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In re J.E.

Court of Appeals of Ohio, Third District, Marion

October 23, 2017

IN RE: J.E., SASHA STEELE - APPELLANT

         Appeal from Marion County Common Pleas Court Family Division Trial Court No. 15 AB 0016

          Robert C. Nemo for Appellant.

          Justin J. Kahle for Appellee.

          OPINION

          PRESTON, P.J.

         {¶1} Appellant, Sasha Steele ("Steele"), appeals the March 8, 2017 judgment entry of the Marion County Court of Common Pleas, Family Division, granting permanent custody of her minor child, J.E., to appellee, the Marion County Children's Services Board ("the Agency"). For the reasons that follow, we affirm.

         {¶2} J.E. is the minor child of Steele and Jordan Emmons ("Emmons") born in December of 2014. (Doc. No. 1).[1] On January 6, 2015, the Agency filed a complaint alleging that J.E. was an abused and dependent child under R.C. 2151.031 and R.C. 2151.04, respectively. (Id.). That same day, the Agency filed a "motion for ex parte/emergency orders with notice of hearing." (Doc. No. 3). Also on January 6, 2015, the trial court granted the Agency pre-dispositional interim custody of J.E. and also granted the Agency's "motion for ex parte/emergency orders with notice of hearing." (Doc. Nos. 4, 5).

         {¶3} At multiple points in the case, the Agency submitted case plans to the trial court, which the trial court approved and incorporated into disposition entries. (Doc. Nos. 36, 63, 99). The Agency also filed semiannual administrative reviews. (Doc. Nos. 31, 38, 61, 83).

         {¶4} On January 13, 2015, the trial court appointed a guardian ad litem ("GAL") for J.E. (Doc. No. 9). On January 23, 2015, the trial court appointed counsel for Steele. (Doc. No. 13). On March 30, 2016, the trial court appointed counsel for Emmons.[2] (Doc. No. 45).

         {¶5} After a shelter-care and pre-trial hearing on January 28, 2015, the trial court on February 11, 2015 issued an order that temporary custody of J.E. remain with the Agency and scheduled the matter for adjudication on March 13, 2015. (Doc. No. 17). That adjudication was continued on the trial court's motion because Steel was not transported to the hearing. (Doc. No. 21).

         {¶6} On March 27, 2015, Steele stipulated that J.E. was a dependent child under R.C. 2151.04. (Doc. No. 27). The trial court found J.E. dependent and dismissed the abuse complaint. (Id.). On April 15, 2015, the trial court ordered that temporary custody of J.E. remain with the Agency. (Doc. No. 28). At multiple points after adjudicating J.E. a dependent child and awarding temporary custody to the Agency, the trial court reviewed that disposition but did not alter it. (See Doc. Nos. 33, 35, 37, 47, 70, 72. 75).

         {¶7} On April 26, 2016, the Agency filed a motion for permanent custody of J.E. (Doc. No. 48). The trial court scheduled the permanent custody hearing for July 18, 2016. (Doc. No. 49). On July 7, 2016, Steele filed a motion to continue that hearing. (Doc. No. 65). On July 12, 2016, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 66). The trial court granted the motion to continue on August 8, 2016 and rescheduled the permanent custody hearing for November 7, 2016. (Doc. No. 67). The permanent custody hearing set for November 7, 2016 was continued by agreement of the parties. (Doc. No. 97 at 4).

         {¶8} On January 6, 2017, Steele filed a motion to continue the permanent custody hearing set for January 12, 2017. (Doc. No. 86). On January 10, 2017, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 87). The trial court denied the motion to continue on January 11, 2017. (Doc. No. 88).

         {¶9} The trial court held a permanent custody hearing on January 12, 2017. (Doc. No. 97). The guardian ad litem submitted his report and recommendation on January 30, 2017 and recommended that the trial court grant the Agency's motion for permanent custody. (Doc. No. 92). On March 8, 2017, the trial court filed its judgment entry granting the Agency permanent custody of J.E. (Doc. No. 97).

         {¶10} On March 30, 2017, Steele filed her notice of appeal. (Doc. No. 101). She brings three assignments of error for our review.

         Assignment of Error No. I

         The Trial Court Abused Its Discretion When It Denied Appellant's Motion For [A] Continuance.

         {¶11} In her first assignment of error, Steele argues that the trial court abused its discretion in denying her motion to continue the January 12, 2017 permanent custody hearing. Specifically, Steele argues that the trial court abused its discretion in denying her motion for a continuance because she planned to move into a sober living house, had a probation violation hearing scheduled for January 18, 2017, in Delaware County, and needed more time to complete programming and make herself better able to care for her daughter. Steele also argues that the trial court's one-sentence entry denying her motion to continue did not consider the factors that a court must consider in determining whether to grant a continuance. Steele further argues that the trial court abused its discretion in denying her motion to continue because there was "some haste" on the Agency's part when it filed its motion for permanent custody of J.E. (Appellant's Brief at 10).

         {¶12} "Continuances shall be granted only when imperative to secure fair treatment for the parties." In re Distafano, 3d Dist. Seneca No. 13-06-14, 2006-Ohio-4430, ¶ 11, quoting Juv.R. 23. "A decision by the trial court to deny a motion for continuance is within the sound discretion of the trial court and should not be reversed absent a showing of abuse of that discretion." Id., quoting In re Miller, 3d Dist. Auglaize No. 2-04-02, 2004-Ohio-3023, ¶ 7. The term "abuse of discretion" refers to a decision that is "arbitrary, unreasonable, or unconscionable." Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 275 (1984), citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359 (1981) and State v. Adams, 62 Ohio St.2d 151, 157 (1980).

         {¶13} In considering a motion for a continuance, a court should consider (1) the length of the delay requested; (2) whether other continuances have been requested and granted; (3) any inconvenience to parties, witnesses, opposing counsel, and the court; (4) whether the requested delay is for a legitimate purpose or is instead dilatory, purposeful, or contrived; (5) whether the defendant contributed to the situation that gives rise to the motion for a continuance; and (6) other relevant factors, depending on the unique facts of a case. In re J.D., 3d Dist. Hancock ...


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