IN RE C.B., ET AL.
No. 112112
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 11, 2023
2023-Ohio-1578
EILEEN A. GALLAGHER, P.J.
Civil Aрpeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD21902930, AD21902932, AD21902933, AD21902934, and AD21902935
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 11, 2023
Appearances:
Gregory T. Stralka, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorneys, for appellee.
EILEEN A. GALLAGHER, P.J.:
{1} Appellant-mother A.M. (“Mother“) appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court“), that terminated her parental rights and granted permanent custody of five of her minor children, C.B. (d.o.b. 12/28/11), C.D. (d.o.b. 9/11/16), A.D. (d.o.b. 1/20/18), K.W. (d.o.b. 12/16/19) and J.W., Jr. (d.o.b. 3/20/21) to appellee, the Cuyahoga County Division of Children and Family Services (“CCDCFS” or the “agency“). She contends that the juvenile court abused its discretion in denying her motion for a continuance of the permanent custody hearing. For the reasons that follow, we reverse the juvenile court and remand for further proceedings.
Procedural and Factual Background
{2} On April 13, 2021, CCDCFS filed a complaint for neglect and temporary custody with respect to C.B., C.D., A.D. and K.W. and for abuse, neglect and temporary custody with respect to J.W., Jr. As it relates to Mother,2 the complaint alleged that Mother and J.W., Jr. had tested positive for oxycodone and benzodiazepines at the time of his birth, that Mother hаs substance abuse issues that interfere with her ability to provide adequate care for her children and that, although
{3} On May 6, 2021, attorneys E.C. (“Attorney E.C.“) and D.B. (“Attorney D.B.“) filed a notice of appearance as co-counsel fоr Mother. A case plan was developed for Mother and the children with the goal of reunification. Mother attended hearings on May 6, 2021, May 27, 2021 and July 8, 2021. Mother stipulated to the allegations of an amended complaint,3 and on July 25, 2021, J.W., Jr. was adjudicated to be abused and neglected, C.B., C.D., A.D. and K.W. were adjudicated to be neglected and all five children were committed to the temporary custody of the agency. Mother attended a dispositional review hearing on August 17, 2021.
{4} On February 1, 2022, Attorney E.C. filed a motion to withdraw as Mother‘s counsel on the ground that Mother had “failed to fulfill contractual
{5} On February 13, 2022, the agency filed a motion to modify temporary custody to permanent custody as to all five children. A hearing on the motion was then scheduled for June 14, 2022.
{6} On February 28, 2022, the juvenile court entered an order appointing attorney J.K. (“Attorney J.K.“) to serve as counsel for Mother. On April 6, 2022, the juvenile court entered an order appointing attorney P.D. (“Attorney P.D.“) to serve as new counsel for Mother.5 The record reflects that a cоpy of the order appointing Attorney P.D. was mailed to Mother at a Parma address, from which she had recently been evicted. Beginning on or about April 18, 2022, the orders mailed to Mother in each of the five cases were returned to the juvenile court with the notation, “not deliverable as addressed[;] unable to forward.”
{7} The record reflects that Mother signed an amended case plan on April 6, 2022, which was filed with the court on April 13, 2022. Mother failed to appear at arraignment/pretrial hearings held on April 6, 2022, April 26, 2022 and May 17, 2022.
{9} Prior to the commencement of the hearing, counsel for P.B. requested that he be “excused” from the proceedings because he had not been successful in his attempts to communicate with P.B. rеgarding the case and, therefore, did not know “what his wishes are” or “if he has any concerns about this case” and could not “represent any wish that he might have.” P.B.‘s counsel explained that, in attempting to contact P.B., he had “used the addresses provided by [the agency]” and had attempted to call “the telephone numbers related to [P.B.]” that he had been given but that he had “never been able to make any contact with [P.B.] despite sending him letters and attempting to call him.” No one objected, and the juvenile court granted counsel‘s request to withdraw from the representation of P.B.
{10} Mother‘s counsel, Attorney P.D., then requested a continuance of the permanent custody hearing on Mother‘s behalf, indicating that Mother was not present and stating, “I have not been able to have any contact with her either. I do not know her position.” The agency objected to the continuance, setting forth its position as follows:
We have good service on the mother. The testimony elicited by my worker of record will be that the mother has not visited these children in the past two months and has not сontacted the Agency.
And also additionally, the Agency hasn‘t been provided any information.
Mr. [P.D.] just said that he hasn‘t had any communication with his client, so we don‘t know if there are any exigent circumstances that led to her not being here today.
She certainly has never reached out to Children and Family Services, so on the basis of that we don‘t have any information that there‘s anything that would prevent the mother from showing up at Court today, so we would ask to go forward, your Honor.
Certainly this case has been pending for over a year.
The only thing that I would ask is that this is the first time that we‘ve appeared for trial. There haven‘t been any continuances that were prior requested, and that the case itself is pretty (inaudible), but other than that, I don‘t have anything further to say regarding support for a continuance.
{12} Without conducting any further inquiry or explaining the reasons for its decision, the juvenile court denied the motion for continuance, and the hearing proceeded on the agency‘s motion to modify temporary custody to permanent custody.
{13} The two CCDCFS witnesses werе the only witnesses to testify at the permanent custody hearing. The children‘s guardian ad litem also set forth her recommendation on the record at the hearing.
{15} In his closing, Attorney P.D. argued that the agency‘s request for permanent custody was “premature,” that there was “still time on this case,” that Mother had made “some case plan progress,” that “she is seeing hеr kids” and “has participated in the case plan services” and that there is “still [an] opportunity for mom to turn the ship around and be more consistent.” He requested that the juvenile court grant an extension of temporary custody.
{16} At the conclusion of the hearing, the juvenile court ordered that the parties submit proposed findings of fact and conclusions of law by June 22, 2022. The parties submitted proposed findings of fact and conclusions of law as ordered. On October 5, 2022, the juvenile court granted the agency‘s motion for permanent custody and terminated Mother‘s parental rights, incorporating the findings of fact submitted by the agency.
{17} Mother appealed, raising the following sole assignment of error for review:
The trial court‘s denial of Appellant‘s request for a continuance was an abuse of discretion since no opportunity was made to contact the Appellant.
Law and Analysis
{18} The right to raise one‘s own child is “an essential and basic civil right.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting
{19} Nevertheless, because termination of parental rights is “the family law equivalent of the death penalty in a criminal case,” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14, it is “an alternative of last resort,” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. “[G]reat care must be taken to ensure that due process is used in parental termination proceedings,” In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.), and “parents ‘must be afforded every procedural and substantive protection the law allows.” In re Hayes at 48, quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991); see also In re Q.G. at ¶ 10-11 (“Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy
{20}
No case will be continued on the day of trial or hearing except for good cause shown, which cause was not known to the party or counsel prior to the date of trial or hearing, and provided that the party and/or counsel have used diligence to be ready for trial and have notified or made diligent efforts to notify the opposing party or counsel as soon as he/she became aware of the necessity to request a postponement. This rule may not be waived by consent of counsel.
{21} The grant or denial of a motion to continue is a matter that is generally “entrusted to the broad, sound discretion of the trial judge.” In re Ka.C., 8th Dist. Cuyahoga Nos. 102000, 102002, 102005, and 102006, 2015-Ohio-1158, ¶ 13, quoting State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). A court abuses its discretion when its decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); In re Ka.C. at ¶ 13. A decision is unreasonable if “no sound reasoning process * * * would support that decision.” In re C.D.Y., 8th Dist. Cuyahoga No. 108355, 2019-Ohio-4987, ¶ 8, quoting Baxter v. Thomas, 8th Dist. Cuyahoga No. 101186, 2015-Ohio-2148, ¶ 21. A decision is arbitrary if it is made “without consideration of or regard for facts [or] circumstances.” In re C.D.Y. at ¶ 8, quoting Black‘s Law Dictionary 125 (10th Ed.2014).
{23} As the Ohio Supreme Court explained in Unger: “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); see also In re I.N., 8th Dist. Cuyahoga No. 110067, 2021-Ohio-1406, ¶ 17; In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-3373, ¶ 26. “Weighed against any potential prejudice to a [party] are concerns such as a court‘s right to control its own docket and the public‘s interest in the prompt and efficient dispatch of justice.” Unger at 67.
{24} When evaluating a request for a continuance, a court should consider all relevant factors, including the following:
the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the сourt; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.
Id. at 67-68; see also In re I.N. at ¶ 17; In re A.W. at ¶ 27. However, a court is not required to give particular weight to any one of these factors. In re K.H. at ¶ 69. In permanent custody cases, courts must also “be mindful of the best interests of the children and their need for stability and permanency” in considering a request for a continuance. In re I.N. at ¶ 16.
{25} “‘A parent facing termination of parental rights must exhibit cooperation and must communicate with counsel and with the court in order to have standing to argue that due process was not followed in a termination proceeding.‘” In re A.W. at ¶ 29, quoting In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, at ¶ 12. This is not a case in which Mother has never cooperated or communicated with the agency, counsel or the court. To the contrary, although Mother did not appear for the permanent custody hearing on June 14, 2022 or for arraignment hearings held on April 6, 2022, April 26, 2022 and May 17, 2022, prior to that time, she had regularly appeared for court proceedings, including hearings on May 6, 2021, May 27, 2021, July 8, 2021 and August 17, 2021. The record further reflects that Mother signed an amended case plan on April 6, 2022.6
{26} As detailed above, the juvenile court entered an order appointing Attorney P.D. to serve as Mother‘s new counsel on April 6, 2022. It is unclear from the limited record before us whether Mother was aware that Attorney P.D. had been assigned to serve as her new counsel following the withdrawal of Attorney E.C. The record reflects that Mother wаs evicted from her Parma home in late March 2022. Copies of the orders assigning Attorney P.D. to serve as Mother‘s counsel in each of these cases were mailed to Mother at her Parma address after her eviction. Beginning on or about April 18, 2022, copies of these orders were returned to the juvenile court in each case as undeliverable. Although the record reflects that other documents were mailed to Mother, beginning on or about April 11, 2022, to a
{27} Attorney P.D. moved for a continuance based on the fact that Mother had not appeared for the hearing and he had “not been able to have any contact” with Mother. No information was provided and no inquiry was made as to when, if at all, Attorney P.D. had attempted to contact Mother, the number of times he had attempted to contact Mother, the means by which he had attempted to contact Mother or what contaсt information he had for Mother. There is nothing in the record to suggest that anyone attempted to contact Mother the morning of the hearing, after she did not appear, to attempt to determine why Mother had failed to appear.
{28} No prior continuances of the hearing date had been requested. The juvenile court made no inquiry as to the length of continuance requested. Only two witnesses testified at the hearing, both of whom were agency employees. Besides counsel for the agency and Attorney P.D., the only other pеrsons who appeared for the hearing were the guardian ad litem, counsel for P.B. (who then withdrew as counsel) and counsel for J.W., Sr. (who asked no questions, presented no evidence and, in closing argument, simply stated that he “would go along with the GAL‘s recommendation for temporary custody — for permanent custody“). Accordingly,
{29} In this case, there are facts and circumstances in the record that suggest that granting a brief continuance may have been “imperative to secure fair treatment for the parties,”
{30} Based on the “unique” facts and circumstances here — of which Unger requires consideration — we find that the juvenile court abused its discretion in dеnying Mother‘s motion for continuance without conducting even a minimal inquiry to determine the facts necessary to evaluate the Unger factors prior to ruling on Mother‘s motion for continuance. See Unger at 67-68; cf. In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, at ¶ 16-17 (juvenile court erred in
{31} Judgment reversed. Case remanded to the juvenile court for further proceedings.
It is ordered that the appellant recover from the appellee the costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., CONCURS;
MICHELLE J. SHEEHAN, J., DISSENTS (WITH SEPARATE OPINION)
MICHELLE J. SHEEHAN, J., DISSENTING:
{32} Respectfully, I dissent.
{34} When a request to continue a trial is made, the court is to consider the following factors:
[T]he length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request fоr a continuance; and other relevant factors, depending on the unique facts of each case.
Unger at 67-68. The Supreme Court of Ohio instructed further that “[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Emphasis sic.) Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).
{35} Here, the record indicates appellant was served with notice of the permanent custody trial held on June 14, 2022. Two months before the trial, she stopped visiting with the children and failed to attend three pretrial hearings conducted on April 6, April 26, and May 17, 2022. On the day of trial, her counsel requested a continuance after trial had commenced, without asking for a specific length for the continuance. Counsel could not explain appellant‘s absence, stating merely that he had been unable to have any contact with her and did not know her
{36} Further consideration of the Unger factors, including the limited statutory time (120 days) given to the agency to resolve the custody matter — the permanent custody motion had been pending for 116 days — as well as the resulting inconvenience to the witnesses, the opposing counsel, the GAL, and the court, indicatеs that the trial court justifiably denied the request for a continuance pursuant to Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078. See, e.g., In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-3373; In re C.W., 8th Dist. Cuyahoga No. 109219, 2020-Ohio-3189; and In re S.R., 6th Dist. Ottawa No. OT-09-024, 2010-Ohio-3073. Appellant similarly fails to demonstrate she was entitled to a continuance under
{37} Furthermore, regarding a request for a continuance on the day of trial,
No case will be continued on the day of trial or hearing except for good cause shown, which cause was not knоwn to the party or counsel prior to the date of trial or hearing, and provided that the party and/or counsel have used diligence to be ready for trial and have notified or made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This rule may not be waived by consent of counsel.
{38} Appellant fails to show “good cause” required by
{39} Furthermore, the court has rejected the claim that a denial of the request for a continuance violаtes a parent‘s due process right to participate in the hearing which, by itself, warrants a reversal. In re C.M., 4th Dist. Athens Nos. 17CA16 and 17CA17, 2017-Ohio-9037, ¶ 44. Rather, appellant must demonstrate how she was prejudiced by the denial of the continuance before a prejudicial error can be found. Id. at ¶ 42, citing State v. Broom, 40 Ohio St.3d 277, 288, 533 N.E.2d 682 (1988) (“not every denial of a continuance constitutes a denial of due process“). See also In re E.H., 4th Dist. Hocking No. 21CA6, 2022-Ohio-2417, ¶ 13. Appellant‘s brief lacks any demonstration of prejudice resulting from the trial
{40} While I recognize that biological parents have a constitutionally protected right to be present at a permanent custody hearing, In re Sears, 10th Dist. Franklin No. 01AP-715, 2002-Ohio-368, ¶ 11, “a parent facing termination of parental rights must exhibit cooperation and must communicate with counsel and with the court in order to have standing to argue that due process was not followed in a termination proceeding.” In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.). While biological parents have certain rights concerning their children, “the focus of a permanent custody hearing and decision is not the parent‘s rights but rather the child‘s best interests.” In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 87, quoting In re West, 4th Dist. Athens No. 05CA4, 2005-Ohio-2977, ¶ 49. The trial court‘s decision here comports with “the Ohio General Assembly‘s intent to ensure the timely placement of children into a permanent home.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 116.
{41} “The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge.” Unger, 67 Ohio St.2d at syllabus, 423 N.E.2d 1078. An abuse of discretion implies that court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Under the circumstances of this case, the trial court acted
Notes
- On March 20, 2021, Mother and J.W.[, Jr.] tested positive of Oxycodone and Benzodiazepines at the time of the child‘s birth.
- Mother has substance abuse issues, * * * which she needs to engage in treatment to address. Mother must engage in case plan services in order to ensure her adequate parental care for the children.
- Mother has a mental health diagnosis, specifically post-traumatic stress disorder, which interferes with her ability to provide adequate parental care for the children. Mother is not engaging in treatment for her mental health.
- Mother fails to ensure that C.D.‘s special needs are met. The child is diagnosed with a developmental disability, and Mother has failed to engage him in services.
At the hearing — after the juvenile court had denied Mother‘s motion for continuance — the CCDCFS child protection specialist testified that the agency had last
The CCDCFS family advocate testified that she last spoke at length with Mother on April 12, 2022 at a sibling visit and that she last saw Mother on April 19, 2022 when Mother appeared for DNA testing of another child, who is not a part of this appeal. The family advocate stated that she usually communicated with Mother by text. In response to the question, “[W]hen was the last time that you requested mother to go do a drug screen,” she responded, “[t]his morning.” No inquiry was made as to the means by which the family advocate communiсated this request to Mother (e.g., whether she called or texted Mother), at what time the family advocate made this request of Mother (the permanent custody hearing was scheduled for 10 a.m.) or whether Mother responded. No inquiry was made, and no explanation was provided, as to why the agency was requesting that Mother submit to a drug test on the date of the permanent custody hearing.