In re S.F.T.
Mary F. Sweeney, 7723 Tylers Place Blvd., #129, West Chester, Ohio 45069-4684, attorney for the minor children
Sarah A. Smith, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, guardian ad litem for the minor children
Traci Combs-Valerio, 240 East State Street, Trenton, Ohio 45067, for S.T.
O P I N I O N
BRESSLER, J.
{¶1} Appellant, the biological mother of C.T., G.T., S.F.T., and W.T.,1 appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, granting
{¶2} In January 2007, the children were removed from appellant‘s custody and placed in the temporary custody of BCDJFS after the agency received a referral that the children were living in a home without utilities, there was very little food in the home for the children, and that appellant had a history of domestic violence and mental health issues. A case plan for reunification was implemented, which required appellant to undergo a psychiatric and psychological evaluation and follow all recommendations, participate in domestic violence classes, complete an in-home parenting program, and maintain safe and stable housing and income. Appellant completed the psychiatric and psychological evaluation, the domestic violence course, and the parenting program. Despite appellant‘s failure to maintain stable housing and consistently pay utility bills, the children were returned to her custody in June 2007. However, the children were again removed from her custody in February 2008 after appellant was charged with three misdemeanor counts of educational neglect of a minor and incarcerated.
{¶3} On February 19, 2008, appellant was convicted on the misdemeanor charges and sentenced to serve three consecutive six-month terms in the Butler County Jail. Following her sentencing hearing, appellant attempted to remove two of her children from school and was later charged with and convicted on one count of felony escape. Appellant was then sentenced to serve a nine-month prison term, to be served consecutively to her previous jail sentences.
{¶4} BCDJFS moved for permanent custody of the children on December 4, 2009. A series of permanent custody hearings began on August 10, 2009 and
{¶5} Assignment of Error No. 1:
{¶6} “THE TRIAL COURT ERRED WHEN IT DENIED MOTHER‘S MOTION TO TRANSPORT OR FOR DEPOSITION EXPENSES.”
{¶7} In her first assignment of error, appellant argues the trial court erred in denying her request to be transported from prison in Marysville, Ohio to the permanent custody hearing. Further, appellant argues that the trial court erred in failing to allow her testimony to be taken by deposition.
{¶8} Initially, we note that “[t]here is no support in the Constitution or in judicial precedent for the proposition that a prisoner has an absolute due process right to attend the trial of a civil action to which he is a party. Any such right must be balanced against the state‘s interest in avoiding the risks and expenses of transportation.” Abuhilwa v. Board, Pickaway App. No. 08CA3, 2008-Ohio-5326, ¶7, quoting Mancino v. City of Lakewood (1987), 36 Ohio App.3d 219, 221. Moreover, “a trial court does not abuse its discretion when proceeding with a permanent custody hearing although the mother of the child is not present at the hearing because she is incarcerated.” In re Frasher (Aug. 20, 1997), Summit App. No. 18100. See, also, In re Smith (Mar. 1, 1995), Summit App. No. 16778, (a parent‘s due process rights are not violated by the trial court‘s failure to have a parent returned from prison to attend a permanent custody hearing).
{¶9} “[I]n evaluating the due process right of an incarcerated parent to be present at a permanent custody hearing, Ohio courts have looked to the test established by the United States Supreme Court in Mathews v. Eldridge (1976), 424 U.S. 319, 335, 96 S.Ct. 893.” In re M.M., Wood App. No. WD-09-014, 2009-Ohio-3400, ¶27, citing In re C.M., Summit App. Nos. 23606, 23608, 23629, 2007-Ohio-3999, ¶14. “In Mathews, the court recognized that ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands,’ and established a three-part test by which to determine what process may be due in a particular case. * * * Pursuant to Mathews, the [parent‘s] due process right to be present at a permanent custody hearing is determined by balancing: (1) the private interest affected; (2) the risk of erroneous deprivation and the probable value of additional safeguards; and (3) the governmental burden of additional procedural requirements. * * * ” (Internal citations omitted.) Id. Further, a parent‘s fundamental liberty interest in the care, custody, and maintenance of her children “does not evaporate simply because [she] has not been a model parent or lost temporary custody of the [children] to a children‘s services agency.” In re C.M. at ¶15.
{¶10} As to the first criteria set forth in Mathews, “[i]t is well established that a
{¶11} Next, we analyze the second factor in the Mathews test to determine the risk of an erroneous deprivation of appellant‘s private interest by her absence at the final hearing. According to the record, appellant was present at previous hearings on BCDJFS‘s permanent custody motion, testified at the hearing on August 10, 2009, and was represented by counsel at the hearings on October 12, 2009 and November 20, 2009. “An incarcerated parent‘s right to due process is not violated when the parent is represented by counsel at the hearing, a full record of the proceedings is made, and any testimony that the parent may wish to present could be offered by way of deposition.” In re P.J., Ashtabula App. Nos. 2008-A-0047, 2008-A-0053, 2009-Ohio-182, ¶66. While the juvenile court denied appellant‘s motion for the state to pay deposition expenses, appellant was not denied the opportunity to present deposition testimony, nor was her counsel denied the opportunity to proffer testimony on appellant‘s behalf. See, e.g., In re Hitchcock (June 22, 2000), Cuyahoga App. No. 76432. Further, appellant has failed to explain how she was prejudiced by her absence from these hearings. Id.
{¶12} Finally, we consider the third factor in the Mathews test to determine the governmental burden of additional procedural requirements. In denying appellant‘s motions, the juvenile court found that the burden on the state to transport appellant from
{¶13} After considering the juvenile court‘s analysis in view of the Mathews standards, we find that appellant was not deprived of any right to due process in this matter. Appellant‘s first assignment of error is overruled.
{¶14} Assignment of Error No. 2:
{¶15} “THE TRIAL COURT ERRED WHEN IT GRANTED THE PERMANENT CUSTODY MOTION FILED BY THE STATE, AS IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶17}
{¶18}
{¶19} “(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;
{¶20} “(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;
{¶21} “(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 ending on or after March 18, 1999;
{¶22} “(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;
{¶23} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶24} With respect to
{¶25} With respect to
{¶26} With respect to
{¶28} Further, the court found that prior to being incarcerated, appellant did participate in some case plan services but ultimately failed to demonstrate implementation of those services to obtain and maintain stability in her life. The court found that appellant was unable to obtain and maintain a stable residence and income and was unable to pay her utility bills. The court also noted its concern that appellant stated during her psychological evaluation that she planned to reunite with a man who allegedly physically abused her and sold drugs, although appellant disputed this statement at the hearing.
{¶29} With respect to
{¶30} Based on consideration of these factors, the juvenile court determined that it is in the children‘s best interest to grant permanent custody to the agency. Based on our review of the record, we find the court‘s conclusions on this finding are supported by the evidence.
{¶31} In addition to finding permanent custody was in the child‘s best interest,
{¶32} Pursuant to
{¶33} Pursuant to
{¶34} Next, the juvenile court considered the factors in
{¶35} “Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside
{¶36} In considering
{¶37} Next, the trial court considered
{¶38} The trial court then considered
{¶39} Also, the trial court considered
{¶40} After reviewing the record, and considering appellant‘s arguments on appeal, we find that the trial court‘s findings are supported by clear and convincing evidence and are not against the manifest weight of the evidence. Appellant‘s second assignment of error is overruled.
{¶41} Judgment affirmed.
YOUNG, P.J., and POWELL, J., concur.