In re B.D.

2022 Ohio 2555

Opinion

[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

{¶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