[Cite as In re M.E.K.,
2017-Ohio-7543.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
M.E.K. : CASE NO. CA2016-12-241
: OPINION
9/11/2017
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2014-0374
Marcelina C. Woods, P.O. Box 922, Mason, Ohio 45040, guardian ad litem
Jeannine C. Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, for Father
Nicole M. Stephenson, 30 North "D" Street, Hamilton, Ohio 45013, for Mother
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Children Services
PIPER, J.
{¶ 1} Appellant, the father of M.K. ("Father"), appeals the grant of a permanent
planned living arrangement for M.K. by the Butler County Court of Common Pleas, Juvenile
Division.
{¶ 2} Father and M.K.'s mother ("Mother") were never wed, and M.K. lived primarily
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with Father during her childhood. When M.K. was 14, Butler County Children Services filed a
complaint alleging that M.K. was dependent due to Father's physical abuse of the child. The
physical abuse included father hitting the child with a belt several times, throwing her into a
door, and choking her.
{¶ 3} The agency moved for temporary custody of the child, and Father agreed that
M.K. was dependent. A magistrate then awarded temporary custody of the child to the
agency. Approximately a year and a half later, the agency filed a motion for a permanent
planned living arrangement ("PPLA") for the child. The matter proceeded to a hearing before
the magistrate. Immediately preceding the hearing, Father requested a continuance so that
he could obtain different counsel. The motion was denied by the magistrate, and the matter
proceeded.
{¶ 4} During the hearing, the magistrate heard evidence that Mother agreed with the
PPLA while Father opposed it. The magistrate also heard evidence regarding Father's failure
to complete the case plan, and the child's guardian ad litem ("GAL") recommended the
PPLA. The court also conducted an in camera interview with the child, who was 16 years old
at the time of the hearing.
{¶ 5} The magistrate granted the PPLA, and Father filed objections to the
magistrate's decision. The trial court overruled Father's objections without a hearing and
adopted the magistrate's decision. Father now appeals the juvenile court's decision, raising
the following assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE JUVENILE COURT'S JUDGMENT GRANTING THE MOTION FOR
PLANNED PERMANENT LIVING ARRANGEMENT ("PPLA") TO BUTLER COUNTY
CHILDREN SERVICES ("BCCS") WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AN ABUSE OF DISCRETION, CONTRARY TO LAW, WAS NOT SUPPORTED
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BY SUFFICIENT CLEAR AND CONVINCING EVIDENCE, AND WAS CONTRARY TO THE
BEST INTEREST OF THE CHILD.
{¶ 8} Father argues in his first assignment of error that the juvenile court erred in
granting the PPLA.
{¶ 9} A PPLA is a placement that gives legal custody to an agency without
terminating parental rights and that allows the agency to make an appropriate placement,
including foster care. In re J.S., 12th Dist. Butler No. CA2006-07-172, 2007-Ohio-1223.
According to R.C. 2151.353(A)(5), once a child has been adjudicated dependent, the agency
can move for a PPLA if the juvenile court finds by clear and convincing evidence that a PPLA
is in the child's best interests and one of the following exists:
(a) The child, because of physical, mental, or psychological
problems or needs, is unable to function in a family-like setting
and must remain in residential or institutional care now and for
the foreseeable future beyond the date of the dispositional
hearing held pursuant to section 2151.35 of the Revised Code.
(b) The child is sixteen years of age or older, the parents of the
child have significant physical, mental, or psychological problems
and are unable to care for the child because of those problems,
adoption is not in the best interest of the child, as determined in
accordance with division (D)(1) of section 2151.414 of the
Revised Code, and the child retains a significant and positive
relationship with a parent or relative.
(c) The child is sixteen years of age or older, has been
counseled on the permanent placement options available to the
child, and is unwilling to accept or unable to adapt to a
permanent placement.
{¶ 10} In making the decision, a court must consider all of the following relevant
factors found in R.C. 2151.414(D):
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-ofhome providers, and any other person who may significantly
affect the child;
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(b) 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;
(c) 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, 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;
(d) 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 to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 11} After reviewing the record, we find that the juvenile court did not err by granting
the PPLA where the court's decision was supported by clear and convincing evidence that
the PPLA was in the child's best interest. During the hearing, the court heard evidence
regarding the factors above. Specifically, the court heard testimony that M.K. and Father had
a very strained relationship, and that M.K. wanted to remain in her foster care placement
rather than be returned to Father.
{¶ 12} The state presented testimony from the caseworker who worked with M.K.,
Mother, and Father during the inception of the case. The caseworker testified that as part of
Father's ongoing case plan, he was told to take a psychological assessment and follow up
with any recommendations, some of which were anger management classes and individual
counseling. Father requested that he be removed from the case plan, and then several
months later, requested to be added back onto the case plan. The caseworker testified that
while Father completed one aspect of the case plan, others were not completed.
{¶ 13} For example, the caseworker testified that Father and the child were to attend
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joint therapy sessions, but Father walked out of the second therapy session. Based on the
interaction between Father and the child, the therapist recommended that family therapy stop
because it would not be productive. Father never completed his individual therapy. The
caseworker also testified that at all times, the child's wishes remained staying in foster care
and not returning to Father.
{¶ 14} The child's foster mother also testified regarding the strained relationship
between Father and the child. Specifically, the foster mother testified that she heard Father
and the child in arguments, and on at least one occasion, the foster mother had to place
herself physically between Father and the child. On another occasion, the child requested to
be picked up only fifteen minutes into a visit with Father, and Father was also overheard
telling the child to "get the F out" of his house. The foster mother also testified that when she
left with the child, Father refused to allow the child to take personal belongings or school
supplies.
{¶ 15} During Father's testimony, he recalled that his relationship with the child broke
down when the child turned 12 years old and became disrespectful to him. Father testified
that he punished the child by hitting her with a belt and his hand. Father also admitted during
his testimony that he asked to be removed from the case plan at one time because, "if my
daughter does not want to return in my home then there's no sense in me taking the classes
and jumping hoops [sic] and bowing down to what it is that they want me to do."
{¶ 16} The child's mother testified that she agreed with the PPLA because it was in
the child's best interests to "stay away" from Father and that Father had never been anything
but "cruel" to the child over the years. Mother also testified that the child was doing well and
was well taken care of in her foster family's home. Mother also shared her opinion that since
the child has been in foster care, "everything about her has improved."
{¶ 17} The child's GAL recommended that the PPLA be granted, and the child
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receive ongoing support during her transition into adulthood. The magistrate also conducted
an in camera interview with the child. The magistrate determined that the child was
"extremely mature and able to thoughtfully express her wishes and concerns, and those
wishes and concerns were taken into account in issuing this decision."
{¶ 18} After reviewing the evidence, we find that the juvenile court did not err by
granting the Agency's motion for a PPLA for M.K., as it was in the child's best interest and
other statutory mandates were satisfied. Therefore, Father's first assignment of error is
overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE JUVENILE COURT'S DECISION TO DENY APPELLANT/FATHER'S
MOTION FOR CONTINUANCE VIOLATED HIS RIGHT TO COUNSEL.
{¶ 21} Father argues in his second assignment of error that the juvenile court erred by
denying his motion for a continuance.
{¶ 22} According to Juv.R. 23, "Continuances shall be granted only when imperative
to secure fair treatment for the parties." The decision whether to grant or deny a motion for a
continuance is within the trial court's sound discretion. In re J.D., 12th Dist. Fayette No.
CA2017-02-002, 2017-Ohio-4229. The factors a trial court should consider in ruling on such
a motion include the length of the delay requested, the inconvenience to other litigants,
witnesses, opposing counsel and the trial court, whether the requested delay is for a
legitimate reason or dilatory and contrived, whether the party requesting the continuance
contributed to the circumstances giving rise to the requested continuance, and any other
factor relevant to the facts and circumstances of the case.
Id.
{¶ 23} On the day before the hearing was to begin, Father requested a continuance
and then on the day of the hearing explained that he wanted time to obtain different counsel
than the attorney originally appointed to his case. Father told the court that he was not
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"being represented properly and I am not comfortable with [counsel] and I would like a
continuance." Father's attorney then stated that Father believed there to be an "irreparable
breakdown in [the] attorney-client relationship between the two of us." Even so, Father's
attorney assured the court that he was willing and able to move forward with the hearing.
{¶ 24} The record contains ample evidence that the court did not err in denying
Father's request for a continuance. Father knew for almost two years that his child was
subject to the juvenile court's jurisdiction, and that he was involved in a custody issue with the
agency. Father had ample time to secure private or different counsel, but waited until the
day before the PPLA hearing to ask for time to secure different counsel. At the time Father
requested the continuance, all other parties, including the state, the court, Mother, and the
child's GAL, were ready to move forward with the case. The child was entitled to have her
placement determined with finality, particularly given the length of time already in foster care.
{¶ 25} Father indicates that he and his counsel could not work together and that his
counsel was not prepared for the hearing, yet the transcript of the PPLA hearing
demonstrates otherwise. Father's attorney presented a thorough case on behalf of Father's
opposition to the PPLA, and cross-examined witnesses to support Father's case. Father and
his counsel spoke and worked together throughout the trial, and Father's counsel objected to
questions and actively participated in the hearing. While the court granted the PPLA, that
does not mean that Father was denied effective counsel or a fair hearing on the matter.
Rather, the record clearly indicates that Father received fair treatment and was not
prejudiced by the lack of a continuance. To incur additional delay with a continuance would
not have altered the result, and would only have served to leave the child’s security and
stability tenuous.
{¶ 26} After reviewing the record, we find that the court did not err by denying Father's
motion for a continuance. Father's second assignment of error is, therefore, overruled.
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{¶ 27} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
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