COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71783 IN THE MATTER OF: : GABRIEL HART : : JOURNAL ENTRY Plaintiff-Appellee : : and : : OPINION : : : : DATE OF ANNOUNCEMENT APRIL 16, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court Division Common Pleas Court JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Appellant Michael Hart: For Appellee Gabriel Hart: PATRICIA J. SMITH, ESQ. DEENA C. MILLER, ESQ. 4403 St. Clair Ave. Dept. Of Children & Family Svcs Cleveland, Ohio 44103 3955 Euclid Avenue Cleveland, Ohio 44115 For Guardian Ad Litem: For Guardian Ad Litem: EMMANUEL E. DICKERSON CHRISTINE T. LENEGHAN 925 Euclid Avenue, Suite 1025 7305 Ville Court Cleveland, Ohio 44115 Parma, Ohio 44129 PATRICIA ANN BLACKMON, A.J.: -2- Appellant Michael Hart appeals a decision by the trial court in favor of appellee Cuyahoga County Department of Children and Family Services (CCDCFS) in its custody action. Hart assigns the following three errors for our review: I. THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY OF GABRIEL HART TO THE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES WHERE IT WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT HAD NOT COMPLIED WITH A MEDICATION TREATMENT FOR HER MENTAL ILLNESS AND THAT THERE WERE NO RELATIVES AVAILABLE TO CARE FOR THE CHILD. II. IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL TO REPRESENT THE APPELLANT AT A PERMANENT CUSTODY HEARING WHEN THE ATTORNEY HAD NOT MET WITH THE APPELLANT PRIOR TO THE HEARING AND THE APPELLANT WAS NOT PRESENT AT THE HEARING. III. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A CONTINUANCE BEFORE PROCEEDING TO THE DISPOSITIONAL HEARING. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. CCDCFS obtained temporary custody of appellant's two children, Natalie and Gabriel, in 1989. A year later, they were returned to appellant after she complied with CCDCFS's case plan. In 1993 they were again taken from appellant by CCDCFS and placed in separate foster homes. In February 1995, the juvenile court returned both girls to appellant. However, CCDCFS never received a copy of a journal entry of that order; therefore, they were legally unable to release custody to appellant. -3- CCDCFS continued to monitor the family and Appellant's progress under her case plan. Appellant has had the same case plan since 1989, when CCDCFS first got involved. Appellant's case plan required her to: (1) regularly visit her psychiatrist, (2) take her prescribed medication, (3) attend parenting classes, (4) obtain and maintain stable housing, and (5) participate in the children's counseling. On April 25, 1996, CCDCFS filed a complaint alleging child neglect and requesting permanent custody of both Natalie and Gabriel. CCDCFS was given emergency custody on April 29, 1996. A hearing was to be held on June 12, 1996, but was continued due to lack of service. The matter was rescheduled for July 16, 1996. Appellant appeared for that hearing and denied the allegations in the complaint. Appellant also requested counsel and agreed to waive the ninety day statutory time limit. The next hearing, which Appellant agreed to, was scheduled for August 21, 1996. Appellant failed to show. A new date was set for October 9, 1996 and notice was sent to appellant. Again appellant failed to appear. However, appellant's attorney, Ms. Peters, and guardian ad litem (GAL), Mr. Dickerson, were present. At the beginning of the hearing, Ms. Peters informed the court that she only met appellant once and had no communication with her since then, except for a letter from appellant, stating she received notice of the hearing and would contact Ms. Peters since her phone was disconnected. Peters then asked the court for a continuance or, in the alternative, for permission to withdraw from -4- the case. The court denied the continuance then asked Peters whether or not she could properly represent appellant. Peters replied, It's just that it's strange to represent somebody when they're not here. (Tr. 4). Next, the following dialogue took place: The Court: It occurs from time to time. But, I mean, if you feel that you cannot properly represent your client because she hasn't met with you enough to get enough information or whatever reason, if that's the reason, I can certainly allow you to withdraw from the case. Ms. Peters: Well, Your Honor, I could remain for the testimony and just send her a letter as to what is happening as a result of the Court hearing. I could do I'll choose to do that. The Court: Okay. So you're still representing her at this moment? Ms. Peters: Sure. Pamela Sunnaa, a CCDCFS social worker, began monitoring the appellant and the children in 1994. She testified appellant was not complying with her case plan. According to Sunnaa, appellant is a paranoid schizophrenic. Sunnaa said appellant would sporadically take her medication. She also said that at one time, appellant went as long as two months without meeting with her psychiatrist or taking her medication. As for the other case plan requirements, Sunnaa stated appellant rarely attended the girls' counseling sessions. She also said appellant has managed to find stable housing in Richmond Heights and did complete her parenting class. However, Sunnaa feels she has been unable to apply what she has learned. As an -5- example, she reported on how chaotic the girls looked and behaved when she picked them up from their visits with appellant. The location of the visits were then changed to the maternal grandmother's home. After a while it was learned the grandmother would leave the girls unsupervised with appellant. On one occasion, Gabriel almost drowned in a pond while in appellant's unsupervised care in the grandmother's home. The children now visit with Appellant at Metzenbaum Center. Appellant has not consistently visited with her daughters since the visits have been relocated to the Metzenbaum Center. According to Sunnaa, appellant once told her that the Metzenbaum Center was inconvenient for her. In July 1996, an aunt of the girls, who resides in Georgia, contacted Sunnaa. The aunt expressed an interest in adopting Natalie and Gabriel. As far as Sunnaa knows, no follow-up or investigation has been done regarding adoption by the aunt. Marietta Goss, Gabriel's foster mother, also testified at the hearing. Goss testified that Gabriel has been in her home since April 1994, at the age of five. Goss' testimony was similar to Sunnaa's testimony. She also stated that when Gabriel visited Appellant at Appellant's home, she always came back dirty and disheveled, wearing clothes that were not hers. Goss said Gabriel's emotional and mental state after visits with her mother was chaotic and nervous . It [was] just like [Goss had] to start all over again. (Tr. 26). -6- Since the children reside in separate homes, Goss sometimes facilitates visits for the girls at her home. When asked about Gabriel's state when the visits were switched to the grandmother's, Goss responded: They were no better. The grandmother didn't take time with them. She didn't have the time for them. In fact, the grandmother felt that, like I said before, the two girls were just much too much for her to handle. And she even made the statement about it because of her age. The girls got on her nerves, which I can understand. Sometimes you get Natalie and Gabriel get together,[sic] they fight a lot. They're always at competing each other. [sic] And it was too much for her. She needed help with the kids. Goss also testified that at one time, after a visit with appellant, Gabriel began hoarding her food instead of eating. Goss said she noticed Gabriel took longer than usual to eat her food. She later learned that when she left Gabriel alone at the table to finish eating, Gabriel wrapped her food in paper towels and hid it under the furnace in the cellar. Before she discovered what Gabriel was doing, Goss noticed Gabriel was losing weight. She took her to get a physical and learned the child only weighed fifty-four pounds. Sunnaa's and Goss' testimonies also indicated that one or both girls may have been sexually abused. However, Sunnaa testified that said indication was never substantiated. Goss, on the other hand, testified that Gabriel's behavior sometimes reflected possible sexual abuse. Nevertheless, both girls received counseling as if the abuse occurred. -7- Sunnaa and Goss testified that it was in the best interest of both girls to have permanent custody granted to CCDCFS. They also testified it was in the girls' best interest to keep them separated, especially since Natalie once threatened Gabriel's life. Goss recommended separation, stating it would not be detrimental to Natalie and Gabriel since they are already living separately and have been for years. During closing argument, Ms. Miller, CCDCFS attorney, Ms. Leneghan, the girls' GAL, and Dickerson all agreed there was clear and convincing evidence that appellant neglected both Natalie and Gabriel. Only Mrs. Peters argued there was no clear and convincing evidence of neglect. The court ruled the evidence was clear and convincing that Natalie and Gabriel were neglected. Regarding disposition, Peters again requested a continuance, which was denied. CCDCFS requested that Natalie be placed in long- term foster care and that Gabriel be placed in the permanent custody of the county. Leneghan's recommendation was the same as that of CCDCFS. Ms. Peters agreed with the recommendation concerning Natalie. She also recommended long-term foster care for Gabriel. Dickerson agreed with Ms. Peters. The court ruled in favor of CCDCFS. This appeal concerns the court's ruling as to Gabriel. The issue in the first assignment of error is whether the trial court's decision to give permanent custody of Gabriel to CCDCFS, was based on clear and convincing evidence. Appellant argues the evidence was not clear and convincing and the trial -8- court should not have given CCDCFS custody of Gabriel when a family member expressed interest in adopting her. She also argues the trial court erroneously relied on testimony by Sunnaa that Appellant did not comply with her case plan, particularly pertaining to her mental illness. Appellant further argues no mental health professionals or reports were presented to indicate the status of her mental health or label her as uncooperative or resistant to treatment. CCDCFS argues Sunnaa's testimony was competent and credible for two reasons. First, Sunnaa was the social worker assigned to monitor appellants, Natalie and Gabriel, and their progress. Second, Sunnaa's testimony was based upon her personal knowledge of the family and admissions made by appellant. Clear and convincing evidence exists when a trier of fact forms a firm belief or conviction regarding the facts a party seeks to prove. This court will only reverse the trial court's ruling regarding parental rights if the trial court's ruling was not supported by sufficient evidence to meet the clear and convincing evidence standard of proof. In the Matter of: Cassandra M. (Dec. 30, 1997), Lucas App.No. L-95-307, unreported, citing Cross v. Ledford(1954), 161 Ohio St. 469, paragraph three of the syllabus; and In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368. When a public children services agency files a [complaint] for permanent custody, R.C. 2151.414(A) directs the court to conduct a hearing. R.C. 2151.414(E) requires the trial court to find that the child cannot be placed with either of his or her parents once the court has determined by clear and convincing evidence that one or more of *** [twelve] -9- factors exist. Once the trial court finds from all relevant evidence that one of the [twelve] factors exists, it then must consider whether permanent commitment is in the best interest of the child. R.C. 2151.414(B). Only then may it grant permanent custody of the child to the agency. In Re William S. (1996), 75 Ohio St.3d 98, 99. Appellant's first assigned error lacks merit. One of the factors listed in R.C. 2151.414(E) that the juvenile court takes into consideration is the mental health of the parent. The juvenile court must determine whether the chronic mental illness of the parent is so severe that it makes the parent unable to provide an adequate permanent home for the child ***. R.C. 2151.414(E)(2) Appellant is diagnosed as having paranoid schizophrenia. Her case plan required her to make regular visits to a psychiatrist and to take her medication as prescribed. Sunnaa testified appellant did not comply with this aspect of her case plan. Sunnaa also told how Appellant abandoned her daughters in different airports in different states at very young ages; Gabriel was only a couple of months old at the time. The juvenile court also heard testimony of how Gabriel almost drowned in a pond while in appellant's care. Appellant argues that Sunnaa's testimony did not depict her current status. She also argues it was error for the juvenile court to rely on Sunnaa's testimony since she is not a mental health expert. Although Sunnaa did not expressly state these mishaps occurred while appellant was not taking her medication or visiting her doctor, it is evident that was the case. It was also proper for the juvenile court to rely on Sunnaa's testimony as it -10- was the only evidence presented regarding appellant's mental condition. While Sunnaa is not a mental health expert per se, she is a social worker who often comes into contact with the mentally ill. Thus, Sunnaa may testify as an expert in her field. Evid.R. 702(A)&(B). Moreover, the trier of fact is free to make its own assessment of reliability and to accept or reject testimony accordingly, once it has been admitted. See State v. Bresson (1990), 51 Ohio St.3d 123, 128. We conclude the juvenile court's decision was not erroneous as it was based on clear and convincing evidence. We also conclude the juvenile court relied on clear and convincing evidence that appellant did not comply with her case plan regarding her mental health. As for appellant's argument that the juvenile court did not take into consideration a family members interest in adopting Gabriel, there is nothing in the record that gives credence to this argument. The issue in the second assignment of error is whether appellant's attorney's representation constituted ineffective assistance of counsel. Appellant argues she was deprived of her right to effective assistance of counsel. Appellant was appointed counsel to represent her in this permanent custody case under R.C. 2151.352 and Juv.R. 4. Appellant is correct that the right to counsel includes the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759; Jones v. Lucas Cty Children Services Bd. (1988), 46 Ohio App.3d 85, 86. In Jones, the court held and we agree that the -11- proper standard for determining effective assistance of counsel is the two prong test of Strickland v. Washington (1984), 466 U.S. 668. In applying Strickland, we note that a properly licensed attorney is presumed competent. State v. Nabozny (1978), 54 Ohio St.2d 195, 214. Appellant must show that her lawyer's performance was deficient and that the deficient performance prejudiced appellant's defense. Strickland at 693. It is not necessary, however to address both components of the analysis if one component fails. Id. at 697. Appellant's attorney's performance during the hearing was not deficient. Although she only interviewed appellant once, there is no required minimum number of times an attorney must meet with his counsel in order to render effective representation. However, [an attorney] has the duty to investigate the law and the facts relevant to the charges against his client. Failure to adequately investigate such matters may be a basis to find that counsel's assistance was ineffective and constitutionally defective. State v. Parks (1990), 69 Ohio App.3d 150, 156. From our review of the proceedings, Peters seemed to be adequately prepared: (1) Peters moved for continuance twice, based upon Appellant's nonappearance; (2) Peters adequately cross-examined both witnesses; (3) prepared and gave a recommendation to the court as to the disposition of the girls; and (4) asked for a short recess so that she could talk to Appellant's mother, who came to the hearing.1 1 Appellant's mother was subpoenaed to appear at the hearing, however no one knew who subpoenaed her. She arrived on time for -12- Furthermore, Peters did not feel she was inept to properly represent appellant. Peters felt strange about representing an absent client. This does not translate to mean Peters was unprepared, thus deficient. Because we conclude appellant has failed to meet the first prong we find it unnecessary to address whether appellant was prejudiced. Accordingly, we conclude appellant's second error lacks merit. The issue in the third assignment of error is whether the trial court erred when it denied a continuance on the disposition determination. Appellant argues a continuance should have been granted to allow Peters a chance to gather more information on the case and to meet with her. CCDCFS argues that it is not required for the court to allow continuances for those purposes. Revised Code 2151.35(B)(1) states: If the court at an adjudicatory hearing determines that a child is *** neglected ***, the court shall not issue a dispositional order until after the court holds a separate dispositionalhearing. The court may hold the dispositional hearing *** immediately after the adjudicatory hearing if all parties were served prior to the adjudicatory hearing with all documents required for the dispositional hearing. *** The court, upon request of any party or guardian ad litem of the child, may continue a dispositional hearing for a reasonable time not to exceed the time limits set forth in this division to enable a party to obtain or consult counsel. At the beginning of the hearing, Peters read into the record, a letter written by Appellant stating that she received notice of the hearing and wished to say something on record. Judge Rocco determined she was not a party essential to the case and requested she wait in the hall. -13- the hearing. She knew the date and time of the hearing. Since all parties were properly served, the juvenile court did not err when it made a dispositional ruling immediately after the adjudicatory hearing. Judgment affirmed. -14- It is ordered that Appellee recover of Appellant her their 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 Division of Common Pleas 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. Exceptions. PORTER, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .