[Cite as In re J.W., 2019-Ohio-4425.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. J.W. Hon. Earle E. Wise, Jr., J.
Case Nos. 2019 CA 00041 and 2019 CA 00042
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. F2016- 0655
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 25, 2019
APPEARANCES:
For Appellee LCJFS For Appellant Mother
WILLIAM C. HAYES JERMAINE COLQUITT PROSECUTING ATTORNEY 33 West Main Street JAMES CHOI Suie 109 ASSISTANT PROSECUTOR Newark, Ohio 43055 20 South Second Street, Fourth Floor Newark, Ohio 43055 For Appellant Father
Guardian ad Litem MICHAEL R. DALSANTO 33 West Main Street ROBIN LYN GREEN Suite 109 P.O. Box 157 Newark, Ohio 43055 Newark, Ohio 43058 Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 2
Wise, John, J.
{¶1} Appellant-Mother K.A. and Appellant-Father J.W. appeal from the May 10,
2019, Judgment Entry of the Licking County Court of Common Pleas, Juvenile Division,
terminating parental rights and granting permanent custody of their minor child J.W. to
Licking County Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} The instant case is an appeal from the final disposition in a dependency
action in the Licking County Court of Common Pleas, Juvenile Division, where the trial
court granted permanent custody of J.W. (D.O.B. 9/24/2016) to the Licking County
Department of Job and Family Services ("the Agency").
{¶3} On October 26, 2016, an Ex Parte Order of Removal was granted with
regard to the minor child J.W.
{¶4} On October 27, 2016, the Agency filed a complaint alleging that J.W. was
dependent due to Mother being homeless and Father being incarcerated.
{¶5} On October 27, 2017, the magistrate granted emergency shelter care of
J.W. to the Agency.
{¶6} On December 21, 2016, and January 25, 2017, the trial court held a
contested adjudicatory hearing. The Magistrate found J.W. to be a dependent child and
ordered him into the temporary custody of the Agency. The trial court approved and
adopted the case plan, which had been submitted on November 23, 2016.
{¶7} The Agency filed a Motion for Legal Custody to Maternal [sic] Grandmother
on September 25, 2017.1 The hearing was set on December 18, 2017, but the parties
1 The relative was in fact the paternal grandmother. Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 3
came to an agreement to an extension due to the relative caregiver no longer willing to
take Legal Custody. As a result, on March 15, 2017, the Agency filed a Motion for
Permanent Custody.
{¶8} On July 6, 2018, the parents filed a joint motion seeking additional time.
{¶9} On July 13, 2018, the trial court granted the parents’ Motion to Continue the
Permanent Custody hearing.
{¶10} On October 19, 2018, the permanent custody hearing commenced. Prior to
the presentation of testimony, counsel for Appellant-Father moved the court for an
additional continuance to allow more time to monitor Father’s behavior, stating that he
knew the State and the Guardian ad Litem were opposed to same. (T. at 6, 8). The
magistrate denied the continuance with the caveat that she would possibly change her
mind based on the evidence presented at the hearing. (T. at 9).
{¶11} At the hearing, the magistrate heard testimony from the following
witnesses:
{¶12} The State's first witness was Appellant-Mother K.A. (T. at 10). Mother
testified she was staying at the Salvation Army at the onset of this case. (T. at 13). Mother
testified that she transitioned into a one-bedroom apartment with no electricity for about
nine (9) months. (T. at 14). Mother further testified she then went to the Courage House
Program and resided there from April, 2018, until to July, 2018, but she was kicked out of
Courage House because she had allowed individuals to use her boyfriend, Appellant-
Father J.W.’s food stamp card. (T. at 15). At the time of the Permanent Custody hearing,
Mother was incarcerated for a probation violation, having tested positive for Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 4
methamphetamine. (T. at 15-16). Mother further testified that she was unemployed prior
to her probation violation. (T. at 17).
{¶13} Appellant-Father J.W. testified he was incarcerated at the onset of this case
for breaking and entering and theft charges in Knox County. (T. at 28). He was ordered
to Spencer House but was unsuccessfully discharged for violating his community control.
(T. at 29). Father testified that on two occasions in 2017 and 2018, he had multiple
probation violations. (T. at 29). Father further testified that he uses methamphetamine
when he is bored. (T. at 31).
{¶14} Mr. Tracy, a social worker with the Agency, testified that he was assigned
to the case in June, 2017, because the previous social worker who was assigned to the
case left the agency. (T. at 79). Mr. Tracy testified that the Agency got involved with this
family due to Mother's drug use and Father’s incarceration. (T. at 79-80). Mr. Tracy further
testified that Mother was referred to multiple mental health services, but she was
inconsistent in participating in those service. (T. at 82). Mother failed to successfully
complete the mental health treatment. Id. Mr. Tracy testified that Mother has struggled
with substance abuse throughout the duration of this case. (T. at 83). Mr. Tracy testified
Mother was clean when she was participating in Courage House, but that after she was
unsuccessfully discharged from there, she relapsed and continued to use
methamphetamine. (T. at 83). Mr. Tracy testified that Mother has not completed any form
of substance abuse treatment. (T. at 84).
{¶15} Mr. Tracy further testified that at the time he was assigned the case, Mother
had housing through Behavioral Healthcare Partners ("BHP"). (T. at 88). However,
Mother's housing did not have electricity due to past unpaid bills. (T. at 90). Mr. Tracy Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 5
further testified that after she left this residence, she was homeless until she stayed at
Courage House for a temporary stay. (T. at 89-90). Mother was removed from Courage
House due to a probation violation, testing positive for methamphetamine. Id. Mr. Tracy
testified that upon her removal, Mother was again homeless. Id. Mr. Tracy testified that
Mother had only one job over the duration of the case, and that her longest period of
employment was about three weeks. (T. at 90).
{¶16} Mr. Tracy testified Appellant-Father was engaged in mental health services
at various places, but that he did not have concerns regarding his mental health. (T. at
93). Mr. Tracy testified that Father's relationship with Mother has been uncertain
throughout the duration of this case. (T. at 93-94). Mr. Tracy further testified that he had
concerns regarding their relationship because he believed that they make each other
relapse. Id. Mr. Tracy testified that for a short period of time, Father was living with Mother
in the home that Mother acquired through the help of BHP. (T. at 95). Mr. Tracy further
testified that Father refused to pay for the electric bill in that home because he did not
owe the money. (T. at 95). After living with Mother, Father stayed at Spencer House for
a short period and then resided at Franklin County Community Based Correctional Facility
("CBCF") for five months due to his probation violation. (T. at 95-96). Mr. Tracy testified
that after his release from CBCF, Father stayed at the Salvation Army for a week. (T. at
97). At the time of the Permanent Custody hearing, Father was at St. Vincent Homeless
Shelter. Id.
{¶17} Mr. Tracy testified that Father has continued to use methamphetamines
throughout this case. (T. at 99). Mr. Tracy further testified that Father had been clean for Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 6
periods of time, but that he always relapsed. (T. at 99). Specifically, Mr. Tracy testified
that Father would use illegal substances when he would be bored at work. (T. at 99).
{¶18} Mr. Tracy testified that the minor child, J.W., has been placed in two
different placements since the beginning of this case. (T. at 104). Mr. Tracy testified that
the first placement was unable to continue to care for J.W. because they were an older
couple. (T. at 104). J.W. was therefore moved to a different placement in April, 2018. (T.
at 104). Mr. Tracy testified that the second placement family loves J.W. and J.W. loves
them. (T. at 105). Mr. Tracy further testified that this second placement family wishes to
adopt J.W. (T. at 105).
{¶19} Mr. Tracy testified that he did search for a less restrictive alternative relative
or kinship placement, that being the paternal grandmother, R.W. (T. at 105). However,
Mr. Tracy testified that he had a conversation with her and she conveyed to the Agency
that she could no longer take care of J.W. on a full-time basis. (T. at 105). Mr. Tracy
further testified that he has spoken with paternal grandmother several times subsequent
to the initial conversation and she continues to convey the same sentiments as before.
(T. at 105-106). Mr. Tracy also testified that the paternal grandmother believed that it was
in the child's best interest to be adopted at this time. Id. Moreover, Mr. Tracy testified the
problems that led to the initial removal of the child are still present. (T. at 106).
{¶20} The Guardian ad Litem expressed the view in her written report that the
child‘s foster parents have provided excellent care, and that the child is well bonded with
them and she was in support of the Motion for Permanent Custody.
{¶21} At the conclusion of the hearing, counsel for Appellant-Father renewed his
motion for a continuance. Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 7
{¶22} On December 3, 2018, the Decision of Magistrate was filed. The Decision
recommend the minor child be placed in the permanent custody of the Agency. The
Magistrate’s decision to recommend permanent custody to the Agency effectively denied
Appellant’s motion to continue.
{¶23} On December 17, 2018, Mother filed "Initial Objections" to the Magistrate's
Decision.
{¶24} On February 20, 2019, the parents filed "joint objections" to the Magistrate
{¶25} On May 10, 2019, the Court filed its own Judgment Entry after an
independent review of the record. The Court held that Mother's "Initial Objections" did not
satisfy the requirements pursuant to Juv. Rule 40(D)(3)(b)(ii). The Court found that the
"joint objections" "have no merit even if, for purposes of argument only, they were timely
filed." See Judgment Entry dated May 10, 2019. The trial court independently reviewed
the Magistrate's Decision, the record, and the exhibits, and approved the Magistrate's
Decision and Orders as its own Orders. The trial court found "the record contains
substantial, credible evidence which supports the Magistrate's findings as set forth in his
decision. This Court can find no errors of law or other defects prejudicial to the rights of
the parents." (See Judgment Entry dated May 10, 2019).
{¶26} Appellants now raise the following assignments of error on appeal:
ASSIGNMENTS OF ERROR
{¶27} “I. THE MAGISTRATE ABUSED ITS DISCRETION WHEN IT DENIED
FATHER'S REQUEST FOR A CONTINUANCE OF THE PERMANENT CUSTODY
HEARING. Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 8
{¶28} “II. THE MAGISTRATE ERRED WHEN HE FOUND, BY CLEAR AND
CONVINCING EVIDENCE, THAT THE STATE MET ITS BURDEN OF PROOF IN
GRANTING PERMANENT CUSTODY OF J.W. TO THE LICKING COUNTY
DEPARTMENT OF JOB AND FAMILY SERVICES.
{¶29} “III. THE TRIAL COURT ERRED IN FINDING THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY.”
I.
{¶30} In their first assignment of error, Appellants argue that the magistrate erred
in denying Appellant-Father’s request for a continuance of the permanent custody
hearing. We disagree.
{¶31} Juv. R. 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
entrusted to the broad, sound discretion of the trial court. State v. Unger (1981), 67 Ohio
St.2d 65, 423 N.E.2d 1078. In order to find an abuse of discretion, we must determine
whether the trial court's decision was unreasonable, arbitrary or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,
450 N.E.2d 1140.
{¶32} In reviewing a trial court's denial of a motion for a continuance, an appellate
court should consider the following factors: (1) the length of the delay requested; (2)
whether other continuances have been requested and received; (3) the inconveniences to
witnesses, opposing counsel and the court; (4) whether there is a legitimate reason for
the continuance; (5) whether the defendant contributed to the circumstances giving rise to Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 9
the need for the continuance; and other relevant factors, depending on the unique facts of
each case. State v. Unger, supra.
{¶33} Here, the trial court had already granted a joint motion for continuance filed
July 6, 2018, for the July 13, 2018, permanent custody hearing, therein allowing the
parties additional time to address the issue and monitor their behavior. At that time the
trial court granted the parties an additional three months to work on their case plan
objectives.
{¶34} Here, the parents had over a year and a half to make progress on their case
plans and at the time of the hearing, Mother was incarcerated and Father was living in a
homeless shelter.
{¶35} We therefore find that the trial court did not abuse its discretion in denying
Appellant-Father’s second motion for continuance, made at the commencement of the
permanent custody hearing on October 19, 2018.
{¶36} Appellants’ first assignment of error is overruled.
II., III.
{¶37} Appellants, in assignments of error II and III, challenge the trial court’s order
terminating parental rights and granting permanent custody of their minor child to the
Agency. Appellants specifically challenge the trial court’s findings that the child could not
and should not be placed with father within a reasonable time and that it was in the child’s
best interest for permanent custody to be granted.
{¶38} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 10
be based on clear and convincing evidence. R.C. §2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
the essential elements of the case supports the trial court's judgment, an appellate court
must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶39} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997–Ohio–260, 674 N.E.2d 1159.
{¶40} R.C. §2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. §2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶41} Following the hearing, R.C. §2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 11
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending.
{¶42} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial court
will usually determine whether one of the four circumstances delineated in R.C.
§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶43} In the case sub judice, the trial court found that R.C. §2151.414(B)(1)(a)
applied. Pursuant to R.C. §2151.414(B)(1)(a), the trial court found the child could not be
placed with either of the child's parents within a reasonable time or should not be placed
with the child's parents. In making this decision, the trial court must consider the factors
of R.C. §2151.414(E). The trial court specifically found that R.C. §2151.414(E)(1),(4),(14)
and (16) applied to appellants.
{¶44} R.C. §2151.414 states, in relevant part, as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 12
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties
...
(16) Any other factor the court considers relevant.
{¶45} In the case sub judice, there was testimony as to Appellant-Mother’s
substance abuse, financial instability, mental health issues, lack of appropriate housing,
lack of employment, and inconsistent participation in mental health services per her case Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 13
plan. Testimony was also presented that Mother tested positive for methamphetamines,
a probation violation, and was therefore kicked out of Courage House. Mother was also
incarcerated at the time of the permanent custody hearing.
{¶46} Testimony was also presented as to Father’s incarceration at the time of
removal of the child, lack of stable or independent housing, and substance abuse.
{¶47} Based on the foregoing, we find that there was clear and convincing
evidence supporting the trial court's finding that Appellants had continuously and
repeatedly failed to substantially remedy the conditions which caused the child to be
placed outside the home, and that the child could not be placed with either parent within
a reasonable time or should not be placed with either parent.
{¶48} Additionally, R.C. §2151.353(G) provides:
(G) Any temporary custody order issued pursuant to division (A) of
this section shall terminate one year after the earlier of the date on which
the complaint in the case was filed or the child was first placed into shelter
care, except that, upon the filing of a motion pursuant to section 2151.415
of the Revised Code, the temporary custody order shall continue and not
terminate until the court issues a dispositional order under that section. In
resolving the motion, the court shall not order an existing temporary custody
order to continue beyond two years after the date on which the complaint
was filed or the child was first placed into shelter care, whichever date is
earlier, regardless of whether any extensions have been previously ordered
pursuant to division (D) of section 2151.415 of the Revised Code. Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 14
{¶49} Here, the trial court noted in its decision that the statutory two year “sunset
provision” expired eight (8) days after the permanent custody hearing and therefore the
court could not extend temporary custody any longer.
{¶50} Appellants also challenge the trial court's finding that it was in the best
interest of the child for permanent custody to be granted to the agency. R.C.
§2151.414(D) states as follows:
(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised
Code, the court shall consider all relevant factors, including, but not limited
to, the following:
(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or the child has been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 15
twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(d) The child's need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶51} There was testimony at the hearing that the child was initially placed with a
relative, his paternal grandmother, and that the Agency had moved the court for legal
custody to the grandmother but withdrew the motion when the grandmother stated that
she did not wish to have custody of the child. The child was then placed in another foster
home, where he remained until the permanent custody hearing. Testimony was
presented that the child was bonded with the foster family and that they wished to adopt
him. Further testimony was presented that the problems which led to the removal of the
child still existed at the time of the permanent custody hearing.
{¶52} Based on the foregoing, we find that there was clear and convincing
evidence that it was in the best interest of the child for permanent custody to be granted
to the agency.
{¶53} Appellants’ assignments of error II and III are, therefore, overruled. Licking County, Case Nos. 2019 CA 00041 and 2019 CA 00042 16
{¶54} Accordingly, the judgment of the Licking County Court of Common Pleas,
Juvenile Division, terminating appellant’s parental rights and granting permanent custody
of appellants’ minor child to Licking County Job and Family Services is affirmed.
By: Wise, John, J.
Hoffman, P. J., and
Wise, Earle, J., concur.
.
JWW/d 1020