[Cite as In re G.J., 2015-Ohio-266.]


                                           COURT OF APPEALS
                                       MUSKINGUM COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                               :       JUDGES:
                                                :       Hon. W. Scott Gwin, P.J.
G. J.                                           :       Hon. Sheila G. Farmer, J.
                                                :       Hon. Craig R. Baldwin, J.
                                                :
                                                :       Case No. CT2014-0030
                                                :
                                                :       OPINION


CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas Court, Juvenile Division, Case
                                                        No. 21330257

JUDGMENT:                                               Affirmed



DATE OF JUDGMENT:                                       January 20, 2015



APPEARANCES:

For Appellant-Mother                                    For Appellee

ROSE M. FOX                                             MOLLY L. MARTIN
233 Main Street                                         27 North Fifth Street
Zanesville, OH 43701                                    P.O. Box 189
                                                        Zanesville, OH 43702-0189
For Father
                                                        Guardian Ad Litem
SCOTT PATTERSON
2609 Bell Street                                        THOMAS A. McCARTY
Zanesville, OH 43701                                    58 North Fifth Street
                                                        Zanesville, OH 43701
For Sara Joseph

SCOTT T. HILLIS
401 Market Street
Zanesville, OH 43701
Muskingum County, Case No. CT2014-0030                                                  2

Farmer, J.

         {¶1}   On December 4, 2013, appellee, Muskingum County Children Services,

filed a complaint for temporary custody of G.J., born August 27, 2010, alleging the child

to be neglected and dependent due to domestic violence incidents within the home.

Mother of the child is appellant, Jessica Covington; father is Michael Pullie. Appellant

had legal custody of the child and they resided with appellant's husband, Andre

Covington.

         {¶2}   On February 5, 2014, Mr. Pullie filed a motion for legal custody of the

child.

         {¶3}   On February 25, 2014, the child was found to be neglected and dependent

and was placed in the temporary custody of the child's maternal aunt, Sara Joseph.

         {¶4}   A hearing on the legal custody motion was held on June 3, 2014. By entry

filed June 5, 2014, the trial court granted legal custody of the child to Mr. Pullie.

         {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

         {¶6}   "THE TRIAL COURT ERRED WHEN IT AWARDED LEGAL CUSTODY

WITHOUT MAKING A FINDING THAT REASONABLE EFFORTS HAD BEEN TAKEN

TO PREVENT THE CONTINUED REMOVAL OF G.J.".

                                              II

         {¶7}   "THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A

CONTINUANCE OF THE PROCEEDINGS DUE TO THE GUARDIAN AD LITEM'S

REPORT NOT BEING FILED SEVEN DAYS PRIOR TO THE HEARING."
Muskingum County, Case No. CT2014-0030                                                   3


                                             I

       {¶8}   Appellant claims the trial court erred in awarding legal custody of the child

to her biological father without a finding of reasonable efforts by appellee to reunite

mother and child. We disagree.

       {¶9}   On February 5, 2014, Mr. Pullie filed a motion for legal custody of the child

while appellee's temporary custody complaint was pending. Thereafter, on February

25, 2014, the child was found to be neglected and dependent and was placed in the

temporary custody of her maternal aunt, Ms. Joseph.

       {¶10} Appellant argues the trial court violated R.C. 2151.419 by failing to make a

finding on reunification efforts by appellee. Subsection (A)(1) states the following:



              Except as provided in division (A)(2) of this section, at any hearing

       held pursuant to section 2151.28, division (E) of section 2151.31, or

       section 2151.314, 2151.33, or 2151.353 of the Revised Code at which the

       court removes a child from the child's home or continues the removal of a

       child from the child's home, the court shall determine whether the public

       children services agency or private child placing agency that filed the

       complaint in the case, removed the child from home, has custody of the

       child, or will be given custody of the child has made reasonable efforts to

       prevent the removal of the child from the child's home, to eliminate the

       continued removal of the child from the child's home, or to make it

       possible for the child to return safely home. The agency shall have the

       burden of proving that it has made those reasonable efforts. If the agency
Muskingum County, Case No. CT2014-0030                                                 4


      removed the child from home during an emergency in which the child

      could not safely remain at home and the agency did not have prior contact

      with the child, the court is not prohibited, solely because the agency did

      not make reasonable efforts during the emergency to prevent the removal

      of the child, from determining that the agency made those reasonable

      efforts. In determining whether reasonable efforts were made, the child's

      health and safety shall be paramount. (Emphasis added.)



      {¶11} The hearing on the motion for legal custody falls squarely within R.C.

2151.353(A)(3) which states the following in pertinent part:



             (A) If a child is adjudicated an abused, neglected, or dependent

      child, the court may make any of the following orders of disposition:

             (3) Award legal custody of the child to either parent or to any other

      person who, prior to the dispositional hearing, files a motion requesting

      legal custody of the child or is identified as a proposed legal custodian in a

      complaint or motion filed prior to the dispositional hearing by any party to

      the proceedings.



      {¶12} Based upon the foregoing, a determination on reasonable efforts was

required. Prior to the adjudication of neglect and dependency, appellant was the legal

custodian of the child. The child was removed from appellant's custody and placed with
Muskingum County, Case No. CT2014-0030                                                   5


the child's maternal aunt. We find R.C. 2151.419 controls over the award of legal

custody to the biological father, a previous non-custodial party.

       {¶13} Although the trial court's June 5, 2014 entry does not specifically address

what reasonable efforts were made, the trial court found appellant "has not completed

her case plan, is unemployed and the concerns surrounding her husband, Andre

Covington make it evident that Legal Custody to her is not appropriate."

       {¶14} Appellant continues to remain with Andre Covington.            T. at 21.   Mr.

Covington was convicted of child abuse in Missouri.         Id.     He was currently facing

charges of assault and violation of a protection order stemming from an incident that

had occurred a month prior to the hearing. T. at 77. Appellant was dishonest with her

caseworker, adamantly telling her caseworker she was pregnant when in fact she

wasn't. T. at 19-20. This caused concern for the caseworker about appellant's "ability

to be honest in the future regarding domestic violence incidents between her and her

husband Andre" and therefore her ability to protect the child in the future. T. at 20. As a

result, the caseworker amended the case plan for appellant to undergo a psychological

evaluation. T. at 19. Appellant admitted to having her husband present in the home in

violation of the safety plan in place. T. at 95-96.

       {¶15} We find the record supports a showing of reasonable efforts as

demonstrated by the testimony presented during the hearing, the trial court's entry, and

the report of the guardian ad litem.

       {¶16} Assignment of Error I is denied.
Muskingum County, Case No. CT2014-0030                                                  6


                                            II

       {¶17} Appellant claims the trial court erred in not granting a continuance on the

basis that the guardian ad litem filed his report less than seven days before the hearing.

We disagree.

       {¶18} The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger, 67 Ohio St.2d 65 (1981). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

       {¶19} Sup.R. 48(F)(1)(c) states a guardian ad litem shall file his/her report "no

less than seven days before the dispositional hearing." In the case sub judice, the

guardian ad litem filed his report the morning of the hearing date, June 3, 2014.

       {¶20} At the commencement of the hearing, appellant's attorney requested a

continuance because of the late filing. T. at 1. The trial court denied the motion, but

granted a recess to give the parties ample time to review the report. T. at 1, 13.

Following the recess, no additional continuance requests or objections to the report

were made. The guardian ad litem was present during the hearing and participated in

questioning the witnesses. Appellant did not call the guardian ad litem to the witness

stand to cross-examine him on his report.         Appellant has not demonstrated any

prejudice resulting from the late filing.

       {¶21} Upon review, we find the trial court did not abuse its discretion in denying

the request for a continuance.

       {¶22} Assignment of Error II is denied.
Muskingum County, Case No. CT2014-0030                                        7


      {¶23} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, J. and

Baldwin, J. concur.




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