[Cite as In re I.B.L., 2014-Ohio-4666.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                             WASHINGTON COUNTY

IN THE MATTER OF:                              :
                                               :
        I.B.L.                                 :    Case No. 14CA19
                                               :
                                               :
                                               :    DECISION AND JUDGMENT
                                               :    ENTRY
                                               :
                                               :    Released: 10/16/14

                                          APPEARANCES:

Joseph H. Brockwell, Marietta, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Amy
Graham, Assistant Prosecuting Attorney, Marietta, Ohio for Appellee.


McFarland, J.

        {¶ 1} Appellant, A.L., appeals the trial court’s judgment that awarded

appellee, Washington County Children Services (WCCS), permanent

custody of her five-year-old biological child, I.B.L. Appellant argues that

the trial court violated her due process rights by rejecting her motion to be

transported from prison for the permanent custody hearing. We do not

agree. The trial court afforded appellant the opportunity to present her

testimony via deposition, and appellant submitted an affidavit that contained

her version of events. Additionally, appellant’s counsel meaningfully
Washington App. No. 14CA19                                                      2

participated during the permanent custody hearing and represented

appellant’s interest. Consequently, the trial court did not violate appellant’s

due process rights. Therefore, we overrule appellant’s sole assignment of

error and affirm the court’s judgment.

                                   I. FACTS

      {¶ 2} On June 18, 2012, Washington County Children Services filed

a neglect and dependency complaint concerning appellant’s child. The

complaint alleged that the Washington County Sheriff’s Office requested

WCCS’s assistance after appellant’s paramour was found dead of a drug

overdose. The responding WCCS caseworker observed several safety

hazards in the home: (1) the electrical service panel “was wide open with

exposed wires and within reach” of the child; (2) “receptacles on the wall

were not covered and contained exposed wiring[;]” (3) “[t]here was an open

utility knife sitting on the floor next to the child’s toys[;]” and (4) “the home

ha[d] holes in the floor that the child could fall through.” The caseworker

also expressed a concern that “drugs [were] being abused by the adults in the

home” while the child was present. The caseworker noted that the child

appeared “unclean, with dirt on his knees, legs, and hands.” The trial court

subsequently placed the child in WCCS’s temporary custody.
Washington App. No. 14CA19                                                    3

      {¶ 3} On August 15, 2012, appellant admitted that the child is a

dependent child. The court thus adjudicated the child dependent and

dismissed the neglect allegation. The court continued the child in WCCS’s

temporary custody.

      {¶ 4} On February 24, 2014, WCCS filed a permanent custody

motion. The motion alleged that the child had been in its custody for more

than twelve of the past twenty-two months and that awarding it permanent

custody would serve the child’s best interest.

      {¶ 5} On April 2, 2014, appellant filed a motion that requested the

court to enter an order of transportation from the Ohio Reformatory for

Women in Marysville, Ohio, so that she could attend the permanent custody

hearing. The trial court denied her motion. The court applied the Matthews

v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), balancing

test and determined that “the risk of an erroneous deprivation of the

mother’s parental rights * * * would appear to be fairly low” if she is not

transported for the hearing. The court observed that counsel represented

appellant, counsel could protect appellant’s interests, and appellant could

testify through the use of a deposition. The court additionally determined

that transporting appellant from prison “will cause the county to incur

significant expense which can be avoided by the taking of * * * her
Washington App. No. 14CA19                                                     4

deposition in prison and submitting it to the Court during the hearing. The

use of depositions would clearly serve the State’s goal and the child[‘s]

interest and it would not impose any undue fiscal or administrative burden

on the state.” The court thus denied appellant’s motion for transport and

stated that appellant’s counsel “may take and preserve her testimony for the

Permanent Custody hearing by the use of a deposition taken in prison or

through the submission of a notarized affidavit.”

      {¶ 6} On April 24, 2014, appellant filed an affidavit. In it, she

outlined her version of the circumstances surrounding the child’s initial

removal, her subsequent experience with WCCS, and her compliance with

the case plan.

      {¶ 7} On April 28, 2014, the guardian ad litem filed a report and

recommended that the court award WCCS permanent custody of the child.

The guardian ad litem explained:

             “[Appellant] loves her child and her child is attached to her.
      However, [appellant] has not been consistent in her visitations with
      [the child] which has left [the child] disappointed on several
      occasions. [Appellant] has had difficulty securing and maintaining
      stable housing for [the child]. While living with [appellant], [the
      child] lacked the security and consistency of a nurturing home and a
      parent who was focused on his needs and development. In the
      absence of the mother and her lifestyle, [the child’s doctor] noted this
      child has made significant progress and there is no longer a concern
      that this child might be autistic. This GAL was assigned this case on
      June 19, 2012. Since that time, the mother has not made any
      significant changes in her lifestyle. She likes being transient, but that
Washington App. No. 14CA19                                                  5

      is not in the best interests of [the child]. The mother is now
      incarcerated, and this child has been in the foster care system for
      almost 2 years.”

      {¶ 8} On May 5, 2014, the trial court held a hearing to consider

WCCS’s permanent custody motion. Before the hearing began, the court

noted that appellant was not present due to her incarceration.

      {¶ 9} On May 6, 2014, the trial court granted WCCS permanent

custody of the child. The trial court found that the child had been in

WCCS’s temporary custody for more than twelve of the past twenty-two

months pursuant to R.C. 2151.414(B)(1)(d). The court noted that the child

was initially removed from the home twenty months before WCCS filed the

permanent custody motion and that the mother had not seen the child since

July 6, 2013, when she was incarcerated. The court also found that

awarding WCCS permanent custody would serve the child’s best interest.

             “The court finds that all of the child’s needs are being met by
      his foster family and he is doing well in their home. The child needs
      stability, and a safe, loving environment. He needs a secure
      permanent placement. Neither parent can provide this. The mother is
      presently incarcerated until July 2015. The mother has not seen the
      child since her incarceration in July 2013. The father has not had any
      involvement with the child. Permanency and stability cannot be
      achieved without a grant of permanent custody. The foster family has
      had the child for 23 months. The child’s Guardian Ad Litem supports
      the motion for permanency and believes the motion for permanent
      custody should be granted.”

      {¶ 10} This appeal followed.
Washington App. No. 14CA19                                                       6

                       II. ASSIGNMENT OF ERROR

      {¶ 11} Appellant raises one assignment of error:

      The appellant, mother of the child, was deprived of her constitutional
      right of due process under the Fourteenth Amendment to the United
      States Constitution and—of the Ohio Constitution when the trial court
      would not allow her to attend and participate in the permanent custody
      hearing.


                                      III.

                                 ANALYSIS

      {¶ 12} In her first assignment of error, appellant argues the trial court

violated her due process right by denying her request to be transported from

prison to the permanent custody hearing.

      {¶ 13} A prisoner does not have “an absolute due process right to

attend the trial of a civil action to which he is a party. Any such right must

be balanced against the state’s interest in avoiding the risks and expenses of

transportation. Abuhilwa v. Board, 4th Dist. Pickaway No. 08CA3, 2008-

Ohio-5326, ¶7. In evaluating the due process right of an incarcerated parent

to be present at a permanent custody hearing, this court and others have

applied the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319,

335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In re Elliot, 4th Dist. Lawrence

No. 92CA34 (June 25, 1993); accord In re A.F., 6th Dist. Williams No. WM-

13-007, 2014-Ohio-633, ¶19; In re K.L., 10th Dist. Franklin Nos. 13AP-218
Washington App. No. 14CA19                                                       7

and 13AP-231, 2013-Ohio-3499, ¶43. The Mathews test requires a court to

evaluate three factors: (1) “the private interest that will be affected by the

official action”; (2) “the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards”; and (3) “the Government’s interest,

including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.”

Mathews, 424 U.S. at 335.

      {¶ 14} In the case at bar, the private interest that will be affected by

the permanent custody hearing is appellant’s “essential” and “basic” civil

right to raise her child. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169

(1990). A parent’s fundamental liberty interest in the care, custody and

management of a child “does not evaporate” simply because the parent has

not been a “model” parent or “lost temporary custody of their child to the

state.” Elliot, supra, citing Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982).

      {¶ 15} Second, the risk of an erroneous deprivation of appellant’s

fundamental liberty interest in the care, custody, and management of her

child by holding the permanent custody hearing in her absence appears low.

Appellant’s counsel fully participated in the permanent custody hearing and
Washington App. No. 14CA19                                                      8

represented appellant’s interest. Additionally, the trial court allowed

appellant to submit her testimony via deposition. Appellant apparently

decided not to be deposed, but instead, chose to submit an affidavit. Thus,

appellant had an opportunity to present her version of events to the trial

court.

         {¶ 16} Next, we consider the state’s interest. In Elliot, supra, we

identified “[t]wo state interests [that] are at stake in a permanent custody

proceeding—a parens patriae interest in preserving and promoting the

welfare of the child and a fiscal and administrative interest in reducing the

cost and burden of such proceedings.” Id., citing Santosky, 455 U.S. at 766.

“In a permanent custody proceeding, the state’s parens patriae interest is

served by procedures that ‘promote an accurate determination of whether the

natural parents can and will provide a normal home.’” Id., quoting Santosky,

455 U.S. at 767. Thus, in Elliot, we stated:

                “Permitting [appellant] to be present would be the optimal
         arrangement. However, allowing some other means of presenting his
         testimony would clearly serve the state’s goal and the children’s
         interest, and it would not impose any undue fiscal or administrative
         burden upon the state. The trial court did not err in overruling
         [appellant’s] motion to be present at the hearing. * * *.”

         {¶ 17} Similarly, in the case at bar, permitting appellant to attend the

permanent custody hearing would be the optimal arrangement. However,

permitting appellant to present her testimony via other means “clearly
Washington App. No. 14CA19                                                       9

serve[s] the state’s goal and the children’s interest, and it would not impose

any undue fiscal or administrative burden upon the state.” Consequently, a

balance of the Mathews factors shows that the trial court did not deprive

appellant of her due process rights by rejecting her request to be transported

from prison so that she could attend the permanent custody hearing.

      {¶ 18} Moreover, we have previously concluded that “[a] trial court

possesses discretion to proceed with a permanent custody hearing in a

parent’s absence.” In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-

5595, ¶46, citing In re S.G., 2nd Dist. Greene No. 2009-CA-46, 2010-Ohio-

2641, ¶22. In A.C.H., we determined that the trial court did not deprive the

parent of his due process rights by holding the permanent custody hearing in

his absence when “[c]ounsel meaningfully represented appellant at the

hearing, a complete record was made, and appellant * * * failed to show

what testimony or evidence he would have offered that would have changed

the outcome of the case.” Id. at ¶46.

      {¶ 19} The same scenario applies in the case sub judice. Counsel

meaningfully represented appellant at the hearing, a complete record was

made, and appellant has failed to show what additional testimony or

evidence she would have offered that would have changed the outcome of

the case. Furthermore, appellant submitted her testimony via affidavit.
Washington App. No. 14CA19                                                    10

      {¶ 20} Accordingly, based upon the foregoing reasons, we overrule

appellant’s sole assignment of error and affirm the trial court’s judgment.

                                                JUDGMENT AFFIRMED.
Washington App. No. 14CA19                                                      11

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Washington County 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.

Abele, P.J. and Hoover, J.: Concur in Judgment and Opinion.



                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
