COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68994, 68995, 68996 IN THE MATTER OF: : : ANTONETTE COBB : DANIELLE COBB : DANIEL COBB : JOURNAL ENTRY : AND : OPINION DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Court Division Case Nos. 9401991, 9401992, 9401993 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: LAURENCE R. SNYDER, ESQ. CHERYL A. ALIKHAN, ESQ. SNYDER ASSOCIATES CUYAHOGA COUNTY DEPARTMENT One Erieview Plaza, #450 OF CHILDREN & FAMILY SERVICES Cleveland, Ohio 44114 3955 Euclid Avenue Cleveland, Ohio 44115 - 2 - DYKE, J.: Defendant-appellant, Richelle Cobb appeals a judgment of Cuyahoga County Court of Common Pleas, Juvenile Division, granting permanent custody of her three children to plaintiff-appellee, the Cuyahoga County Department of Children and Family Services ("CCDCFS"). In a single assignment of error, appellant claims she was denied effective assistance of counsel during the permanent custody trial. Upon review, we find her assignment of error to be meritless. Hence, we affirm the judgment of the juvenile court. On March 16, 1993 CCDCFS took emergency custody of appellant's children to wit, Daniel Cobb (D.O.B. 8/23/90), Danielle Cobb (D.O.B. 8/2/91) and Antonette Cobb Green (D.O.B. 3/5/93) having determined that all of the children were born cocaine positive. On September 8, 1993 the children were adjudicated dependent and appellant's maternal aunt was granted legal custody with CCDCFS providing protective supervision. On January 14, 1994 CCDCFS placed the children in foster care due to appellant's aunt's inability to continue to provide care. On February 9, 1994 CCDCFS filed a complaint for permanent or temporary custody alleging that appellant's whereabouts had been unknown for one year; that 1 appellant and Mr. Green had failed to provide care and support; that there were no relatives willing or able to provide care and that the children were in need of a responsible legal guardian and 1 Anthony Green established paternity for Antonette Cobb Green. However, the putative fathers of Daniel and Danielle Cobb could not be located to determine paternity. - 3 - permanent placement planning. The court granted emergency custody on February 10, 1993 and a case plan for substitute care, parent education, stable housing and drug treatment was established. On March 9, 1994 with appellant present, the court granted temporary custody to CCDCFS and advised her and Mr. Green that they would have 60 days to wit, until May 5, 1994 to comply with the case plan or the court would request CCDCFS to file a motion for permanent custody. The court provided appellant and Mr. Green with two more 60 day periods to comply during hearings conducted on May 5, 1994 2 and July 1, 1994. On October 5, 1994 the court provided the parties with an additional 60 day period to comply after determining that appellant had failed to secure drug treatment and that she and Mr. Green had also failed to secure stable housing, to provide urine samples for random drug testing and to complete parenting classes. The court expressed its concern that time was of the essence with respect to the best interest of the children and advised the appellant and Mr. Green, no less than four times, that if they did not comply with the case plan it would have little choice but to grant CCDCFS's motion for permanent custody thereby divesting them of all parental rights. Trial was set for January 4, 1995 but was continued due to the nonappearance of children's guardian ad litem. A new guardian was appointed and both parties signed provided notice that trial was set for February 22, 1995. 2 During the July 1, 1994 hearing, the court requested CCDFCS to file a motion for permanent custody. The agency did so on July 7, 1994. - 4 - Mr. Green was present, however appellant failed to appear for the proceeding. At the conclusion of all testimony, the court granted permanent custody to CCDCFS. The instant appeal followed. I APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. In her first assignment of error appellant claims that her appointed counsel, public defender Ms. Peggy Isquick was not present at trial and that if she was present, she made no attempt to speak, cross-examine witnesses or present evidence on her behalf. In support of her non-appearance argument, appellant claims that certain statements in the transcript labeled as Ms. 3 Isquick's were actually those of Sally Graham, her social worker. We find appellant's argument fails for the following reasons: First, it ignores the colloquy which occurs at the commencement of trial wherein the prosecutor, Mr. Lopresti, Ms. Isquick and the court determine that appellant has received notice and that trial may proceed. The colloquy is excerpted as follows: MR. LOPRESTI: The children are four years, six months; three years, six months; one year, eleven months of age. In February of '94, emergency custody was granted to the County. The children were judged neglected in May of '94 and temporary custody was granted to the County. July, '94 temporary custody was continued. July 7, '94, a motion for permanent custody was filed. 2/4/95 Mr. Minkin was terminated as the Guardian Ad Litem. Mr. Keenan was appointed Guardian Ad Litem of the Children. Mr. Green is 3 Appellant cites inter alia, line 18 at page three of the transcript and claims this statement was made by Ms. Graham instead of Ms. Isquick because the statement deals with the case plan. - 5 - here today, Your Honor. He is the father of Antoinette. The (sic) matter is not present. THE COURT: Where is the mother? Was she served? MR. LOPRESTI: Yes, she was. THE COURT: Can we check -- check the service while we're doing this. MS. ISQUICK: Mr. Lopresti, did you check your service? MR. LOPRESTI: Yes. THE COURT: Apparently. MR. LOPRESTI: Let's see. MS. ISQUICK: We've been here on pre -- preliminary hearing. Twice prior to this, and she was here both times. THE COURT: And she refused the drug test. Did we have her sign something? MS. ISQUICK: Let me see them. No. Oh, yes. Oh, I remember this now, Judge. THE COURT: Did we have her sign or did she sign the forms? MS. ISQUICK: No, she was -- she was not very cooperative. THE COURT: But she did sign something? Did she sign that form when she was here? Did she know she was supposed to come here today? Did she sign the form? MS. ISQUICK: Oh, she -- (inaudible) THE COURT: There the form right here. MS. ISQUICK: I know. That's not the right one. Unless somebody looked at this stuff. Today is 2/22? THE COURT: Yes. Here she is. She signed. She signed the notice. She signed the notice that we had her sign last time. MS. ISQUICK: I can't believe she's not here, because she was here every other time. (Tr. Pgs. 1-3) - 6 - Hence, appellant's contention of counsel's non-appearance is unsupported by the transcript. Moreover, the content of the colloquy itself proves that Ms. Isquick was present as it would be highly unlikely and irregular for Ms. Graham to challenge Mr. Lopresti on the issue of notice and to participate in the legal determination of same as such is beyond her role as a non- lawyer/witness. However, such involvement would be entirely appropriate for Ms. Isquick. Appellant's argument also fails because it ignores the fact that when the court specifically raised the issue of what the "social worker" required of the biological parents, Ms. Graham (labeled as such) responds for the first time in the transcript and continues to respond appropriately. (See, Tr. 1-5) Lastly, we find appellant's argument fails because she has provided this court with an incomplete record as the transcript of proceedings starts with the prosecutor's opening statement rather than with the court's opening statement which generally describes the purpose of the proceeding and identifies the parties and counsel present. Hence, in light of same, we must presume 4 regularity with respect to these issues. See, Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, App.R. 9(B) and 10(A). Having determined that Ms. Isquick was present during the 4 We also find that Ms. Isquick is listed as appearing on behalf of the appellant on the cover of the February 22, 1995 transcript as well as three preceding transcripts and that all of the transcripts have been duly certified by the court reporter. - 7 - initial phase of trial, we must determine whether her silence or alleged absence during the latter part of the trial constitutes ineffective assistance. The United States Supreme Court enunciated the test for ineffective assistance of counsel in Strickland v. Washington (1984), 466 U.S. 668. The test, applicable to permanent custody proceedings pursuant to Jones v. Lucas Cty. Childrens Service (1988), 46 Ohio App.3d 85, 86-87 is stated as follows: First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result was reliable. Id., at 687. Upon review we cannot say that counsel's performance was deficient. The record demonstrates that Ms. Isquick appeared with the appellant at every prior hearing; that she pointed out appellant's efforts to begin substance abuse therapy even though such efforts were invariably untimely and incomplete and that she implored the appellant to comply with the case plan, repeatedly explaining the consequences for her failure to do so. Assuming arguendo that Ms. Isquick's silence or failure to remain at trial was deficient, we cannot say that such deficiency prejudiced appellant's defense. It is patently clear that appellant's severe addiction to cocaine, her chronic inability to comply with any aspect of her - 8 - case plan and her failure to appear at trial or contact anyone prior to such non-appearance, prejudiced her defense. Additionally, the rules of evidence prohibit counsel from testifying and even if counsel had remained to cross-examine witnesses, evidence of appellant's and Mr. Green's failure to establish a stable, drug free environment for the children was overwhelming. Hence, the outcome of this trial would not have been different. Accordingly, appellant has failed to demonstrate that counsel's arguably deficient performance deprived her of a fair trial or resulted in an outcome which was not reliable to wit, in the best interest of her neglected and dependent children. Appellant's sole assignment of error is overruled. Accordingly, the judgment of the juvenile court is affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Juvenile Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, P.J., AND PORTER, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .