[Cite as In re T.N., 2019-Ohio-2142.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF T.N.                        :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
                                             :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
                                             :
                                             :       Case No. 19 CAF 02 0016
                                             :
                                             :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware County
                                                     Court of Common Pleas, Juvenile
                                                     Division, Case No. 17-07-1982-AB



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    May 30, 2019



APPEARANCES:

For Plaintiff-Appellee-DCDJFS                        For Defendant-Appellant-Mother

KATHERYN L. MUNGER                                   GLORIA L. SMITH
145 N. Union Street, 3rd Floor                       1900 Polaris Parkway, Suite 450
Delaware, Ohio 43015                                 Columbus, Ohio 43240



Guardian ad Litem

DONALD G. WORLY
P.O. Box 526
Delaware, Ohio 43015
Delaware County, Case No. 19 CAF 02 0016                                             2




Baldwin, J.

       {¶1}   Whitney Cousins appeals the January 29, 2019 decision of the Delaware

County Court of Common Pleas, Juvenile Division, granting permanent custody of T.N.

to Appellee, the Delaware County Department of Job and Family Services.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellee assumed custody of T.N., Appellant’s child, through the filing of a

complaint and subsequent shelter care hearing on July 11, 2017. Appellant and the father

of the child admitted T.N. was dependent, temporary custody was granted and a case

plan was adopted on September 12, 2017. Thereafter several Case Reviews and pre-

trials occurred, but Appellant did not always attend. On October 9, 2018 Appellee filed a

motion for permanent custody after Appellant failed to make progress on the case plan

and after learning she had been incarcerated. Counsel was appointed for Appellant and

the motion was heard on January 22, 2019. The Trial Court issued a decision granting

Appellee’s motion and terminating Appellant’s parental rights.

       {¶3}   The Appellant did not provide this Court with a transcript of any of the Case

Review conferences, hearings or the trial of the matter, so our review is limited to a review

of the pleadings. We note that Appellant does not challenge the factual findings of the

trial court and the record contains no evidence that Appellant complained to the Trial

Court that she was unrepresented prior to the permanent custody hearing or that she did

not receive notices of Case Reviews or pre-trials.

       {¶4}   Appellee filed a complaint alleging dependency of T.N. when James

Roullard, a family friend, contacted Appellee regarding care for the juvenile. The Appellee
Delaware County, Case No. 19 CAF 02 0016                                           3


alleged that Mr. Roullard served as the primary care-giver for T.N. for the past two years,

that he planned to be away for an extended period of time and was concerned that neither

the Appellant nor the child’s father were capable of caring for T.N. He reported that

Appellant was a drug addict and was wanted for various criminal charges. She often

stayed at Mr. Roullard’s home, but was absent for extended periods of time.

      {¶5}    The Appellee filed the complaint on July 10, 2017 and the Trial Court

granted temporary custody to Appellee on July 11, 2017. Appellee attempted to notify

the parents, but neither appeared at the Shelter Care hearing on July 11. The father

appeared for a formal arraignment on August 4, 2017, but Appellant did not appear at

that hearing or at a pre-trial scheduled for August 17, 2017. She did appear at a second

pre-trial conducted on September 5, 2017. The trial court notified her of her right to

counsel, she waived the same in writing and admitted the dependency of T.N.

       {¶6}   She next appeared at the trial regarding temporary custody on September

12, 2017, without counsel. The Trial Court informed her of her right to counsel. The

parents admitted dependency, T.N. was found to be a dependent child and the trial court

ordered that she remain in the temporary custody of Appellee. A case plan was adopted

and a Case Review was scheduled for December 5, 2017. Appellee did not appear for

the Case Review on December 5, 2017. She did appear, without counsel, at the March

8, 2018 Case Review, was advised of her right to counsel, and responded that she

planned to obtain counsel. The next Case Review was scheduled for May 24, 2018, but

Appellant did not appear.

       {¶7}   At the May 24, 2018 Case Review, the Trial Court was informed that

Appellant may have been incarcerated on May 19, 2018, but the source of this information
Delaware County, Case No. 19 CAF 02 0016                                            4


is not clear in the record. The Trial Court did note that Appellant was still unrepresented

and another Case Review was scheduled for July 9, 2018. Appellant did not appear at

that Case Review and the Trial Court was again informed that Appellant was incarcerated.

Appellee filed a motion to extend temporary custody which was scheduled for hearing on

August 23, 2018 along with the next Case Review.

       {¶8}   Appellant had not made any progress on the goals of the case plan prior to

her incarceration and her incarceration prevented her further participation. The Appellee

filed a motion to remove her from the case plan, subject to a request to reinstate.

Appellee reported that the father of T.N. was making sufficient progress to warrant

extending temporary custody with a plan for reunification.          The Trial Court agreed,

removed Appellant from the case plan, granted an extension of temporary custody and

set another Case Review date.

       {¶9}   To this point the Appellee’s goal was reunification of T.N. with a parent, but

that status changed as Appellant remained incarcerated and the father’s progress was

halted by his illegal drug use and lack of contact with Appellee. Appellee filed a motion

for permanent custody on October 9, 2018 and served Appellant at the Franklin County

jail. The Trial Court scheduled a pre-trial for November 15, 2018 and notified Appellant

of the hearing and her right to counsel. That notice also contained information regarding

resources for Appellant to assist her in obtaining legal counsel.

       {¶10} Appellant was conveyed to Delaware County for the pre-trial on November

15, 2018 and appeared pro se. She admitted she was incarcerated and awaiting trial on

five felony charges. She applied for appointed counsel and counsel was appointed on
Delaware County, Case No. 19 CAF 02 0016                                           5


November 19, 2019. The trial on the motion for permanent custody was scheduled for

January 22, 2019.

      {¶11} The Trial Court conducted the trial on January 22, 2019 as scheduled.

Appellant’s counsel did make an oral motion for continuance to allow for more time to

prepare and that motion was denied. The Trial Court summarized the testimony, issued

findings of fact and conclusions of law and granted the motion for permanent custody by

its order of January 29, 2019. Appellant filed a timely notice of appeal and submitted two

assignments of error:

      {¶12} “I. THE TRIAL COURT ERRED BY FAILING TO PROTECT THE

INTERESTS OF A PARENT FACING PERMANENT TERMINATION OF PARENTAL

RIGHTS AT ALL STAGES OF THE PROCEEDINGS.”

      {¶13} “II. A PARENT IS DENIED DUE PROCESS UNDER THE U.S. AND OHIO

CONSTITUTION WHEN THE JUVENILE COURT FAILED TO PROPERLY NOTIFY HER

OF ALL COURT PROCEEDINGS.”

                                       ANALYSIS

      {¶14} Appellant contends the trial court erred by conducting hearings when she

was not present and not represented by counsel, that Appellant did not knowingly waive

her right to counsel and that she did not receive notice of Case Reviews or pre-trial

conferences, comprising multiple violations of her due process rights. Appellant builds

her argument upon the contention that the Appellee planned to seek permanent custody

as early as May 12, 2018 and that she was entitled to counsel at that time.

      {¶15} Appellant’s arguments are based on strained interpretation of the record.

Appellant contends that the Appellee was seeking permanent custody after the child had
Delaware County, Case No. 19 CAF 02 0016                                            6


been out of Appellant’s custody for ten months, based upon Appellant’s misinterpretation

of a quote from the Case Plan and a failure to consider the surrounding circumstances.

       {¶16} A review of the complete quote from the Case Plan as well as the status of

the case in May 2018 demonstrates the fault in Appellant’s conclusion that the Appellee

sought permanent custody at that time. The Case Plan explains that:

       “[f]or purpose of concurrent planning and in accordance with the 12/22

       months rule, when the child involved in this case has been out of the home

       for ten (10) months, DCDJFS will staff the case for permanency. The

       staffing will allow DCDJFS to consider all options, including but not limited

       to legal custody and permanent custody.”

       {¶17} This statement cannot be interpreted as conclusive evidence the Appellee

intended to take permanent custody in May 2018. Appellee consistently sought an

extension of temporary custody from the date of the complaint, July 10, 2017, until the

filing of the motion for permanent custody in October 8, 2018. The record contains no

factual basis for Appellant’s argument that the Appellee intended to pursue permanent

custody in May 2018 necessitating the appointment of counsel at that juncture.

Appellant’s reliance on this misconstruction of an isolated quote from the Case Plan

undermines her argument.

       {¶18} Appellant’s argument is further weakened by reliance on precedent that

does not support her goal. Appellant frequently cites the holding of In re R.K., 152 Ohio

St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, in support of her assertions, but a review of the

facts and holding in that case reveals that the trial court complied with the mandate issued

by the Supreme Court of Ohio. The Appellant in that case was also fighting a motion for
Delaware County, Case No. 19 CAF 02 0016                                             7


permanent custody. She did not appear at the final hearing and the trial court granted her

counsel’s motion to withdraw without making any effort to determine why Appellant was

absent. The hearing proceeded without her presence and without representation by

counsel. The syllabus of In re R.K. restricts the application of the holding: [w]hen the

state seeks to terminate a parent’s parental rights, the parent has the right to

counsel. The parent cannot be deprived of that right unless the court finds that the parent

has knowingly waived the right to counsel. Waiver of counsel cannot be inferred from the

unexplained failure of the parent to appear at hearing.” In re R.K., syllabus, (Emphasis

added). The Supreme Court of Ohio clearly limited its holding to hearings to terminate

parental rights and did not include pre-trials or Case Reviews that do not seek permanent

custody. By ensuring appellant was represented when permanent custody was at issue,

the trial court complied with the mandate of In re R. K.

       {¶19} The Appellant’s first assignment of error is premised upon the strained

interpretation of the case plan and the misapplication of the holding of In re R.K. described

above. Appellant contends she “was facing permanent termination of parental rights on

May 12, 2018, and this is the point that her interest should have been protected.” The

Appellee was not seeking permanent custody of T.N. but instead sought and received an

extension of temporary custody on May 24, 2018. It is obvious from the record that

Appellee did perform a review of the case and decided that a motion for permanent

custody was not appropriate that time. Consequently, the need to appoint counsel

pursuant to the requirements of In re R. K. was not triggered at that time.

       {¶20} Appellant’s lack of counsel prior to the filing of the motion for permanent

custody was the result of her own failure to file a request. R.C. 2151.352. Appellant was
Delaware County, Case No. 19 CAF 02 0016                                             8


notified of her right to counsel on several occasions, but failed to file a request for

appointment. Appellant appeared at the second pretrial on September 5, 2017 and was

notified of her right to an attorney orally and in writing, and was advised counsel would

be appointed for her if she could not afford counsel. She waived her right to counsel in

writing and indicated her understanding, in writing, that she could retain an attorney at

any time throughout these proceedings and that she had a right to a court appointed

attorney if she was indigent. She then admitted the allegation the complaint for

dependency and, within that same writing, provided her current address. Appellant’s

failure to request counsel prior to November 15 after receiving several notices of her right

to do so, does not support her contention that her due process rights were violated.

       {¶21} We considered a similar matter in the case of In re Westfall Children, 5th

Dist. Stark No. 2006 CA 00196, 2006-Ohio-6717, ¶¶ 9-11:



              Turning to the facts of the case sub judice, we conclude Appellant

       would have been entitled to the appointment of counsel had she requested

       such from the trial court. However, the record in this matter establishes that

       Appellant failed to appear at any of the trial court proceedings prior to the

       commencement of the permanent custody hearing in this matter. Appellant

       also never filed a written request asking the trial court to appoint counsel on

       her behalf.



       {¶22} In the case at bar, Appellant made sporadic appearances at the Case

Reviews and pre-trials but did not file a written request for counsel until November 15,
Delaware County, Case No. 19 CAF 02 0016                                             9


2018 when she was brought to the trial court from the Franklin County Jail and conceded

that she was incarcerated on charges for five separate felonies. At that point, the trial

court appointed trial counsel for Appellant who represented her through the hearing on

the motion for permanent custody. Appellant was given “the opportunity to be heard at a

meaningful time and in a meaningful manner” and was “present before the tribunal and

had the opportunity to be heard, by testimony or otherwise, and the opportunity to

controvert, by proof, every material fact which bears on the question of right in the matter

involved.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965);

Williams v. Dollison, 62 Ohio St.2d 297, 299, 405 N.E.2d 714(1980) as quoted in In re

L.R., 5th Dist. Holmes No. 13CA004, 2013-Ohio-3104, ¶¶ 72-73 Appellant was “given an

opportunity to demonstrate [her] fitness and ability to parent [her child] at the evidentiary

hearing on the motion for permanent custody. Id. at ¶ 73.

       {¶23} Based upon the record, we cannot fault trial court for not appointing counsel

before November 15, 2018.

       {¶24} Appellant also complains her due process rights were violated because

hearings occurred outside of her presence. She cites no precedent to support her

contention that these hearings could not move forward without her. Further, the hearings

about which she complains were actually “Case Reviews” or pre-trials wherein temporary

custody was extended allowing all parties additional time to devote attention to the case

plan and reunify. Because Appellant is not contending that she made any progress on the

case plan or that the temporary custody was not supported by the manifest weight or

sufficient evidence, we cannot conclude that her presence at these hearings would have

resulted in any different outcome. Further, the record provided to us shows that the
Delaware County, Case No. 19 CAF 02 0016                                           10


entries containing notice of the dates of the upcoming Case Reviews were served on all

parties pursuant to Juv.R. 20 and Civ.R. 5(B) and there is no evidence in the record to

suggest that the notices did not arrive in a timely fashion. The record shows that notices

were sent to the address provided by Appellant on her first appearance in court on

September, 5, 2017 that no notice was returned as undeliverable and there is no evidence

indicating that she did not receive any notice delivered to that address. These notices,

sent pursuant to Juv.R. 20(B) and Civ.R. 5(B), were presumed delivered unless Appellant

provided evidentiary quality information rebutting the presumption. Thompson v. Bayer,

5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23. The record submitted in

this case contains no evidence rebutting the presumption of service. Without evidence to

support a rebuttal of the presumption of service, we can only conclude that Appellant did

receive notice and chose not to attend the Case Reviews and pre-trials or take other

appropriate action.

      {¶25} The Trial Court appointed trial counsel for Appellant shortly after the filing

of the motion for permanent custody and that counsel served through the hearing on the

motion. Appellant did not provide a record so we cannot determine whether Appellant

complained of lack of notice of prior hearings or lack of counsel, and we cannot speculate.

We can conclude that Appellant had the opportunity to present evidence, through

counsel, regarding her ability to parent her child or make timely progress on the case

plan, In re L.R., supra and that her due process rights were adequately protected.

      {¶26} Appellant’s first assignment of error is denied.

      {¶27} Appellant’s second assignment of error has been addressed in our

resolution of the first assignment of error. Appellant complains that she was not given
Delaware County, Case No. 19 CAF 02 0016                                          11


proper notice of the Case Reviews or pre-trials because she was incarcerated and the

Trial Court was aware of her incarceration. The record contains evidence demonstrating

notices were successfully delivered to all parties pursuant to Juv.R. 20 and Civ.R. 5 and

there is nothing in the record to suggest that the notices were not delivered. As noted

above, Appellant had the opportunity to present evidence at the hearing on permanent

custody to demonstrate she had made progress on the case plan or was entitled to

additional time to complete the requirements in the plan. The record as presented shows

counsel was appointed and represented her at trial and that Appellant attended trial.

Under the circumstances, we cannot conclude Appellant’s due process rights were

denied by an alleged failure to provide her notice. The Appellant’s second assignment of

error is overruled.

       {¶28} The decision of the Delaware County Court of Common Pleas, Juvenile

Division is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
