[Cite as In re A.J.M., 2018-Ohio-4413.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107219
IN RE: A.J.M.
A Minor Child
[Appeal By Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 17915835
BEFORE: S. Gallagher, J., Stewart, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 1, 2018
ATTORNEY FOR APPELLANT
Leigh S. Prugh
Nee Law Firm, L.L.C.
26032 Detroit Road, Suite 5
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE, CCDCFS
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony R. Beery
Assistant Prosecuting Attorney
CCDCFS
4261 Fulton Parkway
Cleveland, Ohio 44144
Also listed:
A.F., pro se
c/o Northcoast Behavioral Healthcare
1502 East 118th Street
Cleveland, Ohio 44106
Guardian ad Litem for A.J.M.
Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116
SEAN C. GALLAGHER, J.:
{¶1} Appellant mother (“Mother”) appeals from the trial court’s decision to award
permanent custody of her child, A.J.M. (“the child”), to the Cuyahoga County Division of
Children and Family Services (“CCDCFS”). Upon review, we affirm.
{¶2} On October 18, 2017, CCDCFS filed a complaint alleging the child, who was a
newborn, to be a dependent child and seeking permanent custody. The child was committed to
the predispositional temporary custody of CCDCFS on October 24, 2017. On February 16,
2018, Mother admitted to the allegations of an amended complaint and the child was adjudicated
as a dependent child. The matter proceeded to a dispositional hearing on April 4, 2018. On
April 20, 2018, the trial court issued a decision granting permanent custody of the child to
CCDCFS. Mother timely filed this appeal.
{¶3} Mother raises two assignments of error. Under her first assignment of error,
Mother claims the trial court erred by denying her motion to continue the permanent custody
hearing.
{¶4} The decision to grant or deny a continuance is a matter within the sound discretion
of the trial judge and will not be reversed absent an abuse of discretion. State v. Unger, 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078 (1981). Although courts must ensure that due process is
provided in parental termination proceedings, a parent does not have an absolute right to be
present at a custody hearing and “[a]ny potential prejudice to a party denied a continuance is
weighed against a trial court’s ‘right to control its own docket and the public’s interest in the
prompt and efficient dispatch of justice.’” In re J.C., 8th Dist. Cuyahoga No. 106272,
2018-Ohio-2234, ¶ 12, quoting Unger at 67.
{¶5} The record in this case reflects that Mother’s counsel requested a continuance at the
start of the permanent custody hearing. Counsel indicated that Mother was not present and was
“suffering from a migraine.” After noting pretrials had occurred and the trial date set, the trial
court denied the request. However, upon counsel’s request, the trial court indicated it would
revisit the continuance after the state’s case. At the conclusion of the state’s case, the trial court
indicated that it would grant counsel’s request for a continuance to allow Mother the opportunity
to testify. After a brief recess, during which counsel called Mother, the request for a
continuance was withdrawn. The record also reflects that Mother was represented by competent
counsel who advocated on Mother’s behalf at the permanent custody hearing; that the trial court
was given no indication that Mother would be available if the hearing were continued; and that a
hearing would have inconvenienced the witnesses and lawyers who were present. Under the
circumstances of this case, we find no abuse of discretion by the trial court. The first assignment
of error is overruled.
{¶6} Under her second assignment of error, Mother claims the trial court’s findings are
against the manifest weight of the evidence.
{¶7} R.C. 2151.414(B) allows a court to grant permanent custody of a child to a children
services agency if, after a hearing, the court determines, by clear and convincing evidence, that
permanent custody is in the best interest of the child and that any of the four conditions set forth
in R.C. 2151.414(B)(1)(a)-(e) applies.
{¶8} Here, the court determined the condition under R.C. 2151.414(B)(1)(a) applied
when it determined by clear and convincing evidence that the child has not been in the temporary
custody of one or more public children services agencies or private child placing agencies for 12
or more months of a consecutive 22-month period, and the child could not be placed with either
parent within a reasonable time or should not be placed with either parent.
{¶9} R.C. 2151.414(E) instructs that the court “shall enter a finding that the child cannot
be placed with either parent within a reasonable time or should not be placed with either parent”
if the court, upon considering all relevant evidence, “determines, by clear and convincing
evidence” that one or more of the factors thereunder exist as to each of the child’s parents,
including the following relevant factors herein:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency to
assist the parents to remedy the problems that initially caused the child to be
placed outside the home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be placed outside the
child’s home. * * *
(2) Chronic mental illness * * * or chemical dependency of the parent that is so
severe that it makes the parent unable to provide an adequate permanent home for
the child at the present time and, as anticipated, within one year after the court
holds the hearing.
***
(11) The parent has had parental rights involuntarily terminated with respect to a
sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the
Revised Code, or under an existing or former law of this state, any other state, or
the United States that is substantially equivalent to those sections, and the parent
has failed to provide clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure permanent placement
and adequate care for the health, welfare, and safety of the child.
***
(16) Any other factor the court considers relevant.
{¶10} Here, the trial court determined the condition under R.C. 2151.414(E)(1) to exist
and also made findings that “Mother has a chronic mental illness” and a “chemical dependency
problem, and that she “had parental rights terminated involuntarily with respect to a sibling of the
child.” The trial court also found several factors applied to the alleged father of the child.
Contrary to Mother’s argument that Mother had her parental rights involuntarily terminated with
respect to a sibling of the child, that was not the entire basis for the trial court’s determination.
Rather, it was one of several factors considered by the trial court. Further, there was competent,
credible evidence in the record to support the trial court’s findings.
{¶11} The record reflects that in December 2017, Mother had her parental rights
involuntarily terminated with respect to the sibling of the child. Among other findings in that
decision, which was filed herein, was that Mother suffered from a chronic mental illness and
chemical dependency, and that she had failed to comply with services that were offered. In
awarding emergency temporary custody of the child herein to CCDCFS, the court determined
that Mother suffers from posttraumatic stress disorder. The social worker involved in this case
testified that Mother had a history of depression, anxiety, and other things, and that she did not
complete a mental health assessment until February 2018.
{¶12} The guardian ad litem for the child indicated in his report that the minor child was
exposed to methadone and heroin while Mother was pregnant. The social worker testified that
Mother “has a very long history of heroin addiction.” Mother began but failed to complete
multiple treatment programs. She had been discharged from Harbor Light for sporadic
attendance, and she also had a positive drug test at Harbor Light. Further, she failed to
cooperate with agency requests for drug screens, had yet to engage in mental health services, and
had not completed parenting classes. Although Mother did engage in some case plan services
and had appropriate visits with the child, she failed to substantially remedy her substance abuse
problems and mental health issues. Our review of the record demonstrates that there is
competent, credible evidence to support the trial court’s finding that the child cannot be placed
with either parent within a reasonable time or should not be placed with either parent.
{¶13} In determining the best interest of a child, R.C. 2151.414(D)(1) directs the trial
court to 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; (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; and (5) whether any of the factors set forth in
R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). A juvenile court does not
abuse its discretion if its decision regarding the children’s best interest is supported by
competent, credible evidence. In re R.T., 2016-Ohio-8490, 79 N.E.3d 138, ¶ 57 (8th Dist.).
{¶14} In conducting a best-interest analysis under R.C. 2151.414(D), “[t]he court must
consider all of the elements in R.C. 2151.414(D) as well as other relevant factors. There is not
one element that is given greater weight than the others pursuant to the statute.” In re Schaefer,
111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
{¶15} Here, the trial court’s opinion demonstrates that it considered the relevant factors
and found by clear and convincing evidence that an order of permanent custody is in the best
interest of the child, notwithstanding the recommendation of the guardian ad litem that the child
be placed in temporary custody. The trial court acted within its discretion in choosing not to
follow the recommendation of the guardian ad litem. The trial court recognized that relevant
services had been provided, but determined they were not successful because “Mother has a
mental illness and has not complied with treatment, mother has not provided drug screens,
mother has been inconsistent in visitation and has not completed the case plan.” The trial
court’s determination that permanent custody is in the child’s best interest is supported by
competent, credible evidence in the record.
{¶16} In light of the above, we conclude that the trial court did not abuse its discretion in
determining that permanent custody of the child should be awarded to CCDCFS. Appellant’s
second assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the 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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR
.