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In re M.H.

Court of Appeals of Ohio, Tenth District

June 21, 2018

In the Matter of: M.H., a.k.a. Mc.H., M.H., Sr., Appellant. In the Matter of: M.H., a.k.a. Mk.H. et al., M.H., Sr., Appellant.

          APPEALS from the Franklin County Court of Common Pleas C.P.C. Nos. 14JU-14887, 14JU-14815, Division of Domestic Relations, Juvenile Branch

         On brief:

          Yeura R. Venters, Public Defender, and George M. Schumann, for appellant.

          Robert J. McClaren, for appellee Franklin County Children Services.

          DECISION

          BRUNNER, J.

         {¶ 1} Appellant, M.H., Sr. (hereinafter "M.H."), appeals two judgments entered by the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, on June 2, 2017 in case Nos. 14JU-14815 and 14JU-14887 granting permanent custody of his[1] three biological children ("Mk.H., [2] " "D.H., " and "Mc.H.") to Franklin County Children Services ("FCCS"). We overrule M.H.'s sole assignment of error and affirm the judgments of the trial court, finding that M.H.'s trial counsel rendered constitutionally effective assistance of counsel.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Two complaints were filed on November 12, 2014, one concerning Mk.H. (born 2007) and D.H. (born 2009), (case No. 14JU-14815) and the other concerning Mc.H. (born 2010), (case No. 14JU-14887). (Nov. 12, 2014 Compl. 14JU-14815; Nov. 12, 2014 Compl. 14JU-14887.) FCCS alleged in its first complaint that Mk.H. and D.H. were dependent children. (Nov. 12, 2014 Compl. 14JU-14815.) FCCS alleged in its second complaint that Mc.H. was abused, neglected, and dependent. (Nov. 12, 2014 Compl. 14JU-14887.) Both complaints contained descriptions of abuse and psychological problems alleged to have been inflicted on the children by their mother, and each complaint indicated the location of their father, M.H., to be unknown. (Compl. 14JU-14815 at 1; Compl. 14JU-14887 at 1.) Two days after FCCS filed the complaints, the trial court awarded temporary custody of the children to FCCS. (Nov. 14, 2014 T.C. Order 14JU-14815 at 3; Nov. 14, 2014 T.C. Order 14JU-14887 at 3.)

         {¶ 3} Several months thereafter, in January and February 2015, the trial court held two hearings. At the first of these, on January 15, 2015, the children's mother appeared but did not contest the abuse and dependency allegations. (Jan. 15, 2015 Hearing Tr. at 3-4, filed Oct. 30, 2017.) The trial court issued two orders following the hearing and, on January 29, 2015, adjudicated Mc.H. to be "an abused minor, " and Mk.H. and D.H. to be "dependent minors." (Jan. 29, 2015 Jgmt. Entry 14JU-14815 at 2; Jan. 29, 2015 Jgmt. Entry 14JU-14887 at 2.) Despite publication service on all men stated to be fathers[3] of the children for whom a change of custody has been sought, M.H. did not appear at the January hearing. (Jan. 15, 2015 Hearing Tr. at 3.)

         {¶ 4} At the second hearing, on February 4, 2015, the magistrate noted that this case was a refiled version of a prior case and that the original emergency removal actually took place in Summer 2014. (Feb. 4, 2015 Hearing Tr. at 3-4, filed Oct. 30, 2017; see also FCCS Ex. No. 14, July 1, 2014 T.C. Order 14JU-8641; FCCS Ex. No. 16, July 1, 2014 T.C. Order 14JU-8641.) M.H. also failed to appear for this hearing. (Feb. 4, 2015 Hearing Tr. in passim.) Later on the same day, the trial court adopted a case plan prepared by FCCS. (Feb. 5, 2015 Entry Adopting Case Plan 14JU-14815; Feb. 4, 2015 Case Plan 14JU-14815; Feb. 5, 2015 Entry Adopting Case Plan 14JU-14887; Feb. 4, 2015 Case Plan 14JU-14887.) The case plan required M.H. to obtain housing, obtain legal income sufficient to meet the basic needs of the children, complete domestic violence classes, complete parenting classes, establish paternity for all his children, sign releases of information for all service providers, and cooperate with announced or unannounced home visits at least every calendar month. (Feb. 4, 2015 Case Plan 14JU-14815 at 12; Feb. 4, 2015 Case Plan 14JU-14887 at 12.)

         {¶ 5} Approximately one year after the complaints were filed, in October 2015, the children's mother filed pro se motions for custody. (Oct. 22, 2015 Mother Mot. for Custody 14JU-14815; Oct. 22, 2015 Mother Mot. for Custody 14JU-14887.) On motion of FCCS, the trial court, on October 28, 2015, extended the temporary custody order. (Oct. 28, 2015 Jgmt. Entry 14JU-14815; Oct. 28, 2015 Jgmt. Entry 14JU-14887.) Shortly thereafter, on November 16, 2015, FCCS moved for permanent custody. (Nov. 16, 2015 Mot. for P.C. 14JU-14815; Nov. 16, 2015 Mot. for P.C. 14JU-14887.)

         {¶ 6} The children's mother failed to appear for the hearing on November 19, 2015 on her motions for custody and the motions were in consequence dismissed. (Nov. 19, 2015 Entry Dismissing Mot. 14JU-14815; Nov. 19, 2015 Entry Dismissing Mot. 14JU-14887; Nov. 17, 2015 Hearing Tr. at 3-4, filed Oct. 30, 2017.) M.H. also did not appear at that hearing. (Nov. 17, 2015 Hearing Tr. in passim.)

         {¶ 7} At a hearing on February 25, 2016, the children's mother was present and was served with the permanent custody motions. (Feb. 25, 2016 Hearing Tr., filed Oct. 30, 2017.) M.H. again did not appear. Id. in passim.

         {¶ 8} M.H. appeared in the case for the first time at a hearing on March 31, 2016, over one and one-half years after the initial removal of the children and several months (and two hearings) after the filing of motions for permanent custody. (Mar. 31, 2016 Hearing Tr. at 2, filed Oct. 30, 2017.) The attorney for FCCS indicated for the record that M.H. was served with the permanent custody motions. Id. at 3. M.H. appeared pro se at the March hearing but obtained an attorney shortly thereafter. Id. at 8-9; Apr. 5, 2016 Entry Appointing Counsel.

         {¶ 9} Approximately one year later, the case came up for trial on the permanent custody motions. (Apr. 20, 2017 Tr., filed Oct. 31, 2017.) The children's mother did not oppose the motions and did not appear for the hearing. Id. at 10. M.H.'s attorney appeared to oppose the permanent custody motions of FCCS as to Mk.H., D.H., and Mc.H. Id. at 10-11. M.H. did not appear until one hour after proceedings had begun having mistaken the date. Id. at 10-11, 19. Although M.H. opposed the permanent custody motion of FCCS at trial and requested custody of the children in his written closing argument, in the nearly three-year life of the case, he never filed a motion for custody of the children. Id. at 10-11; May 15, 2017 M.H. Closing Brief at 1.

         {¶ 10} During the course of the permanent custody hearing, three witnesses testified, M.H., John Bates (guardian ad litem for the children), and Mychal Featherstone (caseworker in charge of the case). The parties also stipulated to the admission of a number of exhibits including a psychological evaluation of M.H. (Stipulation 2, FCCS Ex. No. 2.)

         {¶ 11} M.H. testified that he met the children's mother when he was in high school and dropped out in order to be with her. (Apr. 20, 2017 Tr. at 145-46.) In 2009, after fathering a child with her for the third time (but before Mc.H. was born) M.H. met his current wife and left his children and their mother behind. Id. at 147-51. After that point, M.H. admitted that his contact with Mk.H., D.H., and Mc.H. was less than regular and that he never paid child support. Id. at 34-36, 152-53, 179; Apr. 21, 2017 Tr. 186-89. His recollection was that (even before the 2014 emergency removal in this case) the children were in the custody of FCCS for approximately two years beginning in 2011. (Apr. 20, 2017 Tr. at 34-36.) Nonetheless, M.H. reported that he often saw them on Thursdays to get ice cream, sometimes watched them on the weekends, and that he visited them often during a time in which his mother served as a placement for the children. Id. at 152-53; Apr. 21, 2017 Tr. 186-89.

         {¶ 12} M.H. admitted that he smoked marijuana and had smoked regularly since he was very young. (Apr. 20, 2017 Tr. at 56-59.) He denied current marijuana use on the first day of the hearing. Id. at 57-58. However, after agreeing to take a drug test and testing positive during the hearing, he was forced to admit that he had smoked recently after all and that he was finding it difficult to stop, having smoked for so long. Id. at 127-28; Apr. 21, 2017 Tr. at 284-85.

         {¶ 13} In the course of M.H.'s testimony, FCCS introduced certified copies of court documents to the effect that M.H. was convicted of carrying a concealed weapon (a fourth-degree felony) and sentenced to community control. (Apr. 20, 2017 Tr. at 83-92; FCCS Ex. No. 18, Aug. 10, 2010 Jgmt. Entry.) The records introduced and partially read into the record also showed that M.H. was accused by the probation department of having failed multiple drug tests during 2011-2013 (for marijuana), that he stipulated to the violations, and that his community control was terminated unsuccessfully. (Apr. 20, 2017 Tr. at 90-92; FCCS Ex. No. 20, Apr. 4, 2014 Req. for Revocation; FCCS Ex. No. 19, May 6, 2014 Entry at 1.)

         {¶ 14} M.H. admitted that he was accused (but not convicted) of domestic violence involving the mother of Mk.H., D.H., and Mc.H. (Apr. 20, 2017 Tr. at 98-99; Apr. 21, 2017 Tr. at 219-20.) He also admitted that he was convicted of domestic violence in another incident in which he allegedly punched his current wife in the face, splitting her eyebrow.[4] (Apr. 20, 2017 Tr. at 100-101; FCCS Ex. No. 21, Municipal Court Recs. 14CRB-2312.) He denied the incident and stated that he only pled guilty to get out of jail. (Apr. 20, 2017 Tr. at 100-01; FCCS Ex. No. 21.) But M.H. later testified that the violence did occur and he maintained that his activity in his church had kept him away from such trouble in the time since. (Apr. 21, 2017 Tr. at 250-52.) Certified copies of court records were admitted into evidence to substantiate the domestic violence incident. (FCCS Ex. No. 21.) M.H. also admitted that in 2013 he filed for divorce from his current wife but testified that he merely did it to get the reaction he wanted from his wife. (Apr. 20, 2017 Tr. at 102-05; FCCS Ex. No. 22, Jan. 24, 2013 Compl. 13DR-278.) Notwithstanding these incidents, M.H. testified that his relationship with his wife was perfect and that, as of the time of trial, he had the family life he had always wanted. (Apr. 21, 2017 Tr. at 250.)

         {¶ 15} M.H. testified that his apartment was small, an "apartment for one, but it's a two bedroom, " and that he shared it with his wife and the two children they had together. Id. at 231. He testified that he was employed and that he and his wife's combined income was approximately $2500 per month. (Apr. 20, 2017 Tr. at 111.) He explained that he had tried to find better housing but failed due to budgetary constraints, his wife's eviction records, and his felony conviction. (Apr. 21, 2017 Tr. at 236-37.) Despite the fact that he previously admitted to having a suspended driver's license, he testified that he and his wife (who also did not have a valid driver's license) had been driving around looking for a larger place to live. Id. at 289-91; Apr. 20, 2017 Tr. at 111.

         {¶ 16} M.H. agreed that the children might have special needs but was not aware of the extent of the abuse they had suffered and felt that they should not be medicated. (Apr. 20, 2017 Tr. at 108-09, 114-23.) He felt it was not important to talk to the children about who hurt them and that it was better to focus on the fact he loves them and they love him. Id. at 167-70. He explained it was his belief that all that was really wrong with the kids was that they were missing the loving foundation that he described only a biological parent can provide. Id. at 108-09, 112, 173-74.

         {¶ 17} He admitted he never legally established paternity over Mc.H. (Apr. 21, 2016 Tr. at 268.) He also admitted that when the agency contacted him in 2015, he declined to become involved because last time FCCS became involved he was given the "run around" and the children were still returned to their mother. Id. at 278-79. M.H. testified that he never sought custody of the children during this case ...


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