In re J.J. , 2019 Ohio 2152 ( 2019 )

[Cite as In re J.J., 2019-Ohio-2152.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: J.J. C.A. No. 19CA0008-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2017 09 NE 00070
DECISION AND JOURNAL ENTRY
Dated: June 3, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, K.H.-M. (“Mother”), appeals from a judgment of the Medina County
Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her
minor child in the permanent custody of Medina County Job and Family Services (“MCJFS”).
This Court affirms.
I.
{¶2} Mother is the biological mother of J.J., born July 6, 2017. The child’s father did
not appeal from the trial court’s judgment. Mother has an older child, G.M., who was removed
from Mother’s custody because of Mother’s substance abuse problems. G.M. was ultimately
placed in the legal custody of his foster parents and is not a party to this appeal.
{¶3} MCJFS still had an open case with G.M. when J.J. was born. Mother had been
working on substance abuse treatment through the case plan in G.M.’s case. She began working
with the agency on a voluntary basis regarding J.J. shortly after the child was born because J.J.’s
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father overdosed on heroin in the family home. Pursuant to the voluntary case plan, J.J. was
placed in the same foster home as G.M. On September 9, 2017, MCJFS filed a complaint to
begin this involuntary case, alleging that J.J. was a neglected and dependent child because both
parents had ongoing substance abuse problems, lacked the ability to appropriately care for the
infant child, and the agency had been unable to find a suitable relative who was willing and able
to care for J.J.
{¶4} J.J. was later adjudicated a dependent child and placed in the temporary custody
of MCJFS. The case plan goals in this case again focused primarily on Mother addressing her
long-standing substance abuse problem. Mother did not consistently engage in treatment,
however, nor did she demonstrate sobriety for any significant period. By April 2018, Mother
had dropped out of drug treatment and would later admit that she was using heroin and/or
fentanyl and other illegal drugs every day. Mother later told the caseworker that she moved from
Medina to Barberton, but she did not share her address with the caseworker or guardian ad litem.
Mother eventually stopped communicating with the caseworker, missed scheduled visitations
and court hearings, and was no longer working on the reunification goals of the case plan.
{¶5} Consequently, MCJFS moved for permanent custody of J.J. Following a two-day
hearing, which Mother did not attend but was represented by counsel, the trial court terminated
Mother’s parental rights and placed J.J. in the permanent custody of MCJFS. Mother appeals
and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DENIED COUNSEL’S REQUEST FOR A CONTINUANCE WHEN
APPELLANT MOTHER COULD NOT APPEAR AT THE HEARING DUE TO
HER INABILITY TO OBTAIN TRANSPORTATION.
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{¶6} Mother’s first assignment of error is that the trial court committed reversible error
by denying her counsel’s request to continue the permanent custody hearing. Juv.R. 23 provides
that “[c]ontinuances shall be granted only when imperative to secure fair treatment for the
parties.” Moreover, requests for continuance are required to be made in writing and “shall be
made as far in advance of hearing dates as practicable[.]” Loc.R. 7.2 of the Court of Common
Pleas of Medina County, Juvenile Division. The local rule further provides that “[n]o case will
be continued on the day of hearing except for good cause shown.” Id.
{¶7} Moreover, the decision to grant or deny a continuance lies within the sound
discretion of the trial judge, and 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). A trial
court’s determination of whether to continue a hearing should consider factors such as the length
of the continuance sought; whether the hearing has already been continued; and the
inconvenience to other parties and/or counsel, witnesses, and the trial court. Id. at 67-68.
{¶8} Mother filed no advance written motion for a continuance. Instead, at 9:30 a.m.
on the morning of the hearing that was scheduled to begin at 9:00 a.m., Mother’s trial counsel
orally requested a continuance of the hearing. He told the trial judge that Mother had contacted
him via text message at 9:14 a.m. to inform him that she did not have a ride because her friend’s
vehicle had a flat tire, but that she would try to find a ride to get her there later in the day. After
the lunch recess, trial counsel renewed his oral motion, explaining that Mother had again
contacted him and informed him that she could not find a ride. The second day of the hearing,
trial counsel informed the court that Mother had sent him a text message the previous evening
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that she could not attend because she did not have a ride. Trial counsel further explained that he
had sent Mother text messages that morning, but she had not responded.
{¶9} Although there had been no prior continuances of this hearing, the trial court
focused on the inconvenience to the court and parties. The trial court denied counsel’s last-
minute oral request for a continuance, explaining that the hearing had been scheduled two
months earlier and that all other parties and witnesses were prepared to proceed with the hearing.
{¶10} Notably, the court had no information about the length of continuance sought.
Mother’s counsel did not propose a date when Mother would be able to appear, nor could he
assure that Mother would appear if the court continued the hearing to a later date. During the
months prior to the hearing, Mother had failed to maintain any contact with the caseworker or
the guardian ad litem. Mother had missed several other hearings in this case, including the two
that were held before the permanent custody hearing. Mother’s last appearance in court in this
case was five months before MCJFS moved for permanent custody.
{¶11} Mother has failed to demonstrate that she had good cause for requesting a
continuance of both days of the permanent custody hearing or that the trial court abused its
discretion by denying her a continuance. Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
TERMINATING MOTHER’S PARENTAL RIGHTS AND GRANTING
PERMANENT CUSTODY OF THE CHILD TO [MCJFS].
{¶12} Mother’s second assignment of error is that the trial court’s permanent custody
decision was not supported by the evidence presented at the hearing. Although she states both an
abuse of discretion and manifest weight standard of review, the appropriate standard of review to
address the argument that she has raised is whether the judgment is against the manifest weight
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of the evidence. In re T.K., 9th Dist. Summit No. 28720, 2017-Ohio-9135, ¶ 7. To determine
whether the permanent custody judgment is against the manifest weight of the evidence, this
Court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses
and 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 [hearing] ordered.” (Internal citations omitted.) Id.
{¶13} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child in a parent’s custody has been adjudicated abused, neglected, or dependent
on three separate occasions; or the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E);
and (2) that the grant of permanent custody to the agency is in the best interest of the child, based
on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also
In re William S., 75 Ohio St. 3d 95, 99 (1996).
{¶14} The trial court found that MCJFS established the first prong of the permanent
custody test for several alternative reasons, including that Mother had failed to substantially
remedy the conditions that caused J.J. to be placed outside the home. See R.C. 2151.414(E)(1).
Mother does not challenge that finding, which is fully supported by the record.
{¶15} Instead, Mother challenges the trial court’s finding that permanent custody was in
the best interest of her child. When determining the child’s best interest under R.C.
2151.414(D), the juvenile court must consider all relevant factors, including the interaction and
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interrelationships of the child, the child’s wishes, the custodial history of the child, the need for
permanence in the child’s life, and whether any of the factors set forth in R.C. 2151.414(E)(7) to
(11) apply to the facts of the case. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos.
24834 and 24850, 2009-Ohio-6284, ¶ 11.
{¶16} Mother’s interaction with J.J. during this case was limited to supervised visitation
because she did not adequately address her substance abuse problem. The caseworker described
Mother’s compliance with the case plan as “minimal.” Inpatient treatment was recommended for
Mother, but she refused to participate in a residential treatment program. Instead, Mother began
outpatient treatment programs twice during this case, but she was terminated both times because
she failed to regularly attend.
{¶17} Moreover, Mother never demonstrated a prolonged period of sobriety. She
continued to test positive for drugs and, as the case progressed, she had moved from using
mostly marijuana and some cocaine to regularly using more serious drugs such as heroin and
fentanyl. Mother eventually stopped coming to visits and court hearings, and she stopped
communicating with the caseworker. Of the 160 visits that were offered to Mother, she attended
only 89 or 90. By the time of the hearing, J.J. was 16 months old and Mother had not developed
a strong bond with him. In the foster home, on the other hand, J.J. had become closely bonded to
the family and his older sibling.
{¶18} Because J.J. was too young to express his wishes, the guardian ad litem spoke on
his behalf. He recommended that J.J. be placed in the permanent custody of MCJFS. Like other
witnesses, he expressed serious concern that Mother’s drug problem had only gotten worse
during this case because she had moved on to daily use of much more serious drugs.
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{¶19} J.J.’s custodial history included spending most of his life living in a temporary
placement. He needed a legally secure permanent placement but neither parent was prepared to
provide him with a stable home and MCJFS had been unable to find a relative who was willing
and able to do so. Consequently, the trial court concluded that a stable placement would be
achieved by granting permanent custody to MCJFS.
{¶20} Mother has failed to demonstrate that the trial court lost its way by finding that
permanent custody was in the best interest of J.J. Mother’s second assignment of error is
overruled.
III.
{¶21} Mother’s assignments of error are overruled. The judgment of the Medina
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 Medina, 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
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.
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Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
ERIC D. HALL, Attorney at Law, for Appellant.
AMANDA CASALINUOVO, Attorney at Law, for Appellee.
JAMES ARMSTRONG, Guardian ad Litem.