In re J.H. , 2019 Ohio 1107 ( 2019 )

[Cite as In re J.H., 2019-Ohio-1107.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J
J.H. and A.H., Jr. Hon. John W. Wise, J.
Hon. Patricia A. Delaney, Jr., J.
Case Nos. 2018CA00137 &
2018CA00138
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2017JCV1346 & 2017JCV1347
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 26, 2019
APPEARANCES:
For Appellant For Appellee
DONOVAN R. HILL CHRIS EOFF
116 Cleveland Av., NW – Suite 808 Department of Jobs and Family Services
Canton, Ohio 44702 221 – 3rd Street, S.W.
Canton, Ohio 44702
Guardian Ad Litem Legal Guardians
CHRISTINE GUARDADO RUSSELL & MARYBELLE SMITH
4600 Beverly Ave., N.E. 3655 Easton Street, N.E.
Canton, Ohio 44714 North Canton, Ohio 44721
Stark County, Case Nos. 2018CA00137 & 2018CA00138 2
Hoffman, P.J.
{¶1} In Stark App. No. 2018CA00137, Appellant Amanda Powell ("Mother")
appeals the August 17, 2018 Judgment Entry entered by the Stark County Court of
Common Pleas, Family Court Division, which approved and adopted the magistrate’s
June 22, 2018 decision granting legal custody of her minor child ("Child 1") to Marybelle
and Russell Smith, the child's maternal step-great grandparents (“the Smiths”). In Stark
App. No. 2018CA00138, Mother appeals a second August 17, 2018 Judgment Entry
which also approved and adopted the magistrate’s June 22, 2018 decision granting legal
custody of her other minor child ("Child 2") to the Smiths. Appellee is Stark County Job
and Family Services ("SCJFS").
STATEMENT OF THE CASE AND FACTS
{¶2} Mother and Adam Hunt ("Father")1 are the biological parents of Child 1 and
Child 2. On November 3, 2017, SCJFS filed complaints, alleging Child 1 and Child 2 were
dependent and/or neglected children. The trial court placed Child 1 and Child 2 in the
emergency shelter care custody of SCJFS on November 7, 2017. Following an
adjudicatory hearing on January 25, 2018, the trial court found both children to be
neglected and placed them in the temporary custody of SCJFS. Mother did not appear at
the adjudicatory hearing.
{¶3} On March 1, 2018, SCJFS filed motions to change legal custody of Child 1
and Child 2 to the Smiths. The trial court conducted a hearing on SCJFS's motions to
change legal custody on June 14, 2018. Counsel for Mother requested a continuance of
the hearing as Mother was in Michigan and was unable to return to Ohio in time for the
1Father is not a party to this Appeal. He was, and remains, incarcerated throughout the course of the
proceedings.
Stark County, Case Nos. 2018CA00137 & 2018CA00138 3
hearing. Counsel for SCJFS advised the trial court Mother met with SCJFS caseworker
Paige Horn the previous morning, June 13, 2018, and Horn reminded Mother about the
hearing the following day. The trial court denied the request and proceeded with the
hearing.
{¶4} Paige Horn testified the Agency originally became involved with the family
due to concerns about the conditions of the home, the children’s failure to regularly attend
school, Mother’s failure to ensure Child 2 took his medication as prescribed, the lack of
food in the home, physical abuse, and Mother’s substance abuse. Mother’s case plan
required her to complete a parenting evaluation at Northeast Ohio Behavioral Health.
Despite the fact the case was opened in November, 2017, Mother did not complete her
first parenting evaluation until May 8, 2018. Thereafter, Mother delayed setting up her first
appointment with Dr. Thomas. The appointment was finally scheduled for June 19, 2018,
five days after the hearing. Mother’s case plan also required her to undergo a drug and
alcohol assessment through ComQuest. Mother completed the assessment on February
14, 2018, but she failed to follow through with treatment and services until shortly before
the change of custody hearing, attending one session on June 1, 2018.
{¶5} All of Mother’s drug screens conducted at ComQuest were positive for
marijuana with two of the screens also positive for alcohol. At the time, Mother was
pumping her breastmilk and freezing it for her newborn. Mother explained to Horn the
alcohol helped her produce more breastmilk. Horn screened Mother at the Agency on
April 27, and May 16, 2018. Mother’s tests were negative for all substances. Subsequent
screens conducted at ComQuest were positive for marijuana.
{¶6} Horn recalled Mother appeared at the Agency on February 5, 2018, and
Stark County, Case Nos. 2018CA00137 & 2018CA00138 4
advised her she (Mother) was fearful of Milan Trumbull, the man with whom she was living.
Mother indicated Trumbull was verbally abusive, extremely demanding, and controlling.
Mother added the home in which she was living had had no water or electricity for over a
month. Horn and another SCJFS worker spent approximately three hours with Mother.
They were able to get Mother into a domestic violence shelter in Alliance, Ohio. Mother
left the shelter after a short time and returned to Trumbull’s home.
{¶7} Although SCJFS removed the children on November 3, 2017, Mother’s first
visit with them was on March 13, 2018. Between March 13, and June14, 2018, Mother
attended fewer than ten visits with the children, and often cancelled visitation. At the visits,
Mother focused all of her attention on Child 1. Child 2 would have to call Mother’s name
multiple times before she responded to him. Mother was unable to provide care for both
children at the same time. The children have had two sibling visits with Mother and the
newborn. During those visits, Mother focused solely on the baby. Child 2 played on
Mother’s phone throughout the visits.
{¶8} Horn testified the children are currently placed with the Smiths, their maternal
step-great grandparents. Prior to placement with the Smiths, Child 2 was having difficulty
in school. He would often get in trouble and have to be removed from his classroom. Child
2’s school attendance and behavior have improved substantially since being placed with
the Smiths. Likewise, Child 1 was having behavior problems at school and repeatedly had
to be removed from her classroom. She has made “phenomenal progress” since being
placed with the Smiths. Both children are doing well academically and are involved in
extra-curricular activities. Horn opined it was in the best interest of the children to place
them in the legal custody of the Smiths.
Stark County, Case Nos. 2018CA00137 & 2018CA00138 5
{¶9} The magistrate issued decisions relative to both children on June 22, 2018.
The magistrate found SCJFS made reasonable efforts to prevent the need for placement
and/or make it possible for the children to return home. The magistrate concluded a
change of legal custody to the Smith was in the children’s best interests. Mother filed
timely objections to the magistrate’s decisions. Via Judgment Entries filed August 17,
2018, the trial court approved and adopted the magistrate’s decisions.
{¶10} It is from these judgment entries Mother appeals. Mother raises identical
assignments of error in both appeals:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID
NOT GRANT APPELLANT'S MOTION FOR A CONTINUANCE.
II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILD CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT
THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTEREST OF THE MINOR CHILD WOULD BE SERVED BY THE
GRANTING OF PERMANENT CUSTODY WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶11} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
Stark County, Case Nos. 2018CA00137 & 2018CA00138 6
Stark App. No. 2018CA00137
Stark App. No. 2018CA00138
I
{¶12} In her first assignment of error, Mother contends the trial court abused its
discretion in failing to grant a continuance of the change of custody hearing.
{¶13} The decision to grant or deny a motion to continue is entrusted to the broad
discretion of the trial court. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993).
Ordinarily, a reviewing court analyzes a denial of a continuance in terms of whether the
court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11
L.Ed.2d 921 (1964); State v. Wheat, 5th Dist. Licking App. No.2003–CA–00057, 2004–
Ohio–2088. An abuse of discretion connotes more than a mere error in law or judgment;
it implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial
court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶14} In evaluating whether the trial court has abused its discretion in denying a
continuance, appellate courts apply a balancing test which takes into account a variety of
competing considerations, including 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; and whether the defendant
contributed to the circumstance which gives rise to the request for a continuance. State v.
Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981).
{¶15} Counsel for Mother requested the continuance because Mother had traveled
to Michigan and was unable to return to Ohio in time for the hearing. Counsel stated he
had met with Mother a couple of weeks earlier to prepare for the hearing, acknowledging
Stark County, Case Nos. 2018CA00137 & 2018CA00138 7
Mother was aware of the hearing date. Counsel for SCJFS advised the trial court Mother
met with SCJFS caseworker Paige Horn the previous morning, June 13, 2018, and Horn
reminded Mother about the hearing the following day. Mother made a conscious decision
to leave the state the day before the scheduled hearing.
{¶16} Based upon the information presented to the trial court, the absence of
sufficient grounds for the continuance, and the children's need for permanency, we find
the trial court did not abuse its discretion in denying Mother's request for a continuance.
{¶17} Mother's first assignment of error is overruled.
Stark App. No. 2018CA00137
Stark App. No. 2018CA00138
II, III
{¶18} In her second assignment of error, Mother submits the trial court's finding
the children could not or should not be placed with her within a reasonable time was
against the manifest weight and sufficiency of the evidence. In her third assignment of
error, Mother asserts the trial court’s finding the best interests of the children would be
served by granting permanent custody to SCJFS was against the manifest weight and
sufficiency of the evidence.
{¶19} We begin by noting the trial court did not grant, nor did SCJFS seek,
permanent custody of the children. This matter involves a change in legal custody. Unlike
permanent custody, legal custody does not divest parents of residual parental rights,
privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843
N.E.2d 1188 at ¶ 17.
{¶20} In Ohio, the statutorily permissible dispositional alternatives in a
dependency, neglect, or abuse case are enumerated in R.C. 2151.353(A). See, e.g., In re
Stark County, Case Nos. 2018CA00137 & 2018CA00138 8
S.Y., 5th Dist. Tusc. No. 2011 AP04 0018, 2011–Ohio–4621, ¶ 31. R.C. 2151.353(A)(3)
specifically provides:
If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition: * * * Award
legal custody of the child to either parent or to any other person who, prior
to the dispositional hearing, files a motion requesting legal custody of the
child or is identified as a proposed legal custodian in a complaint or motion
filed prior to the dispositional hearing by any party to the proceedings. * * *.
{¶21} A trial court “must have wide latitude in considering all the evidence” and a
custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,
77 Ohio St.3d 415, 418, 1997–Ohio–260. As an appellate court, we neither weigh the
evidence nor judge the credibility of the witnesses. Our role is to determine whether there
is relevant, competent, and credible evidence upon which the finder of fact could base its
judgment. Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758,
1982 WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed as
being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶22} Unlike a permanent custody proceeding where a juvenile court's standard of
review is by clear and convincing evidence, the standard of review in legal custody
proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
Stark County, Case Nos. 2018CA00137 & 2018CA00138 9
2013CA0081 & 2013CA0082, 2013–Ohio–5752, ¶ 32 (Citations omitted).
{¶23} In this type of dispositional hearing, the focus is on the best interest of the
child. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re P.S., 5th
Dist. No. 2012CA00007, 2012–Ohio–3431. Despite the differences between a disposition
of permanent custody and legal custody, some Ohio courts have recognized “the statutory
best interest test designed for the permanent custody situation may provide some
‘guidance’ for trial courts making legal custody decisions.” In re A.F., 9th Dist. No. 24317,
2009–Ohio–333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17.
The test would thus encompass a consideration of factors including, but not limited to: (1)
the child's interaction with his or her parents, siblings, relatives, foster caregivers, and
others, (2) the child's wishes, which may be expressed by the guardian ad litem, (3) the
child's custodial history, and (4) the need for a legally secure permanent placement. See
R.C. 2151.414(D)(1).
{¶24} As set forth in our statement of the case and facts, supra, Mother had made
little progress on her case plan. The case was opened in November, 2017, at which time
Mother was ordered to complete a parenting evaluation at Northeast Ohio Behavioral
Health. Mother did not complete her parenting evaluation until May 8, 2018. Thereafter,
Mother delayed setting up her first appointment with Dr. Thomas. The appointment was
finally scheduled for June 19, 2018, five days after the hearing. Mother repeatedly tested
positive for marijuana and alcohol. Mother was living with a violent man whom the children
feared. Mother went lengthy periods of time without visiting the children. Mother could
not divide her attention between the children, often ignoring them and paying attention to
her newborn.
Stark County, Case Nos. 2018CA00137 & 2018CA00138 10
{¶25} The children are currently placed with the Smiths and are doing well in their
care. Prior to placement with the Smiths, Child 2 was having difficulty in school. He would
often get in trouble and have to be removed from his classroom. Child 2’s school
attendance and behavior have improved substantially since being placed with the Smiths.
Likewise, Child 1 was having behavior problems at school and repeatedly had to be
removed from her classroom. She has made “phenomenal progress” since being placed
with the Smiths. Both children are also doing well academically and are involved in extra-
curricular activities. Horn opined it was in the best interest of the children to place them in
the legal custody of the Smiths. The guardian ad litem concurred with the determination.
{¶26} Based upon the foregoing, we find the trial court's decision is supported by
a preponderance of the evidence, and a change of legal custody was in the best interest
of Child 1 and Child 2.
{¶27} Mother’s second and third assignments of error are overruled.
Stark County, Case Nos. 2018CA00137 & 2018CA00138 11
{¶28} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur