       [Cite as In re J/B Children, 2020-Ohio-1085.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



IN RE: J/B CHILDREN                              :     APPEAL NO. C-190651
                                                       TRIAL NO. F-16-1241

                                                 :        O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 24, 2020




James A. Anzelmo, for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alyssa M. Miller,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Kimberly A. Helfrich,
Assistant Public Defender, Guardian ad Litem for T.J.,

Phyllis Schiff, Attorney for T.J.
                     OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}   Mother appeals from a judgment of the Hamilton County Juvenile

Court that terminated her parental rights and placed T.J. in the permanent custody

of the Hamilton County Department of Job and Family Services (“HCJFS”). For the

reasons set forth below, we affirm the juvenile court’s judgment.

                   I. Factual and Procedural Background

       {¶2}   Mother is the natural parent of T.J., born September 16, 2002. HCJFS

opened a case against mother in May 2016 after receiving reports from T.J.’s school

personnel that expressed concerns for T.J.’s well-being. T.J. reported to the school

that mother had abused her in the past, and due to the abuse, T.J. was afraid to go

home. T.J. also reported to the school that the thought of going home caused

suicidal ideations. Mother initially agreed to a safety plan which placed T.J. in a

group home. However, mother revoked the safety plan after four days. When

mother revoked the plan, T.J. repeated her fear of going home and HCJFS obtained

an emergency order from the juvenile court.

       {¶3}   On April 24, 2017, the juvenile court adjudicated T.J. neglected and

abused. On July 31, 2017, the court granted HCJFS temporary custody of T.J.

Mother’s case-plan services included visitation, parenting classes, individual therapy,

family therapy, and participation in T.J.’s treatment plan.         Mother successfully

completed parenting classes and individual therapy.        However, mother did not

complete family therapy or visitation.     Mother attended two sessions of family

therapy and approximately five months of visitation. Both services were eventually

discontinued due to argumentative behaviors from mother that physically upset T.J.

When HCJFS reinstated those services in February 2018, mother participated in only

two visits. Mother also did not substantially participate in treatment team meetings.



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Over the course of two years, mother attended less than ten of an estimated 40

meetings.

       {¶4}   While in HCJFS custody, T.J. was placed in multiple locations,

including a residential facility in Cincinnati, a residential facility in Columbus, three

group homes in Cincinnati, and three foster homes in Cincinnati. Throughout these

placements, T.J. was hospitalized four times for suicidal ideation and occasionally

homicidal ideation. At the time of trial, T.J. had been diagnosed with posttraumatic

stress disorder, specified depressive disorder, and pragmatic language disorder.

       {¶5}   On February 28, 2018, HCJFS moved to modify temporary custody to

permanent custody. The juvenile court conducted hearings on the motion on August

19, 2019, and September 17, 2019. On November 1, 2019, the court granted HCJFS

permanent custody of T.J.

       {¶6}   Mother filed this timely appeal, raising four assignments of error for

our review.

                          II. Motion for a Continuance

       {¶7}   In her first assignment of error, mother argues that the juvenile court

abused its discretion by denying her motion for a continuance.

       {¶8}   The denial of a continuance is within the sound discretion of the trial

judge. State v. Ungar, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An appellate

court will not reverse the denial of a continuance absent an abuse of discretion. Id.

       {¶9}   In evaluating a motion for a continuance, the court should balance all

of the competing considerations. Id. at 68 (“Weighed against any potential prejudice

to a defendant are concerns such as a court’s right to control its own docket and the

public’s interest in the prompt and efficient dispatch of justice.”). The court should

consider:



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        the length of the delay requested, whether other continuances have

        been requested and received, the inconvenience to litigants, witnesses,

        opposing counsel and the court, the reason for the delay, whether the

        party contributed to the circumstances which give rise to the request

        for a continuance, and any other relevant factors depending on the

        circumstances of each case.

In re E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, ¶ 5.

        {¶10} A review of the record demonstrates that the juvenile court properly

considered all relevant factors and did not abuse its discretion in refusing to grant a

continuance. On August 13, 2019, mother moved for a continuance of the trial

scheduled for August 19, 2019. Mother based her request on a supplemental case

plan filed on August 6, 2019, and supplemental discovery responses sent on July 29,

2019.

        {¶11} With respect to the filing of the case plan, the juvenile court found it to

be irrelevant to the permanent-custody hearing. Specifically, the court stated that “a

case plan is in the nature of an administrative document” and “[i]t’s not part of the

fact finding that goes along with the dependency complaint for the ultimate

disposition.” For these reasons, the court declined to grant a continuance based on

the filing of the case plan.

        {¶12} With respect to the supplemental discovery responses, mother

contended that she did not have time to “look at it, respond to it, [or] have a defense

to it.” However, the supplemental discovery consisted only of an updated witness

list, and HCJFS emailed it to mother 21 days before trial. Further, the record is

devoid of any indication of the length of delay requested by mother. There was no




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proposed trial date or any suggestion of how long it would have taken mother to

review the discovery.

       {¶13} Although mother requested only one continuance, a review of the

record reveals that she made in excess of 50 filings with the juvenile court

throughout the course of litigation.     These filings included several motions to

dismiss, numerous objections to HCJFS administrative documents, a myriad of

objections to the magistrate’s decisions, three appeals to this court, and at least one

grievance with the Ohio Supreme Court. An email between mother and the guardian

ad litem (“GAL”) admitted into evidence at trial reveals that mother made these

filings with the intent to take the case “all the way to the end [for] entertainment

purposes” and to draw out the process until T.J. reached the age of 18.

       {¶14} In considering the inconvenience to those involved, the court heard

from the HCJFS attorney, the GAL, and the attorney for T.J. The HCJFS attorney

objected to a continuance on the grounds of inconvenience to witnesses. Specifically,

the HCJFS attorney stated, “I have witnesses that are scheduled to be here every

hour today. They are all professional witnesses. The first one is set to be here in

about 20 minutes.” The GAL also objected to a continuance on the grounds of

mother’s previous dilatory tactics. Finally, the attorney for T.J., who was appointed

two months prior, stated that she did not need a continuance.

       {¶15} Based on the foregoing, the juvenile court did not abuse its discretion

by denying mother’s motion for a continuance. Mother’s first assignment of error is

overruled.




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                       III. Right to Assistance of Counsel

       {¶16} In her second assignment of error, mother argues that the juvenile

court deprived her of the right to assistance of counsel during all stages of the

proceeding.

       {¶17} Parents have a right to counsel in parental-termination cases. In re

R.K., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, syllabus; see R.C. 2151.352;

Juv.R. 4(A). However, the right to counsel in permanent-custody proceedings is not

absolute. A parent can waive his or her right to counsel. In re M Children, 1st Dist.

Hamilton No. C-180564, 2019-Ohio-484. ¶ 15. In determining whether a parent has

expressly waived the right to counsel, we consider whether the waiver was

voluntarily, knowingly, and intelligently made. Id.

       {¶18} Throughout this case, the magistrate appointed counsel for mother

three times. All three attorneys moved to withdraw within a few months of their

appointment.    The magistrate permitted mother’s first and second counsel to

withdraw due to irreparable harm to the attorney-client relationship and mother’s

request for new counsel.     The magistrate permitted mother’s third counsel to

withdraw due to irreconcilable differences. After mother’s third counsel withdrew,

the magistrate appointed a fourth attorney to act “as legal consultant to [mother]

only.” Mother’s legal consultant eventually moved to withdraw, citing irreconcilable

differences and an ethical conflict due to his limited position. The juvenile court

approved the motion and referred mother to the Public Defender’s Office. However,

mother continued to file motions pro se and appeared without counsel at all of the

remaining hearings.

       {¶19} At a hearing on February 13, 2019, the juvenile court engaged mother

in a colloquy to determine whether she wanted to waive her right to counsel. The



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court inquired into whether mother had sought counsel and urged mother to do so

when she responded, “No.” The parties then chose a date for trial on HCJFS’s

permanent-custody motion.

       {¶20} Thereafter, the following dialogue occurred:

       Court: Now, [mother], as I indicated to you, please, please go back to

       the Public Defender’s Office and see if they’ll appoint counsel for you.

       If you do choose to go forward representing yourself, I can help you

       procedurally, * * * but I can’t help you defend your case. Do you

       understand that?

       Mother: I’m fine with that.

Mother then asked several questions, to which the court responded,

       [T]hese are the kinds of things why I – I really want you to have an

       attorney. Because I don’t think you understand, first of all, how long a

       trial like this can go. I mean, it can go several days. And, secondly, I

       want you to be crystal clear what’s at stake here and how to defend the

       claims against you. I know that you are very articulate and I know that

       you’re very invested in your child, but you’re in a framework now that

       you have not been trained to operate in. And there’s rules of evidence,

       there’s rules of procedure that I can’t bend for you. As I indicated, I

       will help you understand procedurally where we’re at, but I can’t help

       you defend your case.

Mother unequivocally replied, “I’m going to represent myself.”

       {¶21} At the close of the February 13 hearing, the court again urged mother

to seek counsel, stating:




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       This isn’t about what kind of medication [T.J.’s] taking or what facility

       she’s living in. This is about whether or not you lose your child. As I

       said, it’s the most serious case this Court handles. So I don’t know

       what else I can say to you to impress upon you how important it is that

       you at least go to the Public Defender’s Office and see if they will

       reappoint counsel for you. If you – if you choose to go forward by

       yourself, it’s going to be difficult. That’s the best I can tell you.

In its entry, the court expressly permitted the Public Defender’s Office to appoint a

fourth counsel for mother, but stopped short of directing them to do so “because

mother has been adamant that she wants to represent herself.”

       {¶22} It is clear from the record that the juvenile court explained to mother

that she would be responsible for defending her case and warned her of the dangers

of self-representation. The court even acknowledged mother’s lack of legal training

and persistently urged mother to obtain counsel. However, mother not only showed

an unwillingness to obtain new counsel, but she also told the court, “I’m going to

represent myself.” Mother subsequently appeared at the permanent-custody hearing

pro se and actively participated in the hearing. Under these circumstances, we find

that mother expressly waived her right to counsel and that the waiver was

voluntarily, knowingly, and intelligently made.

       {¶23} Mother’s second assignment of error is overruled.

                           IV. Best Interest of the Child

       {¶24} In two related assignments of error, mother asserts that the record

does not support the juvenile court’s conclusion that a grant of permanent custody to

HCJFS was in T.J.’s best interest. In her third assignment of error, mother argues

that the juvenile court failed to consider all of the best-interest factors where its



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decision referenced only R.C. 2151.414(D)(1)(b) and offered no explicit comment on

the remaining R.C. 2151.414(D)(1) factors. In her fourth assignment of error, mother

contends that HCJFS failed to establish by clear and convincing evidence that it

should be awarded permanent custody of T.J.

       {¶25} A juvenile court's determination to award permanent custody must be

supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-

110363, 2011-Ohio-4912, ¶ 46. In reviewing a juvenile court’s permanent-custody

determination, we must examine the record and determine if the juvenile court had

sufficient evidence before it to satisfy the clear-and-convincing standard. Id.

       {¶26} R.C. 2151.414 governs the findings the juvenile court must make before

granting permanent custody of a child to a children services agency. Under R.C.

2151.414(B), the juvenile court may grant a motion for permanent custody if the

court determines that permanent custody is in the best interest of the child and that

one of the five conditions set forth in R.C. 2151.414(B)(1) applies.

       {¶27} In determining the best interest of the child, R.C. 2151.414(D)(1)

requires the juvenile court to consider all relevant factors, including, but not limited

to, five mandatory factors.      These factors include (a) “[t]he interaction and

interrelationship of the child with the child’s parents, siblings, relatives, foster

caregivers and out-of-home providers”; (b) “[t]he wishes of the child”; (c) “[t]he

custodial history of the child”; (d) “[t]he child’s need for a legally secure permanent

placement and whether that type of placement can be achieved without a grant of

permanent custody to the agency”; and (e) “[w]hether any of the factors in divisions

(E)(7) to (11) of this section apply in relation to the parents and child.”        R.C.

2151.414(D)(1).




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       {¶28} “But there is no requirement that the trial court discuss the application

of each statutory factor it has considered.” In re A.M., 1st Dist. Hamilton No. C-

190027, 2019-Ohio-2028, appeal accepted, 157 Ohio St.3d 1406, 2019-Ohio-3731,

131 N.E.3d 77. “We strongly encourage the juvenile court’s discussion of each factor,

but we cannot find error in the juvenile court’s failure to discuss each factor if the

record otherwise indicates that all of the necessary factors were considered.” In re

K.T.1 II, 2018-Ohio-4312, 121 N.E.3d 847, ¶ 46 (1st Dist.).

       {¶29} In In re A.M., the dissent took issue with “the magistrate and juvenile

court’s collective failure to actually explain their decisions.” In re A.M. at ¶ 41. The

dissent was specifically concerned with the fact that the magistrate’s order recited

the statutory language of R.C. 2151.414(D)(1) but offered no analysis, discussion, or

factual findings. Id. at ¶ 45. The dissent argued that the juvenile court should be

required to make the appropriate factual findings to enable us to conduct meaningful

appellate review. Id. at ¶ 41.

       {¶30} Here, however, the juvenile court did make factual findings relevant to

an analysis under each best-interest factor, despite the fact that it did not expressly

cite each statutory factor. While it would have been helpful to this court and the

parties for the juvenile court to cite each statutory factor in its analysis, the failure to

do so did not preclude meaningful appellate review where the court otherwise

engaged in a thorough analysis.

       {¶31} With respect to the child’s interaction and interrelationship with

others (R.C. 2151.414(D)(1)(a)), the court found that the root problem appeared to be

T.J.’s relationship with mother. The court noted, “When T.J. most needs the stable

support of a nurturing parent, mother responds by being uncooperative with the

treating professionals * * *[,] hostile to the HCJFS personnel, and effectively



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becomes a roadblock to the child’s stabilization.” As an example, the court cited an

instance where mother indicated to T.J. that she would sign a permanent surrender

of parental rights at a critical point in T.J.’s treatment process. However, mother

later admitted to the GAL that she never intended to surrender her parental rights

and that she “will tell [T.J.] what ever she wants and needs to hear.” The court also

mentioned that “[v]isitation became more detrimental to the child than helpful and

finally visits were suspended for a period of time.” Based on the foregoing, the court

concluded that “mother is unable or unwilling to acknowledge the severity of the

child’s mental health issues, and in light of that lack of understanding, frustrates

treatment – and causes increased tension in her relationship with her daughter.”

       {¶32} A review of the record further details T.J.’s interaction and

interrelationship with her siblings and out-of-home providers. At trial, T.J.’s group-

home therapist testified that family-related issues caused stress for T.J.         For

example, the GAL testified to an incident where T.J.’s sister chastised T.J. for her

poor relationship with mother. Several hours later, T.J. expressed suicidal ideations

to the staff at her group home and she was hospitalized. With respect to out-of-home

providers, T.J.’s group-home therapist testified that the group home provided T.J. a

reasonably stable living environment. In the four months leading up to trial, T.J. had

reduced the number of suicide attempts, reduced the number of hospitalizations,

experienced success with peers and staff in the group home, and experienced success

in school.

       {¶33} In considering the wishes of the child, the court expressly cited R.C.

2151.414(D)(1)(b). With regard to this factor, the court found that the GAL and the

attorney for T.J. “unanimously and repeatedly expressed the child’s adamant desire

to be permanently committed to HCJFS and possibly adopted.”



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶34} The court also considered the custodial history of the child (R.C.

2151.414(D)(1)(c)). The court determined that, when HCJFS moved for permanent

custody, T.J. had been in HCJFS placement for over 19 months.

       {¶35} With respect to the child’s need for legally secure placement (R.C.

2151.414(D)(1)(d)), the court found that “no one from the family has stepped forward

to offer T.J. any alternative to the toxic environment mother would provide.” The

court noted that, despite telephone contact with T.J., T.J.’s alleged father had not

participated in the case, had never sought custody, and had never proposed an

alternative to HCJFS custody. In addition, the court mentioned that one relative

briefly appeared and expressed interest in seeking custody of T.J. However, “that

relative never followed through and her home situation * * * did not appear to be a

viable alternative at the time she testified.”     Furthermore, the court discussed

Planned Permanent Living Arrangement as a “preferable disposition – except that

mother would retain the ability to continue to frustrate and delay any efforts to meet

T.J.’s needs.”

       {¶36} A review of the record further details T.J.’s need for legally secure

placement.       At the time of trial, HCJFS had provided T.J. a secure and stable

placement.       T.J.’s group-home placement offered her individual therapy, group

therapy, med-som services, a mentor, and case-management services. In HCJFS

custody, T.J. can continue these services until the age of 21.

       {¶37} The court also considered the applicability of R.C. 2151.414(E)(8).

Provision (E)(8) of R.C. 2151.414 examines whether the parent has withheld medical

treatment from the child. Here, the court found that mother’s refusal to cooperate

with providers and her continuous objections to case plans delayed or frustrated

T.J.’s needed services. As an example, the court noted that mother objected to each



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new case plan, “involving things as basic as changes in medication recommended by

the treating physicians,” and necessitated a hearing “to approve virtually every effort

to address T.J.’s continuing and worsening mental health needs.”

       {¶38} Under these circumstances, we find that the juvenile court properly

considered all of the relevant factors, despite expressly citing only one of the five

enumerated factors in R.C. 2151.414(D)(1) in its decision. Furthermore, we hold that

clear and convincing evidence supports the court’s determination that a grant of

permanent custody was in T.J.’s best interest.

       {¶39} Mother’s third and fourth assignments of error are overruled.

                                   V. Conclusion

       {¶40} For the foregoing reasons, mother’s assignments of error are overruled

and the judgment of the juvenile court is affirmed.

                                                                      Judgment affirmed.

Z AYAS , P.J., and M YERS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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