COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 75533, 75534, 75535, 75536, 75537, 75538, and 75539 IN THE MATTER OF: RYAN NICHOLSON [75533], ROSELYN NICHOLSON [75534], RUBEN NICHOLSON [75535], JOURNAL ENTRY RAULENTINO SMITH [75536], ROMERO SMITH [75537], AND RANONA SMITH [75538], RACQUARDO SMITH [75539], OPINION Plaintiff-appellee DATE OF ANNOUNCEMENT OF DECISION: JANUARY 27, 2000 CHARACTER OF PROCEEDING: Civil appeals from the Juvenile Court Division of the Common Pleas Court, Case Nos. 9591155, 9591154, 9591153, 9693926, 9693928, 9793277, and 9591149, respectively. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor CHERYL RICE LANE, ESQ. Assistant County Prosecutor Cuyahoga County Department of Children's and Family Services 3955 Euclid Avenue Cleveland, Ohio 44115 THOMAS J. KONET, ESQ. Guardian Ad Litem: 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For appellant, Catherine JAMES A. DRAPER Nicholson: Cuyahoga County Public Defender KATHLEEN W. WOOD, ESQ. Assistant Public Defender 100 Lakeside Place (continued on next page) 1200 West Third Street Cleveland, Ohio 44113-1569 (cont.) Catherine Nicholson 1860 Roxford Road East Cleveland, Ohio 44112 -2- KARPINSKI, P.J.: These seven consolidated appeals challenge orders of the juvenile court terminating appellant Catherine Nicholson's parental rights to seven of her children and awarding permanent custody to appellee Cuyahoga County Department of Children and Family Services ( CCDCFS ). This matter commenced in April 1995 with the filing of a series of complaints. During the course of the proceedings all children were found to be dependent. Nicholson stipulated to this finding. Approximately three and one-half years later, after her failure to complete her case plan, the juvenile court terminated her parental rights. She now appeals, without challenging any of the juvenile court's factual findings, raising four assignments of error. Nicholson's first assignment of error follows: THE COURT'S CONSIDERATION OF THE GUARDIAN AD LITEM'S REPORT AFTER THE FINAL HEARING VIOLATED APPELLANT'S DUE PROCESS RIGHTS AND THE EXPRESS PROCEDURAL REQUIREMENTS OF R.C. 2151.414(C). This assignment lacks merit. Nicholson's first assignment complains that the guardian ad litemdid not file his written report until the day after the final hearing. She acknowledges, however, that the guardian did appear at the permanent custody hearing and stated his recommendation that termination of her parental rights was in the best interest of the children. -3- This court has previously held that absent a timely objection in the trial court no reversible error occurs, even when no guardian report is ever filed. In re Cordell, Cuyahoga App. Nos. 60049 and 60050, unreported at p. 6, citing Shiflett v. Korp (Sept. 27, 1990), Cuyahoga App. No. 58293, unreported at p. 6. As in Cordelland Shiflett, Nicholson never objected, before, during, or after trial, to the procedure followed in the case at bar and, therefore, waived any claim of error. Nicholson does not challenge the trial court's findings or the sufficiency of the evidence to support the termination of her parental rights. The guardian ad litem appeared at the permanent custody hearing and Nicholson was afforded a full opportunity to cross-examinehim regarding his opinions. She has not argued, let alone shown, how the filing of the guardian's written report one day after the hearing and before the trial court's judgment, resulted in any prejudice to her. Accordingly, Nicholson's first assignment of error is overruled. Nicholson's second assignment of error follows: THE JUVENILE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DETERMINE WHETHER APPELLEE MADE REASONABLE EFFORTS TO ELIMINATE THE REMOVAL OF RANONA SMITH AND HER SIBLINGS FROM THEIR HOME. This assignment lacks merit. Nicholson argues the trial court erred by terminating her parental rights without making an express finding that the reasonable efforts had been made to eliminate the continued removal of the children from their home. It is noteworthy, -4- however, that Nicholson does not challenge the sufficiency of the evidence to support such a finding that CCDFCS made reasonable efforts during the course of more than three years since the filing of the original plan for reunification with her children. The Twelfth District Court of Appeals expressly rejected the argument that the failure to make an express finding of reasonable efforts per se constituted reversible error in In re Pieper Children (1993), 85 Ohio App.3d 318, 326. The court recognized that the reasonableness of the agency's efforts could be determined from the record. Id. The record in the case at bar shows that Nicholson was offered alcohol and substance abuse treatment, parenting education, and domestic violence counseling, as part of her case plan. She does not argue that any of these services or the requirement to complete them was unreasonable, that she requested any additional services, or even that any additional services would have been reasonable. It is undisputed that Nicholson did not complete the substance abuse program. She had years to do so. CCDCFS cannot force her to complete the program. Under the circumstances, Nicholson has failed to show reversible error. Accordingly, Nicholson's second assignment of error is overruled. Nicholson's third assignment of error follows: THE JUVENILE COURT'S FAILURE TO HOLD A DISPOSITIONAL HEARING FOR THE PURPOSE OF CONSIDERING THE BEST INTERESTS OF RANONA SMITH DENIED MS. NICHOLSON'S DUE PROCESS RIGHTS AND ABRIDGED HER FUNDAMENTAL RIGHT TO RAISE HER DAUGHTER. This assignment lacks merit. -5- Nicholson argues the juvenile court erred by failing t bifurcate the adjudicatory and dispositional hearings concerning her daughter Ranona. The trial court's journal entry found Ranona to be neglected as alleged in the complaint and stated, contrary to Nicholson's argument on appeal, that parties agreed to proceed immediately to disposition. The record shows that Nicholson invited the error about which she now complains by agreeing to consolidate it with the proceedings in the other cases. The third complaint involving Ranona proceeded to hearings with CCDCFS's motion for permanent custody of the other children. The other six cases did not involve adjudication issues, because Nicholson had already stipulated to finding each child to be dependent.1 At the outset of the pretrial hearing on October 28, 1997, Nicholson's counsel stated that it's the same issues on all the kids. The complaint involving Ranona proceeded to trial six months thereafter on June 23, 1998 with the other cases. Nicholson agreed to the procedure used, had notice concerning how the entire matter would proceed, and presented evidence concerning both the adjudication and disposition of Ranona at the consolidated hearing. Under the circumstances, the trial court could properly find that Nicholson waived the right to separate adjudicatory and 1 Nicholson likewise stipulated to finding Ranona to be dependent under two prior complaints. Ranona was originally returned to the custody of Nicholson, with an order of supervision entered on the second complaint. CCDCFS ultimately filed a third complaint for permanent custody, which required another adjudication and disposition. -6- dispositional hearings concerning Ranona when she agreed to consolidate proceedings involving all the children. See In re Littlejohn (May 7, 1998), Cuyahoga App. Nos. 71354, 71355 and 71356, unreported at pp. 6-7. Accordingly, Nicholson's third assignment of error is overruled. Nicholson's supplemental assignment of error follows: TRIAL COUNSEL'S FAILURE TO REQUEST SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW, FAILURE TO MAKE SPECIFIC OBJECTIONS TO THE MAGISTRATE'S DECISION, FAILURE TO FILE A TRANSCRIPT IN SUPPORT OF APPELLANT'S OBJECTIONS, AND FAILURE TO OBJECT TO SERIOUS PROCEDURAL DEFECTS IN THE PROCEEDINGS, DEPRIVED APPELLANT OF THE DUE PROCESS RIGHT TO COUNSEL PROVIDED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS 1, 2, 16 AND 19 OF ARTICLE I IN THE OHIO CONSTITUTION, R.C. 2151.352 AND JUV.R. 4(A). This assignment lacks merit. Nicholson argues that her court-appointed public defender provided ineffective assistance of counsel in the juvenile court. She raised this argument as a supplemental assignment of error in response to a motion by CCDCFS to dismiss this appeal for failure to preserve the above three assignments of error.2 The standard governing claims of ineffective assistance of counsel in permanent custody proceedings is the same standard that applies in criminal cases. In re Brodbeck (1994), 97 Ohio App.3d 652, 657; Jones v. Lucas Cty. Children Serv. Bd. (1988), 46 Ohio App.3d 85, 86; In re Cobb (Feb. 15, 1996), Cuyahoga App. Nos. 68994, 68995 and 68996, unreported at p. 7; In re Cooperman (Jan. 2 We denied CCDCFS's motion to dismiss by separate journal entry. -7- 15, 1995), Cuyahoga App. No. 67239, unreported at p. 9 (all citing Strickland v. Washington (1984), 466 U.S. 668). Under this standard, an aggrieved party must show deficient performance by counsel and resulting prejudice: First, 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 amend- ment. 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 is reliable. Strickland v. Washington,supra at 687; see, also, State v. Bradley (1989), 42 Ohio St.3d 136. As a result of our review of the record, we find that Nicholson failed to show either element in the case at bar. The record in the case at bar unambiguously reveals that, at a minimum, Nicholson had a substance abuse problem and failed over a period of years to comply with her case plan to complete a substance abuse program. No amount of lawyering could change these undisputed facts. See In re Cobb, supra at p. 7. Because this court is able to review every assignment of error presented by her new appellate counsel, it is not clear that trial counsel was deficient. Moreover, even if counsel were deficient as Nicholson contends, the record does not show that she was deprived of a fair trial or that her trial resulted in an outcome that was not reliable. Accordingly, Nicholson's supplemental assignment of error is overruled. -8- Judgment 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 Division of the 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. TIMOTHY E. McMONAGLE, J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI PRESIDING 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. 22. 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 journalization of this court's announcement of decision by the .