In re J.L.

2016 Ohio 5649

Opinion

[Cite as In re J.L., 2016-Ohio-5649.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: J.L. and R.L. : : : Appellate Case No. 26938 : : Trial Court Case Nos. 2014-8122 and : 2014-8123 : : (Appeal from Domestic Relations : Court-Juvenile Division) :

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OPINION

Rendered on the 2nd day of September, 2016.

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Appellant

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WELBAUM, J. -2-

{¶ 1} Appellant, J.K.L., appeals from a decision of the Montgomery County Court

of Common Pleas, Juvenile Division, adjudicating her children, J.L. and R.L., dependent

children pursuant to R.C. 2151.04 and awarding temporary custody of her children to

Montgomery County Children Services pursuant to R.C. 2151.353. For the reasons

outlined below, the judgment of the juvenile court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On December 10, 2014, Officer Wendy Miller of the Kettering Police

Department received a telephone call from the guidance counselor at an elementary

school reporting concerns about two students, J.L. and R.L., who had not been in school

over the past two weeks. The counselor further reported that the children’s mother,

J.K.L. (“Mother”), suffered from a mental illness.

{¶ 3} In response to the call, Officer Miller drove to the children’s house in

Kettering, Ohio, where she made contact with Mother on the front porch. Miller identified

herself and explained that she was there to check on J.L. and R.L. Despite being in full

uniform, Mother appeared uncertain that Miller was an officer and demanded to see

Miller’s badge, name tag, I.D., business card, and badge number. Miller complied with

the request and Mother eventually let Miller inside the home on the condition that Miller

allow Mother to videotape the entire encounter with her cell phone camera.1

{¶ 4} When inside the house, Mother began briskly walking around and yelling for

J.L. and R.L. to come out, but the children did not appear. At this time, Miller observed

1 According to Miller, Mother’s cell phone never actually recorded anything. -3-

that the house was very cluttered with boxes, papers, pictures, and knickknacks strewn

around. Although Miller did not find the house to be filthy with trash, she noticed that

every surface of the house was covered with random objects. In order to get from room

to room, Miller had to walk through tiny paths between the items that were stored in the

house. In addition, Miller observed that Mother was unable to open the bedroom doors

completely due to the doors being blocked by personal belongings.

{¶ 5} After Mother could not locate the children, it became clear to Miller that

Mother had no idea where J.L. and R.L. were, as Mother told Miller “they must have gone

somewhere.” Hearing Trans (Apr. 10, 2015), p. 19. At this point, Miller became

concerned for the children’s safety and requested more officers to assist her at the house.

While waiting for the other officers to arrive, Miller spoke with Mother and asked her

standard questions such as her birthday, phone number, and driver’s license number.

Mother explained that she did not want to answer those questions because the

government was spying on her and she did not want the government to have that

information. Specifically, Mother told Miller that she was being watched by satellites, a

two-way camera in her television, and a secret camera in her closet.

{¶ 6} Mother also explained to Miller that J.L. and R.L. were not in school because

one of the children had growing pains, whereas the other child wanted to stay home with

their sibling. Miller observed that when Mother spoke she would often make

spontaneous utterances that were unrelated to what they were talking about. This

included Mother’s claim that she was “not bipolar anymore” and that she does not “need

to take medication.” Id. at 21.

{¶ 7} When the other officers arrived at the house, they watched Mother while -4-

Miller searched for the children. Miller went in the bedrooms and saw that the beds were

covered with boxes, pictures, and piles of clothes. While searching one of the bedrooms,

Miller crawled on the floor and eventually came face to face with R.L., who was sitting in

a corner. After locating the child, Miller talked to R.L. for several minutes before R.L.

would respond. When Miller asked R.L. where J.L. was hiding, R.L. pointed to the bed

where Miller saw J.L. hiding underneath piles of clothes and baskets. When Miller asked

the children why they did not come out when she called for them, the children advised

that they were scared because their mother had told them that people were trying to break

into their house and would take them away. The children also claimed that Mother

instructed them that if any one came to the door, they were to be as quiet as possible.

{¶ 8} While Miller was searching for the children, one of the other officers, Officer

William Torok, spoke with Mother. Torok found Mother to be polite and cordial, but he

noticed that Mother’s train of thought was very disconnected, as she did not stay on topic

during their conversation. Torok was also concerned about Mother’s mental health

because she told him the government was spying on her through the television. Based

on what the officers observed, they decided to have Mother admitted to Kettering Medical

Center (“KMC”) for purposes of having her mental health evaluated. Mother did not want

to go to KMC and therefore was involuntarily admitted via a “pink slip” that was filled out

by Torok.

{¶ 9} Shortly after Mother was transported to KMC by Torok, Janine Elders of

Montgomery County Children’s Services (“MCCS”) arrived at the house and discussed

with Officer Miller where to place the children while Mother was hospitalized. The

children advised Miller of a step-grandmother who lived in Dayton. The step- -5-

grandmother was contacted and she agreed to care for the children on a short-term basis.

{¶ 10} Mother was hospitalized from December 10, 2014 until December 23, 2014.

During the hospitalization, Elders attempted to work out a temporary care agreement with

Mother. Pursuant to the agreement, the children would be placed in temporary foster

care without going to court and would be returned to Mother once she stabilized.

However, on December 16, 2014, the probate court found Mother mentally incompetent

and ordered forced medication. As a result, MCCS could no longer pursue the

temporary care agreement because Mother lacked the mental capacity to enter into such

an agreement.

{¶ 11} Because the step-grandmother could only provide short-term care for the

children, on December 17, 2014, MCCS filed a dependency complaint through the State

requesting the court to adjudicate J.L. and R.L. dependent children pursuant to R.C.

2151.04 and to award temporary custody of the children to MCCS pursuant to R.C.

2151.353. The matter was then scheduled for a hearing on February 24, 2015. Mother,

who was represented by appointed counsel, appeared at the hearing and the parties

agreed to have the hearing continued until April 10, 2015.

{¶ 12} Mother did not appear for the April 10, 2015 hearing. Instead, Mother’s

counsel advised the presiding magistrate that 30 minutes prior to the hearing, Mother left

him a message informing him that she needed a 60-day continuance because she wanted

to retain private counsel. Mother left a similar message with court personnel. The

magistrate denied the request for a continuance finding that it was without good cause

and for purposes of delay.

{¶ 13} In proceeding with the hearing, the magistrate heard testimony from Officer -6-

Miller, Officer Torok, and MCCS caseworkers Janine Elders and Chris Dougherty.

Thereafter, on April 17, 2015, the magistrate issued a written decision adjudicating the

children dependent pursuant to R.C. 2151.04 and granting temporary custody to MCCS

pursuant to R.C. 2151.353. Mother filed pro se objections to the magistrate’s decision

on May 1, 2015. The juvenile court judge then reviewed the matter and issued a written

decision on October 29, 2015, overruling Mother’s objections and adopting the

magistrate’s decision in its entirety.

{¶ 14} Mother now appeals from the October 29, 2015 decision of the juvenile

court, raising two assignments of error for review.

First Assignment of Error

{¶ 15} Mother’s First Assignment of Error is as follows:

THE SEIZURE AND CONFINEMENT OF [MOTHER] WAS CONTRARY

TO THE REQUIREMENTS OF R.C. 5122.[10] AND THOSE

ESTABLISHED BY THE SUPREME COURT OF THE UNITED STATES IN

O’CONNOR V. DONALDSON WHERE THE MENTALLY ILL PERSON

MUST BE FOUND DANGEROUS TO THEMSELVES OR OTHERS.

{¶ 16} Under her First Assignment of Error, Mother contends her emergency,

involuntary commitment to KMC on December 10, 2014, was contrary to law because

there was no evidence that she posed a substantial risk of physical harm to herself or

others as is required by R.C. 5122.10.

{¶ 17} “R.C. Chapter 5122 sets forth specific procedures to be followed when a

person is committed to a mental hospital, whether voluntarily or involuntarily.” In re -7-

Miller, 63 Ohio St.3d 99, 101, 585 N.E.2d 396 (1992). R.C. 5122.10 governs the

procedure for instituting emergency hospitalization and provides that any police officer

may take a person into custody and may immediately transport him to a hospital if the

police officer “has reason to believe that the person is a mentally ill person subject to

hospitalization by court order under division (B) of section 5122.01 of the Revised Code,

and represents a substantial risk of physical harm to himself or others if allowed to remain

at liberty pending examination.”

{¶ 18} In this case, however, Mother filed her notice of appeal from the juvenile

court’s decision adjudicating her children dependent under R.C. 2151.04 and the

disposition awarding temporary custody of her children to MCCS under R.C. 2151.353.

In other words, the decision which Mother appealed from is wholly unrelated to her

emergency, involuntary commitment, as the juvenile court made no decision with regards

to that matter.

{¶ 19} When an appeal is taken from a final judgment, only the judgment appealed

from is brought before the appellate court, and upon review, the appellate court will affirm,

modify or reverse the judgment appealed from. Troyer v. Goodville Mut. Cas. Co., 5th

Dist. Holmes No. CA-467, 1993 WL 107979, *1 (Apr. 1, 1993), citing In re Kurtzhalz, 141

Ohio St. 432, 48 N.E.2d 657 (1943). (Other citation omitted.) “[A]n appellate court lacks

jurisdiction to review a judgment or order that is not designated in the appellant’s notice

of appeal.” (Citation omitted.) State v. Howard, 2d Dist. Montgomery No. 21678, 2007-

Ohio-3582, ¶ 10.

{¶ 20} Because the order appealed from in this case was the juvenile court’s

decision adopting the magistrate’s dependency adjudication and disposition, which -8-

concerns statutes and findings that are unrelated to Mother’s involuntary commitment

under R.C. 5122.10, we do not have jurisdiction to review this assignment of error.

{¶ 21} Mother’s First Assignment of Error is overruled.

Second Assignment of Error

{¶ 22} Mother’s Second Assignment of Error is as follows:

THE COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO ALLOW

[MOTHER’S] MOTION FOR A CONTINUANCE AND THUS THE COURT

HELD A HEARING WITHOUT [MOTHER] BEING PRESENT AND SO

DENYING HER THE RIGHT TO A FAIR TRIAL.

{¶ 23} Under her Second Assignment of Error, Mother contends the magistrate’s

decision denying her requested 60-day continuance of the April 10, 2015 adjudication

and dispositional hearing was an abuse of discretion because she was absent from the

proceeding and was therefore denied her right to a fair trial.

{¶ 24} The magistrate’s denial of the continuance was journalized in the written

decision of April 17, 2015, which also adjudicated the children dependent and awarded

temporary custody to MCCS. Mother, however, failed to object to the denial of the

continuance in her pro se objections to the magistrate’s decision. Mother, therefore, has

waived all but plain error on appeal.

{¶ 25} Even if Mother had objected to the magistrate’s decision denying the

continuance, her claim would still fail. “The granting or denial of a continuance is a matter

entrusted to the broad, sound discretion of the trial judge, which will not be reversed

absent an abuse of discretion.” In re S.F., 2d Dist. Montgomery No. 26865, 2016-Ohio- -9-

521, ¶ 17, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An

“ ‘[a]buse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 26} Mont. Juv. Ct. Rule 5.8.2 provides that: “No case, in which a date has been

fixed, for a[n] * * * adjudicatory or other hearings shall be continued, except for good

cause, and only by the Judge or Magistrate to whom the matter is assigned.” Section

5.8.3 of the rule further provides that: “All continuance requests shall be made to the

Judge or Magistrate by written motion within three (3) days of the trial or hearing.”

{¶ 27} “A party has a right to a reasonable opportunity to be present at trial and a

right to a continuance for that purpose, but a party does not have a right to delay a trial

unreasonably, and a continuance based on a party’s absence must be based on

unavoidable, not voluntary absences.” In re Richard, Laqueeda, Shennell & Dominique,

2d Dist. Montgomery Nos. 14140, 14200, 1994 WL 702071, *3-4 (Dec. 14, 1994), citing

Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993).

{¶ 28} In this case, there is no evidence indicating that Mother’s absence from the

April 10, 2015 adjudication and dispositional hearing was unavoidable and involuntary.

Rather, the record establishes that 30 minutes before the hearing was scheduled to

commence, Mother left messages with the court and her appointed counsel stating that

she needed a 60-day continuance because she wanted to retain private counsel. Mother

gave no reason for her failure to appear at the hearing, which she had known about since

February 24, 2015. As previously noted, February 24th was the original hearing date

that Mother attended and agreed to have continued until April 10th. Therefore, Mother -10-

had six weeks in which to obtain new counsel, yet she waited until the day of the hearing

to notify the court and her attorney of that intention. Moreover, all of the witnesses who

were subpoenaed, i.e., Officer Miller, Officer Torok, and caseworkers Janine Elders and

Chris Dougherty, were all in attendance at court on April 10th and ready to proceed with

the hearing.

{¶ 29} Based on the foregoing, we do not find that it was unreasonable for the

magistrate to find that Mother’s request for a continuance was without good cause and

for purposes of delay. Mother gave no excuse for her failure to appear, did not follow

local court rules in requesting a continuance, and all parties and witnesses were prepared

to proceed with the hearing as scheduled. Accordingly, the trial court did not abuse its

discretion in denying the requested continuance of the adjudication and dispositional

hearing.

{¶ 30} Mother’s Second Assignment of Error is overruled.

Conclusion

{¶ 31} Having overruled both assignments of error raised by Mother, the judgment

of the juvenile court is affirmed.

FROELICH, J. and HALL, J., concur.

Copies mailed to: -11-

Mathias H. Heck, Jr. Meagan D. Woodall Hilary Lerman Robert Hanseman Hon. Anthony Capizzi