In re K.H. , 2022 Ohio 2588 ( 2022 )

[Cite as In re K.H., 2022-Ohio-2588.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.H., ET AL. :
: No. 111287
Minor Children :
:
[Appeal by T.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD21908011, AD21908012, AD21908013, AD21908014, and
AD21908015
Appearances:
Michael Gordillo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Zachary J. LaFleur, Assistant Prosecuting
Attorney, for appellee.
EILEEN A. GALLAGHER, P.J.:
Appellant-mother T.H. (“Mother”) appeals from the decision of the
Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”),
adjudicating her five children neglected and dependent and granting temporary
custody of the children to appellee, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “the agency”). Mother contends that the juvenile
court abused its discretion in failing to dismiss the complaint after she requested a
continuance, violating her right to due process. For the reasons that follow, we
affirm.
Factual Background and Procedural History
Mother has five children: K.H. (d.o.b. February 12, 2010), Ma.H.
(d.o.b. September 2, 2013), My.H. (d.o.b. December 19, 2015), J.H. (d.o.b. June 23,
2017) and Hea.P. (d.o.b. June 26, 2018). J.R. is the father of K.H. T.G. is the father
of Ma.H. K.B. is the father of My.H. Her.P. is the father of J.H. and Hea.P.
On September 10, 2021, CCDCFS filed a complaint for dependency,
neglect and temporary custody of the children,1 along with a motion for
predispositional temporary custody. The complaint was amended on October 18,
2021. As amended, the complaint alleged that (1) Mother “displays symptoms of a
mental health condition” and has “anger issues” she has failed to address, (2)
Mother was “overwhelmed” with the care of her children and experienced a “mental
1 This matter involves a refiled complaint. A prior complaint for dependency,
neglect and temporary custody was filed on May 17, 2021 with respect to each of the
children (Cuyahoga C.P. Juv. Nos. AD21904155, AD21904156, AD21904157,
AD2190804158 and AD21904159). On May 14, 2021, the children were placed in the
emergency temporary custody of the agency pursuant to an ex parte telephonic order but
were returned to Mother’s care on May 17, 2021. On July 16, 2021, the children were
again removed from Mother’s care and placed in the emergency temporary custody of the
agency on the juvenile court’s motion for emergency temporary custody. The complaint
was not resolved within statutory time limits and was dismissed. The children have
remained in the continuous care and emergency temporary custody of the agency since
July 16, 2021.
health crisis” on May 14, 2021 that prevented her from providing adequate care for
the children and (3) Mother has a substance abuse issue related to marijuana that
Mother has failed to adequately address. The complaint further alleged that the
three older children had previously been in the emergency predispositional custody
of CCDCFS from July 14, 2016 to October 24, 2016 in Cuyahoga C.P. Juv. Nos.
AD16910638, AD16910639 and AD16910640 due, in part, to Mother’s anger
management issues.2
Mother denied the allegations of the complaint and objected to the
agency’s request for predispositional temporary custody of the children.
On September 13, 2021, the magistrate conducted a hearing on the
agency’s motion for predispositional temporary custody. Following the hearing,
CCDCFS was granted predispositional temporary custody of the children.
On October 12, 2021, CCDCFS filed the case plan for the family. The
case plan required Mother to (1) undergo a drug and alcohol assessment,
2 With respect to the children’s fathers, the complaint alleged that they were either
incarcerated or uninvolved with their children. Specifically, the complaint alleged: (1) as
to J.R., father of K.H., that he had been convicted of assault, attempted drug possession
and attempted intimidation of crime victim or witness, that he had failed to consistently
visit or communicate with K.H. and that his current whereabouts were unknown; (2) as
to T.G., father of Ma.H., that he had been convicted of burglary, theft, breaking and
entering, aggravated theft, domestic violence, endangering children, attempted
intimidation of crime victim or witness and robbery and that he was incarcerated and not
scheduled for release until March 2024; (3) as to K.B., father of My.H., that he had been
convicted of domestic violence, assault, aggravated theft, having weapons while under
disability, obstructing official business, resisting arrest, trafficking offenses, improperly
handling firearms in a motor vehicle and attempted robbery and that he was incarcerated
and not scheduled for release until June 2022 and (4) as to He.P., father of J.H. and H.P.,
that he had been convicted of domestic violence and had failed to consistently visit or
communicate with his children.
successfully complete any recommended treatment and aftercare and refrain from
using drugs and alcohol and submit to random drug screens; (2) complete a
psychological evaluation and comply with all treatment and medication
recommendations and (3) complete a parenting program and demonstrate that she
had benefited from the program.
An adjudicatory hearing was originally scheduled for November 17,
2021. The hearing was converted to an attorney conference after Mother’s counsel
filed a motion to compel discovery, or, in the alternative, for in camera inspection of
the agency’s activity logs. Mother asserted that CCDCFS had failed to produce
complete activity logs from May 17, 2021 through August 23, 2021. The state
responded that the requested activity logs were confidential investigative materials
that were not subject to disclosure under Ohio law. The magistrate granted Mother’s
motion, in part, and ordered that the records be provided to the court for in camera
review.3 The parties agreed to continue the adjudicatory hearing to December 7,
2021 and to conduct both the adjudicatory and dispositional hearings on that date
— the 88th day of the 90-day disposition requirement pursuant to R.C.
2151.35(B)(1).
3 The magistrate thereafter reviewed the CCDCFS records submitted for in camera
review, redacted the portions of the records she determined were nondiscoverable and
determined that Mother was entitled to access the remainder of the records. On
November 29, 2021, the magistrate ordered that CCDCFS immediately produce the
redacted records to all parties.
Adjudicatory Hearing
Mother was represented by the Office of the Cuyahoga County Public
Defender (the “Public Defender’s Office”). Prior to the adjudicatory hearing,
Assistant Public Defender William Daugherty had been assigned to handle Mother’s
case and had met with Mother, reviewed all of the case materials and attended all of
the hearings in the case on Mother’s behalf. At the adjudicatory hearing, Salvatore
Amata (“Amata”), Supervisor of the Juvenile Division of the Public Defender’s
Office, appeared for Mother. At the outset of the hearing, Amata made an oral
motion for continuance, asserting that Daugherty was unavailable to appear for the
hearing because Daugherty had been exposed to a client who had tested positive for
COVID-19 and was, therefore, required to quarantine:
Your Honor, as indicated to the Court earlier, this file has been
handled by Bill. I think on a prior filing Mr. Daugherty had it, and then
this filing which is on day 90 or day 88, and he has been working this
case with [Mother] and he currently is being tested for COVID and
unable to be here and is quarantined.
I would ask that this matter be continued. I know that the 90
days may be up, but the matter could be refiled, so we’re asking that the
matter be continued pending further hearing.
The magistrate denied the motion due to statutory time constraints,
explaining as follows:
THE COURT: Okay. I can’t grant a continuance. As you’ve clearly
stated, statutory time has expired — is expiring. Excuse me. It has not
expired, but will expire in two days, and we cannot waste time because
this has already been refiled once. So that motion is denied.4
4
Daugherty was not the only person who had an issue appearing in person at the
December 7, 2019 hearing due to issues related to COVID-19. On December 6, 2021,
Amata then indicated that Mother no longer wished to be represented
by the Public Defender’s Office and wanted another attorney appointed to represent
her. The following exchange occurred:
THE COURT: * * * We’ve had the Public Defender. There’s been
nothing — this Court’s never been notified until now that mother does
not want to be represented.
Do you want to represent yourself? There’s no attorney I can appoint
that can come in here and try this case not having discovery or anything
else, correct, Mr. Amata?
MR. AMATA: They’re in the same position I would be in.
THE COURT: Well, it’s your office so presumably you supervise your
office.
MR. AMATA: But I don’t supervise every individual case, and especially
when an attorney’s been on it for many, many months.
THE COURT: [Mother], do you wish to represent yourself or would you
like to have the Public Defenders represent you?
***
[MOTHER]: I don’t know.
THE COURT: You don’t know. We’re going to go forward, Mr. Amata.
Amata proceeded to make an opening statement on behalf of Mother.
He indicated that Mother has five children under the age of 11, that they can be
Mother’s guardian ad litem filed a notice indicating that she was “unavailable to attend
in-person hearings” due to “concerns about the transmission” of COVID-19 and recent
exposure to the virus. Mother’s guardian ad litem requested that she be permitted to
attend the adjudicatory and dispositional hearings via telephone or video transmission,
or, in the alternative, that a continuance be granted. The record reflects that Mother’s
guardian ad litem provided contact information so that she could participate via
telephone or Zoom, but it is not clear from the record before us whether she, in fact,
participated in the hearings remotely.
difficult to manage for a single parent and that Mother voluntarily contacted the
agency requesting assistance with her children. He stated that shortly after
contacting the agency, Mother felt that she was able to care for her children and
wanted them back home with her. He indicated that most of the children wanted to
be home with Mother and that it was in their best interest for Mother to “have her
children back.” CCDCFS and the remaining parties waived opening statements.
Two witnesses testified at the adjudicatory hearing: former CCDCFS
social worker Shannon Eggers (“Eggers”) (who testified on behalf of the agency) and
Mother’s sister, K.A. (who testified on behalf of Mother).
Eggers testified that she was employed as a CCDCFS social worker
from April 2016 to August 2021 and was assigned to this case for “about three days,”
beginning on May 14, 2021.
Eggers indicated that the case first came to the attention of the agency
on May 14, 2021, after Mother called the CCDCFS hotline, stating that she was
“overwhelmed” with the care of her children. Eggers stated that she was assigned to
investigate the case, that she called Mother and asked, “what was going on and what
the situation was,” and that she offered Mother services. Eggers indicated that
Mother told her she was overwhelmed with the care of her children due to their
behavior and that she wanted to relinquish custody of the children to the agency.
After speaking with Mother, Eggers called Mentor Ohio, a mental-health services
agency, and they agreed to send someone to Mother’s home to assess Mother.
Eggers then drove directly to Mother’s home.
Eggers testified that when she arrived at Mother’s home, Mother and
her five children were there. Mother was “upset” and “aggressive,” was “yelling” at
Eggers and the children and she was crying. Eggers stated that Mother told Eggers
that the children do not listen to her and were “destroying her home,” that she did
not want to be the children’s caregiver anymore and that the children’s behavior
made her “want to kill herself.” Eggers stated that Mother also told the children that
she “didn’t want them anymore” and “wanted to put them up for adoption, place
them in foster care.” Eggers testified that the children were “very upset” and asked
Eggers “where they were going” and “why their mom didn’t want them anymore.”
An Ohio Mentor social worker arrived at Mother’s home
approximately 25 to 30 minutes after Eggers arrived. Eggers testified that she
updated him regarding what was occurring and asked if he could do an assessment
of Mother and offer services to the family. Eggers stated that the Ohio Mentor social
worker conducted an assessment in the home and offered Mother mental-health
services that day but that Mother refused services. Eggers indicated that during the
assessment, Mother disclosed that she used marijuana daily while caring for the
children “to deal with the children’s behaviors.”
Eggers testified that she asked Mother whether there were any
relatives who could assist her with a safety plan and that Mother responded that
there were none. Due to Mother’s statements and behavior, which raised concerns
about her mental health and Mother’s disclosure of her daily drug use, Eggers
concluded that the children could not remain safely in the home and the agency
obtained an ex parte telephonic removal order to remove the children from the
home.
Eggers testified that Mother was supposed to drive the children to the
agency but proceeded to “run with” them and refused to inform the agency where
the children were, telling CCDCFS workers to “catch” her and the children “if you
can.” Eggers stated that the agency filed missing person reports for the children and
that the children were ultimately found at a relative’s home and taken into agency
custody. CCDCFS introduced certified copies of journal entries in Cuyahoga C.P.
Juv. Nos. AD21904155-59, in which the court granted emergency temporary custody
of all five children to CCDCFS on its own motion in July 2021, and copies of certified
journal entries in Cuyahoga C.P. Juv. Nos. AD16910638-40, in which the court
granted emergency temporary custody of K.H., Ma.H. and My.S. to CCDCFS in July
2016.
With respect to the children’s fathers, Eggers stated that paternity
had been established for each of the children that identified each of the children’s
fathers. Eggers indicated that she had investigated each of the fathers and that the
fathers were either incarcerated and/or were not involved in their children’s lives.5
Eggers testified that she was only involved in the case for a brief time
because, on the evening of May 14, 2021, Mother “made a threat of physical harm”
5
CCDCFS introduced certified copies of journal entries setting forth the prior
criminal convictions of the children’s fathers.
against her. The following week, Eggers filed a police report, obtained a temporary
protection order and was removed from the case.
Amata cross-examined Eggers. During her cross-examination,
Eggers acknowledged that “everything [she] testified to was based on that one day
that [she was] at the home and talked to [Mother].” Eggers further acknowledged
that when she observed the children at their home on May 14, 2021, she saw nothing
to indicate that the children had any health issues or required any medical attention
and that, to her knowledge, there were no “immediate serious safety concerns” with
the children’s home. Eggers stated that once the children were in agency custody,
they were “triaged.” She indicated that none of the children had any significant
medical conditions and that no concerns had been raised regarding education of the
school-aged children.
Amata questioned Eggers regarding Ohio Mentor’s assessment of
Mother and the journal entries related to the agency’s prior involvement with the
family. He also questioned Eggers regarding her decision to permit Mother to drive
the children to the agency — given her signs of distress and threats to kill herself —
the circumstances that led to the agency’s involvement in the case and Mother’s
alleged drug use.
Eggers stated that she was concerned about Mother driving the
children to the agency but that Mother “was gone before I could do anything.”
Eggers indicated that she had not personally observed Mother using any drugs and
acknowledged that the only reason the agency got involved in this case was because
Mother called the agency, i.e., that “but for” Mother’s call stating that she was
“overwhelmed,” the agency “would not have been involved.” No other parties cross-
examined Eggers.
Mother’s sister, K.A., also testified at the adjudicatory hearing. K.A.
testified regarding Mother’s parenting abilities and what she recalled from the day
the children were removed from Mother’s care. K.A. stated that Mother and
Mother’s five children were living with her when Mother called “the lady,” i.e., the
CCDCSF social worker, and “[t]he lady came out.” K.A. indicated that she could not
recall “the lady’s” name or exactly when the incident occurred but that the CCDCFS
social worker and Mother had a “calm conversation.” K.A. testified that Mother “was
just telling the lady like she was overwhelmed,” that “they had the conversation
about what did she need help with” and that Mother explained she needed help with
“daycare and all that.”
K.A. stated that she left for an appointment in the middle of the
conversation and that, as she was leaving, a Caucasian male was arriving. She
indicated that she did not know him.
K.A. testified that Mother is a “normal mother” and that “[a]nybody
with five kids would be overwhelmed.” She denied that Mother “act[ed] in any
hysterical way,” made any threats to others or threatened to take her own life that
day.
After counsel presented their closing arguments, the magistrate
found that “[e]vidence of each and every allegation of the Complaint has been
provided” and that “there is clear and convincing evidence that these children are
neglected and dependent.” Because the parties had previously waived bifurcation,
the case proceeded directly to disposition.
Dispositional Hearing
At the outset of the dispositional hearing, Amata reiterated Mother’s
request for a continuance. Once again, the magistrate denied said request.
Amata made an opening statement on behalf of Mother. He asserted
that “this case would not be where it is now but for [M]other’s call for assistance”
and that all Mother wanted was assistance — not for the agency to have her children.
He maintained that the children were “not doing well” in foster care and would “do
better with mom.” Counsel for the children addressed the court and stated that the
children “love their mother” and “want to be back with their mother.” CCDCFS and
the remaining parties waived opening statements.
Tamicka Glenn, a CCDCFS social worker in the extended services
department, was the sole witness at the dispositional hearing. She stated that she
was assigned to the case on September 21, 2021.
Glenn testified that the case plan required Mother to undergo mental
health and drug assessments, to follow recommendations resulting from those
assessments, to complete anger management and parenting classes and to
demonstrate behavioral changes related to her interactions with the children.6
6With respect to the children’s fathers, Glenn testified that Her.P. was also on the
case plan and that he was to reestablish a relationship with his two children. She stated
that Her.P.’s first video visitation with his children had been set up for later that week.
Mother completed a mental health and drug assessment with Moore Consulting.
Glenn stated that no mental health concerns were identified during the assessment.
With respect to the drug assessment, Glenn reported that Mother was diagnosed
with a “severe” substance use disorder “in early remission” related to marijuana and
that it was recommended that Mother complete a nonintensive outpatient drug
treatment program but that Mother refused to attend the drug treatment program.
Over Mother’s objection, a certified copy of the assessment report was admitted into
evidence.
Glenn indicated that Mother’s “angry outbursts” had resulted in a
referral for anger management classes and that reports of Mother leaving the
children inside the home while she used marijuana in her car had resulted in a
referral for parenting classes. Glenn testified that Mother completed anger
management and parenting classes through Beech Brook on October 18, 2021, but
the agency had not observed “any behavioral changes” in Mother after completion
of those classes.
The case plan also required that Mother submit to random drug
screens. Glenn testified that the results of a drug screen conducted on October 7,
2021 were “invalid” due to “urine concentration” and that Mother had failed to
comply with subsequent requests for drug screens on November 15, 2021 and
November 25, 2021.
Glenn indicated that the other children’s fathers were not on the case plan because they
were either incarcerated or their location was unknown.
With respect to visitation, Glenn stated that Mother had two hours of
supervised, weekly in-person visitation with the children beginning in late
September 2021. The visits occurred at the Jane Edna Hunter Social Services
building. Glenn indicated that the first two visits “went well,” i.e., Mother “engaged
with the children properly,” Mother “interacted with the children well” and “[t]he
children were excited to see her.” These visits were only with the two younger
children because, according to Glenn, Mother had declined evening visits and the
three older children were in school.
The October 12, 2021 visit, attended by My.H., Hea.P. and J.H.,
“didn’t go so well.” Glenn testified that, towards the end of the visit, Mother became
“frustrated” and “irritated” with the children’s behavior, that Mother told Glenn that
the children “were bad and just don’t bring them back” and that Mother told the
children she was not coming back to visit. Glenn stated that she told Mother to
“calm down” and “take a breath” and encouraged her to use some of the skills she
had been learning in her parenting classes, e.g., being patient, trying to understand
what was causing the children’s behavior and responding to the children’s behavior
in a prosocial way but that Mother responded that “none of that work[s] unless they
telling me to beat the children.”
All five children attended visitations on October 19 and November 2,
2021.7 Glenn testified that, during the October 19, 2021 visit, Mother became “really
7 Mother cancelled the visit scheduled for October 26, 2021.
frustrated” with the children because they were not following her directives and
began to yell at the children, saying “things like,” “I don’t care if you guys don’t ever
come home. You guys are bad. You’re worse than you were when I sent you guys
away.” Glenn stated that Mother told her not to bring the children back to visit and
left the visit an hour early. Glenn testified that the children were “really upset” and
“very hysterical,” that J.H. was attempting to “escape the room” and that K.H. was
acting “like he expected that to happen.”
Glenn testified that after the October 19, 2021 visit, she reached out
to Mother to see if Mother would sign a release so the agency could arrange for a
supportive visitation coach to assist Mother with visitation but that Mother did not
respond.
Mother’s final visit with the children occurred on November 2, 2021.
At that visit, Mother informed K.H. that his paternal grandmother had died. Glenn
stated that K.H. appeared “visually upset” and asked Mother questions regarding
what had happened to her but that Mother was “basically just ignoring him.”
Approximately an hour into the visit, the security guard informed them that
Mother’s mother was outside and wanted to attend the visitation. Glenn stated that
she advised Mother that she would allow her mother to attend the visit this time, but
she would not be permitted to attend future visits. Glenn testified that Mother
“became irate” and “agitated,” “use[d] profanity toward the security guard” and “just
lacked self-control.” Glenn stated that she asked the security guard to give Mother
“a chance to calm down” and continue the visit but, due to Mother’s continued
hostility and use of profanity in front of the children, Glenn terminated the visit, and
the security guard escorted Mother from the building.
Glenn testified that, based on what she observed during Mother’s in-
person visits with the children, it appeared that Mother had “regressed,”
necessitating additional referrals for services. She stated that the agency
recommended that Mother undergo a second psychological evaluation and attend a
“more intensive parenting program,” but that Mother refused to do so.
Glenn testified that following the November 2, 2021 visit, she
continued to email Mother to provide updates regarding the children and to see
what the agency could do to facilitate visitation. Glenn stated that she offered to set
up video visitations between Mother and the children but that Mother did not
respond.
Glenn also testified regarding the children’s placements and services.
She stated that Ma.H. and Hea.P. had been placed in a foster home together and that
K.H. and J.H. been placed in a foster home together and that they had remained in
the same placements since July 2021.
Glenn testified that the foster family of K.H. and J.H. has “had a lot
of incidents with their behavior” and that they are working to get the children the
services they need to “stabilize their behaviors.” She stated that K.H. told her on
December 1, 2021 that he did not want to go home and wanted to be adopted by the
foster family. She indicated that J.H. “has a lot of confusion” and enjoys being in
the foster home but “asks about his mother a lot.” She stated that K.H. had been
diagnosed with severe depression, anxiety and PTSD and that J.H. had been
diagnosed with ODD and that both boys receive medical management, psychiatric
services and counseling. She stated that Mother did not want her children to be
medicated or to see a psychiatrist but that the agency took those steps due to the
children’s reported behaviors.
Glenn testified that Hea.P. and Ma.H. were doing “really well” in their
placement. She stated that Hea.P. had some behavioral issues but was “easily
redirected” and that Ma.H. had some recent incidents after visitation with Mother
where she would become “withdrawn” and would “cry for no reason,” so she had
been referred for counseling. Glenn indicated that it was her understanding that
both girls were “happy” in their placements but that Ma.H. “wants to go home as
well.”
Glenn testified that due to his behavior, My.H. had been in seven
different placements since July 2021. She stated that My.H. “hates caregivers,”
“curses at them” and “threatens to leave and run away from the home” but that he
had been in his current placement since October 2021. Glenn indicated that his
behavior had started to improve, that he was doing better in school and seemed
happier. She stated that My.H. receives counseling, that he may have ADHD and
that a recommendation had been made for him to see a psychiatrist but that they
were awaiting to see what his pediatrician recommended.
Glenn testified that although she believed reunification would
ultimately be in the children’s best interests, Mother needed “to develop the skills to
maintain self-control within herself” and “gain the skills to parent her children in a
prosocial way, in a way that reduces her risk of doing something to harm them”
before reunification could occur.
Amata thoroughly cross-examined Glenn regarding Mother’s
visitation with the children, the visitation environment, the children’s difficult
behavior and the agency’s efforts to make the visits run more smoothly. Amata also
questioned Glenn at length regarding the children’s placements and services,
Mother’s substance abuse assessment and the nature of the drug treatment program
to which the agency had referred Mother, the extent of Mother’s compliance with
the anger management and parenting class components of the case plan and
whether Glenn was in a position to accurately assess whether Mother had
sufficiently benefitted from such services given her limited interactions with
Mother.
Mother presented no witnesses at the dispositional hearing.
After Glenn testified, the children’s guardian ad litem8 presented her
recommendation. The children’s guardian ad litem had submitted a written report
on November 24, 2021 in which she recommended that temporary custody of the
children be granted to the agency until Mother can “engage [in] and complete * * *
her case plan services and exhibit a benefit from services which would be reflected
8 The children’s guardian ad litem had previously served as the guardian ad litem
for all five children in Cuyahoga C.P. Juv. Nos. AD21904155-AD21904159 and for K.H.,
Ma.H. and My.H. in Cuyahoga C.P. Juv. Nos. AD16910638-AD16910640.
in stable and appropriate behavior during visits with the children” and “maintain
housing appropriate for the children and free of safety hazards.”
The children’s guardian ad litem described the difficult interactions
she had had with Mother and stated that she was concerned that no visitation was
occurring between Mother and the children. The children’s guardian ad litem
indicated that when she attempted to have a face-to-face meeting with Mother,
Mother refused to talk with her and that once, during a visitation, Mother attempted
to have her removed from the visitation — but that she refused to leave. The
children’s guardian ad litem stated that visit — with two of the children — ultimately
“went well” but that reports from other visits with the children were “horrendous”
and “indicative of the kind of chaos” that she believed “goes on in the home when
the children are at home.” The children’s guardian ad litem stated that Mother’s
“inability to control her anger” is the focal point of the case and that, in her view,
“[t]here’s a lot of work to be done” and Mother is “resistant to doing that work.”
Amata briefly questioned the children’s guardian ad litem regarding the extent and
frequency of her interactions with Mother. No one else questioned the children’s
guardian ad litem.
In his closing argument, Amata advocated for Mother, requesting that
the court deny the agency’s request for temporary custody and return the children
to Mother with protective supervision. He pointed out that Mother had “technically”
completed most of her case plan and questioned if it could be fairly assessed whether
Mother had benefited from services “unless [M]other has the children with her.”
Amata asserted that the children had not been abused or neglected and that there
was no reason to believe Mother would harm the children. He explained that
services could be continued if the children were returned to Mother and argued that
services “would be much more effective” and that Mother’s progress “could be much
more objectively measured” if the children were with her.
The Magistrate’s Written Decision
On December 8, 2021, the magistrate issued a written decision,
adjudicating the children neglected and dependent and granting temporary custody
of all five children to the agency. The magistrate found that the allegations of the
complaint had been proven by clear and convincing evidence, that there was
probable cause for the removal of the children pursuant to R.C. 2151.31, that the
children’s continued residence in or return to Mother’s home would be contrary to
their best interest and that the agency had made reasonable efforts to prevent
removal of the children from their home, to eliminate the continued removal of the
children from their home or to make it possible for the children to return home. As
it relates to Mother, the magistrate further found:
Case plan objectives for the mother are mental health assessment with
recommendations, substance abuse assessment and
recommendations, anger management, and parenting education. The
mother has been referred to Moore Counseling, Beech [B]rook and
Advantage Health. The mother had no recommendations for mental
health. The mother was referred to complete a substance abuse
program but did not comply. The mother has completed anger
management and parenting education but fails to demonstrate a
benefit from the service. The mother will not allow the worker inside
her home and doe[s] not wish to speak with the worker.
The magistrate also found that the children were all “happy” in their current
placements.
Mother’s Objections to the Magistrate’s Decision
On December 17, 2021, Mother filed objections to the magistrate’s
decision, challenging the magistrate’s denial of her oral motion for continuance.
Mother claimed that the magistrate should have granted her motion for continuance
because (1) she was “entitled to be represented by effective counsel,” (2) Daugherty,
the attorney who had been working on Mother’s case and who had been preparing
for the adjudicatory and dispositional hearings, learned that he had been exposed to
COVID-19 the afternoon before the scheduled hearings and could not appear in
person for the hearings, (3) Amata, who ultimately represented Mother at the
adjudicatory and dispositional hearings, had never met Mother, had never had a
conversation with her and had “very little time to review the file” before the hearings,
(4) Mother’s guardian ad litem was also quarantining due to COVID-19 exposure
and could only appear remotely for the hearings and (5) “[d]ismissal and refiling of
the present case would not likely have changed the placement of the children but
would have maintained the status quo.” Mother argued that the adjudicatory and
dispositional hearings should “be reheard with [M]other having effective counsel.”
In support of her objections, Mother attached an affidavit from
Daugherty, which included additional information regarding the circumstances
surrounding his unavailability for the December 7, 2021 hearings. Daugherty
averred that, at approximately 1:00 p.m. on December 6, 2021, he learned that he
had been exposed to COVID-19 at a hearing several days earlier, that, pursuant to
office protocol, he was required to leave the workplace and self-quarantine until he
obtained a negative COVID-19 test and that he was unable to obtain an appointment
for a COVID-19 test until after the scheduled hearings. He further averred that he
had been the only attorney in the Public Defender’s Office who had worked on the
case and that, “[d]ue to the requirement to leave the workplace and self-quarantine
upon discovering the exposure, there was no opportunity to adequately prepare a
replacement attorney for the adjudication and disposition hearings.” Amata
asserted that he had been advised of Daugherty’s unavailability for the hearings at
2:50 p.m. on December 6, 2021.
CCDCFS filed a brief in support of the magistrate’s decision and
opposition to Mother’s objections. The agency argued that the magistrate properly
denied Mother’s request for a continuance because (1) the agency had made
arrangements for an outside witness to appear for the hearing, (2) the December 7,
2021 date had been agreed to by all parties, (3) as of December 7, 2021, the children
had been in emergency temporary custody of the agency for 144 days, (4) a
continuance would have required refiling of the complaint, further delaying
permanency for the children, which was not in their best interest, and (5) there was
no evidence in the record that Amata had failed to “competently represent” and
“effectively assist” Mother at the adjudicatory and dispositional hearings.
On January 13, 2022, the juvenile court held a hearing on Mother’s
objections to the magistrate’s decision. Both Daugherty and Amata appeared at the
hearing. At the hearing, Amata made it clear that Mother was “not objecting to
anything that happened in the trial” and was only objecting to the magistrate’s
denial of Mother’s motion for continuance. Amata argued that Mother was entitled
to have “properly prepared” counsel try her case and that although granting the
continuance might have required the juvenile court to dismiss (and the agency to
refile) the complaint, “it happens all the time” and was not “gonna cause any harm
to anyone because the children would have stayed where they were.”
With respect to his preparation for the adjudicatory and dispositional
hearings, Amata indicated that he had “locate[d] a file, but there was no discovery”
and that Daugherty had contact with witnesses of whom he had no knowledge.
Amata stated, “I indicated to the Magistrate that I was not prepared to go forward
and that I would be ineffective if the trial did go forward.”
The juvenile court inquired whether a request had been made to allow
Attorney Daugherty to participate in the adjudicatory and dispositional hearings
remotely, e.g., via Zoom. Daugherty confirmed that no such request had been made
but stated that he had “got into contact with the Clerk” and was told that his “best
option” was “to have somebody * * * be present.”
The state challenged Mother’s attempts to characterize the case “as
some sort of complicated case that Mr. Daugherty has extensive knowledge of,
[where] he’s the only one able to proceed.” The state noted that, as it related to
Mother, the only contested issues were whether Mother “display[ed] symptoms of a
mental health condition and anger issues” or “had substance abuse issues.” The
state asserted that “[t]here was no reason that a colleague of Mr. Daugherty’s
couldn’t, in conjunction with Mr. Daugherty, have gotten him or herself up to speed
and be able to present a case.” The state further argued that, to the extent Mother
was arguing ineffective assistance of counsel, she could not show that “there was
anything that * * * could have [been] done more or differently.” The state asserted
that, “on these facts, Mr. Daugherty being here wouldn’t have made any difference
at all and * * * the outcome would have been exactly the same” because “the
testimony is essentially that there’s been very little progress on the case plan.”
After listening to the recording of the hearings, reviewing “the entire
case file” and considering the arguments of counsel, the juvenile court overruled
Mother’s objections, finding them “not well-taken.” The juvenile court then
affirmed, approved and adopted the magistrate’s decision adjudicating the children
neglected and dependent and granting temporary custody of the children to the
agency.
Mother appealed, raising the following sole assignment of error for
review:
The trial court abused its discretion by denying appellant’s motion to
dismiss in violation of appellant’s right to due process.
Law and Analysis
In her assignment of error, Mother asserts that the juvenile court
abused its discretion in refusing to dismiss the complaint under R.C. 2151.35(B)(1)
when a “prepared attorney” was not available to represent Mother at the
adjudicatory and dispositional hearings.
R.C. 2151.35(B)(1) provides:
If the court at an adjudicatory hearing determines that a child is an
abused, neglected, or dependent child, the court shall not issue a
dispositional order until after the court holds a separate dispositional
hearing. The court may hold the dispositional hearing for an
adjudicated abused, neglected, or dependent child immediately after
the adjudicatory hearing if all parties were served prior to the
adjudicatory hearing with all documents required for the dispositional
hearing. The dispositional hearing may not be held more than thirty
days after the adjudicatory hearing is held. The dispositional hearing
shall not be held more than ninety days after the date on which the
complaint in the case was filed except that, for good cause shown, the
court, on its own motion or on the motion of any party or the child’s
guardian ad litem, may continue the dispositional hearing for a
reasonable period of time beyond the ninety-day deadline. This
extension beyond the ninety-day deadline shall not exceed forty-five
days and shall not be available for any case in which the complaint was
dismissed and subsequently refiled.
If the dispositional hearing is not held within the period of time
required by this division, the court, on its own motion or the motion of
any party or the guardian ad litem of the child, shall dismiss the
complaint without prejudice.
Because this case is a refiled case, the 90-day deadline for the dispositional hearing
could not be extended. Id.CCDCFS responds that Mother’s argument is meritless because
Mother “at no point entered a motion to dismiss” and, therefore, “only the denial of
the motion to continue is preserved for purposes of appeal.” Although Mother never
filed a motion to dismiss the complaint below, we recognize that, given the timing
of the juvenile court’s ruling, if the juvenile court had sustained Mother’s objections
to the magistrate’s decision denying her motion for continuance, the juvenile court
would have been required to dismiss the complaint under R.C. 2151.35(B)(1).
Accordingly, we will consider the issue. However, we agree that Mother’s argument
is meritless.
Where a party timely objects to a magistrate’s decision, the juvenile
court must “undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately
applied the law.” Juv.R. 40(D)(4)(d); see also Civ.R. 53(D)(4)(d). This “independent
review” requires the juvenile court to “‘conduct a de novo review of the facts and an
independent analysis of the issues to reach its own conclusions about the issues in
the case.’” In re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-292, ¶ 23,
quoting Radford v. Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-Ohio-
6263, ¶ 13.
Juv.R. 23 governs continuances in juvenile court. It states that
“[c]ontinuances shall be granted only when imperative to secure fair treatment for
the parties.” Loc.R. 35(C) of the Cuyahoga County Court of Common Pleas, 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.
The grant or denial of a motion to continue is a matter that is
generally ‘“entrusted to the broad, sound discretion of the trial judge.”’ In re Ka.C.,
8th Dist. Cuyahoga Nos. 102000, 102002, 102005, and 102006, 2015-Ohio-1158,
¶ 13, quoting State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). A court
abuses its discretion when its decision is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); In re Ka.C.
at ¶ 13.
Where the granting of a continuance is necessary to allow a party a
reasonable opportunity to prepare his or her case, the denial of a request for a
continuance may violate a party’s right to due process. See, e.g., State v. Sowders,
4 Ohio St.3d 143, 144, 447 N.E.2d 118 (1983) (“It is a basic due process right * * *
that a defense counsel be afforded the reasonable opportunity to prepare his case.”);
see also In re R.S., 8th Dist. Cuyahoga No. 99562, 2013-Ohio-5576, ¶ 17, citing In re
A.C., 6th Dist. Lucas No. L-10-1025, 2010-Ohio-4933, ¶ 128. However, not every
denial of a motion for continuance is a denial of due process. In re C.W., 8th Dist.
Cuyahoga No. 109219, 2020-Ohio-3189, ¶ 16.
As the Ohio Supreme Court explained in Unger: ‘“There 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, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,
11 L.Ed.2d 921 (1964); see also In re I.N., 8th Dist. Cuyahoga No. 110067, 2021-
Ohio-1406, ¶ 17; In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-3373, ¶ 26.
“Weighed against any potential prejudice to a [party] are 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.” Unger at 67.
When evaluating a request for a continuance, courts generally
consider
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; see also In re I.N. at ¶ 17; In re A.W. at ¶ 27. However, a court is not
required to give particular weight to any one of these factors. State v. Urbina, 3d
Dist. Defiance Nos. 4-21-08 and 4-21-09, 2021-Ohio-4254, ¶ 13, citing Musto v.
Lorain Cty. Bd. of Revision, 148 Ohio St.3d 456, 2016-Ohio-8058, 71 N.E.3d 279,
¶ 23. In matters involving custody of children, courts must also “be mindful of the
best interests of the children and their need for stability and permanency” in
considering a request for a continuance. In re I.N. at ¶ 16.
Mother has not shown that she was denied due process or that the
juvenile court otherwise abused its discretion in overruling her objections to the
magistrate’s decision and in failing to dismiss the agency’s complaint pursuant to
R.C. 2151.35(B)(1). There is nothing in the record to suggest that granting a
continuance was “imperative to secure fair treatment for the parties,” Juv.R. 23, or
that the juvenile court’s decision was otherwise unreasonable, arbitrary or
unconscionable. Further, Mother has not shown that she was prejudiced by the
denial of her motion for continuance.
Following the timely filing of Mother’s objections to the magistrate’s
decision, the juvenile court held a hearing on Mother’s objections. The record
reflects that the juvenile court carefully considered Mother’s objections, the agency’s
response to Mother’s objections and the parties’ arguments relating to Mother’s
motion for continuance. The record further reflects that the juvenile court listened
to the recording of the adjudicatory and dispositional hearings and reviewed the
entire case file before ruling on Mother’s objections. In its January 20, 2022 journal
entry, the juvenile court set forth the following findings in support of its decision
overruling Mother’s objections to the magistrate’s denial of her motion for
continuance:
The Court finds that Mr. Amata who appeared in Court on December 7,
2021, in place of the quarantined attorney Mr. Daugherty, effectively
and zealously represented the interests of mother. Upon review of the
record, this Court did not feel an argument could be made for
ineffective assistance of counsel. Substituting public defenders as well
as prosecutors is a common occurrence in Cuyahoga County Juvenile
Court. It was clear from review of the recording that Mr. Amata had
reviewed Mr. Daugherty’s notes, court file and relevant papers and was
well prepared to address the limited issues outlined in the original
complaint.
Mother has not challenged any of these findings on appeal. The
juvenile court’s decision was well-reasoned, and the record fully supports the
juvenile court’s findings and decision overruling Mother’s objections to the denial of
her motion for continuance.
At the time Amata requested the continuance, it was unknown when
Daugherty would be available to appear in person for the hearing, i.e., there was no
indication if the hearings were continued to December 8 or 9, 2021 — to allow for
disposition within the 90-day statutory deadline — whether Daugherty would be
able to attend the hearings in person. No request was made to allow Daugherty to
participate in the hearings remotely, i.e., via telephone or Zoom.
Although Amata had limited time to prepare for the hearings, this was
not a complicated case and did not present any difficult or unique legal or factual
issues. The complaint contained three allegations against Mother: (1) that Mother
displayed mental health and anger management issues related to being
overwhelmed with caring for the children; (2) that Mother had a substance abuse
problem related to marijuana and (3) that the three older children were previously
removed from Mother’s care in 2016 due to anger management concerns. Amata,
Supervisor of the Juvenile Division of the Public Defender’s Office, had been
practicing in this area for many years.
There was no claim that Amata was unable to discuss the case with
Daugherty or was unable to review all of the relevant case file materials in advance
of the hearing. Only two witnesses testified at the adjudicatory hearing: the agency
presented testimony from a former CCDCFS social worker and Mother presented
testimony from her sister. A single witness testified at the dispositional hearing: the
agency presented testimony from the CCDCFS social worker currently assigned to
the case. As the juvenile court observed, Amata competently and capably
represented Mother throughout the adjudicatory and dispositional hearings. He
presented a well-reasoned opening statement and closing argument that
demonstrated familiarity with the limited facts of the case, he made appropriate
objections throughout the hearings and he zealously and effectively cross-examined
each of the agency’s witnesses. There is no indication in the record that Mother
would have offered additional or different evidence (or made additional or different
arguments) if Daugherty (or some other more prepared attorney) had been
defending Mother at the hearings instead of Amata. See, e.g., In re A.C., 2010-Ohio-
4933, at ¶ 132 (where Father did not identify any particular evidence, argument or
defense he was unable to present at adjudicatory hearing due to the purported lack
of preparation of counsel, denial of continuance did not provide a basis for reversal
on appeal).
Furthermore, the decision from which Mother is appealing is the
juvenile court’s decision adjudicating her five children neglected and dependent and
awarding temporary custody of the children to CCDCFS. The record shows that,
although Mother had completed anger management and parenting classes, she had
not sufficiently benefitted from those services to appropriately parent her children.
As Glenn testified, during weekly, supervised visitation with the children, Mother
struggled to maintain control, became frustrated and irritated with the children
when they did not follow her directives and repeatedly told the children that she did
not want to visit with them or did not want them to return home. After a couple of
challenging visitation sessions, Mother refused visitation with any of her children
for more than a month prior to the hearing.
The record further shows that Mother had admitted using marijuana
when caring for the children to cope with the children’s behavior, that Mother had
been diagnosed with a severe substance abuse disorder, that Mother had failed to
complete a recommended drug treatment program and that Mother had failed to
submit to random drug screens to confirm her sobriety. The record also reflects that
Mother was refusing to communicate with Glenn and the children’s guardian ad
litem and that Mother was refusing to permit the agency access to her home.
Given these facts, even if Mother had been granted a brief
continuance within the statutory time frame to permit Daugherty to participate in
the hearings in person (or for some other more prepared attorney to represent
Mother at the hearings), there is nothing to indicate it would have changed the
decision to adjudicate the children neglected and dependent and to award
temporary custody of the children to CCDCFS. Mother has not challenged the
juvenile court’s determinations with respect to adjudication or disposition of the
children. Moreover, if Mother believed that Daugherty’s presence at the hearings
was necessary or helpful, she could have requested that he be permitted to
participate in the hearings remotely via telephone or Zoom. Daugherty was not ill;
due to COVID-19 protocols, he simply could not go back to the office or appear in-
person for court proceedings until he obtained a negative COVID-19 test.
If, however, the juvenile court had granted the motion for
continuance and the dispositional hearing had not been held within the statutory
time frame — necessitating dismissal of the complaint under R.C. 2151.35(B)(1) — it
could have clearly had an adverse impact on the children and other parties to these
proceedings. This case is already a refiled case. If the complaint was to be dismissed,
new pleadings would have to be filed and served, new arraignments and other
preliminary proceedings would need to be held and new case schedules would need
to be established — needlessly expending already limited resources and further
delaying resolution of the case and permanency and stability for the children.
Following a thorough review of the record, we cannot say that the
juvenile court abused its discretion in overruling Mother’s objections to the denial
of her motion for continuance and in failing to dismiss the complaint. Mother’s
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the 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.
_______
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR