[Cite as In re I.B.L., 2014-Ohio-4666.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
IN THE MATTER OF: :
:
I.B.L. : Case No. 14CA19
:
:
: DECISION AND JUDGMENT
: ENTRY
:
: Released: 10/16/14
APPEARANCES:
Joseph H. Brockwell, Marietta, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Amy
Graham, Assistant Prosecuting Attorney, Marietta, Ohio for Appellee.
McFarland, J.
{¶ 1} Appellant, A.L., appeals the trial court’s judgment that awarded
appellee, Washington County Children Services (WCCS), permanent
custody of her five-year-old biological child, I.B.L. Appellant argues that
the trial court violated her due process rights by rejecting her motion to be
transported from prison for the permanent custody hearing. We do not
agree. The trial court afforded appellant the opportunity to present her
testimony via deposition, and appellant submitted an affidavit that contained
her version of events. Additionally, appellant’s counsel meaningfully
Washington App. No. 14CA19 2
participated during the permanent custody hearing and represented
appellant’s interest. Consequently, the trial court did not violate appellant’s
due process rights. Therefore, we overrule appellant’s sole assignment of
error and affirm the court’s judgment.
I. FACTS
{¶ 2} On June 18, 2012, Washington County Children Services filed
a neglect and dependency complaint concerning appellant’s child. The
complaint alleged that the Washington County Sheriff’s Office requested
WCCS’s assistance after appellant’s paramour was found dead of a drug
overdose. The responding WCCS caseworker observed several safety
hazards in the home: (1) the electrical service panel “was wide open with
exposed wires and within reach” of the child; (2) “receptacles on the wall
were not covered and contained exposed wiring[;]” (3) “[t]here was an open
utility knife sitting on the floor next to the child’s toys[;]” and (4) “the home
ha[d] holes in the floor that the child could fall through.” The caseworker
also expressed a concern that “drugs [were] being abused by the adults in the
home” while the child was present. The caseworker noted that the child
appeared “unclean, with dirt on his knees, legs, and hands.” The trial court
subsequently placed the child in WCCS’s temporary custody.
Washington App. No. 14CA19 3
{¶ 3} On August 15, 2012, appellant admitted that the child is a
dependent child. The court thus adjudicated the child dependent and
dismissed the neglect allegation. The court continued the child in WCCS’s
temporary custody.
{¶ 4} On February 24, 2014, WCCS filed a permanent custody
motion. The motion alleged that the child had been in its custody for more
than twelve of the past twenty-two months and that awarding it permanent
custody would serve the child’s best interest.
{¶ 5} On April 2, 2014, appellant filed a motion that requested the
court to enter an order of transportation from the Ohio Reformatory for
Women in Marysville, Ohio, so that she could attend the permanent custody
hearing. The trial court denied her motion. The court applied the Matthews
v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), balancing
test and determined that “the risk of an erroneous deprivation of the
mother’s parental rights * * * would appear to be fairly low” if she is not
transported for the hearing. The court observed that counsel represented
appellant, counsel could protect appellant’s interests, and appellant could
testify through the use of a deposition. The court additionally determined
that transporting appellant from prison “will cause the county to incur
significant expense which can be avoided by the taking of * * * her
Washington App. No. 14CA19 4
deposition in prison and submitting it to the Court during the hearing. The
use of depositions would clearly serve the State’s goal and the child[‘s]
interest and it would not impose any undue fiscal or administrative burden
on the state.” The court thus denied appellant’s motion for transport and
stated that appellant’s counsel “may take and preserve her testimony for the
Permanent Custody hearing by the use of a deposition taken in prison or
through the submission of a notarized affidavit.”
{¶ 6} On April 24, 2014, appellant filed an affidavit. In it, she
outlined her version of the circumstances surrounding the child’s initial
removal, her subsequent experience with WCCS, and her compliance with
the case plan.
{¶ 7} On April 28, 2014, the guardian ad litem filed a report and
recommended that the court award WCCS permanent custody of the child.
The guardian ad litem explained:
“[Appellant] loves her child and her child is attached to her.
However, [appellant] has not been consistent in her visitations with
[the child] which has left [the child] disappointed on several
occasions. [Appellant] has had difficulty securing and maintaining
stable housing for [the child]. While living with [appellant], [the
child] lacked the security and consistency of a nurturing home and a
parent who was focused on his needs and development. In the
absence of the mother and her lifestyle, [the child’s doctor] noted this
child has made significant progress and there is no longer a concern
that this child might be autistic. This GAL was assigned this case on
June 19, 2012. Since that time, the mother has not made any
significant changes in her lifestyle. She likes being transient, but that
Washington App. No. 14CA19 5
is not in the best interests of [the child]. The mother is now
incarcerated, and this child has been in the foster care system for
almost 2 years.”
{¶ 8} On May 5, 2014, the trial court held a hearing to consider
WCCS’s permanent custody motion. Before the hearing began, the court
noted that appellant was not present due to her incarceration.
{¶ 9} On May 6, 2014, the trial court granted WCCS permanent
custody of the child. The trial court found that the child had been in
WCCS’s temporary custody for more than twelve of the past twenty-two
months pursuant to R.C. 2151.414(B)(1)(d). The court noted that the child
was initially removed from the home twenty months before WCCS filed the
permanent custody motion and that the mother had not seen the child since
July 6, 2013, when she was incarcerated. The court also found that
awarding WCCS permanent custody would serve the child’s best interest.
“The court finds that all of the child’s needs are being met by
his foster family and he is doing well in their home. The child needs
stability, and a safe, loving environment. He needs a secure
permanent placement. Neither parent can provide this. The mother is
presently incarcerated until July 2015. The mother has not seen the
child since her incarceration in July 2013. The father has not had any
involvement with the child. Permanency and stability cannot be
achieved without a grant of permanent custody. The foster family has
had the child for 23 months. The child’s Guardian Ad Litem supports
the motion for permanency and believes the motion for permanent
custody should be granted.”
{¶ 10} This appeal followed.
Washington App. No. 14CA19 6
II. ASSIGNMENT OF ERROR
{¶ 11} Appellant raises one assignment of error:
The appellant, mother of the child, was deprived of her constitutional
right of due process under the Fourteenth Amendment to the United
States Constitution and—of the Ohio Constitution when the trial court
would not allow her to attend and participate in the permanent custody
hearing.
III.
ANALYSIS
{¶ 12} In her first assignment of error, appellant argues the trial court
violated her due process right by denying her request to be transported from
prison to the permanent custody hearing.
{¶ 13} A prisoner does not have “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, 4th Dist. Pickaway No. 08CA3, 2008-
Ohio-5326, ¶7. In evaluating the due process right of an incarcerated parent
to be present at a permanent custody hearing, this court and others have
applied the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319,
335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In re Elliot, 4th Dist. Lawrence
No. 92CA34 (June 25, 1993); accord In re A.F., 6th Dist. Williams No. WM-
13-007, 2014-Ohio-633, ¶19; In re K.L., 10th Dist. Franklin Nos. 13AP-218
Washington App. No. 14CA19 7
and 13AP-231, 2013-Ohio-3499, ¶43. The Mathews test requires a court to
evaluate three factors: (1) “the private interest that will be affected by the
official action”; (2) “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and (3) “the Government’s interest,
including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.”
Mathews, 424 U.S. at 335.
{¶ 14} In the case at bar, the private interest that will be affected by
the permanent custody hearing is appellant’s “essential” and “basic” civil
right to raise her child. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169
(1990). A parent’s fundamental liberty interest in the care, custody and
management of a child “does not evaporate” simply because the parent has
not been a “model” parent or “lost temporary custody of their child to the
state.” Elliot, supra, citing Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982).
{¶ 15} Second, the risk of an erroneous deprivation of appellant’s
fundamental liberty interest in the care, custody, and management of her
child by holding the permanent custody hearing in her absence appears low.
Appellant’s counsel fully participated in the permanent custody hearing and
Washington App. No. 14CA19 8
represented appellant’s interest. Additionally, the trial court allowed
appellant to submit her testimony via deposition. Appellant apparently
decided not to be deposed, but instead, chose to submit an affidavit. Thus,
appellant had an opportunity to present her version of events to the trial
court.
{¶ 16} Next, we consider the state’s interest. In Elliot, supra, we
identified “[t]wo state interests [that] are at stake in a permanent custody
proceeding—a parens patriae interest in preserving and promoting the
welfare of the child and a fiscal and administrative interest in reducing the
cost and burden of such proceedings.” Id., citing Santosky, 455 U.S. at 766.
“In a permanent custody proceeding, the state’s parens patriae interest is
served by procedures that ‘promote an accurate determination of whether the
natural parents can and will provide a normal home.’” Id., quoting Santosky,
455 U.S. at 767. Thus, in Elliot, we stated:
“Permitting [appellant] to be present would be the optimal
arrangement. However, allowing some other means of presenting his
testimony would clearly serve the state’s goal and the children’s
interest, and it would not impose any undue fiscal or administrative
burden upon the state. The trial court did not err in overruling
[appellant’s] motion to be present at the hearing. * * *.”
{¶ 17} Similarly, in the case at bar, permitting appellant to attend the
permanent custody hearing would be the optimal arrangement. However,
permitting appellant to present her testimony via other means “clearly
Washington App. No. 14CA19 9
serve[s] the state’s goal and the children’s interest, and it would not impose
any undue fiscal or administrative burden upon the state.” Consequently, a
balance of the Mathews factors shows that the trial court did not deprive
appellant of her due process rights by rejecting her request to be transported
from prison so that she could attend the permanent custody hearing.
{¶ 18} Moreover, we have previously concluded that “[a] trial court
possesses discretion to proceed with a permanent custody hearing in a
parent’s absence.” In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-
5595, ¶46, citing In re S.G., 2nd Dist. Greene No. 2009-CA-46, 2010-Ohio-
2641, ¶22. In A.C.H., we determined that the trial court did not deprive the
parent of his due process rights by holding the permanent custody hearing in
his absence when “[c]ounsel meaningfully represented appellant at the
hearing, a complete record was made, and appellant * * * failed to show
what testimony or evidence he would have offered that would have changed
the outcome of the case.” Id. at ¶46.
{¶ 19} The same scenario applies in the case sub judice. Counsel
meaningfully represented appellant at the hearing, a complete record was
made, and appellant has failed to show what additional testimony or
evidence she would have offered that would have changed the outcome of
the case. Furthermore, appellant submitted her testimony via affidavit.
Washington App. No. 14CA19 10
{¶ 20} Accordingly, based upon the foregoing reasons, we overrule
appellant’s sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Washington App. No. 14CA19 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court, Juvenile Division, to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. and Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.