
have supervised visits without their approval. Wiley has
purchased items for S.W., including toys but they were not
given to her because ACCSB was waiting until he exercised
Schafer met with Wiley approximately 11 times and noted
multiple occasions when he became angry. In September 2016,
he was "yelling and was throwing things around his
living room and slamming furniture around and boxes." In
March 2017, he came into the agency, was yelling, and made a
comment that "he feels as though the Agency is going to
force him into doing something that he's going to regret
and he's ultimately going to be incarcerated for."
He made similar comments at the agency in April 2017.
Eventually, she would no longer go to his residence by
Schafer testified that she was unaware of Wiley completing
anger management classes but that he had completed other case
plan requirements and was successfully discharged from parole
around February 27, 2017.
Schafer opined that J.V. and S.W. were doing well in the
foster home where they have lived since April 2016. They are
bonded with each other and interact well with their foster
parents, who are willing to adopt them. She believed it would
not be in their best interest to be separated. Schafer was
aware that an aunt and maternal grandmother had contacted
ACCSB for visitation but had not requested custody.
Amy Bell, Wiley's girlfriend, lives with Wiley and has
never been afraid of him. She was present when Schafer
visited and did not see Wiley yell at her or throw things,
aside from tossing a bag of school supplies. He sometimes
became upset when discussing matters with the agency.
Wiley testified that he last saw S.W. in January 2012. He
denied committing the crime of Child Endangering but conceded
that he was convicted of it, based on evidence that he
grabbed J.V., S.W.'s brother, by his throat and picked
him up. One of the conditions of his post-release control was
that he not have contact with S.W.
Wiley testified that he was released from prison April 25,
2015, and was designated to be on post-release control for
one year, but was not successfully terminated until February
2017. He stated that the extension of parole "wasn't
[his] fault" and was due to e-mail communication errors.
He attended counseling relating to anger management and had
been doing so for several months. He also completed parenting
classes. He tried to seek supervised visits but was prevented
from doing so when the therapist said S.W. was afraid of him.
He believed S.W. is scared because of negative things her
mother told her.
The GAL, Ariana Tarighati, testified regarding the closeness
of the children and the negative impact of separating them.
Tarighati testified that S.W. conveyed she did not want to
see Wiley and ...