[Cite as In re R.B., 2013-Ohio-5877.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF: R.B.                         :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
                                               :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
                                               :
                                               :   Case No. 2013CA00171
                                               :
                                               :
                                               :
                                               :
                                               :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   case no. 2012JCV00099



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 23, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

LISA A. LOUY                                       MARY G. WARLOP
STARK CO. D.J.F.S.                                 Abney Law Office, LLC
221 Third St. SE                                   116 Cleveland Ave. NW, Ste. 500
Canton, OH 44702                                   Canton, OH 44702
Stark County, Case No. 2013CA00171                                                   2

Delaney, J.

       {¶1} Appellant Ryan Boyko (“Father”) appeals from the August 8, 2013

judgment entry of the Stark County Court of Common Pleas, Family Court Division

awarding permanent custody to appellee Stark County Department of Job and Family

Services.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Father and Angela Firestone (“Mother”) are the parents of R.B., a

daughter born January 25, 2012. Appellee filed a complaint for temporary custody and

placed R.B. with a foster family on January 27, 2012, where she has remained since.

R.B. was adjudicated a dependent child on April 25, 2012 and has remained

continuously in the custody of appellee.

       {¶3} On July 19, 2012, the trial court found compelling reasons existed to

preclude appellee filing for permanent custody because a relative (maternal cousin)

came forward and an interstate home study needed to be completed. Mother filed a

motion to change legal custody to maternal cousin and appellee filed a motion to extend

temporary custody to allow additional time for the interstate home study to be

completed. The motion was granted and temporary custody was extended to July 27,

2013. The home study was ultimately denied due to maternal cousin’s health issues

and concerns with the structural stability of the home.

       {¶4} On May 7, 2013, appellee filed a Motion for Permanent Custody. The trial

court heard evidence on August 5, 2013 and journalized its findings of fact and

conclusions of law granting permanent custody of R.B. to appellee on August 8, 2013.
Stark County, Case No. 2013CA00171                                                   3


On August 14, 2013 the trial court issued a nunc pro tunc entry correcting the child’s

date of birth.

       {¶5} The following facts are adduced from the hearing on appellee’s Motion for

Permanent Custody.

       {¶6} Upon obtaining temporary custody of R.B., appellee developed a case

plan with both parents1 which required both parents to: 1) complete a parenting

evaluation at Northeast Ohio Behavioral Health and follow all recommendations; 2)

successfully complete the Goodwill Parenting program; 3) receive a drug and alcohol

evaluation at Quest and follow all treatment recommendations; and 4) maintain stable

housing and employment.

       {¶7}      Father completed the Northeast Ohio Behavioral Health evaluation but

did not attend Goodwill Parenting.    He testified he knew it was likely he would be

returning to prison on a probation violation and he had to be in three places at once:

work, the Recovery Center (a requirement through his TASC probation), and Goodwill

Parenting; he chose not to complete Goodwill Parenting.      On July 30, 2012, Father

was incarcerated for a probation violation because he failed to complete court-ordered

anger management classes. While in prison, Father obtained a G.E.D., completed a

number of programs, and wrote to R.B. through her foster family twice.        He was

released early, on July 19, 2013, to “CTCC,” described as a halfway house.

       {¶8} Father has not had contact with R.B. since May 4, 2012. He testified he

was afraid to appear for scheduled visits due to issues with Mother, although they are

1
  Mother did not obtain the Quest evaluation and did not attend Goodwill Parenting. Her
last contact with R.B. was May 4, 2012, and she did not attend the permanent custody
hearing. Mother’s whereabouts are currently unknown and she is not a party to this
appeal.
Stark County, Case No. 2013CA00171                                                  4


no longer together. He acknowledged the caseworker set up separate visits for each

parent that he still did not attend.

       {¶9} R.B. has been in the continuous custody of appellee since April 25, 2012.

She was placed with a foster family two days after her birth and this family wants to

adopt her. R.B. has bonded with her foster parents and also with her siblings in the

foster family. The caseworker testified R.B. is not bonded to Father or Mother because

contact with her biological parents has been sporadic.

       {¶10} Father appeals from the judgment of the trial court awarding permanent

custody to appellee.

       {¶11} Father raises four assignments of error:

                                ASSIGNMENTS OF ERROR

       {¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

FATHER’S MOTION TO CONTINUE.”

       {¶13} “II. THE TRIAL COURT ERRED IN REFUSING TO ALLOW FATHER TO

CALL A WITNESS TO TESTIFY ON HIS BEHALF.”

       {¶14} “III.   THE    TRIAL      COURT   ERRED     IN GRANTING    PERMANENT

CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING

EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶15} “IV. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
Stark County, Case No. 2013CA00171                                                         5


THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT

PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                        ANALYSIS

                                                 I.

       {¶16} In his first assignment of error, Father argues the trial court erred in

denying his motion to continue the hearing. We disagree.

       {¶17} The trial on appellee’s motion for permanent custody was scheduled for

August 5, 2013. Father had unexpectedly been released from prison early and his trial

counsel had learned of his release on August 1, 2013; counsel sought time to subpoena

witnesses and to obtain records of programs Father completed through probation and

while in prison.   Appellee objected and the trial court overruled Father’s motion to

continue.

       {¶18} Juvenile Rule 23 provides that “[c]ontinuances shall be granted only when

imperative to secure fair treatment for the parties.” It is well-settled that “[t]he grant or

denial of a continuance is a matter which is entrusted to the broad, sound discretion of

the trial judge. An appellate court must not reverse the denial of a continuance unless

there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981). An abuse of discretion implies that the court's attitude was

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

219 (1983).

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

continuance, appellate courts apply a balancing test that takes into account a variety of
Stark County, Case No. 2013CA00171                                                      6


competing considerations: “A court should note, inter alia: 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; whether the defendant contributed to the circumstance which gives rise to the

request for a continuance; and other relevant factors, depending on the unique facts of

each case.” In re B.B., 5th Dist. Stark No. 2010CA00151, 2010-Ohio-4618, ¶ 38, citing

Unger, supra, 67 Ohio St.2d at 67–68.

      {¶20} We find the trial court did not abuse its discretion in overruling the motion

to continue the permanent custody hearing. Father had notice of the hearing, was

present and represented by counsel. In re R.H., 5th Dist. Stark No. 2012-CA-00008,

2012-Ohio-1811, ¶ 10. We note he was released on July 19, 2013, but apparently had

no contact with counsel until August 1, despite the upcoming permanent custody trial.

      {¶21} A continuance to subpoena witnesses or obtain probation and prison

records would not have changed the evidence that Father did not complete the case

plan and despite whatever programming he may have completed in prison, its focus

was not parenting.      See, In re Campbell/Spicer Children, 5th Dist. Stark No.

2002CA00056, 2002-Ohio-3696. The trial court did not abuse its discretion in refusing

to grant the continuance.

      {¶22} Father’s first assignment of error is overruled.

                                               II.
Stark County, Case No. 2013CA00171                                                     7


       {¶23} In his second assignment of error, Father argues the trial court erred in

refusing to allow him to call his mother as a witness when he did not provide her name

to appellee in discovery. We disagree.

       {¶24} Both parties cite Juv.R. 24 which applies to discovery matters before the

juvenile court and states in pertinent part:

              (A) Request for discovery

              Upon written request, each party of whom discovery is requested

              shall, to the extent not privileged, produce promptly for inspection,

              copying, or photographing the following information, documents,

              and material in that party's custody, control, or possession:

              (1) The names and last known addresses of each witness to the

              occurrence that forms the basis of the charge or defense;

              * * * *.

              (C) Failure to comply.      If at any time during the course of the

              proceedings it is brought to the attention of the court that a person

              has failed to comply with an order issued pursuant to this rule, the

              court may grant a continuance, prohibit the person from introducing

              in evidence the material not disclosed, or enter such other order as

              it deems just under the circumstances.

       {¶25} We are not persuaded that Juv.R. 24(C) is applicable, however, because

there is no evidence in the record that any party sought a discovery order, i.e. filed a

motion to compel, which would have given the trial court the option of excluding Father’s

witness pursuant to the Rule.
Stark County, Case No. 2013CA00171                                                         8


       {¶26} Instead, the record reveals Father’s trial counsel did not provide any

discovery to appellee because she was unaware of any potential witnesses until the day

of the permanent custody hearing. In the context of the entire proceeding, however, we

still find the trial court did not abuse its discretion in excluding the witness. Father

sought to call his mother as a witness and appellee objected. Father proffered that his

mother would testify to Father’s contact with the agency and his caseworker during his

incarceration. Because Father was able to testify to these matters firsthand, and it is

not apparent his mother’s testimony would have been relevant or admissible, we find

the trial court did not abuse its discretion in excluding the witness.

       {¶27} Father’s second assignment of error is overruled.

                                               III., IV.

       {¶28} In his third and fourth assignments of error, Father argues the trial court’s

decision granting permanent custody of R.B. to appellee was against the manifest

weight of the evidence. We disagree. These assignments of error are related and will

be considered together.

       {¶29} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide 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, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue

must be clear and convincing, a reviewing court will examine the record to determine
Stark County, Case No. 2013CA00171                                                        9


whether the trier of facts had sufficient evidence before it to satisfy the requisite degree

of proof.” Id. at 477. If some competent, credible evidence going to all the essential

elements of the case supports the trial court's judgment, an appellate court must affirm

the judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

       {¶30} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

       {¶31} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency. Following the hearing, R.C. 2151.414(B)

authorizes the juvenile court to grant permanent custody of the child to the public or

private agency if the court determines, by clear and convincing evidence, it is in the best

interest of the child to grant permanent custody to the agency, and that any of the

following apply: (a) the child is not abandoned or orphaned, and the child cannot be

placed with either of the child's parents within a reasonable time or should not be placed

with the child's parents; (b) the child is abandoned; (c) the child is orphaned and there

are no relatives of the child who are able to take permanent custody; or (d) the child has

been in the temporary custody of one or more public children services agencies or
Stark County, Case No. 2013CA00171                                                         10


private child placement agencies for twelve or more months of a consecutive twenty-two

month period ending on or after March 18, 1999.

       {¶32} R.C. 2151.414(B) establishes a two-pronged analysis the trial court must

apply when ruling on a motion for permanent custody. In practice, a trial court will

usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

       {¶33} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the

child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody.

       {¶34} Our review of the record shows the trial court's decision regarding

permanency and placement was supported by clear and convincing evidence.

       {¶35} First, the evidence shows Father abandoned R.B. The caseworker

testified Father’s last visit with R.B. was May 4, 2012. Father acknowledged additional

visits had been scheduled, even separate from Mother, but he failed to appear. For

purposes of R.C. 2151.414(B)(1)(b), “abandoned” is defined by R.C. 2151.011(C),

which provides that “a child shall be presumed abandoned when the parents of the child
Stark County, Case No. 2013CA00171                                                     11


have failed to visit or maintain contact with the child for more than ninety days,

regardless of whether the parents resume contact with the child after that period of

ninety days.”

       {¶36} Second, appellee made reasonable efforts to reunify Father with R.B. and

Father failed to comply. Father was given a case plan to complete “calculated to

facilitate reunification of the family.” He obtained his parenting evaluation as ordered,

but did not complete the Goodwill Parenting program nor complete treatment through

the Crisis Center. Father’s probation for a drug conviction was revoked and he was

incarcerated on July 30, 2012. We acknowledge Father used his time in prison and

SRCCC to complete drug and alcohol treatment, “Thinking for a Change,” and

“Cognitive Skills.” He obtained his G.E.D. and completed art classes. Unfortunately

these attainments do not bear upon his ability to effectively parent and cannot substitute

for his failure to complete his case plan.

       {¶37} We next turn to the issue of best interest. We have frequently noted, “[t]he

discretion which the juvenile court enjoys in determining whether an order of permanent

custody is in the best interest of a child should be accorded the utmost respect, given

the nature of the proceeding and the impact the court's determination will have on the

lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark No.2000CA00244,

2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642

N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best interest of the

child to be placed in the permanent custody of SCDJFS pursuant to R.C. 2151.414(D),

and we agree.
Stark County, Case No. 2013CA00171                                                  12


         {¶38} R.B. has been with her foster family since she was two days old and they

want to adopt her. She is bonded with her foster parents and siblings. Unfortunately no

bond exists between R.B. and Father due to their sporadic limited contact. Father has

not named any possible relative placements, and the only possible relative placement

named by Mother has been ruled out. The guardian ad litem recommended permanent

custody to appellee is in the best interests of R.B.

         {¶39} R.B. deserves permanency now. We find no error in awarding permanent

custody to appellee and therefore overrule Father’s third and fourth assignments of

error.

                                      CONCLUSION

         {¶40} Father’s four assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas, Family Court Division is hereby affirmed.
Stark County, Case No. 2013CA00171                              13


By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.



                                     HON. PATRICIA A. DELANEY




                                     HON. JOHN W. WISE



                                     HON. CRAIG R. BALDWIN
