[Cite as In re J.D., 2011-Ohio-1458.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




IN THE MATTER OF:

        J. D.,                                              CASE NO. 5-10-34

ALLEGED ABUSED, NEGLECTED
AND DEPENDENT CHILD,
                                                            OPINION
        [AMANDA CONTRERAS
        - APPELLANT].



                 Appeal from Hancock County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 20930010

                                        Judgment Affirmed

                             Date of Decision: March 28, 2011




APPEARANCES:

        Nicole M. Winget for Appellant

        Mark C. Miller and Benjamin Hall for Appellee
Case No. 5-10-34



SHAW, J.

       {¶1} Mother-appellant, Amanda Contreras (“Amanda”), appeals the

October 1, 2010 judgment of the Common Pleas Court, Juvenile Division, of

Hancock County, Ohio, granting permanent custody of her child, J.D., to Hancock

County Job and Family Services-Children’s Protective Services Unit (“the

Agency”).

       {¶2} The facts relevant to this appeal are as follows.       J.D. was born

addicted to heroin and other opiates in January of 2009. When confronted about

J.D.’s positive test results for opiates five days after he was born, Amanda

admitted to using a number of drugs during the first five months of her pregnancy

but later admitted to using them during the first six months of pregnancy.

Eventually, Amanda acknowledged to the Agency that she used a drug called

Dilaudid, an opiate, approximately 1-1½ weeks before giving birth. According to

medical personnel, J.D.’s withdrawal was consistent with significant exposure to

opiates throughout the pregnancy, and Contreras later admitted to using opiates a

few days prior to delivering J.D. As a result of his addiction, J.D. had to be

weaned from the drugs, which took a significant amount of time because it had to

be done gradually due to the risk of death associated with withdrawal in infants.

       {¶3} On February 19, 2009, the Agency filed an ex parte request for

emergency temporary custody of J.D. upon his release from the hospital, and the

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trial court granted the Agency’s request. The following day, a hearing was held on

the request for emergency temporary custody. J.D.’s parents were present and

represented by counsel at this hearing.       The trial court granted emergency

temporary custody of J.D. to the Agency. The Agency filed a complaint in the

trial court that same day, alleging that J.D. was neglected, abused, and dependent.

       {¶4} J.D. was released from the hospital on March 10, 2009, and placed

into foster care. On May 1, 2009, the adjudicatory hearing was conducted. At that

time, the parents admitted that J.D. was neglected, abused, and dependent, and the

trial court adjudicated him as such. The parties agreed to proceed to disposition

and also agreed that the disposition would be for J.D. to be placed into the legal

custody of his maternal uncle and aunt, Aaron and Jennifer Contreras, but under

the protective supervision of the Agency.

       {¶5} J.D. remained with his aunt and uncle throughout most of the summer.

However, on July 30, 2009, the Agency requested, ex parte, to change J.D.’s

disposition from legal custody with his aunt and uncle to that of temporary

custody with the Agency. The reason for this change was based upon a request

from the aunt and uncle that the Agency resume custody of J.D. because they had

J.D.’s nine-year-old sibling living with them and had four young children of their

own, one of them a newborn, making it very difficult for them to care for J.D.,



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Case No. 5-10-34



who was only six-months-old at the time.1 At the time, the Agency notified the

trial court that J.D.’s father had last informed the caseworker that he planned to

move to Florida but that it had no current address or phone number for him. In

addition, Amanda last informed the caseworker that she was homeless, living in

Toledo, Ohio, and was planning to surrender to law enforcement as there was a

warrant for her arrest but had not done so, and the caseworker had no current

contact information for Amanda. On August 6, 2009, the trial court held a hearing

on the matter and granted temporary custody of J.D. to the Agency. J.D. was then

placed back into foster care. J.D. remained in the same foster home from August

of 2009 until March of 2010. At that time, the foster family moved to another

State, and J.D. was placed with different foster parents, where he remains.

        {¶6} From May of 2009 until March of 2010, the Agency was unaware of

Amanda’s whereabouts, and she had no contact with J.D. However, in March of

2010, Amanda was located in West Virginia. The Agency learned that she had

given birth to another child, B.D., in January of 2010, and that this infant was

severely injured by his father, who is also J.D.’s biological father. When Amanda

took B.D. to the hospital for his injuries, she gave a false name for herself. After

discovering the nature of B.D.’s injuries, which included several broken ribs and a


1
  According to the record, the aunt and uncle did not request that J.D.’s sibling be removed because of her
relationship with them, her desire to remain with them, and her age, which meant that she did not require
the level of care and attention that a baby requires.

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Case No. 5-10-34



skull fracture, Amanda left the hospital with B.D. However, she returned to the

hospital a short while later after speaking with her mother.

        {¶7} The police were summoned and Amanda was questioned about B.D.’s

injuries. She continued to use the false name she provided to the hospital and told

the investigator that she had met a man on the internet, was staying in a hotel with

him, and left the baby alone with this man while she showered but that she had no

idea how the injuries occurred. Amanda’s mother was also at the hospital and

provided the same story.

        {¶8} Approximately five to six hours later, Amanda’s mother asked to

speak with a pastor. After speaking with the pastor, Amanda’s mother told the

investigator that her daughter was lying, that Amanda lived with her husband

(J.D.’s and B.D.’s father), that they had two children in the custody of the State of

Ohio, that Amanda had some unresolved legal issues in Ohio, and that her real

name was Amanda Duran.2                Amanda’s mother also told the investigator that

B.D.’s father had a drinking problem and a temper and she suspected that he

caused B.D.’s injuries. B.D.’s and J.D.’s father was later indicted on charges

stemming from the abuse of B.D., pled guilty, and was awaiting sentencing of

anywhere from four to twenty years in prison. Amanda was not charged with any

offense relating to the abuse suffered by B.D.
2
 At some point during the pendency of this action, Amanda married J.D.’s father and took his last name.
However, the filings in this case refer to her by her maiden name of Contreras.

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       {¶9} On March 24, 2010, Amanda was arrested in West Virginia after the

authorities discovered there was a warrant from Ohio for her arrest. Amanda was

then transported back to Hancock County, Ohio. On April 22, 2010, the Hancock

County Common Pleas Court found that Amanda had violated the terms of her

community control that she was placed under in January of 2009, in two cases:

one case consisted of two convictions for trafficking in heroin, one a felony of the

third degree and the other a felony of the fourth degree; and the second case was a

conviction for forgery, a felony of the fifth degree. As a result of these violations,

Amanda was given an aggregate sentence of three years and eleven months in

prison with jail-time-credit for seventy-four days.

       {¶10} On June 28, 2010, the Agency filed a motion for permanent custody

of J.D. On August 25, 2010, Amanda’s court-appointed counsel filed a motion to

withdraw as her counsel due to health issues he was experiencing. This motion

was granted, and new counsel was appointed to represent Amanda on August 30,

2010. On September 9, 2010, new counsel requested that the permanent custody

hearing scheduled for the end of that month be continued. This request was

denied on September 13, 2010.

       {¶11} The permanent custody hearing was held on September 28-29, 2010.

On October 1, 2010, the trial court granted permanent custody of J.D. to the



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Case No. 5-10-34



Agency and terminated Amanda’s and J.D.’s father’s parental rights.3 Amanda

now appeals and asserts four assignments of error for our review.

                           FIRST ASSIGNMENT OF ERROR

        THE JUDGMENT OF THE TRIAL COURT TO GRANT
        HANCOCK COUNTY JOB AND FAMILY SERVICES
        PERMANENT CUSTODY WAS CONTRARY TO THE
        MANIFEST WEIGHT OF THE EVIDENCE.

                         SECOND ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED IN GRANTING PERMANENT
        CUSTODY FOR THE CHILD BECAUSE IT WAS NOT IN
        HIS BEST INTEREST.

                           THIRD ASSIGNMENT OF ERROR

        THE HANCOCK COUNTY JOB AND FAMILY SERVICES
        FAILED ITS DUTY TO USE REASONABLE CASE
        PLANNING    AND    DILIGENT    EFFORTS AND
        REUNIFICATION WITH THE PARENT.

                         FOURTH ASSIGNMENT OF ERROR

        THE TRIAL COURT ABUSED ITS DISCRETION BY
        DENYING  THE   APPELLANT’S  REQUEST   FOR
        CONTINUANCE DUE TO RECENTLY APPOINTED NEW
        COUNSEL.

        {¶12} For ease of discussion, we elect to address the assignments of error

out of the order in which they appear and to address the first and second

assignments of error, which are interrelated, together.

3
  J.D.’s father was not present for this hearing because he was in custody awaiting sentencing in West
Virginia. However, his court-appointed attorney was present and participated in the hearing. The father
did not appeal the trial court’s grant of permanent custody.

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Case No. 5-10-34



                             Third Assignment of Error

       {¶13} In her third assignment of error, Amanda asserts that the trial court

erred in finding that the Agency made reasonable efforts to return her child to her.

More specifically, Amanda contends that the Agency failed to follow up on the

treatment or services that Amanda was receiving while incarcerated, thereby

failing in its duty to use reasonable case planning and diligent efforts towards

reunification.

       {¶14} The Revised Code imposes a duty on the part of children services

agencies to make reasonable efforts to reunite parents with their children where

the agency has removed the children from the home. R.C. 2151.419; see, also, In

re Brown (1994), 98 Ohio App.3d 337, 344, 648 N.E.2d 576. Further, the agency

bears the burden of showing that it made reasonable efforts. R.C. 2151.419(A)(1).

“Case plans are the tools that child protective service agencies use to facilitate the

reunification of families who * * * have been temporarily separated.” In re Evans,

3rd Dist. No. 1-01-75, 2001-Ohio-2302.         To that end, case plans establish

individualized concerns and goals, along with the steps that the parties and the

agency can take to achieve reunification. Id. Agencies have an affirmative duty to

diligently pursue efforts to achieve the goals in the case plan. Id. “Nevertheless,

the issue is not whether there was anything more that [the agency] could have

done, but whether the [agency’s] case planning and efforts were reasonable and

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Case No. 5-10-34



diligent under the circumstances of this case.” In re Leveck, 3rd Dist. Nos. 5-02-

52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 10.

        {¶15} In the case sub judice, the Agency was awarded temporary custody

of J.D. because he was born addicted to three opiates due to his mother’s drug

usage throughout her pregnancy. In March of 2009, a case plan was developed

and the trial court adopted this plan. Among the concerns identified in this plan

was Amanda’s need for a drug and alcohol abuse assessment at Century Health

and to follow all recommendations including attending individual counseling,

educational groups, support groups, and to complete the Life Skills program.4 The

Agency was to provide Amanda with the necessary referrals, transportation if

needed, and to assist with payment for these services.                         The case plan also

identified a concern that Amanda needed parenting education. As such, the plan

required Amanda to participate in parent education and to follow all

recommendations made by the parent educator. Once again, the Agency was to

provide the necessary referral. In addition, the Agency was to obtain service

provider reports and to make regular home visits to discuss parent education with

Amanda.




4
  The case plan also identified similar concerns regarding J.D.’s father. However, as previously noted,
J.D.’s father did not appeal the grant of permanent custody; thus, we will not discuss the case plan as it
pertains to him.

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Case No. 5-10-34



      {¶16} A new case plan was filed on August 17, 2009, shortly after J.D. was

removed from the care of his aunt and uncle and returned to foster care. This plan

noted that J.D.’s parents were no longer in the area and had not been participating

in the case plan. It also noted that Amanda was running from law enforcement

because of a warrant issued for her arrest from Hancock County in May of 2009.

In addition to the concerns previously identified, the case plan also identified

J.D.’s need for safe and stable housing. The plan required Amanda to notify the

Agency of any change of address and to report the name of any person staying

overnight or living in the home. In turn, the Agency was to make regular home

visits, make any necessary housing referrals, and to monitor the home’s safety.

The trial court adopted this plan on September 2, 2009.

      {¶17} At the beginning of the permanent custody hearing, the parties

stipulated that the case plan was reasonably calculated to correct the reasons that

J.D. was removed. Megan Lauck, the assigned caseworker, testified that she

discussed the original case plan with Amanda in March and in April of 2009, and

that Amanda indicated she understood it. Lauck further testified that Amanda was

assessed by Century Health and was to attend substance abuse groups and

individual counseling.     According to Lauck, Amanda did attend some

appointments with Century Health but left the State of Ohio in May of 2009, and

never returned to Century Health. Lauck also testified that Amanda completed a

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Case No. 5-10-34



parent education class in February of 2009, but that Lauck did not have the

opportunity to witness whether Amanda could implement anything that she

learned from this class because she left Ohio and never visited with J.D. after May

of 2009. Lauck testified that the only portions of the case plan that Amanda

completed were attending a parent education class, having her substance abuse

assessment, and attending some counseling sessions at Century Health. However,

she did not complete the counseling at Century Health.

      {¶18} Although the parties stipulated that the case plan was reasonably

calculated to correct the reasons for J.D.’s removal, Amanda asserts that the

Agency failed to make diligent efforts to reunify J.D. with Amanda when it did not

follow up with Amanda’s utilization of the Tapestry program while in prison.

Amanda bases this assertion on the following testimony. In June of 2010, while in

prison, Amanda told Lauck that she was going to attend the Tapestry program in

prison, which helps inmates with substance abuse issues. On cross-examination,

Lauck testified that she did not look into the Tapestry program while visiting

Amanda because the prison had very strict rules regarding visitation and she was

not permitted to speak with any staff members at that time. Amanda later testified

that she was participating in the Tapestry program and explained how the program

helps offenders who suffer from addictions. In light of this testimony, Amanda

contends that Lauck should have reviewed the treatment and services Amanda was

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Case No. 5-10-34



receiving so that she could give accurate testimony on Amanda’s progress and

could accurately develop and maintain a case plan aimed at reunification. We find

these contentions without merit.

       {¶19} The case plan was clearly designed to help Amanda with her

substance abuse issues, and the evidence demonstrated that Lauck followed

through with the responsibilities of the Agency that were outlined in that plan.

Amanda is the one who chose not to attend all of her counseling sessions at

Century Health. Amanda is also the one who chose not to appear in criminal

court, which resulted in a warrant for her arrest, to leave the State of Ohio, to lie to

her caseworker regarding her whereabouts, to not have any contact with J.D. at

any point after May 20, 2009, and to make no attempt to contact the caseworker to

determine her child’s well-being even after her husband, with whom she was

living, visited J.D. and was aware that J.D. was no longer in the care of family

members. Further, Amanda did not begin the Tapestry program until sometime in

May or June after she was imprisoned at the Ohio Reformatory for Women, over a

year after she stopped visiting J.D., and she did not provide any evidence to

corroborate her testimony regarding the treatment she was receiving or that would

show her progress, if any, while in prison.

       {¶20} In short, the Agency’s failure to look into the Tapestry program and

Amanda’s progress therein did not amount to a failure to facilitate the

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reunification of this family. Rather, the Agency was severely hampered in its

ability to reunify this family because Amanda left the area and provided the

Agency with no way of contacting her, let alone assisting her to remedy the

conditions that led to J.D.’s initial removal and continued removal. Under these

circumstances, the trial court did not err in determining that the Agency’s case

planning and efforts in this case were reasonable and diligent, and the third

assignment of error is overruled.

                       First and Second Assignments of Error

       {¶21} In her first assignment of error, Amanda contends that the trial

court’s decision to grant permanent custody of J.D. to the Agency was against the

manifest weight of the evidence because the evidence showed that she made

several steps towards remedying the condition that was the cause of J.D.’s

removal from her care, i.e. her substance abuse. In her second assignment of

error, Amanda asserts that the trial court erred in finding that permanent custody

was in J.D.’s best interest.

       {¶22} As an initial matter, we note that “[i]t is well recognized that the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3rd

Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio

St.3d 46, 48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent

“must be afforded every procedural and substantive protection the law allows.”

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Case No. 5-10-34



In re Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d

45. Thus, it is with these constructs in mind that we proceed to determine

whether the trial court erred in granting permanent custody of the children to the

Agency.

        {¶23} Section 2151.414 of the Revised Code provides, inter alia, that a trial

court

        may grant permanent custody of a child to a movant if the court
        determines at the hearing held pursuant to division (A) of this
        section, 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
        any of the following apply:

        (a) The child is not abandoned or orphaned, has not 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, * * * 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.

        (b)    The child is abandoned.

        ***

R.C. 2151.414(B)(1)(a-b) (emphasis added). The Supreme Court of Ohio has held

that “[c]lear and convincing evidence is that measure or degree of proof which

will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469,

477, 120 N.E.2d 118. Further, “[i]t is intermediate; being more than a mere

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Case No. 5-10-34



preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”

Id., citing Merrick v. Ditzler (1915), 91 Ohio St. 256, 110 N.E. 493. In addition,

when “the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the

trier of facts had sufficient evidence before it to satisfy the requisite degree of

proof.” Cross, supra (citations omitted); see, also, In re Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613.

      {¶24} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a),

the Revised Code states as follows:

      (E) In determining at a hearing held pursuant to division (A) of
      this section * * * 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 held pursuant to division (A) of this
      section * * * that one or more of the following exist as to each of
      the child’s parents, the court shall enter a finding that the child
      cannot be placed with either parent within a reasonable time or
      should not be placed with either parent:

      (1) Following the placement of the child outside the child’s
      home and notwithstanding reasonable case planning and diligent
      efforts by the agency to assist the parents to remedy the
      problems that initially caused the child to be placed outside the
      home, the parent has failed continuously and repeatedly to
      substantially remedy the conditions causing the child to be
      placed outside the child’s home. In determining whether the
      parents have substantially remedied those conditions, the court

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Case No. 5-10-34



      shall consider parental utilization of medical, psychiatric,
      psychological, and other social and rehabilitative services and
      material resources that were made available to the parents for
      the purpose of changing parental conduct to allow them to
      resume and maintain parental duties.

      ***

      (10) The parent has abandoned the child.

      ***

      (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.

      ***

      (16) Any other factor the court considers relevant.

R.C. 2151.414(E) (emphasis added).

      {¶25} Here, the trial court found that that J.D. could not be placed with

either parent within a reasonable period of time or should not be placed with the

parents. Amanda asserts that in doing so, the court relied heavily on the parents’

failure to remedy the conditions causing J.D. to be removed from her care but that

such a finding was against the manifest weight of the evidence. In support of her

position, Amanda states that J.D. was removed from her care because her abuse of

drugs caused him to be born addicted to those drugs and that her testimony

revealed that she has done everything to conquer her addiction. More specifically,

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Amanda testified that she enrolled herself in treatment in West Virginia prior to

being incarcerated, that she has not abused drugs in several months, and that she is

currently involved in the Tapestry program in prison, which is a program to help

inmates who have substance abuse issues.

      {¶26} As previously noted, J.D. was placed into the temporary custody of

the Agency because he was born addicted to opiates due to Amanda’s extensive

drug use while pregnant with J.D. In order to help remedy this situation, the case

plan required Amanda to follow any recommendations made by Century Health

for treatment. The case plan also permitted Amanda to visit J.D. twice a week for

two hours each time, supervised, which would allow the two to bond with one

another. Lauck testified that she discussed the case plan with Amanda during

home visits with her in March and April of 2009, and that Amanda indicated she

understood the plan. According to Lauck, Amanda attended some counseling

sessions at Century Health, but by May of 2009, she had stopped attending.

During this time, she also visited J.D. seventeen times, although she had twenty-

four visits available to her. The last time Amanda ever visited with J.D. was on

May 20, 2009, when he was less than four months old.

      {¶27} Robin Brown, a mental health substance abuse counselor at Century

Health, testified that Amanda received an assessment at Century Health on

November 6, 2008, and was diagnosed as opiate dependent.            Based on this

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Case No. 5-10-34



diagnosis and pursuant to the terms of her community control stemming from her

felony convictions, as well as the case plan of the Agency that was later

established, she entered into treatment at Century Health. This treatment required

that she attend individualized counseling and two group treatments per week.

Brown testified that from November of 2008 until the time of Amanda’s discharge

from services due to non-compliance on May 20, 2009, she had attended only

twenty-three of her fifty-nine scheduled appointments with the last appointment

she actually attended being April 2, 2009.

      {¶28} In May of 2009, Amanda informed Lauck that she was living in

Toledo and was in the Compass House, an in-patient substance abuse treatment

center. However, Amanda did not provide Lauck with any contact information or

proof of her treatment at Compass House, and Lauck did not have a medical

release form from Amanda to obtain access to Compass House records.

According to Amanda’s supervising officer, Joe Schroeder, Amanda was

scheduled to be in court in Hancock County on May 28, 2009, for a community

control revocation hearing based upon a drug screen of her that showed she was

positive for opiates. Lauck went to court that day to speak with Amanda, but

Amanda did not appear for court. As a result of her failure to appear, a bench

warrant for her arrest was issued. After this time, Amanda’s whereabouts were

unknown to the Agency and to her supervising officer until her arrest in West

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Virginia on March 24, 2010, ten months later. Lauck testified that Amanda called

her twice during the summer of 2009, and told her that she was homeless and

living in Toledo. She also told her that she had terminated her pregnancy5 and had

a new boyfriend. After Amanda was arrested and transported back to Ohio, Lauck

visited with her on four occasions and discussed the case plan with her again. By

this time, the plan had been amended to include J.D.’s need for a safe and stable

living environment.

         {¶29} Amanda also testified at the permanent custody hearing. During her

testimony, she did not dispute any of the testimony of Lauck, Schroeder, or

Brown.      Amanda testified that she left Compass House before completing

treatment because she discovered there was a warrant for her arrest. She testified

that she and J.D.’s father decided to leave Ohio and move to West Virginia in an

effort to quit using drugs. According to Amanda, she started going to a methadone

clinic and attended counseling. She also testified that she no longer used drugs

and was currently participating in the Tapestry program in prison. She explained

that this program involves behavior modification to enable inmates to stop using

drugs.

         {¶30} The trial court, as the trier of facts, has the discretion to determine

what evidence it finds credible and not credible. Here, the court relied on the
5
 The baby that Amanda told Lauck she aborted was actually B.D., who was born approximately seven
months after Amanda told Lauck she had aborted him.

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Case No. 5-10-34



undisputed evidence that Amanda did not comply with the case plan’s requirement

that she follow through with substance abuse services with Century Health in

order for it to determine that she did not substantially remedy the conditions

causing J.D. to be removed from the home. The court specifically noted that it

considered Amanda’s utilization of social and rehabilitative services and material

resources that were made available to her with the purpose of changing her

conduct to allow her to assume and maintain her parental duties. Other than her

testimony, Amanda presented no evidence of her participation and/or progress in

the Compass House, the methadone clinic (including even the name of this clinic),

or the Tapestry program. Given Amanda’s undisputed history of fabrication, the

trial court was certainly free to disregard Amanda’s uncorroborated testimony.

Thus, we cannot conclude that the trial court’s finding as to R.C. 2151.414(E)(1)

was against the manifest weight of the evidence.

       {¶31} Furthermore, even assuming arguendo that the R.C. 2151.414(E)(1)

finding was against the manifest weight of the evidence, the Revised Code

requires a trial court to enter a finding that the child cannot or should not be placed

with his parents within a reasonable time if it finds that any one of factors in R.C.

2151.414(E) are present. In addition to its finding under R.C. 2151.414(E)(1), the

trial court found that J.D. was abandoned.



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      {¶32} Abandonment is a factor that can be considered for both prongs of

the termination of parental rights test: the determination under R.C.

2151.414(B)(1)(a) or (b) and the determination of the child’s best interest. See In

re D.K., 3rd Dist. No. 1-09-16, 2009-Ohio-5438, ¶ 25.     The Revised Code states

that “[f]or the purposes of this chapter, 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). “This statute creates a

presumption of abandonment, which can then be rebutted by the parent.” Id.,

citing In re Cravens, 3rd Dist. No. 4-03-48, 2004-Ohio-2356, ¶ 23.

      {¶33} The record reveals that at the beginning of the permanent custody

hearing both parents stipulated that J.D. was abandoned. Although they entered

this stipulation with the caveat that they were making the stipulation because they

were both incarcerated, they, nevertheless, agreed that J.D. was abandoned.

Further, the trial court found, and the undisputed evidence revealed, that May 20,

2009, was the last time Amanda visited J.D. The permanent custody motion was

filed in late June of 2010, and the hearing was held in late September of 2010,

both events being well over a year from Amanda’s last visit. Thus, Amanda failed

to visit or maintain contact with J.D. for more than ninety days, creating a

presumption of abandonment which she did not rebut in any way. This finding,

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alone, would mandate that the trial court find that J.D. could not be placed with

Amanda within a reasonable time or should not be placed with her pursuant to

R.C. 2151.414(E)(10).6             Likewise, a finding of abandonment satisfies the

requirements of R.C. 2151.414(B)(1)(b) without the need to find that J.D. could

not or should not be placed with his parents.

        {¶34} Lastly, the trial court also found that the parents were incarcerated

with J.D.’s father due to receive a sentence of four to twenty years, according to

his plea agreement, a copy of which was admitted by the Agency without

objection as CPSU Exhibit 4, and Amanda serving a sentence that would not

expire until March of 2014. Given the length of these sentences and the evidence

that both parents were incarcerated at the time the motion for permanent custody

was filed in June of 2010, the evidence also revealed that they would not be able

to care for J.D. within eighteen months from the time of the filing of the motion

for permanent custody, i.e. December of 2011. Thus, even if we were to conclude

that the trial court erred in finding R.C. 2151.414(E)(1) applied, which we

expressly do not conclude, the trial court did not err in finding that J.D. could not

be placed with his parents within a reasonable time or should not be placed with

his parents because R.C. 2151.414(E)(12) applied as well.



6
  The trial court also found, and the undisputed evidence revealed, that J.D.’s father last visited him on
January 10, 2010, which would also render him abandoned by his father.

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       {¶35} Although we conclude that the trial court’s decision regarding R.C.

2151.414(B)(1)(a) and (b) was not against the manifest weight of the evidence,

before granting permanent custody of J.D. to the Agency, the trial court also had

to find that permanent custody to the Agency was in J.D.’s best interest. Amanda

contends in her second assignment of error, that the trial court erred in finding that

permanent custody was in J.D.’s best interest because the court acted outside of its

discretion in finding that Amanda’s chances of judicial release “appear tenuous,”

that permanent custody would separate J.D. from his siblings, which is not in his

best interest, and that the court’s reliance on Amanda’s addiction as a basis for

determining J.D.’s best interests is misplaced because Amanda is conquering these

addictions.

       {¶36} In order to determine whether granting permanent custody to an

agency is in a child’s best interest, the trial court must consider all relevant

factors, including, but not limited to, five enumerated factors. R.C. 2151.414(D).

These enumerated factors are

       (1) The interaction and interrelationship of the child with the
       child’s parent, siblings, relatives, foster caregivers and out-of-
       home providers, and any other person who may significantly
       affect the child;

       (2) 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;


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        (3) The custodial history of the child, including whether the
        child has been in the temporary custody of one or more public
        children services agencies * * * for twelve or more months of a
        consecutive twenty-two month period * * *;

        (4) 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; and

        (5) Whether any of the factors in divisions (E)(7) to (11) of this
        section apply in relation to the parents and child.

        {¶37} The trial court specifically stated in its entry that it had considered all

of these factors. The court found that J.D. did not have a relationship with

Amanda, that her lack of involvement with J.D. was primarily caused by her

addiction, that she failed to maintain contact with her caseworker, and failed to

visit J.D. A review of the record reveals that these findings were amply supported.

        {¶38} As previously discussed,       the undisputed evidence revealed that

Amanda had not seen J.D. since he was approximately four months old and he was

approximately twenty months old at the time of the hearing. Further, Amanda’s

court hearing for which she did not appear was for a revocation of her community

control because she tested positive for opiates, the substance to which she was

addicted. This resulted in the bench warrant being issued and her absconding from

Ohio.    Rather than comply with the treatment recommendations of Century

Health, Amanda chose not to attend more than half of her scheduled counseling

sessions and fled to West Virginia. Due to the outstanding warrant, she remained

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in West Virginia until her arrest, which occurred after B.D. was severely injured,

she provided a false name, and did not come forward with her real name until her

mother talked to a minister and reported the truth of Amanda’s identity to the

authorities. At no point prior to her arrest did Amanda notify the Agency of her

whereabouts or otherwise maintain contact with the Agency in order to monitor

J.D.’s well-being.      All of the evidence before the trial court indicated that

Amanda’s actions and/or inaction stemmed in one way or another from her

addiction to opiates.

       {¶39} The trial court also found that J.D. needed a legally secure permanent

placement and that this type of placement could not be achieved without granting

permanent custody to the Agency.         This finding was supported by Lauck’s

testimony regarding J.D.’s need for a legally secure permanent placement and that

his current foster family is interested in adopting him.

       {¶40} In addition, the trial court considered J.D.’s wishes, which, due to his

age, were expressed through his court-appointed special advocate/guardian ad

litem (“CASA/GAL”), Chastity Miller.              Miller prepared a report and

recommendation for the trial court and also testified that the Agency should be

granted permanent custody of J.D. Miller also stated that she was appointed as

J.D.’s CASA/GAL when he was approximately one month old, that she has seen

him in each of his placements, that she has seen “tremendous progress in his

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Case No. 5-10-34



current placements versus all the other ones,” that he shows more signs of

attachment to the current foster family, seems happier now, and his progress is

much better in his current placement than in any of his past placements. (P.C.

Hrg., 9/29/10, pp. 333-334.)

      {¶41} The trial court also found that Amanda did not meet other goals of

the case plan, including substance abuse and mental health counseling and

establishing safe and stable housing. As previously discussed, other than the short

amount of time that Amanda attended sessions at Century Health, the only

evidence before the court that Amanda participated in any form of mental health

and substance abuse counseling was Amanda’s own testimony. Once again, in

light of the number of fabrications that Amanda admittedly made, the trial court

was well within its discretion as the fact-finder to disbelieve her testimony.

Further, Amanda’s reported homelessness in Toledo, her move to West Virginia

where she lived with her husband who later severely injured their newborn baby,

and subsequent incarceration amply demonstrated that she failed to establish safe

and stable housing.

      {¶42} Given the evidence before the trial court, we find that the trial court

did not err in determining that granting permanent custody of J.D. to the Agency

was in J.D.’s best interest. Although there was evidence that J.D. lived with his

sister, maternal uncle and aunt, and his cousins for approximately four months,

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had continued to visit with them once a week for approximately eight months, and

one other time between March and September of 2010, the totality of the evidence

supports the trial court’s determination that permanent custody was in J.D.’s best

interest. As noted by counsel for the Agency in closing arguments, “[J.D.] came

into this world addicted. Since that time his parents have abandoned him, been

sent to prison, failed to complete a case plan – among other things. [J.D.] has been

lucky enough to be placed with a foster home where he’s happy, getting along

very well and he needs permanence in his life. He deserves it.”

       {¶43} For all of these reasons, we do not find that the trial court’s granting

of permanent custody was against the manifest weight of the evidence.

Accordingly, the first and second assignments of error are overruled.

                            Fourth Assignment of Error

       {¶44} Amanda asserts in her fourth assignment of error that the trial court

erred by not granting her motion to continue the permanent custody hearing. The

decision whether to grant a continuance is within the sound discretion of the trial

court and will not be reversed absent an abuse of that discretion. In re T.C., 140

Ohio App.3d 409, 747 N.E.2d 881, 2000-Ohio-1769. An abuse of discretion

connotes more than a mere error in law or judgment; it implies an arbitrary,

unreasonable, or unconscionable attitude on the part of the trial court. Blakemore

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

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         {¶45} Juvenile Rule 23 provides that “[c]ontinuances shall be granted only

when imperative to secure fair treatment for the parties.” To determine whether

the trial court has abused its discretion in denying a continuance, the appellate

court must apply a balancing test considering all competing interests. In re: T.C.,

supra.

         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.

Id. at 417, quoting State v. Unger (1981), 67 Ohio St.2d 65, 67-68, 423 N.E.2d

1078. While these factors provide basic guidance, we are mindful that “‘[t]here

are no mechanical tests for deciding when 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, 67 Ohio St.2d at 67, 423 N.E.2d 1078, quoting Ungar

v. Sarafite (1964), 376 U.S. 575, 589.

         {¶46} When this case initially arose in February of 2009, Amanda and

J.D.’s father were represented by the same attorney. On April 23, 2010, that

attorney requested permission to withdraw from the case because of a conflict of

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interests between Amanda and J.D.’s father. The trial court granted this motion,

and Amanda was appointed a different attorney on May 5, 2010. On August 25,

2010, Amanda’s new attorney requested permission to withdraw because of health

issues he was experiencing. This request was granted, and Amanda was appointed

new counsel on August 30, 2010. In the meantime, a “reasonable efforts hearing”

had been scheduled for September 9, 2010, at 11:00 a.m. At 10:42 a.m., on

September 9, 2010, Amanda’s new attorney filed a motion to continue the

permanent custody hearing, scheduled for September 28-30, 2010. In this motion,

counsel stated that the continuance was being requested “to acquaint counsel with

the facts of her case to effectively advocate for alternatives to Permanent

Custody.” (Mot. to Cont., 9/10/10.) However, counsel did not state how long of a

continuance he would need to acquaint himself with the facts of the case. The

reasonable efforts hearing was held as scheduled with Amanda’s attorney

attending, and after the hearing, the trial court filed its entry denying the motion to

continue. This entry did not include an explanation of the trial court’s decision.

       {¶47} As previously noted, the permanent custody hearing occurred as

scheduled on September 28-29, 2010. At the beginning of the hearing, the trial

court asked if there were any preliminary matters before it began hearing evidence

on the permanent custody motion. Counsel for the Agency proceeded to outline a

number of stipulations, mostly involving exhibits. Amanda’s attorney informed

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the court that Amanda was in agreement with the stipulations outlined by the

Agency, asked for an additional stipulation regarding a home study of J.D.’s

paternal grandparents that was performed in Florida, and later clarified Amanda’s

position on the stipulation that J.D. was abandoned due to her incarceration. At no

point did Amanda’s attorney renew his motion for a continuance or otherwise

indicate that he was not ready to proceed or that he was unprepared in some way.

Counsel for Amanda cross-examined witnesses for the Agency during the hearing

and presented two witnesses in Amanda’s case-in-chief: Aaron Contreras and

Amanda, herself.

      {¶48} Upon review of the record, we do not find the trial court’s decision to

deny the continuance amounted to an abuse of discretion. Notably, counsel had

nearly a month to prepare for the hearing and did not provide any indication in his

motion of how much more time he would need to prepare. Moreover, counsel did

not renew his motion for a continuance or otherwise indicate that he was not

acquainted with the facts of the case or unprepared to advocate for alternatives to

permanent custody. To the contrary, the record reveals that Amanda’s counsel

was well prepared and able to advocate for her position quite well.         While

ultimately he was not successful, this was not due to an ineffective performance on

his part, and his preparedness was not an issue. Thus, Amanda has not shown that

a continuance was necessary, which would warrant this Court concluding that the

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trial court abused its discretion in denying this motion, or that she suffered any

prejudice as a result of the court’s denial of her request for a continuance. The

fourth assignment of error is overruled.

       {¶49} For all of these reasons, the judgment of the Common Pleas Court,

Juvenile Division, of Hancock County, Ohio, is affirmed.

                                                              Judgment Affirmed

ROGERS, P.J., and WILLAMOWSKI, J., concur.




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