[Cite as In re Fontes Children, 2014-Ohio-1221.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
:
FONTES CHILDREN : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
MINOR CHILDREN : Hon. Craig R. Baldwin, J.
:
:
: Case No. 2013CA00242
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Juvenile Division
Case No. 2013 JCV 00321
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 24, 2014
APPEARANCES:
For Appellee For Appellant Mother
JERRY A. COLEMAN MARY G. WARLOP
Stark County Department of Job & Abney Law Office, LLC
Family Services Legal Counsel 116 Cleveland Ave. NW, Suite 500
221 Third Street SE Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2013CA00242 2
Baldwin, J.
{¶1} Appellant A.W. appeals from the November 15, 2013 Judgment Entry of
the Stark County Court of Common Pleas, Family Court Division, terminating her
parental rights and granting permanent custody of L.F. and K.F. to the Stark County
Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant A.W. is the mother of L.F. (DOB 9/12/11) and K.F. (DOB
9/25/12). On April 3, 2013, a complaint was filed alleging that the two children were
dependent and neglected. Stark County Department of Job and Family Services
(SCDJFS) sought temporary custody of the children. Following a shelter care hearing
on April 4, 2013, the children were placed into the temporary custody of SCDJFS.
{¶3} A hearing was scheduled for May 1, 2013. Appellant, who was served,
failed to appear for the same. The Magistrate, in an Order filed on May 2, 2013, set an
evidentiary hearing for June 25, 2013. On June 25, 2013, neither appellant nor the
child’s father, who is not a party to this appeal, appeared despite having been served
with notice. Pursuant to a Magistrate’s Decision filed on June 26, 2013, the Magistrate
found the children to be neglected children. The Magistrate, in her Decision, stated that
appellant had signed a safety plan with the agency, but constantly evaded the agency’s
attempts at contact. The Magistrate, in a separate decision filed the same day, found
that reasonable efforts had been made to prevent the need for removal of the children
from the home. The children were continued in the temporary custody of SCDJFS.
{¶4} Thereafter, on September 30, 2013, SCDJFS filed a motion seeking
permanent custody of the children. A review hearing was held before a Magistrate on
Stark County, Case No. 2013CA00242 3
October 1, 2013. Appellant did not appear for the hearing. The Magistrate, in her
October 2, 2013 Order, stated that appellant had never appeared for any court hearing,
had “no showed for Deliverance House” and had not visited the children for more than
90 days. The Magistrate also noted that appellant, who admitted to using cocaine, had
not dropped any urines as ordered. A hearing on the motion for permanent custody was
scheduled for November 12, 2013.
{¶5} Appellant did not appear on November 12, 2013 but was represented by
counsel. At the hearing, the following discussion took place on the record:
{¶6} ATTY FRANK: Thank you, Your Honor. Um…at this time, our office
just received this case um…about a week and a half ago. Ms. Welsh [appellant] came
to our office to get an attorney. I was assigned to this case I believe at the beginning of
last week. At this point, um…I’ve only spoken to Ms. Welsh once and that was this
morning when she indicated that she is currently at Aultman Hospital, uh…seeking in-
patient drug and alcohol treatment and I believe mental health treatment. Um…at this
point, I have to be honest, I am not currently ready to go forward with the PC, this was
also misfiled (inaudible) at our office as an adjudication hearing, not as a PC hearing.
Um…I did not receive papers that us…Ms. Welsh’s father brought to me, uh…about five
minutes ago. That I would ha, like an opportunity to go over it. I’d also like an
opportunity to go over any discovery, what the State has um…so, at this point, I would
just ask for a continuance in this matter.
{¶7} THE COURT: Any objection?
{¶8} ATY EOFF: Your Honor, I would not agree to the motion, only
because we have had this case since April of 2013. Mother has never founded
Stark County, Case No. 2013CA00242 4
(inaudible) schedule to come to a court hearing. In fact, I think attorney Frank would
need to be appointed today because mother’s never exercised her right to counsel.
Technically speaking. Um…I view this in-patient hospitalization to be a delay tactic,
so…that’s the feeling of the State.
{¶9} Transcript at 3-4.
{¶10} The trial court then denied the motion for a continuance.
{¶11} At the hearing, Lisa Eggenschweiler, an employee with SCDJFS, testified
that she became involved with the children in May of 2013 and that there were concerns
about substance abuse, a dirty home and neglect. She testified that the children had
been in the agency’s custody continuously since June 25, 2013. According to
Eggenschweiler, appellant’s case plan required her to complete a parenting evaluation
at Northeast Ohio Behavioral Heath. While appellant scheduled an appointment for
June 10, 2013, she did not attend and did not call to reschedule. Eggenschweiler also
testified that appellant was to complete a Quest assessment, but was dishonest about
her substance abuse and did not follow through with treatment. She further testified that
appellant was to enter IOP (intensive out-patient treatment) and never did and that
appellant was to be assessed by Deliverance House, but did not make it to the
assessment. While appellant was to submit to urine testing on Mondays, Wednesdays
and Fridays, she failed to submit to any urine screens and that a forensic fluid test that
appellant submitted in May of 2013 was positive for cocaine and marijuana. Appellant
also was to begin Goodwill Parenting after ninety days of sobriety, but was unable to
maintain sobriety. According to Eggenschweiler, there was a bench warrant out for
appellant, who had last visited with her children on June 4, 2013.
Stark County, Case No. 2013CA00242 5
{¶12} On cross-examination, Eggenschweiler testified that the Quest
assessment that appellant completed indicated that she needed intensive out-patient
treatment and in–patient treatment. Deliverance House was the in-house treatment.
Appellant had been scheduled for an assessment with Deliverance House on August
26, 2013. Eggenschweiler testified that appellant admitted to her that she had a drug
problem and that appellant knew she needed in-patient treatment. According to her,
appellant “has not demonstrated any motivation to, to do services at all.” Transcript at
11.
{¶13} At the best interest hearing, Eggenschweiler testified that the children had
been placed together in a foster home and were doing well. One of the children had a
speech delay. She testified that they were bonded to their foster family and to the other
children in the house and that the family was bonded to them. According to
Eggenschweiler, the foster family met the children’s needs.
{¶14} Eggenschweiler further testified that she looked into placing the children
with their maternal grandmother, but that the grandmother had violated the safety plan
that was in place before the motion was filed and had given the children back to
appellant. For such reason, and due to other concerns, the agency believed that the
maternal grandmother was not an appropriate placement. Eggenschweiler also testified
that when appellant did visit with the children she spent a lot of time on her cell phone
and often did not interact with them. She stated that it was appellant’s choice not to
have visited with the children since June 4, 2013 and that the children never asked for
appellant. Eggenschweiler testified that the children would benefit from permanency and
the hope of adoption in this case.
Stark County, Case No. 2013CA00242 6
{¶15} On redirect, Eggenschweiler admitted that appellant did complete two
assessments and did visit on occasion.
{¶16} The Guardian ad Litem, in a written report, recommended that permanent
custody be granted to the agency.
{¶17} Pursuant to a Judgment Entry filed on November 15, 2013, the trial court
terminated appellant’s parental rights and granted permanent custody of L.F. and K.F.
to SCDJFS. The trial court found that the children were neglected children, that they
had been abandoned and that it was in their best interest for permanent custody to be
granted. The trial court filed Findings of Fact and Conclusions of Law on the same
date.
{¶18} Appellant now raises the following assignment of error on appeal:
{¶19} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
MOTHER’S MOTION TO CONTINUE.
I
{¶20} Appellant, in her sole assignment of error, argues that the trial court erred
in denying her motion for a continuance.
{¶21} The decision to grant or deny a motion for continuance rests within the
sound discretion of the trial court. State v. McMilen, 113 Ohio App.3d 137, 680 N.E.2d
665 (3rd Dist .1996). This Court may not reverse a trial court's decision unless we find it
has abused its discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078
(1981). The Supreme Court has defined the term abuse of discretion as demonstrating
the trial court's attitude is unreasonable, arbitrary, or unconscionable. See, e.g.,
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2013CA00242 7
{¶22} In evaluating whether the trial court has abused its discretion in denying a
continuance, appellate courts apply a balancing test that takes into account a variety of
competing considerations: “A court should note, inter alia: the length of the delay
requested; whether other continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the defendant contributed to the circumstance which gives rise to the
request for a continuance; and other relevant factors, depending on the unique facts of
each case.” In re B.B., 5th Dist. Stark No.2010CA00151, 2010–Ohio–4618, ¶ 38, citing
Unger, supra, 67 Ohio St.2d at 67–68.
{¶23} We find the trial court did not abuse its discretion in denying the motion to
continue the permanent custody hearing because the trial court’s decision was not
arbitrary, unconscionable or unreasonable. As noted by appellee, appellant failed to
appear for any court hearing during the pendency of this case despite service. The
case had been pending since April 3, 2013. Moreover, while appellant was given the
chance to engage in substance abuse treatment throughout this case, she failed to do
so and conveniently waited until the morning of trial to seek in-patient drug and alcohol
treatment at the hospital. Furthermore, appellant made no attempt to obtain counsel
until a week and a half before the November 12, 2013 hearing.
{¶24} Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2013CA00242 8
{¶25} Accordingly, the judgment of the Stark County Court of Common Pleas,
Juvenile Division is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.