In the Matter of: Jd.R., et al., C.R., Appellant.
from the Franklin County Court of Common Pleas No. 12JU-5813,
Division of Domestic Relation, Juvenile Branch
brief: James S. Sweeney, for appellant.
brief: Robert J. McClaren, for appellee, Franklin County
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.
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 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
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. 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.),  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
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." 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.
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.
20} C.R. asserts two assignments of error for our
[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
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 ...