In re J.S. , 2015 Ohio 3111 ( 2015 )

[Cite as In re J.S., 2015-Ohio-3111.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: J.S., JR. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
:
:
: Case No. 2015CA00083
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Divsion, Case
No.2014JCV00034
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 3, 2015
APPEARANCES:
For Appellee For - Appellant
JAMES B. PHILLIPS ANTHONY J. WISE
SCDJFS Stark County Public Defender
221 Third Street S.E. 201 Cleveland Avenue S.W.
Canton, OH 44702 Suite 104
Canton, OH 44702
[Cite as In re J.S., 2015-Ohio-3111.]
Gwin, P.J.
{¶1} Appellant J.S., Sr., (“Father”) appeals the judgment of the Stark County
Court of Common Pleas, Juvenile Division, overruling his motion to continue the
permanent custody trial and granting permanent custody to the Stark County
Department of Job and Family Services (“SCDJFS”).
Facts & Procedural History
{¶2} Appellant J.S., Sr. is the father of minor J.S., Jr., born on July 11, 2013.
On January 15, 2014, SCDJFS filed a complaint alleging that J.S., Jr., was a dependent
and neglected child and seeking temporary custody. The complaint indicated there
were concerns about the mental stability of both parents and that the child’s treating
physician had concerns about the weight and regression in development of the child.
Further, that the parents had not followed through with physical therapy for the child’s
torticullis condition.
{¶3} At a shelter care hearing on January 16, 2014, Father stipulated to
probable cause. On April 3, 2014, the trial court held an evidentiary adjudication
hearing. At the hearing, SCDJFS deleted the allegations of neglect. The trial court
found J.S., Jr., to be a dependent child, incorporated SCDJFS’ proposed case plan, and
granted temporary custody to SCDJFS. Father filed a motion to extend temporary
custody on July 11, 2014, which he subsequently withdrew on August 28, 2014.
{¶4} On December 16, 2014, SCDJFS filed a motion for permanent custody of
J.S., Jr. The motion stated that neither parent was compliant with mental health
services. Further, that Father had not completed a parenting evaluation, had received a
certificate of non-compliance from Goodwill Parenting, had not complied with drug
Stark County, Case No. 2015CA00083 3
treatment or random drugs tests, and had not visited J.S., Jr., since June of 2014.
Father was personally served with a copy of the motion for permanent custody on
January 16, 2015. On April 3, 2015, J.S. Jr’s guardian ad litem filed a report
recommending permanent custody be granted to SCDJFS.
{¶5} A trial on SCDJFS’ motion for permanent custody was held on April 7,
2015. At the beginning of the hearing, the trial court indicated that Father appeared at
the courthouse 12:30 p.m., prior to the start of the 1:00 p.m. trial, spoke with his
attorney, was told to have a seat in the lobby, but had not returned as of 1:33 p.m.
Father’s attorney stated that Father expressed an interest in speaking with the guardian
ad litem. Further, that Father’s attorney told Father he had approximately fifteen (15)
minutes before the trial began, so Father should sit in the lobby and wait for the
guardian ad litem to arrive. Father’s guardian ad litem, also an attorney, stated that she
saw Father around 11:00 a.m., spoke with him about the hearing, and reminded him
that the trial began at 1:00 p.m. Father indicated to her that he understood and would
be there. She attempted to call Father’s phone, but it was disconnected. Father’s
attorney and his guardian ad litem indicated to the trial court that Father could not be
located in or around the courtroom. Father’s attorney then requested a continuance of
the permanent custody trial, which the trial court denied. The trial court also noted that
Father had an active warrant for his arrest.
{¶6} Sue Snyder, an ongoing caseworker for SCDJFS testified that J.S., Jr.,
has been in the temporary custody of the agency since January 15, 2014. Further, that
the case plan contained services for Father because of concerns with his mental health,
lack of stability, parenting skills, lack of stable housing, and lack of visitation with the
Stark County, Case No. 2015CA00083 4
child. Snyder testified that Father did not complete a parenting assessment, received a
certificate of non-compliance from Goodwill Parenting, did not complete anger
management treatment, has no stable residence, and did not visit J.S., Jr., from
January of 2014 to January of 2015. Father has had three (3) visits with the child since
January of 2015. Snyder testified that Father did nothing to reduce the risk posed to the
child and that he cannot safely care for J.S., Jr. Snyder finally stated it is in the child’s
best interest to grant permanent custody to SCDJFS. Father’s attorney cross-examined
Snyder and made closing arguments to the trial court.
{¶7} On April 8, 2015, the trial court issued findings of fact, conclusions of law,
and a judgment entry, which journalized the denial of Father's motion to continue. The
trial court found, by clear and convincing evidence, that Father abandoned J.S., Jr., by
failing to visit him for more than ninety (90) days; that the child has been in the
temporary custody of SCDJFS for twelve out of the last twenty-two months; that
reasonable efforts were made by SCDJFS; and that the child cannot be placed with
Father within a reasonable period of time. The trial court finally found it was in the best
interest of J.S., Jr., to grant permanent custody to SCDJFS.
{¶8} Father appeals the judgment entry of the trial court, assigning the
following as error:
{¶9} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
TO CONTINUE THE PERMANENT CUSTODY TRIAL.”
Stark County, Case No. 2015CA00083 5
I.
{¶10} A parent has a fundamental liberty interest in the care, custody, and
management of his or her child and an essential and basic civil right to raise his or her
children. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). However, a
parent’s right is not absolute as “the natural rights of a parent * * * are always subject to
the ultimate welfare of the child, which is the polestar or controlling principle to be
observed.” In re Cunningham, 59 Ohio St.2d 100, 391 N.E.2d 1034 (1979).
{¶11} The decision to grant or deny a motion for continuance rests within the
sound discretion of the trial court. In re R.H., 5th Dist. Stark No. 2012-CA-00008, 2012-
Ohio-1811; State v. Unger, 113 Ohio App.3d 137, 680 N.E.2d 665 (3rd Dist. 1996).
This court may not reverse a trial court’s decision unless we find it has abused its
discretion. Id. The Supreme Court has defined the term abuse of discretion as
demonstrating the trial court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶12} A party has a right to a reasonable opportunity to be present at trial and a
right to a continuance for that purpose. Hartt v. Munobe, 67 Ohio St.3d 9, 615 N.E.2d
617 (1993). A party does not, however, have a right to delay trial for no reason. State
ex rel. Buck v. McCabe, 140 Ohio St. 535, 45 N.E.2d 763 (1942). A continuance based
on a party’s absence must be based on unavoidable, not voluntary, absence. Id.; In re
Gibby, 5th Dist. Fairfield No. 2003-CA093, 2004-Ohio-2708.
{¶13} Among the factors to be considered and balanced in determining whether
the continuance was properly denied are: (1) the length of the requested delay; (2)
whether other continuances had been requested and granted; (3) the convenience or
Stark County, Case No. 2015CA00083 6
inconvenience to the parties, witnesses, counsel, and court; (4) whether the delay was
for legitimate reasons or whether it was “dilatory, purposeful, or contrived.”; (5) whether
the defendant contributed to the circumstances giving rise to the request; (6) whether
denying the continuance will result in an identifiable prejudice to the defendant’s case;
and (7) the complexity of the case. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078(1981).
{¶14} In this case, Father’s attorney did not indicate the length of the requested
delay. Father had not previously requested a continuance. However, when counsel for
Father requested the continuance at the start of the permanent custody trial, Father’s
counsel could not explain why Father was absent, as Father was present outside the
courtroom approximately fifteen (15) minutes before the trial began, and Father’s
counsel told him to have a seat and wait to speak with the guardian ad litem. The trial
court waited more than thirty (30) minutes to start Father’s portion of the permanent
custody trial and allowed Father’s counsel the opportunity to locate him before going
forward with the trial. Further, Father’s guardian ad litem spoke with Father that
morning about the hearing and Father indicated to her he understood when the hearing
was and that he would be there.
{¶15} Generally, a trial court does not abuse its discretion in denying a motion
for continuance when a party fails to appear at trial without explanation and when there
is no indication that the party would attend a later trial if the continuance was granted.
Heard v. Sharp, 50 Ohio App.3d 34, 552 N.E.2d 665 (8th Dist. 1988). Here, there was
no explanation for Father’s absence or any indication that he was unavoidably absent.
Without any explanation about Father’s absence, the trial court was justified in
Stark County, Case No. 2015CA00083 7
assuming his absence was voluntary. In the Matter of Gibby, 5th Dist. Fairfield No.
2003-CA-93, 2004-Ohio-2708.
{¶16} We find the trial court did not abuse its discretion in overruling Father’s
motion to continue the permanent custody trial. Father had notice of the hearing, as he
was personally served with the motion. Father was represented by counsel at the trial
and counsel for Father cross-examined the agency’s witness and made a closing
statement on Father’s behalf. Father appeared prior to the trial, but did not remain for
the start of the trial. In the absence of evidence appellant was unavoidably absent, this
court cannot find the trial court abused its discretion.
{¶17} Father’s assignment of error is overruled. The judgment of the Stark
County Court of Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur