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,
R. Venters, Public Defender, and George M. Schumann, for
J. McClaren, for appellee Franklin County Children Services.
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
three biological children ("Mk.H.,  "
"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.
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 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
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
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.
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. (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,
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 ...