[Cite as In re R.L., 2012-Ohio-6049.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

IN THE MATTER OF:                                  :

        R.L., A.L. and A.L.                        :            C.A. CASE NOS. 2012CA32

                                                                       2012CA33
                                                   :
                                                                T.C. NOS. N43082
                                                   :                           S43380

                                                   :            (Civil appeal from Common
                                                                Pleas Court, Juvenile Division)
                                                   :

                                                   :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    21st       day of     December     , 2012.

                                           ..........

NATHANIEL R. LUKEN, Atty. Reg. No. 0084071, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

JENNIFER S. GETTY, Atty. Reg. No. 0074317, 46 E. Franklin Street, Centerville, Ohio
45459
      Attorney for Defendants-Appellants

                                           ..........
DONOVAN, J.

       {¶ 1}    Appellants R.L. (Father) and J.L. (Mother) appeal from the juvenile court’s

judgment granting permanent custody of their three children to Greene County Children’s

Services (“GCCS”). For the reasons set forth below, we reverse the judgment.

       {¶ 2}    The parties had two children, R.L. (D.O.B. March 2, 2000), A.L.1 (D.O.B.

November 20, 2007). The record reflects that R.L and A.L.1 were adjudicated as abused,

neglected and dependent on July 11, 2011. That same month, Mother and Father were both

convicted of Illegal Manufacture of Drugs, Illegal Assembly or Possession of Chemicals for

Manufacture of Drugs with regard to a Methamphetamine lab in their family residence.

Mother was also convicted of Aggravated Possession of Drugs. She was sentenced to a

four-year prison term and Father was sentenced to a five-year prison term.            While

incarcerated, Mother gave birth to the parties’ third child, A.L.2 (D.O.B. September 10,

2011). A.L.2 was adjudicated dependent on January 12, 2012.

       {¶ 3}     That same month, GCCS filed a motion for permanent custody.             The

Guardian Ad Litem (“G.A.L.”) filed a report recommending that the motion for permanent

custody be granted. On February 14, 2012, Father filed a motion to convey him from the

Chillicothe Correctional Institution and to permit him to attend the permanent custody

hearing. The juvenile court denied the motion. On March 22, 2012 - six days prior to the

scheduled hearing - Father filed a motion, pro se, for a continuance to permit more time for

the investigation of possible relative placements for the children. Specifically, his motion

stated that GCCS should contact five different individuals in order to obtain contact

information regarding his cousins living in Tennessee and his “biological aunts & uncles that

live outside of this country in Germany.”
                                                                                            3

       {¶ 4}    The hearing was held on March 28, 2012. Prior to presenting any evidence,

the attorneys representing Father, Mother and the children argued in favor of Father’s

requested continuance and requested a continuance of sixty days. However, the attorney for

GCCS argued that the agency had “performed an extensive search for relatives, and was

unable to find anybody willing or able to take care of the children.” He also noted that the

agency had performed home studies with regard to two different non-relative placements.

The G.A.L. stated that she had spoken to friends and relatives and found no one willing to

take all three children. The juvenile court denied the motion for continuance.

       {¶ 5}     Following the hearing, the juvenile court granted the motion for permanent

custody upon a finding that the children cannot be placed with either parent within a

reasonable period of time due to their incarceration. The court further stated that “as

provided under Ohio R.C. Section 2151.414(E)(12), both parents were incarcerated at the

time of the filing of the agency’s motion and the dispositional hearing, and will not be

available to care for the children for at least eighteen months after the filing of the motion

and the day of the dispositional hearing.”   The court also found that “the agency conducted

a diligent search to locate a suitable relative placement.”    The parties have filed a timely

appeal in which they raise five Assignments of Error.

       {¶ 6}    The first assignment of error is as follows:

               THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

       FINDING THAT THE CHILDREN COULD NOT BE PLACED WITH

       [MOTHER OR FATHER] WITHIN A REASONABLE PERIOD OF TIME.

       {¶ 7}    The parents acknowledge that, at the time of the permanent custody hearing,
                                                                                               4

they were both incarcerated on charges of manufacturing methamphetamine. They also

acknowledge that Father was sentenced to a prison term of five years while Mother was

sentenced to a prison term of four years. However, they contend that no evidence was

presented to “indicate that the sentences were mandatory or that judicial or early release was

not a possibility.” Further, they contend that Mother “is likely a candidate for judicial

release given her lack of a felony record.” Thus, they argue that the evidence does not

support a finding that the parents would be unavailable to care for the children for at least

eighteen months after the filing of the motion for permanent custody.

          {¶ 8}   Of relevance to this case, section 2151.414(B)(1)(a) of the Revised Code

provides that a trial court may grant permanent custody of a child to a movant if the court

determines at a hearing, by 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 “ * * * 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.”

          {¶ 9}   With regard to making a finding that the child cannot be placed with either

parent within a reasonable time pursuant to R.C. 2151.414(B)(1)(a), R.C. 2151.414(E)

states:

                  In determining at a hearing * * * 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, at a hearing * * * that one or

          more of the following exist as to each of the child's parents, the court shall
                                                                                                                                      5

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

         reasonable time or should not be placed with either parent:

                    ***

                    (12) The parent is incarcerated at the time of the filing of the motion

         for permanent custody or the dispositional hearing of the child and will not be

         available to care for the child for at least eighteen months after the filing of

         the motion for permanent custody or the dispositional hearing.

         {¶ 10}        A review of the record demonstrates that the agency offered the testimony

of Benjamin Roman who is a City of Fairborn Detective currently assigned to the Greene

County ACE Drug Task Force. Detective Roman testified that he was involved in the

investigation of Mother and Father regarding the production of methamphetamine in their

home. The Detective testified that Father was convicted and sentenced to a term of five

years while mother was convicted and sentenced to a term of four years. The Detective also

testified regarding certified copies of the judgment entries from the criminal cases. Those

documents were admitted without objection.

         {¶ 11}          A review of the documents clearly indicates that four years of Mother’s

sentence is mandatory pursuant to R.C. 2929.13(F) and that five years of Father’s sentence is

likewise mandatory. Thus, any argument that either party might obtain an earlier judicial

release is without merit.1

         {¶ 12} We next turn to Father’s claim that an appeal was pending in his criminal


              1
               We note that there is no evidence in this record that either parent had a pending motion for judicial release at the time
   of the custody hearing.
                                                                                                 6

case at the time of the permanent custody hearing.           Apparently he contends that the

possibility of prevailing on appeal could result in his ability to reunite with the children prior

to eighteen months after the hearing.

       {¶ 13} We cannot say that the juvenile court abused its discretion by failing to give

the possibility of an appellate victory weight when determining whether the children could

be reunited with Father within a reasonable time. Simply put, the court did not err by

failing to consider something that was merely speculative.

       {¶ 14} We conclude that the juvenile court did not err or abuse its discretion with

regard to its finding that the children could not be reunited with the parents within a

reasonable time. Therefore the first assignment of error is overruled.

       {¶ 15} The second assignment of error states:

                THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

       BY FINDING THAT PERMANENT CUSTODY TO GREENE COUNTY

       CHILDREN SERVICES WAS IN THE BEST INTEREST OF THE

       CHILDREN AS SAID FINDING IS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

       {¶ 16} Father and Mother contend that the trial court’s determination that a grant of

permanent custody of the children to GCCS is in the best interest of the children is not

supported by the evidence. Specifically, they argue that the juvenile court failed to make

any detailed findings regarding the statutory factors to be used in determining best interest.

       {¶ 17}    A reviewing court will not overturn a court's grant of permanent custody

to the state as being contrary to the manifest weight of the evidence “if the record contains
                                                                                           7

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements * * * have been established.” In re A.U., 2d

Dist. Montgomery No. 22287, 2008–Ohio–187, at ¶ 9. R.C. 2151.414(D)(1) lists relevant

factors that courts must consider in determining the best interest of a child. These factors

include, but are not limited to, the following:

                (a) The interaction and interrelationship of the child with the child's

       parents, siblings, relatives, foster caregivers and out-of-home providers, and

       any other person who may significantly affect the child;

                (b) The wishes of the child, as expressed directly by the child or

       through the child's guardian ad litem, with due regard for the maturity of the

       child;

                (c) The custodial history of the child, including whether 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 * * *;

                (d) 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;

                (e) Whether any of the factors in divisions (E)(7) to (11) of this

       section apply in relation to the parents and child.

       {¶ 18}     Not every statutory condition must be met before a determination regarding

best interest may be made. See In re K.H., 2d Dist. Clark No.2009–CA–80,
                                                                                                 8

2010–Ohio–1609, at ¶ 57; In re A.M.L.B., 9th Dist. Wayne No. 08CA0028,

2008–Ohio–4944, at ¶ 8 (holding that “[t]he trial court did not err by failing to discuss an

irrelevant best interest factor”). And no one statutory factor is more important than any other.

 See In re Schaefer, 111 Ohio St.3d 498, 2006–Ohio–5513, 857 N.E.2d 532, at ¶ 56.

        {¶ 19} In this case, the juvenile court’s judgment regarding the best interest of the

children merely states that “it is in the children’s best interest to be in the permanent custody

of the agency.” None of the factors is discussed. A review of the hearing transcript reveals

that no one provided any testimony regarding the best interest of the children except to say

that the children were doing well in their foster care placements. Instead, the testimony was

directed mainly at the agency’s attempts to locate potential relative placements.

        {¶ 20}   The only substantive evidence regarding the best interest of the children is

in the report filed by the G.A.L. who opined that awarding custody of the children to the

agency was in their best interest. However, the court’s final decision makes no reference to

that report.

        {¶ 21}   We do note that there is evidence that, unless placed with a relative, the

children would be separated for adoption. Given that R.L. and A.L.1 had been living

together with the parents for the four plus years that A.L.1 has been alive, it is not

unreasonable to assume that the boys are bonded with each other and that separating them is

not in their best interest. Further, there is evidence that R.L. expressed the desire to be

reunited with his parents and that A.L.1 expressed the wish to go with R.L. The juvenile

court was obviously aware of this discrepancy because, in a February 17, 2012 judgment, it

noted the conflict and appointed a separate attorney to represent the children at the hearing.
                                                                                             9

       {¶ 22} The children had not been in the custody of the agency for a full year at the

time the hearing was held. Further, as noted in the third and fourth assignments of error,

while the juvenile court did not have any testimony from the parents regarding the best

interest of the children, the court was well aware that the parents wanted the agency to

search for a suitable relative placement so that the children could remain together, and that

the parents had named additional individuals to contact in this regard.

       {¶ 23} Given the lack of evidence regarding the best interest determination as well

as the lack of a discussion of the statutory factors by the juvenile court, coupled with the

stated wishes of the older children and the fact that adoption would result in their separation

from one another, we conclude that the court abused its discretion in determining that

awarding permanent custody of the children to the agency is in their best interest.

Therefore, the second assignment of error is sustained.

       {¶ 24} The Third assignment of error raised by the parents is:

               THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

       BY DENYING [THE PARENTS] THE RIGHT TO ATTEND AND

       PARTICIPATE IN THE PERMANENT CUSTODY HEARING AND BY

       DENYING THE REQUEST FOR CONTINUANCE OF THE PERMANENT

       CUSTODY HEARING.

       {¶ 25} The parents contend that the juvenile court erred by failing to sustain their

motions to convey them from prison to the ajudicatory hearing. They further contend that

the trial court abused its discretion by failing to grant the requested continuance of the

permanent custody hearing.
                                                                                           10

       {¶ 26} We begin with the failure to convey, and note that contrary to the parents

assertion that they both filed motions to convey from prison to the hearing, the record shows

that only Father filed such a motion.

       {¶ 27}    This court has held that a juvenile court has discretion to decide whether to

hold a permanent custody hearing without having an incarcerated parent conveyed to the

hearing. In re R.D., 2d Dist. Clark No. 08-CA-26, 2009-Ohio-1287.

       {¶ 28}    In overruling the motion, the trial court relied upon the following

three-pronged balancing test, set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,

47 L.Ed.2d 18 (1976), to determine whether an incarcerated parent should be present at a

custody termination proceeding: 1) the private interest affected; 2) the risk of erroneous

deprivation and the probable value of additional safeguards; and 3) the governmental burden

of additional procedural requirements. In addressing these three factors, the juvenile court

stated as follows:

                “The termination of parental rights is a significant private interest.

       The Court finds, however, that there is a low risk of erroneous deprivation,

       based upon the length of [Father’s] incarceration, the fact that he has legal

       representation, the record of the proceedings will be available for review, and

       there are other means for [Father] to state his position to the Court. The

       Court will permit [Father] to express his wishes regarding the care and

       custody of the children in an affidavit. The court also finds that the burden

       of additional procedural safeguards by having [Father] present is significant.

       These latter two factors outweigh the private interest affected.
                                                                                             11

       {¶ 29} The record establishes that both parents were represented by separate

counsel. Additionally, a complete record was made of the hearing. The court was aware of

the fact that the parents favored placement with a relative as the best option for the children.

Neither Father nor Mother made a request to conduct a deposition as permitted by Juv.R.

25(B), and neither filed an affidavit as the court’s order allowed. The parties do not identify

any additional testimony that they would have provided that would have materially affected

the outcome of the hearing on permanent custody. Therefore we cannot conclude that the

juvenile court abused its discretion by denying Father’s request to be conveyed from prison

to the hearing.

       {¶ 30} We next turn to the claim that the court abused its discretion by denying the

motion to continue the hearing. This argument is based upon the claim that the requested

continuance, filed by Father six days prior to the hearing, was necessary in order to permit

the agency time in which to investigate more individuals with regard to possible relative

placements.

       {¶ 31}      “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge .” State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981).     Therefore, an appellate court must not reverse a trial court's decision

to deny a motion for continuance unless it finds that the trial court abused its discretion. Id.

The term “abuse of discretion” implies that the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 32}     As stated in the fifth assignment of error, set forth below, we conclude that

the juvenile court did not abuse its discretion in determining that the agency had made
                                                                                             12

reasonable efforts to locate relatives for placement. Based upon this, we conclude that the

court, thus, did not abuse its discretion by denying the motion to continue which was filed

six days before the scheduled hearing date, especially since the agency did try to contact the

newly identified individuals listed in the motion.

       {¶ 33} The third assignment of error is overruled.

       {¶ 34} The fourth assignment of error states:

               THE [PARENTS] WERE DENIED EFFECTIVE ASSISTANCE OF

       COUNSEL BEFORE AND DURING THE PERMANENT CUSTODY

       HEARING.

       {¶ 35} The parents contend that they were denied the effective assistance of trial

counsel. Specifically, they argue that counsel was deficient for failing to 1) meet in person

with their clients; 2) present evidence; 3) conduct an examination regarding the G.A.L.’s

report which indicated that Mother had an approved private placement for A.L.2; 4) conduct

an examination regarding the progress by both parents on their respective caseplans; and 5)

personally attempt to contact relatives for possible placement.

       {¶ 36} The right to counsel in termination proceedings includes the right to

effective assistance of such counsel. In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d

93 (1st Dist. 1998). In order to obtain a reversal of a judgment based upon a claim of

ineffective assistance of trial counsel, a movant must establish both that his trial counsel's

conduct did not fall within the range of reasonable professional assistance, and that there is a

reasonable probability that the outcome of the proceedings would have been different had

counsel's performance not been deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
                                                                                            13

2052, 80 L.Ed.2d 674 (1984).

        {¶ 37} We turn first to the contention that counsel did not present any evidence in

the form of an affidavit, deposition or any other means available, that counsel failed to meet

with the parents and that counsel failed to attempt to contact any relatives regarding possible

placement. There is nothing in the record to support the claim that counsel failed to meet

with the parents or failed to contact relatives. Further, nothing in the record indicates that

counsel’s decision regarding the presentation of evidence was the result of any deficiency.

The parents do not set forth what type of evidence they would have presented. The only

possible deficiency we can glean from the record is the lack of evidence regarding the best

interest of the children. However, as we have reversed this matter with regard to the best

interest standard, any deficiency in counsel’s conduct has been rendered moot.

        {¶ 38} We next turn to the claim that counsel failed to ask about a private

placement mentioned in the report of the G.A.L., The G.A.L. noted that Mother had wanted

to place the youngest child with a family in Holmes County via a program offered through

the prison system. However, upon investigation, it was determined that the family was not

properly licensed to receive foster children and the child was subsequently fostered with the

brother and sister-in-law of Father’s cousin. We cannot discern any prejudice stemming

from the failure to ask questions regarding the Holmes County placement when there was no

possibility, due to a lack of licensing, of placing the child there.

        {¶ 39} Finally, the parents complain that counsel failed to cross-examine the agency

caseworkers regarding their progress on their caseplans. There was evidence presented that

both parents would need to find “safe and stable” housing upon their release from prison and
                                                                                           14

that both needed to complete alcohol and drug assessments. There was also evidence that

they had not been able to complete any of these requirements as of the date of the hearing.

We are not sure what, if any, effect cross-examination on this subject would have produced

given the length of the subject prison terms.             Nor can we say that the failure to

cross-examine on this subject constituted anything other than trial strategy.

       {¶ 40} We cannot find, on this record, that counsel’s performance was deficient or

that any deficiency resulted in prejudice to the parents. Therefore, the fourth assignment of

error is overruled.

       {¶ 41}     The fifth assignment of error states:

                THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

       BY FINDING THAT GREENE COUNTY CHILDREN SERVICES MADE

       REASONABLE EFFORTS TO INVESTIGATE AND/OR LOCATE

       ALTERNATIVE RELATIVE OR NON-RELATIVE PLACEMENTS FOR

       THE CHILDREN.

       {¶ 42} Mother and Father contend that because the agency failed to investigate

alternative placements for the children, the trial court erred by awarding it permanent

custody.   In support they argue that despite giving the agency telephone numbers for

relatives and friends, the agency merely sent out letters without contacting people by

telephone. They also claim that the agency failed to attempt to contact the individuals listed

in Father’s motion for continuance filed one week prior to the hearing.         Finally, they

contend that the agency erred in relying on the aid of K.M. in searching for relatives as K.M.

had a conflict of interest regarding the placement of the children.
                                                                                            15

       {¶ 43} A review of the record demonstrates that the agency caseworkers made

many attempts to find an alternate placement for the children. The agency sent letters

regarding the matter to six individuals and couples for whom they did not have a telephone

numbers. The letters not only asked whether the addressees were interested in taking the

children, but also inquired as to whether they knew of anyone else willing to do so. Of

those six, none of the letters were returned and only one person contacted the agency. That

person stated they she and her husband were afraid to get involved. She would not leave

her contact information and never had any more contact with the agency.

       {¶ 44} The agency also was supplied telephone numbers for another six individuals

and/or couples. Five of those did not want to take the children. One person was left a

voice message, but never contacted the agency. The agency also did home studies on two

separate family friends whose names were supplied by Mother and Father. However, those

persons were not able to pass the home studies. There is also evidence that the agency

caseworkers attempted to locate possible relatives using computer and file searches.

Regardless of whether K.M. had any conflict of interest in this matter, it is clear from the

record that the agency did not rely upon her in its efforts to find alternate placements.

       {¶ 45} As noted above, Father filed a motion for continuance a week prior to the

hearing. In the motion he named several individuals whom he claimed the agency needed

to contact in order to obtain contact information regarding relatives in Tennessee and

Germany.     One caseworker testified that the day before the hearing she went to the

addresses provided and attempted to contact these individuals. She testified that it appeared

that people were home but would not answer her knock on their doors. She testified that
                                                                                              16

she left her business card in the doors, but no one contacted her. There was also testimony

that when the caseworker took the children to visit Father while incarcerated he did not offer

her any of the names contained in the subsequent motion.

        {¶ 46} This court has held that the consideration of whether a child can be placed

with a relative is not a statutory requirement. In re F.C., 2d Dist. Montgomery No. 23803,

2010–Ohio–3113, ¶ 24. “That possibility is a matter that ought to be considered in

connection with the child's interaction and relationship with the child's parents, relatives,

foster caregivers, out-of-home providers, and any other person who may significantly affect

the child.” Id.

        {¶ 47} As noted in our disposition of the second Assignment of Error, we cannot

determine whether the court considered this issue as a best interest matter with regard to the

children’s interaction and relationship with relatives. In any event, there is nothing in the

record to indicate that the children had any interaction with any of the relatives investigated.

        {¶ 48} The juvenile court concluded that the agency had made reasonable efforts

to find alternate placements. We agree. The mere fact that the agency was not able to

contact the people contained in the motion is not enough, by itself, to negate this conclusion.

 Therefore, the fifth assignment of error is overruled.

        {¶ 49} The second assignment of error being sustained, the judgment of the juvenile

court awarding permanent custody of the children to GCCS is reversed and this matter is

remanded for further proceedings.

                                          ..........

GRADY, P.J., concurs.
                                                                                           17

FROELICH, J., concurring:

       {¶ 50}    I write separately only to express concern, related to future cases, with the

denial of a motion to transport an incarcerated parent to a hearing on permanent custody

when a timely and appropriate request is made.

       {¶ 51}    Appellate courts consistently give deference to a trial court’s determination

on questions of fact, because “[t]he knowledge a trial court gains through observing the

witnesses and the parties * * * cannot be conveyed to a reviewing court by a printed record.”

 Beismann v. Beismann, 2d Dist. Montgomery No. 22323, 2008-Ohio-984, ¶ 20 (involving a

custody dispute); see, e.g., Mayer v. Medancic, 124 Ohio St.3d 101, 2009-Ohio-6190, 919

N.E.2d 721, ¶ 19 (discussing the rate and manner of calculating post-judgment interest owed

on a promissory note); Sigmon v. Southwest Gen. Health Ctr., 8th Dist. Cuyahoga No.

88276, 2007-Ohio-2117, ¶ 19 (affirming imposition of sanctions against an attorney for

frivolous conduct in filing a claim); Judd v. Meszaroz, 10th Dist. Franklin No. 10AP-1189,

2011-Ohio-4983, ¶ 18 (involving a property dispute and a related motion for sanctions

against the attorneys).

       {¶ 52}    A trial court’s determination as to the best interest of a child is a factual

determination that warrants such deference, so long as the trial court’s conclusion is

supported by some competent, credible evidence going to all the essential elements of the

case. See, e.g., In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994);

In re M.H., 2d Dist. Montgomery No. 25084, 2012-Ohio-5216, ¶ 12; In re A.J.S., 2d Dist.

Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 21-22.

       {¶ 53}    As stated in the majority opinion, this court has held that a juvenile court
                                                                                          18

has discretion to decide whether to bring an incarcerated parent to a permanent custody

hearing. In re R.D., 2d Dist. Clark No. 08-CA-26, 2009-Ohio-1287. In these limited

circumstances, we permit the court to weigh the parent’s evidence by means of an affidavit

(as the trial court suggested in this case) or a deposition (Juv.R. 25); we then review the

decision under an abuse of discretion standard. Id. at ¶ 12.

       {¶ 54}    The juvenile court utilized a balancing test set forth by the U.S. Supreme

Court in Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Eldridge held that an

evidentiary hearing was not required prior to the termination of Social Security disability

payments. The court distinguished this situation from Goldberg v. Kelly, 397 U.S. 254, 90

S.Ct. 1011, 25 L.Ed.2d 287 (1970), which required a hearing before termination of welfare

benefits. The Eldridge court held:

       “[D]ue process is flexible and calls for such procedural protections as the

       particular situation demands,” Morrissey v. Brewer, 408 U.S. 471, 481, 92

       S.Ct. 2593, 2600, 33 L.Ed.2d 484 [1972]. Resolution of the issue here

       involving the constitutional sufficiency of administrative procedures prior to

       the initial termination of benefits and pending review, requires consideration

       of three factors: (1) the private interest that will be affected by the official

       action; (2) the risk of an erroneous deprivation of such interest through the

       procedures used, and probable value, if any, of additional procedural

       safeguards; and (3) the Government’s interest, including the fiscal and

       administrative burdens that the additional or substitute procedures would

       entail.
                                                                                             19

       {¶ 55}    Applying these factors to Father’s situation: (1) the private interest in

parenting one’s children exceeds those of termination of either Social Security or welfare

benefits; (2) the risk of erroneous deprivation of such interest through the procedures used,

and probable value, if any, of additional procedural safeguards is unknown on this record;

and (3) the government’s interest, including the fiscal and administrative burdens that the

additional substitute procedures [e.g., the transportation, security, and cost] would entail are

also unknown from this record (although the court did make findings on these factors).

       {¶ 56}    It seems incongruous that in cases involving other civil matters, such as a

driveway repair, an auto collision, or the administration of medical care, as well as in

criminal matters, we place great emphasis, in assessing witness credibility, on the trial

court’s advantage in judging the accuracy, candor, and believability of witnesses and the

weight to be given their testimony due to the fact that, in the trial court, the finder of fact

sees the witnesses, hears the inflection of their voices, and observes their appearance,

conduct, demeanor, and accompanying gestures. Yet, in cases involving the permanent

termination of parental rights, which the supreme court has called “the family law equivalent

of the death penalty in a criminal case,” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680

(1997), citing In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist. 1991), if one of

the parents is incarcerated, we permit the trial court to reach its decision about the best

interest of the children without utilizing any of these in-person tests to weigh the evidence.

This distinction is troubling. It permits a trial court to make the decision to terminate

parental rights without hearing and seeing the people who – except for the children – have

the greatest stake in the outcome.
                                                                                            20

        {¶ 57}    The parents in this case admitted to criminal offenses involving a very

dangerous drug and manufacturing process. No doubt certain offenses and the facts of the

crimes may weigh heavily in a court’s decision as to the best interests of the children.

Nonetheless, loss of custody is not an automatic sanction for any criminal offense.

        {¶ 58}    Father did not avail himself of other means to inform the court of his views,

although it is clear that he favored placement with a relative, so that the children could stay

together and/or that he could regain a place in their lives when he was released from prison.

The court seems to have been well-aware of Father’s viewpoint on this issue, which was

relevant to the best interest of the children.

        {¶ 59}    We did not cite Eldridge in In re R.D., 2d Dist. Clark No. 08-CA-26,

2009-Ohio-1287, but rather noted that “Appellant has not identified what testimony [he]

would have offered had the juvenile court allowed [him] to attend the permanent custody

hearing and [/or] continued the hearing until [he] was released from prison.” Id. at ¶ 26.

The same is true here. On this record, I agree with the majority that the trial court did not

abuse its discretion in denying the motion of Father to be transported to the hearing and in

awarding permanent custody to GCCS.

                                           ..........

Copies mailed to:

Nathaniel R. Luken
Jennifer S. Getty
Hon. Robert W. Hutcheson
