[Cite as In re K.M., 2017-Ohio-8286.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


IN THE MATTER OF:                              :      OPINION

K.M., DEPENDENT CHILD                          :
                                                      CASE NO. 2017-T-0059




Appeal from the Trumbull County Court of Common Pleas, Juvenile Division, Case No.
2015 CH 00060.

Judgment: Affirmed.


Judith M. Kowalski, 333 Babbitt Road, Suite #323, Euclid, OH 44123 (For Appellant).

Susan Porter Collins, Trumbull County Children Services Board, 2282 Reeves Road,
N.E., Warren, OH 44483 (For Appellee).

Sherman Miles, P.O. Box 606, Campbell, OH 44406 (Guardian ad litem).



THOMAS R. WRIGHT, J.


        {¶1}    Appellant, Catherine Houston, appeals the juvenile court’s judgment

terminating her parental rights to her biological son, K.M. She challenges the manifest

weight of the evidence; contests the denial of her motion to continue the final hearing;

and argues the motion for permanent custody was premature. We affirm.

        {¶2}    K.M. was born July 19, 2006. At some point during early childhood, his
biological father died in an automobile accident. Until September 2013, K.M. lived with

appellant and other relatives in Pennsylvania.     Before September 2013, appellant

developed a drug habit and was convicted of multiple criminal offenses, including

prostitution and burglary. She was ultimately sentenced to prison.

      {¶3}   Appellant, therefore, arranged for her friend, Tammie Hobart to take

custody of K.M. and raise him at her Trumbull County, Ohio home. This arrangement

was approved by a Pennsylvania state court.

      {¶4}   K.M. lived with Hobart until November 2015 when she voluntarily

relinquished custody to appellee, the Trumbull County Children’s Services Board,

because she could no longer control him. K.M. was prone to angry outbursts and was

physically threatening to others. One month later, the trial court deemed K.M. to be a

dependent child and placed him in appellee’s temporary custody.

      {¶5}   K.M. was diagnosed with disruptive mood dysregulation and placed into a

secured care unit where he received daily counseling for over ten months. It was soon

discovered that both appellant and Hobart were anger triggers, since he could not

understand why neither wanted to care for him. At the beginning of treatment, K.M.

could not function in a family setting and was having difficulty in school. However, as

his treatment progressed, his outbursts decreased and, ultimately, he began visiting a

foster family on weekends.

      {¶6}   During this time frame, appellant was moved from state prison to a half-

way house near Pittsburgh. The half-way house provided appellee with programs to

help reunite her with K.M. once her prison term was concluded. To this end, appellee’s

caseworker developed a three-point plan requiring appellant to: (1) complete a drug




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treatment program; (2) take parenting classes; and (3) establish regular communication

with K.M.

       {¶7}   During the first six months of 2016, appellant made some progress on all

three objectives. She interacted with K.M. over the phone and visually via the internet.

In July 2016, they met and had a supervised visit on K.M.’s tenth birthday. Although

appellant gave K.M. multiple gifts, she did not spend much time with him. Instead, she

talked mostly with a friend who attended the party, while K.M. played with another child.

K.M.’s counselor concluded, therefore, that appellant’s relationship with K.M. remained

shallow.

       {¶8}   Approximately ten days after the birthday visit, appellant escaped from the

half-way house and remained a fugitive from the authorities for over two months. Twice

during this period, she telephoned K.M. at the secured care unit, but was precluded

from speaking with him until she talked with the caseworker.             New charges of

prostitution and providing false identification to a police officer were brought against her

when she was apprehended in October 2016.              Moreover, after returning to the

Pennsylvania correctional system, she admitted she had again taken illegal drugs.

       {¶9}   When K.M. was informed of appellant’s actions, he initially thought his

caseworker and counselor were misleading him as to her whereabouts, leading to

outbursts.    When told that appellant had been apprehended, K.M. informed his

counselor that although he still wanted to see his mother periodically, he no longer

wished to be reunited as a family because he did not want to be disappointed again.

K.M. later repeated these sentiments to a court magistrate during an in-camera

interview.




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       {¶10} While appellant was a fugitive, appellee moved the trial court for

permanent custody of K.M., asserting that appellant showed a lack of commitment by

escaping.

       {¶11} The evidentiary hearing on the permanent custody motion was initially set

before a court magistrate on November 1, 2016. Five days before hearing, appellant

faxed a letter to the trial court requesting a continuance. The magistrate granted her

motion, rescheduled the hearing for December 7, 2016, and appointed an attorney to

represent her.     Appellant was given a court telephone number to call on the

rescheduled date to participate.

       {¶12} The trial court never received a telephone call from appellant on the date

of the hearing. After waiting approximately thirty-five minutes for her call, the magistrate

began the hearing. Appellant’s counsel immediately moved to continue the hearing, but

provided no explanation for appellant’s failure to call. Upon considering arguments from

appellee and the guardian ad litem as to the need for permanency and stability in K.M’s

life, the magistrate denied the continuance and went forward with the hearing.

       {¶13} Appellee presented the testimony of the caseworker who formulated

appellant’s case plan, the residential coordinator of the secured care unit, and K.M.’s

counselor. Appellant’s counsel introduced two letters from correctional employees who

had worked with appellant at the half-way house and at the facility where she was taken

following her re-apprehension. Counsel also stated that if appellant had called in as

planned, she would have asked appellant questions about the two letters.

       {¶14} In recommending that the motion for permanent custody be granted, the

magistrate first concluded that K.M. should not be placed with appellant.              The




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magistrate found that by escaping from the half-way house, appellant failed to follow

through and satisfy her case plan objectives. Second, the magistrate held that the

termination of appellant’s parental rights is in K.M.’s best interests, citing the quality of

his relationship with his foster family, his wish to be adopted, and his need for

immediate permanent placement.

       {¶15} Following the issuance of the magistrate’s decision, appellant faxed a

letter to the trial court, stating that she wanted to “appeal” the decision and that she had

been unable to contact her trial counsel. The trial court appointed new counsel to

represent her, who objected to the magistrate’s failure to continue the hearing based on

appellant’s inability to call in and participate.

       {¶16} Without specifically addressing appellant’s continuance argument, the trial

court overruled the objections and adopted the magistrate’s factual findings and legal

conclusions. The court terminated appellant’s parental rights and granted permanent

custody to appellee.

       {¶17} Appellant asserts three assignments of error for review:

       {¶18} “[1.] The juvenile court erred to the prejudice of the appellant by overruling

her objections to the magistrate’s decision denying her motion for continuance, and

going forward with the trial even though she was not able to participate, thus depriving

her of her right to due process.

       {¶19} “[2.] The Trumbull County Children’s Services Board failed to meet the

requirements of Ohio Revised Code Section 2151.414(B)(1)(d), in that the request for

permanent custody was untimely, and the trial court erred to the prejudice of the mother

by granting permanent custody, as the statutory time requirements were not met.




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       {¶20} “[3.] The decision to award permanent custody was against the manifest

weight of the evidence.”

       {¶21} Under her first assignment, appellant maintains that the magistrate

abused his discretion in denying her a second continuance when she failed to call the

court to participate in the hearing. She argues that given the serious nature of the

hearing, the magistrate was obligated to contact the facility where she was being held

and determine why she did not call.

       {¶22} Upon recognizing that the termination of parental rights is the family law

equivalent to the death penalty, “[t]his court has stated that a parent is entitled to

‘fundamentally fair procedures in accordance with the due process provisions under the

Fourth Amendment to the United States Constitution and Section 16, Article I of the

Ohio Constitution.’ In re Sheffey, 167 Ohio App.3d 141, 2006-Ohio-619, at ¶21.” In re

M.J., 11th Dist. Ashtabula No. 2011-A-0007, 2011-Ohio-2714, ¶26.

       {¶23} A civil litigant does not have an absolute right to be present during trial. In

re N.T., 11th Dist. Ashtabula No. 2010-A-0053, 2011-Ohio-650, ¶83.             Whether an

incarcerated parent is permitted to attend the permanent custody hearing lies within the

trial court’s sound discretion. Id. at ¶84.

       {¶24} Appellant does not contend that she was entitled to physically attend the

hearing. Instead, the issue is whether a continuance should have been granted to

afford appellant another opportunity to participate by phone.

       {¶25} “Juv.R. 23 states that: ‘[c]ontinuances shall be granted only when

imperative to secure fair treatment for the parties.’ An appellate court will not reverse a

trial court’s decision denying a motion for continuance unless the trial court abuses its




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discretion. In re Kangas, 11th Dist. No. 2006-A-0010, 2006-Ohio-3433, at ¶24. * * *.

        {¶26} “In considering whether a trial court abused its discretion in denying a

motion for continuance, a reviewing court considers the length of the requested delay,

prior continuances requested and received, the presence or absence of legitimate

reasons for the requested delay, appellant’s participation or contribution to the

circumstances giving rise to the request for a continuance, and any other relevant

factors. State v. Unger (1981), 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078. While these

factors provide basic guidance, we are mindful that ‘“[t]here are no mechanical tests for

deciding when the denial of a continuance is so arbitrary as to violate due process. The

answer must be found in the circumstances present in every case, particularly in the

reasons presented to the trial court at the time the request is denied.”’ Unger, supra, at

67, 423 N.E.2d 1078, quoting Ungar v. Sarafite, (1964), 376 U.S. 575, 589, 84 S.Ct.

841, 11 L.Ed.2d 921.” In re B.D., 11th Dist. Lake No. 2009-L-003, 2009-Ohio-2299,

¶48-49.

        {¶27} Appellant asserts the magistrate should have taken steps, such as

telephoning the Pennsylvania facility, to determine why she did not call at the beginning

of the hearing. However, appellant’s trial counsel requested a continuance, and it was

counsel’s responsibility to state adequate reasons for the relief. Trial counsel did not

provide any reason for appellant’s failure to call. Appellant provided a reason in her

objections to the magistrate’s decision, but she does not raise that reason as a basis for

reversal. The court was not obligated to contact the jail to determine why appellant

failed to call.

        {¶28} In requesting a new trial, appellant’s counsel suggested that the hearing




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be continued until after January 21, 2017, approximately forty-five days later.

Accordingly to counsel, that was the date that appellant thought she might be released

from the Pennsylvania facility. However, given that appellee challenged whether her

release from prison was imminent and the motion for permanent custody had already

been pending for more than eighty days, the requested delay was lengthy.

       {¶29} In addition, at the close of evidence, appellant’s counsel stated that if

appellant had participated, she had intended to ask appellant questions about the two

letters from the Pennsylvania correctional employees. Those letters were accepted into

evidence; thus, appellant’s proposed testimony would have been supplemental. More

importantly, counsel did not proffer the substance of appellant’s proposed testimony.

To this extent, she has failed to demonstrate prejudice.

       {¶30} As appellant has failed to demonstrate an abuse of discretion or prejudice,

her first assignment lacks merit.

       {¶31} Under her next assignment, appellant argues the magistrate and trial court

erred in holding that appellee’s evidence was sufficient to satisfy the requirement set

forth in R.C. 2151.414(B)(1)(d). She maintains this requirement could not be relied

upon because there is no dispute that appellee did not have custody of K.M. for 12 or

more months of a consecutive 22-month period. Building upon this, she also maintains

that appellee’s motion for permanent custody was premature because appellee had

temporary custody of K.M. for only 9 months before seeking permanent custody.

       {¶32} As will be discussed under the third assignment, before a public services

agency can take permanent custody of a minor child, it must establish, among other

things, that one of five circumstances exist. R.C. 2151.414(B)(1). Appellant asserts




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that termination of her parental rights was predicated upon a finding that K.M. was in the

temporary custody of one or more public children services agencies or private child

placement for 12 or more months of a consecutive 22-month period.                       R.C.

2151.414(B)(1)(d). However, she has misread the magistrate’s and the trial court’s

decisions. In his decision, the magistrate found under R.C. 2151.414(B)(1)(a) that “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.” It did not find that appellee had custody

of K.M. for 12 or more months of a consecutive 22-month period.

         {¶33} R.C. 2151.414(B)(1)(a) does not have any time qualification. As a result,

appellee was not required to have temporary custody of K.M. for a particular period of

time prior to moving for permanent custody.

         {¶34} As part of its separate “best interest” analysis, the magistrate found that as

of the date of the evidentiary hearing, appellee had temporary custody of K.M. for nearly

12 months. The magistrate also found that appellant had not provided any care for K.M.

for more than 22 months. Appellant has not challenged this finding as it pertains to

“best interest” analysis. Given that the child’s custodial history can be considered in

deciding the child’s best interest, we find no error in the magistrate’s consideration of

this factor. R.C. 2151.414(D)(1)(c). Thus, appellant’s second assignment is without

merit.

         {¶35} Under her final assignment, appellant claims the magistrate’s and trial

court’s finding that K.M. cannot be placed with appellant within a reasonable time is

against the manifest weight of the evidence. Specifically, she contests the finding that

she failed to satisfy her case plan requirements.




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       {¶36} “R.C. 2151.414 sets forth a two-part test governing whether to award

permanent custody to a public services agency. In re J.S., 8th Dist. Cuyahoga Nos.

101991 and 101992, 2015-Ohio-2701, ¶47. First, after a hearing, the court must find by

clear and convincing evidence that granting permanent custody of the child to the

agency is in the best interest of the child upon considering all relevant factors including

those in R.C. 2151.414(D). Clear and convincing evidence is evidence sufficient to

‘produce in the mind of the trier of fact a firm belief or conviction as to the facts sought

to be established.’ In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). The

clear and convincing standard does not require clear and unequivocal evidence. In re

Estate of Haynes, 25 Ohio St.3d. 101, 104, 495 N.E.2d 23 (1986). In determining

whether a trial court based its decision upon clear and convincing evidence, a reviewing

court must examine the record and determine whether the trier of fact had sufficient

evidence before it to satisfy this burden of proof. State v. Schiebel, 55 Ohio St.3d 71,

74, 564 N.E.2d 54 (1990). The credibility of witnesses and weight of the evidence are

primarily issues for the trial court, as the trier of fact. In re Ohler, 4th Dist. Hocking No.

04CA8, 2005-Ohio-1583, ¶15.

       {¶37} “Second, a court must make one of the findings delineated in R.C.

2151.414(B)(1)(a)-(e). In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-

3709, ¶10. In practice, however, courts usually make the second finding first before

embarking on the best interest analysis. In re N.T., 11th Dist. Ashtabula No. 2010-A-

0053, 2011-Ohio-650, ¶57.” In re D.S., 11th Dist. Trumbull No. 2015-T-0062, 2015-

Ohio-4548, ¶71-72.

       {¶38} Appellant does not contest the trial court’s “best interest” conclusion.




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Instead, her challenge is limited to whether the trial court’s conclusion that K.M. cannot

be placed with appellant within a reasonable time or should not be placed with her is

supported.

       {¶39} “In determining * * * whether a child cannot be placed with either parent

within a reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and convincing

evidence, * * * that one or more of [16 factors] exist as to each of the child's parents, the

court shall enter a finding that the child cannot be placed with either parent within a

reasonable time or should not be placed with either parent * * *.” R.C. 2151.414(E).

       {¶40} The magistrate found R.C. 2151.414(E)(1) satisfied, which states:

       {¶41} “(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.”

       {¶42} Appellant contends that the evidence showed that she was making

progress in remedying the problems that led her to relinquish custody in 2013.

According to her, the evidence demonstrates that she was complying with all three

requirements of her case plan: (1) receiving treatment for her drug addiction; (2) taking

parenting classes; and (3) communicating with K.M.

       {¶43} During the first six months of her case plan, appellant was making

progress. However, when she escaped from the half-way house in July 2016, that all

came to an end. She started taking illegal drugs again. She was charged with new




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criminal offenses subjecting her to additional prison time. And, her communication with

K.M. ended. These points support the finding that appellant was unfortunately right

back where she started.

       {¶44} Appellant separately argues that K.M.’s reaction when he was informed of

her escape establishes that their close bond remains. While it is true that K.M. was

initially scared for his mother’s life and tried to take steps to contact her, appellant

ignores the uncontested evidence that after she was apprehended, K.M. told both his

counselor and the magistrate that he no longer wishes to be reunited with her.

       {¶45} Last, appellant maintains that the testimony of K.M.’s counselor must be

disregarded because he said that he “loved” K.M. This, however, does not provide a

basis to disregard his testimony.

       {¶46} The evidence supports the findings that K.M. could not be placed with

appellant within a reasonable time and that the termination of appellant’s parental rights

is in K.M.’s best interest. Thus, the judgment is not against the manifest weight of the

evidence, and appellant’s third assignment lacks merit.

       {¶47} The judgment of the Trumbull County Court of Common Pleas, Juvenile

Division, is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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