{¶ 2} In 2003, E.S.B. and E.I.B. were removed from mother's home, adjudged neglected, and committed to the temporary сustody of CCDCFS. Immediately after her birth in 2004, T.P. was placed into emergency custody with CCDCFS. She was later adjudged neglected and placed into the temporary custody of CCDCFS. In 2005, CCDCFS moved to modify the temporary custody оf the children to permanent custody. After two hearings, the court granted CCDCFS' motions to modify temporary custody to permanent custody regarding all three children.
{¶ 3} Mother appeals, raising two assignments of error. We note, however, that mother has not raised any argument regarding the trial court's final decision awarding permanent custody to CCDCFS. Therefore, pursuant to App.R. 12 and 16, we need not review the trial cоurt's decision on this issue.
{¶ 5} An appealing party may complain of an error committed against a non-appealing party when the error is prejudicial to the rights of the appellant. In re Hitchcock (1996),
{¶ 6} A complaint for permanent custody leads to an adversarial proceeding which can deprive parents of all rights in their children. In re Miller,
{¶ 7} In regard to mother's first issue, service on Quan, we cannot say that this purported inability to defend against termination of parental rights prejudiced mother. First, the record demonstrates that Quan was served by publicatiоn the notice of the permanent custody motion. Second, Quan and mother were not married, Quan never established paternity, and the record indicates that he showed no interest in obtaining custody of E.S.B. This сourt addressed a similar factual situation in Inre D.H., Cuyahoga App. No. 82533,
{¶ 8} Regarding mother's second and third issues, service on Michael with the notice of trial and the motion to terminate parental rights, we first note that mother failed to make any objection before the trial court concerning these issues, thus waiving any argument on appeal. A.D., supra. Nevertheless, the record shows that Michael received actual notice of the permanent custody trial date on August 24, 2005 when he was present before the court and signed the notice of hearing set for October 25, 2005. This also demonstrates that he had actual notice of the permanent custody petition. The fact that he voluntarily failed to appear does not amount to deprivation of mother's due process rights. It is also worth noting that when the original motion for permanent custody wаs filed regarding E.I.B., Michael appeared before the trial court and agreed with granting permanent custody to CCDCFS. At that hearing, the trial court advised him that he no longer had to appear for these mаtters because he agreed to the permanent custody petition. Therefore, because Michael was not prejudiced by the alleged service errors, mother has no standing to raise these issues on Michael's behalf.
{¶ 9} Mother argues in her final issue that she was deprived of her due process rights because Terrance's motion to continue was denied. The decision to grant a motion to cоntinue a trial is within the trial court's sound discretion, and will not be disturbed absent an abuse of that discretion. In re J.P,
Cuyahoga App. No. 84473,
"in determining whether the trial court has abused itsdiscretion, appellate courts should apply a balancing test whichtakes cognizance of all the competing considerations.
* * *
In evaluating a motion for a continuance, a court should note,inter alia: the length of the delay requested; whether othercontinuances have been requested and received; the inconvenienceto litigants, witnesses, opposing counsel and the court; whetherthe requested delay is for legitimate reasons or whether it isdilatory, purposeful, or contrived; whether the defendantcontributed to the circumstance which gives rise to the requestfor a continuance; and other relevаnt factors, depending on theunique facts of each case. (Citations omitted)."
Id. Citing State v. Unger (1981),
{¶ 10} Loc.R. 49(C) of the Cuyahoga County Juvenile Court provides:
"No case will be continued on the day of trial or hearingexcept for good cause shown, which cause was not known to theparty or counsel prior to the date of trial or hearing, andprovided that the party and/or counsel have used diligence to beready for trial and have notified or made diligent efforts tonotify the opposing party or counsel as soon as he/she becameaware of the necessity to request а postponement. This rule maynot be waived by consent of counsel."
{¶ 11} Terrance was not present for the permanent custody hearing on November 28, 2005 because he had been arrested on November 25 for failing to appear for sеntencing in a criminal case. Terrance failed to notify the juvenile court or his counsel of his arrest. Instead, on the day of the hearing, his counsel was advised by a social worker that Terrance had been arrested and was incarcerated. At that time, his counsel moved for a continuance. The court determined that the motion was untimely because Terrance could have contacted his аttorney to advise the court and the parties that he was incarcerated. Moreover, mother failed to object to the court's ruling on Terrance's motion.
{¶ 12} We find no abuse of discretion in the cоurt's denying Terrance's motion for a continuance. The record shows that the November 28 hearing began at 2:11 p.m. This was the first time that counsel notified the court of Terrance's incarceration. In fact, his сounsel had no knowledge of his incarceration until a social worker advised her of the situation at trial. Clearly, Terrance knew of the circumstances prior to trial and could have made arrаngements through his counsel to be transported from the county jail to the juvenile court. Instead, Terrance was dilatory in protecting his rights by failing to notify the court and his counsel that he was in jail. Nevertheless, we find thаt Terrance had counsel present at the adjudication hearing to fully protect his rights.
{¶ 13} Accordingly, we find no abuse of discretion in the trial court's denying Terrance's motion to continue. Thus, we find that mother's due process rights were not violated by the trial court's denial of the motion because she was not inherently prejudiced. Terrance had counsel present, representing his interests, and he was unavailablе for trial because of his own dilatory actions.
{¶ 14} Accordingly, we find no merit to mother's first assignment of error.
{¶ 16} The right to counsel, guaranteed in juvenile proceedings by R.C.
{¶ 17} In order to establish a claim of ineffective assistance of counsel, mother must demonstrate that her trial counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington (1984),
{¶ 18} Because we found thаt the trial court did not abuse its discretion in denying Terrance's motion for a continuance and we found no errors in service or any prejudicial effect, we cannot say that counsel was ineffective for failing to object to these issues. Moreover, mother has failed to demonstrate prejudice. Her speculative statements that Terrance's testimony may have made a difference and thаt Michael may have changed his mind does not satisfy mother's burden of demonstrating that, absent the alleged errors made by counsel, the result probably would have been different.
{¶ 19} Accordingly, her final assignment of error is overruled.
Judgment affirmed.
It is ordered that appelleе recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the juvenile court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Dyke, A.J. and Kilbane, J. concur.