[Cite as In re Fontes Children, 2014-Ohio-1221.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                                  :   JUDGES:
                                                   :
       FONTES CHILDREN                             :   Hon. W. Scott Gwin, P.J.
                                                   :   Hon. Sheila G. Farmer, J.
       MINOR CHILDREN                              :   Hon. Craig R. Baldwin, J.
                                                   :
                                                   :
                                                   :   Case No. 2013CA00242
                                                   :
                                                   :   OPINION



CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court
                                                       of Common Pleas, Juvenile Division
                                                       Case No. 2013 JCV 00321



JUDGMENT:                                              Affirmed




DATE OF JUDGMENT:                                      March 24, 2014




APPEARANCES:

For Appellee                                           For Appellant Mother

JERRY A. COLEMAN                                       MARY G. WARLOP
Stark County Department of Job &                       Abney Law Office, LLC
Family Services Legal Counsel                          116 Cleveland Ave. NW, Suite 500
221 Third Street SE                                    Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2013CA00242                                                     2

Baldwin, J.

      {¶1}    Appellant A.W. appeals from the November 15, 2013 Judgment Entry of

the Stark County Court of Common Pleas, Family Court Division, terminating her

parental rights and granting permanent custody of L.F. and K.F. to the Stark County

Department of Job and Family Services.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant A.W. is the mother of L.F. (DOB 9/12/11) and K.F. (DOB

9/25/12). On April 3, 2013, a complaint was filed alleging that the two children were

dependent and neglected.       Stark County Department of Job and Family Services

(SCDJFS) sought temporary custody of the children. Following a shelter care hearing

on April 4, 2013, the children were placed into the temporary custody of SCDJFS.

      {¶3}    A hearing was scheduled for May 1, 2013. Appellant, who was served,

failed to appear for the same. The Magistrate, in an Order filed on May 2, 2013, set an

evidentiary hearing for June 25, 2013. On June 25, 2013, neither appellant nor the

child’s   father, who is not a party to this appeal, appeared despite having been served

with notice. Pursuant to a Magistrate’s Decision filed on June 26, 2013, the Magistrate

found the children to be neglected children. The Magistrate, in her Decision, stated that

appellant had signed a safety plan with the agency, but constantly evaded the agency’s

attempts at contact. The Magistrate, in a separate decision filed the same day, found

that reasonable efforts had been made to prevent the need for removal of the children

from the home. The children were continued in the temporary custody of SCDJFS.

      {¶4}    Thereafter, on September 30, 2013, SCDJFS filed a motion seeking

permanent custody of the children. A review hearing was held before a Magistrate on
Stark County, Case No. 2013CA00242                                                       3


October 1, 2013. Appellant did not appear for the hearing. The Magistrate, in her

October 2, 2013 Order, stated that appellant had never appeared for any court hearing,

had “no showed for Deliverance House” and had not visited the children for more than

90 days. The Magistrate also noted that appellant, who admitted to using cocaine, had

not dropped any urines as ordered. A hearing on the motion for permanent custody was

scheduled for November 12, 2013.

      {¶5}     Appellant did not appear on November 12, 2013 but was represented by

counsel. At the hearing, the following discussion took place on the record:

      {¶6}     ATTY FRANK:         Thank you, Your Honor. Um…at this time, our office

just received this case um…about a week and a half ago. Ms. Welsh [appellant] came

to our office to get an attorney. I was assigned to this case I believe at the beginning of

last week. At this point, um…I’ve only spoken to Ms. Welsh once and that was this

morning when she indicated that she is currently at Aultman Hospital, uh…seeking in-

patient drug and alcohol treatment and I believe mental health treatment. Um…at this

point, I have to be honest, I am not currently ready to go forward with the PC, this was

also misfiled (inaudible) at our office as an adjudication hearing, not as a PC hearing.

Um…I did not receive papers that us…Ms. Welsh’s father brought to me, uh…about five

minutes ago.     That I would ha, like an opportunity to go over it.      I’d also like an

opportunity to go over any discovery, what the State has um…so, at this point, I would

just ask for a continuance in this matter.

      {¶7}     THE COURT:          Any objection?

      {¶8}     ATY EOFF:           Your Honor, I would not agree to the motion, only

because we have had this case since April of 2013.           Mother has never founded
Stark County, Case No. 2013CA00242                                                      4


(inaudible) schedule to come to a court hearing. In fact, I think attorney Frank would

need to be appointed today because mother’s never exercised her right to counsel.

Technically speaking. Um…I view this in-patient hospitalization to be a delay tactic,

so…that’s the feeling of the State.

      {¶9}    Transcript at 3-4.

      {¶10}   The trial court then denied the motion for a continuance.

      {¶11}   At the hearing, Lisa Eggenschweiler, an employee with SCDJFS, testified

that she became involved with the children in May of 2013 and that there were concerns

about substance abuse, a dirty home and neglect. She testified that the children had

been in the agency’s custody continuously since June 25, 2013. According to

Eggenschweiler, appellant’s case plan required her to complete a parenting evaluation

at Northeast Ohio Behavioral Heath. While appellant scheduled an appointment for

June 10, 2013, she did not attend and did not call to reschedule. Eggenschweiler also

testified that appellant was to complete a Quest assessment, but was dishonest about

her substance abuse and did not follow through with treatment. She further testified that

appellant was to enter IOP (intensive out-patient treatment) and never did and that

appellant was to be assessed by Deliverance House, but did not make it to the

assessment. While appellant was to submit to urine testing on Mondays, Wednesdays

and Fridays, she failed to submit to any urine screens and that a forensic fluid test that

appellant submitted in May of 2013 was positive for cocaine and marijuana. Appellant

also was to begin Goodwill Parenting after ninety days of sobriety, but was unable to

maintain sobriety. According to Eggenschweiler, there was a bench warrant out for

appellant, who had last visited with her children on June 4, 2013.
Stark County, Case No. 2013CA00242                                                         5


      {¶12}   On   cross-examination,    Eggenschweiler       testified   that    the   Quest

assessment that appellant completed indicated that she needed intensive out-patient

treatment and in–patient treatment. Deliverance House was the in-house treatment.

Appellant had been scheduled for an assessment with Deliverance House on August

26, 2013. Eggenschweiler testified that appellant admitted to her that she had a drug

problem and that appellant knew she needed in-patient treatment. According to her,

appellant “has not demonstrated any motivation to, to do services at all.” Transcript at

11.

      {¶13}   At the best interest hearing, Eggenschweiler testified that the children had

been placed together in a foster home and were doing well. One of the children had a

speech delay. She testified that they were bonded to their foster family and to the other

children in the house and that the family was bonded to them.                    According to

Eggenschweiler, the foster family met the children’s needs.

      {¶14}   Eggenschweiler further testified that she looked into placing the children

with their maternal grandmother, but that the grandmother had violated the safety plan

that was in place before the motion was filed and had given the children back to

appellant. For such reason, and due to other concerns, the agency believed that the

maternal grandmother was not an appropriate placement. Eggenschweiler also testified

that when appellant did visit with the children she spent a lot of time on her cell phone

and often did not interact with them. She stated that it was appellant’s choice not to

have visited with the children since June 4, 2013 and that the children never asked for

appellant. Eggenschweiler testified that the children would benefit from permanency and

the hope of adoption in this case.
Stark County, Case No. 2013CA00242                                                         6


        {¶15}   On redirect, Eggenschweiler admitted that appellant did complete two

assessments and did visit on occasion.

        {¶16}   The Guardian ad Litem, in a written report, recommended that permanent

custody be granted to the agency.

        {¶17}   Pursuant to a Judgment Entry filed on November 15, 2013, the trial court

terminated appellant’s parental rights and granted permanent custody of L.F. and K.F.

to SCDJFS. The trial court found that the children were neglected children, that they

had been abandoned and that it was in their best interest for permanent custody to be

granted. The trial court filed Findings of Fact and Conclusions of Law on the same

date.

        {¶18}   Appellant now raises the following assignment of error on appeal:

        {¶19}   THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

MOTHER’S MOTION TO CONTINUE.

                                                  I

        {¶20}   Appellant, in her sole assignment of error, argues that the trial court erred

in denying her motion for a continuance.

        {¶21}   The decision to grant or deny a motion for continuance rests within the

sound discretion of the trial court. State v. McMilen, 113 Ohio App.3d 137, 680 N.E.2d

665 (3rd Dist .1996). This Court may not reverse a trial court's decision unless we find it

has abused its discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078

(1981). The Supreme Court has defined the term abuse of discretion as demonstrating

the trial court's attitude is unreasonable, arbitrary, or unconscionable. See, e.g.,

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2013CA00242                                                       7


      {¶22}   In evaluating whether the trial court has abused its discretion in denying a

continuance, appellate courts apply a balancing test that takes into account a variety of

competing considerations: “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.” In re B.B., 5th Dist. Stark No.2010CA00151, 2010–Ohio–4618, ¶ 38, citing

Unger, supra, 67 Ohio St.2d at 67–68.

      {¶23}   We find the trial court did not abuse its discretion in denying the motion to

continue the permanent custody hearing because the trial court’s decision was not

arbitrary, unconscionable or unreasonable. As noted by appellee, appellant failed to

appear for any court hearing during the pendency of this case despite service. The

case had been pending since April 3, 2013. Moreover, while appellant was given the

chance to engage in substance abuse treatment throughout this case, she failed to do

so and conveniently waited until the morning of trial to seek in-patient drug and alcohol

treatment at the hospital. Furthermore, appellant made no attempt to obtain counsel

until a week and a half before the November 12, 2013 hearing.

      {¶24}   Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2013CA00242                                              8


      {¶25}   Accordingly, the judgment of the Stark County Court of Common Pleas,

Juvenile Division is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.
