IN RE: N.R. B.R.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 11 07 0457 DN 11 07 0458
ADAM VAN HO, Attorney at Law, for Appellant. GREGORY A. PRICE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
MOORE, Presiding Judge.
(¶1} Appellants, Amber S. ("Mother") and N.R., Sr. ("Father"), appeal from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights and placed their two minor children in the permanent custody of Summit County Children Services Board ("CSB"). This Court affirms.
(¶2} Mother and Father are the natural parents of B.R., born April 26, 2008, and N.R., born March 24, 2011. On July 8, 2011, CSB filed complaints, alleging that the children were neglected primarily because of the parents' methamphetamine use and concerns about domestic violence in the home. Following the shelter care hearing, the trial court ordered that the children could remain in the home, where they had been residing with Mother and the maternal grandmother. The children were later adjudicated dependent children based on the parents' admissions that they had drug abuse problems and needed treatment. Upon agreement of the parents, the children were placed in the temporary custody of CSB so the parents would have a better opportunity to work on the drug treatment goals of the case plan.
(¶3} During the pendency of the case, however, the parents did not participate in drug treatment, but instead continued their involvement in criminal drug activity. By April 2011, Mother and Father had been arrested and incarcerated for different drug-related offenses and other criminal charges. Each parent was later convicted and sentenced to a term of incarceration of at least two years.
(¶4} Prior to the birth of N.R., Mother, Father, and B.R. had lived with the paternal grandmother in Virginia for over a year. Although the paternal grandmother had initially stayed in Virginia when the parents moved with B.R. to Akron, she later relocated to this area and asked CSB to place the children in her home. The grandmother had supervised visits with the children for several months, although she did not consistently attend the visits. Because grandmother informed CSB's kinship assessor that she had been overusing prescribed pain medication and needed treatment, CSB did not place the children in her home and would not allow her to visit the children until she obtained treatment.
(¶5} On June 8, 2012, CSB moved for permanent custody of both children. Mother moved for an alternate disposition of legal custody to the paternal grandmother and Father supported that motion. Following a hearing on both motions, the trial court denied the motion for legal custody to the grandmother because she still had not taken steps to address her admitted abuse of prescription pain medication. The trial court also expressed concern that the grandmother lacked the commitment and financial resources to provide a permanent home for the children. Consequently, the trial court terminated the parents' parental rights and placed the children in the permanent custody of CSB. Mother and Father separately appealed and each raised two assignments of error. Their appeals were later consolidated. This Court will consolidate two of their assigned errors to facilitate our review.
FATHER'S ASSIGNMENT OF ERROR I
APPELLANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO BE PRESENT FOR THE HEARINGS WHEN THE FIRST DAY OF TESTIMONY WAS CONDUCTED WITHOUT HIS BEING PRESENT, IN VIOLATION OF SECTION 2151.414 OF THE OHIO REVISED CODE, THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION.
(¶6} Father's first assignment of error is that he was denied his right to due process because he was incarcerated and was not transported to court to attend the first day of the hearing. Father asks this Court to follow the due process reasoning of the Eleventh District Court of Appeals in In re Sheffey, 167 Ohio App.3d 141, 2006-Ohio-619 (11th Dist.). Aside from the analysis of that case hinging on distinguishable facts, this Court need not look to the decision of another jurisdiction to guide the analysis on this issue, as there is ample authority from this appellate district. See, e.g., In re CM., 9th Dist. Summit Nos. 23606, 23608 and 23629, 2007-Ohio-3999, ¶ 24. This Court has repeatedly held that the trial court does not violate the due process rights of an incarcerated parent by failing to order that he or she be transported to the permanent custody hearing so long as "the parent is represented by counsel at the hearing, a full record of the proceedings is made, and any testimony that the parent may wish to present could be offered by way of deposition." Id., citing In re Frasher, 9th Dist. Summit No. 18100, 1997 WL 537666, *2 (Aug. 20, 1997), In re Smith, 9th Dist. Summit No. 16778, 1995 WL 89455, *2 (Mar. 1, 1995), and In re Harding, 9th Dist. Summit No. 16552, 1995 WL 28993, *3 (Jan. 25, 1995).
(¶7} The record in this case includes a full transcript of the permanent custody hearing, which demonstrates that Father was represented by counsel throughout the hearing. Although Father did not attend the first day of the hearing, his counsel fully participated by giving an opening statement and cross-examining CSB's witnesses. Through the opening statement, counsel explained to the court that he had discussed the case with Father and that Father understood that he could not provide a home for the children at that time. He further conveyed Father's wishes that the court keep his family together by placing the children in the legal custody of the paternal grandmother. Counsel further asserted the reasons why Father believed that the grandmother was a suitable caregiver for the children.
(¶8} The transcript further reveals that Father was transported to court to attend the second day of the hearing and was able to present his testimony to the court in person. In fact, it was not Father's counsel but the trial judge who raised this issue prior to the commencement of the hearing. The judge explained on the record:
[T]he court did not receive a request to transport father until it was too late to do so. If father would like to be here for that hearing, we will also make arrangements for him to be transported for that second [day of] hearing so that he can provide any testimony or information that he has.
Father's counsel did not request a continuance of the first day of the hearing, nor did he raise any objection to the manner in which the trial judge planned to afford ...