Opinion
110333
08-12-2021
IN RE F.M., ET AL. Minor Children Appeal by A.M., Mother
Adam Parker, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-18907381 and AD-20909151
Judgment: Affirmed
Adam Parker, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, PRESIDING JUDGE
{¶ 1} This appeal is from a permanent custody determination made by the Juvenile Division of the Cuyahoga County Court of Common Pleas, which awarded permanent custody to the Cuyahoga County Division of Children and Family Services ("Agency"). AM. ("Mother") appeals that court's decision and assigns two errors for our review. For the reasons set forth below, we overrule the assignments of error and affirm the judgment of the juvenile court.
I. Factual Background and Procedural History
A. F.M.
{¶ 2} F.M. was born to appellant-Mother on June 6, 2018. On June 11, 2018, the Agency filed a complaint alleging that Mother had been displaying mental health issues that interfered with her ability to adequately parent the child. The complaint also alleged that the father, W.C., is a registered sex offender.
{¶ 3} At a September 5, 2018 hearing, Mother admitted to the allegations of an amended complaint:
1. After delivery of the child, Hospital staff believed the mother was exhibiting manic symptoms. In addition to exhibiting grandiose and fleeting thoughts, which Mother asserts were possible reactions to hospital-administered medications. Mother has been asked to complete a mental health assessment but has not done so.
2. Mother lacks provisions with which to care for the Child at this time.
3. Mother has another child who is not in her care and custody. The child was committed to the legal custody of maternal grandmother in Georgia on January 23, 2015. See Superior Court of Cobb County, Georgia Case No. 14-1-007929-40. The child was subsequently committed to the guardianship of his maternal aunt in March, 2017. See Cuyahoga County Probate Court Case No. 2017GRD222129.
4. Alleged father, [W.C.], has not yet established paternity and is not willing to care for the child at this time.
5. [W.C.] has a prior conviction of rape and corrupting another with drugs. See case no. CR-02-421714-ZA. [W.C.] is a registered sex offender. See registration no. 24046.
6. Alleged father, John Doe, has failed to establish paternity and has failed to support, visit, or communicate with the child since birth.(Entry and Opinion, Docket Nos. 52-57).
{¶ 4} The juvenile court determined that F.M. was a dependent child based on that admission and awarded temporary custody to the Agency. On April 26, 2019, nearly a year later, the Agency filed a motion to modify the temporary custody to permanent custody. That motion contended that the Agency was entitled to an order of permanent custody based on Juv.R. 19 and R.C. 2151.413. The case was set for pretrial on October 3, 2019, but the case was continued. The father intervened just over a month after the initial hearing date on November 22, 2019 and requested custody be granted to him or, in the alternative, to the paternal grandmother.
{¶ 5} Following a number of continuances, the court granted the Agency's motion for permanent custody following a dispositional hearing on January 28, 2021.
B. I.M.
{¶ 6} I.M. was born to Mother on May 21, 2020. Five days later, the Agency obtained temporary custody of I.M. in an action that was later dismissed. On October 28, 2020, the Agency filed a complaint alleging that I.M. should be adjudicated a dependent child and requested as disposition that the Agency be granted permanent custody. The case was set for an adjudicatory hearing on January 14, 2021. The court determined that I.M. was a dependent child at this hearing. The case was continued to January 28, 2021 where the court considered the Agency's motion for permanent custody of F.M. as well as the Agency's prayer in the complaint for permanent custody of I.M.
{¶ 7} The court incorporated the testimony of the January 14, 2021 hearing into the January 28, 2021 hearing.
C. Adjudicatory Hearing for I.M.
{¶ 8} On January 14, 2021, the juvenile court held an adjudicatory hearing for I.M.
{¶ 9} Gabrielle Uhrin testified that she was the social worker for I.M. She stated that in 2018 the court adopted a case plan to accomplish reunification for F.M. that required Mother to obtain "mental health services, basic needs and housing."
Q. Okay. Were there any other behaviors that you observed that made you think that she needed to get a mental health assessment?
A. Mom sometimes lacks basic needs skills. She's constantly needing to be reminded to hold the baby's head or not to overfeed the baby or there was a time that mom did try to give [F.M.] orange soda. There's just little things that she doesn't comprehend very well and we just wanted to make sure that everything was okay with mom mentally before we proceeded further.
{¶ 10} Uhrin also testified that F.M. and I.M. were Mother's second and third children. Mother's first child, A.M., was presently in the care of Mother's sister in Las Vegas. Ms. Uhrin also testified that regardless of instruction, Mother seemed to revert to prior conduct in providing care to I.M. Following argument, the court found I.M. to be dependent under R.C. 2151.04(B) & (D).
{¶ 11} This testimony was incorporated into the disposition hearing set for January 28, 2021.
D. Disposition Hearing
{¶ 12} At the disposition hearing, the Agency produced three witnesses. The Agency first produced Kathleen Miller a licensed social worker. She testified that she had training in diagnosing mental health issues. She stated that roughly half her day was spent "doing [] diagnostic or [] mental health assessments[.]" She diagnosed Mother with paranoid schizophrenia based on the criteria in the DSM-V. Miller's report then established a series of engagement goals, which the records indicate Mother did not pursue.
{¶ 13} Next the Agency called Ms. Uhrin to the stand. She testified that she was a social worker with the Agency. Ms. Uhrin testified that hospital staff observed manic behavior on the part of Mother and as a result contacted the Agency. She further stated that the Agency established a case plan for Mother. However, Mother did not follow up on any of the mental health treatment recommended in the plan. Uhrin testified that in her view the reason Mother did not follow up on any of the appointments is that Mother believed that nothing was wrong with her.
{¶ 14} Uhrin stated that Mother had difficulty changing F.M.'s diaper. Even after being told what to do, Mother continued to have difficulty in providing basic care for F.M. Uhrin also agreed that Mother attended nearly every visitation that she could with the children. The Agency first sought to place F.M. with Mother's half-sister. However, the Agency determined that this placement was not appropriate (this determination is not a challenged in this appeal).
{¶ 15} The Agency also considered placing F.M. with her paternal grandmother in Florida. However, Uhrin stated that the Agency did not think the placement appropriate because the grandmother stated that she would give unsupervised access to W.C.
{¶ 16} Uhrin also testified that Mother did not have the appropriate provisions for F.M. and has not gotten them in the last two and half years. Though she also stated that Mother could get the required provisions.
{¶ 17} Finally, the Agency produced Rhonda Wilson of Catholic Charities at the Hough Collaborative/The Fatima Family Center. She testified about Mother's reluctance to accept Section 8 housing that would be appropriate for the children.
{¶ 18} The father produced his mother as a witness. She testified about her home and her job. She also testified that she would permit her son to have unsupervised visits with the children should she be granted custody and not prohibited by any order. The Agency did not contest the appropriateness of this placement aside from the paternal grandmother's willingness to allow the Father unsupervised access to the children.
{¶ 19} Following the hearing, the court issued two separate opinions and entries, one in each case. The entries are identical except for slight differences that are not material to the present appeal. In each entry, the court found that
"the child's continued residence in or return to the home of [Mother] will be contrary to the child's best interest * * *. That one or more of the factors in division (E) of section 2151414 of the Revised Code exist and the child cannot be placed with one of the child's parents within a reasonable period of time or should not be placed with either parent; * * * [t]he parent has been convicted of or pleaded guilty to an offense listed in [R.C.] 2151.414(E)(6) or 2151.414(E)(7)."(Opinions and Entries of 02/11/2021 in Case No. AD20909151 & 02/12/2021 in Case No. AD18907381 ("Judgment Entries")).
{¶ 20} Without using so many words, the court determined that granting permanent custody to the Agency for F.M. was appropriate under R.C. 2151.414(B)(1)(a):
The child is not abandoned or orphaned, * * * and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
{¶ 21} The court also must consider the statutory factors supporting the determination that "the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents." R.C. 2151.414(B)(1)(a) and 2151.353(A)(4). For the purposes of the present appeal, neither the court nor the appellant distinguish in a meaningful way between F.M. and I.M. Both the complaint and the motion required the court to determine that the child could not or should not be placed with the child's parents and that the placement with the Agency was in the best interest of the child.
E. Court's Findings Regarding Mother
{¶ 22} The judgments below only state that "notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home." (Judgment Entries.) Thus, the court below found that the child could not be placed with Mother under R.C. 2151414(E)(1) ("the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home.").
F. Court's Findings Regarding the Father
{¶ 23} As to the father, he had pleaded guilty to violations of R.C. 2907.02 and 2925.02. (Ex. 5.) The juvenile court determined that the child could not be placed with the father because "[t]he parent has been convicted of or pleaded guilty to an offense listed in [R.C] 2151.414(E)(6) or 2151.414(E)(7)." (Judgment Entries.) The Father has separately appealed the juvenile court's judgment in 8th Dist. Cuyahoga No. 110350. The court will address his arguments in that appeal.
G. Court's Findings Regarding Paternal Grandmother
{¶ 24} The juvenile court also considered a placement with the paternal grandmother at the hearing. The juvenile court determined that while this placement could have been appropriate except that "[h]er testimony provided concern for the court regarding her cavalier attitude about her son's Rape and Corrupting a Minor with Drug convictions. [She] maintained that she would eventually allow her son to have unsupervised visitation with the girls if she were granted legal custody and given unfettered control over visitation." (Judgment Entries.) For the same reason that the juvenile court determined the children could not be placed with the father, the juvenile court also determined that the children could not be placed with the paternal grandmother.
II. Standard of Review
{¶ 25} When proceeding via motion for permanent custody "the trial court must find by clear and convincing evidence: (1) the existence of any one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (d) and (2) that granting permanent custody to the agency is in the best interest of the child." In re M.S., 2015-Ohio-1847, 34 N.E.3d 420, ¶ 27 (8th Dist.). The condition under division B that the juvenile court relied on depended on a finding that "the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents." R.C. 2151.414(B)(1)(a). Thus, the court needed to make findings under division E, which guides a court in determining "whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents[.]" R.C. 2151.414(E).
{¶ 26} Similarly,
"[w]hen proceeding on a complaint with an original dispositional request for permanent custody, the trial court must satisfy two statutory requirements before a child can be placed in the permanent custody of a children's services agency * * *. [T]he juvenile court may commit the child to the permanent custody of a public children services agency, if the court determines (1) in accordance with R.C. 2151.414(E) that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent and (2) in accordance with R.C. 2151.414(D)(1) that the permanent commitment is in the best interest of the child."In re L.S., 2021-Ohio-510, 168 N.E.3d 149, ¶ 42 (8th Dist.) (quotations and alterations omitted).
{¶ 27} "Clear and convincing evidence" is that measure or degree of proof that is more than a "preponderance of the evidence," but does not rise to the level of certainty required by the "beyond a reasonable doubt" standard in criminal cases. In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It "produces in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." In re M.S., 2015-Ohio-1847, at ¶ 18; see also In re J.F., 11th Dist. Trumbull No. 2011-T-0078, 2011-Ohio-6695, ¶ 67 (a permanent custody decision "'based on clear and convincing evidence requires overwhelming facts, not the mere calculation of future probabilities'") (emphasis omitted), quoting In re A.J., 11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553, ¶ 76.
{¶ 28} We review a juvenile court's determination of a child's best interest under R.C. 2151.414(D) for abuse of discretion. In re DA., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. An abuse of discretion is more than a mere error of law or judgment; it implies that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). While a juvenile court's discretion in a custody proceeding is broad, it is not absolute. "A trial court's failure to base its decision on a consideration of the best interests of the child constitutes an abuse of discretion." In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446, ¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).
{¶ 29} Here, even though one child's permanent custody was determined via motion and one child's custody determined via complaint both assignments of error only raise issues under R.C. 2151.414(E) and 2151.414(D). Accordingly, the procedural differences between each child's case make no material difference in the present appeal.
III. Analysis of Assigned Errors
{¶ 30} Mother assigns two errors for our review. First, she contends that the juvenile court abused its discretion in awarding permanent custody to the Agency. Second, she contends that the appointed counsel below rendered ineffective assistance in failing to cross-examine the Agency's witnesses based on several lines of examination.
A. First Assignment of Error
I. The trial court abused its discretion in finding that permanent custody was in the best interest of the children
{¶ 31} According to the Appellant, the juvenile court focused on two issues to support the court's determination that granting permanent custody to the Agency was in the best interests of the child: mother's mental health and mother's housing difficulties.
{¶ 32} With regard to the statutory best-interest-factors, this court has held: "There is not one element that is given greater weight than the others pursuant to the statute * * *. This court has stated that only one of these enumerated factors needs to be resolved in favor of the award of permanent custody." In re S.C., 8th Dist. Cuyahoga No. 102350, 2015-Ohio-2410, ¶ 30 (quotation and citation omitted).
{¶ 33} Here, the court below determined that Mother has failed to complete the case plan and based on the interaction between each child and Mother that Mother's "mental health interferes with her ability to properly care for her children." (Judgment Entries.) The court noted that both Mother and Father regularly visited the girls and it also noted that "F.M. and I.M. are in the same foster home. Both girls are thriving in their current placement." Id. Further, the court noted that both guardians ad litem "recommended the children be placed in the Permanent Custody of the [Agency]." Id.
{¶ 34} Neither the court below nor the Appellant concentrate on the factors laid out in R.C. 2151.414(D). However, the court did specifically find that both guardians ad litem recommended the award of permanent custody. R.C. 2151.414(D)(1)(b). The balance of the court's Judgment Entries rested on Mother's mental health with consideration of F.M. and I.M.'s current placement in the foster home. R.C. 2151.414(D)(1)(a) (the relationship between "the child with the child's parents"). In any event, since the Appellant contends the juvenile court erred in considering Mother's mental health and housing, we concentrate on those factors.
1. Mother's Mental Health
{¶ 35} Appellant contends that the Agency's showing with respect to alleged mental health issues could not justify granting permanent custody to the Agency. "[T]he evidence * * * indicated, at most, that [Mother] had untreated mental health issues. It did not show how these issues made [Mother] unable to care for her children[.]"
{¶ 36} The court below determined:
Mother initially went to the Centers for Families and Children to complete her Mental Health Assessment. The therapist concluded after using the DSM five measuring tool that Mother was exhibiting the following characteristics: disorganized thinking, delusions, fidge[ting], audio and visual hallucinations. She told the therapist that she communicated with ghosts and that she had been pregnant for thirteen (13) months. The therapist diagnosed her as suffering from Paranoid Schizophrenia. The therapist from Moore's did not support the Center's diagnosis of Paranoid Schizophrenia but did want Mother to engage in further testing; that she did not do.
Mother's explanation that she was fidget[ing] due to working thirteen hours i[s] flawed and lacks any scientific support. Moreover, Social worker Uhrin stated that mom was also fidget[ing] during her visits. Additionally, Mother cannot explain why the other concerning mental health issues: talking and interacting with ghosts, disjointed conversations and other delusions have gone unaddressed. Accordingly, Mother has failed to comply with the Case Plan's Mental Health Assessment condition. Also, her mental health interferes with her ability to properly care for her children.(Judgment Entries.)
{¶ 37} Contrary to Appellant's argument, Uhrin testified that Mother had difficulty performing basic tasks such as changing diapers and supporting F.M.'s head when holding her. Furthermore, even though Mother had the financial means to pay for appropriate provisions (furniture, food, etc.) she had not done so.
2. Mother's Housing
{¶ 38} Mother contends that the Agency showed "at most, that for some periods of time prior to the permanent custody hearing, Mother lived in housing that would not have been suitable for the two children." Mother had obtained new housing shortly before the January 14, 2021 hearing. Furthermore, the Agency concedes that this housing was appropriate. However, this housing was obtained more than two years after the first case plan filed with respect to F.M. Notwithstanding substantial testimony of continued efforts of the Agency and various organizations to provide Mother with appropriate housing she declined for two years to pursue any of those opportunities.
{¶ 39} The court below determined:
Although, Mother has a job and can provide for the basic needs of F.M. and I.M., she only acquired appropriate and suitable housing for her and the girls a few days before the dispositional hearing, when housing has been a concern for more than two years. Mother failed to obtain the housing notwithstanding Social Worker Uhrin's referrals and the efforts by Ms. Wilson from the Hough/Fatima collaborative. Thus, Mother has only complied with one condition of the case plan and therefore has failed to remedy the reasons for the children's removal.(Judgment Entries.)
{¶ 40} In any event, the court below expressly determined that Mother had obtained appropriate housing and so its decision did not rest on the view that Mother did not have appropriate housing nor did the juvenile court's determination rest on prior inadequate housing. Instead, the decision noted that Mother only took the step of obtaining appropriate housing two years after the first case plan was entered in F.M.'s case.
{¶ 41} There does not appear to be any dispute that for the two years of the case plan for F.M. that Mother's housing was not appropriate for the children. Nor is there any dispute that Uhrin and Wilson provided materials for Mother to obtain housing but that Mother did not do so. Thus, it took more than two years for Mother to fulfill this part of the case plan. There is no indication that Mother disputes that her prior housing was inadequate for the children.
{¶ 42} By contrast, Mother did not agree that she had any mental health issues. Indeed, the record discloses that she went to initial screenings but did not follow up with any the treatment or examinations recommended by any of the initial screenings.
{¶ 43} In any event, as noted by Appellant, the precise categorization of Mother's mental health difficulties is unimportant. Indeed, Miller agreed that another provider who treated Mother at a different time might reasonably reach a different diagnosis. The issue is not whether Mother suffers from paranoid schizophrenia or some other mental health disease. Rather, the issue is that Mother has observed behaviors that prevented her from providing basic care to her children. Further, Mother had made no effort to address this issue in the two years that F.M. was in the temporary custody of the Agency.
{¶ 44} Citing an earlier case from this court, Appellant contends that the juvenile court's determination rests "more on possibilities than clear and convincing evidence[.]" In re M.S., 2015-Ohio-1847, 34 N.E.3d 420, ¶ 59 (8th Dist). However, In re M.S. is distinguishable for two reasons. First, the juvenile court in the present case heard testimony of witnesses who directly observed Mother having difficulty providing basic care to the children. Second, the appellant in that case had "taken significant steps toward completing the original case plan[.]" Id. at ¶ 60. Here, in the two years that F.M. was in the custody of the Agency, Mother has not followed up with recommended treatment for the mental health issues identified in the original case plan.
{¶ 45} Appellant also contends that an opinion from the Second District Court of Appeals supports reversal. However, in that case "no one provided any testimony regarding the best interest of the children except to say that the children were doing well in their foster care placements." In re R.L., 2d Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 19. Here, while the juvenile court did not expressly identify upon which factors under R.C. 2151.414(D) it relied, there was substantial testimony concerning the relationships of the children and the parents, their placement in the foster home, Mother's lack of follow-up on her mental health issues as well as the wishes of the children as expressed through the guardians ad litem.
{¶ 46} We cannot say that the juvenile court abused its discretion when it determined that by clear and convincing evidence that it was in the best interest of F.M. and I.M. that the Agency have permanent custody due to Mother's refusal to seek mental health treatment.
B. Mother's Second Assignment of Error
II. Appellant Received Ineffective Assistance of Counsel when Trial Counsel failed to Object to Opinion Testimony Offered Without Proper Foundation and Failed to Cross Examine one of Plaintiffs Witness on the DSM-5.
{¶ 47} Mothers' second assignment of error contends that appointed counsel below was ineffective in failing to challenge the testimony of several of the Agency's witnesses.
{¶ 48} The right to counsel, guaranteed in juvenile proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right to the effective assistance of counsel. In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998).
{¶ 49} "Where the proceeding contemplates the loss of parents' 'essential' and 'basic' civil rights to raise their children, * * * the test for ineffective assistance of counsel used in criminal cases is equally applicable to actions seeking to force the permanent, involuntary termination of parental custody." Id.
{¶ 50} In order to establish a claim of ineffective assistance of counsel, appellant must demonstrate that her trial counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Prejudice is demonstrated when appellant proves that, but for counsel's actions, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 694. A strong presumption exists, however, that a licensed attorney is competent and that the challenged action reflects sound trial strategy within the range of reasonable professional assistance. In re K., 8th Dist. Cuyahoga No. 83410, 2004-Ohio-4629, ¶ 17.
1. Appellant has not Shown that Trial Counsel was Ineffective for Failing to Challenge the Foundation for the Diagnosis of Paranoid Schizophrenia
{¶ 51} First, Appellant contends that trial counsel rendered ineffective assistance of counsel in failing to challenge Miller's ability to diagnose Mother with paranoid schizophrenia. "CFS failed to establish that [Miller] was qualified as an expert by knowledge, skill, experience, training, or education, or that her diagnosis was based on reliable scientific information."
{¶ 52} Appellant contends that social workers may not diagnose patients under the Ohio Administrative Code. Appellant cites to Ohio Adm.Code 4757-21-02(D). As Appellee notes, the Revised Code does authorize a "a social worker [to] diagnose * * * mental and emotional disorders, except that a social worker may do so only under the supervision of a[n] * * * independent social worker[.]" R.C. 4757.26(A). Miller testified that she worked under the supervision of an independently licensed social worker.
{¶ 53} Furthermore, the Appellee is correct that the fundamental finding of the juvenile court was not under R.C. 2151.414(E)(2) but rather (E)(1), and that finding rests not on a diagnosis for paranoid schizophrenia, but rather rests on the failure of Mother to follow the requirements of plan entered on the docket below on July 18, 2018. That is, whether Mother has paranoid schizophrenia or some other mental health issue was not central to the ruling below. Rather, it was Mother's refusal for the two years of the case plan to follow up with any treatment to remedy the observed behaviors that made the Agency determine that the child could not be placed with Mother.
{¶ 54} Indeed, even the evaluation from Moore Counseling that disagreed about whether Mother had paranoid schizophrenia had designated her for follow up for further assistance with her mental health issues. There does not appear to be any dispute that Mother did not attend any follow up sessions.
{¶ 55} In the slightly more than two years that F.M. was in the custody of the Agency, Mother did not make any sustained effort to address any of the mental health issues that caused the initial placement.
2. Appellant has not shown that Trial Counsel was Ineffective for Failing to Cross Examine the Social Worker based on Mother's Previous Housing
{¶ 56} Next, Appellant contends that counsel was ineffective below because there was no foundation for Uhrin's opinion testimony concerning "Mother's home in 2018 was not safe, or [was] inappropriate for her children." Uhrin stated that Mother's housing consisted of either living with her grandfather, her mother or living in a homeless shelter. Appellant contends that Uhrin was offering an expert opinion and needed to be certified as an expert to testify.
{¶ 57} Uhrin testified concerning Mother's housing as follows: "When [F.M.] was born she had housing, but it was inappropriate for a child. The floor was caving in, it was filled with bugs. Mom believed that there were ghosts in the home."
{¶ 58} Nothing in the record suggests that Uhrin could not have been qualified as an expert in childcare sufficient for the purposes of Evid.R. 702. Furthermore, it is plausible that a social worker could be certified as an expert concerning child welfare. See, e.g., State v. Dial, 8th Dist. Cuyahoga No. 83847, 2004-Ohio-5860, ¶ 42 (describing social worker's testimony as an expert on children under circumstance of alleged abuse).
{¶ 59} In any event, we have no difficulty in saying that the counsel below may have reasonably determined that concentrating on Mother's housing in 2018 was a poor strategy as opposed to emphasizing the fact that Mother had obtained appropriate housing before the hearing. Further, given other testimony that Mother wore garlic to ward off the ghosts who were present at that housing, spending significant time discussing that housing may have been not best calculation to persuade the court that Mother did not have mental health issues that made placing the children with her inappropriate.
3. Appellant has not shown that Counsel was Ineffective for Failing to Cross-Examine Regarding the Diagnosis of Paranoid Schizophrenia
{¶ 60} Appellant next contends that counsel below rendered ineffective assistance of counsel when counsel failed to adequately cross-examine Miller on the basis of her diagnosis for paranoid schizophrenia. In particular, Appellant contends that counsel should have made the point that the DSM-5 states that "cultural and socioeconomic factors must be considered[.]" Further, Appellant contends that counsel should have also inquired about how long Miller observed Mother having these symptoms since the DSM-5 requires the symptoms to be exhibited for a significant portion of a one-month period.
{¶ 61} There are two problems with this argument. First, the DSM-5 or the relevant passages are not in the record. Accordingly, Appellant is attempting to introduce evidence on direct appeal in her brief. Second, counsel for Mother did cross-examine Miller on the diagnosis of paranoid schizophrenia. Counsel chose to emphasize the fact that another provider did not diagnose Mother with paranoid schizophrenia:
Q. Would you be surprised that she had a follow-up assessment with another provider who felt that she did not meet the criteria for paranoid schizophrenia.
A. Again, I'm looking at the one moment in time when I see her and those symptoms -
Q. For an hour, correct?
A. Correct.
Q. Is it possible when someone does an assessment with you and then goes to see someone else that the diagnoses might be different?
A. Yes.
Q. Why might they be different?
A. Well, again, you know we're looking at one moment in time and we're also looking at, you know, how they present themselves, how much they volunteer, and if you're able to gather background information.
The clear implication from Miller's testimony is that it would be unexceptional for Appellant to be diagnosed as a paranoid schizophrenic in one assessment but diagnosed as not a paranoid schizophrenic in another assessment. The difference being that the Appellant might not exhibit the same symptoms at both assessments. In context, counsel below secured the agreement of the witness that the diagnosis would have been subject to revision with further assessment.
{¶ 62} The primary issue is not the specific diagnosis. Rather, the issue is that the Agency witnesses observed mental health issues of Mother and, regardless of how those issues were classified, that Mother was making no real effort to address them.
{¶ 63} Accordingly, we overrule Mother's second assignment of error.
{¶ 64} Judgment affirmed.
It is ordered that appellee recover from appellant 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 Cuyahoga County Common Pleas Court, Juvenile Division, 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.
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY