[Cite as In re T.B., 2019-Ohio-1742.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 IN THE MATTER OF:                             JUDGES:
                                               Hon. W. Scott Gwin, P.J
         T.B.                                  Hon. William B. Hoffman, J.
                                               Hon. Earle E. Wise, Jr., J.

                                               Case No. 2019 AP 01 0005


                                               O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Tuscarawas County
                                               Court of Common Pleas, Juvenile
                                               Division, Case No. 2017 JN 00383



 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       May 7, 2019


 APPEARANCES:


 For Appellee                                  For Appellants

 JEFF M. KIGGANS                               JOHN GARTRELL
 Tuscarawas County Job & Family Services       Assistant Public Defender
 389 – 16th Street, SW                         153 N. Broadway
 New Philadelphia, Ohio 44663                  New Philadelphia, Ohio 44663

 DONOVAN HILL
 Guardian ad Litem
 116 Cleveland Ave., NW – Suite 108
 Canton, Ohio 44702
Tuscarawas County, Case No. 2019 AP 01 0005                                               2

Hoffman, J.
       {¶1}   Appellant Criste Wise ("Mother") appeals the December 11, 2018 Judgment

Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division,

which terminated her parental rights with respect to her minor child ("the Child") and

granted permanent custody of the Child to appellee Tuscarawas County Job and Family

Services ("TCJFS").

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Mother and Randy Brigham are the biological parents of the Child. On

December 7, 2017, the trial court placed the Child in the emergency temporary custody

of TCJFS after Mother was arrested on outstanding warrants out of the state of Georgia.

The trial court, in a separate judgment entry filed the same day, appointed Attorney

Donovan Hill as guardian ad litem for the Child. Also on December 7, 2017, TCJFS filed

a complaint, alleging the Child was a dependent child.

       {¶3}   The trial court ordered ICPC (Interstate Compact on the Placement of

Children) home studies of the Child's paternal great aunt and maternal step-aunt, both of

whom resided in Georgia. Attorney Hill filed his initial guardian ad litem report on January

26, 2018. Following an adjudicatory hearing on January 30, 2018, the trial court found

the Child to be dependent and ordered the Child remain in the temporary custody of

TCJFS. The trial court further ordered any written communications between Mother and

the Child be approved by the court prior to delivery to the Child.

       {¶4}   Attorney Hill filed an interim report on April 23, 2018.      The trial court

conducted a review hearing on April 23, 2018, and maintained the status quo. In a

judgment entry filed April 25, 2018, the trial court stated Mother, who had been extradited

to Georgia, had failed to complete a drug court program, was jailed, but released with
Tuscarawas County, Case No. 2019 AP 01 0005                                             3


instructions to enter drug treatment. The trial court noted there was no indication Mother

had entered drug treatment or had, in any other way, addressed her drug problem. The

trial court added, although Mother sent communications to the Child via TCJFS, Mother

had failed to contact her caseworker. On May 22, 2018, counsel for Mother advised the

trial court Mother was residing at Women's Treatment and Recovery Services in

Gainesville, Georgia.

      {¶5}   On October 5, 2018, TCJFS filed a motion to modify disposition from

temporary custody to permanent custody. TCJFS maintained the Child could not be

placed with Mother within a reasonable time. The motion set forth the following facts.

The Child had been in TCJFS custody since December 6, 2017, when Mother was

arrested in Tuscarawas County on outstanding warrants from Georgia.               Mother

subsequently was extradited to Georgia. She was ordered to complete inpatient drug

rehabilitation. Mother began treatment, but went AWOL (Absent Without Liberty) after

smuggling alcohol or drugs into the facility. Mother was apprehended and sentenced to

11 months in jail on the original charges which led to her absconding to Ohio. Mother

was also awaiting the disposition of additional drug charges.

      {¶6}   The trial court scheduled the permanent custody hearing for December 6,

2018. Mother filed a Motion to Continue/Motion to Transport on October 23, 2018,

requesting the hearing be continued until after her release from jail on January 8, 2019,

or, alternatively, she be transported to Ohio for the hearing. The trial court denied the

motion. On November 15, 2018, Mother filed a motion asking to be present at the hearing

by Skype or telephone. The trial court denied the motion.

      {¶7}   Attorney Hill filed his final report on December 5, 2018.       The hearing
Tuscarawas County, Case No. 2019 AP 01 0005                                             4


proceeded as scheduled on December 6, 2018.

      {¶8}      Prior to the commencement of the hearing, Counsel for Mother requested a

continuance of the hearing in order for Mother to attend as well as a six month extension

of custody to provide her with an opportunity to work on her case plan. The trial court

overruled the requests. Counsel for Mother introduced three letters written by Mother,

detailing various time frames of her life. The letters were admitted into evidence without

objection.

      {¶9}      Malissa Cantarero, the ongoing caseworker, discussed the events which

led to TCJFS taking the Child into custody. Cantarero stated TCJFS received a call from

a probation officer in Georgia, advising Mother had picked up the Child, who was in safe

placement, fled the state, and came to Ohio. A federal warrant had been issued for

Mother's arrest. When Mother was arrested in Tuscarawas County, TCJFS took the Child

into custody.

      {¶10} Prior to her extradition to Georgia, Mother spent ten to fifteen days in the

Tuscarawas County Jail. Cantarero visited Mother at the jail and explained the process

to her. Mother provided Cantarero with the names of relatives for possible placement.

Mother also advised Cantarero she was pregnant and would probably be sent to prison

when she returned to Georgia. Mother told the caseworker she would keep in contact.

Cantarero gave Mother all of her contact information. While the case was pending,

Cantarero received only one letter from Mother which arrived after TCJFS moved for

permanent custody.

      {¶11} Cantarero detailed the unstable life to which Mother exposed the Child while

they resided in Georgia. Mother was in and out of jail. When Mother was incarcerated,
Tuscarawas County, Case No. 2019 AP 01 0005                                                5


the Child lived with various family members. During one incarceration, Mother arranged

for the Child to stay with Brigham, the Child's father, his wife, and her daughter. However,

the Child was removed from her father's home after he was arrested for molesting his

wife's daughter. The Child was present in the home when the assault occurred. The Child

was subsequently placed in a safe placement with her step-aunt. Mother went AWOL

from a treatment program, picked up the Child from the step-aunt's home, and fled to

Ohio. Prior to coming to Ohio, the Child and Mother lived at six different addresses with

four different men.

       {¶12} Upon her extradition to Georgia, Mother was placed in a treatment facility,

but was constantly non-compliant with the regulations. Mother was moved to another

facility, which recommended she do outpatient services. Her probation officer arranged

for Mother to return to the first facility. After being caught sneaking drugs or alcohol into

the facility, Mother went AWOL. She was arrested shortly thereafter and charged with

possession of meth, possession of drug paraphernalia, and absconding. Mother chose

to serve the remainder of her original drug sentence in jail rather than rehab. At the time

of the permanent custody hearing, Cantarero had not been advised of the outcome of the

additional three charges.

       {¶13} Cantarero testified Mother had not remedied any of the concerns which led

to the Child's removal. Mother had the opportunity to complete drug treatment, but failed

to do so. Cantarero saw no indication Mother would be able to provide the Child with a

stable environment once she was released from jail. Cantarero stated it was in the Child's

best interest to be placed in the permanent custody of TCJFS. The Child is "doing

awesome" in her foster placement. She is bonded with the foster family and the foster
Tuscarawas County, Case No. 2019 AP 01 0005                                                  6


parents wish to adopt her. The family has shown compassion to the Child and ensures

she has contact with her relatives. Although the Child's first choice is to live with her step-

aunt in Georgia, the home study was never completed. TCJFS learned the step-aunt and

her husband moved into the home of Mother's mother, which raised concerns about

Mother re-entering the Child's life upon her release from jail.

       {¶14} Via Judgment Entry filed December 11, 2018, the trial court terminated all

of Mother's parental rights, finding it was in the Child's best interest to place her in the

permanent custody of TCJFS.

       {¶15} It is from this judgment entry Mother appeals, raising the following

assignments of error:



              I. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       CRISTE WISE DUE PROCESS OF LAW AND EQUAL PROTECTION OF

       THE LAW WHEN IT DENIED MOTHER'S MOTION TO CONTINUE THE

       PERMANENT CUSTODY TRIAL UNTIL AFTER HER RELEASE FROM A

       GEORGIA JAIL AND BY DENYING MOTHER'S MOTION TO ATTEND

       THE PERMANENT CUSTODY TRIAL BY TELEPHONE OR VIDEO

       CONFERENCING.

              II. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

       PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND

       FAMILY SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING

       EVIDENCE THAT THE CHILD COULD NOT BE PLACED WITH MOTHER

       IN A REASONABLE AMOUNT OF TIME, AND THAT AN AWARD OF
Tuscarawas County, Case No. 2019 AP 01 0005                                             7


      PERMANENT CUSTODY WAS IN THE CHILD'S BEST INTEREST.



      {¶16} This case come to us on the expedited calendar and shall be considered in

compliance with App. R. 11.2(C).

                                                I

      {¶17} In her first assignment of error, Mother contends the trial court abused its

discretion in denying her motion to continue the change of custody hearing, and her

request to attend the hearing by telephone or video conferencing.

      {¶18} The decision to grant or deny a motion to continue is entrusted to the broad

discretion of the trial court. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993).

Ordinarily, a reviewing court analyzes a denial of a continuance in terms of whether the

court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11

L.Ed.2d 921 (1964); State v. Wheat, 5th Dist. Licking App. No. 2003–CA–00057, 2004–

Ohio–2088. An abuse of discretion connotes more than a mere error in law or judgment;

it implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial

court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

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

continuance, appellate courts apply a balancing test which takes into account a variety of

competing considerations, including 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; and whether the defendant

contributed to the circumstance which gives rise to the request for a continuance. State
Tuscarawas County, Case No. 2019 AP 01 0005                                            8

v. Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981).

      {¶20} We find the trial court did not abuse its discretion in denying Mother's

request for a continuance. Mother contributed to the circumstances which gave rise to

her request. She was either incarcerated or in court-ordered inpatient drug treatment

throughout the pendency of this case. In fact, Mother was incarcerated at the time of the

permanent custody hearing because she chose to complete her sentence in jail rather

than attend drug treatment. Although Mother was scheduled to be released in January,

2019, she was awaiting sentencing on pending charges which could possibly extend her

period of incarceration. Further, Mother had the opportunity to address her drug abuse

issues, but she chose not to do so. She only contacted her case worker one time while

the case was pending. There is no indication Mother would work on her case plan when

she was actually released from jail.

      {¶21} Mother also argues the trial court abused its discretion in denying her

request to attend the permanent custody hearing by telephone or video conferencing.

      {¶22} Ohio courts have recognized parents have a constitutionally protected right

to be present at permanent custody hearings, but they also recognize that such right is

not absolute if the parent is incarcerated. See, e.g., In re C.M., 9th Dist. Summit Nos.

23606, 23608, 23629, 2007–Ohio–3999, ¶ 14. The fundamental requirement of due

process is an opportunity to be heard “at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965). Accordingly, Mother's due process right to be heard could have been

satisfied by arranging for her presence at the permanent custody hearing or by an

alternate method of meaningful participation. See In re S.A., 2d Dist. Clark No. 07–CA–
Tuscarawas County, Case No. 2019 AP 01 0005                                               9

110, 2008–Ohio–2225, ¶ 12; In re Roque, 11th Dist. Trumbull No. 2005–T–0138, 2006–

Ohio–7007, ¶ 18. The decision whether or not to allow an incarcerated party to be present

is within the sound discretion of the trial court. Trammell v. Powell, 2d Dist. No. 23832,

2011–Ohio–2978, ¶ 6.

       {¶23} We find the trial court did not deprive Mother of her fundamental liberty

interest in the care, custody, and management of her child by holding the permanent

custody hearing in her absence. Counsel for Mother fully participated in the permanent

custody hearing and represented Mother's interest. Additionally, the trial court allowed

Mother to present her testimony via written testimony. Thus, Mother had an opportunity

to present her version of events to the trial court.

       {¶24} Based upon the foregoing, Mother's first assignment of error is overruled.

                                                  II

       {¶25} In her second assignment of error, Mother challenges the trial court's finding

the Child could not be placed with her within a reasonable time and finding it was in the

Child's best interest to grant permanent custody to TCJFS.

       {¶26} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported by

some 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. C.E. Morris Co. v.

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

       {¶27} R.C. 2151.414 sets forth the guidelines a trial court must follow when
Tuscarawas County, Case No. 2019 AP 01 0005                                                 10


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 or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

        {¶28} 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 private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

        {¶29} 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
Tuscarawas County, Case No. 2019 AP 01 0005                                            11


achieved without a grant of permanent custody.

       {¶30} Therefore, 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, the 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.

       {¶31} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

       {¶32} As set forth in our statement of the facts and case, supra, we find there was

sufficient and substantial competent evidence Mother failed to remedy the problems

which initially caused the removal of the Child from her home. Mother failed to address

her drug problem, even while in a treatment facility. Mother did not stay out of jail long

enough to participate in any case plan services. Mother did not maintain contact with the

case worker.

       {¶33} With respect to the best interest finding, the evidence revealed the Child

was doing exceptionally well in her foster placement. She was doing well in school and

making friends. She is bonded with her foster parents and they wish to adopt her.

       {¶34} Based upon the foregoing, we find the trial court did not err in finding the
Tuscarawas County, Case No. 2019 AP 01 0005                                               12


Child could not and should not be placed with Mother within a reasonable time. We further

find the trial court's finding it was in the Child's best interest to grant permanent custody

to TCJFS was supported by clear and convincing evidence.

       {¶35} Mother's second assignment of error is overruled.

       {¶36} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile

Division, is affirmed.




By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur
