[Cite as In re Z.J., 2020-Ohio-383.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


IN RE Z.J.                                   :
                                             :               No. 108834
A Minor Child                                :
                                             :
[Appeal by A.G., Father]                     :
                                             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: February 6, 2020


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                  Case No. AD17915031


                                       Appearances:

                 Scott J. Friedman, for appellant.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony R. Beery, Assistant Prosecuting
                 Attorney, for appellee.


SEAN C. GALLAGHER, P.J.:

                   Appellant A.G. (“father”), who is the father of Z.J. (“the child”),

appeals the decision of the Juvenile Division of the Cuyahoga County Court of

Common Pleas that terminated his parental rights and granted permanent custody
of the child to the Cuyahoga County Division of Children and Family Services

(“CCDCFS” or “the agency”). Upon review, we affirm the judgment of the trial court.

      Background

               On October 5, 2017, CCDCFS filed a complaint alleging the child to be

a neglected child and requesting temporary custody. The complaint raised a number

of allegations pertaining to the inability of the child’s mother to provide adequate

care for her children. The complaint alleged that father was convicted of aggravated

assault and was currently incarcerated, that he had not established paternity, and

that he had “failed to support, visit, or communicate with the child since the child’s

birth.” The trial court granted predispositional temporary custody to the agency,

and the child was placed in foster care. In the course of proceedings, father did

establish paternity for the child.

               Father and the child’s mother stipulated to the allegations of an

amended complaint. On January 8, 2018, the trial court adjudicated the child to be

dependent and committed the child to the temporary custody of CCDCFS.

               On July 24, 2018, CCDCFS filed a motion to modify temporary

custody to permanent custody. At that time, father had been released from state

prison and his whereabouts had not been made known to the agency. It was later

discovered that father had been incarcerated in a federal prison in West Virginia.

               The matter proceeded to a hearing on the agency’s motion on June 3,

2019. Neither parent was present. The trial court denied a motion for continuance

that was filed by father’s trial counsel.
              CCDCFS presented testimony from the social worker on the case, who

was subject to cross-examination by father’s trial counsel. The social worker’s

testimony reflects that neither parent substantially completed case plan services.

The social worker testified that mother was not consistent with and had not followed

through on case plan services, she lacked stable housing, and she failed to visit the

child regularly.   The social worker also testified that father was repeatedly

incarcerated and that he was not due to be released from federal prison to a halfway

house until the following month. The guardian ad litem recommended permanent

custody to CCDCFS as being in the best interest of the child.

              The trial court issued a decision on June 21, 2019, that terminated the

parental rights of the child’s mother and father and committed the child to the

permanent custody of CCDCFS. The trial court made the required determinations

pursuant to R.C. 2151.414(B) and considered all relevant factors in finding, by clear

and convincing evidence, that it was in the best interest of the child to grant

permanent custody to CCDCFS. The trial court’s decision includes a number of

findings that were supported by competent, credible evidence in the record,

including that “[t]he parent is repeatedly incarcerated, and the repeated

incarceration prevents the parent from providing care for the child.”

              Father timely filed this appeal. He raises three assignments of error

for our review.
      Law and Argument

               Under his first assignment of error, father claims that the trial court

abused its discretion and violated his due process rights when it proceeded without

him at the permanent custody hearing.

               An incarcerated parent does not have an absolute right to be present

at a permanent custody hearing. In re J.F., 12th Dist. Butler No. CA2019-01-004,

2019-Ohio-3172, ¶ 16.      “Generally, no due process violation occurs when an

incarcerated parent does not appear at a parental rights termination hearing, as long

as the parent has alternate means of participating.” In re S.U., 12th Dist. Clermont

No. CA2014-07-055, 2014-Ohio-5748, ¶ 23, citing In re S.F.T., 12th Dist. Butler Nos.

CA2010-02-043, CA2010-02-044, CA2010-02-045, and CA2010-02-046, 2010-

Ohio-3706. Further, “[o]ther procedural protections, such as representation by

counsel, may be sufficient to ensure that a parent’s due process rights are

preserved.” In re J.F. at ¶ 16.

               Additionally, in determining whether the due process rights of an

incarcerated parent have been infringed, Ohio courts have applied the test set forth

by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct.

893, 47 L.Ed.2d 18 (1976), to determine a parent’s due process rights. See, e.g., In

re S.F.T. at ¶ 9; In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶ 44. Under

the Mathews test, a court balances “(1) the private interest affected; (2) the risk of

erroneous deprivation and the probable value of additional safeguards; and (3) the

governmental burden of additional procedural requirements.” In re C.M., 9th Dist.
Summit Nos. 23606, 23608, and 23629, 2007-Ohio-3999, ¶ 14, citing Mathews at

335.

               We recognize that father has a fundamental interest in the care,

custody, and control of his child; however, the child has a stronger interest in being

placed in a stable, secure, and nurturing home without undue delay. See In re M.M.

at ¶ 46. At the time of the permanent custody hearing, father was incarcerated in a

segregated unit in federal prison, and he was not permitted to be transferred or to

appear by video conference. Father was provided meaningful representation by his

attorney throughout the proceedings; his attorney fully participated in the

permanent custody hearing and represented his interests; and a complete record

was made.

               Although father maintains that he was not afforded the opportunity

to be present or otherwise heard, he fails to show what evidence he might have

offered if he had participated more meaningfully in the hearing, or how that

evidence might have affected the outcome of the proceedings. At the time the case

was filed, father was incarcerated in a state prison for an aggravated robbery offense

and he had failed to support, visit, or communicate with the child since the child’s

birth. Father had since been incarcerated in a federal prison; he was not set to be

released to a halfway house until the following month; and he had not completed

case plan services. Also, there would have been a burden to the court and opposing

counsel in providing a continuance, and it was not in the best interest of the child to

delay the child’s need for permanency.
               Under these circumstances, no due process violation occurred.

Appellant’s first assignment of error is overruled.

               Under his second assignment of error, father claims the trial court

abused its discretion in denying his motion for continuance. We review the trial

court’s denial of a motion for continuance for an abuse of discretion. In re J.C., 8th

Dist. Cuyahoga No. 106272, 2018-Ohio-2234, ¶ 10. An appellate court may find that

a trial court abused its discretion only if it finds that the decision of the trial court

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

               Pursuant to R.C. 2151.414(A)(2), the trial court is to hold the

permanent-custody hearing no later than 120 days after the agency files its motion

except for “good cause shown” for a reasonable continuance, and the court is to

dispose of the motion for permanent custody no later than 200 days after the agency

files its motion. Additionally, pursuant to Juv.R. 23, “[c]ontinuances shall be

granted only when imperative to secure fair treatment for the parties.”

               Father’s trial counsel filed a motion for continuance a few days before

the hearing due to father’s incarceration. The trial court addressed the motion

before proceeding with the hearing. Both CCDCFS and the child’s guardian ad litem

opposed the request for continuance, noting the length of time that the case had

been pending and since the agency’s motion was filed. The trial court determined

that it was in the best interest of the child to proceed with the hearing.
              By the time of the dispositional hearing, well over 200 days had

lapsed since the filing of the motion for permanent custody and the child had been

in the custody of CCDCFS for over a year and a half. Father was not due to be

released to a halfway house until the following month and had not completed case

plan services. Also, the record reflects that father was represented by competent

counsel and that a continuance would have inconvenienced opposing counsel, the

social worker, and the guardian ad litem, who were present and ready to proceed

with the hearing. Father, who failed to suggest how his presence might have affected

the outcome of the proceedings, established neither good cause for a continuance,

nor that a continuance was imperative to secure fair treatment for the parties.

              After examining the record in this case, we conclude that the trial

court properly exercised its discretion in denying the requested continuance.

Father’s second assignment of error is overruled.

              Under his third assignment of error, father claims he was denied

effective assistance of counsel. Ohio courts recognize that the established test for

ineffective assistance of counsel used in criminal cases applies to permanent custody

proceedings. See, e.g., In re P.A.R., 8th Dist. Cuyahoga No. 107736, 2019-Ohio-

1446, ¶ 44; In re L.C., 2d Dist. Montgomery Nos. 27174 and 27175, 2016-Ohio-8188,

¶ 12. In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show A(1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that but for counsel’s errors, the proceeding’s result would
have been different.@ State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920

N.E.2d 104, & 200, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant has the

burden of proving his counsel rendered ineffective assistance. Perez at & 223.

               Father claims that his trial counsel was ineffective for failing to ensure

father’s meaningful participation in the hearing, and as a result, the trial court issued

a decision without any input from father. However, the record reflects that father’s

trial counsel attempted to reach appellant in federal prison but was unable to do so

because appellant was in a segregated unit. Trial counsel sought a continuance of

the hearing, provided competent representation, effectively cross-examined the

social worker, and filed proposed findings of fact and conclusions of law.

Furthermore, father fails to demonstrate how the outcome of the proceeding would

have been different if he had the opportunity to more meaningfully participate.

Thus, even had there been any deficiency in counsel’s performance, father has failed

to demonstrate any prejudice. In light of the record before us, we cannot conclude

that there was a reasonable probability that the result of the proceeding would have

been different. Father’s third assignment of error is overruled.

      Conclusion

               We affirm the trial court’s decision awarding permanent custody of

the child to CCDCFS and terminating the parental rights of father.

               Judgment affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR
