[Cite as In re J.D., 2011-Ohio-1458.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

IN THE MATTER OF: 

 J. D., CASE NO. 5-10-34 

ALLEGED ABUSED, NEGLECTED 

AND DEPENDENT CHILD, 

 O P I N I O N 

 [AMANDA CONTRERAS 

- APPELLANT]. 

 

Appeal from Hancock County Common Pleas Court 

Juvenile Division 

Trial Court No. 20930010 

Judgment Affirmed 

Date of Decision: March 28, 2011 

 

APPEARANCES: 

Nicole M. Winget for Appellant 

Mark C. Miller and Benjamin Hall for Appellee 
Case No. 5-10-34 

-2- 

SHAW, J.

{¶1} Mother-appellant, Amanda Contreras (“Amanda”), appeals the 

October 1, 2010 judgment of the Common Pleas Court, Juvenile Division, of 

Hancock County, Ohio, granting permanent custody of her child, J.D., to Hancock 

County Job and Family Services-Children’s Protective Services Unit (“the 

Agency”). 

{¶2} The facts relevant to this appeal are as follows. J.D. was born 

addicted to heroin and other opiates in January of 2009. When confronted about 

J.D.’s positive test results for opiates five days after he was born, Amanda 

admitted to using a number of drugs during the first five months of her pregnancy 

but later admitted to using them during the first six months of pregnancy. 

Eventually, Amanda acknowledged to the Agency that she used a drug called 

Dilaudid, an opiate, approximately 1-11⁄2 weeks before giving birth. According to 

medical personnel, J.D.’s withdrawal was consistent with significant exposure to 

opiates throughout the pregnancy, and Contreras later admitted to using opiates a 

few days prior to delivering J.D. As a result of his addiction, J.D. had to be 

weaned from the drugs, which took a significant amount of time because it had to 

be done gradually due to the risk of death associated with withdrawal in infants. 

{¶3} On February 19, 2009, the Agency filed an ex parte request for 

emergency temporary custody of J.D. upon his release from the hospital, and the 
Case No. 5-10-34 

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trial court granted the Agency’s request. The following day, a hearing was held on 

the request for emergency temporary custody. J.D.’s parents were present and 

represented by counsel at this hearing. The trial court granted emergency 

temporary custody of J.D. to the Agency. The Agency filed a complaint in the 

trial court that same day, alleging that J.D. was neglected, abused, and dependent. 

{¶4} J.D. was released from the hospital on March 10, 2009, and placed 

into foster care. On May 1, 2009, the adjudicatory hearing was conducted. At that 

time, the parents admitted that J.D. was neglected, abused, and dependent, and the 

trial court adjudicated him as such. The parties agreed to proceed to disposition 

and also agreed that the disposition would be for J.D. to be placed into the legal 

custody of his maternal uncle and aunt, Aaron and Jennifer Contreras, but under 

the protective supervision of the Agency. 

{¶5} J.D. remained with his aunt and uncle throughout most of the summer. 

However, on July 30, 2009, the Agency requested, ex parte, to change J.D.’s 

disposition from legal custody with his aunt and uncle to that of temporary 

custody with the Agency. The reason for this change was based upon a request 

from the aunt and uncle that the Agency resume custody of J.D. because they had 

J.D.’s nine-year-old sibling living with them and had four young children of their 

own, one of them a newborn, making it very difficult for them to care for J.D., 
Case No. 5-10-34 

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who was only six-months-old at the time.1

 At the time, the Agency notified the 

trial court that J.D.’s father had last informed the caseworker that he planned to 

move to Florida but that it had no current address or phone number for him. In 

addition, Amanda last informed the caseworker that she was homeless, living in 

Toledo, Ohio, and was planning to surrender to law enforcement as there was a 

warrant for her arrest but had not done so, and the caseworker had no current 

contact information for Amanda. On August 6, 2009, the trial court held a hearing 

on the matter and granted temporary custody of J.D. to the Agency. J.D. was then 

placed back into foster care. J.D. remained in the same foster home from August 

of 2009 until March of 2010. At that time, the foster family moved to another 

State, and J.D. was placed with different foster parents, where he remains. 

{¶6} From May of 2009 until March of 2010, the Agency was unaware of 

Amanda’s whereabouts, and she had no contact with J.D. However, in March of 

2010, Amanda was located in West Virginia. The Agency learned that she had 

given birth to another child, B.D., in January of 2010, and that this infant was 

severely injured by his father, who is also J.D.’s biological father. When Amanda 

took B.D. to the hospital for his injuries, she gave a false name for herself. After 

discovering the nature of B.D.’s injuries, which included several broken ribs and a 

 

1

 According to the record, the aunt and uncle did not request that J.D.’s sibling be removed because of her 

relationship with them, her desire to remain with them, and her age, which meant that she did not require 

the level of care and attention that a baby requires. 
Case No. 5-10-34 

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skull fracture, Amanda left the hospital with B.D. However, she returned to the 

hospital a short while later after speaking with her mother. 

{¶7} The police were summoned and Amanda was questioned about B.D.’s 

injuries. She continued to use the false name she provided to the hospital and told 

the investigator that she had met a man on the internet, was staying in a hotel with 

him, and left the baby alone with this man while she showered but that she had no 

idea how the injuries occurred. Amanda’s mother was also at the hospital and 

provided the same story. 

{¶8} Approximately five to six hours later, Amanda’s mother asked to 

speak with a pastor. After speaking with the pastor, Amanda’s mother told the 

investigator that her daughter was lying, that Amanda lived with her husband 

(J.D.’s and B.D.’s father), that they had two children in the custody of the State of 

Ohio, that Amanda had some unresolved legal issues in Ohio, and that her real 

name was Amanda Duran.2

 Amanda’s mother also told the investigator that 

B.D.’s father had a drinking problem and a temper and she suspected that he 

caused B.D.’s injuries. B.D.’s and J.D.’s father was later indicted on charges 

stemming from the abuse of B.D., pled guilty, and was awaiting sentencing of 

anywhere from four to twenty years in prison. Amanda was not charged with any 

offense relating to the abuse suffered by B.D. 

 

2

 At some point during the pendency of this action, Amanda married J.D.’s father and took his last name. 

However, the filings in this case refer to her by her maiden name of Contreras. 
Case No. 5-10-34 

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{¶9} On March 24, 2010, Amanda was arrested in West Virginia after the 

authorities discovered there was a warrant from Ohio for her arrest. Amanda was 

then transported back to Hancock County, Ohio. On April 22, 2010, the Hancock 

County Common Pleas Court found that Amanda had violated the terms of her 

community control that she was placed under in January of 2009, in two cases: 

one case consisted of two convictions for trafficking in heroin, one a felony of the 

third degree and the other a felony of the fourth degree; and the second case was a 

conviction for forgery, a felony of the fifth degree. As a result of these violations, 

Amanda was given an aggregate sentence of three years and eleven months in 

prison with jail-time-credit for seventy-four days. 

{¶10} On June 28, 2010, the Agency filed a motion for permanent custody 

of J.D. On August 25, 2010, Amanda’s court-appointed counsel filed a motion to 

withdraw as her counsel due to health issues he was experiencing. This motion 

was granted, and new counsel was appointed to represent Amanda on August 30, 

2010. On September 9, 2010, new counsel requested that the permanent custody 

hearing scheduled for the end of that month be continued. This request was 

denied on September 13, 2010. 

{¶11} The permanent custody hearing was held on September 28-29, 2010. 

On October 1, 2010, the trial court granted permanent custody of J.D. to the 
Case No. 5-10-34 

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Agency and terminated Amanda’s and J.D.’s father’s parental rights.3

 Amanda 

now appeals and asserts four assignments of error for our review. 

FIRST ASSIGNMENT OF ERROR

THE JUDGMENT OF THE TRIAL COURT TO GRANT 

HANCOCK COUNTY JOB AND FAMILY SERVICES 

PERMANENT CUSTODY WAS CONTRARY TO THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING PERMANENT 

CUSTODY FOR THE CHILD BECAUSE IT WAS NOT IN 

HIS BEST INTEREST. 

THIRD ASSIGNMENT OF ERROR

THE HANCOCK COUNTY JOB AND FAMILY SERVICES 

FAILED ITS DUTY TO USE REASONABLE CASE 

PLANNING AND DILIGENT EFFORTS AND 

REUNIFICATION WITH THE PARENT. 

FOURTH ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION BY 

DENYING THE APPELLANT’S REQUEST FOR 

CONTINUANCE DUE TO RECENTLY APPOINTED NEW 

COUNSEL. 

{¶12} For ease of discussion, we elect to address the assignments of error 

out of the order in which they appear and to address the first and second 

assignments of error, which are interrelated, together. 

 

3

 J.D.’s father was not present for this hearing because he was in custody awaiting sentencing in West 

Virginia. However, his court-appointed attorney was present and participated in the hearing. The father 

did not appeal the trial court’s grant of permanent custody. 
Case No. 5-10-34 

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Third Assignment of Error

{¶13} In her third assignment of error, Amanda asserts that the trial court 

erred in finding that the Agency made reasonable efforts to return her child to her. 

More specifically, Amanda contends that the Agency failed to follow up on the 

treatment or services that Amanda was receiving while incarcerated, thereby 

failing in its duty to use reasonable case planning and diligent efforts towards 

reunification. 

{¶14} The Revised Code imposes a duty on the part of children services 

agencies to make reasonable efforts to reunite parents with their children where 

the agency has removed the children from the home. R.C. 2151.419; see, also, In 

re Brown (1994), 98 Ohio App.3d 337, 344, 648 N.E.2d 576. Further, the agency 

bears the burden of showing that it made reasonable efforts. R.C. 2151.419(A)(1). 

“Case plans are the tools that child protective service agencies use to facilitate the 

reunification of families who * * * have been temporarily separated.” In re Evans, 

3rd Dist. No. 1-01-75, 2001-Ohio-2302. To that end, case plans establish 

individualized concerns and goals, along with the steps that the parties and the 

agency can take to achieve reunification. Id. Agencies have an affirmative duty to 

diligently pursue efforts to achieve the goals in the case plan. Id. “Nevertheless, 

the issue is not whether there was anything more that [the agency] could have 

done, but whether the [agency’s] case planning and efforts were reasonable and 
Case No. 5-10-34 

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diligent under the circumstances of this case.” In re Leveck, 3rd Dist. Nos. 5-02-

52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 10. 

{¶15} In the case sub judice, the Agency was awarded temporary custody 

of J.D. because he was born addicted to three opiates due to his mother’s drug 

usage throughout her pregnancy. In March of 2009, a case plan was developed 

and the trial court adopted this plan. Among the concerns identified in this plan 

was Amanda’s need for a drug and alcohol abuse assessment at Century Health 

and to follow all recommendations including attending individual counseling, 

educational groups, support groups, and to complete the Life Skills program.4

 The 

Agency was to provide Amanda with the necessary referrals, transportation if 

needed, and to assist with payment for these services. The case plan also 

identified a concern that Amanda needed parenting education. As such, the plan 

required Amanda to participate in parent education and to follow all 

recommendations made by the parent educator. Once again, the Agency was to 

provide the necessary referral. In addition, the Agency was to obtain service 

provider reports and to make regular home visits to discuss parent education with 

Amanda. 

 

4

 The case plan also identified similar concerns regarding J.D.’s father. However, as previously noted, 

J.D.’s father did not appeal the grant of permanent custody; thus, we will not discuss the case plan as it 

pertains to him. 
Case No. 5-10-34 

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{¶16} A new case plan was filed on August 17, 2009, shortly after J.D. was 

removed from the care of his aunt and uncle and returned to foster care. This plan 

noted that J.D.’s parents were no longer in the area and had not been participating 

in the case plan. It also noted that Amanda was running from law enforcement 

because of a warrant issued for her arrest from Hancock County in May of 2009. 

In addition to the concerns previously identified, the case plan also identified 

J.D.’s need for safe and stable housing. The plan required Amanda to notify the 

Agency of any change of address and to report the name of any person staying 

overnight or living in the home. In turn, the Agency was to make regular home 

visits, make any necessary housing referrals, and to monitor the home’s safety. 

The trial court adopted this plan on September 2, 2009. 

{¶17} At the beginning of the permanent custody hearing, the parties 

stipulated that the case plan was reasonably calculated to correct the reasons that 

J.D. was removed. Megan Lauck, the assigned caseworker, testified that she 

discussed the original case plan with Amanda in March and in April of 2009, and 

that Amanda indicated she understood it. Lauck further testified that Amanda was 

assessed by Century Health and was to attend substance abuse groups and 

individual counseling. According to Lauck, Amanda did attend some 

appointments with Century Health but left the State of Ohio in May of 2009, and 

never returned to Century Health. Lauck also testified that Amanda completed a 
Case No. 5-10-34 

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parent education class in February of 2009, but that Lauck did not have the 

opportunity to witness whether Amanda could implement anything that she 

learned from this class because she left Ohio and never visited with J.D. after May 

of 2009. Lauck testified that the only portions of the case plan that Amanda 

completed were attending a parent education class, having her substance abuse 

assessment, and attending some counseling sessions at Century Health. However, 

she did not complete the counseling at Century Health. 

{¶18} Although the parties stipulated that the case plan was reasonably 

calculated to correct the reasons for J.D.’s removal, Amanda asserts that the 

Agency failed to make diligent efforts to reunify J.D. with Amanda when it did not 

follow up with Amanda’s utilization of the Tapestry program while in prison. 

Amanda bases this assertion on the following testimony. In June of 2010, while in 

prison, Amanda told Lauck that she was going to attend the Tapestry program in 

prison, which helps inmates with substance abuse issues. On cross-examination, 

Lauck testified that she did not look into the Tapestry program while visiting 

Amanda because the prison had very strict rules regarding visitation and she was 

not permitted to speak with any staff members at that time. Amanda later testified 

that she was participating in the Tapestry program and explained how the program 

helps offenders who suffer from addictions. In light of this testimony, Amanda 

contends that Lauck should have reviewed the treatment and services Amanda was 
Case No. 5-10-34 

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receiving so that she could give accurate testimony on Amanda’s progress and 

could accurately develop and maintain a case plan aimed at reunification. We find 

these contentions without merit. 

{¶19} The case plan was clearly designed to help Amanda with her 

substance abuse issues, and the evidence demonstrated that Lauck followed 

through with the responsibilities of the Agency that were outlined in that plan. 

Amanda is the one who chose not to attend all of her counseling sessions at 

Century Health. Amanda is also the one who chose not to appear in criminal 

court, which resulted in a warrant for her arrest, to leave the State of Ohio, to lie to 

her caseworker regarding her whereabouts, to not have any contact with J.D. at 

any point after May 20, 2009, and to make no attempt to contact the caseworker to 

determine her child’s well-being even after her husband, with whom she was 

living, visited J.D. and was aware that J.D. was no longer in the care of family 

members. Further, Amanda did not begin the Tapestry program until sometime in 

May or June after she was imprisoned at the Ohio Reformatory for Women, over a 

year after she stopped visiting J.D., and she did not provide any evidence to 

corroborate her testimony regarding the treatment she was receiving or that would 

show her progress, if any, while in prison. 

{¶20} In short, the Agency’s failure to look into the Tapestry program and 

Amanda’s progress therein did not amount to a failure to facilitate the 
Case No. 5-10-34 

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reunification of this family. Rather, the Agency was severely hampered in its 

ability to reunify this family because Amanda left the area and provided the 

Agency with no way of contacting her, let alone assisting her to remedy the 

conditions that led to J.D.’s initial removal and continued removal. Under these 

circumstances, the trial court did not err in determining that the Agency’s case 

planning and efforts in this case were reasonable and diligent, and the third 

assignment of error is overruled. 

First and Second Assignments of Error

{¶21} In her first assignment of error, Amanda contends that the trial 

court’s decision to grant permanent custody of J.D. to the Agency was against the 

manifest weight of the evidence because the evidence showed that she made 

several steps towards remedying the condition that was the cause of J.D.’s 

removal from her care, i.e. her substance abuse. In her second assignment of 

error, Amanda asserts that the trial court erred in finding that permanent custody 

was in J.D.’s best interest. 

{¶22} As an initial matter, we note that “[i]t is well recognized that the 

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3rd

Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio 

St.3d 46, 48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent 

“must be afforded every procedural and substantive protection the law allows.” 
Case No. 5-10-34 

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In re Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 

45. Thus, it is with these constructs in mind that we proceed to determine 

whether the trial court erred in granting permanent custody of the children to the 

Agency. 

{¶23} Section 2151.414 of the Revised Code provides, inter alia, that a trial 

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, * * * 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. 

* * * 

R.C. 2151.414(B)(1)(a-b) (emphasis added). The Supreme Court of Ohio has held 

that “[c]lear and convincing evidence is that measure or degree of proof which 

will produce in the mind of the trier of facts a firm belief or conviction as to the 

allegations sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469, 

477, 120 N.E.2d 118. Further, “[i]t is intermediate; being more than a mere 
Case No. 5-10-34 

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preponderance, but not to the extent of such certainty as is required beyond a 

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” 

Id., citing Merrick v. Ditzler (1915), 91 Ohio St. 256, 110 N.E. 493. In addition, 

when “the degree of proof required to sustain an issue must be clear and 

convincing, a reviewing court will examine the record to determine whether the 

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

proof.” Cross, supra (citations omitted); see, also, In re Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. 

{¶24} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a), 

the Revised Code states as follows:

(E) In determining at a hearing held pursuant to division (A) of 

this section * * * whether a child cannot be placed with either 

parent within a reasonable period of time or should not be 

placed with the parents, the court shall consider all relevant 

evidence. If the court determines, by clear and convincing 

evidence, at a hearing held pursuant to division (A) of this 

section * * * that one or more of the following exist as to each of 

the child’s parents, the court shall enter a finding that the child 

cannot be placed with either parent within a reasonable time or 

should not be placed with either parent: 

(1) Following the placement of the child outside the child’s 

home and notwithstanding reasonable case planning and diligent 

efforts by the agency to assist the parents to remedy the 

problems that initially caused the child to be placed outside the 

home, the parent has failed continuously and repeatedly to 

substantially remedy the conditions causing the child to be 

placed outside the child’s home. In determining whether the 

parents have substantially remedied those conditions, the court 
Case No. 5-10-34 

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shall consider parental utilization of medical, psychiatric, 

psychological, and other social and rehabilitative services and 

material resources that were made available to the parents for 

the purpose of changing parental conduct to allow them to 

resume and maintain parental duties. 

* * * 

(10) The parent has abandoned the child. 

* * * 

(12) The parent is incarcerated at the time of the filing of the 

motion for permanent custody or the dispositional hearing of the 

child and will not be available to care for the child for at least 

eighteen months after the filing of the motion for permanent 

custody or the dispositional hearing. 

* * * 

(16) Any other factor the court considers relevant. 

R.C. 2151.414(E) (emphasis added). 

{¶25} Here, the trial court found that that J.D. could not be placed with 

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

parents. Amanda asserts that in doing so, the court relied heavily on the parents’ 

failure to remedy the conditions causing J.D. to be removed from her care but that 

such a finding was against the manifest weight of the evidence. In support of her 

position, Amanda states that J.D. was removed from her care because her abuse of 

drugs caused him to be born addicted to those drugs and that her testimony 

revealed that she has done everything to conquer her addiction. More specifically, 
Case No. 5-10-34 

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Amanda testified that she enrolled herself in treatment in West Virginia prior to 

being incarcerated, that she has not abused drugs in several months, and that she is 

currently involved in the Tapestry program in prison, which is a program to help 

inmates who have substance abuse issues. 

{¶26} As previously noted, J.D. was placed into the temporary custody of 

the Agency because he was born addicted to opiates due to Amanda’s extensive 

drug use while pregnant with J.D. In order to help remedy this situation, the case 

plan required Amanda to follow any recommendations made by Century Health 

for treatment. The case plan also permitted Amanda to visit J.D. twice a week for 

two hours each time, supervised, which would allow the two to bond with one 

another. Lauck testified that she discussed the case plan with Amanda during 

home visits with her in March and April of 2009, and that Amanda indicated she 

understood the plan. According to Lauck, Amanda attended some counseling 

sessions at Century Health, but by May of 2009, she had stopped attending. 

During this time, she also visited J.D. seventeen times, although she had twentyfour visits available to her. The last time Amanda ever visited with J.D. was on 

May 20, 2009, when he was less than four months old. 

{¶27} Robin Brown, a mental health substance abuse counselor at Century 

Health, testified that Amanda received an assessment at Century Health on 

November 6, 2008, and was diagnosed as opiate dependent. Based on this 
Case No. 5-10-34 

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diagnosis and pursuant to the terms of her community control stemming from her 

felony convictions, as well as the case plan of the Agency that was later 

established, she entered into treatment at Century Health. This treatment required 

that she attend individualized counseling and two group treatments per week. 

Brown testified that from November of 2008 until the time of Amanda’s discharge 

from services due to non-compliance on May 20, 2009, she had attended only 

twenty-three of her fifty-nine scheduled appointments with the last appointment 

she actually attended being April 2, 2009. 

{¶28} In May of 2009, Amanda informed Lauck that she was living in 

Toledo and was in the Compass House, an in-patient substance abuse treatment 

center. However, Amanda did not provide Lauck with any contact information or 

proof of her treatment at Compass House, and Lauck did not have a medical 

release form from Amanda to obtain access to Compass House records. 

According to Amanda’s supervising officer, Joe Schroeder, Amanda was 

scheduled to be in court in Hancock County on May 28, 2009, for a community 

control revocation hearing based upon a drug screen of her that showed she was 

positive for opiates. Lauck went to court that day to speak with Amanda, but 

Amanda did not appear for court. As a result of her failure to appear, a bench 

warrant for her arrest was issued. After this time, Amanda’s whereabouts were 

unknown to the Agency and to her supervising officer until her arrest in West 
Case No. 5-10-34 

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Virginia on March 24, 2010, ten months later. Lauck testified that Amanda called 

her twice during the summer of 2009, and told her that she was homeless and 

living in Toledo. She also told her that she had terminated her pregnancy5

 and had 

a new boyfriend. After Amanda was arrested and transported back to Ohio, Lauck 

visited with her on four occasions and discussed the case plan with her again. By 

this time, the plan had been amended to include J.D.’s need for a safe and stable 

living environment. 

{¶29} Amanda also testified at the permanent custody hearing. During her 

testimony, she did not dispute any of the testimony of Lauck, Schroeder, or 

Brown. Amanda testified that she left Compass House before completing 

treatment because she discovered there was a warrant for her arrest. She testified 

that she and J.D.’s father decided to leave Ohio and move to West Virginia in an 

effort to quit using drugs. According to Amanda, she started going to a methadone 

clinic and attended counseling. She also testified that she no longer used drugs 

and was currently participating in the Tapestry program in prison. She explained 

that this program involves behavior modification to enable inmates to stop using 

drugs. 

{¶30} The trial court, as the trier of facts, has the discretion to determine 

what evidence it finds credible and not credible. Here, the court relied on the 

 

5

 The baby that Amanda told Lauck she aborted was actually B.D., who was born approximately seven 

months after Amanda told Lauck she had aborted him. 
Case No. 5-10-34 

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undisputed evidence that Amanda did not comply with the case plan’s requirement 

that she follow through with substance abuse services with Century Health in 

order for it to determine that she did not substantially remedy the conditions 

causing J.D. to be removed from the home. The court specifically noted that it 

considered Amanda’s utilization of social and rehabilitative services and material 

resources that were made available to her with the purpose of changing her 

conduct to allow her to assume and maintain her parental duties. Other than her 

testimony, Amanda presented no evidence of her participation and/or progress in 

the Compass House, the methadone clinic (including even the name of this clinic), 

or the Tapestry program. Given Amanda’s undisputed history of fabrication, the 

trial court was certainly free to disregard Amanda’s uncorroborated testimony. 

Thus, we cannot conclude that the trial court’s finding as to R.C. 2151.414(E)(1) 

was against the manifest weight of the evidence. 

{¶31} Furthermore, even assuming arguendo that the R.C. 2151.414(E)(1) 

finding was against the manifest weight of the evidence, the Revised Code 

requires a trial court to enter a finding that the child cannot or should not be placed 

with his parents within a reasonable time if it finds that any one of factors in R.C. 

2151.414(E) are present. In addition to its finding under R.C. 2151.414(E)(1), the 

trial court found that J.D. was abandoned. 
Case No. 5-10-34 

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{¶32} Abandonment is a factor that can be considered for both prongs of 

the termination of parental rights test: the determination under R.C. 

2151.414(B)(1)(a) or (b) and the determination of the child’s best interest. See In 

re D.K., 3rd Dist. No. 1-09-16, 2009-Ohio-5438, ¶ 25. The Revised Code states 

that “[f]or the purposes of this chapter, a child shall be presumed abandoned when 

the parents of the child 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.” R.C. 2151.011(C). “This statute creates a 

presumption of abandonment, which can then be rebutted by the parent.” Id., 

citing In re Cravens, 3rd Dist. No. 4-03-48, 2004-Ohio-2356, ¶ 23. 

{¶33} The record reveals that at the beginning of the permanent custody 

hearing both parents stipulated that J.D. was abandoned. Although they entered 

this stipulation with the caveat that they were making the stipulation because they 

were both incarcerated, they, nevertheless, agreed that J.D. was abandoned. 

Further, the trial court found, and the undisputed evidence revealed, that May 20, 

2009, was the last time Amanda visited J.D. The permanent custody motion was 

filed in late June of 2010, and the hearing was held in late September of 2010, 

both events being well over a year from Amanda’s last visit. Thus, Amanda failed 

to visit or maintain contact with J.D. for more than ninety days, creating a 

presumption of abandonment which she did not rebut in any way. This finding, 
Case No. 5-10-34 

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alone, would mandate that the trial court find that J.D. could not be placed with 

Amanda within a reasonable time or should not be placed with her pursuant to 

R.C. 2151.414(E)(10).6

 Likewise, a finding of abandonment satisfies the 

requirements of R.C. 2151.414(B)(1)(b) without the need to find that J.D. could 

not or should not be placed with his parents. 

{¶34} Lastly, the trial court also found that the parents were incarcerated 

with J.D.’s father due to receive a sentence of four to twenty years, according to 

his plea agreement, a copy of which was admitted by the Agency without 

objection as CPSU Exhibit 4, and Amanda serving a sentence that would not 

expire until March of 2014. Given the length of these sentences and the evidence 

that both parents were incarcerated at the time the motion for permanent custody 

was filed in June of 2010, the evidence also revealed that they would not be able 

to care for J.D. within eighteen months from the time of the filing of the motion 

for permanent custody, i.e. December of 2011. Thus, even if we were to conclude 

that the trial court erred in finding R.C. 2151.414(E)(1) applied, which we 

expressly do not conclude, the trial court did not err in finding that J.D. could not 

be placed with his parents within a reasonable time or should not be placed with 

his parents because R.C. 2151.414(E)(12) applied as well. 

 

6

 The trial court also found, and the undisputed evidence revealed, that J.D.’s father last visited him on 

January 10, 2010, which would also render him abandoned by his father. 
Case No. 5-10-34 

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{¶35} Although we conclude that the trial court’s decision regarding R.C. 

2151.414(B)(1)(a) and (b) was not against the manifest weight of the evidence, 

before granting permanent custody of J.D. to the Agency, the trial court also had 

to find that permanent custody to the Agency was in J.D.’s best interest. Amanda 

contends in her second assignment of error, that the trial court erred in finding that 

permanent custody was in J.D.’s best interest because the court acted outside of its 

discretion in finding that Amanda’s chances of judicial release “appear tenuous,” 

that permanent custody would separate J.D. from his siblings, which is not in his 

best interest, and that the court’s reliance on Amanda’s addiction as a basis for 

determining J.D.’s best interests is misplaced because Amanda is conquering these 

addictions. 

{¶36} In order to determine whether granting permanent custody to an 

agency is in a child’s best interest, the trial court must consider all relevant 

factors, including, but not limited to, five enumerated factors. R.C. 2151.414(D). 

These enumerated factors are 

(1) The interaction and interrelationship of the child with the 

child’s parent, siblings, relatives, foster caregivers and out-ofhome 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; 
Case No. 5-10-34 

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(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 * * * for twelve or more months of a 

consecutive twenty-two month period * * *; 

(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 to the agency; and 

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

section apply in relation to the parents and child. 

{¶37} The trial court specifically stated in its entry that it had considered all 

of these factors. The court found that J.D. did not have a relationship with 

Amanda, that her lack of involvement with J.D. was primarily caused by her 

addiction, that she failed to maintain contact with her caseworker, and failed to 

visit J.D. A review of the record reveals that these findings were amply supported. 

{¶38} As previously discussed, the undisputed evidence revealed that 

Amanda had not seen J.D. since he was approximately four months old and he was 

approximately twenty months old at the time of the hearing. Further, Amanda’s 

court hearing for which she did not appear was for a revocation of her community 

control because she tested positive for opiates, the substance to which she was 

addicted. This resulted in the bench warrant being issued and her absconding from 

Ohio. Rather than comply with the treatment recommendations of Century 

Health, Amanda chose not to attend more than half of her scheduled counseling 

sessions and fled to West Virginia. Due to the outstanding warrant, she remained 
Case No. 5-10-34 

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in West Virginia until her arrest, which occurred after B.D. was severely injured, 

she provided a false name, and did not come forward with her real name until her 

mother talked to a minister and reported the truth of Amanda’s identity to the 

authorities. At no point prior to her arrest did Amanda notify the Agency of her 

whereabouts or otherwise maintain contact with the Agency in order to monitor 

J.D.’s well-being. All of the evidence before the trial court indicated that 

Amanda’s actions and/or inaction stemmed in one way or another from her 

addiction to opiates. 

{¶39} The trial court also found that J.D. needed a legally secure permanent 

placement and that this type of placement could not be achieved without granting 

permanent custody to the Agency. This finding was supported by Lauck’s 

testimony regarding J.D.’s need for a legally secure permanent placement and that 

his current foster family is interested in adopting him. 

{¶40} In addition, the trial court considered J.D.’s wishes, which, due to his 

age, were expressed through his court-appointed special advocate/guardian ad 

litem (“CASA/GAL”), Chastity Miller. Miller prepared a report and 

recommendation for the trial court and also testified that the Agency should be 

granted permanent custody of J.D. Miller also stated that she was appointed as 

J.D.’s CASA/GAL when he was approximately one month old, that she has seen 

him in each of his placements, that she has seen “tremendous progress in his 
Case No. 5-10-34 

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current placements versus all the other ones,” that he shows more signs of 

attachment to the current foster family, seems happier now, and his progress is 

much better in his current placement than in any of his past placements. (P.C. 

Hrg., 9/29/10, pp. 333-334.) 

{¶41} The trial court also found that Amanda did not meet other goals of 

the case plan, including substance abuse and mental health counseling and 

establishing safe and stable housing. As previously discussed, other than the short 

amount of time that Amanda attended sessions at Century Health, the only 

evidence before the court that Amanda participated in any form of mental health 

and substance abuse counseling was Amanda’s own testimony. Once again, in 

light of the number of fabrications that Amanda admittedly made, the trial court 

was well within its discretion as the fact-finder to disbelieve her testimony. 

Further, Amanda’s reported homelessness in Toledo, her move to West Virginia 

where she lived with her husband who later severely injured their newborn baby, 

and subsequent incarceration amply demonstrated that she failed to establish safe 

and stable housing. 

{¶42} Given the evidence before the trial court, we find that the trial court 

did not err in determining that granting permanent custody of J.D. to the Agency 

was in J.D.’s best interest. Although there was evidence that J.D. lived with his 

sister, maternal uncle and aunt, and his cousins for approximately four months, 
Case No. 5-10-34 

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had continued to visit with them once a week for approximately eight months, and 

one other time between March and September of 2010, the totality of the evidence 

supports the trial court’s determination that permanent custody was in J.D.’s best 

interest. As noted by counsel for the Agency in closing arguments, “[J.D.] came 

into this world addicted. Since that time his parents have abandoned him, been 

sent to prison, failed to complete a case plan – among other things. [J.D.] has been 

lucky enough to be placed with a foster home where he’s happy, getting along 

very well and he needs permanence in his life. He deserves it.” 

{¶43} For all of these reasons, we do not find that the trial court’s granting 

of permanent custody was against the manifest weight of the evidence. 

Accordingly, the first and second assignments of error are overruled. 

Fourth Assignment of Error

{¶44} Amanda asserts in her fourth assignment of error that the trial court 

erred by not granting her motion to continue the permanent custody hearing. The 

decision whether to grant a continuance is within the sound discretion of the trial 

court and will not be reversed absent an abuse of that discretion. In re T.C., 140 

Ohio App.3d 409, 747 N.E.2d 881, 2000-Ohio-1769. 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 (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 
Case No. 5-10-34 

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

when imperative to secure fair treatment for the parties.” To determine whether 

the trial court has abused its discretion in denying a continuance, the appellate 

court must apply a balancing test considering all competing interests. In re: T.C.,

supra. 

In evaluating a motion for a continuance, 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. 

Id. at 417, quoting State v. Unger (1981), 67 Ohio St.2d 65, 67-68, 423 N.E.2d 

1078. While these factors provide basic guidance, we are mindful that “‘[t]here 

are no mechanical tests for deciding when a denial of a continuance is so arbitrary 

as to violate due process. The answer must be found in the circumstances present 

in every case, particularly in the reasons presented to the trial judge at the time the 

request is denied.’” Unger, 67 Ohio St.2d at 67, 423 N.E.2d 1078, quoting Ungar 

v. Sarafite (1964), 376 U.S. 575, 589. 

{¶46} When this case initially arose in February of 2009, Amanda and 

J.D.’s father were represented by the same attorney. On April 23, 2010, that 

attorney requested permission to withdraw from the case because of a conflict of 
Case No. 5-10-34 

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interests between Amanda and J.D.’s father. The trial court granted this motion, 

and Amanda was appointed a different attorney on May 5, 2010. On August 25, 

2010, Amanda’s new attorney requested permission to withdraw because of health 

issues he was experiencing. This request was granted, and Amanda was appointed 

new counsel on August 30, 2010. In the meantime, a “reasonable efforts hearing” 

had been scheduled for September 9, 2010, at 11:00 a.m. At 10:42 a.m., on 

September 9, 2010, Amanda’s new attorney filed a motion to continue the 

permanent custody hearing, scheduled for September 28-30, 2010. In this motion, 

counsel stated that the continuance was being requested “to acquaint counsel with 

the facts of her case to effectively advocate for alternatives to Permanent 

Custody.” (Mot. to Cont., 9/10/10.) However, counsel did not state how long of a 

continuance he would need to acquaint himself with the facts of the case. The 

reasonable efforts hearing was held as scheduled with Amanda’s attorney 

attending, and after the hearing, the trial court filed its entry denying the motion to 

continue. This entry did not include an explanation of the trial court’s decision. 

{¶47} As previously noted, the permanent custody hearing occurred as 

scheduled on September 28-29, 2010. At the beginning of the hearing, the trial 

court asked if there were any preliminary matters before it began hearing evidence 

on the permanent custody motion. Counsel for the Agency proceeded to outline a 

number of stipulations, mostly involving exhibits. Amanda’s attorney informed 
Case No. 5-10-34 

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the court that Amanda was in agreement with the stipulations outlined by the 

Agency, asked for an additional stipulation regarding a home study of J.D.’s 

paternal grandparents that was performed in Florida, and later clarified Amanda’s 

position on the stipulation that J.D. was abandoned due to her incarceration. At no 

point did Amanda’s attorney renew his motion for a continuance or otherwise 

indicate that he was not ready to proceed or that he was unprepared in some way. 

Counsel for Amanda cross-examined witnesses for the Agency during the hearing 

and presented two witnesses in Amanda’s case-in-chief: Aaron Contreras and 

Amanda, herself. 

{¶48} Upon review of the record, we do not find the trial court’s decision to 

deny the continuance amounted to an abuse of discretion. Notably, counsel had 

nearly a month to prepare for the hearing and did not provide any indication in his 

motion of how much more time he would need to prepare. Moreover, counsel did 

not renew his motion for a continuance or otherwise indicate that he was not 

acquainted with the facts of the case or unprepared to advocate for alternatives to 

permanent custody. To the contrary, the record reveals that Amanda’s counsel 

was well prepared and able to advocate for her position quite well. While 

ultimately he was not successful, this was not due to an ineffective performance on 

his part, and his preparedness was not an issue. Thus, Amanda has not shown that 

a continuance was necessary, which would warrant this Court concluding that the 
Case No. 5-10-34 

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trial court abused its discretion in denying this motion, or that she suffered any 

prejudice as a result of the court’s denial of her request for a continuance. The 

fourth assignment of error is overruled. 

{¶49} For all of these reasons, the judgment of the Common Pleas Court, 

Juvenile Division, of Hancock County, Ohio, is affirmed. 

Judgment Affirmed 

ROGERS, P.J., and WILLAMOWSKI, J., concur.