In re S.B. , 2014 Ohio 4839 ( 2014 )

[Cite as In re S.B., 2014-Ohio-4839.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101159 and 101160
IN RE: S.B., et al.
Minor Children
[Appeal By P.B., Father]
JUDGMENT:
AFFIRMED
Civil Appeals from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-12909935 and AD-10921733
BEFORE: Celebrezze, P.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEY FOR APPELLANT
Dale M. Hartman
2195 South Green Road
Cleveland, Ohio 44121
ATTORNEYS FOR APPELLEE C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mark Adelstein
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
8111 Quincy Avenue, Room 450
Cleveland, Ohio 44104
BY: Yvonne C. Billingsley
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115
ATTORNEY FOR MOTHER
Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107
GUARDIAN AD LITEM FOR CHILDREN
Wildon V. Ellison
12020 Lake Avenue
Suite 205
Lakewood, Ohio 44107
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant-father, P.B. (“appellant”), appeals from a juvenile division order that
placed his two children, M.B. and S.B., in the permanent custody of appellee, Cuyahoga County
Department of Children and Family Services (“CCDCFS”). For the reasons that follow, we
affirm.
I. Procedural History
{¶2} Mother, J.C. (“Mother”) married Je.C. in 2006. Their relationship was verbally and
physically abusive. In 2008, mother and Je.C. had a child K.M.J.C. They divorced in February
2013.
{¶3} During the marriage of mother and Je.C., mother began a relationship with
appellant. Mother and appellant have two children together: M.B., born November 19, 2010,
and S.B., born June 12, 2012. Mother and appellant also had a verbally and physically abusive
relationship. At the time of the births of M.B. and S.B., mother was still legally married to
Je.C., but was living with appellant.
{¶4} On August 3, 2010, K.M.J.C. was adjudicated abused and neglected and committed
to the temporary custody of CCDCFS.
{¶5} Following the birth of M.B., CCDCFS filed a complaint on November 22, 2011,
alleging him to be a dependent child and requesting a disposition of temporary custody to the
agency. CCDCFS was awarded predispositional temporary custody the same day.
{¶6} On February 16, 2011, M.B. was committed to the temporary custody of CCDCFS
based on mother’s admission that K.M.J.C. was previously placed in the temporary custody of
the agency, that she had insufficient income to provide for the child, that she continued to endure
domestic violence from Je.C., that appellant had a history of domestic violence, and that she had
been diagnosed with depression and post-traumatic stress disorder.
{¶7} Following the removal of M.B. from his parents, CCDCFS developed a case plan to
facilitate the goal of reunification. Appellant’s court-ordered case plan included mental health
treatment, parenting classes, substance abuse counseling, stable housing, and stable income.
{¶8} On May 16, 2011, CCDCFS filed a motion to modify the order of temporary custody
of K.M.J.C. to an order of permanent custody. On June 17, 2011, CCDCFS filed a motion to
modify the order of temporary custody of M.B. to an order of permanent custody.
{¶9} While CCDCFS’s motions for permanent custody of K.M.J.C. and M.B. were
pending, mother and appellant had S.B. The agency took emergency custody of S.B. at birth
based on allegations that mother and appellant were in an abusive relationship, appellant had
three children from another relationship who were committed to the legal custody of a relative,
and that mother had mental health issues.
{¶10} On June 15, 2012, CCDCFS filed a separate complaint seeking permanent custody
of S.B. On October 9, 2012, at the adjudicatory hearing, appellant stipulated to amended
allegations in the complaint. The trial court found S.B. to be a dependent child and continued the
prior order of temporary custody to CCDCFS.
{¶11} On February 13, 2013, appellant had a court-ordered psychological evaluation
completed by Dr. Steven Neuhaus of the Juvenile Court Diagnostic Clinic. Appellant was
diagnosed with major depression, mood disorder, mild mental deficiencies, and pathological
grief reaction.
{¶12} All three complaints for permanent custody were joined, and the dispositional
hearing commenced on May 17, 2013. At the conclusion of the permanent custody proceedings,
the juvenile court found that, notwithstanding reasonable case planning and diligent efforts by
CCDCFS to assist the parents, mother and appellant failed to remedy the conditions that caused
the children to be removed from the home. By journal entry dated February 27, 2014, K.M.J.C.,
M.B., and S.B. were placed in the permanent custody of the agency.
{¶13} Appellant appeals the decision of the juvenile court granting permanent custody of
his children, M.B. and S.B., to the agency.
II. Law and Analysis
A. Notice Requirements
{¶14} In his first assignment of error, appellant argues that the trial court erred by failing
to follow the mandates of Juv.R. 29 during the October 9, 2012 adjudicatory hearing for S.B.
{¶15} Juv.R. 29 governs adjudicatory hearings before a juvenile court and requires the
court to perform certain duties at the beginning of a hearing. The purpose of Juv.R. 29(B) is to
provide a “checklist” to aid the court in determining whether the parties have been afforded due
process requirements. In re Shepherd, 4th Dist. Highland No. 00CA12, 2001-Ohio-2499. In
addressing the notice requirements of Juv.R. 29, we review the record for substantial compliance.
In re Clark, 141 Ohio App.3d 55, 59, 749 N.E.2d 833 (8th Dist.2001); In re C.S., 115 Ohio
St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177 (stating that most courts of appeals have held that
only substantial compliance with Juv.R. 29 is needed). “The issue is not whether the judge
strictly complied with rote, but whether the parties adequately understood their rights and the
effect of their admissions.” In re Clark at 59.
{¶16} Without addressing the validity of appellant’s notice arguments, we are unable to
reach the merits of appellant’s claims because he did not appeal from the juvenile court’s
adjudicatory order journalized October 22, 2012, finding S.B. to be a dependent child. See In re
M.W., 8th Dist. Cuyahoga No. 91539, 2009-Ohio-121; In re A.N., 181 Ohio App.3d 793,
2009-Ohio-1873, 910 N.E.2d 1110 (8th Dist.).
{¶17} In In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, the Ohio
Supreme Court reaffirmed its holding in In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169(1990), that
[a]n adjudication by a juvenile court that a child is “neglected” or “dependent” as
defined by R.C. Chapter 2151 followed by a disposition awarding temporary
custody to a public children services agency pursuant to R.C. 2151.353(A)(2)
constitutes a “final order” within the meaning of R.C. 2505.02 and is appealable
to the court of appeals pursuant to R.C. 2501.02.
In re H.F. at ¶ 8.
{¶18} The Ohio Supreme Court determined that App.R. 4(B)(5) does not provide an
exception to App.R. 4(A) in this situation because, although adjudication orders constitute “final
orders,” they do not constitute “partial final orders,” and the exception in App.R. 4(B)(5) only
applies to “partial final orders.” Id. at ¶ 12. It reasoned that an adjudication order concludes
“the immediate action between the parties,” and “there is no assurance that a parent would have
an alternate opportunity to appeal an adjudication order.” Id. at ¶ 13-14. It further reasoned
that after a juvenile court adjudicates a child abused, neglected, or dependent, “there are no issues
left pending.” Id. at ¶ 15. It concluded that no issues remain pending even though the juvenile
court retains jurisdiction to eventually enter a final disposition for the child. Id. at ¶ 16.
{¶19} Thus, based on the Ohio Supreme Court’s holding in In re H.F., this court does not
have jurisdiction to address appellant’s first assignment of error because he did not appeal from
the adjudication order within 30 days of its entry pursuant to App.R. 4(A).
{¶20} Appellant’s first assignment of error is overruled.
B. Permanent Custody
{¶21} In his second assignment of error, appellant argues that the trial court’s decision
granting permanent custody of the children to CCDCFS was against the manifest weight of the
evidence.
{¶22} We begin with the recognition 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). This court
has emphasized that the “termination of the rights of a birth parent is an alternative of last
resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. “The purpose of the
termination of parental rights statutes is to facilitate adoption and to make a more stable life for
dependent children.” In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App.
LEXIS 7860, *5 (Aug. 1, 1986).
{¶23} A juvenile court’s termination of parental rights and award of permanent custody to
an agency is not reversed unless the judgment is not supported by clear and convincing evidence.
In re: Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist.1997). 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 Parsons, 9th Dist. Lorain Nos. 97CA006662 and 97CA006663, 1997
Ohio App. LEXIS 5141 (Nov. 12, 1997).
i. R.C. 2151.414
{¶24} R.C. 2151.414 provides guidelines a trial court must follow in deciding a motion
for permanent custody. The statute sets forth a two-prong analysis to be applied by a juvenile
court in adjudicating a motion for permanent custody. R.C. 2151.414(B). First, it authorizes
the juvenile court to grant permanent custody of a child to the public agency if, after a hearing,
the court determines, by clear and convincing evidence, that any of these four factors apply: (a)
the child is not abandoned or orphaned, but the child cannot be placed with either parent within a
reasonable time or should not be placed with the child’s parents; (b) the child is abandoned; (c)
the child is orphaned, and there are no relatives of the child who are able to take permanent
custody; or (d) the child has 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. R.C. 2151.414(B)(1)(a)-(d).
{¶25} In the event that R.C. 2151.414(B)(1)(a) applies, and the child is not abandoned or
orphaned, but the child cannot be placed with either parent within a reasonable time or should
not be placed with the child’s parents, a trial court must consider the factors outlined in R.C.
2151.414(E). In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-4290, ¶ 14.
The presence of only one factor will support the court’s finding that the child cannot be reunified
with the parent within a reasonable time. Id. The relevant factors include the following:
(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. In determining whether the parents have substantially remedied
those conditions, the court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative services and
material resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, mental retardation, physical
disability, 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 pursuant
to division (A) of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code.
(3) The parent committed any abuse as described in section 2151.031 of the
Revised Code against the child, caused the child to suffer any neglect as described
in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect
as described in section 2151.03 of the Revised Code between the date that the
original complaint alleging abuse or neglect was filed and the date of the filing of
the motion for permanent custody.
(4) The parent has demonstrated a lack of commitment toward the child by failing
to regularly support, visit, or communicate with the child when able to do so, or
by other actions showing an unwillingness to provide an adequate permanent
home for the child.
***
(16) Any other factor the court considers relevant.
{¶26} If any of the factors outlined in R.C. 2151.414(B)(1)(a)-(d) exist, the trial court
proceeds to the second part of the analysis: whether, by clear and convincing evidence, it is in the
best interest of the child to grant permanent custody to the agency.
{¶27} R.C. 2151.414(D) requires that in determining the best interest of the child, the
court must consider all relevant factors, including, but not limited to: (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; (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 to the
agency; and (5) whether any factors in R.C. 2151.414(E)(7) through (11) are applicable.
{¶28} “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. This
court has stated that only one of these enumerated factors needs to be resolved in favor of the
award of permanent custody. In re Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App.
LEXIS 3958 (Aug. 31, 2000), citing In re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d
426 (3d Dist.1993).
{¶29} Our review of the record in this case shows that the trial court’s decision to award
permanent custody of the children to the agency was supported by clear and convincing evidence.
{¶30} First, the record fully supports the juvenile court’s initial determination that the
children could not or should not be placed in the custody of either parent pursuant to R.C.
2151.414(B)(1)(a). The record shows that following placement of the children outside the home
and notwithstanding reasonable case planning and diligent efforts by the agency to assist the
parents, the parents failed to remedy the problems and demonstrated a lack of commitment
towards the children by failing to regularly support, visit, or communicate with the children when
able to do so. See R.C. 2151.414(E)(1) and (4).
{¶31} With respect to appellant, CCDCFS social worker Linda Yeldell testified that,
although appellant completed the substance abuse counseling and parenting class portions of his
case plan, he did not benefit from the programs. Yeldell further testified that appellant was
“inconsistent and noncompliant” with the mental health counseling recommendations of
CCDCFS, was inconsistent with his mental health medication, was inconsistent with visitation,
demonstrated continuing anger issues, and demonstrated an unwillingness to provide a stable
home for his children.
{¶32} In turning to the second prong of the permanent custody analysis, we find that there
was clear and convincing evidence to support the trial court’s determination that awarding
permanent custody to CCDCFS was in the best interest of the children.
{¶33} Here, foster care custodian S.S. testified that K.M.J.C., M.B., and S.B. have
developed strong bonds with each other and with S.S. and her family. S.S. testified that she
deeply loves the children and wishes to adopt all three children pending the court’s custody
decision. R.C. 2151.414(D)(1)(a). Furthermore, Wildon Ellison, the guardian ad litem for the
children, recommend permanent custody to the agency based on their strong bond and interaction
with the foster care custodian, the improvement in the children’s quality of life since being
placed with the foster care custodian, and the safe and appropriate residence provided by the
foster care custodian. R.C. 2151.414(D)(1)(b). Finally, as discussed above, legally secure
permanent placement could not be achieved without a grant of permanent custody to the agency
based on the parents’ failure to complete the objectives of their respective case plans. R.C.
2151.414(D)(1)(d).
{¶34} In light of the foregoing, we find that the trial court considered the relevant
statutory factors. We further find that the trial court’s determination that the children could not
or should not be placed with either parent within a reasonable time and that permanent custody
with CCDCFS is in the best interest of the children was supported by clear and convincing
evidence.
{¶35} Appellant’s second assignment of error is overruled.
C. The “Bed Bug Decree”
{¶36} We review appellant’s third and fourth assignments of error out of order for clarity.
In his fourth assignment of error, appellant argues that the trial court’s “bedbug decree” was an
abuse of discretion and was a violation of due process. We disagree.
{¶37} On September 18, 2013, after ten days of trial, the trial court was advised that
“there is some concern that one of the parents has bed bugs and there has been an infestation of
bed bugs that have been reported on the parents.” (10 TP-1467.) In the interest of public
safety, the trial court adjourned proceedings for the day. On September 19, 2013, the trial court
held an attorney conference in which the court determined that it would take a several-week
recess. The court warned the parties that “if the parents have not solved the issue of their bed
bugs, then they would be excused from trial.” When the court reconvened on October 9, 2013,
neither parent could provide documentation assuring the court that the bed bugs were eliminated
from their home or clothing. Over objection, the trial court stated that it would proceed with the
trial on October 24, 2013, without the presence of appellant or mother unless they provided
documentation showing that the public health risk had been remedied. The trial court found that
the need for permanency for the children outweighed the rights of the parents to be present.
Appellant provided the required documentation on October 31, 2013, and was permitted to
participate in the conclusion of trial.
{¶38} In challenging the trial court’s decree, appellant argues that the trial court’s actions
constituted a “dreadful abuse of discretion” and unconstitutionally deprived him of his right to
attend trial. We disagree.
{¶39} It is true that the “permanent termination of parental rights has been described as
“the family law equivalent of the death penalty in a criminal case.” * * * Therefore, parents
“must be afforded every procedural and substantive protection the law allows.” In re Hayes, 79
Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601
N.E.2d 45 (6th Dist.1991). However, permanent custody cases remain civil in nature, and the
statutory and constitutional rights afforded to the accused in a criminal case do not apply to
parental rights cases. Accordingly, appellant had no absolute right to be present at all stages of
the permanent custody trial.
{¶40} Under the circumstances of this case, we find that the trial court did not err in
excluding appellant from trial until the public health hazard was remedied. Here, the trial court
had a substantial interest in protecting those involved in the proceedings, including court
personnel, from the perceived health hazard. Moreover, the court had an interest in resolving
this matter and placing the children in a permanent home as soon as efficiently possible. We
agree with the trial court’s statements that the children’s “need for permanency” outweighed
appellant’s right to be present at trial proceedings, particularly where appellant’s inability to be
present derived from his own actions and subsequent inactions.
{¶41} Appellant’s fourth assignment of error is overruled.
D. Motions for Continuance
{¶42} In his third assignment of error, appellant argues that the trial court abused its
discretion by denying his motions for continuance.
{¶43} The decision to grant or deny a motion for continuance is left to the broad and
sound discretion of the trial judge, and an appellate court may not disturb the trial court’s ruling
absent an abuse of discretion. Cleveland v. Washington, 8th Dist. Cuyahoga Nos. 97945 and
97946, 2013-Ohio-367, ¶ 11, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981).
{¶44} A reviewing court determines on a case-by-case basis whether the trial court’s
denial of a continuance motion was so arbitrary as to deprive the defendant of due process,
paying particular attention to the reasons presented to the trial judge at the time the request was
denied. Unger at 67. In determining whether the trial court abused its discretion, an appellate
court “weighs * * * any potential prejudice to a defendant [against] concerns such as a court’s
right to control its own docket and the public’s interest in the prompt and efficient dispatch of
justice.” Id.{¶45} In the case at hand, appellant challenges the trial court’s denial of counsel’s
repeated motions for continuance while appellant was absent from trial proceedings pending
resolution of the bed bug issue and the trial court’s denial of a motion for continuance made on
September 16, 2013. After reviewing the relevant portions of the trial transcript, we find that
the trial court’s decisions to deny the motions for continuance were reasonable under the
circumstances.
{¶46} Regarding the September 16, 2013 motion for continuance, the record reflects that
appellant’s counsel requested a continuance because appellant had a seizure early that morning
and was unable to appear. Counsel expressed that appellant was concerned that he would suffer
another seizure if he was not able to rest. In denying counsel’s motion, the trial court attempted
to avoid any prejudice caused by appellant’s inability to be present at the September 16, 2013
proceeding by informing counsel that “if there’s issues that you think your client should be here
for, any witness, you may recall them on your own when he is back.” Thus, the trial court took
reasonable steps to ensure that trial could proceed without prejudicing appellant. We find no
abuse of discretion.
{¶47} With respect to the motions for continuance made while appellant was absent from
trial due to the bed bug infestation, we have already held that the trial court acted in the best
interest of the children by resolving the issue of permanency in the most efficient period of time
possible. Appellant was graciously given approximately five weeks to remedy the bed bug issue
and failed to do so. Because appellant was represented by competent counsel throughout the
proceedings, we find that he suffered no prejudice and that the trial court acted within its
discretion in denying appellant’s repeated motions for continuance.
{¶48} Appellant’s third assignment of error is overruled.
E. Mistrial and Recusal
{¶49} In his fifth assignment of error, appellant argues that the trial court erred in failing
to recuse itself and in failing to declare a mistrial. Appellant concedes that he is unable to point
to one specific action that created an inference of impropriety requiring the trial court to recuse
itself and declare a mistrial. Instead, appellant urges this court to read the trial transcript in its
entirety and find that the totality of the court’s actions demonstrates that the trial was “so unfair
as to be a mistrial.” Having reviewed the record, we are unable to conclude that the trial court
committed reversible error by failing to recuse itself and declare a mistrial. Given the
complexity of the relationships and the number of children involved, we find that the trial court’s
case management was reasonable under the circumstances.
{¶50} Appellant’s fifth assignment of error is overruled.
{¶51} 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 be sent to the juvenile court 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR