In re J.J. , 2020 Ohio 2808 ( 2020 )

[Cite as In re J.J., 2020-Ohio-2808.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.J. C.A. No. 29534
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 17 11 0901
DECISION AND JOURNAL ENTRY
Dated: May 6, 2020
HENSAL, Judge.
{¶1} Appellant Father appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that granted legal custody of the child J.J. to a third-party relative. This
Court affirms.
I.
{¶2} Mother is the biological mother of J.J. (d.o.b. 10/19/17). Father’s paternity of the
child was established by affidavit at the child’s birth. Although not married, Mother and Father
were living together when the child was born.
{¶3} The initial concern for the child’s well-being arose when J.J. lost 14% of his birth
weight within his first week of life. Summit County Children Services Board (“CSB” or “the
agency”) learned that the parents had been rationing the baby’s formula due to their limited
financial resources. After further investigation, the agency learned of Mother’s significant child
welfare history regarding four other children, current substance abuse issues, and outstanding
2
warrant for arrest. In addition, there were recent allegations of domestic violence between Mother
and Father. Moreover, Father was not taking any measures to protect the child and was not
receptive to interventions to ensure J.J.’s well-being. Accordingly, CSB filed a complaint alleging
that the three-week old J.J. was a neglected and dependent child. The agency removed the child
from the parents’ home and obtained an emergency order of temporary custody.
{¶4} J.J. was later adjudicated a neglected and dependent child and placed in the
temporary custody of CSB. The agency placed J.J. with his paternal adult half-sister (“Sister”),
where he remained throughout the case. The juvenile court adopted the agency’s case plan as the
order of the court. Mother ceased appearing for hearings, participating in services, or otherwise
participating in the proceedings in the juvenile court. She has not appealed.
{¶5} As the case progressed, Father was successfully participating in case plan services
and demonstrating the ability to provide a safe and stable home for J.J. Accordingly, CSB sought
to reunify the child with Father. Almost a year after the child’s removal from the home, however,
Father was shot in the leg. Based on the serious physical injury to Father’s leg, CSB moved for a
first six-month extension of its temporary custody to allow Father time to engage in therapy and
heal. Father joined in that motion. He also requested that his visits be supervised because his
injury prevented him from caring for the child alone. Citing Father’s significant progress on his
case plan objectives, the juvenile court granted a first extension of temporary custody.
{¶6} Father quickly began to suffer major setbacks regarding his compliance with case
plan objectives. He was evicted from his home and would not identify his current residence. He
became unemployed. He ceased communicating with the guardian ad litem. Because of Father’s
threats to the paternal grandmother who had been supervising visits, visitation was moved to the
Family Interaction Center.
3
{¶7} As Father ceased demonstrating that he was able to provide a safe and stable home
for the child, CSB filed a motion for legal custody to Sister. Father moved for legal custody, or in
the alternative, a second six-month of extension of temporary custody. The magistrate conducted
a two-day final dispositional hearing. Father did not appear for the second day of hearing, and his
attorney requested a continuance. The magistrate denied that request and subsequently issued a
decision recommending an award of legal custody to Sister. Father filed timely objections,
challenging the denial of his requested continuance and the adequacy of the evidence underlying
the magistrate’s finding that legal custody to Sister was in the child’s best interest. Although he
asserted that he would supplement his objections after the transcripts were filed, Father failed to
do so.
{¶8} The juvenile court overruled Father’s objections. It entered judgment granting
CSB’s motion for legal custody to Sister. Father filed a timely appeal in which he raises two
assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
FINDING IT WAS IN THE BEST INTERESTS OF THE CHILD J.J. TO BE
PLACED IN THE LEGAL CUSTODY OF [SISTER] EVEN THOUGH IT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} Father argues that the juvenile court’s award of legal custody to Sister was against
the manifest weight of the evidence. This Court disagrees.
{¶10} To the extent that Father challenges the admission of evidence that he claims was
hearsay, Father failed to preserve that issue for appeal. Juvenile Rule 40(D)(3)(b)(iv) provides:
Except for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Juv.R.
4
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).
Therefore, “[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s
decision, it may not be raised for the first time on appeal.” Varner v. Varner, 170 Ohio App. 3d
448, 2007-Ohio-675, ¶ 22 (9th Dist.).
{¶11} Father failed to challenge the admissibility of any evidence in his objections.
Accordingly, he has forfeited the issue on appeal, except for a claim of plain error. See Juv.R.
40(D)(3)(b)(iv). To establish plain error, an appellant “must demonstrate not only trial court error
but also that the error resulted in prejudice to his defense.” In re F.B., 9th Dist. Summit Nos.
28690 and 28985, 2019-Ohio-1738, ¶ 30.
{¶12} It is unclear from Father’s appellate brief which precise statements he believes were
hearsay, because he only references “the grandmother’s statements[.]” Moreover, he fails to argue
how any statements alluding to the lack of a biological relationship between Father and the child
prejudiced him. In fact, he admits that the juvenile court at all times considered Father to be the
child’s legal father based on Father’s properly executed affidavit of paternity. To the extent that
he argues that evidence of his reaction to the grandmother’s comments about paternity was
inadmissible, he fails to explain how such evidence constituted hearsay. Moreover, the record
demonstrates that Sister testified that she was present and witnessed Father’s reaction, including
threats to the grandmother. Under these circumstances, Father has failed to demonstrate how he
was prejudiced or that the juvenile court committed plain error.
Manifest weight
On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
5
court does not have discretion to enter a judgment that is adverse to that interest.
Thus, our standard of review is whether a legal custody decision is against the
manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7
{¶13} In considering whether the juvenile court’s 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 quotations omitted.) Eastley v. Volkman,
132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always
be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶14} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or
set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal
custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-
7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard,
the juvenile court is guided by the best interest factors enunciated in Revised Code Section
2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-
5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those factors
include the interaction and interrelationships of the child, the child’s wishes, the custodial history
of the child, the child’s need for permanence, and whether any of the factors in Revised Code
6
Section 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th
Dist. Summit Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 16.
{¶15} Father fails to cite the best interest factors or make any argument in regard to them.
A review of the record, however, demonstrates that the juvenile court’s award of legal custody to
Sister was in the child’s best interest.
{¶16} J.J. was removed from the parents’ home shortly after his birth due to his
precipitous loss of weight. He was placed with Sister with whom he resided throughout the
duration of the case. Sister has consistently provided a safe and secure home in which the child
has thrived. Although Father had begun making significant progress on his case plan objectives,
all progress ceased after Father was shot in the leg. He requested supervised visitation because he
was unable to care for the child without assistance. His need for assistance continued the entire
ten months after he was shot.
{¶17} Father was evicted from his home and never secured safe and stable housing
thereafter. In fact, he refused to give the caseworker and guardian ad litem details regarding his
living arrangements. He lied about moving in with his mother who was approved to supervise
visits. He became angry and aggressive towards the child’s caregiver.
{¶18} Father also became unemployed due to his injury. The caseworker testified that
Father admitted that he was struggling financially to meet his own needs, let alone those of a child.
Most significantly, Father indicated that he would likely require a second surgery to correct
deficiencies from the first surgery which impacted his healing. Another surgery would reasonably
further delay Father’s ability to work to provide for his own basic needs and the basic needs of the
child.
7
{¶19} J.J. was too young to express his own wishes. The guardian ad litem reported that
it was in the one-and-a-half-year-old child’s best interest to be placed in the legal custody of Sister.
Based on the above-referenced circumstances, this is not the exceptional case where the trier of
fact clearly lost its way and created a manifest miscarriage of justice by finding that an award of
legal custody to Sister was in the best interest of the child. Accordingly, the juvenile court’s
judgment was not against the manifest weight of the evidence.
{¶20} Father concludes his argument by asserting that the juvenile court should have
granted a second six-month extension of temporary custody to allow him additional time to
complete his case plan objectives. Extensions of temporary custody are governed by Revised Code
Section 2151.415(D), which provides in relevant part:
The court may extend the temporary custody order of the child for an additional
period of up to six months if it determines at the hearing, by clear and convincing
evidence, that the additional extension is in the best interest of the child, there has
been substantial additional progress since the original extension of temporary
custody in the case plan of the child, there has been substantial additional progress
since the original extension of temporary custody toward reunifying the child with
one of the parents or otherwise permanently placing the child, and there is
reasonable cause to believe that the child will be reunified with one of the parents
or otherwise placed in a permanent setting before the expiration of the additional
extension period.
R.C. 2151.415(D)(2).
{¶21} As noted above, there was no evidence of significant progress by Father on his case
plan objectives since the initial extension of temporary custody. He no longer had a home or the
financial resources to care for himself, let alone a child. While it appears that Father’s injury after
being shot led to his inability to care for the child, he remained ten months later in no position to
care for the child within the foreseeable future. In fact, he asserted that he would need another
surgery which would further delay his ability to work and otherwise care for J.J. Accordingly, the
8
juvenile court’s judgment denying Father’s motion for a second six-month extension of temporary
custody was not against the manifest weight of the evidence.
{¶22} Father’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
NOT GRANTING A CONTINUANCE WHEN REQUESTED BY FATHER’S
COUNSEL BECAUSE FATHER MAY HAVE BEEN IN THE HOSPITAL
HAVING SURGERY.
{¶23} Father argues that the juvenile court erred by failing to grant a continuance of the
second day of the legal custody hearing when he failed to appear. This Court disagrees.
{¶24} “[T]he decision to grant or deny a continuance rests within the sound discretion of
the trial court, 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.’” In re J.J., 9th Dist. Medina No. 19CA0008-M, 2019-Ohio-2152, ¶ 7, quoting
State v. Unger, 67 Ohio St. 2d 65, 67 (1981). When determining whether to continue a hearing,
the trial court should consider various factors including the length of the continuance sought;
whether there has been a prior continuance of the hearing; and the inconvenience to other parties,
attorneys, witnesses, and the trial court. In re L.B., 9th Dist. Summit Nos. 28483 and 28494, 2017-
Ohio-7049, ¶ 11, citing Unger at 65, 67-68. In addition, Juvenile Rule 23 only allows for the
granting of continuances “when imperative to secure fair treatment for the parties.”
{¶25} Father’s attorney filed a motion to continue the first day of the legal custody hearing
because he (the attorney) was scheduled for an appearance in another court. The juvenile court
denied the motion. Father’s attorney thereafter arranged for stand-in counsel to represent Father
during the first day of hearing. Father was also present for hearing on that day. At the conclusion
of testimony on the first day of the hearing, the juvenile court conferred with counsel and the
9
parties to schedule a second day to conclude the hearing. Father did not object to the date and time
chosen by the trial court. The record further demonstrates that the juvenile court called Father’s
appointed counsel to ensure that he was available for the second date and time.
{¶26} On the second day of the hearing, Father failed to appear. During a preliminary
discussion before the presentation of evidence, counsel reported that Father had left him a
voicemail message that he would be having a second surgery on his leg, although counsel was not
sure of the exact date of that surgery. Counsel expressly stated that he was not sure why Father
was not at the hearing. Father’s attorney did not request a continuance of the hearing at that time,
and CSB presented the remainder of its case-in-chief.
{¶27} After the agency rested, Father’s counsel orally moved for a continuance of the
hearing to allow Father the opportunity to be present. Both the assistant prosecutor and the
guardian ad litem objected to a continuance in the interest of securing timely permanence for the
child. Moreover, both reported that Father did not mention anything about having scheduled a
surgery when he attended a visitation at the agency during the prior week. Both also reminded the
juvenile court that Father was present when the juvenile court selected the second date and time
for the hearing without objection.
{¶28} Father now argues that a continuance was warranted because he may have been
having surgery on the date of the second day of the hearing. Given Father’s failure to clarify for
his attorney when he was scheduled for surgery, coupled with the fact that he had not mentioned
surgery to the caseworker or guardian ad litem at a recent visitation, there exists nothing more than
mere speculation that Father missed the hearing due to surgery. In addition, Father was present at
the first day of hearing, had the opportunity to provide input as to the second hearing date, and did
not object when the juvenile court scheduled a second hearing date for 22 days after the first.
10
{¶29} The legal custody hearing had already been continued for a second day of hearing.
Father’s attorney provided no information regarding the length of time the matter would need to
be continued to give Father the opportunity to appear. In fact, counsel was uncertain as to whether
or not Father had really had surgery that day. All other parties and attorneys were present and
prepared to conclude the hearing on the second scheduled date. The child’s custody had already
been in limbo for 18 months.
{¶30} Under these circumstances, the juvenile court did not abuse its discretion by
denying Father’s motion to continue the second day of the custody hearing. A continuance was
not imperative to secure Father’s fair treatment. See Juv.R. 23. Father was present at the first day
of hearing. He was represented by counsel on both days of hearing. The exact reason for his
absence at the second day was unknown, even to his own counsel. Moreover, there was no
indication of how long the juvenile court would need to continue the matter to accommodate
Father. Father’s second assignment of error is overruled.
III.
{¶31} Father’s assignments of error are 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.
11
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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.