[Cite as In re M.H., 2012-Ohio-5216.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

IN RE: M.H. and A.H. : 

 : C.A. CASE NO. 25084 

 : T.C. NO. JC 2008-7130 

 JC 2008-7132 

 : 

 (Civil appeal from Common 

 : Pleas Court, Juvenile Division) 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 9th day of November , 2012. 

 . . . . . . . . . . 

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

BRYAN K. PENICK, Atty. Reg. No. 0071489, 1800 Lyons Road, Dayton, Ohio 45458 

Attorney for Defendant-Appellant 

JULIUS CARTER, Atty. Reg. No. 0084170, 130 W. Second Street, Suite 1622, Dayton, 

Ohio 45402 

Attorney for Minor Children 

 . . . . . . . . . . 

DONOVAN, J. 
[Cite as In re M.H., 2012-Ohio-5216.]

{¶ 1} Appellant-petitioner Mother appeals a decision of the Montgomery County 

Court of Common Pleas, Juvenile Division, which overruled her objections to the 

magistrate’s decision wherein the parental rights of Mother were terminated, and permanent 

custody of M.H. and A.H. (hereinafter “the children”) was awarded to Montgomery County 

Children’s Services (hereinafter “MCCS”). The trial court adopted the magistrate’s 

decision in a judgment entry filed on February 15, 2012. Mother filed a timely notice of 

appeal with this Court on March 7, 2012. 

{¶ 2} On August 1, 2008, Dayton Police responded to Mother’s residence on a 

report that young children had been left alone. Upon their arrival, the police discovered 

M.H. and A.H. alone at Mother’s residence which was found to be “extremely dirty with 

piles of trash and dirty clothes throughout.” Neither of the children were able to tell the 

police officers where Mother was. Both children were observed to be dirty and wearing 

soiled diapers. Mother arrived approximately twenty minutes later and explained that she 

had been at the grocery store. Based on the appearance of the children and the residence in 

general, the police officers contacted MCCS and arranged to immediately have the children 

placed into emergency custody. Shortly thereafter, a caseworker from MCCS arrived, 

removed the children from Mother’s custody, and placed them into a non-adoptive foster 

home. 

{¶ 3} On August 4, 2008, MCCS filed a Neglect and Dependency Complaint 

regarding the children. The children were adjudicated neglected and dependent on 

September 29, 2008. In a decision issued on March 5, 2009, the trial court granted 

temporary custody of the children to MCCS. Thereafter, the trial court granted the MCCS a 

first extension of temporary custody of the children on July 25, 2009. 
[Cite as In re M.H., 2012-Ohio-5216.]

{¶ 4} After the children had been removed from her care, Mother met with a 

caseworker from MCCSB in order to develop a case plan aimed at reunification. 

Specifically, the case plan required Mother to obtain a psychological and parenting 

assessment, as well as complete a drug and alcohol assessment, and follow through with any 

recommendations made regarding those assessments. Mother was ordered to enroll in 

education courses or obtain employment and provide verification. Further, Mother was 

required to obtain and maintain stable housing. Lastly, the case plan required her to 

complete parenting education classes and follow all recommendations upon completion. 

Mother was ordered to complete her case plan on October 8, 2008. 

{¶ 5} After determining that reunification was not possible within a reasonable 

amount of time, MCCS filed a motion for permanent custody of the children on December 2, 

2009. A trial was held before the magistrate on April 30, 2010, in order to determine if 

MCCS should be granted full custody of the children. In decisions issued on July 30, 2010, 

and August 3, 2010, the magistrate granted permanent custody of the children to MCCS 

upon a finding that Mother had failed to complete the objectives as provided in her case 

plan. 

{¶ 6} Mother filed objections to the magistrate’s decision on August 12, 2010. 

On June 1, 2011, Mother filed supplemental objections to the magistrate’s decision. 

Subsequently on February 15, 2012, the trial court overruled Mother’s objections and 

adopted the decision of the magistrate in a decision issued, thus affirming the award of 

permanent custody to MCCS 

{¶ 7} It is from this decision that Mother now appeals. 

{¶ 8} Because they are interrelated, Mother’s first and second assignments of error 
4

will be discussed as follows: 

{¶ 9} “THE TRIAL COURT ERRED IN FINDING THE GRANT OF 

PERMANENT CUSTODY OF A.H. AND M.H. TO MCCS TO BE IN THE BEST 

INTEREST OF THE CHILDREN.” 

{¶ 10} “THE TRIAL COURT GRANTING PERMANENT CUSTODY TO MCCS 

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” 

{¶ 11} In her first assignment, Mother contends that the trial court erred when it 

found that granting permanent custody to MCCS was in the best interests of the children. 

Mother argues in her second assignment that granting permanent custody of the children to 

MCCS was against the manifest weight of the evidence. 

{¶ 12} A parent has a fundamental right to care for and have custody of his or her 

child. In re Schaeffer Children, 85 Ohio App.3d 683, 689, 621 N.E.2d 426 (3d Dist. 1993). 

Therefore, a court should only terminate a parent’s rights as an alternative of last resort. In re 

Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (3d Dist.1994). A trial court may 

terminate a parent’s right to his or her child and grant permanent custody to a government 

agency if it determines by clear and convincing evidence that the grant of permanent custody 

is in the best interests of the child and finds that one of the factors listed in R.C. 

2151.414(B)(1) applies. R.C. 2151.414(B)(1). An appellate court gives great deference to a 

trial court’s determination in custody matters. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 

N.E.2d 846 (1988). Therefore, a trial court’s decision awarding permanent custody will be 

affirmed if it is supported by evidence sufficient to meet the clear and convincing standard of 

proof. In re Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist.1997). 
[Cite as In re M.H., 2012-Ohio-5216.]

{¶ 13} Mother argues that the juvenile court’s award of permanent custody of the 

children to MCCS was against the manifest weight of the evidence. A weight of the 

evidence argument challenges the believability of the evidence and asks which of the 

competing inferences suggested by the evidence is more believable or persuasive. State v. 

Hufnagle, 2d Dist. Montgomery No. 15563, 1996 WL 501470 (Sept. 6, 1996). “Judgments 

supported by some competent, credible evidence going to all the essential elements of the 

case will not be reversed by a reviewing court as being against the manifest weight of the 

evidence.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 

(1978), at syllabus. 

{¶ 14} R.C. 2151.414(B)(1) provides that the court may grant the motion of an 

agency seeking permanent custody of a child if it finds, by clear and convincing evidence, 

that it is in the best interest of the child to award permanent custody of the child to the 

agency, and the court makes one of the four alternative findings set out in R.C. 

2151.414(B)(1). One of those alternative findings is that the child “has been in the 

temporary custody of one or more public children’s services agencies for twelve or more 

months out of a consecutive twenty-two month period.” R.C. 2151.414(B)(1)(d). It is 

undisputed that at the time of the permanent custody hearing before the magistrate that the 

children had been in the custody of MCCS for over twelve months of a consecutive 

twenty-two month period. Accordingly, because R.C. 2151.414(B)(1)(d) is satisfied, the 

only issue before the trial court was whether it was in the best interests of the children to 

grant permanent custody to MCCS. 

{¶ 15} In determining the best interests of a child, the court must consider all of the 

relevant factors including: 
[Cite as In re M.H., 2012-Ohio-5216.]

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

child’s parents, siblings, relatives, foster caregivers and 

out-of-home providers, and any other person who may 

significantly affect the child; 

(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 placing agencies for 

twelve or more months of a consecutive twenty-two month 

period . . .; 

(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. R.C. 

2151.414(D)(1). 

{¶ 16} As stated previously, Mother’s case plan required her to obtain a 

psychological and parenting assessment, as well as complete a drug and alcohol assessment, 

and follow through with any recommendations made regarding those assessments. Mother 

was ordered to enroll in education courses or obtain employment and provide verification. 

Further, Mother was required to obtain and maintain stable housing. Lastly, the case plan 
7

required her to complete parenting education classes and follow all recommendations 

regarding her performance in those classes. 

{¶ 17} Upon review, we conclude that the trial court did not err when it found that 

it was in the best interests of the children to be placed in the permanent custody of the 

MCCS. While we note that the record establishes that Mother completed the parenting 

classes that she was ordered to attend, and she did, in fact, secure and maintain stable and 

appropriate housing, a significant portion of her case plan had not been completed. 

{¶ 18} Specifically, testimony adduced at the permanent custody hearing 

established that Mother never had stable and verifiable income. In July of 2009, Mother 

claimed to have been employed at a Wendy’s Restaurant and a business called Graphics, 

both located at the Greene, a mall in Beavercreek, Ohio. Mother, however, failed to provide 

any pay stubs to the MCCS to prove that she had actually been employed at either business 

before she quit working ostensibly to attend school at Sinclair Community College. Mother 

enrolled at Sinclair in March of 2009 but failed to complete the first semester because she 

participated in residential drug treatment at CADAS. The record establishes that Mother 

never re-enrolled at Sinclair. Mother told her caseworker that she planned on taking some 

classes at Southwestern Community College, but no evidence was adduced that she ever did. 

 Moreover, Mother had no employment after January 2010, nor did she re-enroll in school. 

Thus, the record establishes that Mother failed to complete the case plan objective requiring 

her to enroll in and stay in school, or, in the alternative, maintain verifiable employment. 

{¶ 19} While attending inpatient drug treatment at CADAS, Mother was diagnosed 

with “cannabis dependency.” Mother initially attended inpatient treatment from May 17, 
8

2009, to June 19, 2009, but did not complete the program. MCCS informed Mother in 

August of 2009 that she needed to call her drug counselor and complete the program, but the 

record establishes that she did not do so immediately. In January of 2010, Mother arranged 

a new intake appointment with CADAS. Jennifer Johnson, Mother’s drug counselor, 

informed her that in order to do so, Mother was required to attend an orientation session at 

CADAS before she could become involved in the group therapy again. The record 

establishes that Mother failed to attend the scheduled orientation session. 

{¶ 20} Mother finally attended another orientation session and thereafter attended 

five group sessions between January and March of 2010. The record establishes, however, 

that Mother missed nine group session meetings during that time period, as well. The last 

CADAS group session Mother attended was on March 15, 2010. Johnson testified that 

Mother was required to attend three group sessions a week for six weeks in a row; then 

attend one group session a week for ten weeks in a row; and then meet with recovery groups 

regarding her past drug use. On March 11, 2010, Mother was scheduled to have an 

individual session with Johnson, but arrived forty-five minutes late for the appointment, and 

“nothing was accomplished” at the session per Johnson’s testimony. Another individual 

session was scheduled for March 22, 2010, but Mother failed to show up for appointment. 

In light of Mother’s failure to comply with the appointment schedule, Johnson testified that 

Mother did not successfully complete the CADAS program. Accordingly, Mother failed to 

complete the portion of her case plan requiring substance abuse treatment. 

{¶ 21} The record establishes that Mother also never attended her parenting and 

psychological assessment. MCCS referred Mother to Dr. Cordell for the assessment, but 
9

she missed two appointments in October and November of 2008. In order to schedule a 

third appointment, Mother was informed that she would have to pay a fee of $55.00 because 

of the previously missed appointments. Mother did not pay the fee, and the third 

appointment was never scheduled. Additionally, the record establishes that Mother did not 

attempt to obtain the parenting and psychological assessment elsewhere. Thus, that portion 

of her case plan was never completed. 

{¶ 22} We further note that Mother’s visitation with the children has been 

inconsistent, at best. While she had only a few missed visits from August of 2008 to March 

of 2009, the record establishes that Mother did not visit the children at all from June 26, 

2009, until January 15, 2010. Mother had scheduled a visit on January 8, 2010, but she 

canceled. 

{¶ 23} After resuming visits on January 15, 2010, she missed the scheduled visit on 

January 22, 2010. Mother did attend the next two visits on January 29 and February 5, 

2010. Mother, however, missed the next three scheduled visits on February 12, 2010, 

February 19, 2010, and February 26, 2010. Mother did not visit the children at all in March 

of 2010. On April 16, 2010, Mother attended a visit with the children, but she missed the 

next visit scheduled for April 23, 2010, just a week before the permanent custody hearing. 

The last time Mother visited with the children was briefly on the morning of the permanent 

custody hearing on April 30, 2010. 

{¶ 24} The record establishes that the children are adoptable, and there are no other 

suitable relatives with which the children can be placed. Neither father of the children has 

any type of relationship with the children. One of the fathers, C.D., filled in the paperwork 
10

for paternity testing prior to the custody hearing, but it was not processed in a timely fashion. 

 C.D. also came to the permanent custody hearing, but he left before it was over and did not 

return. At the hearing, a representative for the children’s Guardian ad Litem (GAL) 

testified that he believed it was in the children’s best interests to be placed in the permanent 

custody of MCCS. 

{¶ 25} In light of the foregoing, we find that the trial court did not err when it found 

that it was in the children’s best interests to be placed in the permanent custody of MCCS. 

Additionally, the trial court’s decision in that regard was clearly not against the manifest 

weight of the evidence. 

{¶ 26} Mother’s first and second assignments of error are overruled. 

{¶ 27} Mother’s third and final assignment of error is as follows: 

{¶ 28} “THE TRIAL COURT ERRED IN DENYING APPELLANT A MOTION 

TO CONTINUE THE PERMANENT CUSTODY HEARING.” 

{¶ 29} In her final assignment, Mother argues that the trial court violated her 

parental rights and her right to due process when it denied her motion to continue the 

permanent custody hearing. Specifically, Mother asserts that because she made 

“significant” progress on her case plan objectives, the trial court should have allowed her a 

continuance in order to complete the remainder of the objectives. 

{¶ 30} Juv. R. 23 states that “[c]ontinuances shall be granted only when imperative 

to secure fair treatment for the parties.” The terms of the rule further the State’s policy that 

juvenile court cases are to be heard and determined as expeditiously as possible. In re Dryer, 

2d Dist. Montgomery No. 18040, 2000 WL 331770 (March 31, 2000). Specifically, [i]n 
11

evaluating a motion for a continuance, a court should note: 1) the length of the delay 

requested; 2) whether other continuances have been requested and received; 3) the 

inconvenience to the litigants, witnesses, opposing counsel, and the court; 4) whether the 

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; 

5) whether the defendant contributed to the circumstance which gives rise to the request for 

a continuance; and 6) other relevant factors, depending on the unique facts of each case. 

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

{¶ 31} An appellate court will not reverse a trial court’s decision denying a motion 

for continuance unless the trial court abuses its discretion. Id. “Abuse of discretion” has been 

defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair 

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to be expected 

that most instances of abuse of discretion will result in decisions that are simply 

unreasonable, rather than decisions that are unconscionable or arbitrary. 

{¶ 32} At the time of the permanent custody hearing on April 20, 2010, Mother had 

not completed the bulk of her case plan objectives, despite the case plan being ordered on 

October 8, 2008. While Mother obtained suitable housing and completed the parenting 

education classes, the trial court found her progress regarding the remaining objectives to be 

insufficient. Mother failed to maintain verifiable employment and did not complete her 

schooling objectives. Mother failed to complete the CADAS program. Additionally, 

Mother addressed neither the psychological nor the parenting assessment objectives of her 

case plan by failing to attend her scheduled appointments with Dr. Cordell. Finally, 

Mother’s visitation with the children has been sporadic and inconsistent. The record 
12

establishes that she has clearly missed more scheduled visits than she has attended. 

Significantly, Mother did not visit the children at all from June 26, 2009, until January 15, 

2010. We also note that the motion for a continuance was made by Mother’s counsel on the 

day of the permanent custody hearing and denied. 

{¶ 33} In our view, Mother had ample time to complete her case objectives before 

the permanent custody hearing. Mother’s lack of progress with respect to the bulk of her 

case plan objectives and her inconsistent pattern of visitation demonstrate an unwillingness 

or inability to accomplish her case plan objectives for reunification with her children. 

Accordingly, we find that the trial court did not abuse its discretion when it denied Mother’s 

motion for continuance of the permanent custody hearing. 

{¶ 34} Mother’s third and final assignment of error is overruled. 

{¶ 35} All of Mother’s assignments having been overruled, the judgment of the trial 

court is affirmed. 

 . . . . . . . . . . 

GRADY, P.J. and HALL, J., concur. 

Copies mailed to: 

Michele D. Phipps 

Bryan K. Penick 

Julius Carter 

Hon. Nick Kuntz