In re J. F. , 2019 Ohio 3172 ( 2019 )

[Cite as In re J. F. , 2019-Ohio-3172.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
J. F. : CASE NO. CA2019-01-004
: OPINION
8/7/2019
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2017-0092
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
The Search Law Firm, Lorraine M. Search, 6 South Second Street, Suite 309, Hamilton, Ohio
45011, for appellant
HENDRICKSON, P.J.
{¶ 1} Father appeals the decision of the Butler County Court of Common Pleas,
Juvenile Division, which granted Butler County Children Services permanent custody of
Father's biological child, J.F. For the reasons discussed below, this court affirms the award
of permanent custody.
{¶ 2} On March 7, 2017, Butler County Children Services ("BCCS" or "the agency")
Butler CA2019-01-004
filed a complaint alleging that J.F was a dependent child. The agency alleged that J.F.'s
mother was depressed, homicidal, suicidal, hearing voices, and abusing substances. The
complaint further alleged that J.F.'s father was incarcerated at the Mansfield Correctional
Institution. BCCS requested temporary custody of J.F., which the court granted on the same
day in an emergency ex parte order.
{¶ 3} In April 2017, the juvenile court held a hearing, at which Mother appeared.
Father, who was still incarcerated, did not appear. Mother stipulated to J.F.'s dependency
and the court found J.F. dependent. The court continued temporary custody with the agency.
{¶ 4} Over the course of the ensuing year, Mother continued to struggle with the
issues that caused J.F.'s removal. The court held several review hearings at which it was
determined that it was in J.F.'s best interest to extend temporary custody with BCCS. Finally,
on July 30, 2018, BCCS moved for permanent custody of J.F. The court subsequently
appointed counsel to represent Father in the permanent custody proceedings.
{¶ 5} The court scheduled the permanent custody hearing for November 5, 2018,
with a pretrial hearing set for October 22, 2018. On October 19, the agency filed a notice of
intent to use evidence at the hearing. This evidence consisted of six documents, including
social summaries, substance abuse and mental illness assessments, home studies, and an
Ohio Department of Corrections website printout reflecting details concerning Father's
incarceration.
{¶ 6} At the October 22, 2018 pretrial, Father's counsel indicated that there was the
possibility that Father might be released from prison as early as April 2019 and therefore
asked the court to continue the permanent custody hearing. The court indicated it would not
continue the case as the child had been in the agency's temporary custody for 589 days.
{¶ 7} On October 31, 2018, Father moved for a continuance of the permanent
custody hearing, reiterating the same arguments concerning a potential early release from
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prison. Father further indicated he was willing to engage in case plan services in order to
reunify with J.F. Simultaneously, Father moved the court to order him transported to the
Butler County Juvenile Court for the hearing. The court denied both motions in an entry
issued on November 1, 2018.
{¶ 8} The juvenile court held the permanent custody hearing as scheduled on
November 5, 2018. Mother was present. Father was not present but was represented by
counsel. Father's counsel indicated that Father wished to oppose the permanent custody
motion but could not appear personally because of his incarceration. Father's counsel
reiterated Father's requests to continue the hearing and to be transported to the hearing.
The court again denied these requests.
{¶ 9} Mother then surrendered her custodial rights. Next, the guardian
recommended that the court grant permanent custody of J.F. to the agency. Afterwards, the
agency offered to submit the documents it had referred to in the earlier filed notice of intent to
use evidence. No objection was made by any party to this procedure or to potential hearsay
in the documents. The court admitted those documents pursuant to its local rule. No
contested hearing was held, and no witnesses testified. Again, no objections were made to
this procedure.
{¶ 10} On the same day of the hearing, the magistrate issued a decision
recommending that the juvenile court grant permanent custody to BCCS. The decision
indicated that Father had failed to appear for the hearing and was found in default. The
decision referred to the documents submitted by the agency and adopted the facts in those
documents as supporting the finding that an award of permanent custody to the agency was
in J.F.'s best interest.
{¶ 11} The court adopted the magistrate's decision later that day. Thirty days later, on
December 5, 2018, Father filed objections to the magistrate's decision as well as a motion to
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extend the time to file objections. The court denied both motions on the basis that the time
for filing objections to the magistrate's decision had passed. Father appeals, raising one
assignment of error.
{¶ 12} Assignment of Error No. 1:
{¶ 13} TRIAL COURT ERRED IT GRANTED PERMANENT CUSTODY OF
APPELLANT'S CHILD TO [BCCS], THEREBY DENYING APPELLANT HIS RIGHT TO DUE
PROCESS IN VIOLATION OF THE UNITED STATES AND THE OHIO CONSTITUTIONS.
{¶ 14} Father argues that the court erred in denying his request to be transported from
prison to the hearing, for finding him in default, and for finding that an award of permanent
custody to the agency was in J.F.'s best interest. However, Father failed to file objections to
the magistrate's decision within the 14-day time-limit prescribed by Civ.R. 53(D)(3)(b)(i). This
time limitation is the same regardless of whether the trial court adopts the decision within
those 14 days. Civ.R. 53(D)(3)(b)(i). As such, Father is limited to arguing that plain error
occurred in the proceedings below. Civ.R. 53(D)(3)(b)(iv). Plain error is only found in
"exceptional circumstances where error, to which no objection was made at the trial court,
seriously affects the basic fairness, integrity, or public reputation of the judicial process,
thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v.
Davidson, 79 Ohio St. 3d 116 (1997), syllabus.
{¶ 15} With respect to the denial of Father's motion to be transported to the hearing
from prison, parents have a fundamental liberty interest in the care, custody and
management of their children. Santosky v. Kramer, 455 U.S. 745, 753,102 S.Ct. 1388
(1982). As such, when the state seeks to terminate custody, a parent is entitled to due
process of law – i.e., fundamentally fair procedures -- in accordance with the Fourteenth
Amendment to the United States Constitution and Section 16, Article I of the Ohio
Constitution. In re Elliott, 4th Dist. Lawrence No. 92 CA 34, 1993 Ohio App. LEXIS 3267,
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*10-11 (June 25, 1993).
{¶ 16} Included in such due process rights granted to Father are notice of the hearing,
assistance of counsel, and presence at the hearing itself. However, Ohio courts have
determined that the right of access to the court is not absolute. In re Vandale, 4th Dist.
Washington No. 92 CA31, 1993 Ohio App. LEXIS 3465 (June 29, 1993). In Vandale, the
court held that other procedural protections, such as representation by counsel, may be
sufficient to ensure that a parent's due process rights are preserved. Id. at *14-15.
{¶ 17} In addition, the United States Supreme Court has set forth a balancing test to
be used to determine a parent's due process rights. The three factors to be considered are:
"(1) the private interest that will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and probable value, if any, of
additional procedural safeguards; and (3) the Government's interest, including the fiscal and
administrative burdens that the additional or substitute procedures would entail." Mathews v.
Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893 (1976).
{¶ 18} Upon consideration of the Mathews factors, this court does not find that the
record contains evidence establishing plain error, i.e., that the court's decision to deny
Father's request to transport him from prison to the hearing had any effect on the outcome of
the proceedings. The evidence before the court was that Father had been incarcerated for a
robbery offense the entirety of the time J.F. was in the agency's temporary custody. The
evidence further suggested that Father would remain incarcerated through the two-year
sunset provision on the juvenile court's ability to continue temporary custody with the
agency.1 There was no evidence that Father could have received custody immediately upon
release from prison. Mother surrendered custody of the child and there were no family
1 See R.C. 2151.353(G); R.C. 2151.415(D)(4).
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members or other suitable persons who had expressed interest in receiving custody. Father
had not engaged in case plan services and had only expressed an interest in reunification
after the permanent custody motion was filed. As such, Father cannot demonstrate a
changed outcome but for his presence at the hearing and therefore has not demonstrated
plain error.
{¶ 19} Next, Father argues that the court erred in finding him in default. Father argues
that grounds for a default judgment did not exist as the agency had not moved for default
judgment and that, through counsel, he participated in the proceedings. The Ohio Rules of
Juvenile Procedure do not provide a mechanism for default judgment. The procedures set
forth for default judgment under Civ.R. 55(A) seem to have limited if any applicability to
dependency cases where the relevant statutes adequately address parents who have
abandoned their children or who have not participated in the proceedings. Father is correct
that the court should not have found him in "default," insofar as that language could reflect a
judgment rendered under Civ.R. 55(A).
{¶ 20} However, even if the court erred in finding Father in default, Father has not
established plain error. There is no evidence that the finding of default caused any prejudice
or affected the outcome of the proceedings. The court considered the evidence before it
relevant to J.F.'s best interest. With respect to Father, it was his incarceration and inability to
reunify with J.F. within a reasonable time, rather than his alleged default, that led to the
court's decision to award permanent custody to the agency.
{¶ 21} Finally, Father argues that the court's decision that a grant of permanent
custody to the agency was in J.F.'s best interest was supported by insufficient evidence and
was otherwise against the manifest weight of the evidence. Before a natural parent's
constitutionally protected liberty interest in the care and custody of his child may be
terminated, the state is required to prove, by clear and convincing evidence, that the statutory
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standards for permanent custody have been met. Santosky, 455 U.S. at 769; R.C.
2151.414(B)(1). An appellate court's review of a juvenile court's decision granting permanent
custody is ordinarily limited to whether sufficient credible evidence exists to support the
juvenile court's determination. In re J.H., 12th Dist. Clinton Nos. CA2015-07-014 and
CA2015-07-015, 2016-Ohio-640, ¶ 21. However, as discussed above, due to Father's failure
to timely object, this court's review is limited to a review for plain error.
{¶ 22} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if the court makes findings pursuant
to a two-part test. First, the court must find that the grant of permanent custody to the
agency is in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D)(1).
Second, the court must find that any of the following apply: (1) the child is abandoned, (2)
the child is orphaned, (3) the child has been in the temporary custody of the agency for at
least 12 months of a consecutive 22-month period, (4) where the preceding three factors do
not apply, the child cannot be placed with either parent within a reasonable time or should
not be placed with either parent, or (5) the child or another child in the custody of the parent
from whose custody the child has been removed, has been adjudicated an abused,
neglected, or dependent child on three separate occasions. R.C. 2151.414(B)(1)(a)-(e).
Only one of those findings must be met to satisfy the second prong of the permanent custody
test. In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 22.
{¶ 23} Father does not challenge the juvenile court's finding that J.F. was in the
agency's temporary custody for at least 12 months of a consecutive 22-month period.
Accordingly, this court will review whether the court committed plain error in determining that
a grant of permanent custody to the agency was in J.F.'s best interest.
{¶ 24} With respect to the best interest analysis, the magistrate indicated he
considered all of the evidence previously submitted during the dependency case and at the
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[Cite as In re J. F. , 2019-Ohio-3172.]
permanent custody hearing. The magistrate also considered the fact of Mother's surrender
of custody and the guardian ad litem's recommendation. Based on this evidence, the
magistrate recommended that the juvenile court award permanent custody to the agency.
The magistrate did not make specific findings of fact relative to the statutory best interest
factors but indicated he would do so if objections to the magistrate's decision were filed, of
which none were.
{¶ 25} Upon review, this court does not find plain error in the juvenile court's
determination that a grant of permanent custody to the agency was in J.F.'s best interest.
The evidence submitted at the hearing indicated that J.F. had been in the agency's
temporary custody for over 600 days by the time of the permanent custody hearing in
November 2018. Mother voluntarily surrendered her custodial rights. Father was
incarcerated for a robbery offense with a scheduled release date of nearly a year later.
There was some uncorroborated suggestion at the hearing that Father could be released as
early as April 2019. However, the two-year statutory limitation on extension of temporary
custody with the agency would have expired in March 2019.
{¶ 26} Moreover, there was no evidence that Father could or was prepared to receive
custody. Father did not engage in any case plan services for reunification and there was no
evidence that Father would have been capable of reunification in a reasonable amount of
time. No family members or other suitable individuals expressed a willingness to accept
custody of J.F. J.F. was in a foster home and the GAL reported that the foster mother
wished to adopt her if the agency was granted permanent custody. Based on the foregoing,
Father has failed to demonstrate plain error in the juvenile court's decision. This court
overrules Father's assignment of error.
{¶ 27} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.