IN RE: M.R., JR.
C.A. CASE NO. 2010 CA 64
T.C. NO. N39671
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
July 29, 2011
[Cite as In re M.R., 2011-Ohio-3733.]
OPINION
Rendered on the 29th day of July, 2011.
ALICE K. DEWINE, Atty. Reg. No. 0084071, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. No. 0078552, 260 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Appellant-father appeals a decision of the Greene County Court of Common Pleas, Juvenile Division, terminating his parental rights and granting permanent custody of
{¶ 2} M.R. was born on March 8, 2001, to Father and K. R. (hereinafter “Mother“). In June of 2007, Mother had custody of M.R. when she gave birth to another child, J.R., with her boyfriend at that time, N. H. GCCSB became involved with M.R. and J.R. after it was discovered that J.R. was born addicted to methadone. Father was incarcerated at the time. GCCSB developed a case plan for Mother to address her alleged drug and alcohol abuse in an effort to reunite her with her children.
{¶ 3} On October 8, 2007, GCCSB obtained an ex parte order of emergency custody regarding M.R. Shortly thereafter, GCCSB filed a complaint alleging neglect and dependency with respect to M.R. On October 9, 2007, the juvenile court held a shelter care hearing and granted interim temporary custody of M.R. to GCCSB. M.R. was later adjudicated to be dependent and neglected by the juvenile court on December 18, 2007. The juvenile court subsequently granted temporary custody of M.R. to GCCSB. After a hearing on May 12, 2008, M.R. was placed with his paternal aunt and uncle by court order. After a short time, M.R. was returned to the temporary custody of GCCSB on October 8, 2008. On the same date, GCCSB placed M.R. in a foster home, where he has since resided.
{¶ 4} Father was released from prison in November of 2007, and began living with his grandmother, W. B. During this time period, Father was added to the case plan along
{¶ 5} Moreover, in October of 2008, Mother was convicted of felonious assault and incarcerated until September of 2009. After she was released from prison, Mother initially complied with her case plan and tested negative for drug screens. However, by December of 2009, Mother became more difficult to locate for drug screens. By May of 2010, Mother was unable to maintain a stable residence and was in the process of being evicted from her third residence. The record establishes that Father failed to contact GCCSB in order to comply with the case plan from April 2009 until November of 2009. A visitation was scheduled by GCCSB in November of 2009 for Father and M.R. Father, however, was unable to attend because he was arrested and convicted for numerous drug related offenses. Father was incarcerated in January of 2010, and was not scheduled to be released until December of 2010.
{¶ 6} After placing M.R. in the foster home on October 8, 2008, GCCSB requested and obtained two extensions of temporary custody of the minor child. On March 5, 2010, GCCSB filed a motion for permanent custody of M.R. The juvenile court scheduled a hearing for August 3, 2010. On June 25, 2010, Mother submitted to a drug screen and tested positive for amphetamines, marijuana, cocaine, opiates, and oxycodone while she was also approximately eight months pregnant with a third child. Mother gave birth prior to the hearing, and the infant was promptly removed from her custody.
{¶ 7} On March 15, 2010, the juvenile court appointed counsel for Father who was
{¶ 8} The hearing on GCCSB‘s motion for permanent custody was held before the juvenile court on August 3, 2010. Mother attended and was represented by appointed counsel. Father was not present due to his incarceration but was represented by appointed counsel who made a statement on his behalf regarding his desire to be reunited with M.R. Father‘s counsel also orally renewed his motion for a continuance of the custody hearing until after he was released from prison, but the court denied his motion. On August 6, 2010, the juvenile court issued a decision granting GCCSB‘s motion for permanent custody of M.R.
{¶ 9} It is from this judgment that Father now appeals.1
{¶ 10} Father‘s first assignment of error is as follows:
{¶ 11} “THE JUVENILE COURT ERRED BY DENYING APPELLANT FATHER‘S REQUESTS TO BE TRANSPORTED TO THE PERMANENT CUSTODY HEARING.”
{¶ 13} We recently addressed a similar situation in In re R.D., Clark App. No. 08-CA-26, 2009-Ohio-1287 at ¶¶s 12-13, wherein we stated the following:
{¶ 14} “‘A trial court has discretion to decide whether to proceed with a permanent custody hearing without having an incarcerated parent conveyed.’ In the Matter of Joseph P., Lucas App. No. L-02-1385, 2003-Ohio-2217, at _51, citing State ex rel. Vanderlaan v. Pollex (1994), 96 Ohio App.3d 235, 236. Therefore, we will not reverse such a decision absent an abuse of discretion. ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (citations omitted).
{¶ 15} “[T]he failure to transport a parent from the prison to a permanent custody hearing does not violate a parent‘s due process rights ‘when: (1) the parent is represented at the hearing by counsel, (2) a full record of the hearing is made, and (3) any testimony that the parent wishes to present could be presented by deposition.’ In the Matter of Joseph P., at _52, citing In the Matter of Leo D., Deandre E., and Desandra E. (March 15, 2002), Lucas App. No. L-01-1452.”
{¶ 17} “The termination of parental rights is a significant private interest. The Court finds, however, that there is a low risk of erroneous deprivation, based upon [Father] having legal representation, the child himself having legal representation (due to his wishes being contrary to the recommendations of his GAL), the record of the proceedings will be available for review, and there are other means for [Father] to state his position to the Court, e.g. written interrogatories. The Court also finds that the burden of additional procedural safeguards created by having [Father] at the hearing is significant.”
{¶ 18} The record in the instant case establishes that Father was represented by counsel at the hearing held on August 3, 2010. Moreover, a full record was made of the hearing, and Father submitted his testimony by way of a statement made on the record by his counsel. Although permitted by
{¶ 19} Father asserts that the juvenile rules do not specifically allow for the filing of
{¶ 20} Father‘s first assignment of error is overruled.
{¶ 21} Father‘s second and final assignment of error is as follows:
{¶ 22} “THE JUVENILE COURT ERRED BY GRANTING PERMANENT CUSTODY TO THE GREENE COUNTY CHILDREN‘S SERVICES BOARD.”
{¶ 23} In his final assignment, Father argues that the trial court erred when it awarded permanent custody of M.R. to GCCSB and terminated his parental rights to the minor child. Father asserts that permanent custody to GCCSB was not in M.R.‘s best interests. Father points out that testimony was adduced at the hearing that M.R. expressed a desire to live with Father upon his release from prison. Father argues that M.R. should have been placed in the temporary custody of Mother or Father‘s grandmother, W. B., until he was released from prison.
{¶ 24}
{¶ 25}
{¶ 26}
{¶ 27} After a thorough review of the record, we find that the juvenile court properly considered all of the factors in
{¶ 28} The record also establishes that there are no suitable relative placements available. Although Father suggests his grandmother as a suitable placement for M.R., W.B. was eighty years old at the time of the hearing. Moreover, W.B. specifically informed the caseworker that she was unable to care for M.R.
{¶ 29} As previously stated, the juvenile court found that M.R. had been in the temporary custody of GCCSB for more than twelve of twenty-two consecutive months. The record established that neither parent had custody of M.R. since September of 2007.
{¶ 31} With respect to Father, the juvenile court found that his “two prison terms have precluded him from meeting case plan goals and his current incarceration renders him incapable of being a placement option.” We also note that Father did not comply with the case plan formulated by the GCCSB when he was not incarcerated.
{¶ 32} Lastly, the juvenile court held that, pursuant to
{¶ 33} The record establishes that Father‘s release date from prison was scheduled for December of 2010. GCCSB‘s second extension for temporary custody of M.R. was set to expire on October 8, 2010. By statute, the juvenile court was without authority to grant a third extension of temporary custody to GCCSB. Father would have remained incarcerated and, therefore, unable to take custody of M.R. when the second extension expired in early October of 2010. In light of the foregoing analysis, we conclude that the juvenile court did not abuse its discretion when it awarded permanent custody of M.R. to GCCSB.
{¶ 34} Father‘s second assignment of error is overruled.
{¶ 35} All of Father‘s assignments of error having been overruled, the judgment of the juvenile court is affirmed.
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Alice K. DeWine
Tyler D. Starline
Hon. Robert W. Hutcheson