In re K.J. , 107 N.E.3d 50 ( 2018 )

[Cite as In re K.J., 2018-Ohio-471.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
[K.J.] et al., : No. 17AP-457
(C.P.C. No. 15JU-0346)
[K.B., :
(REGULAR CALENDAR)
Appellant]. :
In the Matter of: :
[K.J.] et al., : No. 17AP-500
(C.P.C. No. 15JU-0346)
[C.J., :
(REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on February 6, 2018
On brief: William T. Cramer, for K.J. Argued: William T.
Cramer.
On brief: Robert J. McClaren, for Franklin County Children
Services. Argued: Robert J. McClaren.
On brief: Alex J. Pomerants, for appellant K.B. Argued:
Alex J. Pomerants.
On brief: Yeura R. Venters, Public Defender, and
Timothy E. Pierce, for appellant C.J. Argued: Timothy E.
Pierce.
On brief: Daniel W. Sullenberger, Guardian ad Litem.
Argued: Daniel W. Sullenberger.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
Nos. 17AP-457 and 17AP-500 2
LUPER SCHUSTER, J.
Appellants, K.B. ("mother") and C.J. ("father"), parents of K.J., L.J., and M.J.
(collectively "the children"), appeal from the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating their
parental rights and placing the children in the permanent custody of appellee, Franklin
County Children Services ("FCCS"). For the following reasons, we affirm.
I. Facts and Procedural History
This case involves FCCS's request for permanent custody of K.J., born July 21,
2010; L.J., born January 3, 2012; and M.J., born June 6, 2013. On January 12, 2015,
FCCS filed a complaint alleging the children to be neglected and dependent minors. At
that date, K.J. was four years old, L.J. was three years old, and M.J. was one year old.
FCCS filed the neglect and dependency actions after receiving information that father was
physically abusive to mother in the presence of the children, mother "whoops" the
children very hard, K.J. was burned by a cigarette, father and mother were possibly using
heroin, the family was being evicted from their home, the children wear clothes that are
dirty and do not fit, the floor of the home is covered in both dog and human feces, the
parents do not seek medical treatment for the children, the children were allowed to play
near the open oven being used to heat the home, and the home is infested with roaches
and fruit flies. Initially, FCCS placed the children with relatives in an out-of-home safety
plan. During this time, mother and father were scheduled to complete drug screens but
failed to do so.
On January 12, 2015, the relatives informed FCCS they could no longer care for the
children. That same day, the trial court granted an emergency care order placing the
children into the temporary emergency custody of FCCS. The next day, January 13, 2015,
the trial court issued an order returning the children to the care of mother and father with
a protective supervision order. As part of the protective supervision order, the trial court
ordered parents not to use physical discipline with the children, to cooperate with random
drug screens and assessments, and to cooperate with the caseworker.
Less than one month later, on February 6, 2015, the trial court awarded temporary
custody of the children back to FCCS after the parents tested positive for heroin and the
parents lacked income, police came to the home and discovered unsanitary and unsafe
Nos. 17AP-457 and 17AP-500 3
conditions, and father failed to provide any care to the children at all. On February 25,
2015, the trial court adjudicated the children dependent and awarded temporary custody
to FCCS. Subsequently, the trial court extended temporary custody on January 11, 2016
and again on August 18, 2016.
On November 15, 2016, FCCS filed a motion for permanent court commitment
("PCC"), also known as permanent custody, of the children. Initially, the trial court
scheduled the PCC hearing for December 16, 2016. However, the trial court granted
mother's motion to schedule a pretrial conference March 1, 2017. Neither mother nor
father attended the March 1, 2017 pretrial conference. Counsel for mother stated mother
"may be in an emergency room." (Mar. 1, 2017 Tr. at 5.) During the pretrial conference,
the trial court discussed scheduling the final trial date. Counsel for FCCS indicated she
would be out on family leave in July and August. The trial court scheduled the final trial
date for June 5 and 6, 2017. Additionally, the trial court scheduled a second pretrial
conference for April 26, 2017.
At the April 26, 2017 pretrial conference, the trial court conducted an in camera
interview with K.J. Once again, neither mother nor father attended the pretrial
conference. Counsel for mother stated that while he was not certain of the reason for
mother's absence, he "heard that she is with her sick mother at the hospital." (Apr. 26,
2017 Tr. at 29.) Counsel for father stated father may be in Florida. The trial court
reminded the parties of the June 5 and 6, 2017 trial date, and counsel for FCCS stated she
intended to only present the FCCS caseworker and the guardian ad litem for the children
as witnesses, and she stated she would call the parents to testify if they appeared for trial.
Counsel for FCCS specifically noted on the record her concern that the parents would not
show up for the PCC hearing based on mother's and father's failures to attend prior
hearing dates or to make progress on their case plan requirements.
On June 5, 2017, the trial court conducted the scheduled hearing on FCCS's motion
for permanent custody. At the beginning of the hearing, counsel for both mother and
father made oral motions to continue the case because neither mother nor father was
present. Counsel for mother stated mother may have suddenly become ill and could not
attend. Meanwhile, counsel for father stated that counsel learned from FCCS's counsel
that same morning that father had been arrested on a minor theft charge in South
Nos. 17AP-457 and 17AP-500 4
Carolina and was currently incarcerated pending the resolution of that charge. Father's
counsel presented the court with a printout from the webpage for Horry County, South
Carolina stating father was arrested by the Myrtle Beach Police Department on June 2,
2017. Counsel for FCCS, the guardian ad litem, and counsel for K.J. all objected to the
continuance requests. The trial court overruled the continuance requests and proceeded
to trial.
During the PCC hearing, FCCS presented the testimony of three witnesses: Sarah
Terstage, a child welfare caseworker for FCCS; Wanda Ganjehsani, the children's
guardian ad litem; and Joyce Sanders, a case manager for Ohio Guidestone who provided
substance abuse and other counseling to mother. After the testimony of the witnesses and
the submission of FCCS's exhibits, the court issued a written decision on June 12, 2017
granting FCCS's petition for permanent custody. The trial court considered the factors in
R.C. 2151.414(D) and determined there was clear and convincing evidence that it was in
the children's best interest to grant the motion for permanent custody.
Mother and father both timely appeal. This court sua sponte consolidated the
cases for purposes of appeal.
II. Assignments of Error
Mother assigns the following error for our review:
[1.] The trial court did abuse its discretion when it denied
Appellant's motion for continuance and granted the Franklin
County Children Services Motion for Permanent Custody of
the minor children.
Additionally, father assigns the following errors for our review:
[1.] The lower court violated Father-Appellant's right to Due
Process under the Fifth and Fourteenth Amendments of the
United States Constitution and his right to Due Course of Law
under Article I, Sections 1 and 16 of the Ohio Constitution
when it failed to ensure the presence at trial of Father-
Appellant who at the time was incarcerated and/or when it
failed to make alternative arrangements for his participation
in the trial.
[2.] The lower court erred when it denied Father-Appellant's
continuance request which undermined his right to be present
and/or participate at the parental rights termination trial in
Nos. 17AP-457 and 17AP-500 5
violation of the Due Process Clauses of Fifth and Fourteenth
Amendments of the United States Constitution, the Due
Course of Law Clauses of Article I, Sections 1 and 16 of the
Ohio Constitution and Juv.R. 23.
III. Mother's First Assignment of Error and Father's First and Second
Assignments of Error – Request for a Continuance
Mother's sole assignment of error and father's two assignments of error are
interrelated and we address them jointly. In her first assignment of error, mother argues
the trial court erred when it denied her motion for continuance at the start of the
permanent custody hearing. In his first assignment of error, father argues the trial court
violated his due process rights when it failed to ensure his presence at the permanent
custody hearing. In his second assignment of error, father argues the trial court erred
when it denied his request for a continuance at the start of the permanent custody
hearing. Taken together, these assignments of error assert the trial court erred when it
denied the continuance requests and proceeded to the permanent custody hearing when
mother and father were not present.
"Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of
Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re
Murray, 52 Ohio St. 3d 155, 157 (1990). However, these rights are not absolute, and a
parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham,
59 Ohio St. 2d 100, 106 (1979). In certain circumstances, therefore, the state may
terminate the parental rights of natural parents when such termination is in the best
interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-
3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96
Ohio App. 3d 619, 624 (9th Dist.1994).
A trial court may grant permanent custody if it determines by clear and convincing
evidence that, pursuant to R.C. 2151.414(B)(1), " 'such relief is in the best interest of the
child.' " In re G.E.H., 10th Dist. No. 15AP-966, 2016-Ohio-3535, ¶ 52, quoting In re J.T.,
10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 9. On appeal, we will not reverse a trial
Nos. 17AP-457 and 17AP-500 6
court's decision in a permanent custody case unless it is against the manifest weight of the
evidence. In re I.R., 10th Dist. No. 04AP-1296, 2005-Ohio-6622, ¶ 4, citing In re Andy-
Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. Judgments in permanent
custody proceedings are not against the manifest weight of the evidence "when all
material elements are supported by competent, credible evidence." In re J.T. at ¶ 8.
Mother and father, however, do not argue that the trial court's decision to award
permanent custody to FCCS was against the manifest weight of the evidence. Rather,
mother and father argue the trial court erred when it failed to grant their requested
continuance and proceeded to trial in their absence.
An appellate court will not reverse a denial of a continuance in a PCC case absent
an abuse of discretion. In re J.B., 10th Dist. No. 08AP-1108, 2009-Ohio-3083, ¶ 26,
citing In re B.G.W., 10th Dist. No. 08AP-181, 2008-Ohio-3693, ¶ 23. An abuse of
discretion connotes a decision that was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). Further, " '[t]here are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate
due process. The answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is denied.' "
In re J.B. at ¶ 26, quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
In reviewing whether a trial court abused its discretion in denying a continuance,
an appellate court weighs any potential prejudice to the movant against the court's right
to control its docket and the public's interest in the efficient dispatch of justice. State v.
Woods, 10th Dist. No. 09AP-667, 2010-Ohio-1586, ¶ 24; In re M.K., 10th Dist. No. 09AP-
1141, 2010-Ohio-2194, ¶ 14. In evaluating a request for a continuance, a court considers:
(1) the length of the requested delay; (2) whether the parties have requested and received
other continuances; (3) the inconvenience to the parties, witnesses, opposing counsel, and
the court; (4) whether the requested delay is for legitimate reasons or is merely dilatory,
purposeful, or contrived; (5) whether the movant contributed to the circumstances giving
rise to the request for a continuance; and (6) any other relevant factors, depending on the
unique circumstances of each case. Woods at ¶ 24, citing State v. Unger, 67 Ohio St. 2d
65, 67 (1981); In re J.B. at ¶ 26.
A. Mother's Request for a Continuance
Nos. 17AP-457 and 17AP-500 7
Mother failed to appear the day of trial and her counsel orally moved for a
continuance. Loc.R. 2 of the Court of Common Pleas of Franklin County, Division of
Domestic Relations, Juvenile Branch provides that a trial court will not grant a
continuance the day of trial without a showing of good cause. Counsel for mother stated
mother had tried to come to the hearing but had a "medical emergency" and had to call an
ambulance. (June 5, 2017 Tr. at 4-5.) However, counsel for mother stated that he was
unable to track down the ambulance and did not know whether mother actually went to a
hospital or, if so, to what hospital she went. Counsel stated he was unsure how long of a
continuance he was requesting because he did not know the extent of the medical
emergency, but he asked for "a couple weeks" for mother's condition to improve. (June 5,
2017 Tr. at 5.)
In objecting to mother's request for a continuance, counsel for FCCS noted
mother's history throughout the case of failing to appear for scheduled hearings under the
stated reason of a "medical emergency" only for the parties to discover upon investigation
that mother was not actually in the hospital on those occasions. (June 5, 2017 Tr. at 7-8.)
Counsel for FCCS stated she made a point at the last pretrial conference before the PCC
hearing to note on the record her concern that mother would not show up for the final
hearing. Additionally, counsel for FCCS noted the testimony at the hearing would
indicate that mother makes frequent trips to different medical providers related to her
substance abuse issues. The FCCS caseworker testified mother had been to the
emergency room 25 times between August 2014 and August 2016.
Considering all the circumstances surrounding mother's request for a continuance,
we conclude the trial court did not abuse its discretion in denying her oral motion for
continuance on the day of trial. Though counsel for mother requested an unspecified
delay so that mother could be present, mother had a history of failing to attend hearings
at the last minute. The trial court initially scheduled the PCC hearing for December 16,
2016 but ultimately rescheduled the hearing for June 5, 2017 to allow for ample pretrial
hearings and preparation. Still, the PCC hearing on June 5, 2017 marked the third
consecutive hearing date for which mother knew of the hearing and yet failed to attend.
Pursuant to R.C. 2151.414(A)(2), the trial court is to hold the PCC hearing no later than
120 days after the agency files the PCC motion except for "good cause shown" for a
Nos. 17AP-457 and 17AP-500 8
reasonable continuance. The trial court had already extended the time frame for the PCC
hearing to accommodate the pretrial hearings, and by the time of the June 5, 2017
hearing, the PCC motion had been pending for more than 200 days. See In re J.C., 10th
Dist. No. 10AP-766, 2011-Ohio-715, ¶ 46 (a trial court does not abuse its discretion in
denying a request for a continuance when the PCC hearing is already past the 120-
deadline contained in R.C. 2151.414(A)(2)).
Moreover, by the time of the PCC hearing, the children had been in FCCS's custody
for more than two years, and granting a continuance on the day of the hearing would have
presented an inconvenience to opposing counsel, who was scheduled for family leave the
next month, as well as prolonging the accomplishment of the ultimate goal of establishing
permanency for the children. See In re J.M., 10th Dist. No. 15AP-234, 2015-Ohio-3988, ¶
26 (a trial court may consider the children's length of time in foster care and potential for
adoptive placement as a relevant factor in determining whether to grant or deny a
continuance). The inability for FCCS or the other parties to verify mother's medical
excuses throughout the proceedings rendered the stated reason for mother's absence at
the PCC hearing lacking in credibility.
Mother asserts on appeal that had she been able to attend the hearing, she would
have presented testimony that she had made more progress on her case plan, including
obtaining stable housing, employment, and near completion of drug and alcohol
treatment. Although mother's argument is speculative and relies on facts not in the
record, we note that even if mother were able to demonstrate compliance with the case
plan that was unknown to FCCS at the time of the PCC hearing, mother still does not
explain her failure to make any substantial progress toward reunification with her
children during the more than two years that the case had been open with FCCS. In re
A.L., 10th Dist. No. 15AP-1040, 2016-Ohio-3189, ¶ 27 (noting a parent requesting a
continuance for additional time to demonstrate she has met the objectives of a nearly two-
year old case plan on the same day of the PCC hearing bears a heavy burden to show the
trial court abuses its discretion in denying the continuance); In re B.G.W. at ¶ 24-28 (no
abuse of discretion in denying a continuance request on the day of the PCC hearing when
the parent hopes to use the additional time to show compliance with the case plan
Nos. 17AP-457 and 17AP-500 9
requirements as the parent failed to show commitment and willingness to provide a
permanent home to the children during the pendency of the case).
Additionally, K.J. stated a desire for adoption and not to return to her mother, and
the children's guardian ad litem recommended the court grant FCCS's motion for
permanent custody. The children had been in foster care for approximately two and one-
half years. Thus, even if mother had been able to testify to newly revealed progress on her
case plan, it is unlikely that such information would have changed the outcome of the
case. In re B.G.W. at ¶ 27 (no abuse of discretion in granting a continuance where the
continuance likely would not have changed the outcome of the case); In re A.L. at ¶ 29.
Having reviewed the record and considered the Unger factors outlined above, we
conclude the trial court did not abuse its discretion in denying mother's motion for
continuance. We overrule mother's sole assignment of error.
B. Father's Request for Continuance
On the day of trial, father's counsel joined mother's counsel's request for a
continuance. Father's counsel requested a continuance for the additional grounds that he
had reason to believe that father may have been incarcerated in South Carolina. At the
time of the PCC hearing, father had neither seen his children nor completed any portion
of his case plan in over one year. On appeal, father asserts through his two assignments of
error that the trial court erred in denying his continuance request, framing his arguments
as constitutional violations.
As previously noted, "[p]arents have a constitutionally-protected fundamental
interest in the care, custody, and management of their children." In re H.D. at ¶ 10, citing
Troxel at 65. "[W]hen the state attempts to permanently terminate the relationship
between a parent and child, the parent ' "must be afforded every procedural and
substantive protection the law allows." ' " In re R.K., __ Ohio St.3d __ , 2018-Ohio-23, ¶
5, quoting In re Hayes, 79 Ohio St. 3d 46, 48 (1997), quoting In re Smith, 77 Ohio App. 3d
1, 16 (6th Dist.1991). Additionally, "[t]his court has stated that natural parents have a
constitutionally protected right to be present at a permanent custody hearing." (Internal
quotations omitted.) In re B.M., 10th Dist. No. 09AP-60, 2009-Ohio-4846, ¶ 13.
Nos. 17AP-457 and 17AP-500 10
1. Failure to Transport or Arrange Alternate Means of Participation
Under his first assignment of error, father argues the trial court erred when it
failed to ensure his presence at the trial or make alternative arrangements for his
participation in the trial. However, as FCCS notes, neither father nor counsel for father
raised in the trial court the issue of whether father could be transported to the hearing or
whether alternate arrangements could be made to ensure father's participation. "A
constitutional issue not raised at trial 'need not be heard for the first time on appeal.' "
State v. Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, ¶ 61, quoting State v. Awan,
22 Ohio St. 3d 120 (1986), syllabus; In re Dailey, 10th Dist. No. 04AP-1346, 2005-Ohio-
2196, ¶ 25 ("[w]hen a constitutional issue is not raised before the trial court, it will not be
addressed in the first instance by the court of appeals"). (Internal quotations omitted.)
Thus, because there was no request made at the trial court to arrange for father's
transportation to the hearing or to arrange for his participation in some other way, we will
not address for the first time on appeal whether the trial court violated father's
constitutional rights in this regard. Thus, we overrule father's first assignment of error.
2. Due Process
In his second assignment of error, father asserts the trial court violated father's due
process rights when it denied his request for a continuance. "[A]n incarcerated parent
does not have 'an absolute due process right to attend the trial of a civil action to which he
is a party.' " In re M.M., 10th Dist. No. 14CA6, 2014-Ohio-5111, ¶ 43, quoting Abuhilwa v.
Board, 4th Dist. No. 08CA3, 2008-Ohio-5326, ¶ 7. In determining whether the due
process rights of an incarcerated parent have been infringed, we apply the test set forth by
the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). In re K.L.,
10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 43. "Under the Mathews test, a court must
consider and weigh: (1) the private interest affected, (2) the risk of erroneous deprivation
and the probable value of additional safeguards, and (3) the governmental burden of
additional safeguards." Id., citing Mathews at 335.
Father did not attend the PCC hearing. His counsel attributed father's failure to
attend to the fact that counsel had learned that same morning that father was
incarcerated in South Carolina. However, the record indicates that by the time of the PCC
hearing, father had not seen the children in more than one year. Additionally, he had not
Nos. 17AP-457 and 17AP-500 11
made any attempts to complete any portion of his case plan in more than one year.
Counsel for father only learned father was possibly incarcerated when counsel for FCCS
shared that information with father's counsel. Meanwhile, the children had been in foster
care since February 2015. Under these circumstances, father's potential loss of rights
"pale when measured against the best interests of" the children. In re K.L. at ¶ 44 (no
deprivation of father's due process rights in conducting permanent custody hearing in
father's absence where incarcerated father of twins had only met the children one time
and lost contact with the children).
As in In re K.L., father here also lost contact with the children and demonstrated
an inability to be physically present in the children's lives, so there was little risk of an
error in the proceedings as a result of his absence. Id. Father was represented by counsel
throughout the proceedings, and father does not indicate how the proceedings might have
changed or how his presence might have changed the outcome. As we noted in the
resolution of mother's assignment of error, the PCC motion had been pending for more
than 200 days by the time of the hearing, and there would have been a burden to the
court, opposing counsel, and especially the children in delaying their need for
permanency if the court had granted the continuance with no indication that any length of
delay would ensure father's attendance. See In re M.M. at ¶ 51 (the trial court did not
deprive parent of her due process right to a fundamental fair permanent custody hearing
when it proceeded with the permanent custody hearing while she was incarcerated
because "[c]ounsel meaningfully represented appellant at the hearing, a complete record
was made, and appellant has failed to show what additional testimony or evidence she
would have offered that would have changed the outcome of the case").
Thus, under these circumstances, we cannot find that the trial court violated
father's due process rights when it denied his motion for continuance. We overrule
father's second and final assignment of error.
IV. Disposition
Based on the foregoing reasons, the trial court did not abuse its discretion in
denying mother's motion for a continuance and did not violate father's constitutional
right to due process in denying his motion for a continuance when it conducted the
permanent custody hearing in mother's and father's absences. Having overruled mother's
Nos. 17AP-457 and 17AP-500 12
sole assignment of error and father's two assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgment affirmed.
SADLER and HORTON, JJ., concur.