O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 20, 2015

Christopher P. Kapsal, for Appellant Mother,

Hamilton County Public Defender’s Office and Kara C. Blackney, Attorney Guardian Ad Litem, for C.E.1, C.E.2, C.E.3, and C.E.4,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee R. Slocum, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.

Please note: this case has been removed from the accelerated calendar.

FISCHER, Presiding Judge.

{¶1} Mother appeals the decision of the Hamilton County Juvenile Court granting permanent custody of her four children to appellee Hamilton County Department of Job and Family Services (“HCJFS“). We find no merit in her two assignments of error and we affirm the trial court’s judgment.

{¶2} In her first assignment of error, mother contends that the trial court erred in denying her request for a continuance so that she could be present at the hearing on the motion for permanent custody. First, we note that mother did not raise the issue in her objections to the magistrate’s decision. Therefore, she waived any error but plain error. See Juv.R. 40(D)(b)(3); In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 37.

{¶3} Parents in a parental-termination case must be afforded “every procedural and substantive protection the law allows.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); In re Kinney, 1st Dist. Hamilton No. C-020067, 2002-Ohio-2310, ¶ 5. Nevertheless, the parent does not have an absolute right to be present at all stages of the permanent-custody trial. In re S.B., 8th Dist. Cuyahoga Nos. 101159 and 101160, 2014-Ohio-4839, ¶ 39; In re J.W., 9th Dist. Summit No. 24924, 2009-Ohio-6957, ¶ 20. The decision whether to grant or deny a continuance lies within the trial court’s discretion. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus. An appellate court will not reverse that decision absent an abuse of discretion. Id. at 67; In re E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, ¶ 4.

{¶4} The record shows that mother requested a continuance at the second of three hearings on the motion for permanent custody. Her attorney told the court that his client had called him on the morning of the hearing. He said that she had told him that she had fallen down a flight of stairs and that “she was sore and bruised,” but that “she would like to be here.” The magistrate denied the motion stating, “This is not our last date. We have another date.”

{¶5} The record does not show that mother was so severely injured that she could not appear at the hearing. Further, at the first hearing, which had occurred about a month before, the caseworker for HCJFS had completed her direct testimony and mother’s attorney had begun cross-examination. At the second hearing, her attorney continued that cross-examination, as did the attorney for the children and the guardian ad litem. No other witness testified at the second hearing. Mother had had time to discuss with her attorney what had occurred at the first hearing. Her attorney thoroughly cross-examined the caseworker, and mother appeared at the third hearing. The record does not show that her appearance at the hearing would have changed the result of the proceedings.

{¶6} Under the circumstances, we cannot say that the trial court’s decision denying the continuance was so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983); E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, at ¶ 4. It certainly did not rise to the level of plain error. Therefore, we overrule mother’s first assignment of error.

{¶7} In her second assignment of error, mother contends that the trial court erred in adopting the magistrate’s decision terminating her parental rights. She argues that the court failed to consider all of the statutory factors and that its decision was against the manifest weight of the evidence. This assignment of error is not well taken.

{¶8} We note that R.C. 2151.414, the applicable statute, has been amended twice, effective June and September of 2014. Generally, courts should apply the version of the statute in effect at the time the motion for permanent custody was filed, which is apparently what the trial court did. See In re Moody, 4th Dist. Athens No. 99CA62, 2000 Ohio App. LEXIS 3645, *15 (Aug. 7, 2000); In re Rodgers, 138 Ohio App.3d 510, 513-514, 741 N.E.2d 901 (12th Dist.2000). Since the motion for permanent custody was filed on September 23, 2013, we apply the version of the statute in effect at that time.

{¶9} The juvenile court may grant permanent custody of a child to a public children’s services agency if the court finds by clear and convincing evidence that (1) permanent custody is in the best interest of the child and (2) that one of the four conditions in former R.C. 2151.414(B) is met. Former R.C. 2151.414(B)(1) and (D)(1); W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, at ¶ 48. While the juvenile court must find that both prongs are supported by clear and convincing evidence, we will not substitute our judgment for that of the juvenile court where some competent credible evidence supports the essential elements of the case. In re C.H., 1st Dist. Hamilton Nos. C-140415 and C-140416, 2014-Ohio-4821, ¶ 18; W.W. at ¶ 46.

{¶10} In this case, no question exists that the agency proved that the factor listed in former R.C. 2151.414(B)(1)(d) applied. It provided that the “child has been in the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two-month period.” In this case, the record shows that the children had been in HCJFS’s custody for two years. Thus, that factor was supported by clear and convincing evidence.

{¶11} The only issue remaining is whether granting the HCJFS’s motion for permanent custody was in the children’s best interest. See In re L.W.J., 1st Dist. Hamilton Nos. C-140282 and C-140283, 2014-Ohio-4181, ¶ 26. Former R.C. 2151.414(D)(1) through (5) provided that in determining the child’s best interests, the court must consider “all relevant factors,” including (1) the child’s interaction with parents, siblings, relatives, foster caregivers and out-of-home providers, and any person who may significantly affect the child; (2) the wishes of the child, as expressed by the child or the guardian ad litem; (3) the custodial history of the child; (4) the child’s need for legally secure placement and the type of placement that can be achieved without a grant of permanent custody; and (5) whether any of the factors under R.C. 2151.414(E)(7) through (11) apply. C.H. at ¶ 19.

{¶12} Competent, credible evidence supported the trial court’s decision that granting permanent custody to HCJFS was in the children’s best interests. The evidence showed that while some visits with mother went well, mother did not always interact with the children and lacked a nurturing tone with them. She was offered additional visitation time each week, which she declined. After going through a series of placements, the children had been in the same foster home for 14 months and were bonded with the foster mother and with each other.

{¶13} The children’s guardian ad litem recommended that permanent custody be granted to HCJFS. The court appointed an attorney for the children, because their wishes differed from the guardian’s recommendation. The oldest child stated that she did not wish to live with her mother. She believed that if she and her siblings were reunited with their mother, mother would “go back to doing what she wants to do.” The oldest child anticipated that she would be left to care for the younger children while mother “goes out at night.” The second-oldest child preferred to live with her father, who had abandoned the children by the time of the motion for permanent custody, but stated that she loved her mother. The third tended to lean toward her older sisters’ desires, and the youngest, who had not lived with his mother for most of his life, was too young to have his wishes considered.

{¶14} The children were in the custody of HCJFS for a total of 423 days. They had been removed from the home due to mother’s leaving them alone, and the court had granted temporary custody to HCJFS. Eventually, custody was returned to the children’s father, but they had to be removed from their father’s home and placed back in the custody of HCJFS due to abuse to them and domestic violence between their parents. At one point, because of mother’s compliance with the case plan, she had unsupervised weekend visits with the children. But she had exposed the children to unauthorized adults, including a man against whom she had a restraining order due to domestic violence. Consequently, her visits reverted to supervised visits.

{¶15} The children had been in numerous placements since their removal from the home. They needed stability, and a legally-secure placement could not be obtained without a grant of permanent custody. The evidence supported the trial court’s finding that mother’s chronic dependence on marijuana and her other mental issues, made it impossible for her to provide the children with a permanent home. The fact that she still retained custody of another child with a different father who was not under the juvenile court’s jurisdiction did not show otherwise.

{¶16} While the children’s paternal grandmother had filed a motion for custody, the record shows that due to health issues, she could not adequately care for the children. Further, the juvenile court was not required to consider placement with a relative prior to awarding permanent custody to HCJFS. See In re Needom, 1st Dist. Hamilton Nos. C-080107 and C-080121, 2008-Ohio-2196, ¶ 14; In re Wilkenson, 1st Dist. Hamilton Nos. C-010402 and C-010408, 2001 Ohio App. LEXIS 4589, *5 (Oct. 12, 2001).

{¶17} Finally, the trial court determined under former R.C. 2151.414(E)(2), that chronic mental illness and chemical dependency made mother unable to provide an adequate permanent home for her children within one year after the hearing. The court also found under former (E)(14), that mother was unwilling to provide food, clothing, shelter, and other basic necessities for the children or to prevent the children from suffering physical, emotional or sexual abuse or neglect.

{¶18} The court found that mother’s chronic dependence on marijuana was not likely to be remedied within an adequate period of time, and that she had not been able to “abstain from drug usage for a consecutive number of years.” It went on to find that her continued relapses had “resulted in her inability to provide an adequate and permanent home for children.” The evidence supported these findings.

{¶19} Although mother attended treatment in Ohio, there was some indication that she had falsified drug-screen results. In 2013, she was referred for a drug screen at least seven times. She participated in only one drug screen, testing positive for marijuana. She moved to Kentucky during the proceedings and refused to receive services in Ohio. Though she claimed to be receiving treatment in Kentucky, and did attend one program, HCJFS could not verify that she continued in treatment because she had refused to sign a release of information for the caseworker to obtain her records.

{¶20} The dispositive issue is not whether the parent has substantially complied with the case plan, but whether the parent has substantially remedied the conditions that led to the children’s removal. In re J.B., 8th Dist. Cuyahoga Nos. 98518 and 98519, 2013-Ohio-1703, ¶ 17. See In re C.W., 1st Dist. Hamilton No. C-110342, 2011-Ohio-4756, ¶ 26-30. Competent, credible evidence supported the trial court’s decision to award permanent custody to HCJFS. Therefore, we overrule mother’s second assignment of error and affirm the trial court’s judgment.

Judgment affirmed.

MOCK and HILDEBRANDT, JJ., concur.

LEE HILDEBRANDT, JR., retired, from the First Appellate District, sitting by assignment.

Please note:

The court has recorded its own entry on the date of the release of this opinion.