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In re C.E.1

Court of Appeals of Ohio, First District, Hamilton

March 20, 2015

IN RE: C.E.1, C.E.2, C.E.3, and C.E.4.

         Appeal From Hamilton County Juvenile Court, Trial No. F08-1362X

          Christopher P. Kapsal, for Appellant Mother.

          Hamilton County Public Defender's Office and Kara C. Blackney, Attorney Guardian Ad Litem, for C.E.1, C.E.2, C.E.3, and C.E.4.

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee R. Slocum, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.

         Please note: this case has been removed from the accelerated calendar.

          OPINION

          FISCHER, PRESIDING JUDGE.

         {¶1} Mother appeals the decision of the Hamilton County Juvenile Court granting permanent custody of her four children to appellee Hamilton County Department of Job and Family Services ("HCJFS"). We find no merit in her two assignments of error and we affirm the trial court's judgment.

         {¶2} In her first assignment of error, mother contends that the trial court erred in denying her request for a continuance so that she could be present at the hearing on the motion for permanent custody. First, we note that mother did not raise the issue in her objections to the magistrate's decision. Therefore, she waived any error but plain error. See Juv.R. 40(D)(b)(3); In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 37.

         {¶3} Parents in a parental-termination case must be afforded "every procedural and substantive protection the law allows." In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); In re Kinney, 1st Dist. Hamilton No. C-020067, 2002-Ohio-2310, ¶ 5. Nevertheless, the parent does not have an absolute right to be present at all stages of the permanent-custody trial. In re S.B., 8th Dist. Cuyahoga Nos. 101159 and 101160, 2014-Ohio-4839, ¶ 39; In re J.W., 9th Dist. Summit No. 24924, 2009-Ohio-6957, ¶ 20. The decision whether to grant or deny a continuance lies within the trial court's discretion. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus. An appellate court will not reverse that decision absent an abuse of discretion. Id. at 67; In re EA., 1st Dist. Hamilton No. C-130041, 2014- Ohio-280, ¶ 4.

         {¶4} The record shows that mother requested a continuance at the second of three hearings on the motion for permanent custody. Her attorney told the court that his client had called him on the morning of the hearing. He said that she had told him that she had fallen down a flight of stairs and that "she was sore and bruised, " but that "she would like to be here." The magistrate denied the motion stating, "This is not our last date. We have another date."

         {¶5} The record does not show that mother was so severely injured that she could not appear at the hearing. Further, at the first hearing, which had occurred about a month before, the caseworker for HCJFS had completed her direct testimony and mother's attorney had begun cross-examination. At the second hearing, her attorney continued that cross-examination, as did the attorney for the children and the guardian ad litem. No other witness testified at the second hearing. Mother had had time to discuss with her attorney what had occurred at the first hearing. Her attorney thoroughly cross-examined the caseworker, and mother appeared at the third hearing. The record does not show that her appearance at the hearing would have changed the result of the proceedings.

         {¶6} Under the circumstances, we cannot say that the trial court's decision denying the continuance was so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983); E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, at ¶ 4. It certainly did not rise to the level of plain error. Therefore, we overrule mother's first assignment of error.

         {¶7} In her second assignment of error, mother contends that the trial court erred in adopting the magistrate's decision terminating her parental rights. She argues that the court failed to consider all of the statutory factors and that its decision was against the manifest weight of the evidence. This assignment of error is not well taken.

         {¶8} We note that R.C. 2151414, the applicable statute, has been amended twice, effective June and September of 2014. Generally, courts should apply the version of the statute in effect at the time the motion for permanent custody was filed, which is apparently what the trial court did. See In re Moody, 4th Dist. Athens No. 99CA62, 2000 Ohio App. LEXIS 3645, *15 (Aug. 7, 2000); In re Rodgers, 138 Ohio App.3d 510, 513-514, 741 N.E.2d 901 (12th Dist.2000). ...


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