In re C.G. ( 2012 )

[Cite as In re C.G., 2012-Ohio-5999.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: C.G. C.A. No. 26506
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 10 02 0089
DECISION AND JOURNAL ENTRY
Dated: December 19, 2012
CARR, Presiding Judge.
{¶1} Appellant, Chad G. (“Father”), appeals from the judgment of the Summit County
Court of Common Pleas, Juvenile Division, that granted legal custody of his minor child, C.G.,
to Shawn W. This Court affirms.
I.
{¶2} On February 1, 2010, Summit County Children Services Board (“CSB”) filed a
dependency complaint in juvenile court, regarding C.G., born September 18, 2000, as well as the
three other children of Felicia B. (“Mother”). Only the custody of C.G. is at issue in this appeal.
The agency became involved because of Mother’s continuing problems with substance abuse and
the impact of those problems on the children.
{¶3} All four children were adjudicated dependent on March 11, 2010, and were
initially left in Mother’s care under the protective supervision of CSB. Subsequently, on or
about October 15, 2010, C.G. and her half-sister M.W., with whom she shared a close bond,
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were placed in the temporary custody of Shawn W., the biological father of M.W. and a “father
figure” to C.G. for most of her life. The agency retained protective supervision over the girls.
{¶4} C.G.’s father became involved with his daughter for the first time in August 2010.
Paternity was established and supervised visits began. In the fall of 2010, those visits were
halted, however, when Father was charged with domestic violence against the mother of his
infant child and he was subsequently incarcerated. In February 2011, while incarcerated, Father,
pro se, filed a written objection to the temporary placement of C.G. with Shawn W. He
expressed deep regret for his own actions and pointed to his rehabilitative efforts, which included
counseling for stress management, anger management, and alcohol abuse. He asserted that, upon
his release, he hoped to find employment and provide a safe environment for his child. Upon his
release from jail in April 2011, he returned to his girlfriend’s residence in Columbus and later
briefly reunited with Mother. He applied to the juvenile court for appointed counsel in July
2011. By November 2011, Father had returned to Akron and resumed visits with C.G.
{¶5} After two six-month extensions, the case was reaching the two-year mark. A
dispositional hearing on the custody of the children was scheduled to begin on January 12, 2012.
Evidence regarding the placement of the other three children was heard at that time. The two
oldest children were placed with relatives, and M.W. was placed in the legal custody of her
father, Shawn W. Two weeks later, the matter of C.G.’s custody came on for hearing on
competing motions for legal custody: Father moved for legal custody in himself and CSB sought
legal custody in Shawn W.
{¶6} On the day set for hearing, however, Father did not appear. His attorney’s motion
for a continuance was denied, and the court proceeded to hear testimony from Shawn W., the
CSB supervisor, and the guardian ad litem. Following the hearing, the magistrate granted legal
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custody of C.G. to Shawn W., finding that to be in the best interest of the child. The trial judge
overruled Father’s objection to the denial of a continuance and adopted the judgment of the
magistrate. Father appealed from the judgment of the trial court and assigned one error for
review.
II.
Assignment of Error
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
DENIED FATHER’S REQUEST FOR A CONTINUANCE AS IT VIOLATED
[FATHER’S] DUE PROCESS RIGHTS AND HIS RIGHT TO CONFRONT
THE STATE’S WITNESSES.
{¶7} In his sole assignment of error, Father argues that the trial court deprived him of
due process by denying his attorney’s request to continue the dispositional hearing. Father has
not argued that he was denied notice or the opportunity to be heard, but rather only that the court
declined to continue the hearing when he failed to appear.
{¶8} In juvenile cases, “[c]ontinuances shall be granted only when imperative to secure
fair treatment for the parties.” Juv.R. 23. In addition, “[a]ll requests for continuances must be
made in writing and filed seven days before the scheduled hearing date [except upon]
demonstration of emergency or for other unforeseen circumstances.” Loc.R. 5.03(B) of the
Court of Common Pleas of Summit County, Juvenile Division. The decision to grant or deny a
continuance lies within the sound discretion of the trial judge, which requires a balancing of “any
potential prejudice to a [party against] concerns such as a court’s right to control its own docket
and the public’s interest in the prompt and efficient dispatch of justice.” State v. Unger, 67 Ohio
St.2d 65, 67 (1981).
{¶9} “Whether a denial of a request for a continuance is so arbitrary as to violate due
process depends on the circumstances of the case, particularly the reasons articulated to the trial
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court in support of the request.” Morrow v. Becker, 9th Dist. No. 11CA0066-M, 2012-Ohio-
3875, ¶ 20, citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The United States Supreme
Court has emphasized that “not every denial of a request for more time [ ] violates due process
even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar, 376
U.S. at 589.
{¶10} In Unger, the Ohio Supreme Court identified certain factors to be considered in
determining whether a continuance is appropriate. These factors include: “the length of the
delay requested; whether other continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested
delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the
defendant contributed to the circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case.” Unger, 67 Ohio St.2d at 67-
68.
{¶11} At the hearing, trial counsel’s request for a continuance was based primarily on
the fact that Father was not present. Father’s attorney had expected Father to attend the hearing,
and he expressed no knowledge of Father’s whereabouts or the reason for his absence. He
observed that Father had been in court at the last hearing when the date for this hearing was set,
but indicated that he had had no contact with Father since that time. He was unable to reach
Father by telephone on the day of the hearing. Trial counsel also complained that the CSB
supervisor appeared at the hearing in place of the CSB caseworker.
{¶12} The court heard testimony from the CSB supervisor, the potential legal custodian,
Shawn W., and the guardian ad litem. The CSB supervisor explained that the agency had briefly
sought placement with Father, but concluded that Father had not demonstrated an ability to
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parent C.G. on a long-term basis and to provide for her basic needs. She cited Father’s
instability in relationships and his criminal record. As to the potential custodian, she explained
that Shawn W. had been a father figure to C.G. for most of her life and that he demonstrates a
strong will to parent her. She also cited the close bond between C.G. and her half-sibling who
resides in the same home. Next, Shawn W. testified to his wish to provide custody for C.G. and
his willingness to accept that responsibility. He explained that he had taken care of C.G.’s daily
needs as an infant while he was still in a relationship with Mother, later remaining in her life in a
“father relationship,” and most recently as a temporary custodian. He explained that he treats
C.G. the same as he treats his own daughter. He gets C.G. to school, where she plays trumpet in
the band, and participates with her and M.W. in 4H. He arranges for day care for them before
and after school to accommodate his 7:00-4:00 weekday work hours. Finally, the guardian ad
litem testified that he believed it was in C.G.’s best interest to be placed in the legal custody of
Shawn W. He explained that Shawn W. has provided a stable, loving, and caring home for the
child, even before he was given temporary custody. He also cited the strong bond between C.G.
and her half-sibling M.W. The guardian ad litem noted that C.G. would like to continue visiting
with Father, but she would prefer to reside with Shawn W.
{¶13} In applying the Unger factors to the present case, this Court concludes as follows.
First, as to the issue of potential delay if a continuance were granted, Father argues that any such
delay would have been minimal because the court had previously scheduled a continuation date
for five days later, if needed. The question, however, is not whether the trial court had another
date available for the hearing, but rather how long it would be until the absent party would be
available to appear. That information was unknown to the trial court. Because Father was not
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present and provided no explanation for his absence, the trial court was unable to find that any
delay would be minimal.
{¶14} Next, as to the question of whether other continuances had previously been
requested and received, there is no record that Father had himself requested any other
continuances. Nevertheless, the trial court had granted two six-month extensions and the case
had been pending for almost two years. In addition, Father missed several hearings and a great
deal of visitation due to his conviction and incarceration for domestic violence. The trial court
had an obligation to the child to determine a disposition as expeditiously as possible and that
obligation is not outweighed by an unsupported request for a continuance.
{¶15} Because there was no advance notice of Father’s absence, Father’s failure to
appear caused inconvenience to the litigants, witnesses, opposing counsel, guardian ad litem, and
court personnel, all of whom were present and ready to proceed with the hearing. In particular,
Shawn W. had to secure permission to take time off from his job in order to attend the hearing.
{¶16} Next, this Court considers whether the requested delay is for a legitimate reason
and whether Father contributed to the circumstances that gave rise to the request for the
continuance. Because Father had notice of the hearing and proffered no reason for his absence
either on that day or in subsequently filed pleadings, the only possible conclusion is that there is
no legitimate reason for the request and that Father is solely responsible for the circumstances
that gave rise to the request for the continuance.
{¶17} As to other relevant factors, it is perhaps possible that Father may have changed
his mind about pursuing custody because, since the last hearing, the guardian ad litem
recommended that C.G. be placed in the legal custody of Shawn W. and 11-year-old C.G.
expressed her wish to the magistrate to be placed with him as well.
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{¶18} Although Father’s absence from the hearing was his attorney’s primary reason for
the requested continuance, Father also argues that the absence of the caseworker supports a
continuance because a delay would permit him to subpoena her. There is no evidence in the
record, however, suggesting that the caseworker would be able to appear at a later date. In fact,
the supervisor stated that the caseworker may require surgery and would certainly not be back
within five days. In any event, given the duration of many custody cases, it is not unusual for
service providers to change during the course of a single proceeding, and written documentation
is frequently relied upon in order to accommodate those changes. Finally, the record does not
reflect that the testimony of the caseworker would have supported Father’s position any more
than that of the supervisor.
{¶19} This Court has previously recognized that a parent’s right to be present at a
custody hearing is not absolute. In re J.S., 9th Dist. No. 10CA009908, 2011-Ohio-985, ¶ 17. In
recognizing that courts have a duty to protect due process in such cases, this Court has also
emphasized that parents have a corresponding duty to “‘exhibit cooperation and [ ] communicate
with counsel and with the court in order to have standing to argue that due process was not
followed[.]’” Id., quoting In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, ¶ 12 (8th Dist.).
In J.S., the parent’s failure to communicate a reason for his absence on the day of the hearing
resulted in the denial of a continuance. See also In re Harris, 10th Dist. Nos. 00AP–987, 00AP-
988, 00AP-989, 2001 WL 266995, *2 (Mar. 20, 2001) (finding no abuse of discretion in denying
a continuance when request was made on day of trial in violation of local rule and counsel
offered no reason for his client’s absence).
{¶20} Father cites In re B.M, 10th Dist. Nos. 09AP-60, 09AP-61, 09AP-62, 09AP-63,
09AP-64, 2009-Ohio-4846, ¶ 13, for the proposition that “a trial court’s failure to take extra care
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to ensure the parent’s presence constitutes an abuse of discretion.” In context, however, the
Tenth District restricted this caution to “cases where a parent communicates with the court or
counsel to explain a problem attending a hearing[.] Id. This limitation recognizes the critical
importance of communication by the parent to either counsel or the court in the event of a
problem in attending a hearing. Father’s failure to explain his absence to his attorney at the time
or at the soonest opportunity was significant to the decision of the trial court, and, as well, on
review.
{¶21} Given Father’s failure to comply with the local rule and the lack of any reason for
Father’s absence, the trial court did not abuse its discretion by denying the request for a
continuance. Father’s sole assignment of error is overruled.
III.
{¶22} Father’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
GREGORY A. PRICE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.