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In re J. F.

Court of Appeals of Ohio, Twelfth District, Butler

August 7, 2019

IN RE: J. F.


          Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, for appellee

          The Search Law Firm, Lorraine M. Search, for appellant


          HENDRICKSON, P.J.

         {¶ 1} Father appeals the decision of the Butler County Court of Common Pleas, Juvenile Division, which granted Butler County Children Services permanent custody of Father's biological child, J.F. For the reasons discussed below, this court affirms the award of permanent custody.

         {¶ 2} On March 7, 2017, Butler County Children Services ("BCCS" or "the agency") filed a complaint alleging that J.F was a dependent child. The agency alleged that J.F.'s mother was depressed, homicidal, suicidal, hearing voices, and abusing substances. The complaint further alleged that J.F.'s father was incarcerated at the Mansfield Correctional Institution. BCCS requested temporary custody of J.F., which the court granted on the same day in an emergency ex parte order.

         {¶ 3} In April 2017, the juvenile court held a hearing, at which Mother appeared. Father, who was still incarcerated, did not appear. Mother stipulated to J.F.'s dependency and the court found J.F. dependent. The court continued temporary custody with the agency.

         {¶ 4} Over the course of the ensuing year, Mother continued to struggle with the issues that caused J.F.'s removal. The court held several review hearings at which it was determined that it was in J.F.'s best interest to extend temporary custody with BCCS. Finally, on July 30, 2018, BCCS moved for permanent custody of J.F. The court subsequently appointed counsel to represent Father in the permanent custody proceedings.

         {¶ 5} The court scheduled the permanent custody hearing for November 5, 2018, with a pretrial hearing set for October 22, 2018. On October 19, the agency filed a notice of intent to use evidence at the hearing. This evidence consisted of six documents, including social summaries, substance abuse and mental illness assessments, home studies, and an Ohio Department of Corrections website printout reflecting details concerning Father's incarceration.

         {¶ 6} At the October 22, 2018 pretrial, Father's counsel indicated that there was the possibility that Father might be released from prison as early as April 2019 and therefore asked the court to continue the permanent custody hearing. The court indicated it would not continue the case as the child had been in the agency's temporary custody for 589 days.

         {¶ 7} On October 31, 2018, Father moved for a continuance of the permanent custody hearing, reiterating the same arguments concerning a potential early release from prison. Father further indicated he was willing to engage in case plan services in order to reunify with J.F. Simultaneously, Father moved the court to order him transported to the Butler County Juvenile Court for the hearing. The court denied both motions in an entry issued on November 1, 2018.

         {¶ 8} The juvenile court held the permanent custody hearing as scheduled on November 5, 2018. Mother was present. Father was not present but was represented by counsel. Father's counsel indicated that Father wished to oppose the permanent custody motion but could not appear personally because of his incarceration. Father's counsel reiterated Father's requests to continue the hearing and to be transported to the hearing. The court again denied these requests.

         {¶ 9} Mother then surrendered her custodial rights. Next, the guardian recommended that the court grant permanent custody of J.F. to the agency. Afterwards, the agency offered to submit the documents it had referred to in the earlier filed notice of intent to use evidence. No objection was made by any party to this procedure or to potential hearsay in the documents. The court admitted those documents pursuant to its local rule. No contested hearing was held, and no witnesses testified. Again, no objections were made to this procedure.

         {¶ 10} On the same day of the hearing, the magistrate issued a decision recommending that the juvenile court grant permanent custody to BCCS. The decision indicated that Father had failed to appear for the hearing and was found in default. The decision referred to the documents submitted by the agency and adopted the facts in those documents as ...

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