In re C.B. , 2023 Ohio 620 ( 2023 )

[Cite as In re C.B., 2023-Ohio-620.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE C.B., ET AL. :
Minor Children : No. 112112
[Appeal by A.M., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 2, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD21902930, AD21902932, AD21902933, AD21902934,
and AD21902935
Appearances:
Gregory T. Stralka, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorneys, for appellee.
EILEEN A. GALLAGHER, P.J.:
Appellant, A.M. (“mother”), appeals from a decision of the Cuyahoga
County Juvenile Court in these matters denying a continuance of trial. Ultimately,
her parental rights were terminated and permanent custody was granted to the
Cuyahoga County Department of Children and Family Services (“CCDCFS” or “the
Agency”).
Appellant raises only one assignment of error in this appeal, to wit:
The trial court’s denial of Appellant’s request for a continuance was an
abuse of discretion since no opportunity was made to contact the
Appellant.
A complaint for neglect and temporary custody was filed by the
Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the
Agency”) on April 13, 2021 with respect to the minor child C.B. (d.o.b. 12/28/11), the
minor child C.D. (d.o.b 9/11/16), the minor child A.D. (d.o.b. 1/20/18), the minor
child K.W. (d.o.b. 12/16/19) and the minor child J.W. (d.o.b. 3/20/21).
The complaint alleged that A.M. and child J.W. both tested positive
for oxycodone and benzodiazepines at the time of J.W.’s birth. It further alleged
that mother has substance abuse issues and, although she has engaged in treatment,
she has been unable to maintain sobriety and she has a mental health diagnosis
which is untreated and which interferes with her ability to provide adequate parental
care for the children. The complaint also alleged that C.D. has special needs for
which mother has failed to engage him in services.
The fathers of these children have not been involved in their
children’s lives and are not a part of this appeal.
A case plan was developed for A.M. and her children with the goal of
reunification.
Trial before the court on a motion to modify temporary custody to
permanent custody was scheduled for, and called on, June 14, 2022. Present before
the court was an assistant Cuyahoga County prosecuting attorney; counsel for
mother; counsel for P.B., who is the father of C.B.; counsel for alleged father, J.W.
and the guardian ad litem for the children. Also present were a family advocate and
a social worker, employees of CCDCFS, both of whom testified.
Prior to trial, counsel for P.B. sought excusal since he has been
unsuccessful in his attempts to communicate with P.B. and, therefore, cannot
advocate on his behalf. That request was granted by the trial court.
Also prior to testimony being taken, counsel for A.M. requested a
continuance of the trial because “I have not been able to have any contact with her
either. I do not know her position * * *.” Counsel for the Agency objected, stating
that service was perfected on mother, that the anticipated testimony from the social
worker is that mother has not visited the children in the past two months and that
mother has had no contact with the Agency. Counsel for the Agency also cited the
length of the pendency of this case.
The trial court summarily denied the motion for continuance and trial
commenced.
Ultimately, the trial court granted permanent custody of the children
to CCDCFS and terminated mother’s parental rights.
Appellant had appeared at hearings on May 6, 2021, May 27, 2021,
July 1, 2021, July 8, 2021 and August 17, 2021 but, conversely, failed to appear at
hearings held on April 6, 2022, April 26, 2022 and May 17, 2022.
The decision whether to grant or deny a continuance rests in the
sound discretion of the trial court. State v. Ungar, 67 Ohio St.2d 65, 423 N.E.2d
1078 (1981).
Thus, a trial court’s denial of a motion for continuance will only be
reversed on appeal if the trial court abused its discretion. Id. An abuse of discretion
connotes more than an error of law or judgment, and implies that the trial court’s
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
“In evaluating a motion for continuance, a court should note, inter
alia, 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.” Ungar at 67-68.
In this case, mother had appeared for prior hearings. In fact, it was
the testimony of the Agency’s family advocate that she had been in contact with
mother in the morning hours on the day of the hearing which contradicts the
statement made to the court by the attorney for CCDCFS.
The trial court made no findings with respect to the decision to deny
mother’s request for a continuance.
We take our responsibility in reviewing cases involving the
termination of parental rights and the award of permanent custody very seriously.
A parent has a ‘“fundamental liberty interest’ in the care, custody and management”
of his or her child, In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990), quoting
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the
right to raise one’s own child is ‘“an essential and basic civil right.’” In re N.B., 8th
Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d
46, 679 N.E.2d 680 (1997). Because the termination of parental rights is “‘the family
law equivalent of the death penalty in a criminal case,’” it is “an alternative [of] last
resort.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In
re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14.
Under the particular circumstances of this case, we find that the trial
court did abuse its discretion in denying appellant’s motion.
Judgment reversed. Case remanded to the trial court for further
proceedings.
It is ordered that the appellant recover from the appellee the costs herein
taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas, 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
MARY J. BOYLE, J., CONCURS;
MICHELLE J. SHEEHAN, J., DISSENTS (WITH SEPARATE OPINION)
MICHELLE J. SHEEHAN, J., DISSENTING:
Respectfully, I dissent.
Applying the factors set forth in State v. Unger, 67 Ohio St.2d 65, 423
N.E.2d 1078 (1981), I find the trial court acted within its discretion in denying
appellant counsel’s request to continue the permanent custody trial.
The record indicates appellant was properly served with notice of the
permanent custody trial and also that she had failed to appear at three pretrial
hearings prior to the trial. On the day of trial, appellant’s counsel requested a
continuance after trial had commenced, but could not explain appellant’s absence,
stating merely that he had been unable to have any contact with appellant and did
not know what her position was on the permanent custody matter. Counsel did not
request any specific length for the continuance. Further consideration of the Unger
factors, including the limited statutory time (120 days) given to the agency to resolve
the custody matter while the permanent custody motion had been pending for 116
days, as well as the resulting inconvenience to the witnesses, the opposing counsel,
the GAL, and the court, indicates that the trial court justifiably denied the request
for a continuance. See, e.g., In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-
3373; In re C.W., 8th Dist. Cuyahoga No. 109219, 2020-Ohio-3189; and In re S.R.,
6th Dist. Ottawa No. OT-09-024, 2010-Ohio-3073.
In applying Unger, I do not find significant the testimony of the
agency’s family advocate regarding her request to appellant for a drug screen on the
morning of the trial. Her testimony indicates that she mostly communicated with
appellant by text messages, since appellant generally did not answer or return phone
calls, and, while she attempted weekly contact with appellant regarding her drug
tests, appellant responded only once a month or every other month. Therefore, the
testimony, read in context, does not indicate that there was any response or
communication from appellant to the family advocate on the morning of the trial. I
find the family advocate’s testimony immaterial to the Unger analysis in this case.
I further note that under Juv.R. 23, “[c]ontinuances shall be granted
only when imperative to secure fair treatment for the parties.” In addition,
Loc.R. 35(C) of the Cuyahoga County Court of Common Pleas, Juvenile Division,
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 record here does not reflect good cause for the continuance of the
trial. While I recognize that biological parents have a constitutionally protected
right to be present at a permanent custody hearing, In re Sears, 10th Dist. Franklin
No. 01AP-715, 2002-Ohio-368, ¶ 11, “a parent facing termination of parental rights
must exhibit cooperation and must communicate with counsel and with the court in
order to have standing to argue that due process was not followed in a termination
proceeding.” In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713,
¶ 12 (8th Dist.). While biological parents have certain rights concerning their
children, ‘“the focus of a permanent custody hearing and decision is not the parent’s
rights but rather the child’s best interests.”’ In re J.H., 11th Dist. Lake No. 2012-L-
126, 2013-Ohio-1293, ¶ 87, quoting In re West, 4th Dist. Athens No. 05CA4, 2005-
Ohio-2977, ¶ 49. The trial court’s decision here comports with “the Ohio General
Assembly’s intent to ensure the timely placement of children into a permanent
home.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 116.
“The grant or denial of a continuance is a matter that is entrusted to
the broad, sound discretion of the trial judge.” Unger, 67 Ohio St.2d 65, at syllabus.
An abuse of discretion implies that court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). Under the circumstances of this case, the trial court acted within its
discretion in denying the request to continue the trial. Therefore, I dissent.