In re C.V. , 2023 Ohio 223 ( 2023 )

[Cite as In re C.V., 2023-Ohio-223.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE C.V., ET AL. :
: No. 111765
[Appeal by Mother, C.V.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 26, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-19-904487, AD-19-904488, AD-19-904489, AD-19-904490,
AD-19-904491, AD-19-904492 and AD-19-904493
Appearances:
Wargo Law, LLC, and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew Pappert, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, A.J.:
Appellant C.V. (“Mother”) appeals the juvenile court’s termination of
her parental rights to her minor children J.V., A.V., I.V., E.V., F.V., and Ja.V., as well
as a planned living arrangement for C.V. (“the children”), and the permanent award
of custody to the Cuyahoga County Department of Children and Family Services
(“CCDCFS”).1 We affirm the judgment of the trial court.
On April 15, 2019, CCDCFS filed a complaint alleging neglect and
dependency and requested temporary custody of the children. On the same day, the
court granted CCDCFS emergency custody of the children.
On June 18, 2020, after a hearing to extend temporary custody the
children, both Mother and Father, along with CCDCFS, agreed that temporary
custody be extended. On September 24, 2020, CCDCFS filed a motion to modify
temporary custody to permanent custody. The matter was continued on October 22,
and November 20, 2020.
On January 14, 2021, a pretrial hearing was held and Mother was
advised of her rights and waived reading of the motion. Upon agreement of all the
parties, the matter was continued on January 28, March 11, April 26, May 10, and
June 28, 2021. On August 25, 2021, a trial date was set. However, on November 1,
and December 6, 2021, the trial was continued. After a series of continuances, trial
was set for May 31, 2022. Mother filed for another continuance on May 23, 2022,
and the trial court denied Mother’s motion.
1 Father is not appealing the trial court’s permanency decision of the children.
On May 31, 2022, the trial court terminated Mother’s and Father’s
parental rights, and placed the eldest child, C.V., in a planned permanent living
arrangement and the younger six children in the permanent custody of CCDCFS.
I. Facts and Procedural History
Mother and Father shared custody of the children, however, Father
was the residential parent. According to the complaint filed by CCDCFS on April 15,
2019, Father was hospitalized on April 3, 2019, and was then discharged to a nursing
home, which rendered him unable to care for the children. While Father was
hospitalized, mother was supposed to care for the children, but was inconsistent due
to her untreated mental health issues, including bipolar disorder and depression.
On April 12, 2019, the children were removed from Father’s home and committed
to the custody of CCDCFS. The children were placed in the temporary custody of
CCDCFS on July 29, 2019, and have been in the custody of CCDCFS since that date.
On May 31, 2022, at the beginning of the trial, Mother requested a
continuance because she was having telephone issues and was unable to return her
attorney’s text messages or telephone calls. Additionally, Father’s attorney also
requested a continuance because Father was unable to attend trial due to being in a
nursing home. CCDCFS opposed both requests for continuances, stating:
Starting with father, the amputation was actually several years ago. He
is in a nursing home, however, the nursing home has been willing to
provide transportation for him as long as he requests it.
To my knowledge, he just simply has not requested it for today’s trial.
In regard to mother, I’m not sure what the exact documentation is that
she would provide and how it would make a difference.
This permanent custody motion has been pending for over a year and
a half. The children were removed over three years ago.
And at this time, mother is only residing — she doesn’t even have her
own housing. She is residing with someone else in a one-bedroom
house. She hasn’t had housing for three years. And in addition to
compliance with the other [sic] of her case plan, I don’t see how any
documentation she might be able to obtain in the next couple of weeks
would change this matter.
(Tr. 6-7.)
The trial court denied Mother’s and Father’s motion and stated:
This matter has been continued multiple times already. These children
have been in the custody of the Agency for more than three years.
I am not continuing this any longer.
Moreover, I think I had mentioned in the motion — strike that — in the
Court’s order denying the motion for a continuance that whatever
documentation you had, you could bring it to court on today.
And apparently, you did not do that.
Moreover, you’ve had a sufficient amount of time to provide that
documentation to counsel well before today’s date. In light of the fact
that this trial has been continued at least three times.
So, no, we are not going a day beyond this afternoon in terms of making
a decision regarding the Agency’s motion.
So that motion to continue beyond today is denied.
(Tr. 7-8.)
A. Social Worker Stover’s Testimony
At the trial, Amanda Stover (“Stover”), an extended services
supervisor with CCDCFS testified that
[t]he Agency filed for permanent custody due to the concerns that
brought the children into care not being remedied. There were still
concerns with mother’s mental health at the time. There were concerns
with father’s physical health and his inability to provide for the
children. There were concerns with both mother and father’s lack of
housing. And there were also concerns with their inability to meet the
basic needs of the children.
(Tr. 18.)
Stover specifically testified that Father was diagnosed with diabetes
and had failed to manage it. Father was in and out of a nursing home and had both
legs amputated. Mother did not have stable housing and would visit the children
while they lived with Father. However, Father had a two-bedroom home and was
living with a roommate, which made his housing inappropriate for seven children.
CCDCFS referred Father to Eden Housing services to attempt to get suitable housing
for himself and the children, but Father was unable due to his medical issues and
returning to the nursing home.
Stover also testified that mental health was a concern for both
parents. Father was previously engaged in mental health services, but had to stop
due to his physical health. Mother was referred to mental health services. Mother
engaged in those services and was initially coming to Father’s home to help care for
the children. However, Mother stop visiting the children at Father’s home and
instead was taking them to where she was staying. This was a concern to CCDCFS
because the children were staying in an unapproved, unknown location. Many of
the children were also not receiving their medication while staying with Mother. As
a result, CCDCFS recommended supervised visitations with Mother.
During cross-examination, Stover testified that she transferred the
case in July 2021 and has not had any contact with the family since that time. Stover
also testified that Mother was compliant with taking her medications and
participating in counseling services through Recovery Resources. Stover stated that
towards the end of her supervision of the case there were some concerns that Mother
had stopped taking her medications.
B. Social Worker Keener’s Testimony
After Stover’s testimony, Crystal Keener (“Keener”), an extended
social worker that is currently assigned to the case, testified that she was assigned to
the case in July 2021. Keener stated that after investigating the current situation
with the children and the parents, “it was found that things that were going on at the
overnights were not appropriate.” (Tr. 36.) Keener further testified that:
So what I had learned — First off, the rules were the overnights were
supposed to be happening in dad’s home and mom was supposed to be
there, and the kids were not to leave, not to go to anyone else’s homes.
The overnights were supposed to remain in the home.
After that, I found out that the kids were being removed from the home
at times. At times mom wasn’t there — wasn’t there 24/7 at the
overnights when she was supposed to. Other people were around the
children, as well, at the overnights that weren’t supposed to be there.
***
During the overnights, from what I learned from the children, were the
children were taking care of their father, admini — administering their
med — his medication. He is on insulin because he is diabetic.
(Tr. 38-39.)
Keener further testified that she was concerned that the children were
responsible for taking care of Father instead of Mother and Father taking care of the
children. Keener was also concerned about the people around the children, and
stated, “[t]here was a lot of things that were occurring that weren’t looked into, and
once I looked into it, it felt that it was a safety concern for the children, ultimately,
and people that were being around at the visits, as well.” (Tr. 42.) Keener informed
the children that they were no longer allowed to visit Father and Mother without
supervision.
Keener was responsible for taking the children to visit Father in his
home. However, she testified that the supervised visitation at Father’s home did not
work out. She testified that she asked Father to wait for her and the children
downstairs, outside of his home. However, when she arrived with the children,
Father was not outside and instead provided Keener with the code to come into the
house. Keener stated that when she unlocked the door, two of the children
immediately ran into the house because they were excited to see Father. However,
the children came back downstairs about 30 seconds later. Keener further stated:
The children then returned downstairs within 30 seconds and said —
this is exactly what they said — dad had pooped all over the house.
So I asked the kids to please stay downstairs with me, and I told dad I
would give him 15 minutes to get the home appropriate because we
couldn’t have the visit upstairs if there was feces all over.
And 15 minutes went by. I checked in with dad again. Dad stated that
he was still cleaning up.
At that point, [E.V.] had ran back upstairs. I was not able to stop him.
And he assisted with cleaning up dad’s mess. That’s when I asked
[E.V.] to please come downstairs because that was not his job and he
should not be put in that position to clean up after his father.
Forty-five minutes had gone by and I told dad that we could no longer
wait outside, that we did need to leave the premises and we could
reschedule a visit.
Dad did get very upset, started yelling, started throwing things upstairs,
and that’s when we departed.
(Tr. 45-46.)
After that incident, Keener testified that she and the children never
returned to Father’s home and instead met him at a nearby park for visits. Keener
stated that Mother was more consistent with the visits in the park because of
Father’s mobility issues. CCDCFS offered Father assistance in finding a home health
aide, but Father denied their assistance. Keener testified that once the weather got
colder, the visits were moved to West Side Community House. Again, Mother was
more consistent with visits, and Father less consistent. When describing Father’s
interaction with the children during visits, Keener testified:
Dad has minimal interactions with the kids. He usually sits there on
his phone. He will interact with them if they come over to the table that
he is at, but he doesn’t really play games with the children.
I understand that he is wheelchair bound, but he won’t go over to them.
He’ll — They’ll come over to him and he’ll talk to them, but a lot of the
times, he’ll leave the visit for about a half hour to smoke a cigarette
outside. So he didn’t — he was there, but he wasn’t fully there
participating with his children, unfortunately.
(Tr. 50.)
Keener described Mother’s interaction with children as consistent
and occurring often. However, “Mother does have a lot of anxiety. When her anxiety
is high, which is often, it is harder for her to control the younger children and to get
them to not be running around like animals.” (Tr. 58.) Keener also testified that
Mother does tell me — whenever she does have anxiety at visits, she
does bring it up to me so she can step aside. During those times, mother
has told me that she has missed her medication and she just —
It’s a lot. There’s seven kids. And a lot of little ones that she has to
watch after, and when she’s not taking her medication, it makes the
anxiety and her panic attacks a lot larger.
Id.Keener continued testifying about Mother’s health, stating that
Mother was diagnosed with schizophrenia, bipolar disorder, and anxiety with panic
attacks. In addition, Keener has sent Mother for drug screenings, and Mother has
not submitted to any of the screenings. Mother would give different excuses to
Keener about why she missed her drug screenings, specifically, “[t]here was a couple
of times she was sick. She also did not have her vehicle. And then sometimes she
stated that she did not get my texts or phone calls regarding the — me sending her.
So there were some barriers she stated.” (Tr. 62.)
In addition to Mother’s mental health and sobriety, there were
concerns about her having stable housing for the children. Mother was referred to
West Side Community House, which provides help to clients with regards to
obtaining housing. Keener testified that initially Mother was going to live with
Father. (Tr. 63.) However, they did not get along, and Mother moved in with a
friend. Keener was not able to visit Mother’s place of residence and was advised that
Mother was living in a one-bedroom home with her friend. Keener stated that
Mother was honest that her living situation was not appropriate for her and her
children. Keener was also concerned with the fact that Mother’s boyfriend was a
registered sex offender, whose victim was under 13 years of age. (Tr. 64.) However,
Mother told Keener that she was no longer in a relationship with the boyfriend.
Keener also testified that Father’s mental and physical health and lack
of stable housing were an issue. Father currently lives in a nursing home and was
diagnosed with depression, anxiety, and bipolar and schizo-affective disorders.
(Tr. 70.) In regards to taking his medication, Father stated to Keener that “he
missed several mental health appointments through MetroHealth regarding his
medication. He stated he was taking his medication, but sometimes did miss them.”
(Tr. 70-71.) He also stated that he had missed a few doctor’s appointments.
Next Keener testified about the permanency plan for the children.
C.V., the eldest child, was 17 years old at the time of the trial. CCDCFS decided to
seek a planned permanent living arrangement for C.V. instead of permanent custody
because “[h]e will graduate next year. He does not wish to be in [permanent
custody] or eventually adopted. He is also working on independent living skills,
which he’s doing great on.” (Tr. 73.) Keener also testified that she did “complete a
Daniel memorial for him, which is our independent living. That’s how we form our
independent living plan for children. And he actually scored very well on the
independent living plan, so I feel like PPLA is more beneficial for him, especially the
plans he has for after school.” Id.Keener also testified as to the current living arrangements of the
children. C.V. and E.V. are living in the same foster home and have a great
relationship with their foster father. (Tr. 76.) Keener does not anticipate any
changes in their living arrangements. J.V. and F.V. are living in the same foster
home, and Keener testified “[t]hey’re doing very well. The foster parents love having
them in their home. They consider them as their own and — they’re doing great and
they love being there.” (Tr. 79.) Although J.V. was 16 years old, she did not want a
planned permanent living arrangement like C.V., but rather wished to be adopted
by her current foster parents. Id.Keener testified that I.V. and A.V. are living in the same foster home.
Keener stated:
They’re doing well in the foster home. Their foster mother loves [A.V.]
and [I.V.]. She doesn’t have many issues with them. The only times
that there are issues is when they’re coming home from a visit or before,
because they’re excited and they’re wound up, so she says it takes a little
bit longer to calm them down. But other than that, they are doing well.
(Tr. 82.)
Keener testified that I.V. and A.V. would have to leave their foster
home because their foster mother is not interested in adoption. However, J.V. and
F.V.’s foster parents are interested in adopting I.V. and A.V. “because they would
like to keep the children together, because they know how important it is for siblings
to remain in each other’s lives.” (Tr. 83.) Ja.V. is placed in a foster home with other
foster children. Keener stated, “He’s doing exceptionally well in the foster home.
He has a foster mother, as well as Auntie, he refers to her as Auntie, who is foster
mother’s daughter, who lives in the home.” Id. Keener does not anticipate that Ja.V.
will have to move from his current foster home if permanency was granted to
CCDCFS.
Keener expressed to the court that she believes that granting
permanent custody to CCDCFS is in the best interest of the children because
[b]oth parents have had now over three years to get housing, work on
their mental healths, work on themselves in order to work on their
children and have their children back home.
Neither of them have housing right now. The children cannot go home
to no home.
Father has not made any progress. Mother just recently started making
progress with her housing and mental health, but it has been three
years. These children need permanency.
(Tr. 88-89.)
C. Guardian Ad Litem Kozel’s Testimony
Thomas Kozel, the guardian ad litem (“GAL”) for the children
recommended the permanent planned living arrangement for C.V. because
of his age, his maturity, and the likelihood of him getting a permanent
connection for adoption not being very likely, that PPLA is the best
course of action for him. He’s very clear that he does not want to be
adopted and that he just basically wants to be emancipated out and
learn his independent living skills. So I do think that that’s an
appropriate disposition for him.
(Tr. 178.)
The GAL also a recommended permanent custody to CCDCFS for the
remaining children. He expressed that
[a]s the Court is aware, they have been in the Agency’s custody for three
years now.
At this time, as we sit here today, neither parent is in a situation that
they are able to care for these children. Father is in a nursing home.
We have no time which he is going to be able to get out. He has no
housing. There are concerns about his mental health and some
behaviors, and then his ability to self-care, take care of himself
appropriately.
As the testimony has shown, the Agency did make an effort to reunify
with him with the assistance of the mother. Unfortunately, it didn’t
work.
So I do think that they deserve permanency, and that really under the
law, we aren’t able to give mother or father additional time in this
matter.
(Tr. 178-179.)
D. Trial Court’s Decision
The trial court granted permanent custody of J.V., A.V., I.V., E.V.,
F.V., and Ja.V. to CCDCFS and stated in the journal entries: “Pursuant to
R.C. 2151.414, the Court finds that the allegations of the motion have been proven
by clear and convincing evidence. It is therefore ordered that the Motion to Modify
Temporary Custody to Permanent Custody is hereby granted to agency.” Journal
entry Nos. 0915811797, 0915811799, 0915811802, 0915811805, 0915811807, and
0915811808 (June 9, 2022).
The trial court committed C.V. to the planned permanent living
arrangement of CCDCFS and stated in the journal entry: “The Court finds by clear
and convincing evidence that it is in the best interest of the child to be placed in the
planned permanent living arrangement, that the agency has tried or considered
other possible dispositions for the child.” Journal entry No. 0915811800 (June 9,
2022).2
Mother filed this appeal assigning two errors for our review:
2 C.V.’s planned permanent living arrangement is not subject to this appeal because
Mother is not appealing the trial court’s decision regarding C.V.
1. The evidence presented to the trial court did not support, by clear
and convincing evidence, a finding that permanent custody to the
agency was in the best interests of the six children; and
2. The trial court erred when it denied Mother’s motion for
continuance of the hearing.
II. Permanent Custody to CCDCFS
A. Standard of Review
To terminate parental rights and grant permanent custody to a county
agency, the record must demonstrate by clear and convincing evidence the
following: (1) the existence of one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e); and (2) permanent custody is in the best interest
of the child. In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-
Ohio-4064, ¶ 27. “Clear and convincing evidence” is that quantum of evidence that
instills in the trier of fact a firm belief or conviction as to the allegations sought to be
established. In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
When determining the child’s best interest pursuant to
R.C. 2151.414(D)(1), courts analyze the following factors: (1) the interaction and
interrelationship of the child with others; (2) the wishes of the child; (3) the
custodial history of the child; (4) the child’s need for a legally secure placement and
whether such a placement can be achieved without permanent custody; and (5)
whether any of the factors in divisions R.C. 2151.414(E)(7) to (11) apply.
Also,
[a] juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence “‘if the
record contains some competent, credible evidence from which the
court could have found that the essential statutory elements for
permanent custody had been established by clear and convincing
evidence.’”
In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re A.P.,
8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
The “best-interest determination” focuses on the child, not the
parent. R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424(8th Dist.1994). The discretion that the juvenile court enjoys in deciding whether
an order of permanent custody is in the best interest of a child should be accorded
the utmost respect, given the nature of the proceeding and the impact the court’s
decision will have on the lives of the parties concerned. Id. at 316.
Thus, we review “a trial court’s determination of a child’s best interest
under R.C. 2151.414(D) for abuse of discretion.” In re V.C., 8th Dist. Cuyahoga
Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52, citing In re L.O., 8th Dist.
Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22. “An abuse of discretion implies that
the court’s decision was unreasonable, arbitrary or unconscionable.” Id., citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
R.C. 2151.353(A)(4) authorizes a trial court to grant permanent
custody to an agency where a child has been adjudicated neglected, dependent, or
abused. The trial court must determine by clear and convincing evidence that: (1)
“the child cannot be placed with one of the child’s parents within a reasonable time
or should not be placed with either parent” pursuant to R.C. 2151.414(E); and (2)
“permanent commitment is in the best interest of the child” pursuant to
R.C. 2151.414(D)(1). R.C. 2151.353(A)(4).
B. Law and Analysis
The trial court has authority to grant permanent custody to CCDCFS
where, as in this case, a child has been adjudicated as neglected, dependent, or
abused.
When an agency files a permanent custody motion under R.C. 2151.413
after obtaining temporary custody, the guidelines and procedure set
forth under R.C. 2151.414 apply. Division (B) of R.C. 2151.414 sets forth
a two-prong analysis to be applied by a juvenile court. Pursuant to this
division, before a trial court can terminate parental rights and grant
permanent custody to a county agency, the 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 (e), and (2) that granting
permanent custody to the agency is in the best interest of the child.
In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 45 (8th Dist.).
“Only one of the four factors must be present for the first prong of the
permanent custody analysis to be satisfied. Once the juvenile court ascertains that
one of the four factors listed in R.C. 2151.414(B)(1) is present, then the court
proceeds to an analysis of the child’s best interest.” In re J.B., 8th Dist. Cuyahoga
No. 98565, 2013-Ohio-1705, ¶ 80-81. Regarding the first prong of the analysis, it is
supported by the fact on April 15, 2019, CCDCFS filed a complaint alleging neglect
and dependency and requested temporary custody of the children. On the same day,
the court granted CCDCFS emergency custody of the children. The motion to
modify temporary custody to permanent custody was filed on September 24, 2020.
R.C. 2151.414(B)(1)(a) states:
(1) Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines
at the hearing held pursuant to division (A) of this section, by clear and
convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for
permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, 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.
Also, in its journal entries, the trial court listed a number of a reasons
why permanent custody should be awarded to CCDCFS, in accordance with
R.C. 2151.414(E)(1) and (4). The court stated,
The Court further finds:
Following the placement of the child outside of the child’s home and
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.
The chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year.
The parent has demonstrated a lack of commitment toward the child
by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child.
The court finds that there is probable cause for removal of the child
pursuant to R.C. 2151.31.
Journal entry Nos. 0915811797, 0915811799, 0915811802, 0915811805,
0915811807, and 0915811808 (June 9, 2022).
We recognize that “a parent’s right to raise a child is an essential and
basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). And
the permanent termination of parental rights has been described as “the family law
equivalent of the death penalty in a criminal case.” In re Hoffman, 97 Ohio St.3d
92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. Also, “‘termination of the rights of a
birth parent is an alternative of last resort.’” In re Gill, 8th Dist. Cuyahoga
No. 79640, 2002-Ohio-3242, ¶ 21, quoting In re Wise, 96 Ohio App.3d 619, 624, 645
N.E.2d 812 (9th Dist.1994), citing In re Cunningham, 59 Ohio St.2d 100, 105, 391
N.E.2d 1034 (1979).
Mother’s argument that CCDCFS did not meet its burden of proving
by clear and convincing evidence that its motions for permanent custody should
have been granted is not supported by the evidence. However, we also recognize
that a trial court’s decision to grant permanent custody will not be reversed as being
against the manifest weight of the evidence “if the record contains some competent,
credible evidence from which the court could have found that the essential statutory
elements for permanent custody had been established by clear and convincing
evidence.” In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16. In the
last three years, Mother has not demonstrated that she is able to provide adequate
housing for six children. Mother has also not demonstrated that she is taking care
of her mental health.
The trial court stated in the journal entries:
The Court finds that CCDCFS has made reasonable efforts to finalize
the permanency plan with services that included: Case plan services for
the mother and father, mother was consistent with visitation, however,
was not medication complaint in regards to her mental health
diagnoses. In addition, the mother is still unable to provide housing or
basic needs for the child. The father has many health issues and is
currently in a nursing home. Therefore, he too cannot provide a home
or basic needs for the child.
Journal entry Nos. 0915811797, 0915811799, 0915811802, 0915811805,
0915811807, and 0915811808 (June 9, 2022).
The GAL testified to the court that neither parent was in a situation
where they could care for the children after three years of the agency’s support and
service referrals. As the factfinder in this case, the trial court was in the best position
to determine the credibility of the witnesses and observe their demeanor. As we
recently stated:
“Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as
being against the weight of the evidence by a reviewing court.”
The reason for this standard of review is that the trial judge has the best
opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page.
***
“The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the
proffered testimony.[”]
“* * * A reviewing court should not reverse a decision simply because it
holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law
is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not. The determination of
credibility of testimony and evidence must not be encroached upon by
a reviewing tribunal, especially to the extent where the appellate court
relies on unchallenged, excluded evidence in order to justify its
reversal.”
This is even more crucial in a child custody case, where there may be
much evident in the parties’ demeanor and attitude that does not
translate to the record well. (Citations omitted.)
In re I.S., 8th Dist. Cuyahoga No. 107472, 2019-Ohio-638, ¶ 68, quoting Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
As to the second prong of the analysis, once the juvenile court
determines that one of the factors listed in R.C. 2151.414(B)(1) applies, then the
court must determine, by clear and convincing evidence, whether permanent
custody is in the best interest of the child. In re E.C., 8th Dist. Cuyahoga No. 103968,
2016-Ohio-4870, ¶ 29. When determining the child’s best interest pursuant to
R.C. 2151.414(D)(1), courts analyze the following factors: (1) the interaction and
interrelationship of the child with others; (2) the wishes of the child; (3) the
custodial history of the child; (4) the child’s need for a legally secure placement and
whether such a placement can be achieved without permanent custody; and
(5) whether any of the factors in divisions R.C. 2151.414(E)(7)-(11) apply.
The trial court stated in its journal entries:
Upon considering the interaction and interrelationship of the child
with the child’s parents, siblings, relatives, and foster parents; the age
of the child; the custodial history of the child, including whether the
child has been in temporary custody of a public children services
agency or private child placing agency under one or more separate
orders of disposition for twelve or months of a consecutive twenty-two
month period; the child’s need for a legally secure permanent
placement and whether that type of placement can be achieved without
a grant of a permanent custody; and, the report of the Guardian ad
Litem, the Court finds by clear and convincing evidence that a grant of
permanent custody is in the best interests of the child cannot be placed
with one of the child’s parents within a reasonable time or should not
be placed with either parent.
Journal entry Nos. 0915811797, 0915811799, 0915811802, 0915811805,
0915811807, and 0915811808 (June 9, 2022).
The trial court also stated that “reasonable efforts were made to
prevent the removal of the child from his [or her] home, or to return the child to the
home, and to finalize the permanency plan, to wit: reunification.” Id. However, as
the trial court continues, “[r]elevant services provided to the family and the reason
those services were not successful were case plan services but mother and father
failed to substantially complete said services.” Id.Thus, after a thorough review of the record, we find that there is clear
and convincing evidence supporting the determination to award permanent custody
to CCDCFS, and that the trial court did not abuse its discretion by finding that the
award is in the best interest of the children.
Mother’s first assignment of error is overruled.
III. Motion for Continuance
A. Standard of Review
“The decision to grant or deny a motion for a continuance rests in the
sound discretion of the trial court.” In re C.W., 8th Dist. Cuyahoga No. 109219,
2020-Ohio-3189, ¶ 15, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078(1981). “‘An abuse of discretion occurs when a court exercises its judgment in an
unwarranted way regarding a matter over which it has discretionary authority.’” Id.,quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463,
¶ 35. See also State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-Ohio-3327, ¶ 43;
State v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-377, ¶ 11.
B. Law and Analysis
In Mother’s second assignment of error, she argues that the trial court
abused its discretion when it denied her motion to for a continuance. “Not every
failure to grant a continuance violates due process ‘even if the party fails to offer
evidence or is compelled to defend without counsel.’” C.W. at ¶ 16, quoting In re
C.G., 9th Dist. Summit No. 26506, 2012-Ohio-5999, ¶ 9. In Unger, the Ohio
Supreme Court noted that “[t]here are no mechanical tests for deciding when a
denial of a continuance is so arbitrary as to violate due process. The answer must
be found in the circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.” Unger at 67.
The following factors are to be considered: the length of the delay
requested; whether other continuances have been requested and received, the
inconvenience to litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the defendant contributed to the circumstance, which gives rise
to the request for a continuance; and other relevant factors, depending on the
unique facts of each case. Id. at 67-68.
In this instant case, prior to the May 31, 2022 trial date, the trial was
originally set for August 25, 2021, after five previous continuances. After the
August 25 trial date, the matter was continued numerous times. Mother filed for
another continuance on May 23, 2022, citing communication issues with her
attorney and she wanted to provide additional documentation, which she failed to
bring to the hearing. However, the trial court denied Mother’s motion and stated:
This matter has been continued multiple times already. These children
have been in the custody of the Agency for more than three years.
I am not continuing this any longer.
Moreover, I think I had mentioned in the motion — strike that — in the
Court’s order denying the motion for a continuance that whatever
documentation you had, you could bring it to court on today.
And apparently, you did not do that.
Moreover, you’ve had a sufficient amount of time to provide that
documentation to counsel well before today’s date. In light of the fact
that this trial has been continued at least three times.
So, no, we are not going a day beyond this afternoon in terms of making
a decision regarding the Agency’s motion.
So that motion to continue beyond today is denied.
(Tr. 7-8.)
Mother had over nine months to have communication with her
attorney starting from the original trial date in August until May. Mother also could
have submitted additional information to the court during that time. The trial court
noted that the trial had been continued at least three times and that Mother had
sufficient time to prepare.
Under Juv.R. 23, “[c]ontinuances shall be granted only when
imperative to secure fair treatment for the parties.” Loc.R. 35(C) of the Court of
Common Pleas of Cuyahoga County, Juvenile Division, further provides:
No case will be continued on the day of trial or hearing except for good
cause shown, which cause was not known to the party or counsel prior
to the date of trial or hearing, and provided that the party and/or
counsel have used diligence to be ready for trial and have notified or
made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This
rule may not be waived by consent of counsel.
Mother has not demonstrated that the trial court erred in denying her
motion for a continuance. Therefore, Mother’s second assignment of error is
overruled.
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
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.
__________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
LISA B. FORBES, J., CONCUR
KEYWORDS
#111765
Abuse of discretion; permanent custody; clear and convincing evidence; motion
for a continuance.
The trial court did not abuse its discretion in finding that clear and convincing
evidence support granting permanent custody of the appellant’s children to
CCDCFS. The trial court did not abuse its discretion by denying appellant’s motion
for a continuance.