In re B.D.

[Cite as In re B.D., 2022-Ohio-2555.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: B.D. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Case No. 2021 CA 00091
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. F2019-0072
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 25, 2022
APPEARANCES:
For Appellee For Appellant J.S.
WILLIAM C. HAYES ANDREW E. RUSS, ESQ.
Licking County Prosecutor P.O. Box 520
Pickerington, Ohio 43147
BRANDON PIGG
Assistant Prosecuting Attorney For Chester Dye
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 JERMAIN COLQUITT
35 E. Gay Street
Guardian Ad Litem Suite #212-A
Columbus, Ohio 43215
J. MICHAEL NICKS
96 W. William Street
Suite #100
Delaware, Ohio 43015
Licking County, Case No. 2021 CA 00091 2
Hoffman, P.J.
{¶1} Appellant Jennifer Small (“Mother”) appeals the February 25, 2022
Opinion/Judgment entered by the Licking County Court of Common Pleas, Juvenile
Division, which overruled her objections to the magistrate’s October 13, 2021 decision,
recommending her parental rights with respect to her minor child (“the Child”) be
terminated; approved and adopted said decision as order of the court; and granted
permanent custody of the Child to appellee Licking County Job and Family Services
(“LCJFS”).
STATEMENT OF THE CASE AND FACTS
{¶2} Mother and Chester Dye1 are the biological parents of the Child. LCJFS
became involved with the family in late January, 2019, due to concerns about Mother’s
substance abuse and her allowing other individuals to use drugs in her home. LCJFS
attempted to help Mother resolve these issues by recommending means for her to detox,
maintain sobriety, and remove individuals using drugs from her home. On January 25,
2019, Mother admitted she had used methamphetamine and marijuana as recently as
January 17, 2019. After Mother was arrested for felony theft of a credit card on February
6, 2019, LCJFS sought an ex parte order of removal of the Child. The following day,
February 7, 2019, LCJFS filed a Complaint, alleging the Child was dependent. The same
day, the trial court placed the Child in the emergency shelter care custody of LCJFS. The
trial court appointed Attorney Michael Nicks as Guardian ad Litem (“GAL”) for the Child.
{¶3} Following an adjudicatory and dispositional hearing on March 25, 2019, the
trial court found the Child to be dependent and placed him in the temporary custody of
1 Dye is not a party to this Appeal.
Licking County, Case No. 2021 CA 00091 3
Mother with an order of protective supervision to LCJFS. LCJFS filed a case plan on
March 8, 2019, which the trial court adopted at the hearing and incorporated into its
decision filed March 25, 2019.
{¶4} LCJFS filed a Motion for Modification of Disposition and Motion for
Temporary Custody on July 26, 2019. Therein, LCJFS explained Mother tested positive
for methamphetamine on June 27, and July 22, 2019, and, despite the case worker’s
attempts, Mother had not yet engaged in substance abuse treatment. On July 25, 2019,
after LCJFS received Mother’s positive test results, the trial court granted an ex parte
order of removal and, on July 26, 2019, placed the Child in the emergency shelter care
custody of LCJFS. Following a hearing on LCJFS’s motion for modification on October
10, 2019, the magistrate placed the Child in the temporary custody of LCJFS. October
21, 2019 Magistrate’s Decision at 2, unpaginated.
{¶5} On January 2, 2020, LCJFS filed a Motion to Modify Disposition, seeking
an extension of temporary custody. Via Judgment Entry filed January 27, 2020, the trial
court extended the order of temporary custody until August 6, 2020, the day on which the
extension period terminated by operation of law. LCJFS filed a Motion to Modify
Disposition on July 6, 2020, seeking a six-month extension of the order of temporary
custody. Via Judgment Entry filed July 31, 2020, the trial court extended the order of
temporary custody until February 6, 2021.
{¶6} On January 6, 2021, LCJFS filed a motion for permanent custody. The trial
court scheduled a hearing on the motion for April 16, 2021.
{¶7} On April 15, 2021, Mother filed a motion to continue the permanent custody
hearing. Mother appeared at the courthouse the following day. She advised her attorney
Licking County, Case No. 2021 CA 00091 4
she did not wish to continue the hearing and stated she agreed with LCJFS’s motion for
permanent custody. When court personnel looked for Mother, they found she had left the
courthouse.
{¶8} The matter proceeded to hearing. Matthew Tracy, an ongoing social worker
with LCJFS, testified he was assigned to the matter in May, 2019. Tracy explained LCJFS
became involved with the family in late January, 2019, due to allegations of drug use,
Mother allowing individuals to use drugs in her home, and an investigation into whether
Mother was manufacturing narcotics in the home. The intake worker initially worked with
Mother on a non-court basis, however, on February 6, 2019, LCJFS was notified Mother
was going to be arrested and sought an ex-parte order of removal of the Child.
{¶9} Tracy explained, when he was assigned the case, he attempted to meet
with Mother. Mother did not respond to his calls and would not meet with him. Tracy
found Mother after he did a surprise visit at the end of June, 2019. Tracy tried to get
Mother into drug treatment, provided her with contact information, and even made an
appointment for her with The Village Network. Mother did not present for the appointment.
Tracy made another appointment, however, five minutes before the appointment was to
begin, Mother called and cancelled. At a semi-annual review hearing on July 22, 2019,
Mother tested positive for methamphetamines.
{¶10} Tracy noted Mother understood the case plan requirements. Mother did not
feel she had a drug issue and disagreed with that aspect of the case plan. The case plan
required Mother, who was on probation for theft, to follow the directions of her probation
officer and complete probation; maintain stable employment; maintain clean and stable
Licking County, Case No. 2021 CA 00091 5
housing; undergo a drug assessment; provide drug screens; and engage in substance
abuse and mental health treatment.
{¶11} Between March, 2020, and July, 2020, Mother participated in substance
abuse treatment at STAR and Courage House. Following completion of the programs,
Mother continued to abuse methamphetamines. Mother tested positive for
methamphetamines every month from July, 2020, through the date of the hearing. The
only month during which Mother did not have a positive drug screen was February, 2021,
because Tracy was unable to locate her to administer the screen. Despite the positive
results, Mother denied using drugs. In addition, Mother continued to allow individuals to
use drugs in her home.
{¶12} Tracy also testified regarding the best interest of the Child. Tracy indicated
the Child does not have any special needs. Although he had some speech problems at
the beginning of the case, the problems were addressed and resolved. The Child is doing
well in his placement and the foster parents have expressed an interest in adopting him.
He is a fun, active child. The GAL stated the foster family has maintained and will
continue to maintain a relationship between Mother and the Child. The GAL noted Mother
lacks a bond with the Child. The GAL opined granting permanent custody of the Child to
LCJFS would be in the Child’s best interest.
{¶13} Via decision filed on October 13, 2021, the magistrate granted LCJFS’s
motion for permanent custody and terminated Mother’s parental rights. The magistrate
found the Child could not be placed with Mother within a reasonable time and should not
be placed with Mother as Mother continuously and repeatedly failed to remedy the
concerns which led to the Child's removal, demonstrated a lack of commitment towards
Licking County, Case No. 2021 CA 00091 6
the Child, and had abandoned the Child. The magistrate concluded it was in the best
interest of the Child to grant permanent custody to LCJFS. The trial court approved and
adopted the magistrate's decision via Judgment Entry filed October 13, 2021. Mother
filed general objections to the magistrate's decision on October 26, 2021.
{¶14} On November 12, 2021, Mother filed a Notice of Appeal from the October
13, 2021 Magistrate’s Decision with this Court. The trial court granted Mother an
extension until January 19, 2022, to file her supplemental objections. Mother filed
supplemental objections on January 20, 2022.
{¶15} This Court remanded the matter, ordering the trial court to rule on Mother’s
pending objections and any other related matters on or before February 28, 2022. Jan.
26, 2022 Judgment Entry. Via Opinion/Judgment Entry filed February 25, 2022, the trial
court overruled Mother's objections, and approved and adopted the magistrate’s October
13, 2021 decision as order of the court.
{¶16} It is from this judgment entry Mother appeals, raising the following
assignments of error:
I. THE TRIAL COURT’S FAILURE TO GRANT A CONTINUANCE
OF THE PERMANENT CUSTODY HEARING TO ALLOW APPELLANT TO
SUBPOENA HER WITNESSES, BE PRESENT IN PERSON AT THE
HEARING, HAVE AN OPPORTUNITY TO PREPARE, AND PRESENT
HER CASE RESULTED IN APPELLANT BEING DENIED HER RIGHT TO
DUE PROCESS WHEN HER WISHES WERE UNCLEAR.
Licking County, Case No. 2021 CA 00091 7
II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
MOTHER’S MOTION TO CONTINUE THE PERMANENT CUSTODY
HEARING WHEN HER WISHES WERE UNCLEAR.
III. THE TRIAL COURT FAILED TO DETERMINE BY CLEAR AND
CONVINCING EVIDENCE THAT APPELLANT INTELLLIGENTLY [SIC],
VOLUNTARILY, AND KNOWNINGLY [SIC] WAIVED HER RIGHT OF DUE
PROCESS IN PARTICIPATING IN THE PERMANENT CUSTODY
HEARING WHEN HER WISHES WERE UNCLEAR.
{¶17} This case came to us on the expedited calendar and shall be considered in
compliance with App. R. 11.2(C).
I, II
{¶18} We elect to address Mother’s first and second assignments of error
together. In her first assignment of error, Mother contends she was denied her
constitutional right to due process because the trial court’s failure to grant a continuance
of the permanent custody hearing prevented her from subpoenaing witnesses, being
present in person at the hearing, and having an opportunity to prepare and present her
case. In her second assignment of error, Mother asserts the trial court abused its
discretion in denying her motion to continue because her intentions were unclear.
{¶19} An appellate court will not reverse a denial of a continuance in a permanent
custody case unless the juvenile court abused its discretion. In re A.U., 10th Dist. Franklin
No. 20AP-594, 2021-Ohio-2658, ¶ 11. In reviewing a juvenile court's decision to deny a
continuance, an appellate court conducts a balancing test, weighing any potential
Licking County, Case No. 2021 CA 00091 8
prejudice to the movant against the juvenile court's ability to control its own docket and
promptly and efficiently affect justice. In re D.E., 10th Dist. Franklin Nos. 20AP-83 and
20AP-85, 2021-Ohio-524, ¶ 42.
{¶20} Prior to the presentation of the evidence relative to Mother and after a
lengthy discussion, infra, Attorney Scott Sidner, counsel for Mother, withdrew the motion
to continue. Transcript of April 16, 2021 Hearing at 23.
{¶21} As there was no pending motion before the trial court, we find the trial court
did not abuse its discretion in failing to grant a continuance. See, State v. McDaniel, 9th
Dist. Summit No. 25492, 2011–Ohio–5001, ¶12. We further find, because Mother
withdrew her motion, the trial court’s failure to grant a continuance did not violate her
constitutional right to due process.
{¶22} We note the trial court stated its “intention was to go forward with half of the
case today and then continue so Mom could bring those witnesses in so granted in part
and denied in part.” Tr. at 10. The trial court added:
However, since then, we’ve – Mr. Sidner has had some conversation
with his client and she has changed that position. She was here initially at
8:30 when we got started. It is now almost 10 to 10 and she is no longer
out in the hall, left the courthouse, but did indicate to her attorney what she
wanted to do today. Id.{¶23} It was Mother’s own decision to allow her counsel to withdraw the motion to
continue which prevented her from subpoenaing witnesses, being present in person at
Licking County, Case No. 2021 CA 00091 9
the hearing, and having an opportunity to prepare and present her case. Mother cannot
now blame the trial court for her decision.
{¶24} Mother’s first and second assignments of error are overruled.
III
{¶25} In her third assignment of error, Mother maintains the trial court failed to
determine by clear and convincing evidence Mother intelligently, voluntarily, and
knowingly waived her due process right to participate in the permanent custody hearing.
{¶26} The United State Supreme Court has determined parents have a
fundamental liberty interest in the care, custody, and management of their children.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This
interest is protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution and by Section 16, Article I of the Ohio Constitution. In re
Shaeffer Children, 85 Ohio App.3d 683, 689–690, 621 N.E.2d 426 (1993).
{¶27} Ohio courts have recognized parents have a constitutionally protected right
to be present at permanent custody hearings, but such right is not absolute, for example,
as when the parent is incarcerated. See, e.g., In re C.M., 9th Dist. Summit Nos. 23606,
23608, 23629, 2007–Ohio–3999, ¶ 14. The fundamental requirement of due process is
an opportunity to be heard “at a meaningful time and in a meaningful manner.” In re T.B.,
5th Dist. Tusc. No. 2019 AP 01 0005, 2019-Ohio-1742, ¶22, citing Mathews v. Eldridge,
424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
Accordingly, a parent's due process right to be heard could be satisfied by arranging for
the parent’s presence at the permanent custody hearing or by an alternate method of
meaningful participation. Id. (Citation omitted).
Licking County, Case No. 2021 CA 00091 10
{¶28} The April 16, 2021 permanent custody hearing involved not only the Child,
but also Mother’s older child (“Child 2”). John Small, father of Child 2, filed a motion for
legal custody prior to the hearing. LCJFS advised the trial court it agreed with Small’s
motion and withdrew its motion for permanent custody relative to Child 2. LCJFS
indicated the Agency and Small had come to an agreement in regards to the terms of
Small’s motion, which included, inter alia, a request for an order of protective supervision
(“PSO”).
{¶29} The trial court inquired whether Mother agreed, to which Attorney Sidner
responded:
Yes, she has. I’m surprised she’s not in the courtroom right now. I
have talked to her – (INAUDIBLE) – she was here before even 8:30 but
that’s – and I talked to her about the legal custody and the PSO draft a few
days ago, and * * * she’s in agreement. And, Your Honor, she’s left and not
here in the courtroom, but we’re prepared to go forward with everything.
And on this particular case itself she – (INAUDIBLE) – signed it but she’s in
full agreement with legal custody. Thank you.
Tr. at 7.
{¶30} Thereafter, the trial court questioned Chester Dye, Father of the Child, who
voluntarily consented to the award of permanent custody to LCJFS. Upon conclusion of
the questioning, the trial court permitted Dye to leave the hearing. The trial court then
inquired:
Licking County, Case No. 2021 CA 00091 11
And [Mother] is no longer in the hall. She didn’t just go smoke or
anything, did she?
***
She exited the courtroom? Okay.
***
Double check to make sure [Mother] didn’t just go smoke and she’s
back out there.
UNIDENTIFIED: She is not.
THE COURT: Okay. All right. So we’ll come back to Mr. Sidner. I
know [Mother] was here.
She was personally served with the motion for permanent custody
on [the Child] on March 3rd of 2021 by the Licking County Sheriff.
She was actually here at 8:30 this morning even with the motion to
continue, not knowing if that was going to be granted or not, knowing that
we were going to potentially bring her back on a second day with her – to
give her the opportunity to subpoena the witnesses she wanted to.
Mr. Sidner, I know you had some discussion with her during the hour
and a half, two hours that she was here. What was your client’s position
when you talked to her in regards to [the Child]?
MR. SIDNER: Thank you, Your Honor – (INAUDIBLE) – with her
several times, even leading up to today’s trial, and I did file the continuance
motion. I just got the five witnesses – (INAUDIBLE) – and a motion for
continuance based on further trial preparation, to get the witnesses together
Licking County, Case No. 2021 CA 00091 12
and go over their testimony with my client and everything, and that – that
was the plan – (INAUDIBLE) – I filed here.
And she – my client was here before 8:25. She said she would get
here early. I talked with her and after you spoke off the record in the
courtroom here about some issues regarding the caseworker, and then with
that information I talked to my client about this case * * *
And then she made the decision – (INAUDIBLE) – I’m pretty sure
she would come in, be sworn in, the Court will ask her questions, and I can
go over that, too, if you want me to, what she said. But she was really upset
but she was still – (INAUDIBLE) – she was – even though she was upset,
she was still of a – (INAUDIBLE) – mind to make a decision, that she’s going
to go back – (INAUDIBLE) – on [the Child’s] – (INAUDIBLE) – case.
I asked her numerous times while she was here this morning, and
that’s what she wanted to do. Even though she was upset, she still wanted
to go do that, and I believe that’s what she wanted to do. So even though
she’s not here, so I’m prepared to go forward even if she’s not here –
(INAUDIBLE) – but – (INAUDIBLE) –
THE COURT: And she was in agreement when she left with the –
with the State’s motion for permanent custody –
MR. SIDNER: That’s correct.
***
Licking County, Case No. 2021 CA 00091 13
THE COURT: And did you go over the rights, specifically the right to
contest – consent to an adoption and be notified of that adoption hearing
with her?
MR. SIDNER: Yes. Yes, Your Honor. I understand – that’s what she
said. She’s in agreement with that – (INAUDIBLE) – she understood that.
* * * I also went over she understands – (INAUDIBLE) – rights, including
visitation, access to the child.
I also told her she does not get any notice of any medical, school
records, any schools, things like that. She gives up the right to that.
She gives up the right for any notice on adoption or have a say in the
adoption.
She gives up all religious say, too. * * * she also gives up the right
to have to legally support him, the child, through child support and other
means.
And she was all in agreement. She understood each one of those
issues. ***
But she just thinks it’s the best place for her child – (INAUDIBLE) –
very hard decision. That’s why she was upset and she didn’t want to come
in so she – (INAUDIBLE) – with that – (INAUDIBLE) – her not being her
doesn’t indicate she has disinterest in her child or anything like that but just
that she’s really upset with this.
So – so because of that, I am going to withdraw the motion for
continuance – (INAUDIBLE) – and go forward today uncontested * * *
Licking County, Case No. 2021 CA 00091 14
Id. at 19-23.
{¶31} Upon review of the record, we find the trial court did not deprive Mother of
her fundamental liberty interest in the care, custody, and management of the Child by
conducting the permanent custody hearing in her absence. See, Santosky, supra.Attorney Sidner fully participated in the permanent custody hearing and represented
Mother's interest. See, In re T.B., supra. Further, the evidence, as detailed supra,
establishes Mother made the conscious decision not to attend the hearing and authorized
Attorney Sidner to proceed in her absence.
{¶32} Mother’s third assignment of error is overruled.
{¶33} The judgment of the Licking County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur