In re A.U.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: :
No. 20AP-594
(A.U.), : (C.P.C. No. 16JU-014437)
(A.U., Mother, : (ACCELERATED CALENDAR)
Appellant). :
D E C I S I O N
Rendered on August 3, 2021
On brief: William T. Cramer, for appellant.
On brief: Robert J. McClaren, for Franklin County Children Services.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch
LUPER SCHUSTER, J.
{¶ 1} Appellant, A.U., mother of A.U. (“mother“), appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch, terminating her parental rights and placing A.U. in the permanent custody of appellee, Franklin County Children Services (“FCCS“). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In August 2018, FCCS filed a motion for permanent court commitment (“PCC“), also known as permanent custody, of A.U. This request was heard before the trial court in November 2020. To begin the permanent custody proceedings, the trial court conducted an in camera interview with the eight-year-old child. A.U. stated that she was living with “mama and papa” (her foster parents) and her brother, and that she wanted to
{¶ 3} After the trial court‘s in camera interview with A.U., but before any witnesses testified, mother‘s counsel moved for a continuance based on mother‘s absence. Mother‘s counsel indicated mother was not present because she did not know about the trial date. A family friend also attempted to explain mother‘s absence at trial, stating she was sick. The trial court denied the continuance request.
{¶ 4} Two individuals testified at the trial, the FCCS caseworker assigned to the case, Taira Johnson, and A.U.‘s guardian ad litem, Carolynn Fittro. Caseworker Johnson testified as follows. FCCS first received custody of A.U. in September 2016 when mother left A.U. with a babysitter, was arrested, and then made no arrangements for the care of A.U. FCCS continued to have custody of A.U. until the trial. Johnson had no contact with A.U.‘s father, J.S., who never saw A.U. during the pendency of the case. In February 2017, a case plan was approved and adopted by the trial court that, among other things, required mother to complete an alcohol and other drug (“AOD“) assessment if she failed any of the required random drug screens, an anger management assessment, a domestic violence assessment, and a mental health assessment, and to follow through with any recommendations resulting from the assessments. The case plan also required mother to maintain employment and safe housing.
{¶ 5} Johnson further testified that she had expressed concern to mother regarding domestic violence issues associated with mother‘s relationship with the father of A.U.‘s brother, but mother continued that relationship. Additionally, mother did not follow through with the recommended treatment programs associated with the assessments she completed. Regarding her employment, mother informed Johnson that she worked at a call center and as an entertainer at an adult establishment, but mother did not produce verification of the income from that employment. Mother‘s housing situation was inconsistent. Since A.U. had been placed in FCCS‘s custody, mother had resided in approximately five different locations, none of which was her own independent housing. As to mother‘s visitations with A.U., Johnson estimated that mother completed only approximately one-fourth of the total visits scheduled. And there had been two periods in which mother did not visit A.U. for over 90 days. Because of mother‘s unreliability and
{¶ 6} Guardian ad litem Fittro testified that the child was “very bonded” with her brother and her foster parents, and she told Fittro “that she feels that this is her family,” and “she wants to be adopted by the” foster parents. (Tr. at 112, 116.) Fittro considered A.U. old enough to understand the meaning of permanent custody. Based on her evaluation of the circumstances, Fittro recommended the trial court grant FCCS‘s request for permanent custody of A.U. because it would be in the child‘s best interest.
{¶ 7} Following the trial on FCCS‘s motion for permanent custody, the trial court issued a written decision granting the motion. The trial court found, among other things, that FCCS presented clear and convincing evidence that granting the motion was in A.U.‘s best interest.
{¶ 8} Mother timely appeals.
II. Assignments of Error
{¶ 9} Mother assigns the following errors for our review:
[1.] Appellant‘s rights to due process under the federal and state constitutions were violated by the juvenile court‘s refusal to continue the permanent custody trial.
[2.] The juvenile court‘s judgment erroneously relies on
[3.] The juvenile court‘s judgment terminating parental rights and granting permanent custody to the agency is not supported by clear and convincing evidence.
III. Discussion
A. First Assignment of Error – Denial of Continuance
{¶ 10} Mother‘s first assignment of error alleges the trial court erred in denying her request to continue the permanent custody trial. We disagree.
{¶ 11} An appellate court will not reverse a denial of a continuance in a PCC case absent an abuse of discretion. In re J.B., 10th Dist. No. 08AP-1108, 2009-Ohio-3083, ¶ 26,
{¶ 12} Mother‘s counsel requested a continuance based on mother‘s absence, which was allegedly due to mother not knowing about the trial date. Also, mother‘s family friend stated mother was sick. But the vague assertion that mother was sick was unsubstantiated by any documentation, and there was no dispute mother was present during a virtual hearing during which the trial date for the permanent custody motion was set. Mother argues she had audio issues during that virtual hearing, suggesting she did not hear the setting of the date. She does not dispute, however, that her attorney knew the date and appeared. Consequently, it would have been reasonable for the trial court to impute that knowledge to mother. See In re M.W., 10th Dist. No. 07AP-529, 2007-Ohio-6506, ¶ 89 (“trial court reasonably could have charged appellant with the knowledge of his counsel regarding the hearing date * * * when it denied his motion for a continuance“). Moreover, the matter already had been delayed numerous times, pushing it well-beyond the time frame set forth in
{¶ 13} Based on these circumstances, we cannot find the trial court abused its discretion in denying mother‘s continuance request. Therefore, we overrule mother‘s first assignment of error.
{¶ 14} Mother‘s second assignment of error alleges the trial court erroneously relied on
{¶ 15} When a trial court makes a determination under
{¶ 16} Here, the trial court considered and applied
{¶ 17} Accordingly, we overrule mother‘s second assignment of error.
{¶ 18} In mother‘s third assignment of error, she asserts the trial court‘s decision to grant permanent custody of A.U. to FCCS pursuant to
{¶ 19} “In reviewing a judgment granting permanent custody to FCCS, an appellate court ‘must make every reasonable presumption in favor of the judgment and the trial court‘s findings of facts.’ ” In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. ” ‘[I]f the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court‘s verdict and judgment.’ ” In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). “Judgments are not against the manifest weight of the evidence when all material elements are supported by competent, credible evidence.” J.T. at ¶ 8.
{¶ 20} “Parents have a constitutionally-protected fundamental interest in the care, custody, and management of their children.” In re H.D., 10th Dist. No. 13AP-707, 2014-Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a parent‘s natural rights are subject to the ultimate welfare of the child. In re Cunningham, 59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate the parental rights of natural parents when such termination is in the best interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694, 2000 Ohio App. LEXIS 4550 (Sept. 25, 2000); In re Wise, 96 Ohio App.3d 619, 624 (9th Dist.1994).
{¶ 21} In deciding to award permanent custody pursuant to
{¶ 22} Once the trial court determines that one of the circumstances in
{¶ 23} In determining the best interest of a child,
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in
{¶ 24} The evidence at trial supported the trial court‘s determination that granting permanent custody to FCCS was in A.U.‘s best interest. In evaluating this issue,
{¶ 25}
{¶ 26}
{¶ 27}
{¶ 28} Lastly, under
{¶ 29} Based on our review of the record, we find that competent, credible evidence supported the trial court‘s conclusion that granting permanent custody to FCCS was in the
IV. Disposition
{¶ 30} Having overruled all three of mother‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch.
Judgment affirmed.
BROWN and BEATTY BLUNT, JJ., concur.