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In re Jd.R.

Court of Appeals of Ohio, Tenth District

May 23, 2017

In the Matter of: Jd.R., et al., C.R., Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 12JU-5813, Division of Domestic Relation, Juvenile Branch

          On brief: James S. Sweeney, for appellant.

          On brief: Robert J. McClaren, for appellee, Franklin County Children Services.

          DECISION

          BRUNNER, J.

         {¶ 1} Appellant-mother, C.R., appeals an April 13, 2016 judgment entry from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. The trial court in its entry granted appellee, Franklin County Children Services ("FCCS"), permanent custody of three of C.R.'s five minor children. Because we find that the trial court did not abuse its discretion in denying C.R.'s request that the case be continued, and because we find the trial court's decision was appropriately supported by the evidence, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} This Franklin C.P. case, No. 12JU-5813, commenced on April 26, 2012 on FCCS' filing a complaint regarding all four of C.R.'s children then in existence, Jd., Kv., Jy., and Kh. (Apr. 26, 2012 Compl.) FCCS alleged in its complaint that C.R. was abusing prescription pain pills and not adequately providing a safe home or food for the children. Id. FCCS also alleged that the two fathers[1] of the four children gave cause for concern related to propensities for domestic violence. Id. at 2. The same day the complaint was filed the trial court granted emergency custody to FCCS. (Apr. 26, 2012 Emergency Care Order.) Following hearings on April 27 and July 9, 2012, and with the recommendation of a guardian ad litem for the children, the trial court ordered temporary custody of all four children to FCCS. (July 18, 2012 Decision & Entry on Temporary Custody; May 3, 2012 Guardian ad Litem Report.)

         {¶ 3} Following a number of continuances of the case and an extension of temporary custody by the trial court, FCCS moved on September 12, 2013 for permanent custody of all four children. (Sept. 12, 2013 Mot. for Permanent Custody; May 6, 2013 Decision & Entry Extending Temporary Custody.) FCCS alleged in its motion that the children were doing well, having been placed in foster care on December 18, 2012. (Sept. 12, 2013 Mot. for Permanent Custody at 4.) FCCS argued that C.R. had not pursued drug abuse treatment, had taken only 10 out of 97 requested random drug screens, and had produced a positive result in 9 out of the 10 she took. Id. at 5.

         {¶ 4} After a number of failed attempts to place the children with relatives of the parents and (for one brief period) to give temporary custody of Jd. and Jy. to their father, on March 28, 2016, the trial court convened a hearing to decide the permanent custody motion. See, e.g., Nov. 3, 2014 Temporary Custody Order; Jan 21, 2015 Entry Terminating Custody to T.T. At the outset, the trial court noted that C.R. was present but was serving at that time a sentence of incarceration for convictions for heroin trafficking. (Mar. 28, 2016 Tr. at 7-12.) The trial court denied a motion to continue the case beyond the hearing in order to permit C.R. time to be released from prison and to fashion living arrangements to attempt to serve as an appropriate placement for the children. Id.

         {¶ 5} The trial court also noted that during the pendency of case No. 12JU-5813, C.R. had given birth to another child, L.R., and that permanent custody of that child was being sought by FCCS in Franklin C.P. No. 14JU-13221. Id. at 6. But in that case, when the trial court determined that proper service had not been obtained on the father of L.R., it continued the No. 14JU-13221 case. Id. at 74-76. The trial court additionally dismissed the custody motion of the father of Kv. and Kh. and granted his attorney leave to withdraw. Id. at 77-78. Kv. and Kh.'s father was not personally present to prosecute his custody motion, having been indicted for another felony, and he had not sufficiently communicated with his attorney to enable the attorney to represent his interests. Id.

         {¶ 6} Before addressing contested custody issues in the earlier filed case No. 12JU-5813 case, the trial court addressed a motion by the children's maternal grandmother for custody of Kv. Id. at 50-63. It interviewed Kv. in camera. Kv. told the court that living with C.R. was her first choice but, if that were not possible, she would like to live with her grandmother. Id. at 28-30. After hearing testimony from Kv.'s grandmother as to her interest in obtaining custody of Kv., and with the agreement of all other interested parties to the suit, the trial court maintained wardship of Kv. but ordered permanent legal custody to her maternal grandmother. Id. at 52-63; Mar. 31, 2016 Entry Granting Custody of Kv. Thus, as the contested portion of the hearing commenced, the only case remaining at issue was case No. 12JU-5813 with the hearing focused on resolving custody issues for Jd., Jy., and Kh.

         {¶ 7} The trial court conducted in camera interviews of both Jd. and Kh.[2] Jd., almost age ten at the time of the interview, told the trial court judge that he preferred to reside with his mother, C.R. (Mar. 28, 2016 Tr. at 16.) However, if that was not possible, he wanted to live with his foster family. Id. Kh., who was approximately four and one-half at the time of the interview, had less understanding of the nature of the proceedings. However, she was clear that she wanted to stay with her foster family (which also had temporary custody of Jy. and L.R.) "forever." Id. at 35-38.

         {¶ 8} During the three-day hearing, four other witnesses testified: Erinn Anderson (the caseworker for the case), Vicki Rush (the children's guardian ad litem), T.T. (father of Jd. and Jy.), [3] and C.R.

         {¶ 9} Anderson testified that she had been the caseworker for C.R.'s family since November 28, 2011. Id. at 173-74. She confirmed what the docket filings show, that FCCS first received emergency custody of the children on April 27, 2012 and temporary custody following a hearing on July 9, 2012. Id. at 176-77. The case plan required C.R. to complete an alcohol and drug assessment, follow through with treatment recommendations, complete random urine screens, maintain housing, acquire legal income, and link with designated programs including ones that addressed Jy.'s special needs. Id. at 177-78. Kh. had been born opiate positive, indicating C.R.'s need for alcohol and drug assessment and treatment. Id. at 178. But C.R. did not pursue testing and treatment despite being given referrals to appropriate treatment centers. Id. at 178-80. During the full course of the case, C.R. completed just 21 of 230 requested random drug screens with the last one occurring on September 12, 2014. Id. at 180-81. Although Anderson testified that C.R. maintained consistent employment throughout the case, it did not provide C.R. with sufficient income to raise five children. Id. at 187-88. She did not have stable housing outside of incarceration, as was her status at the time of the hearing. Id. at 185-87.

         {¶ 10} Though Anderson testified that the children seemed fond of their mother and that visits with C.R. generally went well, there were long periods (mainly due to incarceration) when C.R. did not visit her children. Id. at 189; Mar. 29, 2016 Tr. at 62-63. In Anderson's judgment, only the oldest of C.R.'s children, Jd., had a real relationship with C.R.; the others had spent the majority of their lives in foster care. (Mar. 28, 2016 Tr. at 191-92.) Anderson observed that C.R. was challenged during visits with the five of them and had trouble managing and paying enough attention to all of them when they were together. Id. at 188, 190-91.

         {¶ 11} Anderson testified that Jd. had been placed in homes other than C.R.'s 12 times since FCCS had been involved with the family. (Mar. 29, 2016 Tr. at 33-34.) She explained that Jd. had been in his current placement since January 20, 2015, when his father returned him to the custody of FCCS shortly after receiving temporary custody. Id. Anderson testified that Jd. had an excellent relationship with his current foster parents, "Momma Dee" and "Momma Tabs, " and they planned to adopt him if the trial court granted permanent custody to FCCS. Id. at 35.

         {¶ 12} Jy. and Kh. have experienced six and seven placements, respectively, during their time in the FCCS system. Id. at 36. Anderson stated that both had been in their current placement since July 31, 2013 with the exception of a brief interval in which Jy. was placed with her father. Id. at 37. The relationship with their foster family was very good. Id. at 38. Jy. and Kh. were bonded to each other and their foster mom and dad whom they referred to as "Mom" and "Dad." Id. At the time of the hearing the other child, L.R., was also placed with that foster family. Id. at 39. Anderson reported that the foster family wished to adopt all three of the children if permanent custody were granted to FCCS. Id. Anderson also noted that the foster family would be open to keeping the siblings in touch with Jd. even if he were placed in a different household. Id. at 39-41.

         {¶ 13} Anderson stated that although C.R. testified that she was clean at the time of the hearing, she never completed treatment or established that fact through regular drug screens. Id. at 91. Having been the family's caseworker since FCCS' involvement in 2012, Anderson stated that she did not believe C.R.'s persistent challenges due to drugs, lack of stable housing, and lack of sufficient employment to provide for five children would change whether or not she was incarcerated. Id. Accordingly, Anderson recommended permanent custody be granted to FCCS. Id. at 42-43.

         {¶ 14} The guardian ad litem, Vicki Rush, testified that she had been the guardian for the children since May 19, 2015. Id. at 93. She stated that visits with C.R. were often somewhat chaotic. Id. at 94-95. She, too, stated that Jd. had a good relationship with both of his foster mothers, and she corroborated what Jd. had told the trial court in camera that he wanted to reside with C.R. but if he could not, would like to be adopted by his foster family. Id. at 98-100. Rush likewise corroborated that Kh. wished to stay with her foster parents. Id. at 101-02. Rush said that Jy. could not properly express herself but her behavior had led Rush to believe that she wished to stay with her foster parents. Id. Rush also testified that the children were all in prospective adoption placements with foster parents who wanted to adopt. Id. at 128.

         {¶ 15} C.R. appeared and testified during the hearing. She admitted that she was incarcerated at the time of the hearing for two fifth-degree felony convictions of heroin trafficking. (Mar. 28, 2016 Tr. at 85.) She clarified that her original sentence for these convictions was to successfully complete "intervention in lieu of conviction."[4] She had been sentenced to prison for failing to complete the program. Id. at 87. Her "out date" from prison was to be June 29, 2016, three months after her testimony, because she had qualified for a Treatment Transfer Program that authorized early prison release directly into inpatient treatment for a number of weeks (8 to 10, possibly more). Id. at 89-90; (Mar. 29, 2016 Tr. at 140-42). C.R. testified that she had not used drugs while in prison and that she had been attending 12-step meetings while in prison. (Mar. 28, 2016 Tr. at 101, 120.)

         {¶ 16} C.R. did acknowledge that her children had been removed from her house on April 26, 2012 and never returned because she abused and trafficked in drugs Id. at 90-92. She admitted that she never finished a treatment plan though she started twice. Id. at 94-96. She confirmed that she had not submitted to a drug screen for two and one-half years, since September 2014. Id. at 96-97. She at first attributed this to having been incarcerated for eight months. Id. But she admitted that she did not submit to drug screening when she was pregnant with L.R. The excuse she gave was being angry that FCCS had taken her child on the conclusion that she was still abusing drugs, which she denied. Id. She claimed to have taken only what the hospital had given her. Id. She also offered an excuse for failing to show for drug screening that a warrant had been issued for her arrest and the drug screening location was near a police station; again she asserted she had been sober anyway. (Mar. 29, 2016 Tr. at 151-52.) She also excused her failure to drug screen on her inability to find transportation even though she acknowledged she generally found transportation to visits with her children and that FCCS had given her bus passes. Id. at 152-54; Mar. 28, 2016 Tr. at 117-18. C.R. also claimed unspecified health issues had prevented her from being accepted for treatment with one provider. (Mar. 28, 2016 Tr. at 100.)

         {¶ 17} C.R. testified that when she was released from prison (and presumably after completing inpatient treatment) she planned to move into an apartment her sister had obtained for her and begin a job earning $70 per day as a mover with a company owned by a friend. Id. at 106-07. She admitted that a job moving furniture might not be ideal since her initial opiate addiction began in part out of the use of pain killers to treat scoliosis. (Mar. 29, 2016 Tr. at 155-56.) C.R. testified that she had good earning potential as a college graduate (with a degree as a medical assistant). Id. at 135. However, she also testified that she was in GED classes at the prison because, although she maintained that she had previously obtained a GED, she said the records had been lost. Id. at 137-39. She testified that she had consistent employment in fast food, warehousing, babysitting, and cleaning. Id. at 136. She said she planned to get a bigger house for her and her kids. Id. at 134-35. Although she acknowledged that she could not care for her children while incarcerated and addicted to drugs, she expressed confidence that she would be able to when she was released and that they would all "just have a blast." Id. at 147.

         {¶ 18} She confirmed that her relationship with her kids was good but suggested that some of the problems were the result of FCCS intervention. Id. at 143-49. She admitted that the foster family that had custody of Kh., Jy., and L.R. was providing a good home for them. Id. at 156-57. However, she said she believed that Jd. would not turn out to be a good person if she were not allowed to have custody of him. Id. at 163.

         {¶ 19} Following the hearing, the trial court granted FCCS' permanent custody motion. (April 13, 2016 Jgmt. Entry.) C.R. now appeals.

         II.ASSIGNMENTS OF ERROR

         {¶ 20} C.R. asserts two assignments of error for our review:

[1.] THE TRIAL COURTS FINDING THAT FCCS' MOTION FOR PERMANENT CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
[2.] THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT C.R.'S MOTION FOR A CONTINUANCE

         III. DISCUSSION

         A. Second Assignment of Error-Whether the Trial Court Abused its Discretion in Denying C.R. a Continuance to Permit her to be Released from Prison and Complete her Case Plan

         {¶ 21} At the outset of the hearing on granting permanent custody of C.R.'s children to FCCS, C.R. moved for a continuance of unspecified length to permit her time to be released from prison and complete treatment through an inpatient program. (Mar. 28, 2016 Tr. at 7-8.) FCCS and the guardian ad litem opposed the motion on the grounds that C.R. had already had years in which to complete her case plan and seek treatment and had not done so. Id. at 8-10. In addition, they argued that the inpatient program could be lengthy, might not even commence for over a month, and that the children needed permanence. Id. The remaining parties to the case supported the continuance. Id. at 10-12. The trial court denied the continuance on several grounds: the children had been waiting a long time already, the permanent custody motion had been pending for years, there was no clarity about how long the continuance would be (it could have been lengthy), and the case had been delayed long enough. Id. at 12. In short, the trial court found that the interests of the children in seeing the case concluded with permanency outweighed C.R.'s interest in having yet another opportunity to complete her case plan. Id. C.R. now argues that the trial court abused its discretion in reaching this conclusion.

         {¶ 22} "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge." State v. Unger, 67 Ohio St.2d 65, 67 (1981). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the ...


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