In re J.E. , 100 N.E.3d 151 ( 2017 )

[Cite as In re J.E., 2017-Ohio-8272.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE: CASE NO. 9-17-07
J.E.,
OPINION
[SASHA STEELE - APPELLANT]
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 15 AB 0016
Judgment Affirmed
Date of Decision: October 23, 2017
APPEARANCES:
Robert C. Nemo for Appellant
Justin J. Kahle for Appellee
Case No. 9-17-07
PRESTON, P.J.
{¶1} Appellant, Sasha Steele (“Steele”), appeals the March 8, 2017 judgment
entry of the Marion County Court of Common Pleas, Family Division, granting
permanent custody of her minor child, J.E., to appellee, the Marion County
Children’s Services Board (“the Agency”). For the reasons that follow, we affirm.
{¶2} J.E. is the minor child of Steele and Jordan Emmons (“Emmons”) born
in December of 2014. (Doc. No. 1).1 On January 6, 2015, the Agency filed a
complaint alleging that J.E. was an abused and dependent child under R.C. 2151.031
and R.C. 2151.04, respectively. (Id.). That same day, the Agency filed a “motion
for ex parte/emergency orders with notice of hearing.” (Doc. No. 3). Also on
January 6, 2015, the trial court granted the Agency pre-dispositional interim custody
of J.E. and also granted the Agency’s “motion for ex parte/emergency orders with
notice of hearing.” (Doc. Nos. 4, 5).
{¶3} At multiple points in the case, the Agency submitted case plans to the
trial court, which the trial court approved and incorporated into disposition entries.
(Doc. Nos. 36, 63, 99). The Agency also filed semiannual administrative reviews.
(Doc. Nos. 31, 38, 61, 83).
{¶4} On January 13, 2015, the trial court appointed a guardian ad litem
(“GAL”) for J.E. (Doc. No. 9). On January 23, 2015, the trial court appointed
1
The complaint describes Emmons as the “alleged father.” (Doc. No. 1). He was determined to be the
biological father of J.E. after the filing of the complaint. (Doc. No. 97 at 2).
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counsel for Steele. (Doc. No. 13). On March 30, 2016, the trial court appointed
counsel for Emmons.2 (Doc. No. 45).
{¶5} After a shelter-care and pre-trial hearing on January 28, 2015, the trial
court on February 11, 2015 issued an order that temporary custody of J.E. remain
with the Agency and scheduled the matter for adjudication on March 13, 2015.
(Doc. No. 17). That adjudication was continued on the trial court’s motion because
Steel was not transported to the hearing. (Doc. No. 21).
{¶6} On March 27, 2015, Steele stipulated that J.E. was a dependent child
under R.C. 2151.04. (Doc. No. 27). The trial court found J.E. dependent and
dismissed the abuse complaint. (Id.). On April 15, 2015, the trial court ordered that
temporary custody of J.E. remain with the Agency. (Doc. No. 28). At multiple
points after adjudicating J.E. a dependent child and awarding temporary custody to
the Agency, the trial court reviewed that disposition but did not alter it. (See Doc.
Nos. 33, 35, 37, 47, 70, 72. 75).
{¶7} On April 26, 2016, the Agency filed a motion for permanent custody of
J.E. (Doc. No. 48). The trial court scheduled the permanent custody hearing for
July 18, 2016. (Doc. No. 49). On July 7, 2016, Steele filed a motion to continue
that hearing. (Doc. No. 65). On July 12, 2016, the Agency filed a memorandum in
opposition to the motion to continue. (Doc. No. 66). The trial court granted the
2
Because only Steele filed an appeal, we will not discuss any filings by Emmons.
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motion to continue on August 8, 2016 and rescheduled the permanent custody
hearing for November 7, 2016. (Doc. No. 67). The permanent custody hearing set
for November 7, 2016 was continued by agreement of the parties. (Doc. No. 97 at
4).
{¶8} On January 6, 2017, Steele filed a motion to continue the permanent
custody hearing set for January 12, 2017. (Doc. No. 86). On January 10, 2017, the
Agency filed a memorandum in opposition to the motion to continue. (Doc. No.
87). The trial court denied the motion to continue on January 11, 2017. (Doc. No.
88).
{¶9} The trial court held a permanent custody hearing on January 12, 2017.
(Doc. No. 97). The guardian ad litem submitted his report and recommendation on
January 30, 2017 and recommended that the trial court grant the Agency’s motion
for permanent custody. (Doc. No. 92). On March 8, 2017, the trial court filed its
judgment entry granting the Agency permanent custody of J.E. (Doc. No. 97).
{¶10} On March 30, 2017, Steele filed her notice of appeal. (Doc. No. 101).
She brings three assignments of error for our review.
Assignment of Error No. I
The Trial Court Abused Its Discretion When It Denied
Appellant’s Motion For [A] Continuance.
{¶11} In her first assignment of error, Steele argues that the trial court abused
its discretion in denying her motion to continue the January 12, 2017 permanent
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custody hearing. Specifically, Steele argues that the trial court abused its discretion
in denying her motion for a continuance because she planned to move into a sober
living house, had a probation violation hearing scheduled for January 18, 2017, in
Delaware County, and needed more time to complete programming and make
herself better able to care for her daughter. Steele also argues that the trial court’s
one-sentence entry denying her motion to continue did not consider the factors that
a court must consider in determining whether to grant a continuance. Steele further
argues that the trial court abused its discretion in denying her motion to continue
because there was “some haste” on the Agency’s part when it filed its motion for
permanent custody of J.E. (Appellant’s Brief at 10).
{¶12} “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 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), citing Dayton ex rel. Scandrick
v. McGee, 67 Ohio St.2d 356, 359 (1981) and State v. Adams, 62 Ohio St.2d 151,157
(1980).
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{¶13} 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. In re J.D., 3d Dist.
Hancock No. 5-10-34, 2011-Ohio-1458, ¶ 45, citing In re T.C., 140 Ohio App.3d
409, 417 (3d Dist.2000), citing State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).
{¶14} When a litigant received prior continuances and requests an additional
continuance of indeterminate length, the first two Unger factors weigh in favor of
denying the continuance, especially in light of the fact that establishing permanency
for children in temporary placement is paramount. In re J.C., 10th Dist. Franklin
No. 10AP-766, 2011-Ohio-715, ¶ 39-40. The propriety of denying a request for a
continuance is further supported when a defendant requests a continuance for a
legitimate reason but also contributed to the circumstances giving rise to the request.
Id. at ¶ 41. When a defendant faces ongoing drug addiction and is without stable
housing such that a continuance would not likely change the outcome of the case, a
court does not abuse its discretion in denying the continuance. Id. at ¶ 45. The
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propriety of denying a continuance is further bolstered when the motion for
permanent custody has been pending for more than 120 days. Id. at ¶ 46.
{¶15} In the instant case, the trial court granted Steele two prior
continuances. Id. at ¶ 40 (noting that the second Unger factor supported the denial
of a continuance when a prior continuance was granted). In addition, Steele’s
request for a continuance did not specify a date to which she wanted the hearing
continued. Id. at ¶ 39 (holding that the first Unger factor weighs in favor of denying
a continuance where the length of the continuance requested is indeterminate); In re
J.D. at ¶ 46 (affirming the trial court’s denial of a continuance where the request for
a continuance did not state how long a continuance was necessary). Even where, as
here, a defendant requests a continuance for the legitimate purpose of making
progress in drug treatment, a court does not abuse its discretion in denying the
request. In re B.G.W., 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693, ¶ 24
(construing the purpose-of-the-request factor against the defendant where the reason
for the request was to allow the defendant to gather evidence of progress in drug
treatment); In re Shanequa H., 109 Ohio App.3d 142, 146 (6th Dist.1996) (holding
that a trial court did not abuse its discretion in denying a continuance requested so
that the defendant could enter drug treatment). The inconvenience to the parties and
the court would be substantial because the hearing was already rescheduled
numerous times. It is undisputed here that Steele contributed to the circumstances
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that brought about the request for the continuance, as she both participated in the
drug abuse that necessitated drug treatment and engaged in conduct giving rise to
an alleged probation violation and the resulting hearing. In re J.C. at ¶ 41-42
(holding that the fifth Unger factor weighed in favor of denying the continuance
where the defendant’s unlawful conduct brought about the request for the
continuance).
{¶16} We also consider, as a unique factor relevant to this case, that R.C.
2151.414(A)(2) provides that “[t]he court shall hold the hearing * * * not later than
one hundred twenty days after the agency files the motion for permanent custody,
except that, for good cause shown, the court may continue the hearing for a
reasonable period of time beyond the one-hundred-twenty-day deadline.” In re J.C.
at ¶ 46, quoting R.C. 2151.414(A)(2). Here, the Agency filed its motion for
permanent custody on April 26, 2016. (Doc. No. 48). Thus, the trial court had
already significantly exceeded the deadline imposed by the statute by the time Steele
filed the pertinent motion to continue; therefore, the court did not abuse its
discretion by denying the motion. In re J.C. at ¶ 46.
{¶17} We further consider, as a unique factor relevant to this case, the fact
that a continuance would likely not have changed the outcome of the case. In re
J.C., 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, ¶ 45. The trial court found
that the parents’ circumstances “fail to present any opportunity for [J.E.’s] return to
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either of them within a reasonable time[.]” (Doc. No. 97). The trial court further
found little likelihood that Steele could complete drug treatment, procure gainful
employment, and locate stable housing in the foreseeable future. (Id.); In re J.C. at
¶ 45 (noting that a parent’s inability to remedy drug addiction and secure a stable
residence weighs in favor of finding that a trial court acted within its discretion in
denying a continuance).
{¶18} We conclude that Steele’s argument as to the brevity of the trial court’s
judgment entry denying her motion to continue is unpersuasive. In re J.D., 3d Dist.
Hancock No. 5-10-34, 2011-Ohio-1458, ¶ 46-48. Though the Unger factors
enumerated above are necessary for consideration, we do not require courts to
explicitly undertake Unger’s six-factor analysis in every judgment entry ruling on a
motion to continue. Id. (affirming the denial of a motion to continue where the
judgment entry did not contain any explanation for the trial court’s decision).
{¶19} We further conclude that Steele’s argument as to the haste with which
the motion for permanent custody was allegedly filed is unpersuasive. We note that
the speed with which the Agency files its motion for permanent custody is not
among the Unger factors. See State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).
Moreover, Steele had nine months between the Agency’s filing of its motion for
permanent custody and the permanent custody hearing in which to put herself in a
position to advocate for her interests.
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{¶20} Based on the reasoning above, we conclude that the trial court did not
abuse its discretion in denying Steele’s motion for a continuance. Steele’s first
assignment of error is overruled.
Assignment of Error No. II
Appellant Was Denied Her Right To Effective Assistance Of
Counsel.
{¶21} In her second assignment of error, Steele argues that she was denied
her right to effective assistance of trial counsel. Specifically, she argues that she
was denied effective assistance of trial counsel because her trial counsel did not
object to two instances of hearsay testimony pertaining to the availability of a
kinship placement for J.E. at the permanent custody hearing.
{¶22} “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,
citing In re Heston, 129 Ohio App.3d 825, 827 (8th Dist.1998). In order to
demonstrate 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. The appellant bears the burden of establishing ineffective assistance of trial
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counsel and, in order to do so, must overcome the strong presumption that licensed
attorneys provided competent representation. Id., citing State v. Calhoun, 86 Ohio
St.3d 279, 289 (1999).
{¶23} In the instant case, Steele has not established that the result of the
proceeding would have been different but for the alleged errors of counsel as noted
above. A trial court is not required to consider the availability of a kinship
placement prior to granting permanent custody of a child to an agency. In re S.G.,
3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 82, citing In re P.S., 5th Dist.
Licking No. 16–CA–11, 2016–Ohio–3489, ¶ 57. Therefore, the trial court could
have come to the same conclusion if it excluded the evidence to which Steele refers.
Id.{¶24} Because we conclude that Steele has not demonstrated prejudice, we
need not address whether Steele’s trial counsel’s performance fell below an
objective standard of reasonableness, as any showing of ineffective assistance
requires the defendant to satisfy both prongs of the applicable legal test. In re E.C.
at ¶ 41.
{¶25} For the reasons explained above, Steele’s second assignment of error
is overruled.
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Assignment of Error No. III
The Trial Court’s Decision To Award Appellee Permanent
Custody Was Against The Manifest Weight Of The Evidence And
Contrary To Law.
{¶26} In her third assignment of error, Steele argues that the trial court’s
decision to award the Agency permanent custody of J.E. was against the manifest
weight of the evidence and was contrary to law. Specifically, Steele argues that the
trial court erred when it did not specifically enumerate which best-interest factors it
found supported the granting of permanent custody to the Agency. Steele further
argues that, even if the trial court properly considered the best-interest factors as the
statute requires, the trial court erred when it found that it was in J.E.’s best interest
to grant permanent custody to the agency.
{¶27} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625(1923). “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 circumstances and when the trial court
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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.
{¶28} 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. See
In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. R.C.
2151.414(B)(1) provides, in relevant part, that a trial court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this section,
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:
(a) The child is not abandoned or orphaned, has not 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, * * * and the child cannot be
placed with either of the child's parents within a reasonable time or
should not be placed with the child’s parents.
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
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twelve or more months of a consecutive twenty-two-month period *
* *.
R.C. 2151.414(B)(1)(a), (d).
{¶29} “[T]he findings under R.C. 2151.414(B)(1)(a) and R.C.
2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to
use as a basis to grant the Agency’s motion for permanent custody.” In re M.R., 3d
Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 80.
{¶30} “If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies, the trial court must 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, citing In re D.M., 3d Dist. Hancock Nos. 5-09-12, 5-09-13, and 5-
09-14, 2009-Ohio-4112, ¶ 33 and In re K.H., 3d Dist. Hancock No. 5-10-06, 2010-
Ohio-3801, ¶ 30. In determining whether granting the agency permanent custody
is in the best interest of the child, R.C. 2151.414(D)(1) provides:
[T]he court shall consider all relevant factors, including, but not
limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
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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;
(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 divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a)-(e).
{¶31} “Clear and convincing evidence is more than a preponderance of the
evidence but not as much evidence as required to establish guilt beyond a reasonable
doubt as in a criminal case; rather, it is evidence which provides the trier of fact with
a firm belief or conviction as to the facts sought to be established.” In re H.M.K., 3d
Dist. Wyandot Nos. 16–12–15 and 16–12–16, 2013–Ohio–4317, ¶ 42, citing In re
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Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v.
Massengale, 58 Ohio St.3d 121, 122 (1991). “Upon review, an appellate court ‘must
examine the record and determine if the trier of fact had sufficient evidence before
it to satisfy this burden of proof.’ “ Id. at ¶ 43, quoting In re Meyer at 195, citing In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). “A reviewing court will
not reverse a trial court’s determination unless it is not supported by clear and
convincing evidence.” Id., citing In re Meyer at 195, citing In re Adoption of
Holcomb at 368 and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). See also In
re A.E., 3d Dist. Seneca Nos. 13–14–14 and 13–14–15, 2014–Ohio–4540, ¶ 28 (“A
court’s decision to terminate parental rights will not be overturned as against the
manifest weight of the evidence if the record contains competent, credible evidence
by which a court can determine by clear and convincing evidence that the essential
statutory elements for a termination of parental rights have been established.”),
citing In re B.G.W., 10th Dist. Franklin No. 08AP–081, 2008–Ohio–3693 and In re
Nevaeh J., 6th Dist. Lucas No. L–06–1093, 2006–Ohio–6628, ¶ 17.
{¶32} In the instant case, the trial court found that J.E. cannot be placed with
her parents within a reasonable period of time. (Doc. No. 97 at 7-8). Steele does
not challenge any of the trial court’s findings as to R.C. 2151.414(B)(1); rather, she
claims that the trial court erred by not adequately considering and applying the best-
interest factors enumerated in R.C. 2151.313(D)(1)(a)-(e). (Appellant’s Brief at
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14). This argument is unpersuasive because a trial court need not consider each
best-interest factor separately in its judgment entry. In re A.M., 3d Dist. Marion No.
9-14-46, 2015-Ohio-2740, ¶ 18 (noting that a trial court must either consider the
factors individually or “provide some affirmative indication in the record that [it]
has considered the specific factors listed in R.C. 2151.414(D)”). This requirement
is met when a trial court cites to the appropriate statute in making its best-interest
finding. Id., citing In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶
78.
{¶33} In this case, the trial court referenced the applicable statute in its entry.
“In accordance with [R.C.] 2151.414(D), the Court finds that the grant of permanent
custody [of] J.E. to [the Agency] is in the best interests of said child.” (Doc. No. 97
at 9). See In re M.R. at ¶ 78 (“While it is far from the better practice, we find that
the trial court’s citation to the appropriate statute when making its best interest
finding meets its obligation, albeit to the minimum extent possible, in demonstrating
that the R.C. 2151.414(D) factors were considered.”). Additionally, in its judgment
entry, the trial court made findings relevant to the R.C. 2151.414(D) factors. (See
Doc. No. 97 at 7-9). See In re M.R. at ¶ 78 (“Moreover, * * * there is clear and
convincing evidence in the record to support the trial court's finding that it is in
M.R.’s best interest to grant the Agency's motion for permanent custody.”).
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{¶34} The record supports the trial court’s factual findings relevant to the
R.C. 2151.414(D) factors. Regarding R.C. 2151.414(D)(1)(a), J.E. was born in
December of 2014 and placed with a foster family shortly after her birth. (Jan. 12,
2017 Tr. at 6); (Doc. No. 97 at 3). Foster mother Gina Tighe (“Tighe”) testified that
she and her husband are bonded with J.E. and that J.E. refers to them as “mommy”
and “daddy,” respectively. (Jan. 12, 2017 Tr. at 10). Steele spent much of the time
between J.E.’s birth and the permanent custody hearing incarcerated. (Id. at 45-48).
Regarding R.C. 2151.414(D)(1)(b), the trial court seems to have duly regarded
J.E.’s young age by noting that she was born in December of 2014, making her
approximately 27 months old at the time of the trial court’s decision. (See Doc. No.
97 at 1). Regarding R.C. 2151.414(D)(1)(c), the trial court noted that J.E. has been
in the temporary custody of the agency and in the physical custody of the Tighe
family since January of 2015. (Id. at 2). J.E. was in the temporary custody of the
agency continuously for more than 12 months of a consecutive 22-month period.
(Doc. No. 97 at 5, 8). Regarding R.C. 2151.414(D)(1)(d), the evidence
demonstrated that Steele and Emmons are unable to provide a legally secure,
permanent placement for J.E. (Id. at 8, 9); (Jan. 12, 2017 Tr. at 70, 75, 80).
{¶35} For the reasons above, we conclude that clear and convincing evidence
supports the trial court’s determinations under R.C. 2151.414 that it was required to
make, and did make, in granting the Agency’s motion for permanent custody. The
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trial court made the proper findings under 2151.414(B)(1) and properly found that
it is in J.E.’s best interest to grant permanent custody to the Agency. The trial
court’s decision to grant the Agency’s motion for permanent custody is not against
the manifest weight of the evidence. The trial court did not err in granting the
Agency’s motion for permanent custody.
{¶36} Steele’s third assignment of error is overruled.
{¶37} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/jlr
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