[Cite as In re J.H., 2019-Ohio-1107.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 IN THE MATTER OF:                              JUDGES:
                                                Hon. William B. Hoffman, P.J
         J.H. and A.H., Jr.                     Hon. John W. Wise, J.
                                                Hon. Patricia A. Delaney, Jr., J.

                                                Case Nos. 2018CA00137 &
                                                2018CA00138


                                                O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Stark County Court of
                                                Common Pleas, Family Court Division,
                                                Case No. 2017JCV1346 & 2017JCV1347



 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        March 26, 2019


 APPEARANCES:

 For Appellant                                  For Appellee

 DONOVAN R. HILL                                CHRIS EOFF
 116 Cleveland Av., NW – Suite 808              Department of Jobs and Family Services
 Canton, Ohio 44702                             221 – 3rd Street, S.W.
                                                Canton, Ohio 44702

 Guardian Ad Litem                              Legal Guardians

 CHRISTINE GUARDADO                             RUSSELL & MARYBELLE SMITH
 4600 Beverly Ave., N.E.                        3655 Easton Street, N.E.
 Canton, Ohio 44714                             North Canton, Ohio 44721
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                                       2

Hoffman, P.J.
        {¶1}    In Stark App. No. 2018CA00137, Appellant Amanda Powell ("Mother")

appeals the August 17, 2018 Judgment Entry entered by the Stark County Court of

Common Pleas, Family Court Division, which approved and adopted the magistrate’s

June 22, 2018 decision granting legal custody of her minor child ("Child 1") to Marybelle

and Russell Smith, the child's maternal step-great grandparents (“the Smiths”). In Stark

App. No. 2018CA00138, Mother appeals a second August 17, 2018 Judgment Entry

which also approved and adopted the magistrate’s June 22, 2018 decision granting legal

custody of her other minor child ("Child 2") to the Smiths. Appellee is Stark County Job

and Family Services ("SCJFS").

                               STATEMENT OF THE CASE AND FACTS

        {¶2}    Mother and Adam Hunt ("Father")1 are the biological parents of Child 1 and

Child 2. On November 3, 2017, SCJFS filed complaints, alleging Child 1 and Child 2 were

dependent and/or neglected children. The trial court placed Child 1 and Child 2 in the

emergency shelter care custody of SCJFS on November 7, 2017.                              Following an

adjudicatory hearing on January 25, 2018, the trial court found both children to be

neglected and placed them in the temporary custody of SCJFS. Mother did not appear at

the adjudicatory hearing.

        {¶3}    On March 1, 2018, SCJFS filed motions to change legal custody of Child 1

and Child 2 to the Smiths. The trial court conducted a hearing on SCJFS's motions to

change legal custody on June 14, 2018. Counsel for Mother requested a continuance of

the hearing as Mother was in Michigan and was unable to return to Ohio in time for the


1Father is not a party to this Appeal. He was, and remains, incarcerated throughout the course of the
proceedings.
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                         3


hearing. Counsel for SCJFS advised the trial court Mother met with SCJFS caseworker

Paige Horn the previous morning, June 13, 2018, and Horn reminded Mother about the

hearing the following day. The trial court denied the request and proceeded with the

hearing.

       {¶4}   Paige Horn testified the Agency originally became involved with the family

due to concerns about the conditions of the home, the children’s failure to regularly attend

school, Mother’s failure to ensure Child 2 took his medication as prescribed, the lack of

food in the home, physical abuse, and Mother’s substance abuse. Mother’s case plan

required her to complete a parenting evaluation at Northeast Ohio Behavioral Health.

Despite the fact the case was opened in November, 2017, Mother did not complete her

first parenting evaluation until May 8, 2018. Thereafter, Mother delayed setting up her first

appointment with Dr. Thomas. The appointment was finally scheduled for June 19, 2018,

five days after the hearing. Mother’s case plan also required her to undergo a drug and

alcohol assessment through ComQuest. Mother completed the assessment on February

14, 2018, but she failed to follow through with treatment and services until shortly before

the change of custody hearing, attending one session on June 1, 2018.

       {¶5}   All of Mother’s drug screens conducted at ComQuest were positive for

marijuana with two of the screens also positive for alcohol. At the time, Mother was

pumping her breastmilk and freezing it for her newborn. Mother explained to Horn the

alcohol helped her produce more breastmilk. Horn screened Mother at the Agency on

April 27, and May 16, 2018. Mother’s tests were negative for all substances. Subsequent

screens conducted at ComQuest were positive for marijuana.

       {¶6}   Horn recalled Mother appeared at the Agency on February 5, 2018, and
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                            4


advised her she (Mother) was fearful of Milan Trumbull, the man with whom she was living.

Mother indicated Trumbull was verbally abusive, extremely demanding, and controlling.

Mother added the home in which she was living had had no water or electricity for over a

month. Horn and another SCJFS worker spent approximately three hours with Mother.

They were able to get Mother into a domestic violence shelter in Alliance, Ohio. Mother

left the shelter after a short time and returned to Trumbull’s home.

       {¶7}   Although SCJFS removed the children on November 3, 2017, Mother’s first

visit with them was on March 13, 2018. Between March 13, and June14, 2018, Mother

attended fewer than ten visits with the children, and often cancelled visitation. At the visits,

Mother focused all of her attention on Child 1. Child 2 would have to call Mother’s name

multiple times before she responded to him. Mother was unable to provide care for both

children at the same time. The children have had two sibling visits with Mother and the

newborn. During those visits, Mother focused solely on the baby. Child 2 played on

Mother’s phone throughout the visits.

       {¶8}   Horn testified the children are currently placed with the Smiths, their maternal

step-great grandparents. Prior to placement with the Smiths, Child 2 was having difficulty

in school. He would often get in trouble and have to be removed from his classroom. Child

2’s school attendance and behavior have improved substantially since being placed with

the Smiths. Likewise, Child 1 was having behavior problems at school and repeatedly had

to be removed from her classroom. She has made “phenomenal progress” since being

placed with the Smiths. Both children are doing well academically and are involved in

extra-curricular activities. Horn opined it was in the best interest of the children to place

them in the legal custody of the Smiths.
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                    5


      {¶9}   The magistrate issued decisions relative to both children on June 22, 2018.

The magistrate found SCJFS made reasonable efforts to prevent the need for placement

and/or make it possible for the children to return home. The magistrate concluded a

change of legal custody to the Smith was in the children’s best interests. Mother filed

timely objections to the magistrate’s decisions. Via Judgment Entries filed August 17,

2018, the trial court approved and adopted the magistrate’s decisions.

      {¶10} It is from these judgment entries Mother appeals. Mother raises identical

assignments of error in both appeals:




             I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID

      NOT GRANT APPELLANT'S MOTION FOR A CONTINUANCE.

             II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

      CHILD CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT

      THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS

      AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

      EVIDENCE.

             III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

      INTEREST OF THE MINOR CHILD WOULD BE SERVED BY THE

      GRANTING       OF   PERMANENT        CUSTODY      WAS     AGAINST    THE

      MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.



      {¶11} These cases come to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                       6


                              Stark App. No. 2018CA00137
                              Stark App. No. 2018CA00138
                                               I

      {¶12} In her first assignment of error, Mother contends the trial court abused its

discretion in failing to grant a continuance of the change of custody hearing.

      {¶13} The decision to grant or deny a motion to continue is entrusted to the broad

discretion of the trial court. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993).

Ordinarily, a reviewing court analyzes a denial of a continuance in terms of whether the

court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11

L.Ed.2d 921 (1964); State v. Wheat, 5th Dist. Licking App. No.2003–CA–00057, 2004–

Ohio–2088. 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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

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

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

competing considerations, including 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; and whether the defendant

contributed to the circumstance which gives rise to the request for a continuance. State v.

Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981).

      {¶15} Counsel for Mother requested the continuance because Mother had traveled

to Michigan and was unable to return to Ohio in time for the hearing. Counsel stated he

had met with Mother a couple of weeks earlier to prepare for the hearing, acknowledging
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                         7


Mother was aware of the hearing date. Counsel for SCJFS advised the trial court Mother

met with SCJFS caseworker Paige Horn the previous morning, June 13, 2018, and Horn

reminded Mother about the hearing the following day. Mother made a conscious decision

to leave the state the day before the scheduled hearing.

       {¶16} Based upon the information presented to the trial court, the absence of

sufficient grounds for the continuance, and the children's need for permanency, we find

the trial court did not abuse its discretion in denying Mother's request for a continuance.

       {¶17} Mother's first assignment of error is overruled.

                               Stark App. No. 2018CA00137
                               Stark App. No. 2018CA00138
                                               II, III

       {¶18} In her second assignment of error, Mother submits the trial court's finding

the children could not or should not be placed with her within a reasonable time was

against the manifest weight and sufficiency of the evidence.     In her third assignment of

error, Mother asserts the trial court’s finding the best interests of the children would be

served by granting permanent custody to SCJFS was against the manifest weight and

sufficiency of the evidence.

       {¶19} We begin by noting the trial court did not grant, nor did SCJFS seek,

permanent custody of the children. This matter involves a change in legal custody. Unlike

permanent custody, legal custody does not divest parents of residual parental rights,

privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843

N.E.2d 1188 at ¶ 17.

       {¶20} In Ohio, the statutorily permissible dispositional alternatives in a

dependency, neglect, or abuse case are enumerated in R.C. 2151.353(A). See, e.g., In re
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                         8

S.Y., 5th Dist. Tusc. No. 2011 AP04 0018, 2011–Ohio–4621, ¶ 31. R.C. 2151.353(A)(3)

specifically provides:



              If a child is adjudicated an abused, neglected, or dependent child,

       the court may make any of the following orders of disposition: * * * 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. * * *.



       {¶21} A trial court “must have wide latitude in considering all the evidence” and a

custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,

77 Ohio St.3d 415, 418, 1997–Ohio–260. As an appellate court, we neither weigh the

evidence nor judge the credibility of the witnesses. Our role is to determine whether there

is relevant, competent, and credible evidence upon which the finder of fact could base its

judgment. Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758,

1982 WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent,

credible evidence going to all the essential elements of the case will not be reversed as

being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

       {¶22} Unlike a permanent custody proceeding where a juvenile court's standard of

review is by clear and convincing evidence, the standard of review in legal custody

proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                         9


2013CA0081 & 2013CA0082, 2013–Ohio–5752, ¶ 32 (Citations omitted).

       {¶23} In this type of dispositional hearing, the focus is on the best interest of the

child. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re P.S., 5th

Dist. No. 2012CA00007, 2012–Ohio–3431. Despite the differences between a disposition

of permanent custody and legal custody, some Ohio courts have recognized “the statutory

best interest test designed for the permanent custody situation may provide some

‘guidance’ for trial courts making legal custody decisions.” In re A.F., 9th Dist. No. 24317,

2009–Ohio–333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17.

The test would thus encompass a consideration of factors including, but not limited to: (1)

the child's interaction with his or her parents, siblings, relatives, foster caregivers, and

others, (2) the child's wishes, which may be expressed by the guardian ad litem, (3) the

child's custodial history, and (4) the need for a legally secure permanent placement. See

R.C. 2151.414(D)(1).

       {¶24} As set forth in our statement of the case and facts, supra, Mother had made

little progress on her case plan. The case was opened in November, 2017, at which time

Mother was ordered to complete a parenting evaluation at Northeast Ohio Behavioral

Health. Mother did not complete her parenting evaluation until May 8, 2018. Thereafter,

Mother delayed setting up her first appointment with Dr. Thomas. The appointment was

finally scheduled for June 19, 2018, five days after the hearing. Mother repeatedly tested

positive for marijuana and alcohol. Mother was living with a violent man whom the children

feared. Mother went lengthy periods of time without visiting the children. Mother could

not divide her attention between the children, often ignoring them and paying attention to

her newborn.
Stark County, Case Nos. 2018CA00137 & 2018CA00138                                          10


       {¶25} The children are currently placed with the Smiths and are doing well in their

care. Prior to placement with the Smiths, Child 2 was having difficulty in school. He would

often get in trouble and have to be removed from his classroom.             Child 2’s school

attendance and behavior have improved substantially since being placed with the Smiths.

Likewise, Child 1 was having behavior problems at school and repeatedly had to be

removed from her classroom. She has made “phenomenal progress” since being placed

with the Smiths. Both children are also doing well academically and are involved in extra-

curricular activities. Horn opined it was in the best interest of the children to place them in

the legal custody of the Smiths. The guardian ad litem concurred with the determination.

       {¶26} Based upon the foregoing, we find the trial court's decision is supported by

a preponderance of the evidence, and a change of legal custody was in the best interest

of Child 1 and Child 2.

       {¶27} Mother’s second and third assignments of error are overruled.
Stark County, Case Nos. 2018CA00137 & 2018CA00138                            11


       {¶28} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.




By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur
