[Cite as In re B.M.B., 2024-Ohio-1214.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
IN THE MATTER OF: CASE NO. 2023-P-0099
B.M.B., DEPENDENT CHILD Civil Appeal from the Court of Common Pleas, Juvenile Division
Trial Court No. 2021 JCC 00513
OPINION
Decided: March 26, 2024 Judgment: Affirmed
Alisa Boles, 35 East 202nd Street, Euclid, OH 44123 (For Appellant, Michael Blakeman).
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).
Benjamin J. Plough, 221 South Freedom Street, Ravenna, OH 44266 (Guardian Ad Litem).
MATT LYNCH, J.
{¶1} Appellant, Michael Blakeman, appeals from the judgment of the Portage
County Court of Common Pleas, Juvenile Division, granting permanent custody of his
daughter, B.M.B., to appellee, the Portage County Department of Job and Family
Services (PCDJFS). For the following reasons, we affirm the decision of the lower court.
{¶2} Blakeman is the biological father of B.M.B., born October 28, 2011. The
child’s biological mother is Nickole Ormiston.
{¶3} On September 1, 2021, a complaint was filed alleging that B.M.B. was abused and dependent. It alleged that B.M.B. had been running away from her home
and going to strangers’ houses in her neighborhood, has behavioral issues, and her legal
custodian, Rebecca Blake, was unable to continue providing care for her. B.M.B. was
placed in the interim predispositional temporary custody of PCDJFS. Following a
hearing, B.M.B. was adjudicated dependent. A dispositional hearing was held on
November 16, 2021, at which the parents were not present, and temporary custody was
granted to PCDJFS. Subsequently, two motions to extend temporary custody were
granted. The parents were not present at these hearings.
{¶4} PCDJFS filed a Motion for Permanent Custody on August 1, 2023. It
requested termination of parental rights and argued that B.M.B. could not be placed with
either parent in a reasonable time.
{¶5} A hearing on the motion for permanent custody was held on November 15,
2023. B.M.B.’s legal custodian, Blake, and her mother, Ormiston, stipulated that
permanent custody be granted to PCDJFS. Blakeman’s counsel indicated that he had
sent correspondence to Blakeman in September and October 2021, and April, July, and
September 2022, regarding dates of hearings and decisions issued in this matter. The
last letter he sent in December 2022, which included a magistrate’s decision, came back
as undeliverable. Counsel indicated that he had not received responses or otherwise
engaged in communication with his client since he was assigned to the case in September
2021, he was certain that a number of his letters were delivered to Blakeman, and his
letterhead contained his contact information. Counsel indicated that Blakeman had
recently sent a letter to the Portage County prosecutor’s office asking for custody and
moved for a continuance of the hearing based on this letter. PCDJFS indicated that the
Case No. 2023-P-0099 letter had been received the previous day, it was the first communication they had
received from Blakeman, and he had properly been served notice of the hearing while
incarcerated. The court denied the request for a continuance, finding that Blakeman was
properly served in August, “has not ever attended a hearing since 2021, and it’s my
understanding * * * that he will not be released until sometime in 2024.” Blakeman’s
counsel moved to have the letter admitted into the record, which the court granted.
{¶6} Ormiston testified that she had last seen B.M.B. in 2018, at which time Blake
received custody because Ormiston was using drugs. She testified that Blakeman had
been abusive to her, which led to his incarceration. She testified that Blakeman had a
relationship with B.M.B. “for the couple months here and there that he was out of jail * * *
but he was in jail often for domestic violence.” She indicated B.M.B. had last seen
Blakeman around 2016 or 2017.
{¶7} Rachel Magrell, a PCDJFS caseworker, testified that PCDJFS became
involved with B.M.B. in 2021 when her legal custodians, the Blakes, had difficulty caring
for her due to dangerous behaviors that put B.M.B.’s sister at risk. Prior to that time,
beginning in 2018, Blake had legal custody through a Cuyahoga County case. Magrell
indicated that attempts to locate B.M.B.’s biological parents at that time had been
unsuccessful. Letters were sent to various family members to find a placement for B.M.B.
but were also unsuccessful. Magrell indicated that, while in the temporary custody of
PCDJFS, B.M.B. has been in several foster placements as well as residential facilities
due to behavioral concerns. She testified that Blakeman had not had contact with B.M.B.
since the case was opened in 2021 and B.M.B. did not have a bond with her parents.
{¶8} The guardian ad litem, Benjamin Plough, recommended that permanent
Case No. 2023-P-0099 custody be granted to PCDJFS.
{¶9} On November 17, 2023, the trial court issued a Journal Entry granting
permanent custody of B.M.B. to PCDJFS. The court found that B.M.B had been in the
custody of children’s services for 21 consecutive months of the prior 22 months and had
been abandoned by both of her parents. It found that reunification was unlikely since they
had failed to engage in contact with the child and Blakeman was incarcerated. It granted
permanent custody of B.M.B. to PCDJFS.
{¶10} Blakeman timely appeals and raises the following assignments of error:
{¶11} “[1.] The trial court erred when it denied incarcerated Father’s request for a
continuance where Father was not present, had not been provided call-in information,
had not had contact with his attorney, had not been deposed, had not attested his position
via affidavit, nor otherwise been provided a meaningful opportunity to participate in the
hearing, and a letter from Father received by Father’s attorney on the day of trial was
entered into evidence without addressing the explicit and tacit requests by Father therein
such as requests to be contacted, to have contact with his daughter, to attend court via
video and for legal advice.
{¶12} “[2.] Father’s Trial Attorney erred by neglecting to orally convey the
contents of Father’s letter, or otherwise secure for Father more meaningful participation
in the proceedings.”
{¶13} In his first assignment of error, Blakeman argues that a continuance of the
trial should have been granted given that, despite the caseworker not making contact with
him, he was still able to communicate his desire for a continuance to the court and he
was entitled to be present during the permanent custody hearing.
Case No. 2023-P-0099 {¶14} “It is well established that a parent’s right to raise a child is an essential and
basic civil right.” (Citation omitted.) In re T.B., 11th Dist. Lake No. 2008-L-055, 2008-
Ohio-4415, ¶ 29. However, “[t]he rights of a parent to his or her child, while fundamental,
‘are always subject to the ultimate welfare of the child.’” (Citation omitted.) In re L.M.R.,
11th Dist. Lake No. 2016-L-096, 2017-Ohio-158, ¶ 33, citing In re Cunningham, 59 Ohio
St.2d 100, 105, 391 N.E.2d 1034 (1979) (“the termination of the rights of a natural parent
should be an alternative of ‘last resort’” but is authorized “when it is necessary for the
‘welfare’ of the child”).
{¶15} Given the foregoing, the Ohio Supreme Court has held that parents “must
be afforded every procedural and substantive protection the law allows.” (Citation
omitted.) In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). “[G]reat care must
be taken to ensure that due process is used in parental-termination proceedings.” In re
K.S.W., 11th Dist. Portage Nos. 2023-P-0046 and 2023-P-0047, 2023-Ohio-3763, ¶ 32,
citing In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.).
{¶16} Juvenile Rule 23 provides: “Continuances shall be granted only when
imperative to secure fair treatment for the parties.” “The grant or denial of a continuance
is a matter that is entrusted to the broad, sound discretion of the trial judge.” State v.
Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus. “[A]n appellate court will not
interfere with the exercise of this discretion unless the action of the court is plainly
erroneous and constitutes a clear abuse of discretion.” In re M.A.S., 11th Dist. Portage
No. 2019-P-0093, 2019-Ohio-5190, ¶ 15, citing State ex rel. Buck v. McCabe, 140 Ohio
St. 535, 45 N.E.2d 763 (1942), paragraph one of the syllabus.
{¶17} “In evaluating a motion for a continuance, a court should note, inter alia: the
Case No. 2023-P-0099 length of the delay requested; whether other continuances have been requested and
received; the inconvenience to litigants, witnesses, opposing counsel and the court;
whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful,
or contrived; whether the defendant contributed to the circumstance which gives rise to
the request for a continuance; and other relevant factors, depending on the unique facts
of each case.” Unger at 67-68. “Weighed against any potential prejudice to a [party] are
concerns such as a court’s right to control its own docket and the public’s interest in the
prompt and efficient dispatch of justice.” Id. at 67. In permanent custody hearings, a
court weighs the delay of proceedings to accommodate the parent’s participating in the
hearing with the needs of the child “to find resolution and permanency.” In re J.C., 2023-
Ohio-778, 210 N.E.3d 972, ¶ 27 (10th Dist.).
{¶18} In the present matter, Blakeman’s request for a continuance was not
received until the day prior to the trial on November 15, although the lower court found,
and the record demonstrates, that he was served with notice of the permanent custody
hearing on August 10. A grant of the continuance would cause an inconvenience to the
various parties involved. Further, this court has found that a delay of two weeks in seeking
counsel in permanent custody proceedings leading to a request for a continuance could
be “considered dilatory” and justified denial of a continuance. M.A.S. at ¶ 18. See also
In re B.G.W., 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693, ¶ 26 (court may
construe a parent’s last-minute attempt at case plan compliance as dilatory). Although
Blakeman had been sent various notices of proceedings during the pendency of this
matter, he did not make contact with any relevant party regarding the custody of B.M.B.
until the day prior to the permanent custody hearing.
Case No. 2023-P-0099 {¶19} Courts have further emphasized in permanent custody proceedings the
impact of continuances on delaying the goal of achieving permanency for the child. See
In re K.J., 2018-Ohio-471, 107 N.E.3d 50, ¶ 21 (10th Dist.) (“by the time of the PCC
hearing, the children had been in FCCS’s custody for more than two years, and granting
a continuance on the day of the hearing would have presented an inconvenience to
opposing counsel * * * as well as prolonging the accomplishment of the ultimate goal of
establishing permanency for the children”); In re E.C., 12th Dist. Butler No. CA2016-01-
014, 2016-Ohio-2774, ¶ 14 (“[i]n light of the duration of the case, E.C.’s need for
permanency, Father’s failure to complete any of the services recommended by the
agency, and Father’s lack of involvement with E.C., we find the juvenile court did not
abuse its discretion in denying Father’s motion for a continuance”). Here, the record
indicates B.M.B. was in Blake’s legal custody from 2018 to 2021, and then in PCDJFS’
temporary custody since September 2021, where she has been in multiple placements
due to her behavioral concerns. During both periods of time, she had no contact with
Blakeman. The need for permanency in these circumstances was a factor of particular
significance for the trial court’s consideration in denying the continuance given B.M.B.’s
biological parents’ lack of a relationship with her for a period of several years.
{¶20} Significantly, Blakeman is also unable to demonstrate prejudice resulting
from the failure to grant his request for a continuance. “Denials of continuances have
been repeatedly affirmed in permanent custody hearings where there is no showing that
a grant of the continuance likely would have changed the outcome of the case.” K.S.W.,
2023-Ohio-3763, at ¶ 41 (upholding denial of a continuance where the appellant “failed
to put forth any offer of proof of the evidence and/or testimony she would have presented
Case No. 2023-P-0099 had she been at the hearing or how the outcome of the proceeding would have been
different had she attended”).
{¶21} In In re S.I.M., 11th Dist. Portage No. 2019-P-0100, 2020-Ohio-162, this
court considered whether the trial court erred by denying an incarcerated parent’s motion
to continue proceedings so he could be transported to the permanent custody hearing. It
found no abuse of discretion in the denial of the motion where the evidence supported
the findings that the child had been abandoned by him and could not be placed with him
in a reasonable time due to his incarceration since his appearance at the hearing would
not have changed the outcome of the proceedings. Id. at ¶ 30. Similarly, there is no
evidence of how Blakeman’s participation at the hearing would have changed the
outcome in any manner. The testimony indicated that Blakeman had not seen his
daughter for a number of years, with Magrell indicating he had not seen her during
PCDJFS’s custody and Ormiston testifying he had not seen her since 2016 or 2017. It is
difficult to determine what insight Blakeman could have provided in the proceedings given
his lack of a relationship with B.M.B. Further, Blakeman was incarcerated at the time of
trial and was not in position to have B.M.B. placed in his custody in the foreseeable future,
particularly given his lack of a relationship and a bond with her and her significant
behavioral problems that had resulted in the inability of several foster care givers and
other facilities to care for her. Under these circumstances, we do not find an abuse of
discretion in the denial of Blakeman’s motion for a continuance.
{¶22} To the extent that Blakeman argues that it was error for the court not to
review the entirety of his letter to the prosecutor, the letter was not filed by Blakeman with
the court as a motion seeking relief. His attorney moved on his behalf for a continuance
Case No. 2023-P-0099 based on the letter but no other motion was pending before the court. Insofar as this
issue relates to whether counsel should have moved for further relief on behalf of his
client based upon this letter, it will be addressed in the second assignment of error.
{¶23} The first assignment of error is without merit.
{¶24} In his second assignment of error, Blakeman argues that trial counsel was
deficient for the failure to “orally convey the contents of Father’s letter, especially his
desire to be present at the hearing” and should have elaborated on its contents. He
further argues that counsel should have ensured Blakeman was given a meaningful
opportunity to participate in the proceedings since he could have served to “clarify the
extent of his relationship with his daughter and provide further insight as to her needs.”
{¶25} “[W]hen the state initiates a permanent custody proceeding, parents must
be provided with fundamentally fair procedures in accordance with the due process
provisions of the Fourteenth Amendment to the United States Constitution, and Section
16, Article I of the Ohio Constitution” which “includes effective assistance of counsel.” In
re Roque, 11th Dist. Trumbull No. 2005-T-0138, 2006-Ohio-7007, ¶ 7. “When presented
with ineffective assistance of counsel claims in proceedings to terminate parental rights,
Ohio courts apply the two-prong Strickland test.” Id. at ¶ 11. To demonstrate ineffective
assistance, a party must prove “(1) that counsel’s performance fell below an objective
standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”
State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶26} Counsel did not discuss the entirety of the contents of the letter when
Case No. 2023-P-0099 arguing that a continuance should be granted. Instead, the court stated, “I’m assuming
based on the letter that he sent to the prosecutor asking for custody, I guess the Court
could construe that as a Motion to Continue.” Counsel responded that he would “move *
* * for a continuance of this hearing because of this letter.” The letter expressed that
Blakeman would like to gain custody of his daughter and have contact with her, had been
battling addiction but was committed to being sober, would be released from jail in a few
months, and “might have to schedule a video court on this matter” due to his current
incarceration. Even presuming that counsel should have raised and discussed the
additional arguments set forth in the letter, such as a request to have custody of B.M.B.,
we do not find that it would have impacted the outcome of the proceedings. For the
reasons discussed in our analysis on the preceding assignment of error, granting
additional relief requested by Blakeman would not have changed the outcome of this
matter given the delay in the proceedings, how long B.M.B. had been in the custody of
PCDJFS and her need for permanency, Blakeman’s failure to see B.M.B. for several
years, and his inability to provide her a home within a reasonable time frame.
{¶27} In support of the argument that counsel was ineffective by not ensuring
Blakeman’s participation in the proceedings, he cites Roque, 2006-Ohio-7007. In Roque,
this court reversed an award of permanent custody and held that the mother was denied
effective assistance of counsel and the integrity of the proceedings was impacted where
she was not present at the hearing and her interests were not adequately represented.
We find that this is distinguishable from the present matter. In Roque, counsel had a lack
of communication with his client but counsel also failed to attend review hearings,
participate in discovery, challenge hearsay, and effectively conduct cross-examination.
Case No. 2023-P-0099 Here, Blakeman does not argue that counsel failed to attend necessary hearings or
participate in the proceedings and he did conduct cross-examination of the witnesses,
although it was not extensive. To the extent that Blakeman argues counsel failed to
ensure his participation by seeking alternate means such as submitting an affidavit or
requesting his remote appearance, Blakeman’s failure to communicate with counsel
made it difficult for counsel to request such relief and his delayed letter received the day
before the permanent custody hearing impacted the court’s decision on whether any
accommodations would be made. Further, as noted above, given the circumstances of
this case, we do not find Blakeman’s participation in the proceedings would have changed
the outcome.
{¶28} Blakeman also argues that failure to ensure his participation constituted a
violation of his due process rights. While parents are entitled to due process in
proceedings involving termination of parental rights, these “rights may not be absolute”
as they apply to incarcerated individuals. S.I.M., 2020-Ohio-162, at ¶ 16; K.J., 2018-
Ohio-471, at ¶ 28 (“[a]n incarcerated parent does not have ‘an absolute due process right
to attend the trial of a civil action to which he is a party’”) (citation omitted).
{¶29} To determine whether due process was denied in not allowing an
incarcerated defendant to appear at the permanent custody hearing, this court has
applied the test in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
S.I.M. at ¶ 19. Under Mathews, the reviewing court considers “[1] the private interest that
will be affected by the official action; [2] the risk of an erroneous deprivation of such
interest through the procedures used, and probable value, if any, of additional or
substitute procedural safeguards; and [3] the Government’s interest, including the
Case No. 2023-P-0099 function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Mathews at 335.
{¶30} There is no question, under the first factor, that a parent has the
fundamental right to raise his child and has an interest affected by permanent custody
proceedings. S.I.M. at ¶ 20.
{¶31} As to the second factor, the deprivation of the individual’s interest, this court
has considered, as weighing against the parent, the fact that he will continue to be
incarcerated following the permanent custody hearing, that there was not a reasonable
possibility of placing the child with him in a reasonable time frame, and the fact that the
parent was represented by counsel at the hearing. Id. at ¶ 21. Similarly, in the present
matter, as addressed above, Blakeman was not going to be released from incarceration
until the following year and it is not reasonable to conclude that B.M.B., particularly with
her behavioral concerns and her lack of a relationship with Blakeman over the previous
several years, could be placed with him in the near future. Further, Blakeman was
represented by counsel who argued in favor of a continuance and cross-examined the
witnesses at the hearing.
{¶32} Finally, as to the third factor, this court has considered the significant
interest in ensuring that the child receives a permanent home without further delay. Id.
at ¶ 22 and 23. The same concerns are applicable here, as addressed above.
{¶33} A lack of a due process violation has also been found by other districts in
similar situations. In K.J., 2018-Ohio-471, the Tenth District found no due process
violation occurred when the father did not attend the hearing due to his incarceration, was
represented by counsel, the father had not seen the child or attempted to comply with the
Case No. 2023-P-0099 case plan for more than one year and demonstrated an inability to be physically present
in his children’s lives, and the record did not show that his presence would have changed
the outcome of the trial. Id. at ¶ 29-30. The court held that “father’s potential loss of rights
‘pale when measured against the best interests of’ the children.” (Citation omitted.) Id.
at ¶ 29. See also In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶ 51 (the trial
court did not deprive the parent of her due process right to a fair permanent custody
hearing when it proceeded with the hearing while she was incarcerated because
“[c]ounsel meaningfully represented appellant at the hearing, a complete record was
made, and appellant has failed to show what additional testimony or evidence she would
have offered that would have changed the outcome of the case”); In re A.C.H., 4th Dist.
Gallia No. 11CA2, 2011-Ohio-5595, ¶ 55.
{¶34} The second assignment of error is without merit.
{¶35} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, Juvenile Division, granting permanent custody of B.M.B. to PCDJFS, is
affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
Case No. 2023-P-0099