[Cite as In re R.M., 2018-Ohio-395.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: R.M. Jr. : JUDGES:
: Hon. Patricia A. Delaney, P.J.
(D.O.B. 10-1-14) : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J. :
:
: Case No. CT2017-0057
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
21530130
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 31, 2018
APPEARANCES:
For Plaintiff-Appellee For Appellant-Mother
GERALD V. ANDERSON VALERIE WIGGINS
Assistant Prosecuting Attorney 107 S. Main Street
27 North Fifth Street New Lexington, OH 43764
P. O. Box 189
Zanesville, OH 43702 For Father, Robert Moody, Sr.
Guardian Ad Litem KEVIN VAN HORN
715 Adair Avenue
BARBARA CAFFARATTI Zanesville, OH 43701
45 N. 4th Street
P. O. Box 124
Zanesville, OH 43601
Muskingum County, Case No. CT2017-0057 2
Wise, Earle, J.
{¶ 1} R.M. Jr. (child) was born on October 1, 2014 to appellant, Angela
Pemberton and Robert Moody (father). On August 1, 2015, by ex-parte order, child was
placed in the temporary custody of Muskingum County Children's Services (MCCS). He
was placed with foster parent Shawna Duffy until April 7, 2016. The child was then placed
with a family member, Heather Price, with protective supervision by MCCS. On July 25,
2016, however, Price advised MCCS she could no longer care for child. Temporary
custody of child was returned to MCCS, and he was returned to Duffy’s home.
{¶ 2} Appellant and father each filed motions for legal custody on January 26,
2017 and February 14, 2017 respectively. On March 8, 2017, MCCS filed a motion for
permanent custody. A hearing was scheduled on the matter for April 17, 2017. Neither
appellant nor father were present. The hearing was converted to a review hearing with a
final hearing scheduled for May 30, 2017.
{¶ 3} When appellant failed to appear at the May 30, 2017 hearing, counsel for
appellant requested a continuance. Counsel stated she’d had no contact with appellant
since February 2017 despite sending letters and leaving voice mails asking appellant to
contact her. The state, representing MCCS, requested the trial court to proceed, as all of
its subpoenaed witnesses were present and waiting to testify.
{¶ 4} The state further advised the court of its knowledge that appellant had been
arrested the day before and asked that she be transported from the jail for the hearing. It
was then discovered, however, that appellant had been taken from the jail to the hospital
because she was unresponsive, thus rendering her unavailable for the hearing.
Muskingum County, Case No. CT2017-0057 3
{¶ 5} With that discovery, the trial court withheld ruling on the motion to continue
in order to hear testimony from the witnesses present and then determine if a further
continuance would be in the best interest of the child and of benefit to appellant to protect
her rights. In permitting the state to go forward with its witnesses, the trial court noted a
scheduling concern. The two-year sunset date on the case was August 5, 2017. This
matter required a half day, and that as of that date, cases requiring half a day were being
scheduled into September and October.
{¶ 6} The state presented testimony from four witnesses which established the
following:
{¶ 7} When MCCS became involved in this matter, MCCS caseworker Renee
Kimball formulated a case plan for both appellant and father. Appellant has a long history
of both substance abuse and involvement with MCCS as an alleged perpetrator. She has
lost custody of three other children through previous MCCS cases due to substance
abuse issues, mental health issues, and criminal history. Appellant's case plan thus
included mental health counseling, substance abuse treatment, and domestic violence
counseling. Appellant failed to complete treatment or counseling, had numerous positive
urine drug screens and failed to provide urine drug screens as directed on numerous
other occasions.
{¶ 8} In order for appellant to start either mental health or substance abuse
counseling again, she first needed to complete 30 AA or NA meetings in 30 days.
Appellant made no move to do so. Appellant was further deemed in need of at least 120
days of residential substance abuse treatment if she chose to complete the 30 meetings
in 30 days and return to the program.
Muskingum County, Case No. CT2017-0057 4
{¶ 9} Appellant failed to attend supervised visits with her child for the first year
the case was active, and avoided MCCS during that time as well. Thereafter, she attended
supervised visits from September 2016 to February 2, 2017 before abandoning the child
once again. On those occasions when appellant did visit, she had no observable bond
with the child, and father did all the parenting. Appellant arrived late to visits and left
several times during visits to smoke or get food.
{¶ 10} For the majority of this case, the child remained with Duffy, his foster
mother. From April 7, 2016 to July 25, 2016, a kinship placement was attempted with a
cousin, Heather Price. Price concluded, however, that she was not is a position to care
for the child and he was returned to Duffy.
{¶ 11} Placement was considered with father's sister, however she declined due
to her advanced age, her husband's health issues, and the fact that she cares for her
adult son who is mentally handicapped. Placement was also considered with appellant's
mother who had custody of appellant's other three children, but she passed away during
the pendency of this case. At some point appellant advised Kimball that she had another
family member in mind to place the child with, but then refused to provide a name or
contact information.
{¶ 12} On August 15, 2016, appellant was arrested for possession of cocaine. That
matter remained pending at the time of the permanent custody hearing. During the
weekend before the hearing, appellant assaulted father, breaking his nose and eye
socket. Father did not report the matter to law enforcement. On the day before the
hearing, appellant was arrested for falsification, theft, and possession of drugs. Appellant
further had two active bench warrants for child support.
Muskingum County, Case No. CT2017-0057 5
{¶ 13} In considering appellant's motion for a continuance, the trial court asked
Kimball if the court were to grant a continuance, would appellant have adequate time to
engage in her case plan in any meaningful way so as to allow her an opportunity to parent
the child. Kimball did not believe that was a possibility.
{¶ 14} Father testified on his own behalf, and withdrew his motion for legal custody.
He is unable to care for child, did not oppose the permanent custody motion, and believed
it was in child’s best interest to remain in Duffy’s home.
{¶ 15} Duffy testified in father’s case as well and expressed her interest in adopting
the child if permanent custody were granted to MCCS.
{¶ 16} At the conclusion of the hearing, appellant's motion for a continuance was
denied. On August 7, 2017, the trial court issued its judgment entry awarding permanent
custody of child to MCCS.
{¶ 17} Appellant now appeals that decision. She presents two assignments of
error:
I
{¶ 18} "THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GRANT
A REASONABLE CONTINUANCE TO THE APPELLANT FOR CAUSE."
II
{¶ 19} "THE TRIAL COURT'S GRANT OF PERMANENT CUSTODY TO THE
AGENCY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
Muskingum County, Case No. CT2017-0057 6
I, II
{¶ 20} In her first assignment of error, appellant argues that the trial court abused
its discretion when it denied her motion to continue the permanent custody hearing.
Specifically, appellant argues the matter should have been continued because she was
unavailable due to being hospitalized and unresponsive.
{¶ 21} Appellant's second assignment of error states the grant of permanent
custody to MCCS is against the manifest weight of the evidence. The argument following
the assignment of error, however, contends the denial of a continuance was against the
manifest weight of the evidence. Specifically, appellant argues that the denial of a
continuance was not in the best interest of the child, and the possibility of a kinship
placement with the unnamed family member should have been explored. Because
appellant's first and second assignments of error argue that a continuance should have
been granted, and because manifest weight standards are not the proper standard of
review for a denial of a motion to continue, we address assignments of error one and two
together.
{¶ 22} The grant or denial of a continuance rests in the trial court's sound
discretion. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981) syllabus. In order
to find an abuse of that discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). "There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate
due process. The answer must be found in the circumstances present in every case,
Muskingum County, Case No. CT2017-0057 7
particularly in the reasons presented to the trial judge at the time the request is denied."
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 1 L.Ed.2d 921 (1964).
{¶ 23} We recognize that a parent has a fundamental liberty interest in the care,
custody, and management of his or her child and an essential and basic civil right to raise
his or her children. In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990). That
right, however, is not absolute. “The natural rights of a parent * * * are always subject to
the ultimate welfare of the child, which is the polestar or controlling principle to be
observed.” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{¶ 24} To determine whether a trial court abused its discretion in denying a motion
for a continuance, we consider the following factors: 1) the length of the delay requested;
2) whether other continuances have been requested and received; 3) the inconvenience
to witnesses, opposing counsel, and the court; 4) whether there is a legitimate reason for
the continuance; 5) whether the defendant contributed to the circumstances giving rise to
the need for the continuance; and 6) other relevant factors, depending on the unique facts
of each case. In re P.T., 5th Dist. Stark No. 2011CA00200, 2012-Ohio-1287, ¶ 17, citing
State v. Unger 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 (1981); State v. Holmes, 36
Ohio App.3d 44, 47-48, 521 N.E.2d 479 (1987).
{¶ 25} First, the length of delay requested here is not entirely clear. Appellant
argues here that one day would have been sufficient. During the permanent custody
hearing, however, counsel for appellant asked the court for an opportunity to speak with
appellant now that she was aware of her location but proposed no timeframe. T. 4-5.
Later, during cross examination of Angela Hittle, appellant’s substance abuse counselor,
counsel for appellant inquired at T. 38-39:
Muskingum County, Case No. CT2017-0057 8
[Counsel] Should this matter be set out approximately 60 days, do you
believe that [appellant] would be able to get into a program that would be
adequate to get her addiction at least partially under control?
[Hittle] I can’t answer that. I haven’t seen her since 2016.
[Counsel] Would it be possible – what would she need to do to get into your
program as of right now that you –
[Hittle] She would have to complete a residential program of 120 or more
days –
***
And do 30 meetings in 30 days.
{¶ 26} As we will address in more detail below, one day or 60 days would have
made no difference in this matter. Under the first Unger factor, therefore, we find the
trial court properly denied appellant’s motion for continuance.
{¶ 27} As for the second Unger factor, the record does not reflect any prior
continuances, weighing in favor of appellant. Considering the third Unger factor,
inconvenience to witnesses, opposing counsel, and the court, opposing counsel was
permitted to present testimony from the witnesses present, also weighing in favor of
appellant.
{¶ 28} As for the fourth and fifth Unger factors, whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived, and whether appellant
contributed to the circumstances which give rise to the request for continuance, the trial
Muskingum County, Case No. CT2017-0057 9
court properly denied appellant's motion for continuance. Although counsel for appellant
presented the court with a legitimate reason for requesting the continuance -- because
appellant was incarcerated and further had been taken from the jail to the hospital
unresponsive -- appellant also contributed at least partially to the circumstances giving
rise to the request for continuance by committing new crimes the day before the hearing,
and failing to contact her attorney despite counsel’s attempts to contact her. As the trial
court noted, appellant had been in very recent contact with father, and with MCCS
requesting to visit with her child again. T. 124-125. Appellant could have made contact
with her attorney as well.
{¶ 29} Regardless of the forgoing, however, the sixth Unger factor is ultimately
dispositive in this matter. Whether the requested delay was one day or 60 days, were
there no prior continuances or many, and regardless of the reason giving rise to the
request for continuance, under the circumstances of this case a continuance would not
have changed the outcome.
{¶ 30} First, appellant was facing the potential of incarceration for 60 days for two
child support bench warrants as well as in two pending criminal cases. T. 78, 115. Next,
appellant was unsuccessfully terminated from substance abuse and mental health
counseling. In order to resume either, appellant would first need to complete 30 AA/NA
meeting in 30 days. She would then need at least 120 days of inpatient substance
abuse treatment. T. 37, 39, 74-75. Even if appellant served no jail or prison time, she
still was facing a minimum of 150 days of substance abuse treatment.
{¶ 31} Finally, appellant’s child was three-years-old at the time of the permanent
custody hearing and MCCS had been involved with him for two and a half years. T. 79.
Muskingum County, Case No. CT2017-0057 10
Appellant had nearly two years to comply with the objectives of her case plan. Instead,
she chose not to work the plan for more than a year, and when she finally did, failed to
comply with a single directive, continued to abuse illegal substances, failed to obtain
domestic violence counseling and assaulted father, abandoned her child, and was
arrested for several crimes including crimes committed the day before the permanent
custody hearing. T. 109-117. This is the fourth child appellant has failed to parent. T. 104.
As for appellant’s kinship argument, while appellant told Kimball she had a family member
in mind who could possibly take the child in, she refused to provide Kimball with this
alleged person's information. T. 121. Obviously MCCS cannot investigate a potential
placement without knowing who to contact.
{¶ 32} Given these facts, if the trial court had granted a continuance of one day or
60 days, appellant still could not demonstrate substantial or meaningful compliance with
her case plan in order to persuade the trial court that it is within the child's best interest to
return custody to appellant. In re J.E., 3rd Dist. Marion No. 9-17-07, 2017-Ohio-8272,
2011 WL 553173, ¶ 17, In re J.C., 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715 ¶
45.
{¶ 33} Upon review of the record and in light of the guidelines set forth in Unger,
we find no abuse of discretion in the trial court's denial of appellant's request to continue
the permanent custody hearing.
Muskingum County, Case No. CT2017-0057 11
{¶ 34} Appellant's first and second assignments of error are overruled.
By Wise, Earle, J.
Delaney, P.J. and
Gwin, J. concur.
EEW/rw