In re M.E.K.

2017 Ohio 7543

• Court: Ohio Court of Appeals
• Decided: September 11, 2017
• Docket: CA2016-12-241
• Status: Published

Opinion

[Cite as In re M.E.K., 2017-Ohio-7543.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN THE MATTER OF: :

M.E.K. : CASE NO. CA2016-12-241

: OPINION 9/11/2017 :

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2014-0374

Marcelina C. Woods, P.O. Box 922, Mason, Ohio 45040, guardian ad litem

Jeannine C. Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, for Father

Nicole M. Stephenson, 30 North "D" Street, Hamilton, Ohio 45013, for Mother

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children Services

PIPER, J.

{¶ 1} Appellant, the father of M.K. ("Father"), appeals the grant of a permanent

planned living arrangement for M.K. by the Butler County Court of Common Pleas, Juvenile

Division.

{¶ 2} Father and M.K.'s mother ("Mother") were never wed, and M.K. lived primarily Butler CA2016-12-241

with Father during her childhood. When M.K. was 14, Butler County Children Services filed a

complaint alleging that M.K. was dependent due to Father's physical abuse of the child. The

physical abuse included father hitting the child with a belt several times, throwing her into a

door, and choking her.

{¶ 3} The agency moved for temporary custody of the child, and Father agreed that

M.K. was dependent. A magistrate then awarded temporary custody of the child to the

agency. Approximately a year and a half later, the agency filed a motion for a permanent

planned living arrangement ("PPLA") for the child. The matter proceeded to a hearing before

the magistrate. Immediately preceding the hearing, Father requested a continuance so that

he could obtain different counsel. The motion was denied by the magistrate, and the matter

proceeded.

{¶ 4} During the hearing, the magistrate heard evidence that Mother agreed with the

PPLA while Father opposed it. The magistrate also heard evidence regarding Father's failure

to complete the case plan, and the child's guardian ad litem ("GAL") recommended the

PPLA. The court also conducted an in camera interview with the child, who was 16 years old

at the time of the hearing.

{¶ 5} The magistrate granted the PPLA, and Father filed objections to the

magistrate's decision. The trial court overruled Father's objections without a hearing and

adopted the magistrate's decision. Father now appeals the juvenile court's decision, raising

the following assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE JUVENILE COURT'S JUDGMENT GRANTING THE MOTION FOR

PLANNED PERMANENT LIVING ARRANGEMENT ("PPLA") TO BUTLER COUNTY

CHILDREN SERVICES ("BCCS") WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, AN ABUSE OF DISCRETION, CONTRARY TO LAW, WAS NOT SUPPORTED -2- Butler CA2016-12-241

BY SUFFICIENT CLEAR AND CONVINCING EVIDENCE, AND WAS CONTRARY TO THE

BEST INTEREST OF THE CHILD.

{¶ 8} Father argues in his first assignment of error that the juvenile court erred in

granting the PPLA.

{¶ 9} A PPLA is a placement that gives legal custody to an agency without

terminating parental rights and that allows the agency to make an appropriate placement,

including foster care. In re J.S., 12th Dist. Butler No. CA2006-07-172, 2007-Ohio-1223.

According to R.C. 2151.353(A)(5), once a child has been adjudicated dependent, the agency

can move for a PPLA if the juvenile court finds by clear and convincing evidence that a PPLA

is in the child's best interests and one of the following exists:

(a) The child, because of physical, mental, or psychological problems or needs, is unable to function in a family-like setting and must remain in residential or institutional care now and for the foreseeable future beyond the date of the dispositional hearing held pursuant to section 2151.35 of the Revised Code.

(b) The child is sixteen years of age or older, the parents of the child have significant physical, mental, or psychological problems and are unable to care for the child because of those problems, adoption is not in the best interest of the child, as determined in accordance with division (D)(1) of section 2151.414 of the Revised Code, and the child retains a significant and positive relationship with a parent or relative.

(c) The child is sixteen years of age or older, has been counseled on the permanent placement options available to the child, and is unwilling to accept or unable to adapt to a permanent placement.

{¶ 10} In making the decision, a court must consider all of the following relevant

factors found in R.C. 2151.414(D):

(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;

-3- Butler CA2016-12-241

(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 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.

{¶ 11} After reviewing the record, we find that the juvenile court did not err by granting

the PPLA where the court's decision was supported by clear and convincing evidence that

the PPLA was in the child's best interest. During the hearing, the court heard evidence

regarding the factors above. Specifically, the court heard testimony that M.K. and Father had

a very strained relationship, and that M.K. wanted to remain in her foster care placement

rather than be returned to Father.

{¶ 12} The state presented testimony from the caseworker who worked with M.K.,

Mother, and Father during the inception of the case. The caseworker testified that as part of

Father's ongoing case plan, he was told to take a psychological assessment and follow up

with any recommendations, some of which were anger management classes and individual

counseling. Father requested that he be removed from the case plan, and then several

months later, requested to be added back onto the case plan. The caseworker testified that

while Father completed one aspect of the case plan, others were not completed.

{¶ 13} For example, the caseworker testified that Father and the child were to attend -4- Butler CA2016-12-241

joint therapy sessions, but Father walked out of the second therapy session. Based on the

interaction between Father and the child, the therapist recommended that family therapy stop

because it would not be productive. Father never completed his individual therapy. The

caseworker also testified that at all times, the child's wishes remained staying in foster care

and not returning to Father.

{¶ 14} The child's foster mother also testified regarding the strained relationship

between Father and the child. Specifically, the foster mother testified that she heard Father

and the child in arguments, and on at least one occasion, the foster mother had to place

herself physically between Father and the child. On another occasion, the child requested to

be picked up only fifteen minutes into a visit with Father, and Father was also overheard

telling the child to "get the F out" of his house. The foster mother also testified that when she

left with the child, Father refused to allow the child to take personal belongings or school

supplies.

{¶ 15} During Father's testimony, he recalled that his relationship with the child broke

down when the child turned 12 years old and became disrespectful to him. Father testified

that he punished the child by hitting her with a belt and his hand. Father also admitted during

his testimony that he asked to be removed from the case plan at one time because, "if my

daughter does not want to return in my home then there's no sense in me taking the classes

and jumping hoops [sic] and bowing down to what it is that they want me to do."

{¶ 16} The child's mother testified that she agreed with the PPLA because it was in

the child's best interests to "stay away" from Father and that Father had never been anything

but "cruel" to the child over the years. Mother also testified that the child was doing well and

was well taken care of in her foster family's home. Mother also shared her opinion that since

the child has been in foster care, "everything about her has improved."

{¶ 17} The child's GAL recommended that the PPLA be granted, and the child -5- Butler CA2016-12-241

receive ongoing support during her transition into adulthood. The magistrate also conducted

an in camera interview with the child. The magistrate determined that the child was

"extremely mature and able to thoughtfully express her wishes and concerns, and those

wishes and concerns were taken into account in issuing this decision."

{¶ 18} After reviewing the evidence, we find that the juvenile court did not err by

granting the Agency's motion for a PPLA for M.K., as it was in the child's best interest and

other statutory mandates were satisfied. Therefore, Father's first assignment of error is

overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE JUVENILE COURT'S DECISION TO DENY APPELLANT/FATHER'S

MOTION FOR CONTINUANCE VIOLATED HIS RIGHT TO COUNSEL.

{¶ 21} Father argues in his second assignment of error that the juvenile court erred by

denying his motion for a continuance.

{¶ 22} According to Juv.R. 23, "Continuances shall be granted only when imperative

to secure fair treatment for the parties." The decision whether to grant or deny a motion for a

continuance is within the trial court's sound discretion. In re J.D., 12th Dist. Fayette No.

CA2017-02-002, 2017-Ohio-4229. The factors a trial court should consider in ruling on such

a motion include the length of the delay requested, the inconvenience to other litigants,

witnesses, opposing counsel and the trial court, whether the requested delay is for a

legitimate reason or dilatory and contrived, whether the party requesting the continuance

contributed to the circumstances giving rise to the requested continuance, and any other

factor relevant to the facts and circumstances of the case. Id.

{¶ 23} On the day before the hearing was to begin, Father requested a continuance

and then on the day of the hearing explained that he wanted time to obtain different counsel

than the attorney originally appointed to his case. Father told the court that he was not -6- Butler CA2016-12-241

"being represented properly and I am not comfortable with [counsel] and I would like a

continuance." Father's attorney then stated that Father believed there to be an "irreparable

breakdown in [the] attorney-client relationship between the two of us." Even so, Father's

attorney assured the court that he was willing and able to move forward with the hearing.

{¶ 24} The record contains ample evidence that the court did not err in denying

Father's request for a continuance. Father knew for almost two years that his child was

subject to the juvenile court's jurisdiction, and that he was involved in a custody issue with the

agency. Father had ample time to secure private or different counsel, but waited until the

day before the PPLA hearing to ask for time to secure different counsel. At the time Father

requested the continuance, all other parties, including the state, the court, Mother, and the

child's GAL, were ready to move forward with the case. The child was entitled to have her

placement determined with finality, particularly given the length of time already in foster care.

{¶ 25} Father indicates that he and his counsel could not work together and that his

counsel was not prepared for the hearing, yet the transcript of the PPLA hearing

demonstrates otherwise. Father's attorney presented a thorough case on behalf of Father's

opposition to the PPLA, and cross-examined witnesses to support Father's case. Father and

his counsel spoke and worked together throughout the trial, and Father's counsel objected to

questions and actively participated in the hearing. While the court granted the PPLA, that

does not mean that Father was denied effective counsel or a fair hearing on the matter.

Rather, the record clearly indicates that Father received fair treatment and was not

prejudiced by the lack of a continuance. To incur additional delay with a continuance would

not have altered the result, and would only have served to leave the child’s security and

stability tenuous.

{¶ 26} After reviewing the record, we find that the court did not err by denying Father's

motion for a continuance. Father's second assignment of error is, therefore, overruled. -7- Butler CA2016-12-241

{¶ 27} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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