[Cite as In re A.S., 2013-Ohio-4019.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. A.S., V.S., and Z.S. : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. : : Case No. 13 CAF 05 0041 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Divison, Case Nos. 11-01-0070AB, 11-01-0071AB, and 11-01-0072AB
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2013
APPEARANCES:
For Oral Slaven For DCDJFS
O. ROSS LONG KATHERYN L. MUNGER 125 North Sandusky Street 140 North Sandusky St., 3rd Floor Delaware, OH 43015 Delaware, OH 43015
For Kitty Slaven Guardian ad Litem
PAMELLA A. LAMMON CELESTE M. BRAMMER 103 North Union Street, Suite D 13290 Centerburg Road Delaware, OH 43015 Sunbury, OH 43074 Delaware County, Case No. 13 CAF 05 0041 2
Farmer, J.
{¶1} On January 19, 2011, appellee, the Delaware County Department of Job
& Family Services, filed a complaint for temporary custody of A.S. born May 24, 2006,
V.S. born May 24, 2006, and Z.S. born April 14, 2009, alleging the children to be
neglected and dependent. Father of the children is appellant, Oral Slaven; mother is
Kitty Slaven. Following a shelter care hearing, the trial court placed the children in
appellee's temporary custody on January 24, 2011. By judgment entry filed April 15,
2011, the trial court adjudicated the children dependent and granted temporary custody
to relatives. The children were eventually returned to appellee's temporary custody in
July 2011 (A.S. and V.S.) and December 2012 (Z.S.).
{¶2} On July 26, 2012 (A.S. and V.S.) and January 16, 2013 (Z.S.), appellee
filed motions for permanent custody of the children based upon the parents' failure to
comply with the case plan. A hearing commenced on March 26, 2013. By judgment
entry filed April 12, 2013, the trial court granted permanent custody of the children to
appellee.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT'S DUE PROCESS RIGHTS WHEN IT DENIED HIS REQUEST FOR A
CONTINUANCE OF THE TRIAL ON THE DELAWARE COUNTY DEPARTMENT OF
JOB AND FAMILY SERVICES (HEREINAFTER DCDJFS) MOTION OF PERMANENT
CUSTODY." Delaware County, Case No. 13 CAF 05 0041 3
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
ADDRESS WHETHER THE DCDJFS HAD MADE REASONABLE EFFORTS TO
RETURN THE CHILDREN SAFELY HOME WITH EITHER PARENT."
III
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THAT THE CHILDREN COULD NOT BE PLACED WITH THEIR
MOTHER WITHIN A REASONABLE PERIOD OF TIME AFTER THE TRIAL ON THE
DCDJFS'S MOTION FOR PERMANENT CUSTODY."
IV
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THAT THE CHILD, [Z.] S. DID NOT NEED TO BE IN THE CUSTODY
OF THE DCDJFS FOR 12 OUT OF 22 CONSECUTIVE MONTHS PRIOR TO THE
DCDJFS FILING A MOTION FOR PERMANENT CUSTODY RELATED TO [Z.] S."
V
{¶8} "THE APPELLANT FATHER WAS NOT AFFORDED A FAIR AND
IMPARTIAL TRIAL DUE TO THE OBVIOUS BIAS AND PREJUDICE OF THE
GUARDIAN AD LITEM."
VI
{¶9} "THE TRIAL COURT IMPROPERLY CONSIDERED THE TESTIMONY
AND REPORT OF THE GUARDIAN AD LITEM BECAUSE THE GUARDIAN AD LITEM
FAILED TO FOLLOW THE REQUIREMENTS OF SUPERINTENDENCE RULE 48 OF
THE OHIO RULES OF SUPERINTENDENCE." Delaware County, Case No. 13 CAF 05 0041 4
{¶10} Appellant claims the trial court erred in denying his motion for a
continuance of the permanent custody hearing. We disagree.
{¶11} We note appellant was the only party to file a written motion for a
continuance, filed on March 25, 2013. At the commencement of the trial, mother orally
joined in on the motion. T. at 7. Without stating reasons, the trial court denied the
motion. T. at 10.
{¶12} Appellant argues his continuance request should have been granted
because mother's criminal disposition was unknown at the time of the hearing and her
status as to incarceration reflected on the outcome of the case. Appellant also argues
his criminal conviction was being appealed.
{¶13} Appellant is currently serving a prison term of fifty-eight years for six
counts of rape and three counts of gross sexual imposition involving an older step-
sibling of the children. Appellant was sentenced on July 30, 2012.
{¶14} Based upon our reasoning in mother's appeal, Case No. 13 CAF 05 0040,
which is hereby incorporated by reference, we find the trial court did not abuse its
discretion in denying appellant's motion for a continuance.
{¶15} Assignment of Error I is denied.
II, III, IV
{¶16} Appellant incorporated by reference the arguments raised on behalf of
mother in Case No. 13 CAF 04 0040. We hereby incorporate by reference our
reasoning and decision therein, and note because of appellant's fifty-eight year term of
incarceration, the use of any reasonable efforts to involve him in the case plan would Delaware County, Case No. 13 CAF 05 0041 5
have been futile. The overwhelming evidence clearly mitigated against appellant's
involvement in the rearing of his children as he was found guilty of sexually abusing the
children's step-sibling in his care. R.C. 2151.414(E)(5), (7)(d), and (12).
{¶17} Assignments of Error II, III, and IV are denied.
V, VI
{¶18} Appellant claims he was not afforded a fair hearing because of the
guardian ad litem's bias and prejudice and the guardian's failure to follow the mandates
of Sup.R. 48. We disagree.
{¶19} The guardian ad litem was permitted to testify as to her interaction with the
family in a 2008 case which was closed in 2010, "if there are matters persisting [in the
current case] that she relates back to the prior case." T. at 179-180. The guardian
offered that if appellant's appeal of his criminal convictions was granted, he would have
to be involved in a case plan. T. at 186. However, it was the guardian's opinion that
appellant "could be a risk to the children." Id. The guardian has had interaction with the
children and opined that at this point, they need stability and consistency. T. at 189.
They need to "be given that opportunity to live a normal childhood without being
concerned about what-ifs." T. at 190.
{¶20} Appellant's counsel cross-examined the guardian on her "dislike" of
appellant (T. at 193):
Q. Isn't it a fact that you just really dislike Mr. Slaven and that your
report is based upon your extreme dislike of Mr. Slaven and that's why you Delaware County, Case No. 13 CAF 05 0041 6
didn't bother to go out and talk to the parent, the father, the natural father
of these children?
A. I don't like or dislike him. That's not the point. And, in fact, you
said that I had a responsibility to the father. I disagree. My responsibility
is to the children.
{¶21} Sup.R. 48 covers the various responsibilities of a guardian ad litem,
including meeting and visiting with the parents. The guardian did not interview
appellant, but testified to brief discussions with appellant and his first attorney in the
courtroom, and appellant's lengthy incarceration. T. at 190-195. The guardian testified
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[Cite as In re A.S., 2013-Ohio-4019.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. A.S., V.S., and Z.S. : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. : : Case No. 13 CAF 05 0041 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Divison, Case Nos. 11-01-0070AB, 11-01-0071AB, and 11-01-0072AB
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2013
APPEARANCES:
For Oral Slaven For DCDJFS
O. ROSS LONG KATHERYN L. MUNGER 125 North Sandusky Street 140 North Sandusky St., 3rd Floor Delaware, OH 43015 Delaware, OH 43015
For Kitty Slaven Guardian ad Litem
PAMELLA A. LAMMON CELESTE M. BRAMMER 103 North Union Street, Suite D 13290 Centerburg Road Delaware, OH 43015 Sunbury, OH 43074 Delaware County, Case No. 13 CAF 05 0041 2
Farmer, J.
{¶1} On January 19, 2011, appellee, the Delaware County Department of Job
& Family Services, filed a complaint for temporary custody of A.S. born May 24, 2006,
V.S. born May 24, 2006, and Z.S. born April 14, 2009, alleging the children to be
neglected and dependent. Father of the children is appellant, Oral Slaven; mother is
Kitty Slaven. Following a shelter care hearing, the trial court placed the children in
appellee's temporary custody on January 24, 2011. By judgment entry filed April 15,
2011, the trial court adjudicated the children dependent and granted temporary custody
to relatives. The children were eventually returned to appellee's temporary custody in
July 2011 (A.S. and V.S.) and December 2012 (Z.S.).
{¶2} On July 26, 2012 (A.S. and V.S.) and January 16, 2013 (Z.S.), appellee
filed motions for permanent custody of the children based upon the parents' failure to
comply with the case plan. A hearing commenced on March 26, 2013. By judgment
entry filed April 12, 2013, the trial court granted permanent custody of the children to
appellee.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT'S DUE PROCESS RIGHTS WHEN IT DENIED HIS REQUEST FOR A
CONTINUANCE OF THE TRIAL ON THE DELAWARE COUNTY DEPARTMENT OF
JOB AND FAMILY SERVICES (HEREINAFTER DCDJFS) MOTION OF PERMANENT
CUSTODY." Delaware County, Case No. 13 CAF 05 0041 3
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
ADDRESS WHETHER THE DCDJFS HAD MADE REASONABLE EFFORTS TO
RETURN THE CHILDREN SAFELY HOME WITH EITHER PARENT."
III
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THAT THE CHILDREN COULD NOT BE PLACED WITH THEIR
MOTHER WITHIN A REASONABLE PERIOD OF TIME AFTER THE TRIAL ON THE
DCDJFS'S MOTION FOR PERMANENT CUSTODY."
IV
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THAT THE CHILD, [Z.] S. DID NOT NEED TO BE IN THE CUSTODY
OF THE DCDJFS FOR 12 OUT OF 22 CONSECUTIVE MONTHS PRIOR TO THE
DCDJFS FILING A MOTION FOR PERMANENT CUSTODY RELATED TO [Z.] S."
V
{¶8} "THE APPELLANT FATHER WAS NOT AFFORDED A FAIR AND
IMPARTIAL TRIAL DUE TO THE OBVIOUS BIAS AND PREJUDICE OF THE
GUARDIAN AD LITEM."
VI
{¶9} "THE TRIAL COURT IMPROPERLY CONSIDERED THE TESTIMONY
AND REPORT OF THE GUARDIAN AD LITEM BECAUSE THE GUARDIAN AD LITEM
FAILED TO FOLLOW THE REQUIREMENTS OF SUPERINTENDENCE RULE 48 OF
THE OHIO RULES OF SUPERINTENDENCE." Delaware County, Case No. 13 CAF 05 0041 4
{¶10} Appellant claims the trial court erred in denying his motion for a
continuance of the permanent custody hearing. We disagree.
{¶11} We note appellant was the only party to file a written motion for a
continuance, filed on March 25, 2013. At the commencement of the trial, mother orally
joined in on the motion. T. at 7. Without stating reasons, the trial court denied the
motion. T. at 10.
{¶12} Appellant argues his continuance request should have been granted
because mother's criminal disposition was unknown at the time of the hearing and her
status as to incarceration reflected on the outcome of the case. Appellant also argues
his criminal conviction was being appealed.
{¶13} Appellant is currently serving a prison term of fifty-eight years for six
counts of rape and three counts of gross sexual imposition involving an older step-
sibling of the children. Appellant was sentenced on July 30, 2012.
{¶14} Based upon our reasoning in mother's appeal, Case No. 13 CAF 05 0040,
which is hereby incorporated by reference, we find the trial court did not abuse its
discretion in denying appellant's motion for a continuance.
{¶15} Assignment of Error I is denied.
II, III, IV
{¶16} Appellant incorporated by reference the arguments raised on behalf of
mother in Case No. 13 CAF 04 0040. We hereby incorporate by reference our
reasoning and decision therein, and note because of appellant's fifty-eight year term of
incarceration, the use of any reasonable efforts to involve him in the case plan would Delaware County, Case No. 13 CAF 05 0041 5
have been futile. The overwhelming evidence clearly mitigated against appellant's
involvement in the rearing of his children as he was found guilty of sexually abusing the
children's step-sibling in his care. R.C. 2151.414(E)(5), (7)(d), and (12).
{¶17} Assignments of Error II, III, and IV are denied.
V, VI
{¶18} Appellant claims he was not afforded a fair hearing because of the
guardian ad litem's bias and prejudice and the guardian's failure to follow the mandates
of Sup.R. 48. We disagree.
{¶19} The guardian ad litem was permitted to testify as to her interaction with the
family in a 2008 case which was closed in 2010, "if there are matters persisting [in the
current case] that she relates back to the prior case." T. at 179-180. The guardian
offered that if appellant's appeal of his criminal convictions was granted, he would have
to be involved in a case plan. T. at 186. However, it was the guardian's opinion that
appellant "could be a risk to the children." Id. The guardian has had interaction with the
children and opined that at this point, they need stability and consistency. T. at 189.
They need to "be given that opportunity to live a normal childhood without being
concerned about what-ifs." T. at 190.
{¶20} Appellant's counsel cross-examined the guardian on her "dislike" of
appellant (T. at 193):
Q. Isn't it a fact that you just really dislike Mr. Slaven and that your
report is based upon your extreme dislike of Mr. Slaven and that's why you Delaware County, Case No. 13 CAF 05 0041 6
didn't bother to go out and talk to the parent, the father, the natural father
of these children?
A. I don't like or dislike him. That's not the point. And, in fact, you
said that I had a responsibility to the father. I disagree. My responsibility
is to the children.
{¶21} Sup.R. 48 covers the various responsibilities of a guardian ad litem,
including meeting and visiting with the parents. The guardian did not interview
appellant, but testified to brief discussions with appellant and his first attorney in the
courtroom, and appellant's lengthy incarceration. T. at 190-195. The guardian testified
a full in-depth interview was not practical given the length of appellant's term of
incarceration. T. at 191, 193.
{¶22} From the trial court's April 12, 2013 judgment entry, it is clear although the
trial court acknowledged the guardian's report, the decision was not based upon the
lack of a case plan or interview of appellant:
9. Although Dennis Oral Slaven and Kitty Slaven have both
expressed desire to regain custody of their children, the underlying
concerns that caused the children to be placed outside of the parent's
home remain.
Dennis Oral Slaven was found guilty of six (6) counts of rape and
three (3) counts of gross sexual imposition of an older sibling of the
children. Mr. Salven (sic) was sentenced on July 30, 2012 to fifty-eight Delaware County, Case No. 13 CAF 05 0041 7
(58) years in prison. The Court is aware of Mr. Slaven's pending appeal of
his conviction and sentence. However, the Court cannot make decisions
in the best interest of the children based on what might happen in Mr.
Slaven's appeal. The Court finds that the children cannot be placed with
their father within one (1) year.
{¶23} Upon review, we find appellant was afforded a fair hearing.
{¶24} Assignments of Error V and VI are denied.
{¶25} The judgment of the Court of Common Pleas of Delaware County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. William B. Hoffman
_______________________________ Hon. John W. Wise
SGF/sg 8/19 [Cite as In re A.S., 2013-Ohio-4019.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : A.S., V.S. and Z.S. : JUDGMENT ENTRY : : : : CASE NO. 13 CAF 05 0041
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, Juvenile Division is
affirmed. Costs to appellant.