[Cite as In re K.J., 2018-Ohio-471.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In the Matter of: : 

 

[K.J.] et al., : No. 17AP-457 

 (C.P.C. No. 15JU-0346)

[K.B., : 

 (REGULAR CALENDAR) 

 Appellant]. : 

In the Matter of: : 

 

[K.J.] et al., : No. 17AP-500 

 (C.P.C. No. 15JU-0346)

[C.J., : 

 (REGULAR CALENDAR) 

 Appellant]. : 

 

D E C I S I O N 

Rendered on February 6, 2018 

 

On brief: William T. Cramer, for K.J. Argued: William T. 

Cramer.

On brief: Robert J. McClaren, for Franklin County Children 

Services. Argued: Robert J. McClaren.

On brief: Alex J. Pomerants, for appellant K.B. Argued: 

Alex J. Pomerants.

On brief: Yeura R. Venters, Public Defender, and 

Timothy E. Pierce, for appellant C.J. Argued: Timothy E. 

Pierce.

On brief: Daniel W. Sullenberger, Guardian ad Litem. 

Argued: Daniel W. Sullenberger.

 

APPEALS from the Franklin County Court of Common Pleas, 

Division of Domestic Relations, Juvenile Branch 
Nos. 17AP-457 and 17AP-500 2 

LUPER SCHUSTER, J. 

Appellants, K.B. ("mother") and C.J. ("father"), parents of K.J., L.J., and M.J. 

(collectively "the children"), appeal from the judgment of the Franklin County Court of 

Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating their 

parental rights and placing the children in the permanent custody of appellee, Franklin 

County Children Services ("FCCS"). For the following reasons, we affirm. 

I. Facts and Procedural History 

This case involves FCCS's request for permanent custody of K.J., born July 21, 

2010; L.J., born January 3, 2012; and M.J., born June 6, 2013. On January 12, 2015, 

FCCS filed a complaint alleging the children to be neglected and dependent minors. At 

that date, K.J. was four years old, L.J. was three years old, and M.J. was one year old. 

FCCS filed the neglect and dependency actions after receiving information that father was 

physically abusive to mother in the presence of the children, mother "whoops" the 

children very hard, K.J. was burned by a cigarette, father and mother were possibly using 

heroin, the family was being evicted from their home, the children wear clothes that are 

dirty and do not fit, the floor of the home is covered in both dog and human feces, the 

parents do not seek medical treatment for the children, the children were allowed to play 

near the open oven being used to heat the home, and the home is infested with roaches 

and fruit flies. Initially, FCCS placed the children with relatives in an out-of-home safety 

plan. During this time, mother and father were scheduled to complete drug screens but 

failed to do so. 

On January 12, 2015, the relatives informed FCCS they could no longer care for the 

children. That same day, the trial court granted an emergency care order placing the 

children into the temporary emergency custody of FCCS. The next day, January 13, 2015, 

the trial court issued an order returning the children to the care of mother and father with 

a protective supervision order. As part of the protective supervision order, the trial court 

ordered parents not to use physical discipline with the children, to cooperate with random 

drug screens and assessments, and to cooperate with the caseworker. 

Less than one month later, on February 6, 2015, the trial court awarded temporary 

custody of the children back to FCCS after the parents tested positive for heroin and the 

parents lacked income, police came to the home and discovered unsanitary and unsafe 
Nos. 17AP-457 and 17AP-500 3 

conditions, and father failed to provide any care to the children at all. On February 25, 

2015, the trial court adjudicated the children dependent and awarded temporary custody 

to FCCS. Subsequently, the trial court extended temporary custody on January 11, 2016 

and again on August 18, 2016. 

On November 15, 2016, FCCS filed a motion for permanent court commitment 

("PCC"), also known as permanent custody, of the children. Initially, the trial court 

scheduled the PCC hearing for December 16, 2016. However, the trial court granted 

mother's motion to schedule a pretrial conference March 1, 2017. Neither mother nor 

father attended the March 1, 2017 pretrial conference. Counsel for mother stated mother 

"may be in an emergency room." (Mar. 1, 2017 Tr. at 5.) During the pretrial conference, 

the trial court discussed scheduling the final trial date. Counsel for FCCS indicated she 

would be out on family leave in July and August. The trial court scheduled the final trial 

date for June 5 and 6, 2017. Additionally, the trial court scheduled a second pretrial 

conference for April 26, 2017. 

At the April 26, 2017 pretrial conference, the trial court conducted an in camera 

interview with K.J. Once again, neither mother nor father attended the pretrial 

conference. Counsel for mother stated that while he was not certain of the reason for 

mother's absence, he "heard that she is with her sick mother at the hospital." (Apr. 26, 

2017 Tr. at 29.) Counsel for father stated father may be in Florida. The trial court 

reminded the parties of the June 5 and 6, 2017 trial date, and counsel for FCCS stated she 

intended to only present the FCCS caseworker and the guardian ad litem for the children 

as witnesses, and she stated she would call the parents to testify if they appeared for trial. 

Counsel for FCCS specifically noted on the record her concern that the parents would not 

show up for the PCC hearing based on mother's and father's failures to attend prior 

hearing dates or to make progress on their case plan requirements. 

On June 5, 2017, the trial court conducted the scheduled hearing on FCCS's motion 

for permanent custody. At the beginning of the hearing, counsel for both mother and 

father made oral motions to continue the case because neither mother nor father was 

present. Counsel for mother stated mother may have suddenly become ill and could not 

attend. Meanwhile, counsel for father stated that counsel learned from FCCS's counsel 

that same morning that father had been arrested on a minor theft charge in South 
Nos. 17AP-457 and 17AP-500 4 

Carolina and was currently incarcerated pending the resolution of that charge. Father's 

counsel presented the court with a printout from the webpage for Horry County, South 

Carolina stating father was arrested by the Myrtle Beach Police Department on June 2, 

2017. Counsel for FCCS, the guardian ad litem, and counsel for K.J. all objected to the 

continuance requests. The trial court overruled the continuance requests and proceeded 

to trial. 

During the PCC hearing, FCCS presented the testimony of three witnesses: Sarah 

Terstage, a child welfare caseworker for FCCS; Wanda Ganjehsani, the children's 

guardian ad litem; and Joyce Sanders, a case manager for Ohio Guidestone who provided 

substance abuse and other counseling to mother. After the testimony of the witnesses and 

the submission of FCCS's exhibits, the court issued a written decision on June 12, 2017 

granting FCCS's petition for permanent custody. The trial court considered the factors in 

R.C. 2151.414(D) and determined there was clear and convincing evidence that it was in 

the children's best interest to grant the motion for permanent custody. 

Mother and father both timely appeal. This court sua sponte consolidated the 

cases for purposes of appeal. 

II. Assignments of Error 

Mother assigns the following error for our review: 

[1.] The trial court did abuse its discretion when it denied 

Appellant's motion for continuance and granted the Franklin 

County Children Services Motion for Permanent Custody of 

the minor children. 

Additionally, father assigns the following errors for our review: 

[1.] The lower court violated Father-Appellant's right to Due 

Process under the Fifth and Fourteenth Amendments of the 

United States Constitution and his right to Due Course of Law 

under Article I, Sections 1 and 16 of the Ohio Constitution 

when it failed to ensure the presence at trial of FatherAppellant who at the time was incarcerated and/or when it 

failed to make alternative arrangements for his participation 

in the trial. 

[2.] The lower court erred when it denied Father-Appellant's 

continuance request which undermined his right to be present 

and/or participate at the parental rights termination trial in 
Nos. 17AP-457 and 17AP-500 5 

violation of the Due Process Clauses of Fifth and Fourteenth 

Amendments of the United States Constitution, the Due 

Course of Law Clauses of Article I, Sections 1 and 16 of the 

Ohio Constitution and Juv.R. 23. 

III. Mother's First Assignment of Error and Father's First and Second 

 Assignments of Error – Request for a Continuance 

Mother's sole assignment of error and father's two assignments of error are 

interrelated and we address them jointly. In her first assignment of error, mother argues 

the trial court erred when it denied her motion for continuance at the start of the 

permanent custody hearing. In his first assignment of error, father argues the trial court 

violated his due process rights when it failed to ensure his presence at the permanent 

custody hearing. In his second assignment of error, father argues the trial court erred 

when it denied his request for a continuance at the start of the permanent custody 

hearing. Taken together, these assignments of error assert the trial court erred when it 

denied the continuance requests and proceeded to the permanent custody hearing when 

mother and father were not present. 

"Parents have a constitutionally-protected fundamental interest in the care, 

custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-

Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of 

Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re 

Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a 

parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham, 

59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may 

terminate the parental rights of natural parents when such termination is in the best 

interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96 

Ohio App.3d 619, 624 (9th Dist.1994). 

A trial court may grant permanent custody if it determines by clear and convincing 

evidence that, pursuant to R.C. 2151.414(B)(1), " 'such relief is in the best interest of the 

child.' " In re G.E.H., 10th Dist. No. 15AP-966, 2016-Ohio-3535, ¶ 52, quoting In re J.T., 

10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 9. On appeal, we will not reverse a trial 
Nos. 17AP-457 and 17AP-500 6 

court's decision in a permanent custody case unless it is against the manifest weight of the 

evidence. In re I.R., 10th Dist. No. 04AP-1296, 2005-Ohio-6622, ¶ 4, citing In re AndyJones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. Judgments in permanent 

custody proceedings are not against the manifest weight of the evidence "when all 

material elements are supported by competent, credible evidence." In re J.T. at ¶ 8. 

Mother and father, however, do not argue that the trial court's decision to award 

permanent custody to FCCS was against the manifest weight of the evidence. Rather, 

mother and father argue the trial court erred when it failed to grant their requested 

continuance and proceeded to trial in their absence. 

An appellate court will not reverse a denial of a continuance in a PCC case absent 

an abuse of discretion. In re J.B., 10th Dist. No. 08AP-1108, 2009-Ohio-3083, ¶ 26, 

citing In re B.G.W., 10th Dist. No. 08AP-181, 2008-Ohio-3693, ¶ 23. An abuse of 

discretion connotes a decision that was unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Further, " '[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.' " 

In re J.B. at ¶ 26, quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964). 

In reviewing whether a trial court abused its discretion in denying a continuance, 

an appellate court weighs any potential prejudice to the movant against the court's right 

to control its docket and the public's interest in the efficient dispatch of justice. State v. 

Woods, 10th Dist. No. 09AP-667, 2010-Ohio-1586, ¶ 24; In re M.K., 10th Dist. No. 09AP1141, 2010-Ohio-2194, ¶ 14. In evaluating a request for a continuance, a court considers: 

(1) the length of the requested delay; (2) whether the parties have requested and received 

other continuances; (3) the inconvenience to the parties, witnesses, opposing counsel, and 

the court; (4) whether the requested delay is for legitimate reasons or is merely dilatory, 

purposeful, or contrived; (5) whether the movant contributed to the circumstances giving 

rise to the request for a continuance; and (6) any other relevant factors, depending on the 

unique circumstances of each case. Woods at ¶ 24, citing State v. Unger, 67 Ohio St.2d 

65, 67 (1981); In re J.B. at ¶ 26. 

 A. Mother's Request for a Continuance 
Nos. 17AP-457 and 17AP-500 7 

Mother failed to appear the day of trial and her counsel orally moved for a 

continuance. Loc.R. 2 of the Court of Common Pleas of Franklin County, Division of 

Domestic Relations, Juvenile Branch provides that a trial court will not grant a 

continuance the day of trial without a showing of good cause. Counsel for mother stated 

mother had tried to come to the hearing but had a "medical emergency" and had to call an 

ambulance. (June 5, 2017 Tr. at 4-5.) However, counsel for mother stated that he was 

unable to track down the ambulance and did not know whether mother actually went to a 

hospital or, if so, to what hospital she went. Counsel stated he was unsure how long of a 

continuance he was requesting because he did not know the extent of the medical 

emergency, but he asked for "a couple weeks" for mother's condition to improve. (June 5, 

2017 Tr. at 5.) 

In objecting to mother's request for a continuance, counsel for FCCS noted 

mother's history throughout the case of failing to appear for scheduled hearings under the 

stated reason of a "medical emergency" only for the parties to discover upon investigation 

that mother was not actually in the hospital on those occasions. (June 5, 2017 Tr. at 7-8.) 

Counsel for FCCS stated she made a point at the last pretrial conference before the PCC 

hearing to note on the record her concern that mother would not show up for the final 

hearing. Additionally, counsel for FCCS noted the testimony at the hearing would 

indicate that mother makes frequent trips to different medical providers related to her 

substance abuse issues. The FCCS caseworker testified mother had been to the 

emergency room 25 times between August 2014 and August 2016. 

Considering all the circumstances surrounding mother's request for a continuance, 

we conclude the trial court did not abuse its discretion in denying her oral motion for 

continuance on the day of trial. Though counsel for mother requested an unspecified 

delay so that mother could be present, mother had a history of failing to attend hearings 

at the last minute. The trial court initially scheduled the PCC hearing for December 16, 

2016 but ultimately rescheduled the hearing for June 5, 2017 to allow for ample pretrial 

hearings and preparation. Still, the PCC hearing on June 5, 2017 marked the third 

consecutive hearing date for which mother knew of the hearing and yet failed to attend. 

Pursuant to R.C. 2151.414(A)(2), the trial court is to hold the PCC hearing no later than 

120 days after the agency files the PCC motion except for "good cause shown" for a 
Nos. 17AP-457 and 17AP-500 8 

reasonable continuance. The trial court had already extended the time frame for the PCC 

hearing to accommodate the pretrial hearings, and by the time of the June 5, 2017 

hearing, the PCC motion had been pending for more than 200 days. See In re J.C., 10th 

Dist. No. 10AP-766, 2011-Ohio-715, ¶ 46 (a trial court does not abuse its discretion in 

denying a request for a continuance when the PCC hearing is already past the 120-

deadline contained in R.C. 2151.414(A)(2)). 

Moreover, by the time of the PCC hearing, the children had been in FCCS's custody 

for more than two years, and granting a continuance on the day of the hearing would have 

presented an inconvenience to opposing counsel, who was scheduled for family leave the 

next month, as well as prolonging the accomplishment of the ultimate goal of establishing 

permanency for the children. See In re J.M., 10th Dist. No. 15AP-234, 2015-Ohio-3988, ¶ 

26 (a trial court may consider the children's length of time in foster care and potential for 

adoptive placement as a relevant factor in determining whether to grant or deny a 

continuance). The inability for FCCS or the other parties to verify mother's medical 

excuses throughout the proceedings rendered the stated reason for mother's absence at 

the PCC hearing lacking in credibility. 

Mother asserts on appeal that had she been able to attend the hearing, she would 

have presented testimony that she had made more progress on her case plan, including 

obtaining stable housing, employment, and near completion of drug and alcohol 

treatment. Although mother's argument is speculative and relies on facts not in the 

record, we note that even if mother were able to demonstrate compliance with the case 

plan that was unknown to FCCS at the time of the PCC hearing, mother still does not 

explain her failure to make any substantial progress toward reunification with her 

children during the more than two years that the case had been open with FCCS. In re 

A.L., 10th Dist. No. 15AP-1040, 2016-Ohio-3189, ¶ 27 (noting a parent requesting a 

continuance for additional time to demonstrate she has met the objectives of a nearly twoyear old case plan on the same day of the PCC hearing bears a heavy burden to show the 

trial court abuses its discretion in denying the continuance); In re B.G.W. at ¶ 24-28 (no 

abuse of discretion in denying a continuance request on the day of the PCC hearing when 

the parent hopes to use the additional time to show compliance with the case plan 
Nos. 17AP-457 and 17AP-500 9 

requirements as the parent failed to show commitment and willingness to provide a 

permanent home to the children during the pendency of the case). 

Additionally, K.J. stated a desire for adoption and not to return to her mother, and 

the children's guardian ad litem recommended the court grant FCCS's motion for 

permanent custody. The children had been in foster care for approximately two and onehalf years. Thus, even if mother had been able to testify to newly revealed progress on her 

case plan, it is unlikely that such information would have changed the outcome of the 

case. In re B.G.W. at ¶ 27 (no abuse of discretion in granting a continuance where the 

continuance likely would not have changed the outcome of the case); In re A.L. at ¶ 29. 

Having reviewed the record and considered the Unger factors outlined above, we 

conclude the trial court did not abuse its discretion in denying mother's motion for 

continuance. We overrule mother's sole assignment of error. 

 B. Father's Request for Continuance 

On the day of trial, father's counsel joined mother's counsel's request for a 

continuance. Father's counsel requested a continuance for the additional grounds that he 

had reason to believe that father may have been incarcerated in South Carolina. At the 

time of the PCC hearing, father had neither seen his children nor completed any portion 

of his case plan in over one year. On appeal, father asserts through his two assignments of 

error that the trial court erred in denying his continuance request, framing his arguments 

as constitutional violations. 

As previously noted, "[p]arents have a constitutionally-protected fundamental 

interest in the care, custody, and management of their children." In re H.D. at ¶ 10, citing 

Troxel at 65. "[W]hen the state attempts to permanently terminate the relationship 

between a parent and child, the parent ' "must be afforded every procedural and 

substantive protection the law allows." ' " In re R.K., __ Ohio St.3d __ , 2018-Ohio-23, ¶ 

5, quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 

1, 16 (6th Dist.1991). Additionally, "[t]his court has stated that natural parents have a 

constitutionally protected right to be present at a permanent custody hearing." (Internal 

quotations omitted.) In re B.M., 10th Dist. No. 09AP-60, 2009-Ohio-4846, ¶ 13. 

 
Nos. 17AP-457 and 17AP-500 10 

 1. Failure to Transport or Arrange Alternate Means of Participation 

Under his first assignment of error, father argues the trial court erred when it 

failed to ensure his presence at the trial or make alternative arrangements for his 

participation in the trial. However, as FCCS notes, neither father nor counsel for father 

raised in the trial court the issue of whether father could be transported to the hearing or 

whether alternate arrangements could be made to ensure father's participation. "A 

constitutional issue not raised at trial 'need not be heard for the first time on appeal.' " 

State v. Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, ¶ 61, quoting State v. Awan, 

22 Ohio St.3d 120 (1986), syllabus; In re Dailey, 10th Dist. No. 04AP-1346, 2005-Ohio2196, ¶ 25 ("[w]hen a constitutional issue is not raised before the trial court, it will not be 

addressed in the first instance by the court of appeals"). (Internal quotations omitted.) 

Thus, because there was no request made at the trial court to arrange for father's 

transportation to the hearing or to arrange for his participation in some other way, we will 

not address for the first time on appeal whether the trial court violated father's 

constitutional rights in this regard. Thus, we overrule father's first assignment of error. 

 2. Due Process 

In his second assignment of error, father asserts the trial court violated father's due 

process rights when it denied his request for a continuance. "[A]n incarcerated parent 

does not have 'an absolute due process right to attend the trial of a civil action to which he 

is a party.' " In re M.M., 10th Dist. No. 14CA6, 2014-Ohio-5111, ¶ 43, quoting Abuhilwa v. 

Board, 4th Dist. No. 08CA3, 2008-Ohio-5326, ¶ 7. In determining whether the due 

process rights of an incarcerated parent have been infringed, we apply the test set forth by 

the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). In re K.L., 

10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 43. "Under the Mathews test, a court must 

consider and weigh: (1) the private interest affected, (2) the risk of erroneous deprivation 

and the probable value of additional safeguards, and (3) the governmental burden of 

additional safeguards." Id., citing Mathews at 335. 

Father did not attend the PCC hearing. His counsel attributed father's failure to 

attend to the fact that counsel had learned that same morning that father was 

incarcerated in South Carolina. However, the record indicates that by the time of the PCC 

hearing, father had not seen the children in more than one year. Additionally, he had not 
Nos. 17AP-457 and 17AP-500 11 

made any attempts to complete any portion of his case plan in more than one year. 

Counsel for father only learned father was possibly incarcerated when counsel for FCCS 

shared that information with father's counsel. Meanwhile, the children had been in foster 

care since February 2015. Under these circumstances, father's potential loss of rights 

"pale when measured against the best interests of" the children. In re K.L. at ¶ 44 (no 

deprivation of father's due process rights in conducting permanent custody hearing in 

father's absence where incarcerated father of twins had only met the children one time 

and lost contact with the children). 

As in In re K.L., father here also lost contact with the children and demonstrated 

an inability to be physically present in the children's lives, so there was little risk of an 

error in the proceedings as a result of his absence. Id. Father was represented by counsel 

throughout the proceedings, and father does not indicate how the proceedings might have 

changed or how his presence might have changed the outcome. As we noted in the 

resolution of mother's assignment of error, the PCC motion had been pending for more 

than 200 days by the time of the hearing, and there would have been a burden to the 

court, opposing counsel, and especially the children in delaying their need for 

permanency if the court had granted the continuance with no indication that any length of 

delay would ensure father's attendance. See In re M.M. at ¶ 51 (the trial court did not 

deprive parent of her due process right to a fundamental fair permanent custody hearing 

when it proceeded with the permanent custody hearing while she was incarcerated 

because "[c]ounsel meaningfully represented appellant at the hearing, a complete record 

was made, and appellant has failed to show what additional testimony or evidence she 

would have offered that would have changed the outcome of the case"). 

Thus, under these circumstances, we cannot find that the trial court violated 

father's due process rights when it denied his motion for continuance. We overrule 

father's second and final assignment of error. 

IV. Disposition 

Based on the foregoing reasons, the trial court did not abuse its discretion in 

denying mother's motion for a continuance and did not violate father's constitutional 

right to due process in denying his motion for a continuance when it conducted the 

permanent custody hearing in mother's and father's absences. Having overruled mother's 
Nos. 17AP-457 and 17AP-500 12 

sole assignment of error and father's two assignments of error, we affirm the judgment of 

the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile 

Branch. 

Judgment affirmed. 

SADLER and HORTON, JJ., concur.