In re R.H. , 2012 Ohio 1811 ( 2012 )

[Cite as In re R.H. , 2012-Ohio-1811.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
R.H. : Hon. Julie A. Edwards, J.
:
MINOR CHILD :
: Case No. 2012-CA-00008
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2010JCV00051
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JERRY COLEMAN STACEY M. ZIPAY
SCDJ & FS Stark County Public Defender
110 Central Plaza S. 200 W. Tuscarawas St., Suite 200
Canton, OH 44702 Canton, OH 44702
[Cite as In re R.H. , 2012-Ohio-1811.]
Gwin, P.J.
{¶1} Appellant L.H., the mother of the minor child R.H., appeals a judgment of
the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, overruling her
motion to continue the final hearing on appellee Stark County Job & Family Services’
motion for permanent custody of R.H. Appellant assigns a single error to the trial court:
{¶2} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
TO CONTINUE THE PERMANENT CUSTODY TRIAL.”
{¶3} On December 13, 2011, the trial court conducted a hearing on the motion.
Appellant was not present, but was represented by counsel. At the start of the hearing,
appellant’s counsel moved for a continuance of the proceedings, indicating she had not
been able to contact appellant. Appellant’s counsel stated she had spoken with the on-
going case worker, who told her appellant wished to stipulate to the matter, but was
very depressed. Appellant’s counsel asked the court to continue the matter in order to
give her the opportunity to go to appellant’s home and attempt to speak with her there.
{¶4} Appellee responded that it would not object to a continuance if the court
would name an expedited date so the matter could be heard quickly. However, if it
would be months before the case would come back before the court, appellee would
prefer to proceed immediately. The court proceeded with the hearing.
{¶5} A parent has a fundamental liberty interest in the care, custody, and
management of his or her child and an essential and basic civil right to raise his or her
children. In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990). However, a
parent's right is not absolute. “The natural rights of a parent * * * are always subject to
Stark County, Case No. 2012-CA-00008 3
the ultimate welfare of the child, which is the polestar or controlling principle to be
observed.” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{¶6} At the hearing, the on-going case worker testified she spoke with appellant
approximately a week prior to the hearing, on a Monday. Appellant was very upset and
said she wanted Wednesday to be her final visit with her son. Appellant indicated she
would sign over her rights and just be done with it all because she had worked with the
agency for six years and needs to move on and work on herself. The case worker
testified she informed appellant a semi-annual review was scheduled for the following
day, Tuesday, and they could sign the necessary paperwork then and do the final visit
on Wednesday. Appellant indicated to the case worker she would come on Tuesday,
but did not appear.
{¶7} The case worker testified appellant had not visited with R.H. for
approximately a month prior to this hearing, and had cancelled a lot of visits because of
her health and the stress associated with her involvement with appellee. The case
worker testified she had unsuccessfully attempted to contact appellant the morning of
the hearing.
{¶8} The record indicates R.H. had been in appellee’s custody since he was
three days old, and at the time of the hearing he was nearly two years old.
{¶9} The decision to grant or deny a motion for continuance rests within the
sound discretion of the trial court. State v. McMilen, 113 Ohio App.3d 137, 680 N.E.2d
665 (3rd Dist.1996). This court may not reverse a court’s decision unless we find it has
abused its discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).
The Supreme Court has defined the term abuse of discretion as demonstrating the trial
Stark County, Case No. 2012-CA-00008 4
court’s attitude is unreasonable, arbitrary, or unconscionable. See, e.g., Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} We find the trial court did not abuse its discretion in overruling the motion
to continue the permanent custody hearing. Appellant had notice of the hearing and
was represented by counsel at the hearing.
{¶11} The assignment of error is overruled.
{¶12} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, of Stark County, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0409
[Cite as In re R.H. , 2012-Ohio-1811.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE:
R.H. :
:
MINOR CHILD :
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2012-CA-00008
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS