In re K.S.W.

2023 Ohio 3763

• Court: Ohio Court of Appeals
• Decided: October 16, 2023
• Docket: 2023-P-0046 & 2023-P-0047
• Status: Published

Opinion

[Cite as In re K.S.W., 2023-Ohio-3763.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

IN THE MATTER OF: CASE NOS. 2023-P-0046 2023-P-0047 K.S.W. AND T.I.M., DEPENDENT CHILDREN Civil Appeals from the Court of Common Pleas, Juvenile Division

Trial Court Nos. 2021 JCC 00266 2021 JCC 00267

OPINION

Decided: October 16, 2023 Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).

Barbara Martincic, Martincic Law, LLC, P.O. Box 11, Mentor, OH 44061 (For Appellant, Melanie A. Wade).

Rebecca R. Grabski, Bret Jordan Co., LPA, 206 South Meridian Street, Suite A, Ravenna, OH 44266 (Guardian ad litem).

MARY JANE TRAPP, J.

{¶1} Appellant, Melanie Wade (“Ms. Wade”), appeals from the judgment of the

Portage County Court of Common Pleas, Juvenile Division, which terminated her parental

rights and granted permanent custody of her two minor children to appellee, Portage

County Department of Job and Family Services (“PCJFS”). {¶2} Ms. Wade raises one assignment of error, contending the trial court abused

its discretion and violated her rights to due process by denying her request for a

continuance on the day of trial.

{¶3} After a careful review of the record and pertinent law, we find Ms. Wade’s

assignment of error is without merit. Since the inception of the underlying matter, Ms.

Wade has been uncooperative and uncommunicative with PCJFS and the court, and she

failed to comply with her case plan. She attended only three hearings, one via telephone.

Ms. Wade contends she was unable to attend the hearing because she was physically

assaulted several days prior to the hearing. While we recognize the trauma associated

with assault, the court gave Ms. Wade two different ways to participate in the hearing. In

addition, she fails to argue on appeal how the outcome would have been different had

she been present. Under the unique facts and circumstances of this case, we cannot find

the trial court abused its discretion in denying Ms. Wade’s motion for a continuance.

{¶4} The judgment of the Portage County Court of Common Pleas, Juvenile

Division, is affirmed.

Substantive and Procedural History

{¶5} The history of this case, as relevant to whether the trial court abused its

discretion in denying Ms. Wade’s motion to continue the permanent custody hearing, is

as follows:

{¶6} On May 19, 2021, PCJFS filed a complaint for temporary custody against

Ms. Wade and the father of two of her minor children, Terrence Miller (“Mr. Miller”),

alleging the children, K.S.W. (D.O.B. 1/4/2014) and T.I.M. (D.O.B. 1/30/2016), were

Case Nos. 2023-P-0046, 2023-P-0047 neglected, abused, and dependent.1 The complaint further alleged that the Portage

County Sheriff ordered the children’s removal when Ms. Wade was arrested on a felony

warrant. The officers arresting her noted the home had an odor of marijuana. Ms. Wade

was uncooperative with law enforcement, she refused to identify herself, and she refused

to speak to a PCJFS social worker. Mr. Miller was incarcerated at the time.

{¶7} On May 19, 2021, the trial court held a shelter care hearing. Ms. Wade was

absent for the hearing because she was in jail.

{¶8} Approximately one month later, in June 2021, an adjudicatory hearing was

held. Ms. Wade had been released from jail the day before the hearing. She was absent

from the hearing but was represented by her court-appointed counsel.

{¶9} In July 2021, a disposition hearing was held. Ms. Wade was absent from

the hearing but was represented by her court-appointed counsel.

{¶10} On August 3, 2021, Ms. Wade’s counsel filed a motion to withdraw. Her

counsel stated he received a phone call from her that morning requesting he file certain

“things” that “made no sense,” including amendments to the children’s nationality, to

revoke their citizenship, and to have them identified as sovereign indigenous Americans.

When he attempted to inquire into the veracity of Ms. Wade’s requests, she verbally

threatened him. Counsel further stated the August phone call was the first time she was

in contact since the morning of the adjudicatory hearing in June. On that morning, she

had requested he file a motion for a continuance because she had “assessments and

other obligations” to take care of related to her pending criminal charges. Accordingly,

he filed the motion to continue, which the trial court denied.

1. The complaint was also brought on behalf of Ms. Wade’s third child from a different father, whose case was subsequently bifurcated from the instant matter. 3

Case Nos. 2023-P-0046, 2023-P-0047 {¶11} Two days later, Ms. Wade filed an “affidavit of truth,” declaring she and her

children were sovereign individuals, and they were not subject to state and federal law.

She also filed a “revocation of power of attorney.” Several days later, Ms. Wade filed a

handwritten “notice” that she was proceeding pro se.

{¶12} PCJFS subsequently filed a motion to limit Ms. Wade’s visitation with the

children and to allow them to provide visitation through a video platform such as Zoom or

monitored phone calls because Ms. Wade’s visitations at the visitation center were hostile

and disruptive. Further, she was telling the children false information and visibly upsetting

them.

{¶13} The trial court held a hearing, noting Ms. Wade was absent from the hearing

but represented by counsel. The court granted Ms. Wade’s counsel’s motion to withdraw,

terminated Ms. Wade’s visitation at the visitation center, and allowed Ms. Wade to visit

the children via Zoom.

{¶14} On November 4, 2021, Ms. Wade filed a motion to dismiss, contending the

court had no subject matter jurisdiction over her and her children, and she had submitted

a “Declaration of Nationality.” The motion was signed by Ms. Wade as an Ambassador

of the Toltec Nation-State.

{¶15} The trial court held a review hearing, during which it also considered Ms.

Wade’s motion. Ms. Wade was absent from the hearing. The trial court overruled the

motion, noting Ms. Wade did not attach an affidavit or exhibits that would lead the court

to believe she was a citizen of any sovereign except the United States of America and

the state of Ohio.

Case Nos. 2023-P-0046, 2023-P-0047 {¶16} On May 6, 2022, PCJFS filed a motion to suspend visitation with Ms. Wade,

contending she disrupted the children’s behavior. When she did visit, she would leave

early, and she spent a significant time arguing with PCJFS and caregivers. She also told

the children they were kidnapped by PCJFS.

{¶17} On May 23, 2022, Ms. Wade filed a “Petition for Modification of Pre-existing

Claim for Custody and Visitation,” contending in-person visits would be in the best interest

of the children.

{¶18} On August 15, 2022, the trial court held a review hearing. Ms. Wade was

absent from the hearing. The court noted, in relevant part, that “Ms. Wade has not

complied with her case plan objectives. She has not submitted to random drug screens.

The agency does not know where she is residing. Ms. Wade has not provided an address

for safe and stable housing. Ms. Wade continuously fails to appear for Court hearings

and does not obey to [sic] the Court’s Orders as to visitation.”

{¶19} On October 25, 2022, following a review hearing, the trial court issued a

judgment entry, noting Ms. Wade appeared late, and she was afforded an opportunity to

speak.

{¶20} On January 17, 2023, Ms. Wade filed a “Motion for Audio Appearance,”

requesting to appear for the hearing set later that day via audio/telephone due to

“unforeseeable events.” The trial court granted the motion, and Ms. Wade appeared for

the semi-annual review hearing via telephone, pro se.

{¶21} On March 21, 2023, PCJFS filed a motion for permanent custody of the two

minor children. Several days later, the trial court scheduled the hearing for June 6, 2023.

Ms. Wade was appointed counsel per her request.

Case Nos. 2023-P-0046, 2023-P-0047 {¶22} On May 5, 2023, Ms. Wade’s counsel filed a motion to continue the

permanent custody hearing because Ms. Wade was “unavailable” on that date. The trial

court denied the motion.

{¶23} On the day before the hearing, Ms. Wade’s counsel filed a motion

requesting Ms. Wade be permitted to participate in the hearing via Zoom because she

was the victim of a criminal assault.

{¶24} The transcript of the hearing reveals the trial court considered her motion

prior to the hearing. Her counsel explained he had received a text message from Ms.

Wade the day before. She indicated she had been the victim of an assault, and she was

receiving medical attention. He later learned she was in a domestic violence shelter. Ms.

Wade told him she was unable to attend the hearing due to medical issues and her

physical appearance. After receiving notification from the court that Ms. Wade could

participate via Zoom, he sent her a text. She had sent him a text that morning with a

screenshot of a medical form from the Cleveland Clinic in Akron, Ohio. She informed him

that she did not wish or agree to participate via Zoom or have him represent her without

her presence. The court also made a telephone number available, but all calls attempting

to reach her were directed to her voicemail.

{¶25} The trial court agreed with her counsel that he should continue to represent

her to, at the very least, make evidentiary objections and ensure the state was proving its

case by clear and convincing evidence. The court noted it made two accommodations

for her to attend. Further, she submitted no evidence that she was a victim of assault and

that she was incapable of appearing at the hearing, noting that Ms. Wade went to the

emergency department “after she completed her work shift at Taco Bell.”

Case Nos. 2023-P-0046, 2023-P-0047 {¶26} The court found there had been “a lot of delay” in her appearances and “all

the different appearances she’s had” before the court, and she only attended some

hearings. The trial court denied her motion for a continuance.

{¶27} One of the state’s witnesses was Detective Kirk Hostetler (“Det. Hostetler”)

from the Portage County Sheriff’s Office, human trafficking division. He testified he met

with Ms. Wade on the Wednesday or Thursday before the hearing in the emergency room

of Akron General Hospital. He interviewed her following the assault to determine if she

was a victim of human trafficking, and he connected her with services that could find her

a safe shelter.

{¶28} Ultimately, the trial court granted permanent custody of the two minor

children to PCFJS, finding it was in the children’s best interest.

{¶29} Ms. Wade filed the instant appeal, and raises one assignment of error for

our review:

{¶30} “The trial court abused its discretion in denying Mother’s request for

continuance in violation of her due process rights under the Fourteenth Amendment to

the United States Constitution and Article I, Section 16 of the Ohio Constitution.”

{¶31} In Ms. Wade’s assignment of error, she contends the trial court abused its

discretion and violated her due process rights by denying her motion for a continuance of

the permanent custody hearing.

Termination of Parental Rights

{¶32} It is well established that a parent’s right to raise a child is an essential

and basic civil right. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). The

permanent termination of parental rights has been described as “‘the family law equivalent

Case Nos. 2023-P-0046, 2023-P-0047 of the death penalty in a criminal case.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 16,

601 N.E.2d 45 (6th Dist.1991). Based upon these principles, the Supreme Court of Ohio

has determined that a parent must be afforded every procedural and substantive

protection the law allows. Id. Thus, “great care must be taken to ensure that due process

is used in parental-termination proceedings.” In re Q.G., 170 Ohio App.3d 609, 2007-

Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.).

{¶33} While the rights of a parent to his or her child are fundamental, they are

always subject to the ultimate welfare of the child, which is the polestar or controlling

principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034

(1979). Although the termination of the rights of a natural parent should occur as a last

resort, termination is expressly authorized when necessary for the welfare of the child. In

re A.M., 11th Dist. Ashtabula Nos. 2022-A-0090 and 2022-A-0091, 2023-Ohio-671, ¶ 36.

{¶34} With these principles in mind, we turn to whether the trial court abused its

discretion in denying Ms. Wade’s motion for a continuance.

Motion to Continue

{¶35} “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, 67, 423

N.E.2d 1078 (1981); see State ex rel. Buck v. McCabe, 140 Ohio St. 535, 45 N.E.2d 763

(1942), paragraph one of the 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.” Buck at 538. In many situations, a court will have

acted within its discretion whether it granted or denied the continuance. “‘When applying

the abuse of discretion standard [in these situations], a reviewing court is not free to

Case Nos. 2023-P-0046, 2023-P-0047 merely substitute its judgment for that of the trial court.’” Fontanella v. Ambrosio, 11th

Dist. Trumbull No. 2001-T-0033, 2002-Ohio-3144, ¶ 17, quoting In re Jane Doe I, 57 Ohio

St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

{¶36} An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004).

{¶37} “‘There are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial judge at the time

the request is denied.” Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84

S.Ct. 841, 11 L.Ed.2d 921 (1964).

{¶38} The Supreme Court of Ohio has instructed trial courts to consider several

factors in evaluating a motion for a continuance, including “[1] the length of the delay

requested; [2] whether other continuances have been requested and received; [3] the

inconvenience to litigants, witnesses, opposing counsel and the court; [4] whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived;

[5] whether the defendant contributed to the circumstance which gives rise to the request

for a continuance; and [6] other relevant factors, depending on the unique facts of each

case.” Unger at 67-68. In addition, a defendant must show how he or she was prejudiced

by the denial of the continuance before there can be a finding of prejudicial error. State

v. Broom, 40 Ohio St.3d 277, 288, 533 N.E.2d 682 (1988).

{¶39} Pursuant to Juv.R. 23, continuances “shall be granted only when imperative

to secure fair treatment for the parties.” Loc.R. 14.07 of the Portage County Court of

Case Nos. 2023-P-0046, 2023-P-0047 Common Pleas, Juvenile Division, further provides, “No case will be continued on the day

of the hearing, except for good cause shown, which cause was not known to the attorney

or party prior to the day of the hearing, notwithstanding all other counsel and/or parties

agreement to same.”

{¶40} Applying the factors from Unger to the present case, we determine the trial

court did not abuse its discretion in denying Ms. Wade’s motion for a continuance of the

permanent custody hearing. As our review of the record indicated, Ms. Wade attended

only three hearings during the entirety of the underlying matter. She appeared in person

for two of those hearings and participated in the third via telephone. While we recognize

the physical and mental trauma that may ensue from an assault, and we recognize that

Det. Hostetler saw her after the assault and noted some bruising and swelling to the left

side of her face, Ms. Wade was given two different ways to participate in the hearing, yet

refused any accommodations and the representation of her counsel. It is critical to note

that Ms. Ward’s post-assault motion to attend the hearing via Zoom was granted, but she

later chose to advise her attorney that she would not participate. An offer was made for

her to attend via telephone, but attempts to reach her on the day of the hearing went

unanswered.

{¶41} In addition, she failed to put forth any offer of proof of the evidence and/or

testimony she would have presented had she been at the hearing or how the outcome of

the proceeding would have been different had she attended. See In re K.R., 10th Dist.

Franklin No. 22AP-51, 2023-Ohio-359, ¶ 18 (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).

Case Nos. 2023-P-0046, 2023-P-0047 {¶42} We are mindful that “great care must be taken to ensure that due process

is used in parental termination proceedings.” In re Q.G. at ¶ 12. However, based on the

unique facts and circumstances presented here, we cannot say Ms. Wade’s rights to due

process were violated. Since the inception of this matter, Ms. Wade has been

uncooperative with PCJFS and the court. She failed to attend most of the court hearings

and never attempted to comply with her case plan objectives. Most fundamentally, “[a]

parent facing termination of parental rights must exhibit cooperation and must

communicate with counsel and with the court in order to have standing to argue that due

process was not followed in a termination proceeding.” Id. See also In re B.D., 8th Dist.

Cuyahoga No. 111767, 2023-Ohio-224, ¶ 36-40 (Trial court did not abuse its discretion

by denying father’s requests for continuances where the record demonstrated the court

continually gave him continuances to attempt to bond with the child, he opted to wait over

two years to get involved in the case, and he failed to appear without an explanation for

his absence).

{¶43} Accordingly, Ms. Wade’s assignment of error is without merit.

{¶44} The judgment of the Portage County Court of Common Pleas, Juvenile

JOHN J. EKLUND, P.J.,

MATT LYNCH, J.,

concur.

Case Nos. 2023-P-0046, 2023-P-0047