In re S.J., 2006 Ohio 6381 (Ohio App. 12/6/2006)

• Decision Date: 06 December 2006
• Docket Number: C. A. No. 23199.
• Citation: In re S.J., 2006 Ohio 6381 (Ohio App. 12/6/2006), 2006 Ohio 6381, C. A. No. 23199. (Ohio App. Dec 06, 2006)
• Parties: In Re: S. J.
• Court: Ohio Court of Appeals

Page 1

2006 Ohio 6381

In Re: S. J.

C. A. No. 23199.

Court of Appeals of Ohio, Ninth District, Summit County.

Dated: December 6, 2006.

Appeal from judgment entered in the Court of Common Pleas County of Summit, Ohio CaseNo. DN03-03-0228.

Ruth A. Gibson, Attorney at Law, for Appellant.

Sherri Bevan Walsh, Prosecuting Attorney, and Philip D. Bogdanoff, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court.Each error assigned has been reviewed and the following disposition is made:

BOYLE, Judge.

{¶1}Appellant, Ella M., appeals from the judgment of the Summit County Court of Common Pleas, Juvenile Division, that granted legal custody of her minor child, S.J., to Vivian Powers.This Court affirms.

I.

{¶2} S.J. was born on June 23, 1999.Ella M. ("Mother") and Larnell J. ("Father") are her biological parents.Although unwed, Mother and Father lived together with S.J. Mother has described her relationship with Father as hostile, but also said he was a loving and caring father to S.J.On March 6, 2003, Mother brought S.J. to the home of a friend, Vivian Powers and asked her to care for the three-year-old girl while she was away.¹Powers agreed and Mother left for Minnesota to be with a man she had met on the internet, one Kenneth Lehman.Mother claimed she was going to decide whether his home was an appropriate place to bring her daughter.

{¶3} The expected length of Mother's trip was a matter of some dispute.Powers testified that Mother said she would be gone for one week, whereas Mother claimed that she told Powers she would be gone for two weeks.

{¶4} The present action was initiated by a complaint, filed on March 21, 2003, 15 days after the child was left with Powers, alleging neglect and dependency and seeking temporary custody of S.J.The complaint was based on a referral to the agency and alleged that Mother took the child to Powers' home and left town with a man she had met on the internet.It further alleged that Father indicated that Mother said she was never coming back.The complaint finally asserted that Mother had previously surrendered custody of her two older children to relatives, following a neglect referral.

{¶5} Emergency temporary custody was granted to CSB at the shelter care hearing.On June 4, 2003, the trial court adjudicated S.J. to be dependent and placed the child in the temporary custody of CSB.At the same time, the trial court adopted a case plan which required Mother(1) to address the child's physical emotional, and medical needs on a consistent basis; and (2) to address her own mental health issues, particularly in terms of their impact on parenting, housing, and employment.On November 18, 2003, the trial court appointed new counsel for Mother, due to a claimed breakdown in the attorney-client relationship.

{¶6} On June 10, 2004, more than a year after the adjudicatory decision, Mother's new attorney moved to vacate the finding of dependency on the grounds that Mother was not personally present at the adjudicatory hearing and did not authorize her attorney to enter into a stipulation of facts.The magistrate denied the motion to vacate as untimely.Thereafter, Mother filed objections, and, on August 24, 2004, the trial court found the objections to be not well taken and adopted the decision of the magistrate.The trial judge agreed that the motion was not filed within a reasonable time and specifically noted that Mother's new counsel had been appointed nearly seven months before the motion to vacate was filed.

{¶7} Following a hearing held on competing motions for legal custody, the trial court granted CSB's motion to award legal custody to Powers.Mother appealed from that order.On review, this Court reversed the decision of the trial court because it had failed to admit a complete version of the interstate compact report into evidence after portions had already been admitted.In re S.J., 9th Dist. No. 22554, 2005-Ohio-4945, at ¶17.

{¶8} On remand, the trial court reheard the question of legal custody of the child.At the beginning of that hearing, Father expressed agreement with CSB's request to grant legal custody to Powers.Mother proceeded to seek custody in her own right, and CSB sought an order granting legal custody to Powers.Following the hearing, the trial court granted CSB's motion to place the child in the legal custody of Powers and denied Mother's motion for custody.In so ruling, the trial court concluded that it was in S.J.'s best interest to be placed in the legal custody of Powers.Mother filed a timely appeal from that decision and assigned three errors for review.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE MOTHER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT ADJUDICATION THAT PREJUDICED HER IN THE FINAL OUTCOME."

{¶9} In her first assignment of error, Mother asserts ineffective assistance of her trial counsel at the adjudicatory hearing which resulted in a finding that S.J. was a dependent child.Specifically, she asserts that her counsel improperly stipulated to the facts of the complaint without her participation in that decision and without her presence at the hearing.Upon review, we find Mother's argument to be without merit.

{¶10} An adjudication by a juvenile court that a child is neglected or dependent followed by a dispositional award of temporary custody to a public children service agency constitutes a final order and is appealable to the court of appeals.In re Murray(1990), 52 Ohio St.3d 155, syllabus.Generally, a failure to file a timely notice of appeal from a final, appealable order will deprive the court of appeals of jurisdiction to hear the appeal.SeeApp.R. 4(A) and Bosco v. City of Euclid(1974), 38 Ohio App.2d 40, 42-43.

{¶11} Here, the alleged error involves a claim of ineffective assistance of counsel at a trial hearing, and that same attorney "cannot realistically be expected to argue his own incompetence."State v. Cole(1982), 2 Ohio St.3d 112, 114, fn. 1.Therefore, Mother's first attorney would not have been expected to file objections to the initial decision of the magistrate or to take an appeal from the June 2003 adjudication of dependency followed by the disposition of temporary custody to CSB.

{¶12} In November 2003, however, Mother's first attorney withdrew from representation and new counsel was appointed for her.When the court entered a dispositional order of legal custody on February 8, 2005, new counsel filed a direct appeal.In that appeal, no claim of ineffective assistance of counsel during the adjudicatory hearing was raised by counsel or considered by this Court.SeeIn re S.J., 2005-Ohio-4945.As noted above, this Court reversed the decision of the trial court on an evidentiary issue, and the question of the final disposition of S.J. was remanded back to the trial court.On March 29, 2006, the trial court once again granted legal custody of the child to Powers, and the present appeal was taken from that order.

{¶13} Now in the instant appeal, Mother has assigned the alleged ineffective assistance of her first attorney at the adjudicatory hearing conducted in May 2003 as error.We conclude that any present consideration by this Court of that issue is barred by the doctrine of res judicata.This is so because the issue could have been raised in Mother's earlier appeal, but was not.SeeIn re S.J., 2005-Ohio-4945.

{¶14} The Ohio Supreme Court has recently reaffirmed "its long-standing precedent that any issue that could have been raised on direct appeal and was not is res judicata and not subject to review in subsequent proceedings."State v. Saxon,109 Ohio St.3d 176, 2006-Ohio-1245, at ¶16.See, also, Grava v. Parkman Twp.(1995), 73 Ohio St.3d 379, syllabus.Furthermore, the Supreme Court has specifically explained, "Where an argument could have been raised on an initial appeal, res judicata dictates that it is inappropriate to consider that same argument on a second appeal following remand."State v. D'Ambrosio(1995), 73 Ohio St.3d 141, 143.AccordState v. Gillard(1997), 78 Ohio St.3d 548, 549(on appeal after remand, "new issues" are barred by the doctrine of res judicata)."Res judicata promotes the principle of finality of judgments by requiring plaintiffs to present every possible ground for relief in the first action."Kirkhart v. Kieper,101 Ohio St.3d 377, 2004-Ohio-1496, at ¶5.

{¶15} As applied to this case, these principles indicate that since Mother could have included a claim regarding the alleged ineffectiveness in her previous appeal to this Court, Mother is precluded from asserting that claim in her present appeal.²SeeSaxon,2006-Ohio-1245, at ¶16.Accordingly, Mother's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

"THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE OF PLAIN ERROR WHERE THE TRIAL COURT DID NOT [FOLLOW] THE [REASONING] OF THE SUPREME COURT AND BECAUSE OF THE [TRIAL COURT'S] REFUSAL TO [GRANT] EITHER OF MOTHER'S TWO MOTIONS TO VACATE THE JUDGMENT ADJUDICATING THE CHILD `DEPENDENT[.]'"

{¶16} In her second assignment of error, Mother challenges the trial court's finding that S.J. was a dependent child as well as the trial court's failure to vacate that adjudication.For the reasons which follow, we find the assignment of error to be without merit.

{¶17} First, Mother claims error as a matter of law by the trial court when it entered a finding of dependency, arguing that a voluntary placement initiated by a parent with an appropriate caregiver precludes a child from being deemed dependent.To the extent that Mother now argues that the trial court's finding of dependency is contrary to law, such argument must be overruled.For the reasons set forth above in this court's analysis of the first assignment of error, that claim is barred by res judicata.The claim should have been raised in the prior appeal, but was not.See...