Court of Appeals of Ohio, First District, Hamilton
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.
T. Deters, Hamilton County Prosecuting Attorney, and Lee R.
Slocum, Assistant Prosecuting Attorney, for Appellee Hamilton
County Department of Job and Family Services.
note: this case has been removed from the accelerated
FISCHER, PRESIDING JUDGE.
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
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.
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.
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
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
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
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.
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).