[Cite as In re P.S., 2020-Ohio-3082.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY



IN RE:
                                                             CASE NO. 13-19-42
        P.S.,

DEPENDENT AND NEGLECTED CHILD.
                                                             OPINION
[HEATHER SHUFF - APPELLANT]


IN RE:
                                                             CASE NO. 13-19-43
        L.S.,

DEPENDENT AND NEGLECTED CHILD.
                                                             OPINION
[HEATHER SHUFF - APPELLANT]


                 Appeals from Seneca County Common Pleas Court
                                Juvenile Division
                     Trial Court Nos. 21850070 and 21850071

                                        Judgments Reversed

                               Date of Decision: May 26, 2020



APPEARANCES:

        Jennifer L. Kahler for Appellant

        Rebecca J. Schreiner for Appellee
Case Nos. 13-19-42 and 13-19-43


WILLAMOWSKI, J.

           {¶1} Respondent-appellant Heather Shuff (“Heather”) brings this appeal

from the judgments of the Court of Common Pleas of Seneca County granting legal

custody of her children to an unrelated third party. On appeal, Heather claims that

the trial court erred in denying her motion for a continuance and that the judgments

were not supported by the evidence. For the reasons set forth below, the judgments

are reversed.

           {¶2} On October 26, 2018, the Seneca County Department of Job and Family

Services (“the Agency”) filed complaints alleging that the children of Heather, L.S.

(born in 2014) and P.S. (born in 2016), were neglected and dependent children.

ADoc. And BDoc. 1.1 The attached affidavits alleged that in July 2018, the Agency

was notified that Heather had overdosed while the children were present and as a

result a voluntary case was opened in September. Id. Throughout the case, Heather

had tested positive for marijuana and the test immediately preceding the complaint

showed the Heather was also taking oxycodone. Id. Although Heather had been

referred for mental health and chemical dependency treatment, she had failed to

follow through with the recommendations. Id. Heather had told others that if the

Agency became involved, she would take the children and leave the state. Id. The

Agency requested that the children be removed from the home and placed in the



1
    L.S.’s case docket is being identified as ADoc. P.S.’s case docket is being identified as BDoc.

                                                      -2-
Case Nos. 13-19-42 and 13-19-43


temporary custody of their babysitters, Stacie Helton and Matthew Helton (“the

Heltons”) under the protective supervision of the Agency. Id. The Agency also

made a motion for ex parte temporary custody orders. ADoc. and BDoc. 2. The

trial court granted the motion and placed the children in the temporary custody of

the Heltons under the protective supervision of the Agency. ADoc. and Bdoc. 3.

       {¶3} On November 2, 2018, the trial court approved a case plan filed by the

Agency. ADoc. and BDoc. 13. An adjudication was set for January 28, 2019.

ADoc. 19 and BDoc. 18. On January 30, 2019, the magistrate entered a decision

adjudicating the children as neglected and dependent. ADoc. 23 and BDoc. 22. The

magistrate noted that Heather did not appear at the hearing. Id

       {¶4} On February 25, 2019, a dispositional hearing was held. ADoc. 27 and

BDoc. 26. The magistrate again noted that Heather did not appear. Id. The

magistrate continued the temporary custody of the children with the Heltons under

the protective supervision of the Agency. Id. The magistrate also gave notice on

that day that a hearing would be held on May 28, 2019 at 1:30 p.m. “for the purposes

of review and hearing on all pending motions.” ADoc. 26 and BDoc. 25. No

motions were pending at that time.

      {¶5} On April 5, 2019, the Agency filed a motion to terminate protective

supervision of the children and award legal custody of the children to the Heltons

pursuant to R.C. 2151.353. ADoc. 29 and BDoc. 28. The Agency then filed notice

of a semi-annual review on April 12, 2019. ADoc. 31 and BDoc. 30. In the review,

                                        -3-
Case Nos. 13-19-42 and 13-19-43


it was noted that Heather had stopped going to her counseling sessions and had

broken off contact with the Agency for a couple of months. Id. Heather had only

resumed working the plan in March. Id. Heather had also lost her housing and was

staying with her parents. Id. The review concluded that Heather had made

insufficient progress on the case plan. Id.

       {¶6} On April 24, 2019, Brenda Shuff and Terry Shuff (“the Shuffs”) filed

motions for custody of the children. ADoc. and BDoc. 33. The Shuffs are the

maternal grandparents of the children. ADoc. and BDoc. 31. The magistrate

ordered that the Shuffs’ motions would be heard at the same times as the motions

of the Agency. ADoc. 37 and BDoc. 36. The hearing was set for May 28, 2019.

Id. Specifically, the magistrate noted that “unless a request to bifurcate the pending

Motions is presented, the Court intends to hear all Motions for Legal Custody

collectively and will marshal the evidence applicable to each motion.” Id. On the

morning of the hearing, counsel for the Shuffs filed a motion for a continuance on

the basis that his wife was in the hospital to give birth to their son and he would be

unavailable for the hearing. ADoc. 43 and BDoc. 42. The motion noted that all

counsel agreed to the continuance. Id. The magistrate granted the Shuffs’ motion

but ordered that the “review hearing” would proceed. ADoc. 44 and BDoc. 43. On

that same day, counsel for Heather filed a motion in support of the Shuffs’ motion

for legal custody. ADoc. 45 and BDoc. 44.



                                         -4-
Case Nos. 13-19-42 and 13-19-43


      {¶7} For whatever reason, the hearing on the Agency’s motion to grant legal

custody to the Heltons continued as scheduled. Heather was not present as she had

voluntarily admitted herself to the hospital for mental health reasons. Tr. 4-5.

Heather’s counsel then requested a continuance on that basis. Tr. 5. The Agency

opposed the continuance and the trial court denied the motion. Id. Following the

testimony and closing arguments of counsel, the magistrate granted the Agency’s

motion to grant legal custody of the children to the Heltons. ADoc. 46 and BDoc.

45. On June 11, 2019, Heather filed her objections to the magistrate’s decision.

ADoc. 50 and BDoc. 49. The trial court overruled the objections on September 24,

2019. ADoc. 65 and BDoc. 63. Heather filed timely notices of appeal and on

appeal raises the following assignments of error.

                           First Assignment of Error

      [Heather] was denied due process by the Court’s denial of her
      motion for continuance of hearing on legal custody.

                          Second Assignment of Error

      The trial court’s decision to place the children in the legal custody
      of the temporary custodians was against the manifest weight of
      evidence.

                             Motion for Continuance

      {¶8} The first assignment of error claims that the trial court erred by denying

Heather’s motion for a continuance. “A decision by the trial court to deny a motion

for continuance is within the sound discretion of the trial court and should not be


                                        -5-
Case Nos. 13-19-42 and 13-19-43


reversed absent a showing of abuse of that discretion.” In re Miller, 3d Dist.

Auglaize No. 2-04-02, 2004-Ohio-3023, ⁋ 7. “In evaluating the trial court's decision

an appellate court should only reverse that decision if it determines that the decision

was ‘not justified by, and clearly against, reason and the evidence; * * * such action

must plainly appear to effect an injustice to the appellant.’ ” In re Keckler, 3d Dist.

Logan No. 8-08-08, 2008-Ohio-4642, ⁋ 11 (quoting Henson v. Highland Dist.

Hosp., 143 Ohio App.3d 699, 704, 758 N.E.2d 1166 (4th Dist. 2001)).

       In evaluating the discretion of a lower court, a reviewing court
       must be circumspect. The fact that the reviewing court might
       reach a different conclusion than did the lower court does not
       establish abuse of discretion. See Cox v. Fisher Fazio Foods,
       Inc. (1984), 13 Ohio App.3d 336, 13 OBR 414, 469 N.E.2d 1055.
       Rather, the reviewing court must demonstrate that the lower
       court's exercise of discretion was “not justified by, and clearly
       against, reason and the evidence; * * * such action must plainly
       appear to effect an injustice to the appellant.” Sinclair v.
       Sinclair (1954), 98 Ohio App. 308, 57 O.O. 347, 129 N.E.2d 311.

Henson, supra at 704.

       {¶9} Here, Heather claims that the trial court abused its discretion by denying

her motion for a continuance as she was voluntarily committing herself to the

hospital for treatment the day of the hearing. On appeal Heather argues that she was

prejudiced by the trial court’s decision for two reasons. First, the trial court’s

continuance of the Shuffs’ motion for legal custody stated that the case review

would go forward, not that the Agency’s motion for legal custody to the Heltons

would go forward, thus denying her due process. The second reason was that by


                                         -6-
Case Nos. 13-19-42 and 13-19-43


ruling on the Agency’s motion without considering the Shuffs’ motion at the same

time, the trial court increased the burden of proof that the Shuffs would have to meet

to obtain legal custody as they would now have to show that in addition to Heather

being unsuitable, the Heltons were unsuitable as well. If the two motions had been

heard together, the Shuffs would have only been required to show that placing the

children in their legal custody was in the best interests of the children.

       {¶10} The first argument is that the trial court failed to give notice that the

Agency’s motion to grant legal custody to the Heltons would still be heard on May

28, even after the Shuffs motion was continued, thus denying Heather due process.

The Due Process Clause of the Fifth Amendment to the United States Constitution

provides that “[n]o person shall * * * be deprived of life, liberty, or property, without

due process of law.” “[P]arents' interest in the care, custody, and control of their

children ‘is perhaps the oldest of the fundamental liberty interests recognized by this

Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19,

quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49

(2000). The State may not deprive a parent of her parental rights without due

process of law. In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 16, 866 N.E.2d

467. This right to due process does not disappear merely because the parent has lost

temporary custody of their child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982). Due process requires both notice and an opportunity

be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 12, 875 N.E.2d

                                          -7-
Case Nos. 13-19-42 and 13-19-43


852. Thus, when the State seeks to interfere with a parent’s liberty interest in the

custody of his or her child, the State must attempt to provide actual notice to the

parents. Id. at ¶ 14.

       {¶11} A review of the record shows that by notice dated February 25, 2019,

the parties were notified that a hearing “for purposes of review and hearing on all

pending motions” would be held on May 28, 2019. ADoc. 26 and BDoc. 25. At

the time of the notice, there were no actual pending motions. On April 5, the Agency

filed its motion to award legal custody to the Heltons. ADoc. 29 and BDoc. 28. The

record does not show that a separate notice regarding the hearing was sent at that

time. The first time the trial court specifically told the parties that the Agency’s

motion would be heard on May 28 was in the April 25, 2019 order where the trial

court told the parties that “unless a request to bifurcate the pending motions is

presented, the Court intends to hear all Motions for Legal Custody collectively and

will marshal the evidence applicable to each motion.” ADoc. 37 and BDoc. 36. A

specific notice of the hearing regarding the Shuffs’ motion was sent to the parties,

but no such notice regarding the Agency’s motion to grant legal custody to the

Heltons was sent. ADoc. 38 and BDoc. 37. The Shuffs’ motion for continuance

was filed the morning of the hearing date. There is no question that it was filed for

good cause and the trial court correctly granted it. In granting the motion, the

magistrate’s specific order stated that “[a]s [the Shuffs] are not parties to the

dependency action, the Review Hearing on May 28, 2019 at 1:30 p.m. shall

                                         -8-
Case Nos. 13-19-42 and 13-19-43


proceed.” ADoc. 44 and BDoc. 43. No mention was made in the order that the

Agency’s motion for legal custody would also be proceeding, yet the hearing on

both the motion and the case review went forward that same day.

       {¶12} Heather claims that the trial court erred by proceeding with the hearing

since it never gave notice that the Agency’s motion to grant legal custody to the

Heltons would be heard that day. The record shows that no actual notice was given

that the Agency’s motion would be heard on that day was given. The only notice

regarding the Agency’s motion was the order regarding the Shuffs’ motion which

indicated that both motions would be heard together absent a motion to bifurcate.

No motion to bifurcate was filed. Additionally, the order of the magistrate granting

the continuance did not indicate that the Agency’s motion would proceed, only that

the case review would be heard that day.          Counsel for Heather objected to

proceeding with the hearing on the Agency’s motion and requested a continuance

due to Heather’s absence. Given the language of the continuance, this court cannot

say that Heather knew or should have known that the trial court would proceed with

the Agency’s motion after its prior order saying the motions would be heard

together. If Heather had known that the hearing would determine the legal custody

of her children rather than being a mere case review, she might have delayed

admitting herself to the hospital for mental health treatment until after the hearing.

Without the proper notice of the hearing, Heather was denied due process.

Therefore, the first assignment of error is sustained.

                                         -9-
Case Nos. 13-19-42 and 13-19-43


       {¶13} Since there was lack of notice regarding the hearing, the remaining

arguments and assignment of error become moot. This Court will thus not address

them at this time. App.R. 12(A)(1)(c).

       {¶14} Having found prejudicial error in the particulars assigned and argued,

the judgments of the Court of Common Pleas of Seneca County, Juvenile Division,

are reversed and the matter is remanded for further proceedings.

                                                             Judgments Reversed
                                                           And Causes Remanded

SHAW P.J. and ZIMMERMAN J., concur.

/hls




                                         -10-
