[Cite as In re C.C. , 2021-Ohio-3222.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: C.C. : JUDGES: : Hon. Craig R. Baldwin, P.J. Adjudged Dependent Child : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2021CA0016 : : O P I N I O N

CHARACTER OF PROCEEDING: Appe al from the Coshocton County Juvenile Court, Case No. 20203021

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 15, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant SARA R. CHISNELL DUSTIN CARROLL, Pro Se Coshocton County Job and Family Services Inst. No. A767-546 725 Pine Street Noble Correctional Institution Coshocton, Ohio 43812 15708 McConnelsville Road Caldwell, Ohio 43724Coshocton County, Case No. 2021CA0016 2

Baldwin, J. {¶1} Appellant, Dustin Carroll, appeals the decision of the Coshocto n County Common Pleas Court, Juvenile Division, granting legal custody o f C.C. to his maternal grandparents. Appellee is Coshocton County Job and Family Serv ices.

STATEMENT OF FACTS AND THE CASE {¶2} Coshocton County Job and Family Services filed a complaint in t he Juvenile Division of the Coshocton County Common Pleas Court on February 14, 2020 alleging that C.C. and a sibling, M.C., were neglected and dependent chi ldren. Carroll, father of C.C., appeared at the initial hearing on this matter on March 1 0, 2020 and declined court appointed counsel, stating that he intended to represent himsel f. The court entered a denial to the allegations of the complaint on behalf of Carroll and all parents. {¶3} By entry of April 17, 2020, the trial court scheduled the matte r for an adjudicatory hearing to occur May 7, 2020 "and, upon agreement by all Parties, for a Dispositional Hearing immediately following the Adjudicatory He aring." Appellant, Dustin Carroll, received a copy of the notice or was otherwise made aw are of the hearing as he was in attendance at the May hearing via video link from the No ble County Correctional

Center. {¶4} At the adjudicatory hearing, Carroll requested court appointed counsel for future hearings, but did not request a continuance of the adjud icatory or dispositional hearing on May 7, 2020. Carroll stated it was his intent to ent er an admission to the dependency allegations in the complaint. In the judgment entry describing the adjudicatory hearing the trial court recorded that it:Coshocton County, Case No. 2021CA0016 3

* * * reviewed the Notice of Rights, Waiver of Rights, and Writ ten Admission

with Mr. Carroll. The Court further informed Mr. Carroll that n o promises where being made for favorable treatment if he chose enter the admission, that no promises where being made as to the specific dispositio ns. Mr.

Carroll advised the Court that he understood and entered said a dmission by his own free will.

(Judgment Entry, May 7, 2020 Adjudicatory Hearing, Journalized Feb, 2, 2021). {¶5} The court accepted Carroll's admission and after further procee dings regarding C.C.'s mother and the father of a sibling, found C.C. dependent. The court noted that "The present Parties (sic) agreed to immediately pro ceed to the Dispositional Hearing.” (Judgment Entry, May 7, 2020 Adjudicatory Hearing, Jo urnalized Feb, 2, 2021) and it proceeded to conduct the disposition again noting that C arroll appeared at the initial hearing on this matter and declined court appointed counsel, st ating that he intended to represent himself. He requested court appointed counsel for fut ure hearings, but did not request a continuance of the dispositional hearing. At the disp ositional hearing the court found "that present parties have consented to the Dispositional Hearing being held immediately after the Adjudicatory Hearing" before receiving ev idence. (Judgment Entry, May 7, 2020 Dispositional Hearing, Journalized Feb, 2, 2021). {¶6} The trial court ordered that the children remain in the tempora ry custody of their maternal aunt and uncle and in the protective supervision of Coshocton County Job and Family Services. The court found probable cause for the re moval of the children from their parents’ custody and, with respect to Carroll, found that he was " in prison, servingCoshocton County, Case No. 2021CA0016 4

a two-year sentence for a Weap on Under Disability conviction." (Judgment Entry, May 7, 2020 Dispositional Hearing, Journalized Feb, 2, 2021, p. 2). {¶7} In February 2021, Coshocton County Job and Family Services mov ed to place C.C. in the legal custody of his maternal grandparents an d close the case. (Motion to Change Custody and Close Case, Feb. 21, 2021). Within the m otion, Carroll is described as "serving a third-degree felony sentence in the Nob le Correctional Institute with an expected release date of 9/24/21. He has not participat ed in reunification activities

due to his incarceration and will no t be able to do so in a rea sonable amount of time." Id. at p. 2. {¶8} The trial court scheduled a hearing for the motion on legal cus tody to occur on March 4, 2021 and provided notice to all parties and recomme nded attendance via video connection. (Judgment Entry and Hearing Notice, Feb. 26, 2021). The trial court heard evidence from a Children's Services Worker and accepted t he guardian ad litem's report into evidence. At the conclusion of the presentation of evidence, the Court in quired of the parents appearing if they wished to be heard regarding t he disposition. The Mother declined and confirmed legal custody to kinship was

in her children's best interest. The Father Dustin Carroll advi sed that he disagreed with legal custody on the basis that the Court lacked jurisdiction in the matter. He further advised that his attorney had failed to raise these defenses and he wished to proceed on them pro se. His attorney was excused, but asked to remain on standby in the event reappointm ent was requested. Mr. Carroll then testified that the Court lacked jur isdiction due toCoshocton County, Case No. 2021CA0016 5

the prior procedure at the Adjudicatory and Dispositional heari ng, which were both conducted on the same day, and that he had not been a llowed to engage to reunify the child with him. The Court requested that he brief the matter no later than Marc h 18, 2021, and allowed JFS to respond no later than March 25, 2021.

(Judgment Entry, Apr. 9, 2021, p. 2). {¶9} Carroll filed a brief and JFS responded. The trial court consi dered the briefs

and concluded: The Court does not lack jurisdiction in the matter pursuant to Juv.R 34(A) as alleged by the Father Dustin Carroll. The Judgement En try of the Adjudicatory Hearing, filed May 7, 2020 provides that "All pres ent Parties agreed to immediately proceed to the Dispositional Hearing." Th e cited rule provides for such procedure. The Father's argument that he had no opportunity to reunify is also unpersuasive. When the matter co mmenced in the Court on February 14, 2020, Mr. Carroll was incarcerated in a state penal institution where he has remained throughout the case. Hi s appearance was arranged so he could attend all proceedings. Whi le virtual appearance was possible for court, it does not work for parenti ng. A child requires a parent to be present in the home, especially a 5-yea r-old boy. Mr. Carroll hopes to be released later in 2021 and would like t o reengage with his son, and nothing in this disposition precludes that as the disposition of Legal Custody preserves a parent's residual rights.

Id.Coshocton County, Case No. 2021CA0016 6

{¶10} The trial court granted the motion for legal custody and issued an order authorizing JFS to close its case on this matter. Carroll file d a timely appeal and submitted two assignments of error: {¶11} “I. THE TRIAL COURT LACKS JURISDICTION TO HOLD

ADJUDICATORY AND DISPOSITIONAL HEARINGS ON THE SAME DAY.” {¶12} “II. MR. CAROL WAS DENIED EQUAL PROTECTION OF THE LAW

WHEN HE WAS NOT GIVEN A FAIR OPPORTUNITY TO DEMONSTRATE

SUITABILITY.”

ANALYSIS {¶13} This case comes to us on the expedited calendar and shall be co nsidered in compliance with App. R. 11.2(C). {¶14} We also note that Carol represented that he was appealing from a “judgment entry granting parents permanent custody over C. C.” (Notice of appeal, May 5, 2021). His characterization of the court’s judgment is inaccura te, as the order granted legal custody to non-parents, and not permanent custody. (Judgm ent Entry, April 9, 2021, p. 2).

LACK OF TRANSCRIPTS {¶15} Carroll has not provided transcripts of the hearings before th e trial court or a statement of the evidence under App.R.9(C). Although we make some allowances for pro se litigants, we cannot change the fundamental requirement that appellant, as the party asserting that there was an error in the trial court, bea rs the burden in the court of appeals to demonstrate error by reference to matters made a par t of the record. Knapp

v. Edward Laboratories (1980), 61 Ohio St.2d 197, 199. "When portions of the transcri ptCoshocton County, Case No. 2021CA0016 7

necessary for resolution of assigned errors are omitted from th e record, the reviewing court has nothing to pass upon and thus, as to those assigned e rrors, the court has no choice but to presume the validity of the lower court's proceed ings, and affirm." Id. {¶16} In the interest of justice, we have reviewed the record filed w ith this court concluded that the information in the judgment entries in that record support a denial of appellant's assignments of error. He first contends that the t rial court erred by proceeding to disposition immediately after the adjudication in violation of Juv.R. 34. Juv.R. 34(A) requires that at least one day elapse between the adjudicatory and dispositional hearings, unless the parties consent to holding the dispositional hearing immediately after the adjudication. The trial court noted in the entries from the adj udication and the disposition that all parties consented to conducting the disposition immedi ately after the adjudication and nothing within the record supports a conclusion that Carrol l objected to proceeding to disposition immediately after adjudication. {¶17} Carroll next alleges that "all documents required for the dispo sitional hearing" had not been provided, but he fails to describe what d ocuments were not served on him. He also complains about not having counsel, but the ju dgment entry makes clear that he had rejected the offer of counsel, then requested couns el, but did not seek a continuance. Juvenile Rule 34 provides that "[u]pon the reques t of any party or the guardian ad litem of the child, the court may continue a dispos itional hearing for a

reasonable time not to exceed the time limit set forth in this division to enable a party to

obtain or consult counsel." The record before us shows that Ca rroll had the opportunity

to consult with counsel and chose not to do so. He cannot now complain of the lack of

counsel.Coshocton County, Case No. 2021CA0016 8

{¶18} Carroll's second assignment of error contends his due-process r ights were violated because he did not have the opportunity to prove his s uitability. Carroll’s suggestion that the court must find him unsuitable prior to awa rding legal custody to a non-parent is incorrect. We recently considered this issue and found that a finding of unsuitability is not necessary: [a] juvenile court adjudication of abuse, neglect, or dependenc y is a determination about the care and condition of a child and impli citly involves a determination of the unsuitability of the child's custodial a nd/or noncustodial parents.” 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, paragraph two of syllabus. Thus, “[w]hen a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty t o make a separate finding at the dispositional hearing that a noncustodi al parent is unsuitable before awarding legal custody to a nonparent.” In re L.M., 2nd Dist. Greene No. 2010-CA-76, 2011-Ohio-3285 at paragraph 18, qu oting In re C.R., 108 Ohio St.3d 369, 843 N.E.2d 1188, paragraph three of syllab us. “[N]o statute requires a finding of parental unfitness as a pre requisite to an award of legal custody in cases where a child is adjudged abuse d, neglected, or dependent.

In re D.B ., 5th Dist. Richland No. 2021 CA 0002, 2021-Ohio-1702, ¶ 15. {¶19} In this case, C.C. was an adjudi cated dependent. The trial cour t, therefore, was not required to make a separate finding that appellant was unsuitable before awarding legal custody of C.C. to C.C.’s maternal grandparents.Coshocton County, Case No. 2021CA0016 9

{¶20} As noted by the trial court in its judgment entry of April 9. 2 021, Carroll was incarcerated during the time this matter was pending in court. Even if he was entitled to an opportunity to prove his suitability, his incarceration woul d have prevented success. The pleadings in the record suggest that Carroll will remain in carcerated until September 2021, seven months after the date of the hearing. We note that Carroll has recently appealed a 2021 conviction for Illegal Conveyance of Drugs of A buse onto Grounds of a Specified Governmental Facility which may extend his incarcerat ion for as much as one year. "The trial court was not required to keep the child in li mbo or to experiment with [its] welfare in order to see whether appellant could adequately prot ect the child upon [his] release from prison. We cannot fault the trial court for decidi ng not to experiment with the child's welfare in order to provide appellant an opportunity to prove [his] ability to give the child proper care. In re J.V–M.P., 4th Dist. Washington No. 13CA37, 2014–Ohio–486, ¶ 26, as quoted in In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶ 33.Coshocton County, Case No. 2021CA0016 10

{¶21} Because Carroll has failed to file a transcript of the proceedi ngs in the court below, and because the information available in the judgment en tries contained within the record support denial of the assignments of error, Carroll’s as signments are denied and the decision of the Coshocton County Court of Common Pleas is a ffirmed.

By: Baldwin, P.J. Hoffman, J. and Delaney, J. concur.