IN THE MATTER OF: D.C., et al.
CASE NO. CA2015-03-006
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
8/10/2015
[Cite as In re D.C., 2015-Ohio-3178.]
M. POWELL, P.J.
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 13AND0591
Landis Terhune-Olaker, P.O. Box 895, Washington C.H., Ohio 43160, for appellant
Jess C. Weade, Fayette County Prosecuting Attorney, Ryan Houston, 110 East Court Street, Washington C.H., Ohio 43160, for appellee
Natisha Hughes, P.O. Box 875, Marion, Ohio 43301, defendant, pro se
M. POWELL, P.J.
{1} Appellant, A.C., appeals the judgment of the Fayette County Court of Common Pleas, Juvenile Division, granting permanent custody of his two minor children to the Fayette County Department of Job and Family Services (FCDJFS or the agency). For the reasons that follow, we affirm the judgment of the juvenile court.
{2} Appellant is the father of two minor children, D.C. and A.H.K. D.C. was in mother‘s custody in August 2013, at which time mother was pregnant with A.H.K. On August 19, 2013, D.C. was removed from mother‘s custody after mother overdosed and was taken to the hospital. On September 20, 2013, A.H.K. was removed from mother‘s custody shortly after being born, at which time the child tested positive for cocaine and methadone. On October 2, 2013, D.C. was adjudicated a neglected and dependent child. On November 19, 2013, A.H.K. was adjudicated an abused and dependent child. The children have remained in foster care ever since their removal from mother‘s custody.
{3} On October 21, 2014, FCDJFS moved for permanent custody of the children. On February 10, 2015, a hearing was held on the motion for permanent custody. On March 3, 2015, the juvenile court issued a judgment entry granting permanent custody of the children to FCDJFS and terminating the parents’ parental rights.
{4} Appellant now appeals, assigning the following as error:
{5} Assignment of Error No. 1:
{6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING THE APPELLANT‘S REQUEST FOR A CONTINUANCE.
{7} Assignment of Error No. 2:
{8} THE COURT ERRED WHEN FINDING THAT A.H.K. WAS IN THE TEMPORARY CUSTODY OF FAYETTE COUNTY CHILDREN‘S SERVICES FOR 12 OR MORE MONTHS OF A CONSECUTIVE 22 MONTH PERIOD AND PROCEEDING ONTO DETERMINING THE CHILD‘S BEST INTEREST.
{9} Assignment of Error No. 3:
{10} THE COURT ERRED WHEN FINDING THAT D.C. AND A.H.K. WERE ABANDONED CHILDREN PURSUANT TO
{11} Assignment of Error No. 4:
{12} WHETHER THE TRIAL [sic] ERRED AND ABUSED ITS DISCRETION IN FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST INTEREST OF THE MINOR CHILD TO GRANT THE FAYETTE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES PERMANENT CUSTODY OF D.C. AND A.H.K. AND PERMANENTLY TERMINATE THE PARENTAL RIGHTS OF [APPELLANT].
{13} In his first assignment of error, appellant argues the juvenile court erred or abused its discretion in denying his request for a continuance of the permanent custody hearing, which he made at the commencement of the hearing.
{14} The decision whether to grant or deny a motion for a continuance is within the trial court‘s sound discretion. State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). The factors a trial court should consider in ruling on such a motion include the length of the delay requested; the inconvenience to other litigants, witnesses, opposing counsel and the trial court; whether the requested delay is for a legitimate reason or dilatory and contrived; whether the party requesting the continuance contributed to the circumstances giving rise to the requested continuance; and any other factor relevant to the particular facts and circumstances of the case. Id. Additionally,
{15} Here, at the commencement of the permanent custody hearing, appellant‘s trial counsel noted that the case was “somewhere around 20 months * * * already, which would put the final cut off [for a final decision in the case] somewhere around 24 months.”1
Appellant‘s trial counsel requested that the juvenile court “set the hearing closer to the 24
{16}
{17} By the time of the February 10, 2015 permanent custody hearing, 111 days had elapsed since the filing of the agency‘s October 21, 2014 motion for permanent custody. Therefore, granting appellant‘s request for a continuance of nearly four months in length would have prevented the juvenile court from issuing an order granting, denying or otherwise disposing of the motion for permanent custody, not later than 200 days after the motion for permanent custody was filed, as required by
{18} Additionally, the cases involving the minor children began in August 2013 and September 2013. Appellant was named as a party in both cases and informed of his right to counsel in both cases, including his right to have counsel appointed to him free of charge if he qualified for such assistance. On December 18, 2013, a case plan was filed for appellant, which he received. However, appellant did not request an attorney until December 2014. Counsel was appointed for appellant on January 5, 2015.
{19} Prior to the February 10, 2015 permanent custody hearing, appellant‘s newly
{20} In light of the foregoing, we conclude that the juvenile court did not abuse its discretion in denying appellant‘s motion for a nearly four-month continuance made at the commencement of the permanent custody hearing.
{21} Therefore, appellant‘s first assignment of error is overruled.
{22} In his second assignment of error, appellant argues the juvenile court erred in finding that A.H.K. was in the temporary custody of FCDJFS for at least 12 months of a consecutive 22-month period for purposes of
{23} A natural parent has a constitutionally protected liberty interest in the care and custody of his or her child, and before the state terminates a person‘s parental rights, the state must prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to considering whether sufficient, credible evidence exists to support the juvenile court‘s determination, and therefore, a reviewing court will reverse a juvenile court‘s finding that the evidence was clear and convincing only if there is a sufficient conflict in the evidence
{24} Under
{25} For purposes of
{26} In the present case, A.H.K. was removed from mother, and thus the child‘s home, on September 20, 2013. The date falling 60 days after A.H.K.‘s removal from the home was November 19, 2013. A.H.K. was adjudicated an abused and dependent child on November 19, 2013. Therefore, A.H.K. entered the temporary custody of FCDJFS, for purposes of
{27} At the time a public children services agency moves for permanent custody under
{28} Here, FCDJFS moved for permanent custody of A.H.K. on October 21, 2014, which was approximately 11 months after the date on which A.H.K. entered the agency‘s temporary custody. Consequently, the juvenile court erred in finding that A.H.K. had been in the agency‘s temporary custody for at least 12 months of a consecutive 22-month period. However, an agency may move for permanent custody before a child has been in the agency‘s temporary custody for at least 12 months if a ground other than
{29} In the present case, FCDJFS moved for permanent custody of the children not only on the basis of the “12 of 22” ground set forth in
{30}
(a) The child is not abandoned or orphaned, has not 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 has not 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(Emphasis added.)
{31}
{32} The evidence in this case supports a determination that appellant failed to remedy the conditions causing the removal of the children from parental custody based upon his failure to make adequate progress upon and to complete the case plan to permit the children‘s placement with him. The evidence also demonstrates appellant‘s lack of commitment to the children due to his failure to regularly visit, support and communicate with the children.3 Finally, as set forth in the discussion of appellant‘s third assignment of error, the evidence presented at the permanent custody hearing supports the juvenile court‘s determination that appellant abandoned the children.
{33} We further note that, separate and apart from his third assignment of error in which he argues the juvenile court erred in finding that he abandoned the children, appellant did not assign as error the juvenile court‘s determination that the children cannot be placed with either parent within a reasonable time, and should not be placed with either parent.
{34} Therefore, while the juvenile court erred in finding that A.H.K. had been in the temporary custody of the agency for more than 12 months of a consecutive 22-month period, the error was harmless as such a finding is unnecessary to a determination that the children cannot or should not be placed with either parent.
{35} In light of the foregoing, appellant‘s second assignment of error is overruled.
{36} In his third assignment of error, appellant argues the juvenile court erred in finding that D.C. and A.H.K. were abandoned under
{37} There is clear and convincing evidence in the record to support the juvenile court‘s finding under
{38} Additionally, the fact that appellant may have had some type of contact with the children in November 2014 does not obviate the fact that appellant had no contact whatsoever with the children in the more than six-month period from April 21, 2014, when his visitation with the children was suspended due to his failure to show up for his scheduled visits, to sometime in November 2014.
{39} Consequently, appellant‘s third assignment of error is overruled.
{40} In his fourth assignment of error, appellant contends that the juvenile court erred and abused its discretion in finding, by clear and convincing evidence, that it would be in the best interest of the children to grant FCDJFS permanent custody and to terminate appellant‘s parental rights.
{41}
(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 division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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 divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{42} The best interest factors of
{43} As to the factor in
{44} As to the factor in
{45} As to the factor in
{46} As to the factor in
{47} As to the factor in
{48} Appellant argues that he substantially complied with the case plan, that all pending criminal charges against him have been resolved, and that given more time, he could have the children returned to him. However, the evidence shows that while appellant attended parenting and anger management classes and submitted to a mental health diagnostic assessment, he failed to complete a separate drug and alcohol assessment and failed to submit to drug testing immediately prior to the permanent custody hearing. The evidence also shows that appellant has failed to maintain stable housing or employment throughout this case as he was evicted in May 2014 and was homeless for a portion of that year. This evidence casts serious doubt on whether appellant is able to provide for the basic
{49} Given the foregoing, the juvenile court did not abuse its discretion in finding, by clear and convincing evidence, that it was in the best interest of the children to grant permanent custody to FCDJFS and to terminate appellant‘s parental rights.
{50} Accordingly, appellant‘s fourth assignment of error is overruled.
{51} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.