In re A.S. , 2013 Ohio 4018 ( 2013 )

[Cite as In re A.S., 2013-Ohio-4018.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. William B. Hoffman, P.J.
A.S., V.S., and Z.S. : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
:
: Case No. 13 CAF 05 0040
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Divison, Case Nos.
11-01-0070AB, 11-01-0071AB, and
11-01-0072AB
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2013
APPEARANCES:
For Kitty Slaven For DCDJFS
PAMELLA A. LAMMON KATHERYN L. MUNGER
103 North Union Street, Suite D 140 North Sandusky St., 3rd Floor
Delaware, OH 43015 Delaware, OH 43015
For Oral Slaven Guardian ad Litem
O. ROSS LONG CELESTE M. BRAMMER
125 North Sandusky Street 13290 Centerburg Road
Delaware, OH 43015 Sunbury, OH 43074
Delaware County, Case No. 13 CAF 05 0040 2
Farmer, J.
{¶1} On January 19, 2011, appellee, the Delaware County Department of Job
& Family Services, filed a complaint for temporary custody of A.S. born May 24, 2006,
V.S. born May 24, 2006, and Z.S. born April 14, 2009, alleging the children to be
neglected and dependent. Mother of the children is appellant, Kitty Slaven; father is
Oral Slaven. Following a shelter care hearing, the trial court placed the children in
appellee's temporary custody on January 24, 2011. By judgment entry filed April 15,
2011, the trial court adjudicated the children dependent and granted temporary custody
to relatives. The children were eventually returned to appellee's temporary custody in
July 2011 (A.S. and V.S.) and December 2012 (Z.S.).
{¶2} On July 26, 2012 (A.S. and V.S.) and January 16, 2013 (Z.S.), appellee
filed motions for permanent custody of the children based upon the parents' failure to
comply with the case plan. A hearing commenced on March 26, 2013. By judgment
entry filed April 12, 2013, the trial court granted permanent custody of the children to
appellee.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS' (SIC) DISCRETION AND VIOLATED
APPELLANT'S DUE PROCESS RIGHTS WHEN IT DENIED HER REQUEST FOR A
CONTINUANCE OF THE TRIAL ON THE DELAWARE COUNTY DEPARTMENT OF
JOB AND FAMILY SERVICES (HEREINAFTER DCDJFS) MOTION OF PERMANENT
CUSTODY."
Delaware County, Case No. 13 CAF 05 0040 3
II
{¶5} "THE TRIAL COURT ABUSED ITS' (SIC) DISCRETION WHEN IT DID
NOT ADDRESS WHETHER THE DCDJFS HAD MADE REASONABLE EFFORTS TO
RETURN THE CHILDREN SAFELY HOME WITH EITHER PARENT."
III
{¶6} "THE TRIAL COURT ABUSED ITS' (SIC) DISCRETION WHEN IT
DETERMINED THAT THE CHILDREN COULD NOT BE PLACED WITH THEIR
MOTHER WITHIN A REASONABLE PERIOD OF TIME AFTER THE TRIAL ON THE
DCDJFS'S MOTION FOR PERMANENT CUSTODY."
IV
{¶7} "THE TRIAL COURT ABUSED ITS' (SIC) DISCRETION WHEN THE
WHEN (SIC) IT DETERMINED THAT THE CHILD, [Z.] S., DID NOT NEED TO BE IN
THE CUSTODY OF THE DCDJFS FOR 12 OUT OF 22 CONSECUTIVE MONTHS
PRIOR TO THE DCDJFS FILING A MOTION FOR PERMANENT CUSTODY
RELATED TO [Z.] S."
I
{¶8} Appellant claims the trial court erred in denying her motion for a
continuance of the permanent custody hearing. We disagree.
{¶9} The grant or denial of a continuance rests in the trial court's sound
discretion. State v. Unger, 67 Ohio St.2d 65 (1981). 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 (1983).
Delaware County, Case No. 13 CAF 05 0040 4
{¶10} We note appellant's request was not done via a formal written motion, but
was a "me too" argument advanced at the commencement of the hearing in relation to
father's filed motion for a continuance. T. at 7. Father had requested a continuance
based upon the uncertainty of appellant's criminal status. Without stating reasons, the
trial court denied the motion. T. at 10.
{¶11} In July 2010, appellant was sentenced to intervention in lieu of conviction
after pleading guilty to nine counts of deception to obtain a dangerous drug. T. at 45.
Appellant was non-compliant. T. at 48. As a result, appellant was going to be arrested
so she voluntarily relinquished custody of her children to appellee in December of 2010.
T. at 105-106. Michelle Leighty, an intake investigator involved with the family, tried to
convince appellant to go into a community-based correctional facility (hereinafter
"CBCF") for the sake of the children, but appellant rejected the suggestion and opted for
a prison sentence in Marysville instead, away from her children. T. at 113, 116.
Consequently, in January 2011, appellant received a split sentence whereby she
received some prison time and some community control time. T. at 51-52. Appellant
was granted judicial release in June of 2012. T. at 52. However, she violated the terms
of her judicial release and was ordered to successfully complete a CBCF program. T. at
53. Because appellant was unsuccessfully terminated from the CBCF program, a
violation was filed and she was awaiting disposition set for April 24, 2013. T. at 54. We
note father was incarcerated, serving a fifty-eight year prison term.
{¶12} Appellee received temporary custody of the children in January 2011.
Following relative placement, A.S. and V.S. were returned to appellee's temporary
custody in July 2011 and Z.S. was returned in December 2012. The motions for
Delaware County, Case No. 13 CAF 05 0040 5
permanent custody were filed on July 26, 2012 (A.S. and V.S.) and January 16, 2013
(Z.S.). A joint motion for a continuance based on judicial economy was granted on
January 23, 2013. The permanent custody hearing was set for March 7, 2013. On
January 29, 2013, appellee filed a motion for a continuance due to the unavailability of
counsel. The trial court granted the motion and reset the hearing for March 27, 2013.
Appellant was to have had a criminal hearing on March 18, 2013 to address the
aforementioned violation, but it was rescheduled to April 24, 2013. The permanent
custody hearing commenced on March 26, 2013. The continuance requested by
appellant and father based upon the outcome of appellant's criminal hearing would have
had to have been for thirty days at least. Appellant was hoping for no further prison
time so she could work on the case plan.
{¶13} In order to accommodate the parties, the trial court continued the case on
the two occasions, causing the permanent custody motions to be pending at the time of
trial for two hundred and forty-three/sixty-nine days, respectively. As a result of the
rescheduling of appellant's criminal hearing, the trial court at the time of the permanent
custody hearing did not know what appellant's disposition would be.
{¶14} However, under R.C. 2151.414(B)(1)(d), appellant's criminal disposition
would have no effect given the lapse of some twelve months between appellee's
temporary custody of A.S. and V.S. to the filing of their permanent custody motion:
(B)(1) Except as provided in division (B)(2) of this section, the 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
Delaware County, Case No. 13 CAF 05 0040 6
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:
(d) 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, or 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 and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
{¶15} As for Z.S., appellant's own actions and decisions contributed to her
progress on the case plan. The case plan was filed on February 14, 2011. At the time,
appellant was in prison, opting-out of CBCF. Appellant was granted judicial release in
June 2012, but violated the terms and was ordered to CBCF. Appellant was
unsuccessfully discharged from CBCF and was awaiting sentencing. At the time of the
hearing, the case had been open for twenty-six months.
{¶16} Upon review, we find the trial court did not abuse its discretion in denying
appellant's request for a continuance.
{¶17} Assignment of Error I is denied.
Delaware County, Case No. 13 CAF 05 0040 7
II, III
{¶18} Appellant claims the trial court erred in granting permanent custody to
appellee without addressing reasonable efforts. We disagree.
{¶19} A trial court may grant an agency permanent custody of a child upon clear
and convincing evidence of certain factors set forth in R.C. 2151.414. Clear and
convincing evidence is that evidence "which will provide in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161
Ohio St. 469 (1954), paragraph three of the syllabus. See also, In re Adoption of
Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an
issue must be clear and convincing, a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof." Cross, at 477.
{¶20} R.C. 2151.414(B)(1)(d) cited above specifically applies to A.S. and V.S. as
they had been in appellee's custody for some twelve months at the time of the filing of
their motion for permanent custody. Therefore, it is not necessary to find that these
children cannot reasonably be placed with appellant another year forward.
{¶21} As for Z.S., the trial court found the child "cannot be placed with either
parent within a reasonable time" under R.C. 2151.414(B)(1)(a) which states:
(B)(1) Except as provided in division (B)(2) of this section, the 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
Delaware County, Case No. 13 CAF 05 0040 8
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, or 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, 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.
{¶22} The record establishes appellee's efforts at reunifying appellant and all
three children. Ms. Leightly first became involved with the family in October 2010. T. at
100. Ms. Leightly helped appellant with diapers, food, housing issues, and schooling for
the children. T. at 102-104. At the time, appellant was on probation. T. at 101. The
case was closed in the middle of November 2010. T. at 105, 115. Ms. Leighty became
involved with the family again in December of 2010 after appellant called because she
was going to be arrested for violating her probation. T. at 105-106. Ms. Leighty helped
to find relative placement for the children, but was unsuccessful. T. at 106. As a result,
appellant signed a voluntary agreement to surrender the children to appellee with the
Delaware County, Case No. 13 CAF 05 0040 9
knowledge that she could have the children returned within thirty days. Id. Ms. Leighty
tried to convince appellant to go into a CBCF program for the sake of the children, but
appellant rejected the suggestion and opted for a prison sentence instead. T. at 113,
116. She was granted judicial release in June of 2012 and was ordered to successfully
complete CBCF. T. at 52-53. While at CBCF, appellant received counseling and an
assessment, but did not complete the program because she was unsuccessfully
discharged. T. at 53, 144. Because of the discharge, appellant's intensive supervision
officer, Kara Clark, filed a violation. T. at 54. At the time of the permanent custody
hearing, appellant was awaiting sentencing and had over 2000 days left on her original
sentence. T. at 68. Ms. Clark was going to recommend returning appellant to prison to
fully complete the remainder of her prison term as she was not amenable to community
control. T. at 57.
{¶23} Ashley Keller, the family's ongoing caseworker, testified to the following
supportive services offered to the family (T. at 156):
Many referrals for the boys. They're involved with the Delaware
County Board of Disabilities. COMH made referrals. IEP, keeping up with
meetings. We would attend those meetings if our schedules allowed.
Attended meetings at COMH, made our visits to the foster home, signed
off on any type of paperwork that services were needed for the boys,
especially recently with [V.] needing his weighted vest, blanket, his
compression shirts, things like that, made visits to both Kitty and Dennis,
Delaware County, Case No. 13 CAF 05 0040 10
spoke with them about the case, any type of advice or recommendations
for the foster parents, as well.
{¶24} Caseworkers conducted supervised visitations with the children with each
parent while they were in prison. T. at 148-150, 164.
{¶25} As explained by our brethren from the Twelfth District in In re K.M., 12th
Dist. Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 23:
In determining whether the agency made reasonable efforts 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 Hughley (Oct. 26,
2000), Cuyahoga App. No. 77052, citing In re Tirado (Jan. 22, 1998),
Mahoning App. No. 97 CA 26; In re Brewer (Feb. 12, 1996), Belmont App.
No. 94–B–28. "Reasonable efforts" does not mean all available efforts.
Otherwise, there would always be an argument that one more additional
service, no matter how remote, may have made reunification possible. In
re Fast (Mar. 25, 1992), Summit App. No. 15282.
{¶26} Upon review, we find the trial court did not err in granting permanent
custody of the children to appellee on the issue of reasonable efforts.
{¶27} Assignments of Error II and III are denied.
Delaware County, Case No. 13 CAF 05 0040 11
IV
{¶28} Appellant claims it was error to include Z.S. in the permanent custody
hearing when he had not been in appellee's custody for twelve of the last twenty-two
months. We disagree.
{¶29} As we concluded in Assignments of Error II and III, there was ample
evidence in the record to support the award of permanent custody of all three children to
appellee apart from R.C. 2151.414(B)(1)(d) alone. As Z.S. had not been in appellee's
temporary custody for twelve of the last twenty-two months prior to the filing of the
motion for permanent custody, we find R.C. 2151.414(B)(1)(a), cited above, applies.
{¶30} Z.S. was removed from appellant's custody at her request and placed in
appellee's temporary custody from December 2010 to March 2011, and then placed in
relative placement. T. at 80, 105-106. All relative placements failed with Z.S. and the
child was once again placed in appellee's temporary custody in December 2012. T. at
80. Because of her criminal troubles, appellant was not available to complete a case
plan from January 2011, and she was facing at the time of the hearing the possibility of
2000 more days in prison. T. at 47-48, 51-55, 57, 68.
{¶31} Upon review, we find the trial court did not err in including Z.S. in the
permanent custody hearing.
{¶32} Assignment of Error IV is denied.
Delaware County, Case No. 13 CAF 05 0040 12
{¶33} The judgment of the Court of Common Pleas of Delaware County, Ohio,
Juvenile Division, is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. John W. Wise
SGF/sg 8/19
[Cite as In re A.S., 2013-Ohio-4018.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
A.S., V.S., and Z.S. : JUDGMENT ENTRY
:
:
:
: CASE NO. 13 CAF 05 0040
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, Juvenile Division is
affirmed. Costs to appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. John W. Wise