In re V.G. , 2021 Ohio 3554 ( 2021 )

[Cite as In re V.G., 2021-Ohio-3554.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE:
CASE NO. 8-20-57
V.G.,
DEPENDENT CHILD. OPINION
[CHEYENNE O. - APPELLANT]
Appeal from Logan County Common Pleas Court
Juvenile Division
Trial Court No. 18-CS-19
Judgment Affirmed
Date of Decision: October 4, 2021
APPEARANCES:
Alison Boggs for Appellant
Stacia L. Rapp for Appellee
Case No. 8-20-57
MILLER, J.
{¶1} Mother-appellant, Cheyenne O., appeals the October 6, 2020 judgment
of the Logan County Court of Common Pleas, Juvenile Division, granting
permanent custody of her biological child, V.G., to appellee, Logan County
Children’s Services (“the Agency”). For the reasons that follow, we affirm.
Facts and Procedural History
{¶2} Cheyenne and Brendon G. are the biological parents of V.G., born
March 2018. On March 13, 2018, the Agency simultaneously filed a motion for
emergency custody and a complaint for temporary custody of V.G., alleging that he
was an abused and dependent child. Specifically, the complaint alleged that the
Agency received a referral from a mandated reporter at Mary Rutan Hospital after
Cheyenne sought treatment on March 10, 2018 due to complications with her
pregnancy and tested positive for cocaine, phencyclidine, and benzodiazepine.
Cheyenne was transferred to another hospital where she delivered V.G. at 35 weeks
and 4 days gestation. V.G.’s cord blood tested positive for cocaine, methadone,
diazepam, nordiazepam, and phenergan. Additionally, the complaint alleged that
V.G. exhibited withdrawal symptoms consisting of high-pitched cries, tremors, not
sleeping, splotchy skin, sneezing, fever, and regurgitation. V.G. was treated with
morphine and remained in the hospital for several days. Concerns regarding
Cheyenne’s mental health, including a history of depression, anxiety, panic attacks,
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post-traumatic stress disorder, and bipolar disorder, were also included in the
complaint. On March 12, 2018, the Agency confirmed the referral information with
the hospital and requested a verbal order of removal, which the trial court granted.
At a hearing the next day, the trial court upheld the removal and granted the
Agency’s request for emergency and temporary custody of V.G. The trial court
also made a finding that the Agency made reasonable efforts to prevent V.G.’s
removal. The parents were granted supervised parenting time with V.G. as
approved and arranged by the Agency.
{¶3} On April 11, 2018, the Agency filed its first case plan. The case plan
identified the Agency’s concerns regarding Cheyenne’s drug use, mental health,
lack of knowledge in parenting skills, association with known drug users, and lack
of housing and income stability. To alleviate the concerns, the case plan required
Cheyenne, in part, to complete drug and alcohol and mental health assessments,
participate in counseling to address drug-abuse concerns, obtain and maintain
employment and suitable housing, and engage in parenting classes. The case plan
also required Cheyenne to sign releases of information and comply with random
drug testing as deemed necessary by the Agency or drug and alcohol counselors.
{¶4} At the adjudication hearing held on April 24, 2018, the parties stipulated
that V.G. was a dependent child pursuant to R.C. 2151.04(B) and (C), and the trial
court found V.G. was a dependent child pursuant to that admission. Upon motion
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of the Agency, and without objection, the allegations in the complaint alleging that
V.G. was an abused child were dismissed by the trial court. The parents were further
ordered to schedule an appointment with the family court treatment coordinator for
potential admission into the program. The judgment entry reflecting the trial court’s
findings was filed on May 17, 2018.
{¶5} On May 17, 2018, the Agency filed amended case plan 1.01 which
indicated that the kinship provider was no longer able to provide care for V.G. and
that, accordingly, V.G. was now placed in a licensed foster home. The amended
case plan reflected that V.G. was familiar with the foster parents because they had
been his babysitters. At the disposition hearing on May 29, 2018, the magistrate
conducting the hearing recommended V.G. remain in the temporary custody of the
Agency. The parents were awarded supervised visitation with V.G. as approved
and arranged by the Agency. Further, pursuant to the agreement of the parties, the
magistrate found that the Agency made reasonable efforts to eliminate the need for
V.G.’s continued removal from his parents’ home. Cheyenne was also ordered to
participate in family treatment court (“FTC”) to address her continued substance
abuse. The judgment entry reflecting the magistrate’s findings and
recommendations was filed on July 10, 2018. On July 13, 2018, the trial court
adopted the magistrate’s findings and recommendations.
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{¶6} The Agency conducted a semi-annual review on September 6, 2018.
The review indicated that Cheyenne was in FTC and was serving several days in
local incarceration for having drug screens showing her use of illegal substances.
The review further stated that Cheyenne’s visits with V.G. were suspended prior to
her incarceration due to her continued substance use and would be reinstated once
she returned clean drug screens for two weeks; however, she was not yet successful
in meeting that requirement. Cheyenne planned to complete inpatient substance-
abuse treatment.
{¶7} On November 27, 2018, the Agency filed a status-review summary
which indicated Cheyenne was in a residential treatment program and that she had
several supervised visits with V.G. while there. The Agency recommended that
V.G. continue in the temporary custody of the Agency with Brendon receiving
unsupervised visits. The Agency recommended that Cheyenne continue supervised
visitation with V.G.
{¶8} On February 19, 2019, the Agency filed a status-review summary which
indicated that Cheyenne was again in local incarceration following a traffic violation
where law enforcement officers found illegal substances on her person while she
was driving without a valid driver’s license. The Agency recommended V.G.
continue in its temporary custody with the parents receiving supervised visitation.
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The Agency further recommended that Cheyenne engage in and successfully
complete residential treatment.
{¶9} At the annual-review hearing held on February 19, 2019, the trial court
approved the Agency’s annual-review summary. The trial court also granted the
Agency’s motion for extension of temporary custody. Accordingly, the Agency was
maintained as the temporary custodian of V.G. with the parents awarded supervised
parenting time as approved and arranged by the Agency. With the agreement of the
parents, the trial court made another reasonable efforts determination.
{¶10} In a status-review summary filed on April 2, 2019, the Agency
indicated Cheyenne was again admitted to a residential treatment center on March
15, 2019 after a diagnostic assessment determined she met the criteria for substance-
use-disorder treatment. The Agency recommended V.G. continue in its custody
with Brendon receiving one supervised visit and one unsupervised visit each week.
The Agency recommended Cheyenne complete residential treatment prior to
recommencing visitation with V.G.
{¶11} On April 9, 2019, Brendon filed an objection to the status-review
summary. At a hearing that same day, the trial court approved the semi-annual
review as amended on the record. On May 1, 2019, Cheyenne was terminated
unsuccessfully from FTC due to a new felony drug-related charge in Logan County.
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{¶12} The Agency conducted a three-month case review on June 5, 2019.
The review indicated that Cheyenne successfully completed in-patient substance
abuse treatment and was now actively involved in adult recovery court. The Agency
reported that Cheyenne and Brendon had one supervised visitation per week and
Brendon had an additional weekly unsupervised visitation.
{¶13} On August 1, 2019, the Agency filed a motion for final extension of
temporary custody. On September 6, 2019, the Agency conducted a semi-annual
review. In the review, the Agency reported that Cheyenne had been compliant with
adult recovery court and her case plan, but was arrested on August 22, 2019 for a
probation violation for abusing substances. The report indicated Cheyenne was
terminated from adult recovery court, and planned on living in a homeless shelter
upon release from jail. The Agency indicated it continued to be concerned about
Cheyenne’s substance abuse and mental health. The Agency also detailed concerns
regarding anger outbursts and domestic violence between Cheyenne and Brendon.
{¶14} On August 27, 2019, a hearing was held on the Agency’s motion for
final extension of temporary custody. Following the hearing, the trial court ordered
the Agency be maintained as temporary custodian of V.G. Further, the trial court
awarded Cheyenne supervised parenting time as approved and arranged by the
Agency upon her release from incarceration. The trial court found the Agency made
reasonable efforts to prevent V.G.’s continued removal from his parents.
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{¶15} On September 16, 2019, the Agency filed amended case plan 1.02.
The amended case plan included additional objectives for Brendon, including
engaging in V.G.’s medical and therapy appointments and participating in anger
management services. On December 18, 2019, the trial court approved amended
case plan 1.02.
{¶16} On December 23, 2019, the Agency moved the trial court for an order
granting it permanent custody of V.G. The trial court scheduled a two-day hearing
on the Agency’s motion for permanent custody for March 31, 2020 and April 1,
2020. On February 19, 2020, the Agency filed a notice with the trial court stating
that it completed an assessment of Brendon’s home and is unable to approve the
home assessment based on the conditions of the home, safety of the child, Brendon’s
ability to care for the child, and persons living in the home.
{¶17} On February 27, 2020, the Agency completed a three-month case
review and a semi-annual review. In the review documents, the Agency detailed its
continuing concerns regarding Cheyenne’s mental health and substance use. The
Agency also detailed concerns regarding the condition of Brendon’s home and his
parenting practices, maturity, and ability to manage V.G.’s medical and therapy
appointments. That same day, the final annual court review was held. At the
review, the trial court and the parties reviewed the home study filed for Brendon
and the semi-annual review. The parents indicated they disagreed with the contents
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of the home study and both parties contested that the Agency employed reasonable
efforts to prevent V.G.’s continued removal. Cheyenne also indicated she did not
agree with the Agency’s assessment in the semi-annual review.
{¶18} On March 23, 2020, Brendon filed a motion for custody of V.G.
wherein he alleged it was in V.G.’s best interest that he be granted temporary and
permanent sole custody of V.G.
{¶19} On March 30, 2020, the trial court filed a judgment entry detailing a
telephonic conference it held with counsel to discuss the potential health concerns
regarding holding the permanent custody hearing in light of the growing COVID-
19 public health crisis. During the conference, the attorneys acknowledged that
Cheyenne was pregnant and living with a preexisting medical condition, making her
part of the population at high risk for severe complications from COVID-19. The
judgment entry indicated that trial counsel for the parents expressed support for the
continuance of the hearing on the motion for permanent custody on behalf of their
clients. Counsel for the Agency stated that she would not voluntarily consent to a
continuance but would not oppose the trial court’s decision to continue the hearing.
Thereafter, the trial court determined the COVID-19 public health crisis and
Cheyenne’s high-risk status constituted good cause to continue the hearing on the
Agency’s motion for permanent custody. Furthermore, Brendon had recently
retained new counsel and the trial court found the continuance afforded his new
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counsel the opportunity to prepare for the hearing. The trial court rescheduled the
hearing on the Agency’s motion for permanent custody and Brendon’s motion for
custody for May 12 and 13, 2020.
{¶20} On March 30, 2020, the Agency filed amended case plan 2.0, in which
it expressed its desire for the trial court to grant the Agency permanent custody and
stated its permanency goal of adoption.
{¶21} The first two days of the permanent custody hearing were held on May
12 and 13, 2020. All of the parties and their attorneys appeared in person for the
hearing, with the exception of Cheyenne’s trial counsel who appeared by telephone
due to health concerns regarding the COVID-19 health crisis. At the
commencement of the hearing on May 12, 2020, Brendon’s trial counsel and
counsel for the Agency moved for a continuance to a later date to permit Cheyenne’s
trial counsel to attend the hearing in person or, in the alternate, to permit the trial
court to appoint new trial counsel for Cheyenne who could appear in-person at the
permanent custody hearing. The trial court denied the motion and the permanent
custody hearing proceeded on May 12 and 13, 2020, with Cheyenne’s trial counsel
appearing telephonically. The hearing was unable to be completed in the two days
allotted, and the permanent custody hearing continued on July 29, 2020, August 6,
2020, and September 8, 2020, with all parties, including Cheyenne’s trial counsel,
physically present in the courtroom.
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{¶22} In a judgment entry filed on October 6, 2020, the trial court found the
Agency made reasonable efforts to prevent the removal of V.G. or to return V.G. to
the custody of his Mother. The trial court granted the Agency’s motion for
permanent custody and denied the parents’ motions for legal custody. The trial
court also approved amended case plan 2.0, which was filed on March 30, 2020.
{¶23} On October 16, 2020, Cheyenne filed her notice of appeal. She raises
four assignments of error for our review.
Assignment of Error No. I
The trial court’s decision granting permanent custody was
against the manifest weight of the evidence and amounted to an
abuse of discretion.
{¶24} In her first assignment of error, Cheyenne argues the trial court’s
decision granting permanent custody of V.G. to the Agency is against the manifest
weight of the evidence. Specifically, Cheyenne challenges the trial court’s
determinations that granting the Agency permanent custody of V.G. was in the
child’s best interest and that V.G. could not be reunited with Cheyenne in a
reasonable amount of time.
Standard of Review
{¶25} “When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court ‘“weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
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determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.”’” In re Dn.R., 3d Dist. Shelby No. 17-
20-06, 2020-Ohio-6794, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th
Dist.2001).
{¶26} In a permanent-custody case, the ultimate question for a reviewing
court is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 43.
“Clear and convincing evidence” is the “‘measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the allegations
sought to be established. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable doubt as in
criminal cases. It does not mean clear and unequivocal.’” In re Dn.R. at ¶ 17,
quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986). “In determining
whether a trial court based its decision upon clear and convincing evidence, ‘a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.’” Id. at ¶ 18,
quoting State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). “Thus, if the children
services agency presented competent and credible evidence upon which the trier of
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fact reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of the
evidence.” In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-Ohio-
3588, ¶ 55.
{¶27} “Reviewing courts should accord deference to the trial court’s decision
because the trial court has had the opportunity to observe the witnesses’ demeanor,
gestures, and voice inflections that cannot be conveyed to us through the written
record.” In re S.D., 5th Dist. Stark No. 2106 CA 00124, 2016-Ohio-7057, ¶ 20. “A
reviewing court should find a trial court’s permanent custody decision against the
manifest weight of the evidence only in the ‘“exceptional case in which the evidence
weighs heavily against the [decision].”’” In re Dn.R. at ¶ 19, quoting State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist.1983).
Applicable Law
{¶28} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990). “Parents have a ‘fundamental liberty
interest’ in the care, custody and management of the child.” Id., quoting Santosky
v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). However, the rights and
interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No.
5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate
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circumstances and when the trial court has met all due process requirements. In re
Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶
6.
{¶29} R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding. In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re
B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for
permanent custody of a child, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,
2015-Ohio-2740, ¶ 13. “R.C. 2151.414(B)(1) establishes a two-part test for courts
to apply when determining whether to grant a motion for permanent custody: (1) the
trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-(e)
applies, and (2) the trial court must find that permanent custody is in the best interest
of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶ 10.
{¶30} The first prong of the test requires a finding by clear and convincing
evidence that there exists one of the statutorily-prescribed situations of R.C.
2151.414(B)(1). As relevant to this case, R.C. 2151.414(B)(1) provides:
[T]he court may grant permanent custody of a child to a movant if the
court determines at a hearing held pursuant to [R.C. 2151.414(A)], by
clear and convincing evidence, that it is in the best interest of the child
to grant permanent custody of the child to the agency that filed the
motion for permanent custody and that any of the following apply:
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***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or months of a consecutive twenty-two month period * * *.
R.C. 2151.414(B)(1)(d).
{¶31} “If the trial court determines any provision enumerated in R.C.
2151.414(B)(1) applies,” it must proceed to the second prong of the test, which
requires the trial court to “determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.”
(Emphasis sic.) In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 55; see
R.C. 2151.414(B)(1). The best interest determination is based on an analysis of
R.C. 2151.414(D).
{¶32} Under R.C. 2151.414(D)(1), the trial court is required to consider all
relevant factors listed in that subdivision, as well as any other relevant factors. In
re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12, 8-13-13, 2014-Ohio-755, ¶ 27. The
factors of R.C. 2151.414(D)(1) include:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity
of the child;
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(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in [R.C. 2151.414(E)(7)-(11)] apply
in relation to the parents and child.
R.C. 2151.414(D)(1).
{¶33} If the trial court makes the required statutory determinations, a
reviewing court will not reverse a trial court’s decision regarding permanent custody
unless it is not supported by clear and convincing evidence. In re H.M.K., 3d Dist.
Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43.
Analysis
{¶34} In its judgment entry granting permanent custody of V.G. to the
Agency, the trial court made the following findings under 2151.414(B)(1):
The State’s motion asserts that LCCS is a public children’s services
agency that has had temporary custody of V.G. for twelve or more
months of a consecutive twenty-two (22) month period which is one
of the conditions listed in R.C. 2151.414(B)(1), namely paragraph (d).
Child V.G. was removed from his Mother’s legal custody on March
12, 2018, and has been in the temporary custody of the Agency since
then without interruption. Therefore, the Court FINDS that the
Agency has met its burden by clear and convincing evidence.
(Doc. No. 273).
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{¶35} Cheyenne does not dispute that V.G. had been in the temporary
custody of the Agency for more than twelve consecutive months of the previous
twenty-two months. Thus, she does not contest the trial court’s finding that R.C.
2151.414(B)(1)(d) was satisfied in this matter. Rather, Cheyenne disputes the trial
court’s best-interest determination.
{¶36} With respect to the best interest factors under R.C. 2151.414(D)(1),
the trial court made the following findings:
Provided the first prong is satisfied, the Agency must prove, by clear
and convincing evidence, that granting permanent custody of the child
is in the child’s best interest. Best interest determinations are based
on an examination of R.C. 2151.414(D), and any other relevant
factors.
The evidence established that Father, more so than Mother, is bonded
with their son. This makes sense in light of the history of the case.
The parenting time between Father and V.G. did not progress to
overnight visitations. Father gave up his unsupervised parenting time
to assist Mother with her supervised time at the Agency.
Both Foster Moms have a strong bond with V.G. due to the time they
have spent caring for his needs, which include multiple weekly
therapies critical to his development.
V.G. is too young to express his wishes. The Guardian Ad Litem
strongly supports the granting of permanent custody on the child’s
behalf.
V.G. has been in the temporary legal custody of the Agency since his
birth- thirty plus months now.
V.G. is in need of a legally secure placement which can only be
achieved by the Foster Moms who have demonstrated a fierce
commitment to the health challenges that V.G. faces and continues to
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face. Neither Mother nor Father have demonstrated an ability to work
with health care professionals and implement the therapeutic course
of treatments that are so crucial to V.G.’s development. State’s
Exhibit 1 supports this. Father is not equipped to meet the needs of
V.G. who is a medically fragile child and Mother has only attained
stability recently. A second child is on the way which will also place
demands on both parents. The Court FINDS that the risk is too high
to hope that either parent can guarantee that V.G. will not miss any
appointments. Both parents were resistant to their own respective
case plan objectives. V.G. is young and any lapse or cessation in
treatment will jeopardize his future. The current placement for the
child is consistent with the best interest, welfare, and special needs of
V.G., and is in the most family-like setting possible. Furthermore,
[the Agency] has made reasonable efforts to finalize the permanency
plan for V.G.
Despite Mother’s progress, the Court has major concerns. The parents
did not consistently engage in the services to alleviate the concerns
that led to the removal of V.G. The lack of consistency is a major
concern because V.G. must be able to rely on others to meet his needs
and neither parent has the ability to do so on a permanent basis.
Having considered all of the best interest factors, although each factor
may not be specifically enumerated herein, the Court FINDS that the
Agency has met its burden of proof by clear and convincing evidence
as to the second prong.
(Doc. No. 273).
{¶37} Cheyenne argues that the trial court’s decision to grant permanent
custody to the Agency is against the manifest weight of the evidence because the
record does not support the trial court’s findings under R.C. 2151.414(D). However,
after reviewing the record, we find that the trial court’s findings with respect to best
interest are supported by clear and convincing evidence.
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The Child’s Interaction/Interrelationship
{¶38} R.C. 2151.414(D)(1)(a) requires the trial court to consider “[t]he
interaction and interrelationship of the child with the child’s parents, siblings,
relatives, foster caregivers and out-of-home providers, and any other person who
may significantly affect the child.” According to Cheyenne, the evidence offered at
trial demonstrated that she was appropriate with V.G. during in-person visitations
and was the parent primarily in charge of caring for V.G. when Cheyenne and
Brendon shared joint supervised visitations. Cheyenne argued that “[s]he is as
bonded as she can be, seeing her child in a supervised, limited environment, and
then after [the COVID-19 health crisis] struck, she could only see him on [Z]oom.”
(Appellant’s Brief at 9). Cheyenne argues that although she “certainly missed visits
when she was in jail and rehab,” she had not missed visitations since the fall of
2019. (Id.). Cheyenne acknowledges that V.G. is bonded with the foster parents,
but argues that the Agency had the discretion to increase her visitations and did not
do so and asserts that “had her ability to have visits increased * * * the additional
contact only would have made the bond [between Cheyenne and V.G.] stronger.”
(Id. at 10). Cheyenne states that this factor “is a wash” and “does not weigh in
greater favor of the foster parents’ bond and * * * does not weigh against [her]
merely because she has not had the opportunity to spend much time with V.G. to
[deepen] the bond they share.” (Id.).
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{¶39} At the hearing, Emily Rea, the Agency’s case manager who supervised
Cheyenne and Brendon’s visitations from November 2019 to March 2020, testified
that Cheyenne was appropriate with V.G. and that during the parents’ joint-
supervised visitations, it was Cheyenne who primarily performed caregiving
functions for V.G., such as changing his diaper and planning and supervising his
meals. (May 13, 2020 Tr. at 304-305, 312-315, 329-331). Rea also testified that
Cheyenne attempted to play with V.G., with varying success. (Id. at 312-313, 331).
Further, Rea stated that V.G. appeared happy to see his biological parents during
visitation. (Id. at 321-323). Specifically, Rea testified that V.G. would sometimes
cry when she picked him up from the foster parents’ home and would start to settle
down when he arrived at the visitation room with his biological parents. (Id. at 323-
324, 329).
{¶40} On the other hand, according to Rea, Brendon appeared to have a
stronger bond with V.G. than Cheyenne. (Id. at 315). Rea specifically stated that
V.G. would often seek out Brendon during the parents’ joint visitations and would
sometimes “want nothing to do” with Cheyenne. (Id. at 311). Further, Rea testified
that although she sees more of a bond between V.G. and Brendon than she does
between V.G. and Cheyenne, those bonds are “nothing like” the strong bonds she
observes between V.G. and his foster parents. (Id. at 335). Specifically, Rea
juxtaposed V.G.’s reluctance to leave his foster parents and his obvious happiness
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upon their reunification compared with his “indifferen[ce]” and lack of “emotional
reaction” upon leaving his biological parents at the end of visitations. (Id. at 310,
335).
{¶41} Cynthia Smith, the Agency caseworker who oversaw V.G.’s case from
its beginning, testified she observed Cheyenne’s parenting time with V.G. and is
concerned regarding Cheyenne’s lack of consistency in building a relationship with
V.G. (July 29, 2020 Tr. at 555-556). Smith stated that Cheyenne and V.G. have
had to “rebuild their relationship numerous times” due to Cheyenne’s lack of
visitation consistency resulting from the nine months she spent incarcerated or in
substance-abuse treatment during the pendency of the case. (Id. at 556). According
to Smith, nine of the home visits she conducted in the last two years occurred while
Cheyenne was either incarcerated or in rehabilitation facilities and Cheyenne was
not exercising visitation with V.G. during those times. (Id. at 530). Smith further
testified that V.G. tends to gravitate toward Brendon during the biological parents’
joint visits because Brendon has “been that consistent person for visitation,” and
Cheyenne is often bothered by V.G.’s apparent preference for Brendon. (Id. at 530,
556). Additionally, the guardian ad litem (“GAL”), who observed V.G. with his
foster parents and biological parents testified that although V.G. does not act like
his biological parents are “strangers,” she is concerned that the biological parents
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come and go from V.G.’s life, which affects the bond V.G. is able to establish with
his biological parents. (Sept. 8, 2020 Tr. at 717-718).
{¶42} Furthermore, the record reflects the V.G. never lived in the home with
his biological parents and was removed from their care in March 2018 while in the
hospital following his birth. (May 13, 2020 Tr. at 435-437). Although he was
initially placed with a kinship placement upon his release from the hospital, the
record reflects that V.G. resided with his foster parents beginning in May 2018 and
continuing uninterrupted throughout the proceedings. (Id. at 440-441). According
to Smith, who had the opportunity to conduct monthly home visits to the foster
parents’ home, V.G was “very bonded” and “very affectionate” with both of his
foster parents. (July 29, 2020 Tr. at 525-526).
{¶43} Additionally, Cheyenne attempts to argue that her relationship with
V.G. was stunted by her lack of visitation with the child, a factor that was completely
within the control of the Agency, and, the COVID-19 health crisis, which resulted
in her visitations reduced to brief, virtual visitations. However, as Smith testified,
it was the Agency’s position throughout the pendency of the case that it would
increase Cheyenne’s visitations with V.G. as she progressed in her case plan
services, including permitting Cheyenne to attend V.G.’s medical appointments. (Id.
at 545-546). However, Cheyenne had periods of compliance where she was
actively engaged in visitation with V.G, but continued to relapse, which led to her
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multiple arrests and the disruption of her visitation. (Aug. 6, 2020 Tr. at 607). With
respect to Cheyenne and Brendon’s visitation moving from in-person to brief,
virtual visitations, the record indicates that Cheyenne and V.G. both have a medical
condition that put them at high-risk of complications from COVID-19 and that, at
the time of the hearing, the trial court had not yet approved in-person visitations for
high-risk individuals, including Cheyenne and V.G. (Id. at 674-675). Thus, the
decision to move the visitations to virtual visitations was not at the discretion of the
Agency, but rather, was in response to the trial court’s general policy regarding in-
person visitation for high-risk individuals.
The Child’s Wishes & Custodial History of Child
{¶44} With respect to R.C. 2151.414(D)(1)(b) and (c), the trial court made
the following findings:
V.G. is too young to express his wishes. The Guardian Ad Litem
strongly supports the granting of permanent custody on the child’s
behalf.
V.G. has been in the temporary custody of the Agency since his birth-
thirty plus months now.
(Doc. No. 273). Cheyenne does not challenge these factual findings. Further, the
record reflects that the GAL supported the Agency’s petition for permanent custody
and that, at the time of the permanent custody hearing, V.G. had been in the
temporary custody of the Agency for more than 30 months. (Sept. 8, 2020 Tr. at
705); (Doc. Nos. 1, 5, 273).
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Child’s Need for a Legally Secure Placement
{¶45} Under R.C. 2151.414(D)(1)(d), a trial court is required to consider
“[t]he child’s need for a legally secure permanent placement and whether that type
of placement can be achieved without a grant of permanent custody to the agency.”
With respect to this factor, the trial court found that a legally secure placement could
only be achieved by the foster parents who “have demonstrated a fierce commitment
to the health challenges that V.G. faces and continues to face.” (Doc. No. 273). The
trial court found that neither Brendon nor Cheyenne had demonstrated the ability to
implement the weekly therapies crucial to V.G.’s development. (Id.). The trial
court noted that Cheyenne “only attained stability recently” and Brendon “is not
equipped to meet the needs of V.G. who is a medically fragile child.” (Id.). The
trial court found that the “risk [to V.G.’s development] is too high to hope that either
parent can guarantee that V.G. will not miss any appointments” and noted that
Cheyenne and Brendon “were resistant to their own respective case plan
objectives.” (Id.).
{¶46} Cheyenne argues the trial court erred by determining that she could
not provide V.G. with a legally secure, permanent placement “after all the strides
she made” in her case plan and that she “was now prepared to move forward and
parent her son.” (Appellant’s Brief at 11). Specifically, Cheyenne argues that she
had made sufficient progress on her case plan to alleviate the initial concerns which
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led to V.G.’s removal from her care and that she was now able to provide a legally
secure placement for V.G. We disagree.
{¶47} In support of her contention that the trial court erred by determining
she could not be considered a legally secure permanent placement for V.G.,
Cheyenne argues she has alleviated the concerns which led to the removal of V.G.
from her care. One of the chief concerns leading to V.G.’s removal from
Cheyenne’s care was her substance use, including during her pregnancy with V.G.
Accordingly, many of Cheyenne’s case plan objectives focused on her substance
use. At the permanent custody hearing, the Agency presented evidence that
Cheyenne struggled with substance abuse throughout the majority of the case and
had only recently obtained sobriety. Annette Deao, the treatment and program
coordinator of the Logan County Family Treatment Court, testified that she
completed a substance abuse assessment of Cheyenne in May 2018 where she
learned Cheyenne had a “long history of substance use”. (May 12, 2020 Tr. at 211).
Deao stated that she referred Cheyenne to FTC in July 2018 and Cheyenne never
made it past the first phase of the treatment programs because she “struggled a lot”
and had a “lot of relapses.” (Id. at 213). Some of the relapses included overdoses,
automobile accidents, and criminal charges filed against Cheyenne. (Id.).
{¶48} Deao testified that due to Cheyenne’s continued substance use, she
was referred to a residential treatment facility. (Id. at 214-215). However,
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Cheyenne was unsuccessfully terminated from the four-to-six-month program after
approximately seven to eight weeks due to staff finding prohibited items among her
personal belongings. (Id. at 215-216). Following her termination from the
treatment program, Cheyenne was brought back to FTC for a final opportunity to
demonstrate compliance. (Id. at 216). However, Deao testified that Cheyenne
continued to have drug relapses and resulting legal issues and she was terminated
from FTC unsuccessfully on December 18, 2018. (Id. at 216-217).
{¶49} During her testimony, Cheyenne admitted that she had approximately
four relapses in 2018. (Aug. 6, 2020 Tr. at 622). She also admitted that at the
beginning of 2019 she overdosed on drugs during a relapse. (Id. at 623). After
serving approximately two months in jail, she successfully completed a 70-day
treatment program. (Id. at 623-624). However, Cheyenne admitted that she
relapsed in August 2019 and served a jail sentence as a result of her actions. (Id. at
627-628). Cheyenne further admitted she drank alcohol at Christmas 2019, a
substance which was prohibited under her treatment plan, and that she did not tell
the caseworker about her actions. (Id. at 655-658). Cheyenne further testified that
from the beginning of the case to December 2019, her longest period of sobriety
was from January 10, 2019 to August 20, 2019. (Id. at 658).
{¶50} Janice Rhoades, the program manager of TCN Behavioral Health and
Wellness, testified that Cheyenne has been attending a group session at the facility
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since November 2019. (May 12, 2020 Tr. at 82). Rhoades also provided Cheyenne
with individual substance abuse counseling beginning in January 2020. (Id. at 79).
Rhoades testified that, to the best of her knowledge, Cheyenne has remained clean
and sober since that time. (Id. at 91). However, Rhoades testified she did not
believe that Cheyenne was ready to be discharged from services. (Id. at 86).
{¶51} However, in addition to substance abuse concerns, the case plan also
addressed concerns regarding Cheyenne’s stability in other aspects of her life, such
as housing and employment. Importantly, at the August 6, 2020 permanent custody
hearing, Cheyenne admitted she was not in a financial position to have permanent
custody of V.G. (Aug. 6, 2020 Tr. at 631). At that time, she was living in a homeless
shelter and did not have permanent housing. (Id. at 614-615). However, at the final
day of the permanent custody hearing, approximately one month later, she testified
that she believed she was in position to support V.G. and wanted to be considered
for custody. (Sept. 8, 2020 Tr. at 793). Cheyenne stated she believed that she was
“fit now” to have custody of V.G. because she moved into a new apartment one
week prior which had ample room for V.G. and was stocked with a crib and baby
supplies. (Id.).
{¶52} Although Cheyenne argues that the new apartment indicates that she
has stable and secure housing for her and V.G., we disagree. At the time of the final
hearing, Cheyenne had only been living in the apartment for one week, and thus,
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had not demonstrated that it was stable and that she had the ability to maintain it.
This is particularly true in light of Cheyenne’s admission that her current apartment
marked her eighth address in two years. (Id. at 793). In fact, the record indicates
that during the duration of the permanent custody hearing, Cheyenne lived at three
different addresses: a camper at the lake, a homeless shelter, and her current
apartment. Further, Cheyenne testified that although she had achieved what she
considered stable housing, Brendon was not yet ready to “even think about” residing
with her until she was able to “maintain stability” and “stay sober” while she was
living on her own. (Id. at 796).
{¶53} Additionally, although Cheyenne’s case plan required her to maintain
stable employment, at the time of the permanent custody hearing, Cheyenne did not
have employment so she could financially support her child and did not testify to
any plans to seek out employment. At the time of the hearing, her primary source of
income was $304 that she received monthly in benefits from the State. (Id. at 785-
786).
{¶54} Also, although Cheyenne was required to attend parenting classes,
Smith testified that Cheyenne failed to timely pursue this objective. Specifically,
Smith testified that she made seven referrals for parenting classes for Cheyenne
throughout the pendency of the case. (July 29, 2020 Tr. at 518). However,
Cheyenne did not act on those referrals in a timely manner and did not consistently
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engage in parenting classes until sometime between the second and third days of the
permanent custody hearing, which was approximately two years into the case and
more than seven months since the Agency filed its motion for permanent custody.
{¶55} Furthermore, the record indicates that V.G. had a multitude of health
and developmental challenges which required his caregiver to work with health care
professionals and maintain a rigorous therapy and treatment program. Due to
concerns about Cheyenne’s substance use, she was not permitted to attend his
therapy and medical appointments until she could demonstrate compliance with her
own treatment plan. However, she had the option to request medical records for
V.G. in order to monitor his development, health, and treatment programs. (Aug. 6,
2020 Tr. at 642). Unfortunately, Cheyenne did not take advantage of this option
and when asked at the hearing what his current developmental challenges and goals
were, Cheyenne was only able to answer about his speech difficulties. (Id.).
Additionally, Cheyenne was aware that the barrier to her ability to attend V.G.’s
appointments was compliance with the case plan, however, she did not pursue many
of her case plan services until after the Agency filed for permanent custody.
Accordingly, in light of Cheyenne’s lack of compliance with her case plan
objectives, we do not find that the trial court erred by determining that her lack of
engagement in her own services demonstrated a risk that she was would not
maintain V.G.’s services if he was placed in her care.
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Conclusion
{¶56} After reviewing the trial court’s findings in the light of the record and
the testimony presented at trial, we find the Agency presented competent and
credible evidence upon which the trial court reasonably formed a firm belief that
permanent custody was warranted. In re R.M., 2013-Ohio-3588, at ¶ 55.
Accordingly, the trial court’s decision granting permanent custody of V.G. to the
Agency is not against the manifest weight of the evidence.
Assignment of Error No. II
The Agency failed to use reasonable efforts to reunify [Cheyenne]
with her son.
{¶57} In her second assignment of error, Cheyenne argues that the Agency
failed to use reasonable efforts to reunify her with V.G. Specifically, Cheyenne
contends that the Agency “deliberately worked against” her. (Appellate’s Brief at
16).
Applicable Law
{¶58} “[V]arious sections of the Revised Code refer to the agency’s duty to
make reasonable efforts to preserve or reunify the family unit,” most notably R.C.
2151.419. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 29. Under R.C.
2151.419, when a trial court
removes a child from the child’s home or continues the removal of a
child from the child’s home, the court shall determine whether the
public children services agency * * * has made reasonable efforts to
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prevent the removal of the child from the child’s home, to eliminate
the continued removal of the child from the child’s home, or to make
it possible for the child to return safely home.
R.C. 2151.419(A)(1). R.C. 2151.419(A)(1) applies only at “‘adjudicatory,
emergency, detention, and temporary disposition hearings, and dispositional
hearings for abused, neglected, or dependent children * * *.’” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08, and 3-17-09, 2018-Ohio-125, ¶ 25, quoting In re
C.F. at ¶ 41. R.C. 2151.419(A)(1) “makes no reference to a hearing on a motion for
permanent custody.” In re C.F. at ¶ 41. “Therefore, ‘[b]y its plain terms, the statute
does not apply to motions for permanent custody brought pursuant to R.C.
2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.’” Id.,quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041, 2004-Ohio-5531, ¶
30. However, this does not relieve children services agencies of the duty to use
reasonable efforts. Id. at ¶ 42. “If [an] agency has not established that reasonable
efforts have been made prior to the hearing on a motion for permanent custody, then
it must demonstrate such efforts at the time.” Id. at ¶ 43.
Analysis
{¶59} The trial court made reasonable efforts determinations at the
emergency custody hearing, the disposition hearing, and the hearing on the
Agency’s motion for extension of temporary custody and the trial court
memorialized its reasonable efforts findings in its respective journal entries.
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Further, the record reflects that the reasonable efforts determinations were made
with the agreement of the parties. It was not until the April 9, 2019 status review
hearing that the parents first challenged the trial court’s reasonable efforts findings.
(Doc. No. 133). However, at the August 27, 2019 hearing on the Agency’s motion
for a final extension of temporary custody, the trial court once again found that the
Agency made reasonable efforts to prevent the continued removal of V.G. from his
parents and memorialized this finding in its journal entry. (Doc. No. 151).
Accordingly, because the Agency established that reasonable efforts have been
made prior to the hearing on the motion for permanent custody, it was not required
to prove, nor was the trial court required to find, that the Agency used reasonable
efforts to reunify Cheyenne with V.G. before the trial court could grant permanent
custody of V.G. to the Agency. In re T.A.M., 3d Dist. Crawford No. 3-18-13, 2018-
Ohio-5058, ¶ 16.
{¶60} Nonetheless, upon reviewing the record, we find that the trial court did
not err by finding that the Agency made reasonable efforts to reunify V.G. with
Cheyenne. At the permanent custody hearing, Smith testified to the efforts she made
over the course of over two years to help the parents complete their case plan. (July
29, 2020 Tr. at 518-519). The efforts included providing Cheyenne referrals for
parenting classes, mental health and drug treatment programs, drug and mental
health assessments, and numerous referrals to local charities to provide food,
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clothing, and personal care items. (Id.). Additionally, Smith transported Cheyenne
to medication-assisted recovery programs, parenting classes, visitations, criminal
court proceedings, and in-patient drug-treatment programs. (Id.). The Agency also
supervised parenting time between Cheyenne and V.G. at their facility. (Id. at 519).
Therefore, although the trial court was not required to make such a finding, we find
that the Agency made reasonable efforts to reunify Cheyenne with V.G. in this
matter. Accordingly, Cheyenne’s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred when it permitted [Cheyenne’s] attorney to
appear by telephone, over the objection of Father’s counsel and
the Agency’s counsel, and without addressing [Cheyenne] if she
consented to her attorney appearing over the telephone. This
caused extreme prejudice to [Cheyenne] and violated her
constitutional right to have counsel present at every hearing.
{¶61} In her third assignment of error, Cheyenne argues she was denied the
right to counsel because her trial counsel appeared by telephone during the first two
days of the permanent custody hearing. Specifically, Cheyenne argues that because
her trial counsel was not physically present in the courtroom during the first two
days of the permanent custody hearing, she was denied her right to the effective
assistance of trial counsel.
Standard of Review & Relevant Law
{¶62} All parties in permanent custody proceedings are entitled to
representation by legal counsel in all stages of the proceedings. R.C. 2151.352;
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Juv.R. 4. “In permanent custody proceedings, where parents face losing their
children, we apply the same test as the test for ineffective assistance of counsel in
criminal cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40.
In order to demonstrate the ineffective assistance of trial counsel, one must first
show that the trial counsel’s performance fell below an objective standard of
reasonableness. Id. at ¶ 41, citing Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052 (1984) and State v. Bradley, 42 Ohio St.3d 136, 137 (1989). One must
next demonstrate that, but for trial counsel’s errors, the result of the proceeding
would have been different. Id. If the petitioner cannot prove one of these elements,
“it [is] unnecessary for a court to consider the other prong of the test.” State v.
Walker, 3d Dist. Seneca, 2016-Ohio-3499, ¶ 20. The appellant bears the burden of
establishing ineffective assistance of trial counsel and, in order to do so, must
overcome the strong presumption that licensed attorneys provided competent
representation. In re E.C. at ¶ 41, citing State v. Calhoun, 86 Ohio St.3d 279, 289
(1999).
{¶63} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
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{¶64} The failure to make either the deficiency or prejudice showing defeats
a claim of ineffective assistance of counsel. State v. Frye, 10th Dist. Franklin Nos.
14AP-988 and 14AP-989, 2015-Ohio-3012, ¶ 11, citing Strickland, 466 U.S. at 697.
Thus, “a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” Strickland at 697.
{¶65} On March 9, 2020, the Governor of Ohio declared a state of emergency
in the State of Ohio in response to the growing COVID-19 public health crisis. On
March 27, 2020, the Governor of Ohio signed into law Am. Sub. 197, which
temporarily adjusted statutory time frames. On March 27, 2020, the Supreme Court
of Ohio promulgated a tolling order related to the COVID-19 pandemic. See In re
Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court
and Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166 (“Tolling Order”).
The Tolling Order, which was in effect during the first two days of the permanent
custody hearing, expanded the use of technology in courtrooms. Subsection (C) of
the Tolling Order provides:
Any requirement in a rule of the Court that a party appear in person
or requiring in-person service may be waived by the Court, local
court, hearing panel, board or commission, as applicable. Appearance
or service by use of technology may be allowed if it sufficiently
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guarantees the integrity of the proceedings and protects the parties’
interests and rights.
Analysis
{¶66} To the extent that Cheyenne argues she was not represented by counsel
during the first two days of the permanent custody hearing because her trial counsel
appeared telephonically, rather than in person, we reject her argument. Our review
of the record reveals that although Cheyenne’s trial counsel was not physically
present in the courtroom during the first two days of the five-day permanent custody
hearing, he was present telephonically during all testimony. The record reveals that
Cheyenne’s trial counsel consistently engaged in the proceedings, including cross-
examining witnesses on Cheyenne’s behalf. Furthermore, the trial court ensured
that Cheyenne and Brendon’s trial counsel were both able to communicate via text
and email with Cheyenne’s trial counsel. In fact, the record indicates that Cheyenne
and Brendon’s trial counsel sent “test” text messages to Cheyenne’s trial counsel
before beginning testimony on the first day of the hearing to confirm that they were
able to communicate during the proceedings. Further, the record indicates that
Cheyenne actually did electronically communicate with her trial counsel during the
first two days of the permanent custody hearing. On several occasions, after the
trial court observed Cheyenne sending messages on her phone, the trial court paused
the proceedings to confirm Cheyenne’s trial counsel received her communication.
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Further, following one such communication, Cheyenne’s trial counsel asked the
witness on the stand an additional question. Accordingly, we find that Cheyenne
was represented by trial counsel at all stages of the permanent custody proceeding.
{¶67} Having determined that Cheyenne was represented by counsel during
the permanent custody proceedings, we now address her argument that her trial
counsel was ineffective. In support of her contention that her trial counsel was
ineffective, Cheyenne first argues that her trial counsel was ineffective per se
because he appeared by telephone during the first two days of the permanent custody
hearing. After considering the record and the totality of the circumstances,
including the state of emergency and the tolling order expanding the use of
technology in the courtrooms that was in place at the time of the permanent custody
hearing, we do not find that Cheyenne’s trial counsel’s appearance by telephone
during the first two days of the permanent custody hearing rendered him per se
ineffective.
{¶68} Cheyenne further contends that she received ineffective assistance of
trial counsel because: (1) the trial court failed to consider the alternatives to her trial
counsel appearing by telephone, (2) her trial counsel was unable to assess witness
credibility, (3) she did not have effective communication with her attorney, (4) her
attorney was not able to strategize with Brendon’s attorney, (5) her attorney could
not spontaneously respond to questioning, (6) she and her attorney were not directly
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consulted on the record regarding her trial counsel’s appearance by telephone at the
hearing, and (7) the hearing could have lasted only two days, in which case her
attorney would not have been present in person during any part of the permanent
custody hearing. However, Cheyenne fails to demonstrate how any of the alleged
errors prejudiced her. Moreover, many of Cheyenne’s alleged errors are directly
contradicted by a review of the record. For instance, although Cheyenne argues her
trial counsel was not able to spontaneously respond to questioning, the record
indicates that her trial counsel was actively engaged throughout the proceedings and
promptly responded to questions by opposing counsel and the trial court.
Furthermore, although Cheyenne contends that she was unable to effectively
communicate with her trial counsel when he was not present in the courtroom, as
previously stated, the record indicates that she was able to electronically
communicate with her attorney during the proceedings.
{¶69} In an attempt to demonstrate prejudice, Cheyenne argues that “without
the guidance and regular communication with her counsel,” she changed her
position several times throughout the proceedings on whether she wished to be
considered for permanent custody. However, Cheyenne’s argument is misplaced.
Indeed, Cheyenne’s position regarding whether she wished to be considered for
permanent custody of V.G. did change over the course of the proceedings. During
the first day of the permanent custody hearing Cheyenne indicated that she wished
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to be considered for permanent custody of V.G. (May 12, 2020 Tr. at 7). The record
indicates that Cheyenne’s decision to pursue permanent custody of V.G. was made
after “a lengthy conversation in private” with her trial counsel on the previous day.
(Id.). When Cheyenne testified during the fourth day of the permanent custody
hearing, at which time her trial counsel was physically present in the courtroom,
Cheyenne stated she was not in a financial position to support V.G. and she believed
it was the child’s best interest for the trial court to grant permanent custody of V.G.
to Brendon. (Aug. 6, 2020 Tr. at 631, 648-650). Finally, when Cheyenne testified
again at the final day of the permanent custody hearing, she indicated that she
recently obtained stable housing and government financial assistance and wished to
be considered for permanent custody of V.G. (Sept. 8, 2020 Tr. at 793). Cheyenne
further indicated that, in the alternative, she would support the trial court granting
custody of V.G. to Brendon, because she “just want[s] [V.G.] to be with one of his
parents.” (Id.).
{¶70} However, although Cheyenne’s position regarding permanent custody
shifted throughout the proceedings, there is no indication that her trial counsel’s
appearance by telephone during the first two days of the hearing was responsible
for this change. To the contrary, the record reveals that her decision was made after
consultation with her attorney and the changes in her position on permanent custody
were made as a result of changes in her life circumstances, such as housing, rather
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than her access to her attorney. Further, Cheyenne fails to demonstrate how her trial
counsel’s appearance by telephone altered her position on whether she wanted to be
considered for permanent custody. Importantly, her trial counsel was physically
present in the courtroom both times that she testified and was physically present
when she testified that she believed it was in V.G.’s best interest to be placed with
Brendon, rather than her. Accordingly, any suggestion by Cheyenne that her change
in position was due to her trial counsel’s appearance by telephone during the first
two days of the hearing was in any way influenced by her trial counsel’s appearance
by telephone is undermined by the record. Moreover, Cheyenne has failed to
indicate how the outcome of the proceedings may have been different if her trial
counsel was physically present in the courtroom during the permanent custody
proceedings. Thus, we do not find that Cheyenne was prejudiced by her trial
counsel’s telephonic appearance during the first two days of the permanent custody
hearing.
{¶71} In conclusion, after reviewing the record in light of the totality of the
circumstances, including the challenges presented due to the COVID-19 health
crisis occurring during the time of the permanent custody proceedings, we do not
find that Cheyenne received ineffective assistance of trial counsel.
{¶72} Cheyenne’s third assignment of error is overruled.
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Assignment of Error No. IV
The trial court erred when it would not continue the hearing to
either secure new counsel for [Cheyenne] or schedule it to a date
that counsel felt comfortable being in the courthouse or put
safeguards in place in the courthouse so [Cheyenne] had
convenient access to her attorney at the courthouse.
{¶73} In her fourth assignment of error, Cheyenne argues that the trial court
erred by not continuing the permanent custody hearing to a later date when either
(1) the trial court could secure new trial counsel for Cheyenne or (2) her trial counsel
felt safe appearing in-person for the hearing and the courthouse had sufficient time
to put appropriate safeguards in place.
Standard of Review
{¶74} “‘Continuances shall be granted only when imperative to secure fair
treatment for the parties.’” In re Distafano, 3d Dist. Seneca No. 13-06-14, 2006-
Ohio-4430, ¶ 11, quoting Juv.R. 23. “‘A decision by the trial court to deny a motion
for a continuance is within the sound discretion of the trial court and should not be
reversed absent a showing of abuse of that discretion.’” Id., quoting In re Miller,
3d Dist. Auglaize No. 2-04-02, 2004-Ohio-3023, ¶ 7. The term “abuse of
discretion” refers to a decision that is “arbitrary, unreasonable, or unconscionable.”
Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 275 (1984).
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Relevant Law
{¶75} “‘“The review of a decision on a motion for continuance requires the
appellate court to apply a balancing test, weighing the trial court’s interest in
controlling its own docket, including facilitating the efficient dispensation of justice,
versus the potential prejudice to the moving party.”’” In re A.G.M.C., 3d Dist.
Marion No. 9-10-30, 2010-Ohio-5188, ¶ 42, quoting Gabel v. Gabel, 3d Dist.
Marion No. 9-04-13, 2004-Ohio-4292, ¶ 12, quoting Burton v. Burton, 132 Ohio
App.3d 473, 476 (3d Dist.1999). In considering a motion for a continuance, a court
should consider (1) the length of the delay requested; (2) whether other continuances
have been requested and granted; (3) any inconvenience to parties, witnesses,
opposing counsel, and the court; (4) whether the requested delay is for a legitimate
purpose or is instead dilatory, purposeful, or contrived; (5) whether the defendant
contributed to the situation that gives rise to the motion for a continuance; and (6)
other relevant factors, depending on the unique facts of a case. State v. Unger, 67
Ohio St.2d 65, 67-68 (1981).
Analysis
{¶76} Here, Cheyenne attempts to argue that she was prejudiced by the trial
court’s decision denying Brendon’s motion for a continuance of the permanent
custody hearing to a later date. In support of her position, Cheyenne contends that
because the trial court had the discretion to extend the permanent custody hearing
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past the expiration of the 120-day requirement for good cause, it erred by failing to
grant the parties’ motions for a continuance.
{¶77} However, Cheyenne’s argument is misplaced. Although Brendon and
the Agency made oral motions to continue the permanent custody hearing to a later
date when Cheyenne’s trial counsel could be physically present in the courtroom,
neither Cheyenne nor her trial counsel made a motion for a continuance.
Consequently, proper application of the balancing test requires us to balance the
trial court’s interest in facilitating the efficient dispensation of justice with the
potential prejudice of the moving party and would require us to balance the trial
court’s interests with the interests of Brendon and the Agency, as the moving parties.
On appeal, the Agency concedes that the trial court did not err by denying its oral
motion for a continuance. Moreover, Brendon is not a party to the current appeal
and, therefore, any argument that the trial court erred by denying his motion for a
continuance is not properly before this court. Accordingly, because Cheyenne is
not the moving party, she is not the proper party to argue that the trial court erred
by denying Brendon’s and the Agency’s motions. Thus, we cannot find that the trial
court erred by denying Brendon’s and the Agency’s motions for a continuance.
{¶78} Cheyenne’s fourth assignment of error is overruled.
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{¶79} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Logan County Court
of Common Pleas, Juvenile Division.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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