In re H.S.

[Cite as In re H.S., 2013-Ohio-2155.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: H.S. :
CASE NO. CA2013-02-012
:
OPINION
: 5/28/2013
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2010JC04122
Matthew V. Faris, 40 South Third Street, Batavia, Ohio 45103, Guardian Ad Litem
Dever Law Firm, Scott A. Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio
45069, for appellant
D. Vincent Faris, Clermont County Prosecuting Attorney, 76 South Riverside Drive, 2nd
Floor, Batavia, Ohio 45103, for appellee
S. POWELL, J.
{¶ 1} Appellant, the biological mother of H.S., appeals a decision of the Clermont
County Court of Common Pleas, Juvenile Division, granting permanent custody of the child to
the Clermont County Department of Job and Family Services.
{¶ 2} Appellant, who is serving a four-year sentence for child endangering, gave birth
to H.S. while in prison. The child was placed in the emergency custody of Clermont County
Department of Job and Family Services. A dependency complaint indicated that appellant
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was initially charged with involuntary manslaughter and two counts of child endangering for
her role in the death of her first child. The complaint further indicated that appellant is
serving a four-year sentence after pleading guilty to one count of child endangering. H.S.
was adjudicated a dependent child and temporary custody was granted to the agency.
Paternity was established and case plan services were provided to the father. Reunification
with the father was not successful, and the father surrendered his parental rights.
{¶ 3} The agency filed for permanent custody of H.S. on May 17, 2012, alleging that
the child could not be placed with either of her parents within a reasonable time and that
permanent custody was in the child's best interest. Appellant filed a motion requesting to be
conveyed from Dayton Correctional Institution to the permanent custody hearing. The court
denied the motion, and indicated that the mother's testimony could be presented by alternate
means, such as a deposition, and a continuance would be granted if necessary.
{¶ 4} At the hearing, appellant was represented by counsel, who cross-examined the
agency's witnesses. Appellant's testimony was not presented, nor mentioned at the hearing.
The magistrate granted the agency's motion for permanent custody. Appellant filed
objections to the magistrate's decision, including an objection to the court's failure to convey
her to the hearing. The trial court overruled the objections and adopted the magistrate's
decision.
{¶ 5} Appellant now appeals the trial court's decision to grant permanent custody of
H.S. to the agency and raises a single assignment of error for our review:
{¶ 6} IN AN ACTION PERMANENTLY STRIPPING A MOTHER OF CUSTODY OF
HER DAUGHTER, THE TRIAL COURT ERRED IN DENYING THE MOTHER'S MOTION TO
CONVEY TO ALLOW HER TO ATTEND THE TRIAL; DEPRIVING HER OF HER RIGHT TO
DUE PROCESS.
{¶ 7} Because the right to raise one's child is a recognized as a fundamental right,
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parents are entitled to due process when the state seeks to terminate this relationship
through permanent custody proceedings. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388; In re Hayes, 79 Ohio St. 3d 46, 48. The basic consideration of due process is whether
the person had the opportunity to be heard at a meaningful time and in a meaningful manner.
Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976); In re J.M., 12th Dist. No.
CA2008-01-004, 2008-Ohio-6763. Due process of law "implies in its most comprehensive
sense, the right of the person affected * * * to be heard, by testimony or otherwise, and to
have the right of controverting, by proof, every material fact which bears on the question of
the right involved." Williams v. Dollison, 62 Ohio St. 2d 297 (1980). Due process "is flexible
and calls for such procedural protections as the particular situation demands." Matthews at
334.
{¶ 8} While an incarcerated individual does not have an absolute right to appear in a
civil case in which she is a party, that same parent has a fundamental parental right with
regards to her children. In re Sprague, 113 Ohio App. 3d 274 (12th Dist.1996). Generally,
there is no due process violation when an incarcerated parent does not appear at a parental
rights termination hearing, as long as the parent has alternate means of participating. In re
S.F.T., 12th Dist. Nos. CA2010-02-043, CA2010-02-044, CA2010-02-045, CA2010-02-046,
2010-Ohio-3706.
{¶ 9} In determining whether a parent's due process rights were violated in a parental
rights termination hearing, courts apply the test set forth by the United States Supreme Court
in Matthews v. Eldridge. See e.g., Sprague at 276; In re C.M., 9th Dist. CA Nos. 23606,
23608, 23609, 2007-Ohio-3999. Under this test, courts 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. Matthews
at 335.
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{¶ 10} With regard to the first factor, as indicated above, a parent has a fundamental
right to raise her child. With regard to the second factor, in this case, the risk of erroneous
deprivation was low. Appellant was incarcerated for the death of her first child and was
serving a four-year sentence. She has not had contact with H.S. since birth. She was
represented by counsel at the permanent custody hearing. A full record of the proceedings
was made and appellant had the opportunity to present testimony by alternate means, with
the court indicating it would grant a continuance for this purpose if necessary. This court has
previously held there is no due process violation under nearly identical factual circumstances.
See Sprague.
{¶ 11} Although appellant argues that she was indigent and could not afford to provide
a deposition, nothing in the record indicates appellant made any type of request to the trial
court in regards to payment of the deposition costs. In addition, appellant could have used
other, less-costly, means to present testimony, such as an affidavit. See In re Adoption of
Rogers, 11th Dist. No. 2002-T-0171, 2003-Ohio-1424.
{¶ 12} In considering the final Matthews factor, we note that appellant argues the cost
of transport from Dayton to Clermont County would not be considerable, and that she was
not a safety risk. However, in any transport some cost and safety interest exists. In
considering and weighing this factor along with the other Matthews factors, we find
appellant's due process rights were adequately protected. Accordingly, the trial court did not
err in denying appellant's request to convey her to the hearing.
{¶ 13} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
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