[Cite as In re R.B., 2013-Ohio-5877.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: R.B. : JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 2013CA00171
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
case no. 2012JCV00099
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 23, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
LISA A. LOUY MARY G. WARLOP
STARK CO. D.J.F.S. Abney Law Office, LLC
221 Third St. SE 116 Cleveland Ave. NW, Ste. 500
Canton, OH 44702 Canton, OH 44702
Stark County, Case No. 2013CA00171 2
Delaney, J.
{¶1} Appellant Ryan Boyko (“Father”) appeals from the August 8, 2013
judgment entry of the Stark County Court of Common Pleas, Family Court Division
awarding permanent custody to appellee Stark County Department of Job and Family
Services.
FACTS AND PROCEDURAL HISTORY
{¶2} Father and Angela Firestone (“Mother”) are the parents of R.B., a
daughter born January 25, 2012. Appellee filed a complaint for temporary custody and
placed R.B. with a foster family on January 27, 2012, where she has remained since.
R.B. was adjudicated a dependent child on April 25, 2012 and has remained
continuously in the custody of appellee.
{¶3} On July 19, 2012, the trial court found compelling reasons existed to
preclude appellee filing for permanent custody because a relative (maternal cousin)
came forward and an interstate home study needed to be completed. Mother filed a
motion to change legal custody to maternal cousin and appellee filed a motion to extend
temporary custody to allow additional time for the interstate home study to be
completed. The motion was granted and temporary custody was extended to July 27,
2013. The home study was ultimately denied due to maternal cousin’s health issues
and concerns with the structural stability of the home.
{¶4} On May 7, 2013, appellee filed a Motion for Permanent Custody. The trial
court heard evidence on August 5, 2013 and journalized its findings of fact and
conclusions of law granting permanent custody of R.B. to appellee on August 8, 2013.
Stark County, Case No. 2013CA00171 3
On August 14, 2013 the trial court issued a nunc pro tunc entry correcting the child’s
date of birth.
{¶5} The following facts are adduced from the hearing on appellee’s Motion for
Permanent Custody.
{¶6} Upon obtaining temporary custody of R.B., appellee developed a case
plan with both parents1 which required both parents to: 1) complete a parenting
evaluation at Northeast Ohio Behavioral Health and follow all recommendations; 2)
successfully complete the Goodwill Parenting program; 3) receive a drug and alcohol
evaluation at Quest and follow all treatment recommendations; and 4) maintain stable
housing and employment.
{¶7} Father completed the Northeast Ohio Behavioral Health evaluation but
did not attend Goodwill Parenting. He testified he knew it was likely he would be
returning to prison on a probation violation and he had to be in three places at once:
work, the Recovery Center (a requirement through his TASC probation), and Goodwill
Parenting; he chose not to complete Goodwill Parenting. On July 30, 2012, Father
was incarcerated for a probation violation because he failed to complete court-ordered
anger management classes. While in prison, Father obtained a G.E.D., completed a
number of programs, and wrote to R.B. through her foster family twice. He was
released early, on July 19, 2013, to “CTCC,” described as a halfway house.
{¶8} Father has not had contact with R.B. since May 4, 2012. He testified he
was afraid to appear for scheduled visits due to issues with Mother, although they are
1
Mother did not obtain the Quest evaluation and did not attend Goodwill Parenting. Her
last contact with R.B. was May 4, 2012, and she did not attend the permanent custody
hearing. Mother’s whereabouts are currently unknown and she is not a party to this
appeal.
Stark County, Case No. 2013CA00171 4
no longer together. He acknowledged the caseworker set up separate visits for each
parent that he still did not attend.
{¶9} R.B. has been in the continuous custody of appellee since April 25, 2012.
She was placed with a foster family two days after her birth and this family wants to
adopt her. R.B. has bonded with her foster parents and also with her siblings in the
foster family. The caseworker testified R.B. is not bonded to Father or Mother because
contact with her biological parents has been sporadic.
{¶10} Father appeals from the judgment of the trial court awarding permanent
custody to appellee.
{¶11} Father raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
FATHER’S MOTION TO CONTINUE.”
{¶13} “II. THE TRIAL COURT ERRED IN REFUSING TO ALLOW FATHER TO
CALL A WITNESS TO TESTIFY ON HIS BEHALF.”
{¶14} “III. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY
SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING
EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH
DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶15} “IV. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES
(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
Stark County, Case No. 2013CA00171 5
THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT
PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ANALYSIS
I.
{¶16} In his first assignment of error, Father argues the trial court erred in
denying his motion to continue the hearing. We disagree.
{¶17} The trial on appellee’s motion for permanent custody was scheduled for
August 5, 2013. Father had unexpectedly been released from prison early and his trial
counsel had learned of his release on August 1, 2013; counsel sought time to subpoena
witnesses and to obtain records of programs Father completed through probation and
while in prison. Appellee objected and the trial court overruled Father’s motion to
continue.
{¶18} Juvenile Rule 23 provides that “[c]ontinuances shall be granted only when
imperative to secure fair treatment for the parties.” It is well-settled that “[t]he grant or
denial of a continuance is a matter which is entrusted to the broad, sound discretion of
the trial judge. An appellate court must not reverse the denial of a continuance unless
there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981). An abuse of discretion implies that the court's attitude was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶19} 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
Stark County, Case No. 2013CA00171 6
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.
{¶20} We find the trial court did not abuse its discretion in overruling the motion
to continue the permanent custody hearing. Father had notice of the hearing, was
present and represented by counsel. In re R.H., 5th Dist. Stark No. 2012-CA-00008,
2012-Ohio-1811, ¶ 10. We note he was released on July 19, 2013, but apparently had
no contact with counsel until August 1, despite the upcoming permanent custody trial.
{¶21} A continuance to subpoena witnesses or obtain probation and prison
records would not have changed the evidence that Father did not complete the case
plan and despite whatever programming he may have completed in prison, its focus
was not parenting. See, In re Campbell/Spicer Children, 5th Dist. Stark No.
2002CA00056, 2002-Ohio-3696. The trial court did not abuse its discretion in refusing
to grant the continuance.
{¶22} Father’s first assignment of error is overruled.
II.
Stark County, Case No. 2013CA00171 7
{¶23} In his second assignment of error, Father argues the trial court erred in
refusing to allow him to call his mother as a witness when he did not provide her name
to appellee in discovery. We disagree.
{¶24} Both parties cite Juv.R. 24 which applies to discovery matters before the
juvenile court and states in pertinent part:
(A) Request for discovery
Upon written request, each party of whom discovery is requested
shall, to the extent not privileged, produce promptly for inspection,
copying, or photographing the following information, documents,
and material in that party's custody, control, or possession:
(1) The names and last known addresses of each witness to the
occurrence that forms the basis of the charge or defense;
* * * *.
(C) Failure to comply. If at any time during the course of the
proceedings it is brought to the attention of the court that a person
has failed to comply with an order issued pursuant to this rule, the
court may grant a continuance, prohibit the person from introducing
in evidence the material not disclosed, or enter such other order as
it deems just under the circumstances.
{¶25} We are not persuaded that Juv.R. 24(C) is applicable, however, because
there is no evidence in the record that any party sought a discovery order, i.e. filed a
motion to compel, which would have given the trial court the option of excluding Father’s
witness pursuant to the Rule.
Stark County, Case No. 2013CA00171 8
{¶26} Instead, the record reveals Father’s trial counsel did not provide any
discovery to appellee because she was unaware of any potential witnesses until the day
of the permanent custody hearing. In the context of the entire proceeding, however, we
still find the trial court did not abuse its discretion in excluding the witness. Father
sought to call his mother as a witness and appellee objected. Father proffered that his
mother would testify to Father’s contact with the agency and his caseworker during his
incarceration. Because Father was able to testify to these matters firsthand, and it is
not apparent his mother’s testimony would have been relevant or admissible, we find
the trial court did not abuse its discretion in excluding the witness.
{¶27} Father’s second assignment of error is overruled.
III., IV.
{¶28} In his third and fourth assignments of error, Father argues the trial court’s
decision granting permanent custody of R.B. to appellee was against the manifest
weight of the evidence. We disagree. These assignments of error are related and will
be considered together.
{¶29} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
Stark County, Case No. 2013CA00171 9
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477. If some competent, credible evidence going to all the essential
elements of the case supports the trial court's judgment, an appellate court must affirm
the judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶30} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶31} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency. Following the hearing, R.C. 2151.414(B)
authorizes the juvenile court to grant permanent custody of the child to the public or
private agency if the court determines, by clear and convincing evidence, it is in the best
interest of the child to grant permanent custody to the agency, and that any of the
following apply: (a) the child is not abandoned or orphaned, and the child cannot be
placed with either of the child's parents within a reasonable time or should not be placed
with the child's parents; (b) the child is abandoned; (c) the child is orphaned and there
are no relatives of the child who are able to take permanent custody; or (d) the child has
been in the temporary custody of one or more public children services agencies or
Stark County, Case No. 2013CA00171 10
private child placement agencies for twelve or more months of a consecutive twenty-two
month period ending on or after March 18, 1999.
{¶32} R.C. 2151.414(B) establishes a two-pronged analysis the trial court must
apply when ruling on a motion for permanent custody. In practice, a trial court will
usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶33} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.
{¶34} Our review of the record shows the trial court's decision regarding
permanency and placement was supported by clear and convincing evidence.
{¶35} First, the evidence shows Father abandoned R.B. The caseworker
testified Father’s last visit with R.B. was May 4, 2012. Father acknowledged additional
visits had been scheduled, even separate from Mother, but he failed to appear. For
purposes of R.C. 2151.414(B)(1)(b), “abandoned” is defined by R.C. 2151.011(C),
which provides that “a child shall be presumed abandoned when the parents of the child
Stark County, Case No. 2013CA00171 11
have failed to visit or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child after that period of
ninety days.”
{¶36} Second, appellee made reasonable efforts to reunify Father with R.B. and
Father failed to comply. Father was given a case plan to complete “calculated to
facilitate reunification of the family.” He obtained his parenting evaluation as ordered,
but did not complete the Goodwill Parenting program nor complete treatment through
the Crisis Center. Father’s probation for a drug conviction was revoked and he was
incarcerated on July 30, 2012. We acknowledge Father used his time in prison and
SRCCC to complete drug and alcohol treatment, “Thinking for a Change,” and
“Cognitive Skills.” He obtained his G.E.D. and completed art classes. Unfortunately
these attainments do not bear upon his ability to effectively parent and cannot substitute
for his failure to complete his case plan.
{¶37} We next turn to the issue of best interest. We have frequently noted, “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given
the nature of the proceeding and the impact the court's determination will have on the
lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark No.2000CA00244,
2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642
N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best interest of the
child to be placed in the permanent custody of SCDJFS pursuant to R.C. 2151.414(D),
and we agree.
Stark County, Case No. 2013CA00171 12
{¶38} R.B. has been with her foster family since she was two days old and they
want to adopt her. She is bonded with her foster parents and siblings. Unfortunately no
bond exists between R.B. and Father due to their sporadic limited contact. Father has
not named any possible relative placements, and the only possible relative placement
named by Mother has been ruled out. The guardian ad litem recommended permanent
custody to appellee is in the best interests of R.B.
{¶39} R.B. deserves permanency now. We find no error in awarding permanent
custody to appellee and therefore overrule Father’s third and fourth assignments of
error.
CONCLUSION
{¶40} Father’s four assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Family Court Division is hereby affirmed.
Stark County, Case No. 2013CA00171 13
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN