[Cite as In re L.M.R., 2017-Ohio-158.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


IN THE MATTER OF:                                 :        OPINION

L.M.R., DEPENDENT CHILD
                                                  :
                                                           CASE NO. 2016-L-096




Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2014 AB 01120.

Judgment: Affirmed.


Christopher J. Boeman, P.O. Box 583, Willoughby, OH                 44096 (For Appellant,
Christopher Robinson).

Stephanie G. Snevel, Special Prosecutor, P.O. Box 572, Wickliffe, OH 44092 (For
Appellee, Lake County Department of Job and Family Services).

Susan K. Jankite, Susan Jankite Co., L.P.A., 1253 Arlington Road, Lakewood, OH
44107 (Guardian ad litem).


THOMAS R. WRIGHT, J.



          {¶1}   Appellant,     Christopher   Robinson,   appeals   the   entry   permanently

terminating his parental rights regarding his son, L.M.R. For the following reasons, we

affirm.
         {¶2}   The Lake County Department of Job & Family Services (“the Department”)

filed a complaint in June of 2014 alleging L.M.R.; his older half-sister, C.S.; and his

younger brother, D.L.R. to be dependent under R.C. 2151.04. L.M.R. was born April

30, 2011 and was five years old at the time of the hearing. All three children have the

same mother. Appellant is not C.S.’s father and this opinion does not address the facts

concerning the termination of her parents’ rights.

         {¶3}   At the time the dependency complaint was filed, appellant was living with

the children and their mother in her Painesville, Ohio home. Appellant and L.M.R.’s

mother never married. The dependency complaint alleges in part that C.S. engaged in

sexual activity with L.M.R. and that D.L.R. tested positive for marihuana and cocaine at

birth.

         {¶4}   A Lake County Department of Job and Family Services licensed social

worker, Jesica Ray, began working with the children in the summer of 2014.            Ray

developed a case plan for the family when they all resided together. The case plan

recommended that L.M.R. and C.S. complete mental health evaluations and directed

their parents to follow the recommendations. It also directed their mother and appellant

to provide adult supervision for the children at all times; for mother to obtain an alcohol

and drug assessment as well as a mental health evaluation and to follow all the

recommendations; and for appellant to complete a mental health evaluation and follow

its recommendations. Ray included a mental health requirement for appellant because

he explained to her that he had experienced trauma in his life that he coped with by

using marijuana.




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      {¶5}   From August 2014 through December 2014, appellant met with a

counselor twice. His October 2014 drug screen was positive for marijuana and cocaine.

Appellant missed his following drug screen in November 2014. Appellant explained that

he missed his appointments and screening because he had difficulties with his

counselor and lacked transportation. At about this same time, appellant moved out of

L.M.R’s mother’s residence and began intermittently staying with friends and coworkers

up to the time of the permanent custody hearing.

      {¶6}   In November 2014, the Department filed a motion to show cause against

appellant averring that he failed to comply with his mental health requirements since he

failed to see a counselor since July 2014. Appellant did not appear at the hearing and

was found in contempt.

      {¶7}   Appellant was also required to obtain a new substance abuse assessment

based on his positive test results. He received new recommendations from a new

counselor and then again switched counselors. Appellant met with his third counselor a

few times, but he told Ray that he had problems scheduling with her.        Thereafter,

appellant never met with his fourth scheduled counselor, who testified that he missed

the two or three scheduled addiction assessments.          Appellant then sporadically

attended counseling sessions at Beacon Health from January through June of 2015.

      {¶8}   In June of 2015, Ray appeared for an unscheduled visit at mother’s home

and there was marijuana smoke “billowing out of the house.”           The Department

subsequently sought emergency temporary custody of the children based on mother’s

impending eviction from her home, her failure to comply with her case plan




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requirements, and several allegations regarding the children’s safety. All three children

were temporarily placed with appellant’s sister.

      {¶9}   Appellant was again found in contempt of court based on his failure to

submit to the June 2015 court-ordered drug screening. Appellant informed his case

worker that he was working at the time and having a lot of transportation issues. He

was provided bus passes to go to his counseling sessions, but he did not always use

these passes for transportation to counseling. The case reviews indicate that appellant

failed to follow through with his recommended services and failed to follow through on

obtaining the recommended services for L.M.R.

      {¶10} The Department again filed for emergency temporary custody since

appellant’s sister was unable to continue caring for all three children, but she continues

to care for D.L.R. Appellant did not have a residence at the time, and he was allegedly

using drugs at the time. Thus, the guardian ad litem did not recommend placing the

children with him. As a result, C.S. and LM.R. were placed in foster care.

      {¶11} Appellant visited L.M.R. while the Department had temporary custody, but

he canceled numerous visits based on his job, and he missed one appointment when

he was in jail. Appellant advised Ray that he shared a ride with his coworkers and was

unable to leave his employment to attend his weekly visits with L.M.R. Ray testified that

Appellant was not case plan compliant from July through December of 2015. He was

likewise not case plan compliant from January 2016 to the date of the hearing, August

10, 2016. His attendance at his counseling sessions was intermittent.

      {¶12} On May 4, 2016, the Department filed a motion for permanent custody of

L.M.R. and C.S. alleging they were abandoned.         The motion also alleged that the




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children could not be placed with their parents within a reasonable time or should not be

placed with their parents because neither parent had a stable residence, and neither

satisfied their case plan recommendations.

       {¶13} Following a hearing, the trial court ordered L.M.R. and C.S. to be

committed to the permanent custody of the Department and divested appellant and

L.M.R.’s mother of all of their parental rights.

       {¶14} Appellant asserts two errors on appeal:

       {¶15} “The trial court committed reversible err by overruling Father’s second oral

motion for a continuance of the permanent custody hearing.

       {¶16} “The trial court committed reversible err by determining that by clear and

convincing evidence L.R. was an abandoned child under R.C. 2151.011(C).”

       {¶17} Appellant first challenges the trial court’s denial of his second motion to

continue the permanent custody hearing.

       {¶18} “It is well-recognized that a parent must be afforded every procedural and

substantive protection that the law allows before parental rights may be terminated. In

re J.Z., [10th Dist. Franklin No. 05AP-8, 2005-Ohio-3285,], at P9; In re Hayes, [79 Ohio

St.3d 46, 679 N.E.2d 680 (1997), reconsideration denied, 79 Ohio St.3d 1492, 683

N.E.2d 793], at 48, quoting In re Smith, [77 Ohio App. 3d 1, 16, 601 N.E.2d 45, (1991)]

at 16. Moreover, ‘[d]ue process includes a hearing upon adequate notice, assistance of

counsel, and under most circumstances, the right to be present at the hearing.’ In re

J.Z., at P9, citing In re Thompson (Apr. 26, 2001), Franklin App. No. 00AP-1358, 2001

Ohio App. LEXIS 1890.” In re M.W., 10th Dist. Franklin No. 07AP-529, 2007-Ohio-

6506, ¶79.




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      {¶19} Upon addressing the denial of a continuance, appellate courts employ an

abuse of discretion standard since continuances are “‘entrusted to the broad, sound

discretion of the trial court judge.’” Id. at ¶82 quoting State v. Unger, 67 Ohio St.2d 65,

423 N.E.2d 1078, syllabus (1981).

      {¶20} “The term ‘abuse of discretion’ is one of art, ‘connoting judgment

exercised by a court, which does not comport with reason or the record.’ State v.

Underwood, 11th Dist. No. 2008-L-113, 2009 Ohio 2089, ¶30, citing State v. Ferranto,

112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). * * * [A]n abuse of discretion is the trial

court's ‘failure to exercise sound, reasonable, and legal decision-making.’ State v.

Beechler, 2d Dist. No. 09-CA-54, 2010 Ohio 1900, ¶62, quoting Black's Law Dictionary

(8 Ed.Rev. 2004) 11. When an appellate court is reviewing a pure issue of law, ‘the

mere fact that the reviewing court would decide the issue differently is enough to find

error * * *. By contrast, where the issue on review has been confined to the discretion of

the trial court, the mere fact that the reviewing court would have reached a different

result is not enough, without more, to find error.’” State v. Anderson, 11th Dist. Geauga

No. 2011-G-3044, 2012-Ohio-4203, ¶15 quoting State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶67.

      {¶21} “‘There are no mechanical tests for deciding when a 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

judge at the time the request is denied.’” Unger at 67, quoting Unger v. Sarafite, 376

U.S. 575, 589 (1964).




                                            6
       {¶22} “Weighed against any potential prejudice to a defendant are concerns

such as a court's right to control its own docket and the public's interest in the prompt

and efficient dispatch of justice.

       {¶23} “In evaluating a motion for a continuance, a court should note, inter alia:

the length of the delay requested; whether other continuances have been requested

and received; the inconvenience to litigants, witnesses, opposing counsel and the court;

whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; whether the defendant contributed to the circumstance which

gives rise to the request for a continuance; and other relevant factors, depending on the

unique facts of each case.” (Citation omitted.) Unger, 67 Ohio St.2d 65, 67-68.

       {¶24} Appellate courts must examine the “Unger facts” in each case and upon

balancing these factors, determine whether the trial court abused its discretion in

denying a continuance. In re Kutcher, 7th Dist. Belmont No. 02BE58, 2003-Ohio-1235,

¶26.

       {¶25} Here, the permanent custody hearing was scheduled for two consecutive

days commencing August 10, 2016. At the beginning of the first day, L.M.R.’s mother

consented and agreed to the Department’s motion for permanent custody for both

children, and she was excused from the remainder of the hearing.

       {¶26} Appellant did not appear.      Instead, appellant’s counsel asked for a

continuance of indefinite duration stating appellant had the date of the hearing wrong

and was working. Second, counsel stated appellant wanted additional time to secure

housing and have an opportunity to allow the guardian ad litem to inspect and approve




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his home. Counsel did not state how long it would take appellant to secure housing or

where he was in the process.

       {¶27} In response, the court consulted the guardian ad litem as to whether she

needed additional time to investigate, and she responded, “based on my investigation,

my interviews with the children, I’m not comfortable with granting a continuance. I feel

these parties have had plenty of time and notice.” Thereafter the court denied the

motion stating, “this is a pretty serious event and I think that I’d miss a day of work. * * *

[Father has] been validly served, notified, and signed for the document to be here

today.”

       {¶28} The state then presented its case, concluding on the first day.             The

Department presented three witnesses.          The guardian ad litem for both children

summarized her findings that it is in the children’s best interest to be placed in the

custody of the Department. She explained that they need consistency and hands-on

follow through, which was lacking in their lives before their removal from their parents.

Both children also expressed a desire for permanency, which their current foster-to-

adopt mother was providing.

       {¶29} At the conclusion of the Department’s case, appellant’s counsel renewed

his motion to continue the hearing and asked the court to resume the next morning.

Counsel told the court that during the in camera interview of the children, at

approximately 11:30 a.m. on the first day of trial, that appellant contacted him. Counsel

advised the court appellant stated that he was not present today because he was

having bowel issues and he had a colonoscopy scheduled the next day. Nonetheless,

appellant said he would be present in the morning for the second day of the hearing.




                                              8
Counsel did not state that the colonoscopy was an emergency. The court denied this

request without explanation.

       {¶30} Instead, appellant was duly notified of the August 2016 hearing several

months in advance and there is nothing evidencing that appellant’s colonoscopy was

emergent. Yet he scheduled a colonoscopy on the same date of his permanent custody

hearing, and it is unclear whether the colonoscopy was causing appellant’s bowel

issues that in turn caused his absence or if his bowel issues necessitated the

colonoscopy.

       {¶31} Moreover, appellant’s second stated reason for his continuance request is

different, and unrelated to, the reason for his first continuance request.        Appellant

initially asked the court to continue the trial only a few hours earlier that same day

because he was working, and appellant does not challenge the trial court’s denial of this

first continuance request. Accordingly, appellant’s first assigned error lacks merit as the

trial court’s denial of appellant’s second request for a continuance does not amount to

an abuse of discretion.

       {¶32} Appellant’s second assigned error contends the trial court’s determination

that L.M.R. was an abandoned child is not supported by clear and convincing evidence.

       {¶33} The rights of a parent to his or her child, while fundamental, “are always

subject to the ultimate welfare of the child, which is the polestar or controlling principle

to be observed." In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979),

quoting In re R.J.C., 300 So. 2d 54, 58 (Fla. App. 1974). Although the termination of the

rights of a natural parent should occur as a last resort, termination is expressly




                                             9
authorized when necessary for the welfare of the child. In re Wise, 96 Ohio App.3d 619,

624, 645 N.E.2d 812 (1994), citing In re Cunningham, supra.

       {¶34} Before a juvenile court can terminate parental rights and award permanent

custody to the requesting agency, it must conduct a hearing and apply a two-pronged

analysis. First, a court must find by clear and convincing evidence that one or more of

the factors spelled out in R.C. 2151.414(B)(1)(a)-(e) applies. One of these factors is

whether the child is abandoned. R.C. 2151.414(B)(1)(b).

       {¶35} Second, upon finding one or more of these factors applicable, the court

then must determine whether granting custody of the child to the agency is in the child’s

best interests pursuant to the analysis delineated in R.C. 2151.414(D).

       {¶36} Appellant challenges the trial court’s finding that L.M.R. was abandoned.

He does not take issue with the court’s best interest of the child determination.

       {¶37} We review an order permanently terminating one’s parental rights under

the clear and convincing evidence standard and “will not reverse a juvenile court's

termination of parental rights and award of permanent custody to an agency if the

judgment is supported by clear and convincing evidence.”          In re J.S.E., 11th Dist.

Portage Nos. 2009-P-0091, 2009-P-0094, 2010-Ohio-2412, ¶23, 25; In re Adoption of

Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). The clear and convincing

evidence standard requires that the evidence, “produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established. * * * Once the clear and

convincing standard has been met to the satisfaction of the [trial] court, the reviewing

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




                                            10
before it to satisfy this burden of proof. * * * The determination of the [trial] court should

not be overturned unless it is unsupported by clear and convincing evidence.” Id.

       {¶38} Notwithstanding appellant’s argument regarding abandonment, we affirm

the trial court’s permanent custody determination on other grounds.           In re Williams

Children, 5th Dist. Stark No. 2006CA00270, 2007-Ohio-1137, ¶32; In re Scullion

Children, 5th Dist. Stark No. 2006CA00308, 2007-Ohio-929, ¶31 (holding in part that

the trial court’s permanent custody determination could be affirmed on alternate

grounds under the “two-issue rule.”) The trial court found an alternate and independent

basis for terminating appellant’s parental rights.

       {¶39} Specifically, the trial court held that the children cannot be placed with

their parents at this time or within a reasonable time consistent with R.C.

2151.414(B)(1)(a). Appellant does not challenge this determination, which is supported

by the court’s findings. It found that appellant continues to struggle with substance

abuse issues, has not been case plan compliant, does not have a stable residence, and

cannot provide the permanency that L.M.R. needs. Thus, we affirm the trial court’s

permanent custody determination on this basis.               Appellant’s argument as to

abandonment is moot. App.R. 12(A)(1); In re S.W.E., 8th Dist. Cuyahoga No. 91057,

2008-Ohio-4234, ¶7 (finding argument moot since clear and convincing evidence

supported affirming on other grounds.)

       {¶40} Accordingly, the judgment of trial court is affirmed.



CYNTHIA WESTCOTT RICE, P.J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.




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                                  ____________________


DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

       {¶41} I concur in the majority’s disposition of the first assignment of error and in

the decision to affirm the lower court’s judgment.       I write separately, however, to

address the issue raised by Robinson in his second assignment of error, i.e., whether

“[t]he trial court committed reversible error by determining that by clear and convincing

evidence L.M.R. was an abandoned child under R.C. 2151.011(C).”               See App.R.

12(A)(1)(c) (“a court of appeals shall * * *[,] [u]nless an assignment of error is made

moot by a ruling on another assignment of error, decide each assignment of error and

give reasons in writing for its decision”).

       {¶42} “For the purposes of [R.C. Chapter 2151], a child shall be presumed

abandoned when the parents of the child have failed to visit or maintain contact with the

child for more than ninety days, regardless of whether the parents resume contact with

the child after that period of ninety days.” R.C. 2151.011(C).

       {¶43} Robinson’s caseworker testified that, to her knowledge, Robinson had not

had “any contact” with L.M.R. from May 5 until the August 10 permanent custody

hearing.

       {¶44} The caseworker testified as follows regarding his failure to visit

              L.M.R.: And we had talked and [Robinson] reported that his work

              schedule doesn’t allow him to visit during typical agency hours, so I

              made an attempt to try and offer him a later visit on Wednesday

              from 4:30 to 5:30, and again because of his transportation situation

              with work and him riding in with a bunch of other people and if he



                                              12
               leaves, everybody has to leave, he said he couldn’t do Wednesday.

               And then Donna Scott and I were actually working together to see if

               we could set up a visit at Crossroads on Tuesdays, but our

               transporter unfortunately wasn’t available that day, you know, to be

               able to make that.

      {¶45} This testimony does not evidence that Robinson made any effort to visit or

maintain contact with his son for a period of over ninety days. It was the caseworker

who “made an attempt to try and offer him a later visit on Wednesday” and it was the

caseworker who tried “to see if [they] could set up a visit at Crossroads.” Accordingly,

the juvenile court properly made the finding of abandonment.

      {¶46} Even if evidence did exist that Robinson was attempting to arrange

visitation through the caseworker, a parent’s attempt to schedule visitation with his

caseworker is not a substitute for communicating with his child for a period of over

ninety days.     Robinson might have been prevented from visiting L.M.R. due to

scheduling or transportation issues, but there is nothing in the record to suggest he was

unable to call his son, which act would have precluded a finding of abandonment. In re

Anderson, 11th Dist. Trumbull No. 2004-T-0059, 2004-Ohio-5298, ¶ 33 (the

presumption of abandonment was rebutted where “appellant presented evidence that

she attempted to maintain contact with Ashley either via telephone or mail”); compare In

re C.B., 4th Dist. Highland No. 16CA22, 2016-Ohio-8293, ¶ 24 (“although the agency

may have prevented Bates from physically visiting the child while he was in prison,

there was no evidence that it prevented him from contacting his son in other ways, e.g.,

by telephone or mail”); In re Wright, 5th Dist. Stark No. 2003CA00347, 2004-Ohio-1094,




                                            13
¶ 19 (the presumption of abandonment was not rebutted by the parent “sending a few

letters to his attorney to let her know he was ‘still interested in [his] son’”).

       {¶47} For the foregoing reasons, Robinson failed to rebut the presumption of

abandonment and, therefore, the second assignment of error is without merit.




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