[Cite as In re A.P., 2018-Ohio-3818.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


In re A.P., J.P.                                Court of Appeals No. L-18-1063

                                                Trial Court No. JC 15250322



                                                DECISION AND JUDGMENT

                                                Decided: September 19, 2018

                                         *****

        Dan M. Weiss, for appellant.

        Carmille Akande, for appellee.

                                         *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas, Juvenile Division, which terminated the parental rights of appellant-mother to the

subject minor children, A.P. and J.P., and granted permanent custody to appellee, Lucas

County Children Services Board. The father of A.P. and the father of J.P., both of whose
parental rights were also terminated, did not appeal the judgment. For the reasons set

forth below, this court affirms the judgment of the juvenile court.

       {¶ 2} The following facts are relevant to this appeal. On September 21, 2015, as

amended on October 1, 2015, appellee filed a complaint in dependency and neglect with

a motion for an emergency shelter care hearing for the children. Since November 2011,

when the children were ages three and one, appellee has been involved with the family

due to appellant’s narcotic prescription-seeking behaviors for a chronic medical condition

involving her periodic self-directed hospitalizations at different area hospitals. During

her hospitalizations appellant had no family support and there was no place for the

children to go. The fathers of the children were incarcerated out of state and uninvolved

with them.

       {¶ 3} On September 20, 2015, appellant again sought hospitalization. The

caseworker testified appellant “called the Agency asking for help because she had no

place to place the children while she was admitted.” The day before appellant presented

herself to another hospital seeking pain medication. The first hospital admitted her to

perform a test she requested and determined appellant’s test results were “normal.” The

first hospital reported appellant’s “pain clinic” indicated she “had gone through 30

Oxycodone and 30 Hydrocodone pills in just 5 days.” The first hospital also reported

appellant’s high rate of asking for pain management medication from 11 area hospitals

between March and September 2015. The first hospital then “refused pain medication




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management to mother” because of “a history of what appears to be seeking multiple

prescriptions for strong narcotic medications.”

       {¶ 4} Immediately upon discharge from the first hospital, appellant went to a

second hospital “and requested Dilaudid.” She was admitted to the second hospital “for

no medical reason.” After receiving two doses, she requested more, and the hospital

refused to give more while the children were in her care. The second hospital cleared her

for discharge, but she refused and demanded hospitalization even though there was no

place for the children to go. The juvenile court issued an ex parte order on September 20,

2015, ordering appellee to provide the children immediate shelter care due to exigent

circumstances and ordering an emergency shelter care hearing.

       {¶ 5} Following the emergency shelter care hearing on September 21, 2015, the

juvenile court’s magistrate issued an interim order awarding appellee interim temporary

custody to investigate placement with a relative. The magistrate ordered appellant to

“undergo a dual diagnostic assessment” and “substance abuse screening.” The magistrate

also appointed a guardian ad litem to represent the children and attorneys to represent

appellant and each father.

       {¶ 6} As journalized on January 14, 2016, at the December 17, 2015 adjudicatory

hearing, the magistrate found by clear and convincing evidence A.P. and J.P. were each a

dependent and neglected child and awarded appellee temporary custody of the children

“with the goal of reunification” along with a number of conditions. As journalized on

February 22, 2016, the juvenile court judge adopted the magistrate’s decision and




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awarded appellee temporary custody of the children effective December 17, 2015, with

the same goal and conditions.

       {¶ 7} On June 28, 2017, pursuant to R.C. 2151.353(B) and 2151.414, appellee

moved for permanent custody of A.P. and J.P. Appellee alleged A.P. and J.P. could not

be placed with appellant within a reasonable time or should not be placed with appellant

pursuant to R.C. 2151.414(B)(1)(a) and that permanent custody is in the children’s best

interests pursuant to R.C. 2151.414(D). Appellant “has been hospitalized or in a

rehabilitation facility the majority of the time the children” have been in appellee’s

custody. Appellant “continues to struggle with her illness.” Appellant’s illness “has

impeded her ability to function both physically and emotionally.” Appellee’s

permanency plan for the children was to obtain permanent custody so the children could

be adopted.

       {¶ 8} The permanent custody hearing was held on March 5, 2018. The transcript

of the hearing is in the record. Appellant failed to appear in court, but her attorney was

present to request a continuance, which was denied. By judgment entry journalized

March 14, 2018, the juvenile court terminated all parental rights in and to the children

and granted permanent custody to appellee for adoptive placement and planning and

made a number of relevant findings to this appeal.

       {¶ 9} Pursuant to R.C. 2151.414(B)(1)(a), by clear and convincing evidence the

juvenile court found A.P. and J.P. “cannot be placed with either parent within a

reasonable time and should not be placed with either parent.”




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       {¶ 10} Pursuant to R.C. 2151.414(B)(1)(d), by clear and convincing evidence the

juvenile court found A.P. and J.P. have been in appellee’s custody for over 12 months out

of a 22 month period, since September 20, 2015.

       {¶ 11} Pursuant to R.C. 2151.414(E)(1), the juvenile court found the parents “have

failed continuously and repeatedly to substantially remedy the conditions causing the

[children] to be placed outside [their] home.”

       {¶ 12} Pursuant to R.C. 2151.414(E)(2), the juvenile court found appellant’s

physical disability “is so severe that it makes her unable to provide an adequate

permanent home at the present time or as anticipated, within one year. * * * It is

unknown when Mother will be released [from the hospital.]”

       {¶ 13} Pursuant to R.C. 2151.414(D)(1), the juvenile court found “it is in the best

interest of the children to award permanent custody to LCCS for adoptive placement and

planning.” The children have been in appellee’s custody for over two years, and while

their needs are being met by the foster parents, “the children are in need of a permanent,

forever home.”

              The Court further finds that case plan services have been offered to

       the family to assist the parents in reunification, but the evidence

       demonstrated that it would be contrary to the welfare of the children to

       place them with their parents or to delay permanency any longer.

              The court further finds that LCCS has made reasonable efforts to

       avoid the continued removal of the children from the home, and to




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       implement and finalize a permanent plan by providing numerous case plan

       services to the family, and when those efforts failed, LCCS identified an

       alternative permanent plan and requested permanent custody.

       {¶ 14} It is from the juvenile court’s March 14, 2018 judgment entry which

appellant filed her appeal, journalized on March 20, 2018.

       {¶ 15} Appellant sets forth two assignments of error:

              I. The Trial Court abused its discretion when it denied Appellant’s

       request for continuance because of Appellant’s unexpected medical event

       that precluded her from being able to attend the permanent custody hearing.

              II. The Trial Court’s decision to grant Lucas County Children

       Service’s motion for permanent custody was against the manifest weight of

       the evidence.

       {¶ 16} In support of her first assignment of error, appellant argued she met her

burden under Juv.R. 23, which states, “Continuances shall be granted only when

imperative to secure fair treatment for the parties.” Appellant notified her attorney “at

7:30 a.m. the day of the hearing * * * that she was not able to be present at the hearing as

she was in the hospital [in Michigan].” Specifically, appellant requested “a brief

continuance because of her illness and her hospitalization,” but did not specify when she

would be available. Appellant argues her absence from the permanent custody hearing

was “unexpected” because she attended the August 28, September 27 and November 8,

2017 hearings, “visited the children except when she was hospitalized,” and “maintained




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contact with her counsel.” Appellant further argues her “absence from the final hearing

was not intentional and beyond her control.” As a result, it was “unreasonable and

impossible” for appellant’s counsel to arrange for her deposition prior to the start of the

hearing at 8:30 a.m.

       {¶ 17} In response appellee argued the juvenile court did not abuse its discretion

when it denied the continuance “because the decision was based on the consideration of

two children who have been without a permanent home for over two years.” Appellee

argued “[t]he trial court and the appellee had worked with the appellant for over two

years to find permanency for her children.” Appellee further argued appellant’s

hospitalization “was not a surprise” because the record showed appellant had been “in a

nursing home, treatment facility, or hospital throughout the life of this case. * * * The

appellant’s own attorney stated [at the trial] that she did not know when the appellant was

admitted into the hospital and when she would be discharged.” Appellee further argued

the “caseworker testified [at the trial] to the countless times that the appellant was

hospitalized * * * [and] having to have monthly visits at the hospital due to the

appellant’s illness.” The record contained evidence appellant missed “visits with her

children due to her illness” and some visits were “at the hospital or nursing homes.”

Appellee urges us to find:

              [T]he appellant received fair treatment during this case and

       proceeding [because] appellant had been in constant communication with

       her attorney throughout the case and made her wishes known to her




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       attorney * * * [who] worked with her before the trial date to prepare for

       trial * * * [and] before the appellee presented its case and before the

       appellant’s case was presented. [Appellant] was aware of what was taking

       place during the court proceedings * * * [and her] attorney knew her wishes

       and had direction from her.

       {¶ 18} We review the grant or denial of a continuance for an abuse of discretion.

In re Edward M., 6th Dist. Lucas Nos. L-04-1282, L-04-1304, 2005-Ohio-3354, ¶ 21,

citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). Abuse of discretion

“‘connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980).

       {¶ 19} Appellant urges us to find her hospitalization the day of her permanent

custody hearing was “unexpected.” For an event to be unexpected, the event would not

be reasonably anticipated. However, we find the record contains ample evidence that

appellant’s medical condition was chronic and could be reasonably anticipated to

interfere with her parenting responsibilities to the children, including appointments for

medical care, visitations and court.

       {¶ 20} It is undisputed from 2011 until the date of the hearing on permanent

custody on March 5, 2018, appellant’s medical condition was frequently interfering with

her ability to care for her children, whether because of the prescription medications she




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took or because of her housing situation at a nursing home, treatment facility, hospital, or

an apartment outside of Ohio. It is undisputed “[t]hrough the majority of this case

[appellant] has been under medical care and either hospitalized or in nursing-type

facilities.” The caseworker testified, “Throughout the time of the case, we have met with

mother 15 times either in the hospital, [or] the nursing home.” The caseworker further

testified appellant “has not been able to show stability in her housing due to the frequent

amount of hospitalizations.” When not in a hospital, nursing home or treatment facility,

appellant briefly resides with friends or relatives in Ohio and Michigan and, on only one

occasion, in her own apartment. There were no relatives of appellant or the fathers of the

children who could be approved for placement. Appellant did not have a car to drive

herself or the children to their appointments. Appellant did not work, but received some

sort of disability payment assistance.

       {¶ 21} While appellant’s medical condition appeared to improve prior to the final

hearing where appellant was able to make some court appearances, her medical condition

changed on the day of the hearing. It is undisputed appellant required another

hospitalization of an unknown duration on March 8, 2018. It is undisputed by the time of

the March 8, 2018 hearing the children had been without a permanent home since

September 20, 2015, a period of over two years. Appellant’s medical condition

frequently rendered her very weak and unable to move around to interact with the

children during visitations. The caseworker testified appellant has not “progressed in




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terms of her medical ability to provide for these children a safe and stable environment”

and reunification with the children was not foreseeable.

       {¶ 22} The record shows after receiving the arguments of the parties involved with

appellant’s request for continuance, the juvenile court stated:

              The record will reflect that * * * the issue of mother’s health has

       been an ongoing issue since the beginning of this case. This case has been

       going on for, I believe, about two and-a-half years. And I’m going to deny

       the request for continuance at this time finding that it is in the best interest

       of * * * the children to proceed to hearing at this time.

       {¶ 23} The trial court then proceeded to confirm with appellant’s attorney that

appellant provided clear direction as to her wishes. “Absolutely. * * * [Appellant] would

prefer to have her children returned to her.”

       {¶ 24} We find the juvenile court’s decision to deny a continuance to appellant

was not unreasonable, arbitrary or unconscionable and was not an abuse of discretion.

       {¶ 25} Appellant’s first assignment of error is not well-taken.

       {¶ 26} In support of her second assignment of error, appellant argued appellee did

not meet its burden to prove by clear and convincing evidence that her “physical

disability was so severe that she was unable to provide an adequate home for her

children, presently or within a reasonable time.” Appellant pointed to appellee’s inability

to testify as to her “medical condition, medical care, short term or long-term medical

prognosis.” Appellant also pointed to appellee’s evidence that from August 2017 until




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the March 5, 2018 hearing the case worker “did not testify that during that significant

period of time that she ever meet [sic] Appellant in a nursing home or hospital center.”

       {¶ 27} Appellee argued in response the juvenile court’s decision was not abuse of

discretion. Clear and convincing evidence supported each of the juvenile court’s findings

stated in its judgment entry. Appellee argued appellant failed to remedy the conditions

that caused the removal of her children because she: (1) was offered case plan services

but failed to complete mental health treatment, (2) failed to obtain stable, independent

housing, and (3) still has a serious medical condition that prevents appellant from caring

for A.P. and J.P. Appellee further argued appellant has a chronic physical disability so

severe that she is unable to provide an adequate permanent home for A.P. and J.P. at the

present time or within one year because she: (1) has resided in a hospital, rehabilitation

center or nursing home throughout the life of this case, (2) was in the hospital at the time

of trial with an unknown discharge date, and (3) did not have stable, independent

housing.

       {¶ 28} We review the juvenile court’s determination of permanent custody under a

manifest weight of the evidence standard. In re D.R., 6th Dist. Lucas No. L-17-1240,

2018-Ohio-522, ¶ 37, citing In re P.W., 6th Dist. Lucas No. L-12-1060, 2012-Ohio-3556,

¶ 20. We “must weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses, and determine whether the trier of fact clearly lost its way in resolving

evidentiary conflicts so as to create such a manifest miscarriage of justice that the

decision must be reversed.” Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678




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N.E.2d 541 (1997). We are mindful the juvenile court was the trier of fact and was “in

the best position to weigh evidence and evaluate testimony.” Id., citing In re P.W. at

¶ 20. The juvenile court’s discretion in determining the best interests of A.P. and J.P.

with an order of permanent custody is accorded the utmost respect due to the nature of

the proceeding and the impact on the lives of the parties concerned. Id., citing In re C.P.,

10th Dist. Franklin No. 08AP-1128, 2009-Ohio-2760, ¶ 10.

       {¶ 29} The juvenile court may only grant permanent custody of A.P. and J.P. to

appellee if it determines “by clear and convincing evidence” that permanent custody to

appellee “is in the best interest of the [children].” R.C. 2151.414(B)(1); In re B.C., 141

Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 26.

       {¶ 30} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 471, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

       {¶ 31} The best interests of the children are to be determined by the juvenile court

at a permanent custody hearing pursuant to “all relevant factors, including, but not

limited to” the five enumerated factors described in R.C. 2151.414(D)(1)(a)-(e). In re

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 52.




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       {¶ 32} R.C. 2151.414(D)(1)(c) states one factor is the custodial history of the

children if they have been in the temporary custody of appellee for 12 or more months of

a consecutive 22-month period. The record shows the juvenile court made a finding

pursuant to R.C. 2151.414(D)(1)(c) by clear and convincing evidence that A.P. and J.P.

have been in appellee’s custody “for over 2 years.” It is undisputed that by the March 5,

2018 hearing A.P. and J.P. had been in appellee’s custody since September 20, 2015, a

period of 30 consecutive months.

       {¶ 33} In addition, the juvenile court must also find by clear and convincing

evidence that any of the circumstances described in R.C. 2151.414(B)(1)(a)-(d) exists.

In re C.F., at ¶ 23-27.

       {¶ 34} R.C. 2151.414(B)(1)(d) required a finding by clear and convincing

evidence the children have been in the temporary custody of appellee for at least 12

months of a consecutive 22-month period. The record shows the juvenile court made a

finding pursuant to R.C. 2151.414(B)(1)(d) by clear and convincing evidence that A.P.

and J.P. have been in appellee’s temporary custody consecutively for over 12 months of a

consecutive 22-month period. It is undisputed that by the March 5, 2018 hearing A.P.

and J.P. had been in appellee’s custody for 30 consecutive months.

       {¶ 35} Separately, R.C. 2151.414(B)(1)(a) required a finding by clear and

convincing evidence the children “cannot be placed with either of the [children’s] parents

within a reasonable time or should not be placed with the [children’s] parents.” The

record shows the juvenile court made a finding pursuant to R.C. 2151.414(B)(1)(a) by




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clear and convincing evidence that A.P. and J.P. “cannot be placed with either of the

child’s parents within a reasonable time or should not be placed with the child’s parents.”

       {¶ 36} In determining a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the juvenile court

“shall consider all relevant evidence” by clear and convincing evidence, including

whether one or more of the factors described in R.C. 2151.414(E)(1)-(16) exists.

Although the juvenile court found many factors to support its holding, it needed to only

find one. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 50.

       {¶ 37} The record shows the juvenile court found by clear and convincing

evidence pursuant to R.C. 2151.414(E)(1) appellant “failed continuously and repeatedly

to substantially remedy the conditions causing the [children] to be placed outside [the

children’s] home.” The juvenile court further found:

              Mother’s physical disability prevents her from caring for her

       children. Mother has been in a nursing home, hospital, or rehabilitation

       center for most of this case. The children have been in the Agency’s

       custody for over two years. Mother still continues to have severe health

       concerns which limit her ability to visit and care for the children. Mother

       was even admitted into the hospital the day of the trial. Mother does not

       have stable, independent housing. Furthermore, she could not or did not

       follow through with mental health recommendations.




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       {¶ 38} The record shows the juvenile court found by clear and convincing

evidence pursuant to R.C. 2151.414(E)(2):

              Mother has a physical disability that is so severe that it makes her

       unable to provide an adequate permanent home at the present time or as

       anticipated, within one year. Mother has resided in a hospital,

       rehabilitation center, or nursing home throughout the life of this case.

       Mother is currently in the hospital. It is unknown when Mother will be

       released. She does not have stable, independent housing for the children.

       {¶ 39} We do not find the juvenile court clearly lost its way to create such a

manifest miscarriage of justice as to require reversal of the judgment regarding the

permanent custody of A.P. and J.P.

       {¶ 40} Appellant’s second assignment of error is not well-taken.

       {¶ 41} On consideration whereof, we find the judgment of the juvenile court

terminating appellant’s parental rights and granting permanent custody of A.P. and J.P. to

appellee was supported by clear and convincing evidence. The judgment of the Lucas

County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to

pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




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                                                                      In re A.P., J.P.
                                                                      C.A. No. L-18-1063




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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