In re A.W.

[Cite as In re A.W., 2020-Ohio-3373.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

IN RE A.W., ET AL. :

Minor Children : No. 109239

[Appeal by Ad.W., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 18, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD17915224, AD17915225, and AD17915226

Appearances:

Gregory T. Stralka, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Rachel Eisenberg, Assistant Prosecuting
Attorney, for appellee.

MICHELLE J. SHEEHAN, P.J.:

Ad.W. (“mother”) appeals from a judgment of the juvenile court

granting permanent custody of her children A.W., I.W., and J.W. to the Cuyahoga

County Division of Children and Family Services (“CCDCFS” or “agency”). After a
careful review of the record and applicable law, we affirm the judgment of the

juvenile court.

Substantive Facts and Procedural History

On October 10, 2017, CCDCFS filed a complaint alleging A.W., I.W.,

and J.W. were neglected and requesting the temporary custody of the children; the

complaint was filed because mother left the children with a neighbor and did not

return. On the same day, the children were committed to the predispositional

emergency temporary custody of the agency.

On December 13, 2017, a magistrate held a hearing on the agency’s

request for temporary custody. On December 29, 2017, the trial court adopted the

magistrate’s decision, finding the children to be neglected and dependent. In

January 2018, the children were committed to the temporary custody of the agency.

On September 12, 2018, the agency filed a motion to modify

temporary custody to permanent custody. The court subsequently scheduled ten

hearings on this matter (including the instant permanent custody hearing). Mother

failed to appear at the pretrial hearing on September 18, 2018, March 5, 2019,

March 26, 2019, and July 2, 2019.

On August 27, 2019, the day the trial court initially set this matter for

trial, mother failed to appear. The trial was ultimately continued to October 3, 2019,
due to the lack of service to J.R., father of the two younger children I.W. and J.W.1

On October 3, 2019, mother appeared. Instead of trial, the trial court arraigned

mother and J.R. on the agency’s motion for permanent custody and rescheduled the

trial to November 13, 2019. Mother signed the notice for the rescheduled trial date.

On November 13, 2019, the hearing for permanent custody took

place. The children’s counsel, their guardian ad litem (“GAL”), counsel for mother,

and counsel for J.R. were present, but neither mother nor father appeared at the

hearing.

The transcript reflected a brief exchange between mother’s counsel

and the trial court regarding mother’s absence. Before her opening argument,

mother’s counsel briefly alluded to mother’s absence: “Seeing my client is not here,

your Honor, I would, for purposes of the record, ask for a continuance on her behalf.

She was present at the last Court date and did receive this Court date and I have

been in contact with her since then.” After this brief statement, counsel proceeded

to opening argument, arguing there was no clear and convincing evidence

supporting the granting of permanent custody to the agency.

After counsel’s opening argument, the court responded to counsel’s

request for a continuance, stating “[y]our request — here, this was set at 9:30. It’s

now two minutes to ten and mom is still not here. So your request for a continuance

1 J.R. did not appear at the permanent custody hearing held on November 13, 2019,

nor did he appeal from the trial court’s judgment granting permanent custody to CCDCFS.
R.M., father of A.W. (the oldest child), passed away in July 2019.
is going to be denied at this point,” to which counsel responded “[y]es, your honor.”

After this exchange, the matter proceeded to trial.

Trial Testimony

Andrea Ford, a social worker and case coordinator for SAFY, a foster

care and adoption agency, testified that the agency got involved when they received

a referral from CCDCFS in 2017. The children, ages 11, 9, and 8 at the time of the

hearing, had been left unsupervised and were not attending school. Ford diagnosed

them with adjustment disorder.

Ford testified that the biological family’s visits with the children were

sporadic and, as of late fall of 2018, mother missed the majority of her visits,

showing up once every other month. Mother’s lack of consistency with the visits

created a lot of anxiety for the children. The lack of stability caused the children to

act out; they became defiant and distrustful. The youngest, J.W., had the most

difficulty, acting out both at school and the foster home. As a result, the visits were

suspended between January 2019 and September 2019. Ford reached out to mother

once a month for two years, but mother never returned her phone calls.

Ford testified that the children have been in foster care since October

2017. The two younger children, I.W and J.W., were at one foster home and the

oldest child, A.W., at another. The two foster homes coordinated the children’s visits

with each other. Ford has observed A.W. to show maturity and growth in his foster

home. The agency, however, was planning to move J.W. to another foster family at

the time of the hearing due to his lack of progress in his behaviors. All three children,
however, did well at school since they were placed in foster care; all three made the

honor roll.

A.W.’s foster mother testified regarding A.W.’s visitations with

mother. The visits were weekly initially; mother did not consistently show up and

sometimes did not show up for two months. As a result, the visits were reduced to

a biweekly schedule. A.W.’s foster mother recalled one visit where mother failed to

show up and A.W. became very upset. He insisted on calling her and confronting

her. He scolded her for not showing up and accused her of lying to him and his

siblings about having a home for them to return to. Mother got upset and started

“cussing” at A.W.

A.W.’s foster mother testified that in October 2019, a month before

the permanent custody hearing, an incident occurred during a visitation. At the end

of the visitation, when the foster mother gathered the children to leave, mother told

the children to get inside her own vehicle. The children were very confused but

eventually got inside the foster mother’s vehicle. When the foster mother tried to

shut the door of her vehicle, mother swung at her and ended up hitting her arm. One

of the children’s uncle was also there, and he also acted menacingly toward the foster

mother. Mother then took the food the uncle was holding in his hand at the time

and threw the food all over foster mother’s vehicle. The children were very

distraught over this incident. A.W. started to act out in school. A.W.’s foster mother

testified she is a “foster-to-adopt” foster parent; A.W. had asked her to adopt him,

and she was willing to do so, but she had some concerns because of the incident.
 Chris Woodall, a social worker at CCDCFS, testified that in October

2017, mother left the children in the care of a neighbor and provided no plan for

their care. Prior to this incident, the children had been living from place to place,

staying with either neighbors or relatives. When the agency became involved, it set

up a case plan for mother to address her mental health, substance abuse, lack of

housing, and parenting issues.

Despite assistance from the agency, mother has not acquired

housing, living at four different addresses since the agency’s involvement. Mother

did complete an eight-week parenting class in 2018. Regarding her mental health,

mother went to the treatment center referred by the agency. She was diagnosed for

bipolar disorder and depression and was prescribed medication, but had not

followed up since the initial visit. She tested positive for marijuana in 2018. The

agency required her to be assessed for substance abuse but she never engaged in the

prescribed service.

As to mother’s visitation with the children, Woodall testified that

beginning in 2019, mother stopped contacting the agency for the visits. There were

no visitations for an extended period of time, although mother talked to children

over the telephone. The lack of visits upset the youngest child, J.W., the most.

Although mother took the parenting class, Woodall testified she did

not think mother actually learned from the class. She was concerned about a lack of

consistency and stability for the children as demonstrated by mother’s inability to

regularly visit with the children and to complete all the requirements in her case
plan. In addition, mother told the children she had obtained housing for them even

though she never did. There were no relatives suitable and available to take the

children. The uncertainty about their future was difficult for the children.

Wildon Ellison, the children’s GAL, filed a report on September 10,

2018, and again on May 8, 2019. In the first report, he recommended the children

to remain in the temporary custody of the agency. In the second report, he

recommended that the court grant the agency’s motion to modify temporary custody

to permanent custody. At the hearing, he testified that permanent custody is in the

children’s best interest. Although the children loved their mother, mother stayed

with different people and had no housing for the children. The GAL reported that

he tried to visit mother the night before the permanent custody hearing. She was

staying with her sister at the time but was not home. The GAL described the

children’s situation as “heartbreaking.” Because of mother’s lack of commitment

toward the children, he believed permanent custody is in the best interest of the

children. Despite the GAL’s recommendation, Pamela Hawkins, counsel for the

children, reported to the court that the children have expressed their wish to be

reunited with their mother.

The trial court observed that the permanent custody was the 14th

court-scheduled hearing for this matter. The parents had been given ample

opportunity to fulfil their case plan, and the case had reached a point where clear

and convincing evidence existed to demonstrate the parents’ lack of commitment

toward the children.
 On November 22, 2019, the trial court journalized a decision

granting permanent custody of the children to CCDCFS. Mother now appeals. Her

sole assignment of error states: The trial court’s denial of appellant’s request for

continuance was an abuse of discretion since no attempt was made to determine

why appellant was not at the hearing.

Standard of Review

We begin our analysis by recognizing that “a parent’s right to raise a

child is an essential and basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679

N.E.2d 680 (1997). “The permanent termination of parental rights has been

described as the family law equivalent of the death penalty in a criminal case.” In re

Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. A parent’s

right, however, is subject to the ultimate welfare of the child, which is the controlling

principle to be observed in permanent custody cases. In re Cunningham, 59 Ohio

St.2d 100, 106, 391 N.E.2d 1034 (1979). “All children have the right, if possible, to

parenting from either natural or adoptive parents which provides support, care,

discipline, protection and motivation.” In re J.J., 8th Dist. Cuyahoga No. 108564,

2019-Ohio-4984, ¶ 28.

Ohio’s permanent custody statute, R.C. 2151.414 sets forth a two-part

analysis to be applied by a juvenile court in adjudicating a motion for permanent

custody. Under the statute, the juvenile court is authorized to grant permanent

custody of a child to the agency if, after a hearing, the court determines, by clear and

convincing evidence that (1) any of the five factors under R.C. 2151.414(B)(1)(a) to
(e) exists, and (2) permanent custody is in the best interest of the child under the

factors enumerated in R.C. 2151.414(D). Clear and convincing evidence is that

which will produce in the trier of fact “‘a firm belief or conviction as to the facts

sought to be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus. While requiring a greater standard of proof

than a preponderance of the evidence, clear and convincing evidence requires less

than proof beyond a reasonable doubt. In re Awkal, 95 Ohio App.3d 309, 642

N.E.2d 424 (8th Dist.1994).

As for our review, we will not reverse a juvenile court’s termination

of parental rights and award of permanent custody to an agency unless the judgment

is not supported by clear and convincing evidence. See, e.g., In re N.B., 8th Dist.

Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48, and In re M.J., 8th Dist. Cuyahoga

No. 100071, 2013-Ohio-5440, ¶ 24.

Denial of Continuance

On appeal, mother does not challenge the trial court’s decision

granting permanent custody based on its findings under R.C. 2151.414. She only

argues the trial court abused its discretion in denying her counsel’s verbal request

to continue the permanent custody hearing. Thus, the only issue before us is

whether the trial court abused its discretion in denying a continuance under the

circumstances of this case.
 Biological parents have a constitutionally protected right to be

present at a permanent custody hearing. In re Sears, 10th Dist. Franklin

No. 01AP-715, 2002-Ohio-368, ¶ 11. Generally, the decision whether to grant a

continuance lies within the sound discretion of the trial court, and we will not

reverse the decision on appeal absent an abuse of that discretion. State v. Unger,

67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). The same broad discretion is afforded

to the trial court regarding a permanent custody hearing. See, e.g., In re D.T., 8th

Dist. Cuyahoga No. 108407, 2019-Ohio-4895, ¶ 15; In re S.B., 8th Dist. Cuyahoga

Nos. 101159 and 101160, 2014-Ohio-4839, ¶ 43; and In re D.K., 2d Dist. Greene

No. 2014-CA-37, 2015-Ohio-546, ¶ 9.

Moreover, “[t]here 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, particularly in the reasons

presented to the trial judge at the time the request is denied.” Unger at 67, quoting

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 269 (1964).

Where a nonincarcerated parent fails to appear at a hearing and

challenges the trial court’s refusal to continue a permanent custody hearing to

accommodate the parent’s circumstances, the appellate courts have applied the

factors set forth in Unger to determine whether the court abused its discretion. In

re D.K. at ¶ 11.2 The factors include:

2 The Second District cited the following cases involving nonincarcerated parent
that have the Unger factors: In re M.H., 2d Dist. Montgomery No. 25084, 2012-Ohio-
 [T]he 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.

Unger at 67-68.

Furthermore, under Juv.R. 23, “[c]ontinuances shall be granted only

when imperative to secure fair treatment for the parties.” In addition, Loc.R. 35(C)

of the Cuyahoga County Court of Common Pleas, Juvenile Division, provides:

No case will be continued on the day of trial or hearing except
for good cause shown, which cause was not known to the party or
counsel prior to the date of trial or hearing, and provided that the
party and/or counsel have used diligence to be ready for trial and have
notified or made diligent efforts to notify the opposing party or
counsel as soon as he/she became aware of the necessity to request a
postponement. This rule may not be waived by consent of counsel.
We recognize that “‘[a]ll things being equal, the testimony from a

parent would provide more information than not having the parent.’” In re Sears,

10th Dist. Franklin No. 01AP-715, 2002-Ohio-368, at ¶ 11, quoting In the Matter of

Vandale, 4th Dist. Washington No. 92 CA 9, 1992 Ohio App. LEXIS 4306 (Aug. 12,

5216, ¶ 29-30; In re C.B., 3d Dist. Seneca Nos. 13-12-06 and 13-12-07, 2012-Ohio-2691,
¶ 25-27; In re N.A.P., 4th Dist. Washington Nos. 12CA30 and 12CA31, 2013-Ohio-689,
¶ 20; In re B.B., 5th Dist. Stark No. 2010CA00151, 2010-Ohio-4618, ¶ 35-38; In re Nevaeh
J., 6th Dist. Lucas No. L-06-1093, 2006-Ohio-6628, ¶ 43-46; In re Kutcher, 7th Dist.
Belmont No. 02 BE 58, 2003-Ohio-1235, ¶ 26-27; In re M.J., 8th Dist. Cuyahoga
No. 100071, 2013-Ohio-5440, ¶ 21; In re C.B., 9th Dist. Lorain No. 14CA010588, 2014-
Ohio-4618, ¶ 12-17; In re B.M., 10th Dist. Franklin No. 09AP-60, 2009-Ohio-4846,
¶ 10-12; and In re B.D., 11th Dist. Lake Nos. 2009-L-003 and 2009-L-007,
2009-Ohio-2299, ¶ 47-49. As the Second District noted, when an incarcerated parent is
involved, the courts applied a three-part test set forth in Mathews v. Eldridge, 424 U.S.
319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
1992). Because the termination of parental rights is a serious matter, where a parent

communicates with the court or counsel to explain a problem attending a hearing,

the courts have required that “great care be taken to ensure that due process is

afforded parents in parental termination proceedings.” In the Matter of Rachal, 6th

Dist. Lucas No. L-02-1306, 2003-Ohio-1041, ¶ 12. However, “a parent facing

termination of parental rights must exhibit cooperation and must communicate

with counsel and with the court in order to have standing to argue that due process

was not followed in a termination proceeding.” In re Q.G., 170 Ohio App.3d 609,

2007-Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.).

On appeal, mother argues her counsel should have been given the

opportunity at the permanent custody hearing to contact her by telephone and to

determine how long it would take her to arrive at the court for the hearing. She

argues the trial court abused its discretion in denying her counsel’s verbal request

to continue the hearing.

The record reflects that mother unexpectedly failed to appear at the

permanent custody hearing. While she faults the trial court for making no attempt

to ascertain the reason for her nonappearance, she has yet to offer an explanation

for her unexpected absence from the hearing. Under the local rule, good cause must

be shown for a case to be continued on the day of trial. In this case, the children

have been in the agency’s custody since October 17, 2017. The trial date of

November 13, 2019, was the third date this matter was scheduled for trial and the

14th hearing on this matter, as the trial court noted. This is the sixth time mother
failed to appear in court since the agency moved for permanent custody on

September 12, 2018. Mother’s counsel acknowledged mother received notice of the

trial date, but was unable to provide any information or explanation for mother’s

absence. Thus, the record does not reflect mother cooperating or communicating

with the court or her counsel regarding her absence. Counsel requested continuance

after realizing that mother would not appear, but provided no reasons for her

absence, legitimate or otherwise. Counsel, apparently unable to secure mother’s

presence at an already continued trial, did not request a specific length of

continuation. Nothing in the record reflects the trial court did not permit counsel

an opportunity to explain mother’s absence or counsel requested an opportunity to

telephone mother. Rather, the trial concluded an hour and a half after it was

scheduled to begin and mother never appeared. Under the Unger factors, therefore,

we are unable to conclude that the trial court abused its discretion when it denied

counsel’s request for a continuance after mother unexpectedly failed to show up for

the permanent custody hearing without communicating with the court or her

counsel regarding the circumstances of her absence.3

3 Mother cites In re K.D., 8th Dist. Cuyahoga No. 81843, 2003-Ohio-1847, to
support her claim that the trial court should have made an attempt to determine the
reason for her absence before proceeding to trial. In that case, on the day of the hearing
on the agency’s motion alleging neglect, the parents and their counsel failed to appear.
The magistrate received a telephone call from counsel’s office informing the court that
counsel was detained in another hearing but would appear by noon. After waiting one
hour, at 11:30 a.m., the magistrate proceeded with the hearing. Upon being notified that
the hearing was proceeding, counsel immediately sent an associate to attend the hearing
but the hearing was already concluded. Moreover, counsel had been previously informed
by the social worker that the prosecutor was going to dismiss the matter. This court
 Judgment affirmed.

It is ordered that appellee recover of 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.

__________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE

RAYMOND C. HEADEN, J., and
MARY EILEEN KILBANE, J., CONCUR

reversed the trial court’s decision finding the children neglected under the unique facts of
the case. This court reasoned that, where the parents’ counsel was given the impression
that the matter was going to be dismissed, and where counsel had notified the court that
he was unavoidably detained in another court proceeding, the juvenile court abused its
discretion and should have continued the matter until at least noon or until the parties
could appear. K.D. has no application in this case.