[Cite as In re A.S., 2013-Ohio-4019.]


                                        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 0041
                                             :
                                             :       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 Oral Slaven                                      For DCDJFS

O. ROSS LONG                                         KATHERYN L. MUNGER
125 North Sandusky Street                            140 North Sandusky St., 3rd Floor
Delaware, OH 43015                                   Delaware, OH 43015

For Kitty Slaven                                     Guardian ad Litem

PAMELLA A. LAMMON                                    CELESTE M. BRAMMER
103 North Union Street, Suite D                      13290 Centerburg Road
Delaware, OH 43015                                   Sunbury, OH 43074
Delaware County, Case No. 13 CAF 05 0041                                              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. Father of the children is appellant, Oral Slaven; mother is

Kitty 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 DISCRETION AND VIOLATED

APPELLANT'S DUE PROCESS RIGHTS WHEN IT DENIED HIS 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 0041                               3


                                      II

      {¶5}   "THE TRIAL COURT ABUSED ITS 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   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   DISCRETION   WHEN   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."

                                      V

      {¶8}   "THE APPELLANT FATHER WAS NOT AFFORDED A FAIR AND

IMPARTIAL TRIAL DUE TO THE OBVIOUS BIAS AND PREJUDICE OF THE

GUARDIAN AD LITEM."

                                      VI

      {¶9}   "THE TRIAL COURT IMPROPERLY CONSIDERED THE TESTIMONY

AND REPORT OF THE GUARDIAN AD LITEM BECAUSE THE GUARDIAN AD LITEM

FAILED TO FOLLOW THE REQUIREMENTS OF SUPERINTENDENCE RULE 48 OF

THE OHIO RULES OF SUPERINTENDENCE."
Delaware County, Case No. 13 CAF 05 0041                                              4


                                              I

      {¶10} Appellant claims the trial court erred in denying his motion for a

continuance of the permanent custody hearing. We disagree.

      {¶11} We note appellant was the only party to file a written motion for a

continuance, filed on March 25, 2013. At the commencement of the trial, mother orally

joined in on the motion. T. at 7. Without stating reasons, the trial court denied the

motion. T. at 10.

      {¶12} Appellant argues his continuance request should have been granted

because mother's criminal disposition was unknown at the time of the hearing and her

status as to incarceration reflected on the outcome of the case. Appellant also argues

his criminal conviction was being appealed.

      {¶13} Appellant is currently serving a prison term of fifty-eight years for six

counts of rape and three counts of gross sexual imposition involving an older step-

sibling of the children. Appellant was sentenced on July 30, 2012.

      {¶14} Based upon our reasoning in mother's appeal, Case No. 13 CAF 05 0040,

which is hereby incorporated by reference, we find the trial court did not abuse its

discretion in denying appellant's motion for a continuance.

      {¶15} Assignment of Error I is denied.

                                        II, III, IV

      {¶16} Appellant incorporated by reference the arguments raised on behalf of

mother in Case No. 13 CAF 04 0040.                We hereby incorporate by reference our

reasoning and decision therein, and note because of appellant's fifty-eight year term of

incarceration, the use of any reasonable efforts to involve him in the case plan would
Delaware County, Case No. 13 CAF 05 0041                                                 5


have been futile.    The overwhelming evidence clearly mitigated against appellant's

involvement in the rearing of his children as he was found guilty of sexually abusing the

children's step-sibling in his care. R.C. 2151.414(E)(5), (7)(d), and (12).

       {¶17} Assignments of Error II, III, and IV are denied.

                                           V, VI

       {¶18} Appellant claims he was not afforded a fair hearing because of the

guardian ad litem's bias and prejudice and the guardian's failure to follow the mandates

of Sup.R. 48. We disagree.

       {¶19} The guardian ad litem was permitted to testify as to her interaction with the

family in a 2008 case which was closed in 2010, "if there are matters persisting [in the

current case] that she relates back to the prior case." T. at 179-180. The guardian

offered that if appellant's appeal of his criminal convictions was granted, he would have

to be involved in a case plan. T. at 186. However, it was the guardian's opinion that

appellant "could be a risk to the children." Id. The guardian has had interaction with the

children and opined that at this point, they need stability and consistency. T. at 189.

They need to "be given that opportunity to live a normal childhood without being

concerned about what-ifs." T. at 190.

       {¶20} Appellant's counsel cross-examined the guardian on her "dislike" of

appellant (T. at 193):



              Q. Isn't it a fact that you just really dislike Mr. Slaven and that your

       report is based upon your extreme dislike of Mr. Slaven and that's why you
Delaware County, Case No. 13 CAF 05 0041                                                 6


       didn't bother to go out and talk to the parent, the father, the natural father

       of these children?

              A. I don't like or dislike him. That's not the point. And, in fact, you

       said that I had a responsibility to the father. I disagree. My responsibility

       is to the children.



       {¶21} Sup.R. 48 covers the various responsibilities of a guardian ad litem,

including meeting and visiting with the parents.        The guardian did not interview

appellant, but testified to brief discussions with appellant and his first attorney in the

courtroom, and appellant's lengthy incarceration. T. at 190-195. The guardian testified

a full in-depth interview was not practical given the length of appellant's term of

incarceration. T. at 191, 193.

       {¶22} From the trial court's April 12, 2013 judgment entry, it is clear although the

trial court acknowledged the guardian's report, the decision was not based upon the

lack of a case plan or interview of appellant:



              9. Although Dennis Oral Slaven and Kitty Slaven have both

       expressed desire to regain custody of their children, the underlying

       concerns that caused the children to be placed outside of the parent's

       home remain.

              Dennis Oral Slaven was found guilty of six (6) counts of rape and

       three (3) counts of gross sexual imposition of an older sibling of the

       children. Mr. Salven (sic) was sentenced on July 30, 2012 to fifty-eight
Delaware County, Case No. 13 CAF 05 0041                                           7


      (58) years in prison. The Court is aware of Mr. Slaven's pending appeal of

      his conviction and sentence. However, the Court cannot make decisions

      in the best interest of the children based on what might happen in Mr.

      Slaven's appeal. The Court finds that the children cannot be placed with

      their father within one (1) year.



      {¶23} Upon review, we find appellant was afforded a fair hearing.

      {¶24} Assignments of Error V and VI are denied.

      {¶25} 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-4019.]


                  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 0041




        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
