IN RE: J.E., [SASHA STEELE - APPELLANT]
CASE NO. 9-17-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
October 23, 2017
2017-Ohio-8272
Aрpeal from Marion County Common Pleas Court Family Division Trial Court No. 15 AB 0016 Judgment Affirmed
Robert C. Nemo for Appellant
Justin J. Kahle for Appellee
{¶1} Appellant, Sasha Steele (“Steele”), appeals the March 8, 2017 judgment entry of the Marion County Court of Common Pleas, Family Division, granting permanent custody of her minor child, J.E., to appellee, the Marion County Children’s Services Board (“the Agency”). For the reasons that follow, we affirm.
{¶2} J.E. is the minor child of Steele and Jordan Emmons (“Emmons”) born in December оf 2014. (Doc. No. 1).1 On January 6, 2015, the Agency filed a complaint alleging that J.E. was an abused and dependent child under
{¶3} At multiрle points in the case, the Agency submitted case plans to the trial court, which the trial court approved and incorporated into disposition entries. (Doc. Nos. 36, 63, 99). The Agency also filed semiannual administrative reviews. (Doc. Nos. 31, 38, 61, 83).
{¶4} On January 13, 2015, the trial court appointed a guardian ad litem (“GAL”) for J.E. (Doc. No. 9). On January 23, 2015, the trial court appointed
{¶5} After a shelter-care and pre-trial hearing on January 28, 2015, the trial court on February 11, 2015 issued an order that temporary custody of J.E. remain with the Agency and scheduled the matter for adjudication on March 13, 2015. (Doc. No. 17). That adjudication was continued on the trial court’s motion because Steel was not transported to the hearing. (Doc. No. 21).
{¶6} On March 27, 2015, Steele stipulated that J.E. was a dependent child under
{¶7} On April 26, 2016, the Agency filed a motion for permanent custody of J.E. (Doc. No. 48). The trial court scheduled the permanent custody hearing for July 18, 2016. (Doc. No. 49). On July 7, 2016, Steele filed a motion to continue that hearing. (Doc. No. 65). On July 12, 2016, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 66). The trial court granted the
{¶8} On January 6, 2017, Steele filed a motion to continue the permanent custody hearing set for January 12, 2017. (Doc. No. 86). On January 10, 2017, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 87). The trial court denied the motion to continue on January 11, 2017. (Doc. No. 88).
{¶9} The trial court held a permanent custody hearing on January 12, 2017. (Doc. No. 97). The guardian ad litem submitted his rеport and recommendation on January 30, 2017 and recommended that the trial court grant the Agency’s motion for permanent custody. (Doc. No. 92). On March 8, 2017, the trial court filed its judgment entry granting the Agency permanent custody of J.E. (Doc. No. 97).
{¶10} On March 30, 2017, Steele filed her notice of appeal. (Doc. No. 101). She brings three assignments of error for our review.
Assignment of Error No. I
The Trial Court Abused Its Discretion When It Denied Appellant’s Motion For [A] Continuance.
{¶11} In her first assignment of error, Steele argues that the trial court abused its discretion in denying her motion to continue the January 12, 2017 permanent
{¶12} “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
{¶14} When a litigant received prior continuances and requests an additional continuance of indeterminate length, the first two Unger factors weigh in favor of denying the continuance, especiаlly in light of the fact that establishing permanency for children in temporary placement is paramount. In re J.C., 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, ¶ 39-40. The propriety of denying a request for a continuance is further supported when a defendant requests a continuance for a legitimate reason but also contributed to the circumstances giving rise to the request. Id. at ¶ 41. When a defendant faces ongoing drug addiction and is without stable housing such that a continuanсe would not likely change the outcome of the case, a court does not abuse its discretion in denying the continuance. Id. at ¶ 45. The
{¶15} In the instant case, the trial court granted Steele two prior continuances. Id. at ¶ 40 (noting that the second Unger factor supported the denial of a continuance when а prior continuance was granted). In addition, Steele’s request for a continuance did not specify a date to which she wanted the hearing continued. Id. at ¶ 39 (holding that the first Unger factor weighs in favor of denying a continuance where the length of the continuance requested is indeterminate); In re J.D. at ¶ 46 (affirming the trial court’s denial of a continuance where the request for a continuance did not state how long a continuance was nеcessary). Even where, as here, a defendant requests a continuance for the legitimate purpose of making progress in drug treatment, a court does not abuse its discretion in denying the request. In re B.G.W., 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693, ¶ 24 (construing the purpose-of-the-request factor against the defendant where the reason for the request was to allow the defendant to gather evidence of progress in drug treatment); In re Shanequa H., 109 Ohio App.3d 142, 146 (6th Dist.1996) (holding that a trial court did not аbuse its discretion in denying a continuance requested so that the defendant could enter drug treatment). The inconvenience to the parties and the court would be substantial because the hearing was already rescheduled numerous times. It is undisputed here that Steele contributed to the circumstances
{¶16} We also consider, as a unique factor relevant to this case, that
{¶17} We further consider, as a unique factor relevant to this case, the fact that a continuance would likely not have changed the outcome of the case. In re J.C., 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, ¶ 45. The trial court found that the parents’ circumstances “fail to present any opportunity for [J.E.’s] return to
{¶18} We conclude that Steele’s argument as to the brevity of the trial court’s judgment entry denying her motion to continue is unpersuasive. In re J.D., 3d Dist. Hancock No. 5-10-34, 2011-Ohio-1458, ¶ 46-48. Though the Unger factors enumerated above are necessary for consideration, we do not require courts to explicitly undertake Unger’s six-factor analysis in every judgment entry ruling on a motion to continue. Id. (affirming the denial of a motion to continue where the judgment entry did not contain any explanation for the trial court’s decision).
{¶19} We further conclude that Steele’s аrgument as to the haste with which the motion for permanent custody was allegedly filed is unpersuasive. We note that the speed with which the Agency files its motion for permanent custody is not among the Unger factors. See State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). Moreover, Steele had nine months between the Agency’s filing of its motion for permanent custody and the permanent custody hearing in which to put herself in a position to advocate for her interests.
Assignment of Error No. II
Appellant Was Denied Her Right To Effective Assistance Of Counsel.
{¶21} In her second assignment of error, Steele argues that she was denied her right to effective assistance of trial counsel. Specifically, she argues that she was denied effective assistance of trial counsel because her trial counsel did not object to two instances of hearsay testimony pertaining to the availability of a kinship placement for J.E. at the permanent custody hearing.
{¶22} “In permanent custody proceedings, where parents face losing their children, we apply the same test as the test for ineffective assistance of counsel in criminal cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40, citing In re Heston, 129 Ohio App.3d 825, 827 (8th Dist.1998). In order to demonstrate ineffective assistance of trial counsel, one must first show that the trial counsel’s performance fell below an objective standard of reasonableness. Id. at ¶ 41, citing Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. Bradley, 42 Ohio St.3d 136, 137 (1989). One must next demonstrate that, but for trial counsel’s errors, the result of the proceeding would have been different. Id. The appellant bears the burden of establishing ineffective assistance of trial
{¶23} In the instant case, Steele has not established that the result of the proceeding would have been different but for the alleged errors of counsel as noted above. A trial court is not required to consider the availability of a kinship placement prior to granting permanent custody of a child to an agency. In re S.G., 3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 82, citing In re P.S., 5th Dist. Licking No. 16–CA–11, 2016–Ohio–3489, ¶ 57. Therefore, the trial court could have come to the same conclusion if it excluded the evidence to which Steele refers. Id.
{¶24} Because we conclude that Steele has not demonstrated prejudice, we need not address whether Steele’s trial counsel’s performance fell below an objective standard of reasonableness, as any showing of ineffective аssistance requires the defendant to satisfy both prongs of the applicable legal test. In re E.C. at ¶ 41.
{¶25} For the reasons explained above, Steele’s second assignment of error is overruled.
The Trial Court’s Decision To Award Appellee Permanent Custody Was Against The Manifest Weight Of The Evidence And Contrary To Law.
{¶26} In her third assignment of error, Steele argues that the trial court’s decision to award the Agency permanent custоdy of J.E. was against the manifest weight of the evidence and was contrary to law. Specifically, Steele argues that the trial court erred when it did not specifically enumerate which best-interest factors it found supported the granting of permanent custody to the Agency. Steele further argues that, even if the trial court properly considered the best-interest factors as the statute requires, the trial court еrred when it found that it was in J.E.’s best interest to grant permanent custody to the agency.
{¶27} The right to raise one’s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court
{¶28} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(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, * * * and the child cannot be placed with either of the child’s parents within a reasonable time or should not bе placed with the child’s parents.
* * *
(d) 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 * * *.
{¶29} “[T]he findings under
{¶30} “If the trial court determines that any provision enumerated in
[T]he court shall consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, fostеr 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 fоr twelve or more months of a consecutive twenty-two-month period * * *;
(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.
{¶31} “Clear and convincing evidence is more than a preponderance of the evidence but not as much evidence as required to establish guilt beyond a reasonable doubt as in a criminal case; rather, it is evidence which provides the trier of fact with a firm belief or conviction as to the facts sought to be established.” In re H.M.K., 3d Dist. Wyandot Nos. 16–12–15 and 16–12–16, 2013–Ohio–4317, ¶ 42, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122 (1991).
{¶32} In the instant case, the trial court found that J.E. cannot be placed with her parents within a reasonable period of time. (Doc. No. 97 at 7-8). Steele does not challenge any of the trial court’s findings as to
{¶33} In this case, the trial court referenced the applicable statute in its entry. “In accordance with [R.C.] 2151.414(D), the Court finds that the grant of permanent custody [of] J.E. to [the Agency] is in the best interests of said child.” (Doc. No. 97 at 9). See In re M.R. at ¶ 78 (“While it is far from the better practice, we find that the trial court’s citation to the appropriate statute when making its best interest finding meets its obligation, albeit to the minimum extent possible, in demonstrating that the
{¶35} For the reasons above, we conclude that clear and convincing evidence supports the trial court’s determinations under
{¶36} Steele’s third assignment of error is overruled.
{¶37} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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