In re L.S. , 2022 Ohio 3811 ( 2022 )

[Cite as In re L.S., 2022-Ohio-3811.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: Hon. Earle E. Wise, Jr., P.J.
Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
L.S. Case No. 2022 CA 00054
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 2021 DEP
00107
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 26, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SARAH E. EXTEN JAMES L. BLUNT II
RCCS 3954 Industrial Parkway Drive
731 Scholl Road Shelby, Ohio 44875
Mansfield, Ohio 44907
Richland County, Case No. 2022 CA 00054 2
Wise, John, J.
{¶1} Appellant J.S. appeals the decision of the Richland County Court of
Common Pleas, Juvenile Division, which terminated Appellant’s parental rights and
granted Richland County Children’s Services Agency’s (“Agency”) motion for permanent
custody of their child, L.S. The following facts give rise to this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} L.S. was born on October 10, 2020. Appellant is the natural father of L.S.
K.H. is the biological mother of L.S.
{¶3} On October 14, 2020, L.S. was placed with relatives under a safety plan
due to being born positive for fentanyl and going through withdrawal. K.H. was dealing
with addiction to controlled substances, mental health problems, substance abuse, and
lifestyle issues. Appellant was dealing with substance abuse, lifestyle issues, and child
welfare issues.
{¶4} On June 2, 2021, L.S. was placed in emergency shelter care with the
Agency due to injuries suffered by L.S.’s sibling while under the care of the safety plan.
{¶5} On July 28, 2021, L.S. was found to be a dependent child and placed into
the temporary custody of the Agency. In the Judgment Entry granting temporary custody,
a case plan was adopted and approved addressing concerns of K.H.’s substance abuse,
mental health, and lifestyle concerns.
{¶6} On January 5, 2022, the Agency filed a motion terminating all residual
parental rights of K.H. and J.S., and granting permanent custody to the Agency.
{¶7} On April 7, 2022, the trial court held a hearing on the motion.
Richland County, Case No. 2022 CA 00054 3
{¶8} At the hearing, Alissa Brokaw, the director at the Mansfield Y Center
childcare testified L.S., about eight months old, would arrive in dirty clothes, in a dirty car
seat, and was not clean. L.S. was not as far along developmentally for eight months. He
was not sitting up or pulling himself up. He just laid around.
{¶9} After the children were placed in foster care, Ms. Brokaw saw an almost
immediate change. L.S. and his siblings were cleaner. L.S. began developing, started
walking and was able to control his body more. She believes it is in the best interest of
L.S. to remain with the foster family.
{¶10} Todd Curtis then testified he is a therapist and clinical supervisor at
Catalyst. He was responsible for reviewing K.H.’s records. This included two withdrawal
management sessions and one session for the creation of an Individual Service Plan.
There were no other records showing K.H. participated in the ISP.
{¶11} K.F. then testified that she is the foster parent of L.S. and his siblings. She
has been the foster parent of L.S. since June of 2021. K.F. testified when the children
were placed with her, they were scared, constantly upset, and had developmental delays.
Since being placed with K.F. those issues have been resolved. L.S. and his sister are in
physical therapy to help with their motor skills. They are back to where they need to be
and will be released from the program soon.
{¶12} K.F. believes the children have progressed to where they should be under
her care. They have bonded as a family. L.S. refers to K.F. and her husband as “ma” and
“dad.” K.F. said that she is prepared to adopt L.S. and his siblings if they are placed in
the permanent custody of the Agency. K.F. believes it is in the best interest of the children
to be placed with her. Appellee has never attempted to visit L.S. while under her care.
Richland County, Case No. 2022 CA 00054 4
{¶13} Next, K.H. testified that she is the mother of L.S. and his siblings. She has
been involved with children’s services since October of 2020. She developed a case plan.
As part of the case plan she was required to complete mental health treatment, which she
failed to do. She was required to completed drug abuse treatment, which she failed to do.
She has not visited her children in over four months. She is still using illicit substances,
particularly heroin. She has resided with I.R. in the past, one of L.S.’s sibling’s father. He
has been domestically violent toward K.H. in the past. She has left and gone back to him
several times. She agreed it is not in the children’s best interest to be around domestic
violence.
{¶14} Next, I.R., father of L.S.’s sister, testified. He has not visited his daughter in
the last 90 days and was recently released from incarceration. After release, he made no
attempt to visit his daughter.
{¶15} Amanda Campbell testified she is the Children Services caseworker
assigned to L.S.’s case. She became involved when L.S. was born addicted to fentanyl.
At this time K.H. was entered into a case plan which entailed mental health treatment,
substance abuse treatment, and provision of basic needs for L.S. and his siblings.
{¶16} Ms. Campbell continued that K.H. and A.R., father of one of L.S.’s siblings,
have had very minimal involvement in their case plan. K.H. completed detox once but
never reported back to start services. A.R. was sporadic with his treatment and was
eventually terminated because of prolonged absence from treatment. Both consistently
tested positive for controlled substances throughout their treatment. These consisted of
positive tests for cocaine, fentanyl, heroin, amphetamines, methamphetamines, and
oxycodone.
Richland County, Case No. 2022 CA 00054 5
{¶17} For each meeting, Appellant was notified and invited to participate via letter
and attempted to contact via phone. Appellant attended one meeting then never returned
or contacted Children Services. While attempting to contact Appellant, Ms. Campbell
spoke with Appellant’s mother. Appellant’s mother did not know his whereabouts,
confirmed Appellant continues to relapse into drug abuse after periods of treatment, and
that he would not be an appropriate caregiver, given his history. Appellant has a separate
case open in Summit County involving another child born within weeks of L.S. Appellant
has never visited L.S.
{¶18} Ms. Campbell testified L.S. has a strong bond with his foster family. Upon
arriving, L.S. was developmentally delayed and needed to wear a helmet to reshape his
head. His previous caregivers would not put him in the helmet. He attended a few
sessions of therapy when arriving in foster care, and he progressed very well. The
therapists did not believe he needed to attend anymore. His foster parents started using
the helmet again, and he is coming along well.
{¶19} Ms. Campbell testified to reports that I.R. and Appellant committed acts of
domestic violence against K.H., that I.R. continues to abuse K.H., and that Appellant was
recently kicked out of his girlfriend’s apartment for domestic abuse.
{¶20} Next, Sandi Freeman testified she is the Guardian ad Litem for L.S. and his
siblings. Upon becoming involved with the children’s case, she said it was obvious they
were already developmentally delayed.
{¶21} Ms. Freeman met Appellant after he called into a court hearing. She went
to his apartment to see if it was a good placement for L.S. Initially he was very open but
became hesitant when they began questioning him. During the interview he gave a series
Richland County, Case No. 2022 CA 00054 6
of dishonest answers about living with his girlfriend leading Ms. Freeman to conclude it
would not be a good place for L.S. to be placed.
{¶22} Throughout the children’s placement with the foster family, Ms. Freeman
observed progress made by the children to overcome their developmental delays. The
foster parents are actively involved with the children and meet all their basic needs. Ms.
Freeman believes it would be in the best interest of L.S. to be placed in the permanent
custody of Children Services for the purpose of adoption.
{¶23} On April 21, 2022, the Magistrate issued a decision finding it is in the best
interest of L.S. to be placed in the permanent custody of Children’s service.
{¶24} Above the objections of Appellant, the trial court adopted the Magistrate’s
Decision.
{¶25} Thereafter, Appellant timely filed his notice of appeal. He raises the
following two Assignment of Error.
ASSIGNMENTS OF ERROR
{¶26} “I. WHETHER THE TRIAL COURT ERRED BY DENYING THE
CONTINUANCE OF TRIAL.
{¶27} II. WHETHER RICHLAND COUNTY CHILDREN SERVICES ENGAGED
REASONABLE EFFORTS TO REUNITE THE CHILDREN WITH A PARENT.”
I.
{¶28} In his first Assignment of Error, Appellant argues the trial court erred by
denying Appellant’s request for a continuance. We disagree.
{¶29} Juv.R. 23 provides: “Continuances shall be granted only when imperative
to secure fair treatment for the parties.” The grant or denial of a continuance is a matter
Richland County, Case No. 2022 CA 00054 7
entrusted to the broad, sound discretion of the trial court. State v. Unger, 67 Ohio St.2d
65, 423 N.E.2d 1078 (1981). In order to find an abuse of discretion, we must determine
whether 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).
{¶30} In reviewing a trial court’s denial of a motion for a continuance, an appellate
court should 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 other relevant factors, depending on the unique facts
of each case. Unger at 67, 423 N.E.2d 1078.
{¶31} We have carefully examined the record in this case and conclude that the
trial court lawfully exercised its discretion in refusing to grant the continuance. Most
notably, Appellant had been previously offered transportation prior to the hearing and did
not avail himself of it. Appellant failed to set up his own transportation, and Appellant has
never appeared before the trial court in person. Appellant contacted the trial court just
before the hearing to inquire if he was even required to be there. Appellant had counsel
present on his behalf to cross-examine witnesses. The request was made the day of trial.
L.S.’s mother, L.S.’s foster mother, all the witnesses, the Guardian ad Litem, the
caseworker, two other parents of L.S.’s siblings, and attorneys had already arrived at the
courthouse.
Richland County, Case No. 2022 CA 00054 8
{¶32} For all the foregoing reasons we find the trial court did not abuse its
discretion in refusing to grant Appellant’s request for a continuance.
{¶33} Appellant’s first Assignment of Error is overruled.
II.
{¶34} In his second Assignment of Error, Appellant argues the trial court erred in
engaging in reasonable efforts to reunite the family pursuant to R.C. §2151.419. We
disagree.
{¶35} Juv.R. 40(D)(3)(b)(iv) states:
Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual findings or legal conclusion,
whether or not specifically designated as a finding of fact or conclusion of
law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding
or conclusion as required by Juv.R. 40(D)(3)(b).
{¶36} Appellant’s counsel failed to object to the trial court’s finding that the Agency
made reasonable efforts to reunite Appellant with L.S. As a result of the failure to object
to the reasonable efforts finding, Appellant has waived all but plain error. “[T]he plain error
doctrine is not favored and may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was made at the trial court,
seriously affects the basic fairness, integrity, or public reputation of the judicial process,
thereby challenging the legitimacy of the underlying judicial process itself.” In the Matter
of A.J.S., 2nd Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶16, quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus (1997).
Richland County, Case No. 2022 CA 00054 9
{¶37} R.C. §2151.419 imposes a duty upon the Agency to make reasonable
efforts to reunite parents with their children where the Agency removed the children from
the home.
{¶38} “ ‘Reasonable efforts means that a children’s services agency must act
diligently and provide services appropriate to the family’s need to prevent the child’s
removal or as a predicate to reunification.’” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15
and Wyandot Nos. 16-12-16, 2013-Ohio-4317, ¶95, quoting In re D.A., 6th Dist. Lucas No.
L-11-1197, 2012-Ohio-1104, ¶30. “In determining whether the agency made reasonable
efforts [pursuant to R.C. §2151.419(A)(1)] to prevent the removal of the child from the
home, the issue is not whether the agency could have done more, but whether it did
enough to satisfy the reasonableness standard under the statute.” In re Lewis, 4th Dist.
Athens No. 03CA12, 2003-Ohio-5262, ¶16. “ ‘Reasonable efforts’ does not mean all
available efforts.’ ” Id. A “reasonable effort” is “* * * an honest, purposeful effort, free of
malice and the design to defraud or to seek an unconscionable advantage.” In re Weaver,
79 Ohio App.3d 59, 63, 606 N.E.2d 1011 (12th Dist.1992).
{¶39} Appellant argues that the caseworker should have kept in better contact
with Appellant and should have done more to provide transportation for Appellant.
Appellant does not address any service that was provided to Appellant and how this falls
short of reasonable effort. Again, reasonable efforts test does not include “whether the
agency could have done more[.]” In re Lewis, 4th Dist. Athens No. 03CA12, 2003-Ohio-
5262, ¶16. As such, Appellant has failed to show that the trial court committed plain error.
Richland County, Case No. 2022 CA 00054 10
{¶40} Appellant’s second Assignment of Error is overruled.
{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Richland County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Gwin, J., concur.
JWW/br 1021