[Cite as In re L.S., 2011-Ohio-3836.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95809




                                        IN RE:   L.S.

                                         Minor Child



                                        JUDGMENT:
                                         AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. AD 08934589


        BEFORE: Cooney, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 4, 2011

ATTORNEY FOR APPELLANT

Gregory T. Stralka
                                 2

Crown Centre Suite 600-30
5005 Rockside Road
Cleveland, Ohio 44131

ATTORNEYS FOR APPELLEE

For C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
Gregory S. Millas
Assistant County Prosecutor
8111 Quincy Avenue, Room 444
Cleveland, Ohio 44104

For Mother
Denise Rini
Bartos & Rini, LPA
13363 Madison Avenue
Lakewood, Ohio 44107

GUARDIAN AD LITEM

For Child
Joseph J. Jacobs
Jacobs Legal Group
15614 Detroit Avenue, Suite 6
Lakewood, Ohio 44107

For Mother
Thomas Kozel
P.O. Box 534
North Olmsted, Ohio 44070-0534




COLLEEN CONWAY COONEY, J.:
                                              3


       {¶ 1} Appellant, B.S. (“father” or “B.S.”), appeals the trial court’s order granting

permanent custody of his minor child, L.S. (“the child” or “L.S.”), to appellee, Cuyahoga

County Department of Children and Family Services (“the agency”).         Finding no merit to the

appeal, we affirm.

       {¶ 2} In June 2008, L.S. (born September 2005) was removed from his mother’s

home and placed in the emergency custody of the agency.             The case proceeded to trial.

Both mother and father stipulated to the allegations contained in the complaint.    In September

2008, a magistrate adjudicated L.S. neglected and abused and committed the child to the

temporary custody of the agency.

       {¶ 3} The mother’s case plan for reunification with the child required her to complete

a drug and alcohol assessment and treatment, participate in domestic violence and mental

health services, and obtain appropriate housing.     Mother actively participated in her case plan

and was reunited with L.S. in June 2009.           The agency anticipated a termination of the

temporary custody.    However, just days after losing her housing, mother returned L.S. to the

foster placement, and the agency’s motion to terminate temporary custody was denied.           In

accordance with two extensions of temporary custody, L.S. remained in temporary custody

until March 2010.    Despite her initial attempts, mother had failed to comply with her case
                                                4

plan and the agency sought permanent custody.            At the time of the hearing, B.S. was

incarcerated in Kentucky, but had been served with the agency’s motion for permanent

custody.    Despite having been served, he did not request to be present at the hearing.       The

trial court granted the agency’s motion, awarding permanent custody of L.S. to the agency.

         {¶ 4} It is from this order that B.S. now appeals.

         {¶ 5} In his first assignment of error, B.S. argues that the agency failed to establish by

sufficient evidence that he was repeatedly incarcerated and unable to provide care for his

child.   In his second assignment of error, B.S. argues that the findings by the trial court

granting permanent custody were against the manifest weight of the evidence.                These

assignments of error address the same facts and pertinent law, and will therefore be addressed

together.

         {¶ 6} When reviewing a trial court’s judgment in child custody cases, the appropriate

standard of review is whether the trial court abused its discretion. Masters v. Masters, 69

Ohio St.3d 83, 1994-Ohio-483, 630 N.E.2d 665.         An abuse of discretion is more than an error

of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable.     Miller v. Miller (1988), 37 Ohio St.3d 71, 73, 523 N.E.2d 846.             An

appellate court must adhere to “every reasonable presumption in favor of the lower court’s

judgment and finding of facts.”       In re Brodbeck (1994), 97 Ohio App.3d 652, 659, 647
                                              5

N.E.2d 240, quoting Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638

N.E.2d 533.

       {¶ 7} Where clear and convincing proof is required at trial, a reviewing court will

examine the record to determine whether the trier of fact had sufficient evidence before it to

satisfy the requisite degree of proof. In re T.S., Cuyahoga App. No. 92816, 2009-Ohio-5496,

¶24, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54.           Judgments

supported by competent, credible evidence going to all the essential elements of the case will

not be reversed as being against the manifest weight of the evidence.   Id.

       {¶ 8} 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

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.”   In re

Awkal (1994), 95 Ohio App.3d 309, 315, 642 N.E.2d 424, citing Lansdowne v. Beacon

Journal Pub. Co. (1987), 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979.

       {¶ 9} Further, issues relating to the credibility of the witnesses and the weight to be

given the evidence are primarily for the trier of fact. Bechtol v. Bechtol (1990), 49 Ohio

St.3d 21, 23, 550 N.E.2d 178; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,

461 N.E.2d 1273.
                                              6

        {¶ 10} R.C. 2151.414 sets forth a two-prong analysis to be applied by the juvenile

court for a determination of whether permanent custody should be granted to an agency. The

statute requires the court to find, by clear and convincing evidence, (1) one of the factors

enumerated in R.C. 2151.414(B)(1)(a)-(d), and (2) an award of permanent custody is in the

best interest of the child.

        {¶ 11} In regard to the first prong, R.C. 2151.414(B)(1)(a)-(d) provides:

        “(B)(1) Except as provided in division (B)(2) of this section, the court may grant
        permanent custody of a child to a movant if the court determines at the hearing held
        pursuant to division (A) of this section, by clear and convincing evidence, that it is in
        the best interest of the child to grant permanent custody of the child to the agency that
        filed the motion for permanent custody and that any of the following apply:

        “(a) The child is not abandoned or orphaned, has not been in the temporary custody of
        one or more public children services agencies or private child placing agencies for
        twelve or more months of a consecutive twenty-two-month period, or has not been in
        the temporary custody of one or more public children services agencies or private child
        placing agencies for twelve or more months of a consecutive twenty-two-month period
        if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child
        was previously in the temporary custody of an equivalent agency in another state, 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.
                                              7

       “(d) The child has been in the temporary custody of one or more public children

       services agencies or private child placing agencies for twelve or more months of a

       consecutive twenty-two-month period, or the child has been in the temporary custody

       of one or more public children services agencies or private child placing agencies for

       twelve or more months of a consecutive twenty-two-month period and, as described in

       division (D)(1) of section 2151.413 of the Revised Code, the child was previously in

       the temporary custody of an equivalent agency in another state.”

       {¶ 12} In the instant case, the trial court satisfied the first prong on numerous grounds.

 First, the trial court found that L.S. had been in agency custody for at least 12 months of a

consecutive 22-month period, pursuant to R.C. 2151.414(B)(1)(d).              At the time of the

permanent custody hearing, L.S. had in fact been in custody for over 20 months.       In addition,

the trial court found that the child could not be placed with either parent within a reasonable

time, pursuant to R.C. 2151.414(B)(1)(a), based on the report from the guardian ad litem and

the testimony of the social workers.   Having failed to comply with his case plan and due to

his incarceration, B.S. did not have appropriate housing available for L.S.

       {¶ 13} The agency social worker testified that in the course of the case, father had been

chronically homeless and imprisoned on numerous occasions.         She testified that father had

not complied with his case plan during the periods of time he was not in prison.        He tested
                                              8

positive for marijuana in one drug test and had failed to attend numerous substance abuse

assessments for which he was scheduled.      The trial court also found that the child had been

abandoned, pursuant to R.C. 2151.414(B)(1)(b).      Thus, the first prong was satisfied by clear

and convincing evidence.

       {¶ 14} The second prong requires the trial court to make the finding that permanent

custody is in the best interest of the children pursuant to R.C. 2151.414(D)(1) through (5),

which state:

       “(1) The interaction and interrelationship of the child with the child’s parents, siblings,
       relatives, foster caregivers 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, including whether the child has been in the
       temporary custody of one or more public children services agencies or private child
       placing agencies for twelve or more months of a consecutive twenty-two month period
       ending on or after March 18, 1999;

       “(4) The child’s need for a legally secure permanent placement and whether * * * [it]
       can be achieved without a grant of permanent custody to the agency;

       “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in

       relation to the parents and child.”
                                                 9

         {¶ 15} This court has found that only one of these enumerated factors needs to be

resolved in favor of the award of permanent custody.               In re Moore (Aug. 31, 2000),

Cuyahoga App. No. 76942, citing, In re Shaeffer Children (1993), 85 Ohio App.3d 683, 621

N.E.2d 426; see, also, In re M.Z., Cuyahoga App. No. 80799, 2002-Ohio-6634; In Re Legg,

Cuyahoga App. Nos. 80542 and 80543, 2002-Ohio-4582.

         {¶ 16} In the instant case, the trial court stated in its journal entry that it had considered

all the relevant factors pursuant to R.C. 2151.414(D) in determining the best interest of the

child.   The record shows that the child had been in custody for 12 or more months of a

consecutive 22-month period.        In addition, the record described the lack of interactions with

the father during the vast majority of the child’s time in custody.          Although L.S. was too

young to voice his own desires, the trial court found that he is “entitled to stability and a

legally secure placement.”      The court further found that this could only be achieved through

permanent custody.      In light of all the evidence, the trial court properly found that permanent

custody was in the child’s best interest.

         {¶ 17} The trial court’s determination to award permanent custody to the agency was

based on clear and convincing evidence.           This evidence included reports and testimony

describing B.S.’s repeated incarcerations and inability to care for L.S.          The termination of

parental rights was supported by sufficient evidence and was not against the manifest weight
                                             10

of the evidence.    Therefore, we find no abuse of discretion by the trial court in granting

permanent custody to the agency.

       {¶ 18} Accordingly, the first and second assignments of error are overruled.

       {¶ 19} In his third assignment of error, B.S. argues that the trial court abused its

discretion when it failed to grant the guardian ad litem’s request for a continuance to

investigate relatives of the child.

       {¶ 20} Juv.R. 23 provides that “[c]ontinuances shall be granted only when imperative

to secure fair treatment for the parties.”   Further, Loc.R. 49(C) of the Juvenile Division

states: “No case will be continued on the day of trial or hearing except for good cause shown,

which cause was not known to the party or counsel prior to the date of trial or hearing, and

provided that the party and/or counsel have used diligence to be ready for trial and have

notified or made diligent efforts to notify the opposing party or counsel as soon as he/she

became aware of the necessity to request a postponement.     This rule may not be waived by

consent of counsel.”

       {¶ 21} The grant or denial of a continuance is a matter that is entrusted to the broad,

sound discretion of the trial judge, and an appellate court must not reverse the denial of a

continuance unless there has been an abuse of discretion. State v. Unger (1981), 67 Ohio

St.2d 65, 67, 423 N.E.2d 1078; In re Zhang (1999), 135 Ohio App.3d 350, 354, 734 N.E.2d
                                                 11

379; In re Miller, 3d Dist. No. 2-04-02, 2004-Ohio-3023.            An abuse of discretion constitutes

more than an error of law or judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140.     When applying the abuse of discretion standard, a reviewing court may not

simply substitute its judgment for that of the trial court.   Id.

       {¶ 22} In the instant case, the guardian ad litem requested a continuance during the

permanent custody hearing in order to investigate potential out-of-state relatives.             These

paternal relatives had come forward and voiced their desire to gain custody of L.S.         However,

no motion for custody was filed with the court prior to the hearing.          The trial court rejected

the guardian ad litem’s request, finding that:

       {¶ 23} “[t]he Court cannot and will not delay permanency for this child for a minimum

of another six month[s] to a year in order to see if the paternal relatives in Massachusetts are a

suitable placement for only one of the brothers.”
                                                    1




       {¶ 24} L.S.’s paternal grandfather testified during the hearing that his family had been

made aware of the agency’s motion for permanent custody in March 2010.               The hearing was

held in July 2010, and yet no motion for custody by any extended family had been made prior


           L.S. was in foster care with his infant brother.         The two children share the same
       1


biological mother, but do not share the same biological father.
                                             12

to the hearing, nor had any visits been requested by the paternal extended family in the months

prior to the hearing.

       {¶ 25} This court has repeatedly held that:

       {¶ 26} “[t]he trial court is not required to consider placing the children with a relative

prior to granting permanent custody to CCDCFS.         This court has previously held that the

willingness of a relative to care for a child does not alter what the court must consider in

determining permanent custody. In re Benavides (May 3, 2001), Cuyahoga App. No. 78204,

citing In re Patterson (1999), 134 Ohio App.3d 119, 730 N.E.2d 439.”       In re A.D., Cuyahoga

App. No. 85648, 2005-Ohio-5441, at ¶12.

       {¶ 27} Thus, the trial court did not abuse its discretion by denying the late request for a

continuance.

       {¶ 28} Accordingly, the third assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of 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

juvenile court to carry this judgment into execution.
                                    13

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

Rule 27 of the Rules of Appellate Procedure.



__________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
