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In re D.G.B.

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

IN RE D.G.B., ET AL. Minor Children [Appeal by A.A.K., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-17916293, AD-17916294, AD-17916296, AD-17916297, and AD-17916298

         JUDGMENT: AFFIRMED AND REMANDED

          Judith M. Kowalski, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Timothy W. Clary, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE

         {¶ 1} In this appeal, Mother challenges the juvenile court's October 2018 judgment overruling her objections to a decision of a trial court magistrate, and affirming and adopting the magistrate's decision that granted custody of the subject children to their fathers. For the reasons that follow, we affirm, but remand for further proceedings.

         Procedural History

         {¶ 2} The record before us demonstrates that this case was initiated in November 2017 when the Cuyahoga County Department of Children and Family Services ("CCDCFS" or "the Agency") filed a complaint alleging that five of Mother's children were neglected and seeking an order of protective supervision for them. The children are K.K., L.P., S.P., M.B., and D.G.B.[1] L.P. and S.P. share a father; D.G.B. and M.B. share a father; and K.K. is the child of another father. In January 2018, the parties stipulated to an amended complaint finding the children to be dependent and agreeing to protective supervision to the Agency.

         {¶ 3} In May 2018, the children's guardian ad litem ("GAL") filed a motion to place the children in the emergency custody of their fathers; the trial court granted the motion.[2] In June 2018, CCDCFS filed motions requesting legal custody of the children be granted to the fathers, and a full hearing before the magistrate was held on the motions in August 2018. Mother failed to appear at the hearing, and her attorney requested a continuance, which the magistrate denied. The magistrate issued a decision that S.P. and L.P.'s father be granted legal custody of them, along with K.K.; and that D.G.B. and M.B.'s father be granted legal custody of them. Mother filed objections to the magistrate's decision; her objections were overruled and the trial court adopted and affirmed the magistrate's decision. Mother now appeals, asserting the following two errors for our review:

First Assignment of Error: The trial court erred to the prejudice of the appellant and against the best interests of the children when it denied a continuance for the appellant-Mother, depriving her of her right to due process and abusing its discretion, as the Mother's attorney informed the court her absence was due to medical reasons.
Second Assignment of Error: The trial court erred to the prejudice of the appellant and against the best interests of the minor children in awarding full legal custody, as opposed to temporary custody, of the children to their respective Fathers.

         Factual History

         {¶ 4} As mentioned, the full hearing on the motions for legal custody was held in August 2018, Mother was not present, and her counsel sought a continuance. Mother's attorney told the court that he had not talked with Mother that day, but he did receive an email message from her saying that she was in the emergency room. Specifically, the email message stated that she had a migraine, was initially unable to get out of bed, but after taking medication, she went to the emergency room. Counsel conceded that Mother did not send any proof or even tell him at which emergency room she was seeking treatment.

         {¶ 5} Counsel for the Agency, counsel for two of the Fathers, and the GAL opposed the request for a continuance. The GAL informed the court that Mother had done this once before - a hearing was scheduled, she claimed she was in the emergency room, but did not offer any proof. The magistrate took a recess, during which Mother's counsel was to attempt to reach Mother and request proof of her emergency-room treatment. The record demonstrates that Mother's counsel was able to contact Mother, and she informed him that she was not at the hospital. The GAL and all other counsel again objected to Mother's request for a continuance, and the magistrate denied the request.

         {¶ 6} CCDCFS presented the Agency case worker. She described Mother's case plan, which included mental health, housing, and substance-abuse treatment. In regard to housing, the worker testified that in March 2018, Mother was evicted from a residence in South Euclid, Ohio. In May 2018, Mother went to live with a boyfriend and his mother in Norton, Ohio, but was not allowed back to the property after a restraining order was issued against Mother due to domestic violence incidents between her, i.e. Mother, and the boyfriend's mother. The worker testified that Mother gave her a Solon address as her new home, but mail to that address was coming back. The worker testified that, to her knowledge, Mother did not have housing of her own at the time of the hearing.

         {¶ 7} In regard to substance-abuse treatment, the Agency requested Mother to submit to random urine and hair samples, but Mother had not complied with those requests, altogether refusing to provide either hair or urine samples. As such, the Agency had no documented period of sobriety for Mother.

         {¶ 8} In regard to mental health, the worker testified that the Agency needed Mother to sign a release for documentation that she had been going to her mental health care provider. Mother eventually signed one, but it was a limited release, and the worker was unable to obtain the documentation she needed. The record further demonstrates that while the children were in Mother's care they had excessive school absenteeism.

         {¶ 9} Because Mother had not satisfied her case-plan objectives, the worker testified that the Agency was unable to recommend Mother's reunification with the children. She testified that the children ...


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