IN RE: J.W. AND H.W.
APPEAL NO. C-190189
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 3, 2019
2019-Ohio-2730
BERGERON, Judge.
TRIAL NO. F14-172
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 3, 2019
OPINION.
Christopher P. Kapsal, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jacqueline O‘Hara, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Amanda Robinson, Assistant Public Defender, Guardian ad Litem for the minor children.
{1} We confront in this case a parental termination dispute in which Mother did not appear at the hearing as a result of her incarceration. Although she presents this as a due-process violation, she failed to challenge this issue before the juvenile court on review of the magistrate‘s order, which limits our review to plain error. Given that she failed to avail herself of alternative means of appearance (such as by deposition), we cannot say that the trial court committed plain error in proceeding with the hearing notwithstanding her absence. Our independent review of the record further convinces us that the weight of the evidence supported the juvenile court‘s determination. We accordingly affirm the judgment below.
I.
{2} Hamilton County Department of Job and Family Services (“HCJFS“) became involved with Mother and her children in 2015. At that time, it opened a dependency matter based on reports of physical abuse toward the two children concerned in this appeal, J.W. and H.W., along with three of their siblings. J.W. and H.W. were eventually adjudicated dependent and placed under protective supervision of HCJFS, which subsequently escalated to a grant of interim custody and then temporary custody to HCJFS in 2017. After two extensions of temporary custody, HCJFS ultimately sought permanent custody.
{3} At the August 2018 pretrial conference regarding the custody hearing, Mother‘s attorney informed the court that, due to pending charges against Mother, he anticipated that Mother would be incarcerated at the time of the hearing and unable to attend. Counsel accordingly requested a continuance to enable Mother to fully participate in the hearing. The magistrate denied the request, however, and instructed counsel to secure alternative means for Mother‘s participation (such as attendance by phone or video)
{4} Counsel‘s prediction proved accurate, as Mother was serving 90 days’ incarceration for smuggling drugs into a detention facility and not due to be released until mid-December 2018. Despite contacting the jail in Ross County (where Mother was incarcerated) in an effort to secure other means for Mother‘s participation in the October hearing, the jail informed counsel on October 2 that it could not accommodate either transporting Mother to the hearing or telephone participation for Mother. Subsequently, at the October hearing, counsel reiterated the request that the hearing be continued. HCJFS protested yet another delay, emphasizing the multiple reschedulings of the hearing. The hearing ultimately continued without Mother‘s presence, but she was represented by counsel.
{5} At the hearing, HCJFS adduced testimony regarding the children and Mother‘s participation in her case plan and progress. At the conclusion of the hearing, the magistrate took the matter under advisement and ultimately rendered a decision deeming it in the children‘s best interests that Mother‘s parental rights were terminated and permanent custody granted to HCJFS. Mother later lodged objections to the magistrate‘s decision, which the juvenile court overruled in adopting the magistrate‘s findings.
{6} In the wake of this ruling, Mother now frames two assignments of error on appeal. Initially, she challenges the denial of the continuance of the hearing to ensure her presence as a violation of her due-process rights, and she also challenges both the weight and sufficiency of the evidence underlying the decision terminating her parental rights.
A.
{7} In her first assignment of error, Mother challenges the denial of the continuance as a violation of her due-process rights by denying her meaningful participation in the permanent-custody hearing. But Mother faces a threshold problem with this argument because she failed to object to the magistrate‘s denial of the continuance in her objections before the juvenile court, which confines our review of this issue to plain error. See
{8} On the record before us, Mother cannot satisfy the high showing needed to establish plain error. Due process in parental terminations requires that a parent have notice and an opportunity to be heard before termination of his or her parental rights. State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 421, 662 N.E.2d 366 (1996). But that is not an inflexible command that mandates the physical presence of the parent in all circumstances so long as the parent is afforded some meaningful alternative means of participation. See In re A.N.B., 12th Dist. Preble No. CA2012-12-017, 2013-Ohio-2055, ¶ 25 (violation of
{9} Examination of the record here reveals no such violation, and certainly none that would rise to the level of plain error. Despite the denial of the continuance, Mother was represented by counsel at the hearing (and concedes this representation was adequate in her appellate brief). Indeed, the record reflects counsel‘s active engagement at the custody hearing, both cross-examining witnesses and interposing objections on Mother‘s behalf. And we have the benefit of a full record of the hearing proceeding. Finally, and perhaps most importantly, Mother makes no showing as to either being prevented from submitting deposition testimony, or as to why she was unable to secure some type of testimony in light of her incarceration. Counsel knew about this predicament almost a month before the hearing and failed to utilize some alternative vehicle to present Mother‘s testimony to the court.
{10} We contrast these facts with our recent decision in In re M/W, Children, 1st Dist. Hamilton No. C-180623, 2019-Ohio-948, where we reversed a permanent-custody determination based upon the denial of the mother‘s opportunity to testify. We explained that the mother‘s absence there resulted from her planned transportation unexpectedly failing; she had not previously requested a continuance and had otherwise satisfactory attendance for the proceedings; and she was fully prepared to testify before the juvenile court at the objections hearing. Id. at ¶ 38-39. In light of the gravity of the matter, the
{11} This case, however, shares few, if any, of the traits that dictated reversal in In re M/W, Children. Here, Mother was not unexpectedly prevented from attending because some prearranged plan fell apart at the last minute. Counsel had nearly a month‘s notice that the jail would not accommodate Mother‘s request, during which he could have either taken Mother‘s deposition or prepared her affidavit. Even though the court denied the continuance request in August, the record reveals that it subsequently continued the case twice, thus affording the benefit of additional time to prepare alternative means of participation for Mother. Finally, at the time of the objections hearings in February 2019, not only is there no indication that Mother was prepared to testify, but no objection was actually registered to the magistrate‘s denial of the continuance.
{12} On these facts, we see no plain error. See In re M/W, Children at ¶ 33 (“[A] parent‘s right to testify must be balanced against a trial court‘s ability to manage its docket * * *.“). Mother had adequate opportunity to participate via deposition testimony and yet opted not to do so. Because Mother had alternative means of participation readily available, we overrule her first assignment of error.
B.
{13} Mother next challenges the findings, both under
{14}
{15} Mother first contends that the magistrate erred by not specifying a finding under
{16} And the record here supports such a finding. Temporary custody of the children was granted to HCJFS in July of 2016, which meant that the clock for purposes of the “12 of 22” finding began running 60 days after this grant. See
{17} In light of this determination under
{18} That brings us to the best-interest criteria, and here Mother posits that the magistrate‘s best-interest findings under
{19} In considering the best-interest factors, the magistrate‘s decision acknowledged Mother‘s progress in her case plan and that the children, in particular J.W., had expressed desire to be returned to her. At the same time, the magistrate noted that Mother relapsed after completing intensive outpatient services resulting in another referral to the program after positive screens, and that despite participation in addiction-related services, “the required changes have not been made such that she can parent her children.” In other words, the court failed to see an amelioration of chronic problems.
{20} And the record supports these and related findings. HCJFS caseworker Niesha Cooper testified that Mother‘s interactions with the children during visits were problematic, including one episode where she showed up intoxicated at a home visit with the children. Ms. Cooper testified that Mother often engaged in inappropriate adult conversations with the children, which required intervention by visit facilitators. Although J.W. expressed a desire to return to Mother, he also faults himself for Mother‘s current predicament and believes that he shoulders the blame for the children being in HCJFS care. The guardian ad litem also expressed that a grant of permanent custody to HCJFS was in the best interest of the children, and testimony was adduced at trial to show that the children are doing well in the foster setting, with H.W. in particular making progress with certain behavioral issues.
{22} While we certainly appreciate the seriousness of terminating Mother‘s parental rights, where the determination of the juvenile court is supported by sufficient clear and convincing evidence, and the determination was not against the manifest weight of this evidence, the juvenile court did not err. In sum, because the denial of Mother‘s request for a continuance was not in error, nor the permanent-custody determination under
Judgment affirmed.
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.