IN RE: C.R., DEPENDENT CHILD. [K.W. - APPELLANT]
CASE NO. 13-20-21
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
August 2, 2021
2021-Ohio-2640
MILLER, J.
Appeal from Seneca County Common Pleas Court Juvenile Division Trial Court No. 21950072 Judgment Affirmed
Derek R. Dailey for Appellant
Rebecca J. Schreiner for Appellee
{1} Appellant, Kimberly W., appeals the October 21, 2020 judgment of the Seneca County Common Pleas Court, Juvenile Division, granting legal custody of C.R. to Anneliese H. For the reasons that follow, we affirm.
Facts and Procedural History
{2} Kimberly W. and James R. are the biological parents of C.R., born September 2019.1 On October 9, 2019, the Seneca County Department of Job and Family Services (“SCDJFS“) filed a complaint alleging C.R. was a neglected and dependent child and requesting the trial court place C.R. in the temporary custody of Anneliese under the protective supervision of SCDJFS. In its complaint, SCDJFS alleged Kimberly and James were not properly caring for the child after her birth and were exhibiting risky behaviors, including indications of recent or current drug use. That sаme day, SCDJFS filed a motion for ex parte temporary orders placing C.R. in the temporary custody of Anneliese under the protective supervision of SCDJFS, which the trial court granted.
{3} On October 10, 2019, the trial court held a probable cause hearing. Upon the agreement of the parties, the trial court issued temporary orders maintaining C.R. in the temporary custody of Anneliese under the protective supervision of SCDJFS. The parties also agreed Kimberly and James would enjoy
{4} On November 5, 2019, SCDJFS filed its first case plan, which was approved by the trial court on November 12, 2019. The case plan required Kimberly, in part, to complete drug and alcohol and mental health assessments, participate in counseling to address drug abuse аnd domestic violence concerns, and obtain and maintain employment and suitable housing. The case plan also required Kimberly to sign releases of information and submit to random drug tests conducted by SCDJFS.
{5} An adjudication hearing was scheduled for November 6, 2019; however, Kimberly and James did not appear for the hearing. At the request of their attorneys, the hearing was continued to allow Kimberly and James to attend. On January 6, 2020, the trial court held a combined adjudication and disposition hearing. At the hearing, Kimberly and James admitted that C.R. was a dependent child pursuant to
{6} SCDJFS conducted a semi-annual review on April 6, 2020. In the semi-annual review, SCDJFS noted that Kimberly was making insufficient progress on her case plan. Specifically, Kimberly was continuing to test positive for drugs and was not exercising regular visitation with C.R. As a result of the parents’ poor progress on the case plan, SCDJFS indicated it intended to pursue legal custody of C.R. to Anneliese. On June 16, 2020, SCDJFS filed a motion requesting an order modifying the disposition by placing C.R. in the legаl custody of Anneliese.
{7} After a continuance due to the growing COVID-19 public health crisis, the trial court scheduled the review hearing for August 13, 2020. The trial court also scheduled SCDJFS‘s motion for legal custody for a hearing at the same time.
{8} At the August 13, 2020 hearing, Kimberly and James requested a continuance due to James reporting to be ill. The trial court granted their request and rescheduled the review hearing and thе hearing on SCDJFS‘s motion for October 7, 2020. SCDJFS filed another semi-annual review on October 5, 2020, in which it noted that Kimberly had again made insufficient progress toward the case plan.
{9} On October 7, 2020, the trial court conducted a full evidentiary review hearing and a hearing on SCDJFS‘s motion for legal custody. In a judgment entry filed on October 21, 2020, the trial court granted SCDJFS‘s motion for legal custody. The trial court ordered C.R. be placed in the legal custody of Anneliese and that Kimberly and James continue to have supervised visitation with C.R.
{10} On November 20, 2020, Kimberly filed her notice of appeal. She raises one assignment of error.
Assignment of Error
The trial court erred and abused its discretion in denying Mother‘s oral motion for a continuance due to the COVID-19 Pandemic.
{11} In her assignment of error, Kimberly contends the trial court erred and abused its discretion by denying her motion for a continuance of the October 7, 2020 hearing on SCDJFS‘s motion for legal custody. Specifically, Kimberly argues that at time of her request for a continuance, she was trying to further her treatment and had recently made some progress toward her case plan, including procuring stable housing. Kimberly contends that “[b]ut for the COVID-19 Pandemic and the hardships that arose becаuse of it, [she] would have been successful” in furthering her treatment.
{12} As an initial matter, we note that even though Kimberly argues in her assignment of error and throughout her brief in support that the trial court denied
[Kimberly‘s trial counsel]: My client would like an extension, Your Honor, and the reason being because of COVID. When the case started, COVID was not in effect, but then as the case proceeded up through March was when COVID, obviously, took over. In March until about June was a gap that she was not eligible or able to fully engage in what she needed to do to try to accоmplish the objectives of the case plan. And she admits that she tested positive [for drugs] last time she was in court here, and a lot of it was because she felt like she wasn‘t in the spot where she was going to be able to get her child back. But since that period of time, she‘s actively involved in services, she‘s told me, and that she would like to have one more extension for 90 days2 to try to show the Court that she‘s clean and sober and that she deserves to get her child back. Is that correct?
[Kimberly]: Yes.
[Kimberly‘s trial counsel]: Okay.
[Trial Court]: Response from the Department today?
[Counsel for SCDJFS]: Yes, Your Honor. Today is our annual review, so for the Court to extend our temporary custody orders for an additional six months, there would need to be substantial progress on the case plan. We would object to any such finding as since, even since our last hearing
in August, mom and dad have not madе additional progress on the case plan. They‘re claiming that they‘ve been involved in services, but we‘ve been unable to verify that due to their failure to meet with the caseworker to sign releases.
As for the argument about COVID, services through Firelands and Rigel have been available through COVID. Mom and dad have been referred to that multiple times. In fact, at our last hearing, they were both given infоrmation as to resources for inpatient and outpatient services, and they‘ve not taken advantage of those.
So we would ask that the request for an extension be denied and that we go forward today.
[Trial Court]: Okay. Well, the Court does not find the request to be well taken. The Court notes it‘s been almost a year since we started. Court‘s inclined to allow [SCDJFS] to proceed with their Motion fоr Legal Custody. And if the Court, in the process of getting evidence, determines that that motion isn‘t well taken then, in essence, you get your extension. The Court will extend this case if the Court doesn‘t find the Motion for Legal Custody to be well taken. I think I‘ll be in a better position after hearing all the evidence as far as what‘s going on maybe to reconsider that. But as of right now, based upon the information propеrly before me, * * * the Court does not find the request to be well taken. The Court denies the request at this time for an extension.
(Oct. 7, 2020 Tr. at 6-9).
{13} Further, when Kimberly testified on the witness stand, her trial counsel inquired why she thought she “deserve[d] an extension.” (Oct. 7, 2020 Tr. at 74).
{14} A temporary custody order terminates one year after the date the child entered shelter care unless a motion is filed to extend temporary custody.
{15} However, even if we frame the arguments in Kimberly‘s appellate brief in terms of the trial court‘s denial of her request for an extension, rather than a request for a continuance, we conclude thаt the trial court did not err by denying her request. Initially, we note that in denying Kimberly‘s motion, the trial court reserved the right to reconsider the motion at the conclusion of the hearing if, upon reviewing the evidence introduced at the hearing, it determined an extension of the temporary custody order was proper.
{16} However, the evidence introduced at the hearing on SCDJFS‘s motion for legal custоdy indicates that Kimberly had not made significant progress on her case plan. Specifically, Kimberly‘s case plan required her to complete drug and alcohol and mental health assessments, participate in counseling to address both
{17} The testimony adduced at the hearing also indicated that Kimberly failed to engage in mental health counseling, including domestic violence counseling. Further, although Kimberly had housing that the caseworker would
{18} Next, there was no reasonable cause to believe that C.R. would be reunited with one of her parents in the time period of the extension. As detailed, Kimberly had failed to make progress on her case plan. At the time of the hearing, she had used illegal drugs within the previous several days and was not actively engaged in drug treatment services. Furthermore, at the time of the hearing, the case plan had been in place for nearly a year, yet Kimberly had consistently failed to advance in her case plan goals. Additionally, at the time of thе final hearing, Kimberly was not exercising consistent visitation with C.R. Given the lack of progress on the case plan in the previous year, and Kimberly‘s continued drug use and lack of initiative to engage in drug and mental health treatment, it was not likely that C.R. would be reunited with Kimberly in the time period of the extension. Further, the evidence introduced at trial indicated James was also not making progress on his casе plan and likewise would not be reunited with C.R. in the time period of the extension.
{19} Finally, Kimberly did not make an argument to the trial court that an extension of the temporary custody orders would be in C.R.‘s best interest and our review of the record does not indicate that an extension of the temporary custody orders would be in C.R.‘s best interest. Rather, the caseworker testified that she believed it would be in C.R.‘s bеst interest for the trial court to grant Anneliese legal custody of C.R. Further, the GAL assigned to the case recommended that the trial court grant legal custody to Anneliese. Accordingly, we do not find the trial court abused its discretion in denying Kimberly‘s motion for an extension of the temporary orders.
{20} Although the record indicates that Kimberly requested the trial court grant an extension of the temporary оrders, Kimberly‘s assignment of error and supporting arguments frame her request as a motion for a continuance. However, even if we construe Kimberly‘s motion as a request for a continuance, the request was properly denied.
{21} “Continuances shall be granted only when imperative to secure fair treatment for the parties.” In re Distafano, 3d Dist. Seneca No. 13-06-14, 2006-Ohio-4430, ¶ 11, quoting Juv.R. 23. “A decision by the trial court to deny a motion for continuаnce is within the sound discretion of the trial court and should not be reversed absent a showing of abuse of that discretion.” Id., quoting In re Miller, 3d Dist. Auglaize No. 2-04-02, 2004-Ohio-3023, ¶ 7.
{22} In considering a motion for a continuance, a court should consider (1) the length of the delay requested; (2) whether other continuances have been requested and granted; (3) any inconvenience to parties, witnesses, opposing counsel, and the court; (4) whether the requested delay is for a legitimate purpose or is instead dilatory, purposeful, or contrived; (5) whether the defendant contributed to the situation that gives rise to the motion for a continuance; and (6) other relevant factors, depending on the unique facts of a case. State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).
{23} At the hearing, Kimberly did not make any argument specific to whether a continuance should be granted or makе any reference to the Unger factors. However, if Kimberly‘s oral motion is treated as a request for a continuance, the trial court did not abuse its discretion by denying it. Kimberly requested and was granted two previous continuances, one on November 6, 2019, and the other on August 13, 2020. (Doc. Nos. 16, 31). Further, granting the motion would have caused inconvenience to the parties, witnesses, opposing counsel, and the trial court. Specifically, Kimberly made her oral motion at the beginning of the hearing, at which time witnesses, opposing counsel, and the trial court were present and prepared to proceed and would have been inconvenienced by rescheduling the matter for a later date. Additionally, Kimberly contributed to the situation giving rise to her request for a continuance. Althоugh Kimberly framed her request as
{24} Finally, at the end of her appellate brief, Kimberly summarily states that the trial court “further abused its discretion by awarding legal custody оf [C.R.] to [Anneliese].” (Appellant‘s Brief at 11). However, Kimberly offers no support for this statement. “App.R. 12(A)(2) provides that an appellate court ‘may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).‘” State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally, Aрp.R. 16(A)(7) requires that an appellant‘s brief include ‘[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on
{25} Consequently, Kimberly‘s assignment of error is overruled.
{26} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Seneca County Common Pleas Court, Juvenile Division.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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