In re J.E.

[Cite as In re J.E., 2017-Ohio-8272.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

IN RE: CASE NO. 9-17-07

J.E.,
OPINION
[SASHA STEELE - APPELLANT]

Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 15 AB 0016

Judgment Affirmed

Date of Decision: October 23, 2017

APPEARANCES:

Robert C. Nemo for Appellant

Justin J. Kahle for Appellee
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PRESTON, P.J.

{¶1} Appellant, Sasha Steele (“Steele”), appeals the March 8, 2017 judgment

entry of the Marion County Court of Common Pleas, Family Division, granting

permanent custody of her minor child, J.E., to appellee, the Marion County

Children’s Services Board (“the Agency”). For the reasons that follow, we affirm.

{¶2} J.E. is the minor child of Steele and Jordan Emmons (“Emmons”) born

in December of 2014. (Doc. No. 1).1 On January 6, 2015, the Agency filed a

complaint alleging that J.E. was an abused and dependent child under R.C. 2151.031

and R.C. 2151.04, respectively. (Id.). That same day, the Agency filed a “motion

for ex parte/emergency orders with notice of hearing.” (Doc. No. 3). Also on

January 6, 2015, the trial court granted the Agency pre-dispositional interim custody

of J.E. and also granted the Agency’s “motion for ex parte/emergency orders with

notice of hearing.” (Doc. Nos. 4, 5).

{¶3} At multiple points in the case, the Agency submitted case plans to the

trial court, which the trial court approved and incorporated into disposition entries.

(Doc. Nos. 36, 63, 99). The Agency also filed semiannual administrative reviews.

(Doc. Nos. 31, 38, 61, 83).

{¶4} On January 13, 2015, the trial court appointed a guardian ad litem

(“GAL”) for J.E. (Doc. No. 9). On January 23, 2015, the trial court appointed

1
The complaint describes Emmons as the “alleged father.” (Doc. No. 1). He was determined to be the
biological father of J.E. after the filing of the complaint. (Doc. No. 97 at 2).

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counsel for Steele. (Doc. No. 13). On March 30, 2016, the trial court appointed

counsel for Emmons.2 (Doc. No. 45).

{¶5} After a shelter-care and pre-trial hearing on January 28, 2015, the trial

court on February 11, 2015 issued an order that temporary custody of J.E. remain

with the Agency and scheduled the matter for adjudication on March 13, 2015.

(Doc. No. 17). That adjudication was continued on the trial court’s motion because

Steel was not transported to the hearing. (Doc. No. 21).

{¶6} On March 27, 2015, Steele stipulated that J.E. was a dependent child

under R.C. 2151.04. (Doc. No. 27). The trial court found J.E. dependent and

dismissed the abuse complaint. (Id.). On April 15, 2015, the trial court ordered that

temporary custody of J.E. remain with the Agency. (Doc. No. 28). At multiple

points after adjudicating J.E. a dependent child and awarding temporary custody to

the Agency, the trial court reviewed that disposition but did not alter it. (See Doc.

Nos. 33, 35, 37, 47, 70, 72. 75).

{¶7} On April 26, 2016, the Agency filed a motion for permanent custody of

J.E. (Doc. No. 48). The trial court scheduled the permanent custody hearing for

July 18, 2016. (Doc. No. 49). On July 7, 2016, Steele filed a motion to continue

that hearing. (Doc. No. 65). On July 12, 2016, the Agency filed a memorandum in

opposition to the motion to continue. (Doc. No. 66). The trial court granted the

2
Because only Steele filed an appeal, we will not discuss any filings by Emmons.

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motion to continue on August 8, 2016 and rescheduled the permanent custody

hearing for November 7, 2016. (Doc. No. 67). The permanent custody hearing set

for November 7, 2016 was continued by agreement of the parties. (Doc. No. 97 at

4).

{¶8} On January 6, 2017, Steele filed a motion to continue the permanent

custody hearing set for January 12, 2017. (Doc. No. 86). On January 10, 2017, the

Agency filed a memorandum in opposition to the motion to continue. (Doc. No.

87). The trial court denied the motion to continue on January 11, 2017. (Doc. No.

88).

{¶9} The trial court held a permanent custody hearing on January 12, 2017.

(Doc. No. 97). The guardian ad litem submitted his report and recommendation on

January 30, 2017 and recommended that the trial court grant the Agency’s motion

for permanent custody. (Doc. No. 92). On March 8, 2017, the trial court filed its

judgment entry granting the Agency permanent custody of J.E. (Doc. No. 97).

{¶10} On March 30, 2017, Steele filed her notice of appeal. (Doc. No. 101).

She brings three assignments of error for our review.

Assignment of Error No. I

The Trial Court Abused Its Discretion When It Denied
Appellant’s Motion For [A] Continuance.

{¶11} In her first assignment of error, Steele argues that the trial court abused

its discretion in denying her motion to continue the January 12, 2017 permanent

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custody hearing. Specifically, Steele argues that the trial court abused its discretion

in denying her motion for a continuance because she planned to move into a sober

living house, had a probation violation hearing scheduled for January 18, 2017, in

Delaware County, and needed more time to complete programming and make

herself better able to care for her daughter. Steele also argues that the trial court’s

one-sentence entry denying her motion to continue did not consider the factors that

a court must consider in determining whether to grant a continuance. Steele further

argues that the trial court abused its discretion in denying her motion to continue

because there was “some haste” on the Agency’s part when it filed its motion for

permanent custody of J.E. (Appellant’s Brief at 10).

{¶12} “Continuances shall be granted only when imperative to secure fair

treatment for the parties.” In re Distafano, 3d Dist. Seneca No. 13-06-14, 2006-

Ohio-4430, ¶ 11, quoting Juv.R. 23. “A decision by the trial court to deny a motion

for continuance is within the sound discretion of the trial court and should not be

reversed absent a showing of abuse of that discretion.” Id., quoting In re Miller, 3d

Dist. Auglaize No. 2-04-02, 2004-Ohio-3023, ¶ 7. The term “abuse of discretion”

refers to a decision that is “arbitrary, unreasonable, or unconscionable.” Sandusky

Properties v. Aveni, 15 Ohio St.3d 273, 275 (1984), citing Dayton ex rel. Scandrick

v. McGee, 67 Ohio St.2d 356, 359 (1981) and State v. Adams, 62 Ohio St.2d 151,157

(1980).

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{¶13} In considering a motion for a continuance, a court should consider (1)

the length of the delay requested; (2) whether other continuances have been

requested and granted; (3) any inconvenience to parties, witnesses, opposing

counsel, and the court; (4) whether the requested delay is for a legitimate purpose

or is instead dilatory, purposeful, or contrived; (5) whether the defendant

contributed to the situation that gives rise to the motion for a continuance; and (6)

other relevant factors, depending on the unique facts of a case. In re J.D., 3d Dist.

Hancock No. 5-10-34, 2011-Ohio-1458, ¶ 45, citing In re T.C., 140 Ohio App.3d

409, 417 (3d Dist.2000), citing State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).

{¶14} When a litigant received prior continuances and requests an additional

continuance of indeterminate length, the first two Unger factors weigh in favor of

denying the continuance, especially in light of the fact that establishing permanency

for children in temporary placement is paramount. In re J.C., 10th Dist. Franklin

No. 10AP-766, 2011-Ohio-715, ¶ 39-40. The propriety of denying a request for a

continuance is further supported when a defendant requests a continuance for a

legitimate reason but also contributed to the circumstances giving rise to the request.

Id. at ¶ 41. When a defendant faces ongoing drug addiction and is without stable

housing such that a continuance would not likely change the outcome of the case, a

court does not abuse its discretion in denying the continuance. Id. at ¶ 45. The

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propriety of denying a continuance is further bolstered when the motion for

permanent custody has been pending for more than 120 days. Id. at ¶ 46.

{¶15} In the instant case, the trial court granted Steele two prior

continuances. Id. at ¶ 40 (noting that the second Unger factor supported the denial

of a continuance when a prior continuance was granted). In addition, Steele’s

request for a continuance did not specify a date to which she wanted the hearing

continued. Id. at ¶ 39 (holding that the first Unger factor weighs in favor of denying

a continuance where the length of the continuance requested is indeterminate); In re

J.D. at ¶ 46 (affirming the trial court’s denial of a continuance where the request for

a continuance did not state how long a continuance was necessary). Even where, as

here, a defendant requests a continuance for the legitimate purpose of making

progress in drug treatment, a court does not abuse its discretion in denying the

request. In re B.G.W., 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693, ¶ 24

(construing the purpose-of-the-request factor against the defendant where the reason

for the request was to allow the defendant to gather evidence of progress in drug

treatment); In re Shanequa H., 109 Ohio App.3d 142, 146 (6th Dist.1996) (holding

that a trial court did not abuse its discretion in denying a continuance requested so

that the defendant could enter drug treatment). The inconvenience to the parties and

the court would be substantial because the hearing was already rescheduled

numerous times. It is undisputed here that Steele contributed to the circumstances

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that brought about the request for the continuance, as she both participated in the

drug abuse that necessitated drug treatment and engaged in conduct giving rise to

an alleged probation violation and the resulting hearing. In re J.C. at ¶ 41-42

(holding that the fifth Unger factor weighed in favor of denying the continuance

where the defendant’s unlawful conduct brought about the request for the

continuance).

{¶16} We also consider, as a unique factor relevant to this case, that R.C.

2151.414(A)(2) provides that “[t]he court shall hold the hearing * * * not later than

one hundred twenty days after the agency files the motion for permanent custody,

except that, for good cause shown, the court may continue the hearing for a

reasonable period of time beyond the one-hundred-twenty-day deadline.” In re J.C.

at ¶ 46, quoting R.C. 2151.414(A)(2). Here, the Agency filed its motion for

permanent custody on April 26, 2016. (Doc. No. 48). Thus, the trial court had

already significantly exceeded the deadline imposed by the statute by the time Steele

filed the pertinent motion to continue; therefore, the court did not abuse its

discretion by denying the motion. In re J.C. at ¶ 46.

{¶17} We further consider, as a unique factor relevant to this case, the fact

that a continuance would likely not have changed the outcome of the case. In re

J.C., 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, ¶ 45. The trial court found

that the parents’ circumstances “fail to present any opportunity for [J.E.’s] return to

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either of them within a reasonable time[.]” (Doc. No. 97). The trial court further

found little likelihood that Steele could complete drug treatment, procure gainful

employment, and locate stable housing in the foreseeable future. (Id.); In re J.C. at

¶ 45 (noting that a parent’s inability to remedy drug addiction and secure a stable

residence weighs in favor of finding that a trial court acted within its discretion in

denying a continuance).

{¶18} We conclude that Steele’s argument as to the brevity of the trial court’s

judgment entry denying her motion to continue is unpersuasive. In re J.D., 3d Dist.

Hancock No. 5-10-34, 2011-Ohio-1458, ¶ 46-48. Though the Unger factors

enumerated above are necessary for consideration, we do not require courts to

explicitly undertake Unger’s six-factor analysis in every judgment entry ruling on a

motion to continue. Id. (affirming the denial of a motion to continue where the

judgment entry did not contain any explanation for the trial court’s decision).

{¶19} We further conclude that Steele’s argument as to the haste with which

the motion for permanent custody was allegedly filed is unpersuasive. We note that

the speed with which the Agency files its motion for permanent custody is not

among the Unger factors. See State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).

Moreover, Steele had nine months between the Agency’s filing of its motion for

permanent custody and the permanent custody hearing in which to put herself in a

position to advocate for her interests.

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{¶20} Based on the reasoning above, we conclude that the trial court did not

abuse its discretion in denying Steele’s motion for a continuance. Steele’s first

assignment of error is overruled.

Assignment of Error No. II

Appellant Was Denied Her Right To Effective Assistance Of
Counsel.

{¶21} In her second assignment of error, Steele argues that she was denied

her right to effective assistance of trial counsel. Specifically, she argues that she

was denied effective assistance of trial counsel because her trial counsel did not

object to two instances of hearsay testimony pertaining to the availability of a

kinship placement for J.E. at the permanent custody hearing.

{¶22} “In permanent custody proceedings, where parents face losing their

children, we apply the same test as the test for ineffective assistance of counsel in

criminal cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40,

citing In re Heston, 129 Ohio App.3d 825, 827 (8th Dist.1998). In order to

demonstrate ineffective assistance of trial counsel, one must first show that the trial

counsel’s performance fell below an objective standard of reasonableness. Id. at ¶

41, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984) and

State v. Bradley, 42 Ohio St.3d 136, 137 (1989). One must next demonstrate that,

but for trial counsel’s errors, the result of the proceeding would have been different.

Id. The appellant bears the burden of establishing ineffective assistance of trial

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counsel and, in order to do so, must overcome the strong presumption that licensed

attorneys provided competent representation. Id., citing State v. Calhoun, 86 Ohio

St.3d 279, 289 (1999).

{¶23} In the instant case, Steele has not established that the result of the

proceeding would have been different but for the alleged errors of counsel as noted

above. A trial court is not required to consider the availability of a kinship

placement prior to granting permanent custody of a child to an agency. In re S.G.,

3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 82, citing In re P.S., 5th Dist.

Licking No. 16–CA–11, 2016–Ohio–3489, ¶ 57. Therefore, the trial court could

have come to the same conclusion if it excluded the evidence to which Steele refers.

Id.

{¶24} Because we conclude that Steele has not demonstrated prejudice, we

need not address whether Steele’s trial counsel’s performance fell below an

objective standard of reasonableness, as any showing of ineffective assistance

requires the defendant to satisfy both prongs of the applicable legal test. In re E.C.

at ¶ 41.

{¶25} For the reasons explained above, Steele’s second assignment of error

is overruled.

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Assignment of Error No. III

The Trial Court’s Decision To Award Appellee Permanent
Custody Was Against The Manifest Weight Of The Evidence And
Contrary To Law.

{¶26} In her third assignment of error, Steele argues that the trial court’s

decision to award the Agency permanent custody of J.E. was against the manifest

weight of the evidence and was contrary to law. Specifically, Steele argues that the

trial court erred when it did not specifically enumerate which best-interest factors it

found supported the granting of permanent custody to the Agency. Steele further

argues that, even if the trial court properly considered the best-interest factors as the

statute requires, the trial court erred when it found that it was in J.E.’s best interest

to grant permanent custody to the agency.

{¶27} The right to raise one’s child is a basic and essential right. In re

Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,

92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625

(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not

absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These

rights may be terminated under appropriate circumstances and when the trial court

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has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52,

5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 6.

{¶28} When considering a motion for permanent custody of a child, the trial

court must comply with the statutory requirements set forth in R.C. 2151.414. See

In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. R.C.

2151.414(B)(1) provides, in relevant part, that a trial court

may grant permanent custody of a child to a movant if the court

determines at the hearing held pursuant to division (A) of this section,

by clear and convincing evidence, that it is in the best interest of the

child to grant permanent custody of the child to the agency that filed

the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not 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, * * * 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.

***

(d) The child has been in the temporary custody of one or more

public children services agencies or private child placing agencies for

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twelve or more months of a consecutive twenty-two-month period *

* *.

R.C. 2151.414(B)(1)(a), (d).

{¶29} “[T]he findings under R.C. 2151.414(B)(1)(a) and R.C.

2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to

use as a basis to grant the Agency’s motion for permanent custody.” In re M.R., 3d

Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 80.

{¶30} “If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies, the trial court must determine, by clear and convincing

evidence, whether granting the agency permanent custody of the child is in the

child’s best interest.” (Emphasis sic.) In re A.F., 3d Dist. Marion No. 9-11-27, 2012-

Ohio-1137, ¶ 55, citing In re D.M., 3d Dist. Hancock Nos. 5-09-12, 5-09-13, and 5-

09-14, 2009-Ohio-4112, ¶ 33 and In re K.H., 3d Dist. Hancock No. 5-10-06, 2010-

Ohio-3801, ¶ 30. In determining whether granting the agency permanent custody

is in the best interest of the child, R.C. 2151.414(D)(1) provides:

[T]he court shall consider all relevant factors, including, but not

limited to, the following:

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home

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providers, and any other person who may significantly affect the

child;

(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;

(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 * * *;

(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

R.C. 2151.414(D)(1)(a)-(e).

{¶31} “Clear and convincing evidence is more than a preponderance of the

evidence but not as much evidence as required to establish guilt beyond a reasonable

doubt as in a criminal case; rather, it is evidence which provides the trier of fact with

a firm belief or conviction as to the facts sought to be established.” In re H.M.K., 3d

Dist. Wyandot Nos. 16–12–15 and 16–12–16, 2013–Ohio–4317, ¶ 42, citing In re

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Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v.

Massengale, 58 Ohio St.3d 121, 122 (1991). “Upon review, an appellate court ‘must

examine the record and determine if the trier of fact had sufficient evidence before

it to satisfy this burden of proof.’ “ Id. at ¶ 43, quoting In re Meyer at 195, citing In

re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). “A reviewing court will

not reverse a trial court’s determination unless it is not supported by clear and

convincing evidence.” Id., citing In re Meyer at 195, citing In re Adoption of

Holcomb at 368 and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). See also In

re A.E., 3d Dist. Seneca Nos. 13–14–14 and 13–14–15, 2014–Ohio–4540, ¶ 28 (“A

court’s decision to terminate parental rights will not be overturned as against the

manifest weight of the evidence if the record contains competent, credible evidence

by which a court can determine by clear and convincing evidence that the essential

statutory elements for a termination of parental rights have been established.”),

citing In re B.G.W., 10th Dist. Franklin No. 08AP–081, 2008–Ohio–3693 and In re

Nevaeh J., 6th Dist. Lucas No. L–06–1093, 2006–Ohio–6628, ¶ 17.

{¶32} In the instant case, the trial court found that J.E. cannot be placed with

her parents within a reasonable period of time. (Doc. No. 97 at 7-8). Steele does

not challenge any of the trial court’s findings as to R.C. 2151.414(B)(1); rather, she

claims that the trial court erred by not adequately considering and applying the best-

interest factors enumerated in R.C. 2151.313(D)(1)(a)-(e). (Appellant’s Brief at

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14). This argument is unpersuasive because a trial court need not consider each

best-interest factor separately in its judgment entry. In re A.M., 3d Dist. Marion No.

9-14-46, 2015-Ohio-2740, ¶ 18 (noting that a trial court must either consider the

factors individually or “provide some affirmative indication in the record that [it]

has considered the specific factors listed in R.C. 2151.414(D)”). This requirement

is met when a trial court cites to the appropriate statute in making its best-interest

finding. Id., citing In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶

78.

{¶33} In this case, the trial court referenced the applicable statute in its entry.

“In accordance with [R.C.] 2151.414(D), the Court finds that the grant of permanent

custody [of] J.E. to [the Agency] is in the best interests of said child.” (Doc. No. 97

at 9). See In re M.R. at ¶ 78 (“While it is far from the better practice, we find that

the trial court’s citation to the appropriate statute when making its best interest

finding meets its obligation, albeit to the minimum extent possible, in demonstrating

that the R.C. 2151.414(D) factors were considered.”). Additionally, in its judgment

entry, the trial court made findings relevant to the R.C. 2151.414(D) factors. (See

Doc. No. 97 at 7-9). See In re M.R. at ¶ 78 (“Moreover, * * * there is clear and

convincing evidence in the record to support the trial court's finding that it is in

M.R.’s best interest to grant the Agency's motion for permanent custody.”).

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{¶34} The record supports the trial court’s factual findings relevant to the

R.C. 2151.414(D) factors. Regarding R.C. 2151.414(D)(1)(a), J.E. was born in

December of 2014 and placed with a foster family shortly after her birth. (Jan. 12,

2017 Tr. at 6); (Doc. No. 97 at 3). Foster mother Gina Tighe (“Tighe”) testified that

she and her husband are bonded with J.E. and that J.E. refers to them as “mommy”

and “daddy,” respectively. (Jan. 12, 2017 Tr. at 10). Steele spent much of the time

between J.E.’s birth and the permanent custody hearing incarcerated. (Id. at 45-48).

Regarding R.C. 2151.414(D)(1)(b), the trial court seems to have duly regarded

J.E.’s young age by noting that she was born in December of 2014, making her

approximately 27 months old at the time of the trial court’s decision. (See Doc. No.

97 at 1). Regarding R.C. 2151.414(D)(1)(c), the trial court noted that J.E. has been

in the temporary custody of the agency and in the physical custody of the Tighe

family since January of 2015. (Id. at 2). J.E. was in the temporary custody of the

agency continuously for more than 12 months of a consecutive 22-month period.

(Doc. No. 97 at 5, 8). Regarding R.C. 2151.414(D)(1)(d), the evidence

demonstrated that Steele and Emmons are unable to provide a legally secure,

permanent placement for J.E. (Id. at 8, 9); (Jan. 12, 2017 Tr. at 70, 75, 80).

{¶35} For the reasons above, we conclude that clear and convincing evidence

supports the trial court’s determinations under R.C. 2151.414 that it was required to

make, and did make, in granting the Agency’s motion for permanent custody. The

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trial court made the proper findings under 2151.414(B)(1) and properly found that

it is in J.E.’s best interest to grant permanent custody to the Agency. The trial

court’s decision to grant the Agency’s motion for permanent custody is not against

the manifest weight of the evidence. The trial court did not err in granting the

Agency’s motion for permanent custody.

{¶36} Steele’s third assignment of error is overruled.

{¶37} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr

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