In re S.D.

2025 Ohio 5172

Opinion

[Cite as In re S.D., 2025-Ohio-5172.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

IN RE: CASE NO. 6-25-05 S.D.,

ADJUDICATED DEPENDENT OPINION AND CHILD. JUDGMENT ENTRY [EMMA D. - APPELLANT]

Appeal from Hardin County Common Pleas Court Domestic Relations Division Juvenile Section Trial Court No. 2023 3001

Judgment Affirmed

Date of Decision: November 17, 2025

APPEARANCES:

Tim Steinhelfer for Appellant

McKenzie J. Klingler for Appellee Case No. 6-25-05

MILLER, J.

{¶1} Emma D., mother of S.D., appeals the January 24, 2025 judgment of

the Hardin County Court of Common Pleas, Domestic Relations Division, Juvenile

Section, placing S.D. in the permanent custody of the Agency. For the reasons that

follow, we affirm.

Facts and Procedural History

{¶2} Emma D. and Hadon M. are the biological parents of S.D. On January

20, 2023, the day after his birth, the Hardin County Department of Job and Family

Services (“the Agency”) filed a complaint alleging that S.D. was a dependent child

pursuant to R.C. 2151.04. Specifically, the complaint alleged that Emma was

incarcerated at the time of S.D’s birth and that Emma and Hadon admitted that

S.D.’s sister, who had been living in their home, was an abused child after the child

was diagnosed with a non-accidental head trauma. The Agency also made a motion

requesting the trial court place S.D. in the temporary custody of the Agency. That

same day, the trial court filed an ex parte emergency order granting the Agency’s

motion for temporary custody.

{¶3} A shelter-care hearing was held on January 24, 2023. Hadon was

present at hearing; however, Emma, who was incarcerated, was not present. Upon

the agreement of the parties, the trial court ordered that S.D. shall remain in the

temporary custody of the Agency.

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{¶4} On January 24, 2023, the trial court appointed counsel for Emma. That

same day, Emma’s counsel filed a motion requesting that Emma be transported to

the adjudication hearing. On January 26, 2023, the trial court denied Emma’s

motion to be transported to the adjudication hearing. However, the trial court

ordered that Emma could be present via video.

{¶5} On February 21, 2023, the State filed the initial case plan, which

included Emma and Hadon as participants. The case plan was approved by the trial

court on February 28, 2023.

{¶6} An adjudication hearing was held on March 7, 2023. At the hearing,

Emma appeared by telephone and was represented by counsel who was present in

the courtroom. At the hearing, the parties entered into a number of stipulations

including that Emma was currently incarcerated having been charged with

endangering children in a case involving A.M., S.D.’s sister, and that Emma was

“unavailable” to parent S.D. The parties stipulated that the Agency made reasonable

efforts to prevent the removal and continued removal of S.D. from the home and

that it would be contrary to S.D.’s welfare and best interest to be returned to the

home of the parents. Emma and Hadon then admitted that S.D. is a dependent child

as defined in R.C. 2151.04 and stipulated to a finding in that regard. The trial court

accepted the parents’ admissions, and accordingly, adjudicated S.D. a dependent

child and found that the Agency made reasonable efforts to prevent S.D.’s continued

removal.

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{¶7} On September 1, 2023, the Agency filed its amended case plan.

Notably, Emma was not a party to the case plan due to her incarceration with a

projected release date in March 2025. Emma’s attorney filed a timely objection to

her removal from the case plan. According to the objection Emma was sentenced

to 30 months in prison as a result of her conviction for endangering children, with

respect to the case involving S.D.’s older sister. However, the objection alleged that

Emma would be eligible for judicial release in six months, on or about February 21,

2024, and “intends to re-engage the case plan services immediately at that time.”

{¶8} On September 7, 2023, the Agency filed its amended case plan which

did not include Emma as a member of the case plan, but included the provision that

“Emma can be added back to the case plan so long as she reports to the [Agency]

within 72 hours of release [from incarceration] and requests to be added back onto

the case plan.” The following day, Emma filed a motion to withdraw her objection

to the amended case plan. In her motion, Emma noted that the “case plan has been

. . . amended to correct the objection” and that “[t]he issue is now moot.” The trial

court granted Emma’s motion to withdraw her objection to the amended case plan.

{¶9} At the annual review hearing held on December 21, 2023, pursuant to

an agreement between the parties, the trial court continued the previous orders for a

period of six months and found that the Agency employed reasonable efforts to

prevent the continued removal of the child.

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{¶10} On January 31, 2024, the Agency filed a motion requesting that S.D.

be placed in the permanent custody of the Agency. On April 15, 2024, Hadon, who

was incarcerated1, filed a motion for transportation to the permanent-custody

hearing, or, in the alternative, to be permitted to attend the hearing telephonically or

virtually. The following day, the trial court granted approval for Hadon to appear

remotely at the permanent-custody hearing.

{¶11} The permanent-custody hearing was held on May 17, 2024. Emma

was not present at the hearing; however, her attorney was present. Hadon appeared

at the hearing virtually but Hadon’s attorney and Hadon’s guardian ad litem2 were

physically present for the hearing. On January 24, 2025, the trial court filed its

judgment entry granting permanent custody of S.D. to the Agency.

{¶12} Emma filed a timely notice of appeal. She raises a single assignment

of error for our review.

Assignment of Error

The trial court violated the Appellant’s due process rights in its failure to allow her remote presence at the permanent custody hearing when it demonstrably had the ability to facilitate such presence.

{¶13} In her assignment of error, Emma argues that the trial court erred by

not facilitating her presence at the permanent-custody hearing. Specifically, Emma

1 Hadon was indicted for endangering children on July 12, 2023 in the Hardin County Court of Common Pleas based upon injuries sustained by S.D.’s sister, A.M. (Doc. No. 75). 2 The trial court appointed a guardian ad litem for Hadon after it was determined that he had diminished mental capacity.

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contends that although she was represented by counsel at the permanent-custody

hearing, she was not able to assist in her own defense. Emma alleges that because

the trial court had the capability for her to appear at the permanent-custody hearing

remotely, the trial court erred by not arranging for her to do so. Emma argues that

because the right to parent a child is a fundamental right, her due process rights were

violated in this case. For the reasons that follow, we disagree.

Applicable Law & Standard of Review

{¶14} “‘Ohio courts have recognized that parents have a constitutionally-

protected right to be present at permanent custody hearings, but they have also

recognized that such a right is not absolute if the parent is incarcerated.’” In re

A.W., 2017-Ohio-1486, ¶ 15 (3d Dist.), quoting In re L.C., 2016-Ohio-8188, ¶ 10

(2d Dist.). “Courts have further held that the failure to transport a parent from prison

to a permanent custody hearing does not violate a parent’s due process rights when:

1) the parent is represented at the hearing by counsel; 2) a full record of the hearing

is made; and 3) any testimony that the parent wishes to present is able to be

presented by deposition or by other means.” Id., citing In re L.C. at ¶ 11.

{¶15} “‘A trial court has discretion to decide whether to proceed with a

permanent custody hearing without having an incarcerated parent conveyed.’” In

re M.R., 2011-Ohio-3733, ¶ 14 (2d Dist.), quoting In re Joseph P., 2003-Ohio-2217,

¶ 51 (6th Dist.). Therefore, we will not reverse such a decision absent an abuse of

discretion. An abuse of discretion constitutes a decision that is unreasonable,

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arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

Analysis

{¶16} It is not disputed that Emma was represented by counsel at the

permanent-custody hearing. Indeed, Emma’s counsel took an active role in the

proceedings and conducted cross-examination of the Agency’s sole witness.

Notably, her counsel at no time objected to Emma’s absence from the proceedings

nor did her counsel make any motion to continue the proceeding until such a time

as Emma could be present. Additionally, a full record of the hearing was made, as

evidenced by the full transcript of the proceeding filed along with the trial court

record in the instant case.

{¶17} With respect to the third factor, Emma did not file anything with the

trial court indicating her desire to present any type of testimony. Notably, there is

no indication Emma was denied the ability to present disposition testimony and did

not file any affidavits with the trial court. On the contrary, the parties filed a number

of stipulations, and the document was signed by Emma’s counsel. Included in the

document were stipulations that Emma was serving a 30-month sentence for

endangering children and is scheduled to be released on March 5, 2025 and is

currently unavailable to parent S.D. Moreover, Emma does not identify any

additional testimony she would have provided that would have materially affected

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the outcome of the proceeding. See In re R.L., 2012-Ohio-6049, ¶ 29 (2d Dist.); In

re M.R., 2011-Ohio-3733, at ¶ 18.

{¶18} Furthermore, although Emma was not present at the hearing, she was

represented by counsel who made arguments in opposition to the Agency’s motion

on her behalf and who engaged in a lengthy and robust cross examination of the

Agency’s sole witness. Critically, Emma did not file a motion requesting

transportation to the hearing or a request to attend the hearing by telephone or other

virtual means. Notably, Emma’s counsel had filed such a motion with respect to

the adjudication hearing which the trial court granted, and Emma was able to attend

that hearing through electronic means.3 Additionally, Hadon, who was also

incarcerated at the time of the permanent-custody hearing, filed a motion to

transport or, in the alternative, to allow him to attend the permanent-custody hearing

virtually, which the trial court granted. Accordingly, Emma and her counsel would

have been aware that they could petition the court to transport Emma to the hearing

or to allow her to attend the hearing virtually, yet elected not to do so.

{¶19} Furthermore, at the time of the permanent-custody hearing, Emma was

not a party to the case plan, a position that she does not contest 4. Thus, it appears

that Emma’s lack of presence at the permanent-custody hearing may have been a

3 We also note that Emma’s counsel filed a motion to appear by phone or Zoom for the annual review hearing. 4 Emma did initially object to her being removed from the case plan because of her incarceration. However, after the Agency modified the case plan to include the provision that Emma could be added to the case plan if she contacts the Agency within 72 hours of her release, she withdrew her objection on the grounds that it was moot. Emma was not released from incarceration prior to the permanent-custody hearing and was, therefore, never added back to the case plan.

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conscious decision on the part of Emma and her counsel. Even if the failure to

request to be transported to the hearing or attend virtually was an oversight, we do

not find that the trial court abused its discretion by proceeding with the permanent-

custody hearing without Emma being present. See In re A.W., 2017-Ohio-1486, at

¶ 20 (finding no due process violation where an incarcerated parent was not

transported to a permanent-custody hearing after filing a motion to transport); In re

A.C.H., 2011-Ohio-5595, ¶ 47 (4th Dist.) (“a parent does not suffer a violation of

the parent’s due process right to be present and heard at a permanent custody hearing

when the parent receives proper notice of the hearing and fails to request transport

from prison”); In re S.F.T., 2010-Ohio-3706, ¶ 7 (12th Dist.).

Conclusion

{¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we overrule the assignment of error and affirm the

judgment of the Hardin County Court of Common Pleas, Domestic Relations

Division, Juvenile Section.

WALDICK, P.J. and ZIMMERMAN, J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignment of error is

overruled and it is the judgment and order of this Court that the judgment of the trial

court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Mark C. Miller, Judge

Juergen A. Waldick, Judge

William R. Zimmerman, Judge

DATED: /jlm

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