[Cite as In re J.W., 2018-Ohio-3897.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

IN RE: J.W. 

 M.H. 

 D.H. 

 F.V. 

 

 

 

C.A. Nos. 28966 

 28976 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE Nos. DN 16 08 0635 

DN 16 08 0636 

DN 16 08 0637 

DN 16 08 0638 

DECISION AND JOURNAL ENTRY 

Dated: September 26, 2018 

 

CALLAHAN, Judge. 

{¶1} Appellants Mother and Father H. (“Father”) separately appeal the judgment of the 

Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights 

and awarded permanent custody of the subject children to Summit County Children Services 

Board (“CSB” or “the agency”). This Court dismisses Mother’s appeal and affirms the 

dispositional order. 

I. 

{¶2} Mother is the biological mother of J.W. (d.o.b. 2/22/10), M.H. (d.o.b. 7/26/13), 

D.H. (d.o.b. 7/26/13), and F.V. (d.o.b. 5/4/15). Father is the biological father of F.V. Father S., 

the biological father of J.W.; and Father K., the biological father of M.H. and D.H., did not 

participate in the cases below and are not parties to this appeal. 
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{¶3} In August 2016, the Akron Police Department investigated a report that the 

children were being locked in a room in an unsanitary and unsafe home where Mother resided 

with her then-husband.1 Based on the filthy conditions and lack of food in the home, as well as 

the captivity of the children, the police removed J.W., M.H., D.H., and F.V. from the home and 

placed them in the protective custody of CSB. The agency filed complaints alleging that all four 

children were abused (endangered), neglected, and dependent. At the adjudicatory hearing, CSB 

withdrew its allegations of abuse, and the juvenile court found each child to be neglected and 

dependent. The children were placed in the temporary custody of the agency after the 

dispositional hearing, and the juvenile court adopted the case plan as the order of the court. The 

court later maintained the children in the temporary custody of CSB after a review hearing. 

{¶4} In June 2017, CSB filed a motion for permanent custody in which it alleged that 

the children could not or should not be returned to Mother within a reasonable time based on her 

failure to remedy the conditions which gave rise to the children’s removal. The agency alleged 

that all the fathers had abandoned their children. Moreover, it alleged that an award of 

permanent custody was in the children’s best interest. In November 2017, Father filed a motion 

for a first six-month extension of temporary custody, while Mother orally moved for a first sixmonth extension at the final dispositional hearing. At the conclusion of the two-day permanent 

custody hearing, the juvenile court denied the parents’ motions for a six-month extension of 

temporary custody, granted CSB’s motion for permanent custody, and terminated all parental 

rights as to each of the four children. Mother and Father filed separate timely notices of appeal. 

Mother failed to file an appellate brief, while Father raises two assignments of error for review. 

 

1

 Mother’s then-husband is not the biological father of any of the children at issue in this case. 
3 

 

II. 

Appeal No. 29876 

 Although Mother timely filed a notice of appeal from the juvenile court’s judgment 

awarding permanent custody of J.W., M.H., D.H., and F.V. to CSB, she has failed to file a merit 

brief or assert any assignments of error. As Mother has effectively abandoned her appeal, 

Appeal No. 28976 is dismissed. See In re M.O., 9th Dist. Summit Nos. 28351, 28371, 28383, 

2017-Ohio-7691, ¶ 21. 

Appeal No. 28976 dismissed. 

Appeal No. 28966 

FATHER’S ASSIGNMENT OF ERROR I 

THE TRIAL COURT’S FINDING THAT PERMANENT CUSTODY WAS IN 

THE BEST INTEREST OF [F.V.] IS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE AS THE AGENCY FAILED TO MAKE REASONABLE 

EFFORTS TO REUNIFY FATHER WITH HIS CHILD[.] 

{¶5} Father argues that the juvenile court erred by granting permanent custody of F.V., 

because CSB failed to use reasonable efforts to facilitate his reunification with the child. This 

Court disagrees. 

{¶6} R.C. 2151.419 addresses when the juvenile court must determine whether CSB 

has made reasonable efforts towards reunification of a child with her parents. It is now well 

settled that the statute imposes no requirement for such a determination “‘at the time of the 

permanent custody hearing unless the agency has not established that reasonable efforts have 

been made prior to that hearing.’” In re A.C.-B., 9th Dist. Summit Nos. 28330 and 28349, 2017-

Ohio-374, ¶ 22, citing In re H.H., 9th Dist. Summit No. 25463, 2010-Ohio-5992, ¶ 12, quoting 

In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41-43. 
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{¶7} In this case, at the shelter care hearing, the magistrate found that exigent 

circumstances prevented CSB from using reasonable efforts to prevent the removal of the 

children from their home, because the police removed the children pursuant to Juv.R. 6. 

However, the magistrate found at the adjudicatory hearing, the initial dispositional hearing, and a 

subsequent review hearing that CSB had used reasonable efforts to prevent the continued 

removal of the children from their home. In addition, the magistrate granted the agency’s motion 

for a judicial determination of reasonable efforts to finalize a permanency plan when it filed its 

motion for permanent custody. Despite Father having been properly served with notice of the 

proceedings, and verification that he is the biological father of F.V., Father failed to challenge 

the reasonable efforts findings either by timely objection or motion to set aside. As a result, he 

has forfeited the issue on appeal except for a claim of plain error. See In re S.D., 9th Dist. Lorain 

Nos. 15CA010864 and 15CA010867, 2016-Ohio-1493, ¶ 25; citing In re B.C., 9th Dist. Summit 

Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 24; Juv.R. 40(D)(3)(b)(iv). Father has not alleged 

plain error, and this Court declines to construct an argument on his behalf. See In re N.C., 9th 

Dist. Summit Nos. 27116 and 27118, 2015-Ohio-1627, ¶ 62, citing Juv.R. 40(D)(3)(b)(iv), 

App.R. 12(A)(2), and App.R. 16(A)(7). Moreover, in the absence of transcripts of the hearings 

at which the juvenile court made its reasonable efforts determinations, this Court must presume 

regularity in relation to those determinations. See In re S.D. at ¶ 25, citing In re T.K., 9th Dist. 

Summit No. 24006, 2008-Ohio-1687, ¶ 22. 

{¶8} Nevertheless, the record includes substantial evidence supporting the juvenile 

court’s finding that CSB used reasonable efforts to prevent the continued removal of F.V. from 

her parents’ custody. The first protective caseworker testified that, as Father was living in 

Illinois, he requested that Father establish paternity and execute releases so that the caseworker 
5 

 

could coordinate with service providers out of state to determine whether Father could meet the 

basic needs of the child and parent appropriately. That caseworker testified that he never 

received releases from Father during the eight months he provided case management services to 

the parents. In addition, Father never engaged in any services during that time; never contributed 

any financial support for the child; and, in fact, never expressed any desire for legal custody. 

Father merely indicated a desire that F.V., whom he had never met or visited, know him. 

{¶9} The second caseworker assigned to the case testified that she spoke to or sent 

letters to Father every month to discuss specific actions to allow her to assess Father’s ability to 

meet F.V.’s basic needs. By the time she began managing the case, Father was expressing a 

desire for legal custody of the child. As Father was living with his girlfriend and several other 

people in a home, the caseworker sent background check forms for each person living in the 

home. She only received completed forms from Father and his girlfriend, so she was unable to 

assess whether or not the other adults in the home were appropriate. The caseworker requested 

that Father engage in a drug and alcohol assessment, urine screens, and a mental health 

assessment, because she knew nothing about him. She attempted to contact a counselor Father 

was seeing, but the counselor did not return her calls. The caseworker contacted a parenting 

class provider in Illinois, but that provider reported that there were no appropriate parenting 

classes available for Father, who required developmental parenting classes. The caseworker 

testified that she made a referral for Father for appropriate parenting classes in Illinois, but the 

provider would not call either her or Father back. She acknowledged Father’s and her own 

frustration with service providers in Illinois. 

{¶10} Father did not explain to the caseworker why he would not leave Illinois to 

facilitate his desire to parent F.V. The caseworker knew Father was on probation for criminal 
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offenses (burglary and escape) in Illinois, but she did not know if the terms of his probation 

prevented him from leaving the state. Father never informed her that he was unable to leave 

Illinois. Nevertheless, he never sought to visit with the child, although he asked about F.V. 

whenever he called the caseworker. 

{¶11} Approximately three weeks before the second day of the permanent custody 

hearing, Father moved to Ohio to try to establish a relationship with F.V. He signed releases 

twelve days before the hearing. The caseworker made a referral to Portage Path for assessments, 

but Father failed to appear for his appointment. The caseworker made a referral for parenting 

classes. Father attended only one session. CSB scheduled visitations for Father and F.V. He 

attended his first visit, but he cancelled his second because it was “too cold” and “snowy out.” 

He also claimed to have had a blister after twisting his ankle when slipping in the snow. 

{¶12} When evaluating whether the agency has made reasonable efforts, this Court 

considers the following: 

In determining whether reasonable efforts were made, the child’s health and 

safety shall be paramount. [R.C. 2151.419(A)(1)]. Although [R.C.] Chapter 2151 

does not define reasonable efforts, courts construe the term to mean [t]he state’s 

efforts to resolve the threat to the child before removing the child or to permit the 

child to return home after the threat is removed[.] In re T.B.-W., 9th Dist. Summit 

No. 27544, 2015-Ohio-992, ¶ 15, quoting In re C.F., 113 Ohio St.3d 73, 2007-

Ohio-1104, at ¶ 28, quoting Will L. Crossley, Defining Reasonable Efforts: 

Demystifying the State’s Burden Under Federal Child Protection Legislation, 12 

B.U.Pub.Int.L.J. 259, 260 (2003). In a reasonable efforts determination, the issue 

is not whether the agency could have done more, but whether it did enough to 

satisfy the reasonableness standard under the statute. In re C.M., 9th Dist. 

Summit No. 24380, 2009-Ohio-943, ¶ 21, citing In re Myers, 4th Dist. Athens No. 

02CA50, 2003-Ohio-2776, ¶ 18. 

(Internal quotations omitted.) In re K.C., 9th Dist. Lorain No. 17CA011135, 2017-Ohio-8779, ¶ 

24. 
7 

 

{¶13} A review of the record indicates that both CSB caseworkers provided case 

management services to Father and kept in regular contact with him. Despite the lack of 

responsiveness on the part of service providers in Illinois, the second caseworker continued to try 

to facilitate services for Father there. While Father’s frustration was understandable, his failure 

to comply with objectives within his control was not. He offered no excuse for failing to send 

releases to the first caseworker or ensuring that all members in his household provided 

information for background checks. Moreover, Father offered no reason why he could not have 

moved to Summit County, where he could have obtained the necessary services, earlier than 

three weeks before the second day of the permanent custody hearing. Furthermore, the 

caseworker facilitated services and visitations for Father immediately upon his relocation to 

Summit County. Nevertheless, Father failed to take full advantage of those services, failing to 

appear for appointments and cancelling one of his two opportunities to visit with his child he had 

never met. This Court has recognized not only the obligation of the agency to use reasonable 

reunification efforts, but also the obligation of the parent to participate in the services provided. 

See In re N.G., 9th Dist. Lorain No. 15CA010812, 2016-Ohio-168, ¶ 17. Here, Father must be 

held accountable for failing to engage in the services and opportunities facilitated by CSB. See 

id. Under the circumstances, the record fails to support Father’s argument that the juvenile 

court’s finding that the agency used reasonable efforts to prevent the continued removal of F.V. 

from her home was against the manifest weight of the evidence. 

{¶14} To the extent that Father, citing In re H.H., 9th Dist. Summit No. 25463, 2010-

Ohio-5992, ¶ 17, has noted one instance in which this Court considered an argument alleging the 
8 

 

agency’s lack of reasonable efforts within the context of the best interest of the child,2 he has not 

provided any analysis of the issue. He merely cited the best interest factors in R.C. 2151.414(D) 

without arguing how CSB’s alleged lack of reasonable efforts related to any of the factors. This 

Court again declines to create an argument on Father’s behalf. See In re N.C., 2015-Ohio-1627, 

at ¶ 62. For the above reasons, Father’s first assignment of error is overruled. 

FATHER’S ASSIGNMENT OF ERROR II 

THE TRIAL COURT ABUSED ITS DISCRETION BY ARBITRARILY 

DENYING FATHER’S MOTION TO CONTINUE THE PERMANENT 

CUSTODY TRIAL[.] 

{¶15} Father argues that the juvenile court abused its discretion by denying his 

attorney’s motion to continue the first day of the hearing due to Father’s absence. This Court 

disagrees. 

{¶16} The denial or granting of a continuance is left to the sound discretion of the trial 

court, and this Court will not reverse absent an abuse of that discretion. In re L.A., 9th Dist. 

Summit No. 21531, 2003-Ohio-4790, ¶ 41, citing State v. Unger, 67 Ohio St.2d 65, 67 (1981). 

An abuse of discretion is more than an error of judgment; it means that the trial court was 

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute 

its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 

(1993). 

 

 

2

 The majority cited no authority for its novel approach. The concurring opinion cited the Ohio 

Supreme Court’s analysis of the issue as enunciated in In re C.F. at ¶ 43, and would have 

concluded that the juvenile court was not required to make a reasonable efforts determination at 

the permanent custody hearing. In re H.H. at ¶ 33 (Carr, J., concurring in judgment only). 
9 

 

{¶17} In exercising its discretion, the trial court must balance “‘any potential prejudice 

to a [party against] concerns such as a court’s right to control its own docket and the public’s 

interest in the prompt and efficient dispatch of justice.’” (Alteration in original.) In re A.S., 9th 

Dist. Lorain Nos. 14CA010532 and 14CA010534, 2014-Ohio-2458, ¶ 36, quoting Unger at 67. 

The Unger court adopted a balancing test, wherein the following factors should be considered: 

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 67-68; see also In re T.B., 9th Dist. Summit No. 27334, 2014-Ohio-4040, ¶ 11. In 

addition, specific to juvenile law, Juv.R. 23 provides that “[c]ontinuances shall be granted only 

when imperative to secure fair treatment for the parties.” 

{¶18} In this case, CSB filed its motion for permanent custody on June 13, 2017. Given 

that he was residing out of state, Father was not served with the motion until August 22, 2017. 

Nevertheless, he was notified of the November 28, 2017 hearing date by magistrate’s decision 

filed July 25, 2017. Despite several months’ advance notice, Father notified his attorney by text 

message at 11:30 p.m. on the night before the hearing that “his ride’s oil pump in the car was 

faulty and could not get here for [the hearing].” Father’s attorney requested a continuance, which 

the juvenile court denied. Father’s attorney was present for the entire first day of hearing, and he 

cross-examined all witnesses presented by CSB. 

{¶19} At the conclusion of the agency’s case-in-chief, Mother’s attorney informed the 

court that Mother had gone into labor and counsel requested a continuance for that reason. No 

party objected, and the juvenile court scheduled a second hearing date for two months later. The 

juvenile court specifically indicated that it was granting the continuance in part to allow Father to 
10 

 

be present. Moreover, the trial court informed Father’s attorney that it would allow Father to 

recall any witness who had testified during the first day of hearing and to present his own casein-chief. 

{¶20} During the second day of the permanent custody hearing, Father was present with 

his attorney. CSB recalled the protective caseworker, and Father had the opportunity to be 

present for her testimony and to question her. Father did not ask to recall any other prior 

witnesses. He testified in support of his motion for a first six-month extension of temporary 

custody. 

{¶21} Father has not explained how he was prejudiced by the denial of his motion for a 

continuance. He was represented by counsel during the first day of the hearing and given a full 

and fair opportunity to recall and question any prior witness on the second day. He had been 

aware of the hearing date for several months, and yet waited until the last minute to try to travel 

to Ohio in the winter. He did not inform his attorney when he would be able to be present in 

Ohio, so counsel could not indicate the length of the delay requested. CSB was present and 

prepared to present the testimony of its seven witnesses. Mother was present and expecting 

another child, requiring that any continuance be for a substantial enough time to accommodate 

her delivery and recovery. The juvenile court ultimately granted a continuance of the permanent 

custody hearing, in part to accommodate Father. Under the circumstances, this Court concludes 

that the juvenile court’s initial denial of Father’s motion for a continuance did not constitute an 

abuse of discretion. Father’s second assignment of error is overruled. 

Judgment affirmed. 
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III. 

{¶22} As to Appeal No. 28966, Father’s two assignments of error are overruled. The 

judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed. As 

Mother abandoned her appeal, Appeal No. 28976 is dismissed. 

Appeal No. 28966 affirmed, 

and Appeal No. 28976 dismissed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellants. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

CARR, P. J. 

CONCURS. 

HENSAL, J. 

CONCURS IN JUDGMENT ONLY. 
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APPEARANCES: 

ANGELA M. KILLE, Attorney at Law, for Appellant. 

ALAN M. MEDVICK, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.