In re R.F.

2023 Ohio 297

• Court: Ohio Court of Appeals
• Decided: February 1, 2023
• Docket: 30400
• Status: Published

Opinion

[Cite as In re R.F., 2023-Ohio-297.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: R.F. C.A. No. 30400

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 21 03 0168

DECISION AND JOURNAL ENTRY

Dated: February 1, 2023

HENSAL, Judge.

{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common

Pleas, Juvenile Division, that terminated her parental rights and placed her child in the permanent

custody of Summit County Children Services Board (“CSB” or “the agency”). This Court affirms.

I.

{¶2} Mother is the biological mother of R.F., born March 10, 2021.1 CSB removed the

child from Mother’s care two days after her birth and filed a complaint alleging that R.F. was

abused (endangered) and dependent. The agency premised its complaint on allegations of the

parents’ drug use, mental health issues, and inability to meet the child’s basic needs. Mother and

Father stipulated to probable cause for the child’s removal and agreed to an emergency order of

temporary custody to CSB.

1 The child’s paternity was established by genetic testing. Although Father appeared for the first three hearings in the case, his whereabouts thereafter were unknown. He has not appealed the juvenile court’s award of permanent custody. 2

{¶3} Both parents attended the adjudication, waived their hearing rights, and stipulated

to a finding of the child’s dependency. CSB withdrew its allegation of abuse. Both parents also

attended the disposition, waived their hearing rights, and stipulated to a finding that CSB had used

reasonable efforts to prevent the child’s removal, to the adoption of the agency’s proposed case

plan, and to an order placing R.F. in the temporary custody of CSB. The case plan required Mother

and Father to maintain a source of income to provide for the child’s basic needs, obtain chemical

dependency and mental health assessments, and follow all recommendations. The parents were

allowed supervised visitation in the discretion of CSB and the guardian ad litem.

{¶4} During the next six months, the juvenile court held two review hearings. Neither

parent appeared for either hearing, although both were represented by counsel.2 Two months later,

CSB filed a motion for permanent custody of R.F. The agency alleged that the child could not or

should not be returned to either parent based on their (1) failures to remedy the concerns that

necessitated the child’s removal, (2) chronic mental health issues and chemical dependencies,

and/or (3) lack of commitment to the child. CSB further alleged that an award of permanent

custody was in the child’s best interest. Mother and Father each filed motions for temporary

custody or, alternatively, a six-month extension of the agency’s temporary custody.

{¶5} Despite having been properly served, neither parent appeared for the Monday

morning permanent custody hearing. Immediately prior to the hearing, Mother’s attorney orally

moved for a continuance or, alternatively, for permission for Mother to appear remotely. As

2 Neither Mother nor Father appeared for a later sunset hearing before a magistrate approximately one year after CSB filed its complaint. 3

grounds, Mother’s attorney asserted that Mother had informed her the prior evening that she had

been exposed to the Covid virus on Friday, and experienced symptoms during the weekend. The

juvenile court judge directed Mother’s counsel to place a phone call to Mother on the record.

Mother did not answer the call. Her attorney left a voicemail message directing Mother to return

the call. The juvenile court then inquired of the other parties. After consideration, the juvenile

court noted that Mother’s remote appearance was not possible as she did not answer her attorney’s

phone call. The court moreover denied Mother’s motion for a continuance after citing and

weighing relevant factors it asserted were commonly relied upon by Ohio case law.

{¶6} After an evidentiary hearing, the juvenile court denied Mother’s and Father’s

alternative motions for temporary custody or a six-month extension of temporary custody to the

agency. The court granted CSB’s motion for permanent custody and terminated Mother’s and

Father’s parental rights. Mother filed a timely appeal and raises one assignment of error for this

Court’s review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DENYING MOTHER’S MOTION FOR CONTINUANCE OF THE PERMANENT CUSTODY TRIAL.

{¶7} Mother argues that the juvenile court abused its discretion by denying her oral

motion to continue the permanent custody hearing. This Court disagrees.

{¶8} The Ohio Rules of Juvenile Procedure state that “[c]ontinuances shall be granted

only when imperative to secure fair treatment for the parties.” Juv.R. 23. Summit County Court

of Common Pleas, Juvenile Division, has also promulgated Local Rules of Practice and Procedure,

one of which addresses motions for continuances as follows: 4

(A) A continuance will not be granted unless the party requesting the continuance demonstrates to the [Court] that there is an emergency or other unanticipated circumstance necessitating the continuance[.] * * * The decision to grant or deny a continuance is discretionary * * *.

(B) All requests for continuances must be made in writing and filed seven days before the scheduled hearing date. However, the Court may consider a Motion for Continuance that is filed less than seven days before the scheduled hearing date upon demonstration of emergency or for other unforeseen circumstances.

Loc.R. 5.03.

{¶9} This Court recognizes the juvenile court’s discretion in determining whether to

grant or deny a continuance, even where a parent is facing a termination of parental rights. See,

e.g., In re L.M., 9th Dist. Summit No. 29687, 2020-Ohio-4451, ¶ 5; and In re J.J., 9th Dist. Medina

No. 19CA0008-M, 2019-Ohio-2152, ¶ 7. That discretion contemplates “a balancing of any

potential prejudice to a [party against] 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.” (Internal quotations

omitted) In re L.M. at ¶ 5, quoting State v. Unger, 67 Ohio St.2d 65, 67 (1981). The juvenile court

should balance various factors when considering a motion for a continuance, including “the length

of the continuance sought; whether the hearing has already been continued; [ ] the inconvenience

to other parties and/or counsel, witnesses, and the trial court[;] * * * whether the requested delay

is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the [party]

contributed to the circumstance which gives rise to the request for a continuance; as well as any

other relevant issues arising from the unique facts of the case.” (Internal quotations omitted) In

re L.M. at ¶ 5, quoting Unger, 67 Ohio St.2d at 67-68. A trial court has abused its discretion only

if its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). 5

{¶10} Here, Mother’s attorney informed the juvenile court that Mother called her the prior

evening to report that she had been exposed to the Covid virus that weekend and was experiencing

symptoms. Counsel requested that Mother be permitted to appear at the permanent custody

hearing remotely via Zoom or, alternatively, that the court continue the hearing. When counsel

called Mother on the record at the court’s direction, Mother did not answer the call. Neither did

Mother return counsel’s phone call despite counsel’s voicemail message to Mother to do so.

{¶11} Father’s attorney did not oppose a continuance, particularly because Father was

also not present for the hearing despite having been properly notified. The assistant prosecutor

opposed a continuance based on Mother’s failure to attend the last three hearings, as well as in the

interest of timely permanence for the child. The guardian ad litem agreed with the assistant

prosecutor and further reported that Mother had not been visiting with the child or participating in

case plan requirements, had not provided any evidence that she had tested positive for Covid, and

that she currently had an outstanding warrant.

{¶12} The juvenile court noted that Mother’s request to participate in the permanent

custody hearing remotely could not be accommodated only because Mother failed to answer her

attorney’s phone call placed during the time scheduled for the hearing. The court then denied

Mother’s motion for a continuance based on (1) Mother’s failure to attend the prior three court

hearings, (2) her ongoing failure to visit with the child or participate in reunification services, (3)

her failure to answer her attorney’s phone call or return that call so that she might appear remotely

for the hearing, (4) the inconvenience to the attorneys, CSB caseworker, volunteer guardian ad

litem, and the visiting judge presiding over the case, (5) the acknowledgement by those present

that schedules would prevent rescheduling the hearing for at least another three months, (6)

consideration for the child’s caretaker, (7) the child’s need for permanence, and (8) its “strong 6

suspicion * * * that this is a contrived excuse to not appear and to cause delay in the proceedings.”

Based on this Court’s review, we conclude that the juvenile court did not abuse its discretion by

denying Mother’s motion for a continuance.

{¶13} Mother had not requested any prior continuances of the permanent custody hearing.

She had failed for some time, however, to appear for any hearings or participate in the case in any

meaningful way. She had not begun to engage in any case plan services, as evidenced by the

orders issued out of the prior review hearings. The agency caseworker reported that Mother had

not visited with R.F. at all during the seven weeks prior to the scheduled permanent custody

hearing.

{¶14} Mother’s attorney could not specify the length of the delay requested or indicate

when Mother might be available to attend a rescheduled hearing. Mother did not follow through

in good faith on her alternative request to appear remotely for the hearing when she failed to answer

or return her attorney’s phone call during the time Mother was aware had been scheduled for the

hearing. See Juv.R. 23.

{¶15} Mother’s interests were represented at the hearing. Her attorney cross-examined

the agency’s sole witness. All other parties (with the exception of Father, whose absence could

not be accounted for by his attorney), attorneys, and witnesses were present and prepared to

proceed with the permanent custody hearing. The visiting judge noted that the current hearing

date had to be scheduled six months after the most recent prior hearing to accommodate everyone’s

schedules. Everyone present agreed that they would be unavailable for another hearing date for at

least three months. 7

{¶16} The child had been removed from Mother’s care when two days old and in custodial

limbo her entire 14-month life and required timely permanence. R.F.’s lifelong caregiver was

willing to provide a permanent home for the child.

{¶17} After the guardian ad litem had earlier informed the juvenile court that there was

an outstanding warrant for Mother, the agency caseworker testified regarding some details.

Mother had been charged six months earlier with telephone harassment against Father. That

criminal charge gave rise to the currently pending warrant. While she may have been motivated

to avoid subjecting herself to the possibility of arrest if she appeared in court, Mother declined to

make herself available to participate remotely in the hearing.

{¶18} Under the circumstances, this Court concludes that the juvenile court did not abuse

its discretion by denying Mother’s oral motion to continue the permanent custody hearing. Mother

might have appeared remotely for the hearing as she requested in the alternative, but she failed to

take advantage of that opportunity. Delaying the proceedings would have inconvenienced the

other parties, attorneys, guardian ad litem, agency caseworker, and visiting judge, all of whom

were prepared to proceed with the hearing. Mother’s attorney could not provide the juvenile court

with any estimate as to the length of delay Mother was requesting. The alleged cause of Mother’s

request for a continuance could not be attributed to any other party involved in the case. It was

not unreasonable for the visiting judge to suspect that Mother’s proffered reason for her inability

to appear in person was contrived, given the outstanding warrant for her arrest, coupled with her

failures to attend any hearings after the initial disposition, participate in reunification services, and

visit recently with the child. Although she was not present, Mother’s counsel continued to

represent Mother’s interests, as she had in prior hearings. The juvenile court’s denial of Mother’s 8

request to continue the permanent custody hearing in this case was not unreasonable. Mother’s

assignment of error is overruled.

III.

{¶19} Mother’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT 9

SUTTON, P. J. CARR, J. CONCUR.

APPEARANCES:

SHUBHRA AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

PAUL GRANT, Attorney at Law, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.