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In re J.W.

Court of Appeals of Ohio, First District, Hamilton

July 3, 2019

IN RE: J.W. and H.W.

          Hamilton County Juvenile Court Trial No. F14-172.

          Christopher P. Kapsal, for Appellant Mother

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jacqueline O'Hara, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services

          Raymond T. Faller, Hamilton County Public Defender, and Amanda Robinson, Assistant Public Defender, Guardian ad Litem for the minor children.

          OPINION

          BERGERON, JUDGE.

         {¶1} We confront in this case a parental termination dispute in which Mother did not appear at the hearing as a result of her incarceration. Although she presents this as a due-process violation, she failed to challenge this issue before the juvenile court on review of the magistrate's order, which limits our review to plain error. Given that she failed to avail herself of alternative means of appearance (such as by deposition), we cannot say that the trial court committed plain error in proceeding with the hearing notwithstanding her absence. Our independent review of the record further convinces us that the weight of the evidence supported the juvenile court's determination. We accordingly affirm the judgment below.

         I.

         {¶2} Hamilton County Department of Job and Family Services ("HCJFS") became involved with Mother and her children in 2015. At that time, it opened a dependency matter based on reports of physical abuse toward the two children concerned in this appeal, J.W. and H.W., along with three of their siblings. J.W. and H.W. were eventually adjudicated dependent and placed under protective supervision of HCJFS, which subsequently escalated to a grant of interim custody and then temporary custody to HCJFS in 2017. After two extensions of temporary custody, HCJFS ultimately sought permanent custody.

         {¶3} At the August 2018 pretrial conference regarding the custody hearing, Mother's attorney informed the court that, due to pending charges against Mother, he anticipated that Mother would be incarcerated at the time of the hearing and unable to attend. Counsel accordingly requested a continuance to enable Mother to fully participate in the hearing. The magistrate denied the request, however, and instructed counsel to secure alternative means for Mother's participation (such as attendance by phone or video) if she was incarcerated at the time of the hearing. Despite the denial of this request, the court rescheduled the hearing twice, and it eventually took place on October 29, 2018.

         {¶4} Counsel's prediction proved accurate, as Mother was serving 90 days' incarceration for smuggling drugs into a detention facility and not due to be released until mid-December 2018. Despite contacting the jail in Ross County (where Mother was incarcerated) in an effort to secure other means for Mother's participation in the October hearing, the jail informed counsel on October 2 that it could not accommodate either transporting Mother to the hearing or telephone participation for Mother. Subsequently, at the October hearing, counsel reiterated the request that the hearing be continued. HCJFS protested yet another delay, emphasizing the multiple reschedulings of the hearing. The hearing ultimately continued without Mother's presence, but she was represented by counsel.

         {¶5} At the hearing, HCJFS adduced testimony regarding the children and Mother's participation in her case plan and progress. At the conclusion of the hearing, the magistrate took the matter under advisement and ultimately rendered a decision deeming it in the children's best interests that Mother's parental rights were terminated and permanent custody granted to HCJFS. Mother later lodged objections to the magistrate's decision, which the juvenile court overruled in adopting the magistrate's findings.

         {¶6} In the wake of this ruling, Mother now frames two assignments of error on appeal. Initially, she challenges the denial of the continuance of the hearing to ensure her presence as a violation of her due-process rights, and she also challenges both the weight and sufficiency of the evidence underlying the decision terminating her parental rights.

         II.

...


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