In re R.F. , 2023 Ohio 297 ( 2023 )

[Cite as In re R.F., 2023-Ohio-297.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: R.F. C.A. No. 30400
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 21 03 0168
DECISION AND JOURNAL ENTRY
Dated: February 1, 2023
HENSAL, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated her parental rights and placed her child in the permanent
custody of Summit County Children Services Board (“CSB” or “the agency”). This Court affirms.
I.
{¶2} Mother is the biological mother of R.F., born March 10, 2021.1 CSB removed the
child from Mother’s care two days after her birth and filed a complaint alleging that R.F. was
abused (endangered) and dependent. The agency premised its complaint on allegations of the
parents’ drug use, mental health issues, and inability to meet the child’s basic needs. Mother and
Father stipulated to probable cause for the child’s removal and agreed to an emergency order of
temporary custody to CSB.
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The child’s paternity was established by genetic testing. Although Father appeared for
the first three hearings in the case, his whereabouts thereafter were unknown. He has not appealed
the juvenile court’s award of permanent custody.
2
{¶3} Both parents attended the adjudication, waived their hearing rights, and stipulated
to a finding of the child’s dependency. CSB withdrew its allegation of abuse. Both parents also
attended the disposition, waived their hearing rights, and stipulated to a finding that CSB had used
reasonable efforts to prevent the child’s removal, to the adoption of the agency’s proposed case
plan, and to an order placing R.F. in the temporary custody of CSB. The case plan required Mother
and Father to maintain a source of income to provide for the child’s basic needs, obtain chemical
dependency and mental health assessments, and follow all recommendations. The parents were
allowed supervised visitation in the discretion of CSB and the guardian ad litem.
{¶4} During the next six months, the juvenile court held two review hearings. Neither
parent appeared for either hearing, although both were represented by counsel.2 Two months later,
CSB filed a motion for permanent custody of R.F. The agency alleged that the child could not or
should not be returned to either parent based on their (1) failures to remedy the concerns that
necessitated the child’s removal, (2) chronic mental health issues and chemical dependencies,
and/or (3) lack of commitment to the child. CSB further alleged that an award of permanent
custody was in the child’s best interest. Mother and Father each filed motions for temporary
custody or, alternatively, a six-month extension of the agency’s temporary custody.
{¶5} Despite having been properly served, neither parent appeared for the Monday
morning permanent custody hearing. Immediately prior to the hearing, Mother’s attorney orally
moved for a continuance or, alternatively, for permission for Mother to appear remotely. As
2
Neither Mother nor Father appeared for a later sunset hearing before a magistrate
approximately one year after CSB filed its complaint.
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grounds, Mother’s attorney asserted that Mother had informed her the prior evening that she had
been exposed to the Covid virus on Friday, and experienced symptoms during the weekend. The
juvenile court judge directed Mother’s counsel to place a phone call to Mother on the record.
Mother did not answer the call. Her attorney left a voicemail message directing Mother to return
the call. The juvenile court then inquired of the other parties. After consideration, the juvenile
court noted that Mother’s remote appearance was not possible as she did not answer her attorney’s
phone call. The court moreover denied Mother’s motion for a continuance after citing and
weighing relevant factors it asserted were commonly relied upon by Ohio case law.
{¶6} After an evidentiary hearing, the juvenile court denied Mother’s and Father’s
alternative motions for temporary custody or a six-month extension of temporary custody to the
agency. The court granted CSB’s motion for permanent custody and terminated Mother’s and
Father’s parental rights. Mother filed a timely appeal and raises one assignment of error for this
Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
DENYING MOTHER’S MOTION FOR CONTINUANCE OF THE
PERMANENT CUSTODY TRIAL.
{¶7} Mother argues that the juvenile court abused its discretion by denying her oral
motion to continue the permanent custody hearing. This Court disagrees.
{¶8} The Ohio Rules of Juvenile Procedure state that “[c]ontinuances shall be granted
only when imperative to secure fair treatment for the parties.” Juv.R. 23. Summit County Court
of Common Pleas, Juvenile Division, has also promulgated Local Rules of Practice and Procedure,
one of which addresses motions for continuances as follows:
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(A) A continuance will not be granted unless the party requesting the continuance
demonstrates to the [Court] that there is an emergency or other unanticipated
circumstance necessitating the continuance[.] * * * The decision to grant or deny a
continuance is discretionary * * *.
(B) All requests for continuances must be made in writing and filed seven days
before the scheduled hearing date. However, the Court may consider a Motion for
Continuance that is filed less than seven days before the scheduled hearing date
upon demonstration of emergency or for other unforeseen circumstances.
Loc.R. 5.03.
{¶9} This Court recognizes the juvenile court’s discretion in determining whether to
grant or deny a continuance, even where a parent is facing a termination of parental rights. See,
e.g., In re L.M., 9th Dist. Summit No. 29687, 2020-Ohio-4451, ¶ 5; and In re J.J., 9th Dist. Medina
No. 19CA0008-M, 2019-Ohio-2152, ¶ 7. That discretion contemplates “a balancing of any
potential prejudice to a [party against] concerns such as a court’s right to control its own docket
and the public’s interest in the prompt and efficient dispatch of justice.” (Internal quotations
omitted) In re L.M. at ¶ 5, quoting State v. Unger, 67 Ohio St.2d 65, 67 (1981). The juvenile court
should balance various factors when considering a motion for a continuance, including “the length
of the continuance sought; whether the hearing has already been continued; [ ] the inconvenience
to other parties and/or counsel, witnesses, and the trial court[;] * * * whether the requested delay
is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the [party]
contributed to the circumstance which gives rise to the request for a continuance; as well as any
other relevant issues arising from the unique facts of the case.” (Internal quotations omitted) In
re L.M. at ¶ 5, quoting Unger, 67 Ohio St.2d at 67-68. A trial court has abused its discretion only
if its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
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{¶10} Here, Mother’s attorney informed the juvenile court that Mother called her the prior
evening to report that she had been exposed to the Covid virus that weekend and was experiencing
symptoms. Counsel requested that Mother be permitted to appear at the permanent custody
hearing remotely via Zoom or, alternatively, that the court continue the hearing. When counsel
called Mother on the record at the court’s direction, Mother did not answer the call. Neither did
Mother return counsel’s phone call despite counsel’s voicemail message to Mother to do so.
{¶11} Father’s attorney did not oppose a continuance, particularly because Father was
also not present for the hearing despite having been properly notified. The assistant prosecutor
opposed a continuance based on Mother’s failure to attend the last three hearings, as well as in the
interest of timely permanence for the child. The guardian ad litem agreed with the assistant
prosecutor and further reported that Mother had not been visiting with the child or participating in
case plan requirements, had not provided any evidence that she had tested positive for Covid, and
that she currently had an outstanding warrant.
{¶12} The juvenile court noted that Mother’s request to participate in the permanent
custody hearing remotely could not be accommodated only because Mother failed to answer her
attorney’s phone call placed during the time scheduled for the hearing. The court then denied
Mother’s motion for a continuance based on (1) Mother’s failure to attend the prior three court
hearings, (2) her ongoing failure to visit with the child or participate in reunification services, (3)
her failure to answer her attorney’s phone call or return that call so that she might appear remotely
for the hearing, (4) the inconvenience to the attorneys, CSB caseworker, volunteer guardian ad
litem, and the visiting judge presiding over the case, (5) the acknowledgement by those present
that schedules would prevent rescheduling the hearing for at least another three months, (6)
consideration for the child’s caretaker, (7) the child’s need for permanence, and (8) its “strong
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suspicion * * * that this is a contrived excuse to not appear and to cause delay in the proceedings.”
Based on this Court’s review, we conclude that the juvenile court did not abuse its discretion by
denying Mother’s motion for a continuance.
{¶13} Mother had not requested any prior continuances of the permanent custody hearing.
She had failed for some time, however, to appear for any hearings or participate in the case in any
meaningful way. She had not begun to engage in any case plan services, as evidenced by the
orders issued out of the prior review hearings. The agency caseworker reported that Mother had
not visited with R.F. at all during the seven weeks prior to the scheduled permanent custody
hearing.
{¶14} Mother’s attorney could not specify the length of the delay requested or indicate
when Mother might be available to attend a rescheduled hearing. Mother did not follow through
in good faith on her alternative request to appear remotely for the hearing when she failed to answer
or return her attorney’s phone call during the time Mother was aware had been scheduled for the
hearing. See Juv.R. 23.
{¶15} Mother’s interests were represented at the hearing. Her attorney cross-examined
the agency’s sole witness. All other parties (with the exception of Father, whose absence could
not be accounted for by his attorney), attorneys, and witnesses were present and prepared to
proceed with the permanent custody hearing. The visiting judge noted that the current hearing
date had to be scheduled six months after the most recent prior hearing to accommodate everyone’s
schedules. Everyone present agreed that they would be unavailable for another hearing date for at
least three months.
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{¶16} The child had been removed from Mother’s care when two days old and in custodial
limbo her entire 14-month life and required timely permanence. R.F.’s lifelong caregiver was
willing to provide a permanent home for the child.
{¶17} After the guardian ad litem had earlier informed the juvenile court that there was
an outstanding warrant for Mother, the agency caseworker testified regarding some details.
Mother had been charged six months earlier with telephone harassment against Father. That
criminal charge gave rise to the currently pending warrant. While she may have been motivated
to avoid subjecting herself to the possibility of arrest if she appeared in court, Mother declined to
make herself available to participate remotely in the hearing.
{¶18} Under the circumstances, this Court concludes that the juvenile court did not abuse
its discretion by denying Mother’s oral motion to continue the permanent custody hearing. Mother
might have appeared remotely for the hearing as she requested in the alternative, but she failed to
take advantage of that opportunity. Delaying the proceedings would have inconvenienced the
other parties, attorneys, guardian ad litem, agency caseworker, and visiting judge, all of whom
were prepared to proceed with the hearing. Mother’s attorney could not provide the juvenile court
with any estimate as to the length of delay Mother was requesting. The alleged cause of Mother’s
request for a continuance could not be attributed to any other party involved in the case. It was
not unreasonable for the visiting judge to suspect that Mother’s proffered reason for her inability
to appear in person was contrived, given the outstanding warrant for her arrest, coupled with her
failures to attend any hearings after the initial disposition, participate in reunification services, and
visit recently with the child. Although she was not present, Mother’s counsel continued to
represent Mother’s interests, as she had in prior hearings. The juvenile court’s denial of Mother’s
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request to continue the permanent custody hearing in this case was not unreasonable. Mother’s
assignment of error is overruled.
III.
{¶19} Mother’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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SUTTON, P. J.
CARR, J.
CONCUR.
APPEARANCES:
SHUBHRA AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
PAUL GRANT, Attorney at Law, for Appellee.
JOSEPH KERNAN, Guardian ad Litem.