In re A.G.M.C.

[Cite as In re A.G.M.C., 2010-Ohio-5188.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN THE MATTER OF:
A.G.M.C., CASE NO. 9-10-30
DEPENDENT CHILD,
[TAMMY CRISP – OPINION
APPELLANT].
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2007 AB 0137
Judgment Affirmed
Date of Decision: October 25, 2010
APPEARANCES:
Robert C. Nemo for Appellant
David Stamolis for Appellee
Douglas Diequez, Guardian Ad Litem
Case No. 9-10-30
ROGERS, J.
{¶1} Mother-Appellant, Tammy Crisp, appeals from the judgment of the
Marion County Court of Common Pleas, Family Division, granting permanent
custody of her daughter, A.C., to Marion County Children’s Services (“Children’s
Services”). On appeal, Crisp argues that the trial court abused its discretion in
denying her motion for a continuance of the hearing for modification of temporary
custody to permanent custody, and that the trial court erred in granting permanent
custody to Children’s Services where clear and convincing evidence was not
presented that the child could not be placed with her and that it was in the best
interest of the child to be placed in the permanent custody of Children’s Services.
Based on the following, we affirm the judgment of the trial court.
{¶2} In December 2007, Children’s Services filed a motion for ex parte
emergency orders, requesting that temporary custody of Crisp’s daughter, A.C., be
given to Flossie Nichols, A.C.’s grandmother, due to Crisp’s history of drug and
alcohol abuse, and the recent charges against Crisp for child endangerment and
operating a motor vehicle while intoxicated1. Subsequently, the magistrate
granted the motion and awarded temporary custody of A.C. to Nichols.
1
We note that Children’s Services and other witnesses referred to the offense of operating a motor vehicle
while “intoxicated.” Although there is no such offense under Ohio laws, we have assumed they meant
operating a vehicle while “under the influence of alcohol (and/or drugs)” pursuant to R. C. 4511.19. For
purposes of clarity, we have used Children’s Services and the witnesses’ terminology in this opinion.
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{¶3} On January 4, 2008, Children’s Services filed a complaint alleging
A.C. to be a dependent child under R.C. 2151.04 due to Crisp’s current
incarceration on charges of operating a motor vehicle while intoxicated and child
endangerment, and her history of unstable housing and drug and alcohol abuse. In
the complaint, Children’s Services requested protective supervision and that
temporary custody of A.C. be granted to Nichols.
{¶4} Subsequently, on January 14, 2008, Children’s Services filed an
amended complaint, listing A.C.’s father as unknown, alleging her to be both a
dependent and neglected child, and requesting the same disposition.
{¶5} On January 17, 2008, the trial court appointed Doug Diequez as
Guardian Ad Litem (“GAL”).
{¶6} On January 31, 2008, Children’s Services filed another motion for
ex parte temporary orders, requesting that A.C. be placed in its temporary custody
due to Nichols allowing Crisp unsupervised visitation of A.C., where A.C. was
with Crisp when she entered the emergency room in an incoherent state and
appeared to be under the influence of drugs or alcohol. Subsequently, the trial
court granted the motion and placed A.C. in the temporary custody of Children’s
Services.
{¶7} In February 2008, the trial court approved the case plan submitted by
Children’s Services which called for reunification between A.C. and Crisp, and
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required Crisp to complete a drug and alcohol assessment, to submit to random
drug testing, to abstain from all drug and alcohol use, to complete a parenting class
by May 1, 2008, and to continue with mental health counseling and medication.
Additionally, the case plan placed A.C. with a foster family and permitted Crisp
visitation two days per week for two hours per day.
{¶8} In April 2008, Children’s Services filed and the trial court granted a
motion to dismiss its January 4, 2008 complaint and to continue with all
previously imposed orders. Subsequently, Children’s Services filed another
complaint, alleging A.C. to be neglected and dependant based upon Crisp’s drug
and alcohol abuse, recent arrest for a probation violation for operating a motor
vehicle while intoxicated, and positive test for marijuana use, and requesting that it
be awarded temporary custody and protective supervision of A.C.
{¶9} On May 27, 2008, the trial court found A.C. to be dependent based
upon a stipulation by the parties, ordered that A.C. remain in the temporary
custody of Children’s Services, and ordered Crisp to comply with the case plan
and Children’s Services to arrange visitation.
{¶10} On May 29, 2008, Children’s Services filed a semi-annual
administrative review with the trial court, stating that Crisp had failed to abstain
from alcohol use, as she was forced to leave a homeless shelter because of her
alcohol consumption; that Crisp had completed several drug screens with no
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positive tests since February 2008; that Crisp falsely reported that she had been
attending a drug and alcohol treatment program; that Crisp was arrested in April
2008 on charges of disorderly conduct while intoxicated; that Crisp reported that
she had been attending weekly therapy sessions, but that her therapist indicated
she had not attended a therapy session since March; that, since Crisp was forced to
leave the homeless shelter in April 2008, she had failed to provide a current
address; that, during visitation between Crisp and A.C., they exhibited a very close
bond; and, that A.C.’s placement with the foster family should continue due to
Crisp’s drug and alcohol use, lack of stable housing, and income and mental health
issues.
{¶11} In May 2008, the trial court adopted an amended case plan submitted
by Children’s Services, providing that Crisp follow all recommendations of the
drug and alcohol assessment program; that she submit to random drug screenings
within twenty-four hours of a caseworker’s request; that she abstain from drug and
alcohol use while providing care for A.C.; that she demonstrate appropriate
parenting techniques during all visitation times; that she not participate in any
activity that would result in a finding of child abuse or neglect; that she continue
with mental health counseling and medication; that she obtain approved housing;
that she maintain such housing for no less than three consecutive months; that she
provide her caseworker with copies of the rental agreement and her pay stubs upon
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request; that she report any changes in her residence to the caseworker within
seventy-two hours; and, that she permit the caseworker, upon request, to inspect
her home. Additionally, the case plan provided for a goal of reunifying A.C. and
Crisp.
{¶12} In September 2008, Crisp filed a motion requesting reunification
with A.C. and a temporary order of increased visitation time, arguing that she had
substantially complied with the case plan and that reunification and increased
visitation time was in A.C.’s best interest.
{¶13} In October 2008, Children’s Services filed a motion for an annual
review and an extension of the temporary commitment order for A.C., stating that
A.C.’s foster family continues to provide for her basic needs; that Crisp had
completed all case plan goals and objectives with the exception of being able to
provide for A.C.’s basic needs; that Crisp needed to obtain a stable and legal
source of income to provide for A.C.; and, that the previously approved case plan
should remain in effect.
{¶14} Subsequently, the trial court issued a journal entry ordering that
Children’s Services continue to have temporary custody of the child; that Crisp
comply with the case plan; and, that Crisp have additional times of unsupervised
visitation.
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{¶15} In November 2008, the trial court conducted a dispositional review,
terminating the temporary custody of Children’s Services and returning custody of
A.C. to Crisp, requiring that Children’s Services provide protective supervision,
and requiring that Crisp continue compliance with the case plan.
{¶16} Subsequently, the trial court adopted another amended case plan on
the basis of its award of custody of A.C. back to Crisp, stating that Crisp had
complied with the requirements of completing a drug and alcohol assessment,
parenting classes, and a psychological assessment, and terminating the visitation
plan.
{¶17} Additionally, Children’s Services filed its semi-annual review,
finding that A.C. was returned to Crisp’s custody; that Crisp took multiple random
drug screenings and never tested positive; that no drugs or drug paraphernalia was
observed in Crisp’s home on multiple visits; that Crisp successfully completed
drug and alcohol counseling; that Crisp moved out of a shelter and had been living
in a home since July 2008; that Crisp’s friend paid the rent for the home; that all
utilities were functioning in the home and there were no household environmental
hazards present; that Crisp’s past substance abuse history, mental health
instability, and limited financial resources continued to create the likelihood of
maltreatment of A.C.; that Children’s Services will continue to monitor Crisp’s
progress toward case plan goals and her ability to provide for A.C.; that, when
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Crisp attended previous visitation times with A.C., there was a strong bond
between her and A.C.; that continued drug screening was necessary to ensure that
Crisp did not relapse with her substance abuse; and, that protective supervision
remained necessary to ensure Crisp continued to attend mental health counseling.
{¶18} On February 9, 2009, Children’s Services filed a motion for an ex
parte/emergency order granting it custody of A.C. on the basis that Crisp was
arrested for disorderly conduct, child endangerment, and obstruction of justice,
and that there were no other appropriate adults to provide for A.C. Subsequently,
the trial granted the motion and awarded Children’s Services emergency
temporary custody of A.C.
{¶19} On February 11, 2009, Children’s Services filed a motion requesting
a modification of the protective supervision order of A.C. to an order granting it
temporary custody, and, in March 2009, the trial court granted the motion.
{¶20} In May 2009, Children’s Services filed its semi-annual
administrative review stating that A.C. was placed with her previous foster
parents, George and Dorene Sturm; that Crisp tested positive for cocaine in April
and May 2009, and was arrested in February 2009 as a result of being intoxicated;
that Crisp did not have a legal form of income; that Crisp continued to live in a
home in which the rent is paid by one of her friends; that Crisp continued to deny
her drug use and had been consistently unable to maintain a sober lifestyle; that
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Crisp was attending counseling sessions and an alcoholic’s anonymous program,
but refused a referral to an in-patient rehabilitation program; that the caseworker
had not conducted a home inspection since March 2009, despite the fact that nine
attempts were made in April and May 2009; that Crisp consistently canceled
scheduled home visits with the caseworker and did not answer the door when the
caseworker arrived unannounced; and, that Crisp had attended nine out of the
scheduled eighteen visitation appointments with A.C.
{¶21} In July 2009, the trial court adopted an amended case plan which
required Crisp to continue to submit to random drug screenings within twenty-four
hours of a request, to abstain from drug and alcohol use, to continue with mental
health counseling and medication, to maintain stable, approved housing that is
clean and free from hazards, and to report any changes in her residence to the
caseworker within seventy-two hours. Additionally, the case plan set forth a goal
of reunification and permitted Crisp visitation with A.C. twice each week for two
hours.
{¶22} In August 2009, Children’s Services filed a motion requesting the
modification of temporary custody to permanent custody on the basis of Crisp’s
failure to comply with the case plan, including her failure to refrain from drug and
alcohol abuse, her arrest for disorderly conduct while intoxicated in June and
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August 2009, and her failure to maintain adequate housing, evidenced by her
eviction in July 2009 for failure to pay rent.
{¶23} In September 2009, Crisp filed a motion requesting that Flossie
Nichols, A.C.’s maternal grandmother, be granted legal custody of A.C.
{¶24} On March 18, 2010, the case proceeded to a dispositional hearing, at
which Crisp’s attorney made an oral motion for a continuance due to Crisp’s
absence. Specifically, trial counsel informed the trial court that he had not had
contact with Crisp for several months; that when he arrived in court, Crisp called
him and inquired into the time of the hearing and informed him that she was on
her way to the emergency room; and, that Crisp subsequently called his office and
informed them that she would not be in court. The trial court then denied the
motion, finding that Crisp was attempting to further delay the proceedings.
{¶25} Thereafter, Nancy Bernhard testified that she was a paralegal and
court liaison for Children’s Services; that a Putative Father Registry had been
certified by the State that indicated no putative father was registered for A.C.; that
B.C., one of Crisp’s children, was in the custody of his father, David McGue; that
the Hardin County Juvenile Court granted custody of another one of Crisp’s
children, W.C., to Shannon and William McKinley; and, that Crisp had
convictions in April 2009 for endangering children, criminal damaging, and
obstructing official business, a conviction in August 2009 for criminal trespassing,
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a second conviction for criminal trespassing in October 2009, and convictions in
December 2009 for disorderly conduct, intoxication, and assault.
{¶26} Kristin Warren testified that she was the quality improvement
coordinator and mental health therapist for the Marion Area Counseling Center
(“Counseling Center”); that Crisp attended mental health therapy sessions at the
Counseling Center; that Crisp failed to attend numerous appointments; and, that
Crisp was terminated from the care of the Counseling Center because she failed to
return for treatment.
{¶27} Brad Gerfen testified that he was employed as an intake investigator
for Children’s Services; that he was previously a caseworker for Children’s
Services and was assigned to Crisp’s case for a period of time; that Crisp met
some of the goals and objectives for the case plan, but failed to meet others; that
Crisp would “jump back and forth” between psychiatrists (dispositional hearing
tr., p. 19); that Crisp was initially living in a shelter in Marion, but moved to a
house where a friend paid rent on her behalf; that he conducted random drug
screenings of Crisp, and she passed all of those screenings; that, however, it was
later discovered those drug screenings were not producing accurate results, as they
would only show a positive test if the individual was impaired or actively using
drugs; that Crisp was arrested in December 2008 for disorderly conduct while
intoxicated; that Crisp did not have a job and was not paying her own rent or
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utilities; that, in order to assist Crisp in reuniting with A.C., Children’s Services
had her attend counseling sessions with Tim Brown at Community Counseling,
parenting classes, and psychiatric counseling; that he attempted to establish the
identity of A.C.’s father, but was unsuccessful; that, while presiding over
supervised visits between A.C. and Crisp, he observed an appropriate relationship
between the two; that, while he was the caseworker on Crisp’s case, A.C. was
returned to Crisp’s custody; and, that, when custody of A.C. was returned to Crisp,
she provided adequate food and an appropriate residence for the child.
{¶28} Matt Coldiron testified that he conducted case management at
Children’s Services, including case plans and case counseling with clients; that, on
February 8, 2009, he was contacted to respond to Marion General Hospital, as
A.C. was at the hospital after Crisp had been arrested; that he was not able to
contact Crisp after arriving at the hospital because she was incarcerated; that he
was ordered to request a removal of A.C. from Crisp’s custody due to the incident;
that A.C. was placed in foster care with the Sturm family; and, that he did not
attempt to contact any of Crisp’s relatives because he did not know the identity of
any of her relatives.
{¶29} Tim Brown testified that he was employed as a mental health and
addictions counselor at Community Counseling Services; that he counseled Crisp
sporadically from 2007 until November 2009; that Crisp made some progress
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during the time period, but was not making significant progress near the end; that
Crisp made statements to him that she continued to use drugs and alcohol; that, in
his opinion, Crisp needed to do a better job of establishing a stable home
environment, including abstaining from alcohol and drugs; that he took steps to
have Crisp admitted for inpatient treatment, but she did not want to participate;
that Crisp would often make future appointments as she left the counseling
sessions, but she missed many of those appointments; and, that Crisp was
discharged from the agency because she did not follow through with treatment.
{¶30} Brandy Page testified that she was employed with Children’s
Services and was Crisp’s caseworker since February 2009; that her case plan for
Crisp included mental health and substance abuse treatment, and a requirement
that Crisp maintain stable housing; that Crisp had seven children, all of whom
were with their respective fathers, with the exception of one child who was with
Crisp’s sister; that Crisp had three different addresses since she had been handling
her case; that she did visit the residence at which Crisp lived from February to July
of 2009, and it was an appropriate place for a child; that a man by the name of Tim
Roberts was paying Crisp’s rent on her behalf while she lived at that residence;
that Crisp had not held a job since she had been handling her case, and Crisp did
not receive any public assistance other than Medicaid; that she had not visited any
of Crisp’s other residences despite her requests to Crisp to do so; that Crisp
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reported on multiple occasions that she was residing in a shelter; that she
administered seven drug screenings to Crisp, and she tested positive for cocaine
and marijuana use on five occasions; that Crisp attended a detoxification program
at St. Rita’s hospital, but she tested positive for cocaine immediately after she
completed the program; that she offered to place Crisp in an inpatient drug-
addiction treatment center called Stepping Stones on multiple occasions, but Crisp
always declined the offer; that Crisp reported to her that she had been arrested
twenty-two times during the time period she served as Crisp’s caseworker, but she
was only able to verify eleven of those arrests; and, that Crisp informed her that
she had used masking agents to attempt to pass the drug screenings.
{¶31} Page further testified that she supervised visitation between Crisp
and A.C.; that Crisp attended most of the visitation appointments, and her
interaction with A.C. was appropriate; that A.C. had been in foster care and was
adjusting well, although she had experienced “some emotional issues related to * *
* not understanding the situation due to her young age” (id. at p. 50); that A.C. and
Crisp had a strong bond, and A.C. often threw temper tantrums when she was
forced to separate from Crisp; that these temper tantrums were more severe
following a visitation period where there had been an extended time between
visitations; that, if Crisp did not have a drug and mental-health problem, she
would have adequate parenting skills; that Crisp recently requested to be placed in
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the Stepping Stones inpatient drug-addiction treatment center, but that, in order to
refer her to the program, they must report that Crisp has been making progress in
her struggle with drug addition; that she had concerns about Crisp’s mental health,
as Crisp had been unstable for an extended period of time; that, since she had
served as Crisp’s caseworker, there had only been brief times where Crisp had
“done well” (id. at p. 56); that Crisp did not want assistance obtaining a job
because Crisp reported she could not work due to mental health issues and was
applying for social security; that, during the time she had acted as the caseworker,
there had not been an opportunity to reunify Crisp and A.C.; and, that, based upon
her experience and training, it was in A.C.’s best interest to be placed in the
permanent custody of Children’s Services.
{¶32} Page continued that A.C. and her foster parents had a very good
relationship; that she often referred to her foster mother as “mom” and referred to
their residence as her “home” (id. at p. 58); that, if A.C. was placed back with
Crisp, there would be risks, as Crisp uses very poor judgment when she is under
the influence of drugs or alcohol; that she investigated multiple family members
and friends of Crisp for placement, but none were appropriate; that, on a previous
occasion, A.C. was placed with Crisp’s mother, but Children’s Services requested
and was granted an emergency removal after her mother permitted Crisp to drive
A.C. to the emergency room while Crisp was under the influence of drugs or
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alcohol; that she had been unable to investigate the last two residence addresses
that Crisp gave to Children’s Services because Crisp told her that the men who
owned those homes did not want any involvement with Children’s Services; and,
that she did not know where Crisp presently resided.
{¶33} Doreen Sturm testified that she and her husband George Sturm had
been the foster parents to A.C. for most of the past two years; that A.C. did very
well in their home; that A.C. was integrated into the family and recognized herself
as a member of the family; that there was also an eight-year-old boy in the
residence; that he and A.C. had a brother/sister relationship, as they liked each
other, but also argued; that she and her husband had been foster parents for
approximately eight years; and, that, after A.C. had visitations with Crisp, she
would observe negative behaviors from A.C. for one or two days, including
aggressiveness.
{¶34} At the close of the presentation of evidence, Crisp’s attorney made
an oral motion for the trial court to order Crisp into an inpatient drug-addiction
treatment center, as Crisp previously requested, and the trial court denied the
motion. Additionally, at the close of the hearing, Children’s Services notified the
trial court that, according to its other staff members, Crisp never arrived at the
hospital despite her request for a motion to continue the hearing on that basis.
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{¶35} On March 26, 2010, the GAL filed his report stating that he visited
A.C. while she was in her foster home, and she appeared to be happy, well cared
for, and appropriately dressed; that, to the best of his knowledge, Crisp had not
been employed in the last two years; that Crisp informed him that she was
applying for social security benefits, but that she had not been awarded any
benefits; that Crisp had moved several times and had either lived in other people’s
homes or had someone pay her rent and utilities; that he did not know where she
presently resided; that Crisp had not attended any counseling sessions since
November 2009; that Crisp had been arrested many times for disorderly conduct
while intoxicated and for criminal trespassing; that most of the arrests were
alcohol related; that Crisp had informed him that she had a problem with abusing
alcohol and that she wanted to obtain help to overcome that problem; that,
although Crisp had substance abuse problems, if she were to become “clean and
sober and on her mental health medications, she [could] be a suitable parent to
[A.C.]” (GAL report, p. 3); that, however, he had concerns about Crisp being able
to keep A.C. safe until she was able to control her substance abuse problem and
exhibit a significant period of sobriety; that, because she had not been able to
control her alcohol and substance abuse problems in the past two years, he did not
believe Crisp could presently care for A.C.; that Crisp is “an intelligent, capable
woman * * * who has the requisite skills to care for a child. However, her
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addictions prevent her from being a good mother to her daughter and exhibiting
the decision making abilities that are necessary to be a parent.” (Id.) Finally, the
GAL report stated the following:
I hope that the court would consider a less restrictive alternative
than permanent custody, so that Ms. Crisp would have the
possibility of regaining custody of her daughter at some point in
the future, or at the very least to maintain visitation with [A.C.].
I would not recommend she have unsupervised visits, and
definitely not to have her daughter returned to her for a
substantial period of time until she has exhibited a period of
sobriety.
(Id. at p. 4).
{¶36} On March 30, 2010, the GAL testified that, since he was appointed
Crisp’s GAL in January 2008, he had not known Crisp to be employed; that she
had also had two or three different residences during this time, and that he often
had difficulty contacting her; that, for the past eighteen months, Crisp had not
been able to care for a child, and that it would not be in the child’s best interest to
be placed with Crisp; that Crisp’s aunt came forward on March 15, 2010, and
expressed her interest in obtaining custody of A.C., but she had never come
forward before this time, and she had not filed a motion with the trial court; and,
that reunification between Crisp and A.C. was not possible, and that permanent
custody was the only option.
{¶37} The GAL continued that Crisp had a bond with A.C.; that A.C. loved
Crisp; that, if Crisp were involved in the rehabilitation program at Stepping Stones
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for a period of time, he would be willing to consider having A.C. returned to Crisp
while she is in the program; that Crisp informed him that her mother was not
interested in having custody of A.C.; that he would like to see Crisp reunited with
A.C., but that he did not see how anything other than permanent custody could be
granted to Children’s Services because of Crisp’s drug and alcohol problem and
because the case had been ongoing for over two years; and, that he did not think
A.C. would be harmed if Children’s Services was granted permanent custody.
{¶38} In April 2010, the trial court granted Children’s Services motion for
permanent custody, stating the following in its judgment entry:
The Court, in making findings of fact, has considered all the
evidence admitted. * * * The Court does not make findings of
fact as to every piece of evidence. The omission of the Court to
make a specific finding does not suggest that the Court did not
consider the fact in arriving at the ultimate decision.
***
Mother has failed to make significant progress under the Case
Plan from February, 2009, to date. Mother has changed
residences three (3) times, and is currently homeless and her
whereabouts are unknown. Tammy Crisp is currently
unemployed, and without any income. She admittedly continues
abusing drugs and alcohol, and of the seven (7) drug screens
administered, she tested positive five (5) times for cocaine and
marijuana. Mother was referred for mental health counseling
and only sporadically attended and eventually was terminated
from treatment due to failure to keep appointments. * * *
***
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The Foster Mother indicated that [A.C.] has lived with her and
her family a majority of the past three (3) years, with the
exception of approximately three (3) months when she returned
to Mother. She testified that A.C. has become integrated in their
family, and she considers her eight year old son her brother, and
refers to her as Mom. * * * She further stated she is a stay at
home mom, and has observed some negative behaviors by [A.C.]
following visits with her mother, such as temper tantrums. The
negative behaviors also seem to be worse after extended absences
of [A.C.] not seeing her mother. * * *
***
* * * [A.C.] has been in the temporary custody of [Children’s
Services] from January, 2008 to November 2008, and from
February, 2009, to the present, or approximately twenty-three
(23) months of the last twenty-six (26) months, and she has
continued to reside in her current foster home placement during
that time. This continued placement is the direct result of
Mother’s inability and/or refusal to abstain from the abuse of
alcohol and drugs. Due to Mother’s continued substance abuse,
she has failed to provide suitable support for her daughter. * * *
Mother’s current circumstances of addiction, lack of
employment, homelessness and untreated mental illness do not
present any opportunity for return of her daughter within a
reasonable time or in the foreseeable future.
Tammy Crisp has seven (7) children, all of which have been
removed from her care and custody. She continued to admit
abuse of alcohol and drugs, and this is evidenced by her positive
drugs screens and her most recent arrest for Disorderly Conduct
on March 8, 2010. * * *
This Court finds by clear and convincing evidence, that it is in
the best interest of [A.C.] to approve the Motion filed by
[Children’s Services] and grant permanent custody of [A.C] to
Marion County Children’s Services. In examining the factors
contained in Ohio Revised Code Section 2141.414(D), including
all other relevant factors presented, continuing her current
placement with the foster care family is in her best interests.
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[A.C.] has resided outside the care and custody of her mother for
twenty-three (23) of the past twenty-six (26) months, is
flourishing in her current placement, and is in need and
deserving of a legally secure permanent placement. The current
and continuing circumstances of Tammy Crisp prevent this
from occurring without a grant of permanent custody to Marion
County Children Services. Mother’s substance abuse, failure to
maintain treatment, continued unemployment and failure to
maintain adequate housing indicates she has decided not to
reunify with her daughter, but prefers her current life choices
over the needs of her daughter.
The Court finds by clear and convincing evidence that [A.C.]
cannot be placed with her mother within a reasonable period of
time and further should not be placed with her due to her
current circumstances, with no expectation for improvement in
the foreseeable future. Pursuant to Ohio Revised Code Section
2151.414(E)(1), Tammy Crisp has failed to remedy the
conditions which caused removal of her daughter for placement
outside of her home. Mother has failed to comply with the Case
Plan developed for this family * * *. Tammy Crisp has refused
to enter treatment for her substance abuse and addiction, failed
to obtain/maintain suitable housing and employment and
refused mental health treatment required for her to provide for
the needs of her daughter.
In addition, Tammy Crisp has demonstrated a lack of
commitment toward her daughter by her failure to regularly
support and visit her, and her inability to provide an adequate
permanent home pursuant to Ohio Revised Code Section
2151.414(E)(4). Mother’s failure to comply with the Case Plan,
frequent incarceration and current lack of housing and
employment, continued drug and alcohol abuse and refusal of
treatment clearly demonstrates an unwillingness to provide for
the basic needs of [A.C.] pursuant to Ohio Revised Code Section
2151.414(E)(14).
The Court having considered all relevant factors contained in
Ohio Revised Code Sections 2151.414(E)(1) through (16) finds
by clear and convincing evidence * * * that Mother, Tammy
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Crisp, is unable to provide for the care of her daughter, [A.C.]
and therefore, the Motion of the Marion County Children
Services for Permanent Custody of [A.C.] is hereby granted.
(Apr. 2010 Judgment Entry, pp. 1-8)
{¶39} It is from this judgment that Crisp appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT’S MOTION FOR CONTINUANCE.
Assignment of Error No. II
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY GRANTING APPELLEE’S MOTION FOR PERMANENT
CUSTODY WHEN THERE WAS NOT CLEAR AND
CONVINCING EVIDENCE FOR THE TRIAL COURT TO
FIND THAT THE MINOR CHILD SHOULD NOT BE
PLACED WITH APPELLANT AND THAT IT WAS IN THE
BEST INTEREST OF THE CHILD TO BE PLACED IN THE
PERMANENT CUSTODY OF APPELLEE.
Assignment of Error No. I
{¶40} In her first assignment of error, Crisp argues that the trial court
abused its discretion in denying her motion for a continuance of the permanent
custody hearing. Specifically, she contends that the legitimacy of her delay,
caused by her need to go to the hospital, coupled with the importance of the
proceedings and the insignificant inconvenience to the parties necessitated a
continuance. We disagree.
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{¶41} An appellate court reviews a trial court’s ruling on a motion for a
continuance for an abuse of discretion. In re R.C., 3d Dist. No. 16-09-11, 16-09-
12, 16-09-13, 2010-Ohio-3800, ¶20, citing In re T.C., 140 Ohio App.3d 409,
2000-Ohio-1769. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18,
citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶42} ‘“The review of a decision on a motion for continuance requires the
appellate court to apply a balancing test, weighing the trial court’s interest in
controlling its own docket, including facilitating the efficient dispensation of
justice, versus the potential prejudice to the moving party.’” Gabel v. Gabel, 3d
Dist. No. 9-04-13, 2004-Ohio-4292, ¶12, quoting Burton v. Burton (1999), 132
Ohio App.3d 473, 476, 1999-Ohio-844. Furthermore, the factors a court must
consider in deciding a motion for a continuance include the length of the delay
requested, whether previous continuances have been granted, the inconvenience to
the parties, witnesses, attorneys, and the court, whether the request is reasonable or
purposeful and contrived to delay the proceedings, and whether the movant
contributed to the circumstances giving rise to the request. Hendricks v.
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Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶16, citing Gabel, 2004-Ohio-
4292, at ¶12.
{¶43} In the case sub judice, Crisp’s attorney made an oral motion for a
continuance on the basis that Crisp called and informed him that she would not be
able to attend the hearing because she needed to go to the hospital. While this
may appear to be a valid reason for the trial court to grant the continuance, no
evidence was ever submitted, either prior or subsequent to the hearing, that Crisp
actually went to the hospital, and her attorney’s statements were not evidence on
the matter. See, generally, Calex Corp v. United Steelworkers of Am. (2000), 137
Ohio App.3d 74, 86. Additionally, a number of other continuances had been
granted in this case, and the case had been pending in the trial court for over a year
and a half. Although the other continuances were not on account of requests by
Crisp, a continuance would have resulted in several more months of delays, and
the trial court had a duty to resolve this case as quickly as possible for the best
interest of the child. Moreover, while we recognize the importance of a parent’s
due process right to attend a permanent custody hearing, In re J.W., 9th Dist. No.
24924, 2009-Ohio-6957, ¶20, such right is not absolute, see In re P.J., 11th Dist.
Nos. 2008-A-0047, 2008-A-0053, 2009-Ohio-182, ¶68, and we must also give
deference to the trial court’s finding that Crisp’s motion to continue was for
purposes of delaying the proceedings, which is further supported by the lack of
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evidence demonstrating the legitimacy of her request. Finally, we note that Crisp
had not been in communication with her attorney for several months prior to the
hearing, and that she alleges no specific prejudice as a result of proceeding with
the hearing in her absence.
{¶44} Consequently, we find that the trial court did not abuse its discretion
in denying Crisp’s motion for a continuance.
{¶45} Accordingly, we overrule Crisp’s first assignment of error.
Assignment of Error No. II
{¶46} In her second assignment of error, Crisp argues that the trial court
erred by granting permanent custody to Children’s Services. Specifically, she
contends that clear and convincing evidence was not presented that A.C. could not
be placed with her, and that it was in A.C.’s best interest to be placed in the
permanent custody of Children’s Services. We disagree.
{¶47} In reviewing a grant of permanent custody, it is important to first
note that “the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990), 52 Ohio St.3d
155, 157. Although parents have a fundamental liberty interest in the upbringing
of their children, those rights are not absolute. In re Thomas, 3d Dist. No. 5-03-
08, 2003-Ohio-5885, ¶7, citing Murray, 52 Ohio St.3d at 157. Parental rights “are
always subject to the ultimate welfare of the child, which is the polestar or
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Case No. 9-10-30
controlling principle to be observed.” In re Cunningham (1979), 59 Ohio St.2d
100, 106 (citation omitted).
{¶48} All permanent custody determinations made under R.C. 2151.414
must be supported by clear and convincing evidence. In re Hiatt (1993), 86 Ohio
App.3d 716, 725. Clear and convincing evidence is “[t]he measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established. It is intermediate, being more than a
mere preponderance, but not to the extent of such certainty as required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
In re Estate of Haynes (1986), 25 Ohio St.3d 101, 104. In determining whether
the trial court’s finding was supported by clear and convincing evidence, appellate
courts “examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross v. Ledford
(1954), 161 Ohio St. 469, 477, citing Ford v. Osborne (1887), 45 Ohio St. 1; Cole
v. McClure (1913), 88 Ohio St. 1; Frate v. Rimenik (1926), 115 Ohio St. 11. As
such, an appellate court must resolve whether the trial court’s determination is
supported by competent, credible evidence, Jones v. Lucas Cty. Children Serv. Bd.
(1988), 46 Ohio App.3d 85, 86, and, absent a finding of abuse of discretion, as set
forth in our disposition of Crisp’s first assignment of error, the trial court’s
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determination will be upheld. In re Robison, 3d Dist. No. 5-07-41, 2008-Ohio-
516, ¶8, citing Masters v. Masters (1994), 69 Ohio St.3d 83, 85, 1994-Ohio-483.
{¶49} Once a child has been adjudicated dependent, neglected, or abused, a
children’s services agency may elect to seek permanent custody either at the initial
disposition hearing pursuant to R.C. 2151.353 or at a post-dispositional hearing
pursuant to R.C. 2151.414 by filing a motion under R.C. 2151.413. In re Burton,
3d Dist. No. 10-04-01, 2004-Ohio-4021, ¶9.
{¶50} Permanent custody determinations made via a post-dispositional
hearing require a two-prong analysis. First, the trial court must determine whether
any conditions set forth under R.C. 2151.414(B)(1) or (2) are present. If a
condition is found, the trial court then determines whether permanent custody is in
the best interest of the child. See In re Scott, 3d Dist. No. 13-07-18, 2007-Ohio-
6426, ¶31.
{¶51} R.C. 2151.414(B)(2) provides as follows:
With respect to a motion made pursuant to division (D)(2) of
section 2151.413 of the Revised Code, the court shall grant
permanent custody of the child to the movant if the court
determines in accordance with division (E) of this section that
the child cannot be placed with one of the child’s parents within
a reasonable time or should not be placed with either parent and
determines in accordance with division (D) of this section that
permanent custody is in the child’s best interest.
(1) Following the placement of the child outside the child’s
home * * *, the parent has failed continuously and repeatedly to
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substantially remedy the conditions causing the child to be
placed outside the child’s home.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(14) The parent for any reason is unwilling to provide food,
clothing, shelter, and other basic necessities for the child or to
prevent the child from suffering physical, emotional, or sexual
abuse or physical, emotional, or mental neglect;
***
(16) Any other factor the court considers relevant.
R.C. 2151.414(E)(1), (4), (14), (16).
{¶52} If the trial court finds that the child cannot be placed with one of the
child’s parents within a reasonable time or that the child should not be placed with
either parent based upon the factors set forth in R.C. 2151.414(E), the trial court
then must move to the second prong of the analysis and determine whether a grant
of permanent custody is in the best interest of the child. R.C. 2151.414(D) sets
forth a list of non-exclusive factors the court may use in making this
determination. These factors are, in pertinent part:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of
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home providers, and any other person who may significantly
affect 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.
R.C. 2151.414(D)(1)(a), (c), (d).
{¶53} In the case at bar, the trial court found several of the R.C.
2151.414(E) factors present to support a finding that A.C. could not be placed with
Crisp within a reasonable time and should not be placed with Crisp, and these
findings were supported by the testimony at the hearing.
{¶54} Crisp’s initial caseworker, Gerfen, testified that Crisp was living in a
shelter in Marion for some time, but then moved to a house where the rent was
paid by one of her friends; that Crisp did not have a job to support herself; and,
that, although Crisp passed multiple drug screenings, it was later discovered that
those screenings were not producing accurate results.
{¶55} Crisp’s second caseworker, Page, testified that Crisp was never
employed while she was her caseworker; that Crisp tested positive for cocaine and
marijuana on five occasions; that Crisp attended a detoxification program at St.
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Rita’s Hospital but failed a drug screening shortly after completing the program;
that she offered to place Crisp in an inpatient drug-addiction treatment center
called Stepping Stones on multiple occasions, but Crisp always declined the offer;
that she verified Crisp was arrested eleven times during the period in which she
served as Crisp’s caseworker; that she had concerns about Crisp’s mental health,
as Crisp had been unstable for an extended period of time; that she had been
unable to investigate the last two residency addresses that Crisp gave Children’s
Services because Crisp told her that the men who owned those homes did not want
any involvement with Children’s Services; and, that she did not know where Crisp
presently resided.
{¶56} Crisp’s counselor, Brown, testified that Crisp made some progress
from 2007 until November 2009, but very little progress in the later half of that
time period; that Crisp admitted to drug and alcohol use; that Crisp needed to
establish a stable home environment; that he took steps to have Crisp admitted for
inpatient treatment, but she did not want to participate; that Crisp would often
make future appointments as she left the counseling sessions, but she missed many
of those appointments; and, that Crisp was discharged from the agency because
she did not follow through with treatment.
{¶57} Additionally, the GAL’s report stated that Crisp had moved several
times and had either lived in other people’s homes or had someone pay her rent
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and utilities; that he did not know where Crisp currently resided; that Crisp had not
attended any counseling sessions since November 2009; that Crisp had been
arrested many times for disorderly conduct while intoxicated and for criminal
trespassing; that most of the arrests were alcohol related; that he had concerns
about Crisp being able to keep A.C. safe until Crisp was able to control her
substance abuse problem; and, that, because Crisp had not been able to control her
alcohol and substance abuse problems in the past two years, he did not believe
Crisp could presently care for A.C. Moreover, the GAL also testified that
reunification between Crisp and A.C. was not possible, and that permanent
custody was the only option.
{¶58} Based upon the evidence presented, we find that the trial court’s
findings that Crisp demonstrated a lack of commitment toward A.C. by failing to
regularly support and visit her and provide an adequate permanent home; that
Crisp’s lack of housing and employment, continued drug and alcohol abuse, and
refusal of treatment demonstrated an unwillingness to provide for A.C’s basic
needs; and, that Crisp failed to remedy the conditions which caused A.C.’s
removal were supported by clear and convincing evidence.
{¶59} Moreover, we also find that the trial court considered the best
interest factors under R.C. 2151.414(D) and that the trial court’s finding that a
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grant of permanent custody to Children’s Services was in A.C.’s best interest was
supported by clear and convincing evidence.
{¶60} The trial court specifically found that A.C. had been in the custody
of Children’s Services for twenty-three of the previous twenty-six months; that
A.C. was flourishing in her current foster home placement; and, that A.C. was in
need of a secure permanent placement, but Crisp’s current and continuing
circumstances prevented this from occurring without a grant of permanent custody
to Children’s Services.
{¶61} Additionally, A.C.’s foster parent, Sturm, testified that A.C. had
adjusted very well in their home, and that A.C. was integrated into the family.
Page testified that A.C. and her foster parents had a very good relationship; that
she often referred to her foster mother as “mom” and referred to the their residence
as her home; that, if A.C. was placed back with Crisp, there would be risks, as
Crisp uses very poor judgment when she is under the influence of drugs or
alcohol; that, during the time she had acted as the caseworker, there was not an
opportunity to reunify Crisp and A.C.; and, that, based upon her experience and
training, it was in A.C.’s best interest to be placed in the permanent custody of
Children’s Services. Finally, the GAL testified that it would not be in A.C’s best
interest to be placed back with Crisp.
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{¶62} Consequently, because we conclude that the trial court found that the
factors supporting a grant of permanent custody to Children’s Services were
present under R.C. 2151.414(E); that the trial court considered the best interest
factors of R.C. 2151.414(D) when awarding permanent custody to Children’s
Services; and, that all of the trial court’s findings were supported by clear and
convincing evidence, we find there to be no abuse of discretion in the trial court’s
award of permanent custody to Children’s Services.
{¶63} Accordingly, we overrule Crisp’s second assignment of error.
{¶64} 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
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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