[Cite as In re A.J.M., 2018-Ohio-4413.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 107219

IN RE: A.J.M. 

A Minor Child

[Appeal By Mother] 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. AD 17915835 

BEFORE: S. Gallagher, J., Stewart, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: November 1, 2018 
ATTORNEY FOR APPELLANT 

Leigh S. Prugh 

Nee Law Firm, L.L.C. 

26032 Detroit Road, Suite 5 

Westlake, Ohio 44145 

ATTORNEYS FOR APPELLEE, CCDCFS

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Anthony R. Beery 

Assistant Prosecuting Attorney 

CCDCFS 

4261 Fulton Parkway 

Cleveland, Ohio 44144 

Also listed: 

A.F., pro se 

c/o Northcoast Behavioral Healthcare 

1502 East 118th Street 

Cleveland, Ohio 44106 

Guardian ad Litem for A.J.M. 

Michael H. Murphy 

20325 Center Ridge Road, Suite 512 

Rocky River, Ohio 44116 

SEAN C. GALLAGHER, J.: 

{¶1} Appellant mother (“Mother”) appeals from the trial court’s decision to award 

permanent custody of her child, A.J.M. (“the child”), to the Cuyahoga County Division of 

Children and Family Services (“CCDCFS”). Upon review, we affirm. 

{¶2} On October 18, 2017, CCDCFS filed a complaint alleging the child, who was a 

newborn, to be a dependent child and seeking permanent custody. The child was committed to 
the predispositional temporary custody of CCDCFS on October 24, 2017. On February 16, 

2018, Mother admitted to the allegations of an amended complaint and the child was adjudicated 

as a dependent child. The matter proceeded to a dispositional hearing on April 4, 2018. On 

April 20, 2018, the trial court issued a decision granting permanent custody of the child to 

CCDCFS. Mother timely filed this appeal. 

{¶3} Mother raises two assignments of error. Under her first assignment of error, 

Mother claims the trial court erred by denying her motion to continue the permanent custody 

hearing. 

{¶4} The decision to grant or deny a continuance is a matter within the sound discretion 

of the trial judge and will not be reversed absent an abuse of discretion. State v. Unger, 67 Ohio 

St.2d 65, 67, 423 N.E.2d 1078 (1981). Although courts must ensure that due process is 

provided in parental termination proceedings, a parent does not have an absolute right to be 

present at a custody hearing and “[a]ny potential prejudice to a party denied a continuance is 

weighed against a trial court’s ‘right to control its own docket and the public’s interest in the 

prompt and efficient dispatch of justice.’” In re J.C., 8th Dist. Cuyahoga No. 106272, 

2018-Ohio-2234, ¶ 12, quoting Unger at 67. 

{¶5} The record in this case reflects that Mother’s counsel requested a continuance at the 

start of the permanent custody hearing. Counsel indicated that Mother was not present and was 

“suffering from a migraine.” After noting pretrials had occurred and the trial date set, the trial 

court denied the request. However, upon counsel’s request, the trial court indicated it would 

revisit the continuance after the state’s case. At the conclusion of the state’s case, the trial court 

indicated that it would grant counsel’s request for a continuance to allow Mother the opportunity 

to testify. After a brief recess, during which counsel called Mother, the request for a 
continuance was withdrawn. The record also reflects that Mother was represented by competent 

counsel who advocated on Mother’s behalf at the permanent custody hearing; that the trial court 

was given no indication that Mother would be available if the hearing were continued; and that a 

hearing would have inconvenienced the witnesses and lawyers who were present. Under the 

circumstances of this case, we find no abuse of discretion by the trial court. The first assignment 

of error is overruled. 

{¶6} Under her second assignment of error, Mother claims the trial court’s findings are 

against the manifest weight of the evidence. 

{¶7} R.C. 2151.414(B) allows a court to grant permanent custody of a child to a children 

services agency if, after a hearing, the court determines, by clear and convincing evidence, that 

permanent custody is in the best interest of the child and that any of the four conditions set forth 

in R.C. 2151.414(B)(1)(a)-(e) applies. 

{¶8} Here, the court determined the condition under R.C. 2151.414(B)(1)(a) applied 

when it determined by clear and convincing evidence that the child has not been in the temporary 

custody of one or more public children services agencies or private child placing agencies for 12 

or more months of a consecutive 22-month period, and the child could not be placed with either 

parent within a reasonable time or should not be placed with either parent. 

{¶9} R.C. 2151.414(E) instructs that 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” 

if the court, upon considering all relevant evidence, “determines, by clear and convincing 

evidence” that one or more of the factors thereunder exist as to each of the child’s parents, 

including the following relevant factors herein: 
(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. * * * 

(2) Chronic mental illness * * * or chemical dependency of the parent that is so 

severe that it makes the parent unable to provide an adequate permanent home for 

the child at the present time and, as anticipated, within one year after the court 

holds the hearing. 

* * * 

(11) The parent has had parental rights involuntarily terminated with respect to a 

sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the 

Revised Code, or under an existing or former law of this state, any other state, or 

the United States that is substantially equivalent to those sections, and the parent 

has failed to provide clear and convincing evidence to prove that, notwithstanding 

the prior termination, the parent can provide a legally secure permanent placement 

and adequate care for the health, welfare, and safety of the child. 

* * * 

(16) Any other factor the court considers relevant. 

{¶10} Here, the trial court determined the condition under R.C. 2151.414(E)(1) to exist 

and also made findings that “Mother has a chronic mental illness” and a “chemical dependency 

problem, and that she “had parental rights terminated involuntarily with respect to a sibling of the 

child.” The trial court also found several factors applied to the alleged father of the child. 

Contrary to Mother’s argument that Mother had her parental rights involuntarily terminated with 

respect to a sibling of the child, that was not the entire basis for the trial court’s determination. 

Rather, it was one of several factors considered by the trial court. Further, there was competent, 

credible evidence in the record to support the trial court’s findings. 

{¶11} The record reflects that in December 2017, Mother had her parental rights 

involuntarily terminated with respect to the sibling of the child. Among other findings in that 
decision, which was filed herein, was that Mother suffered from a chronic mental illness and 

chemical dependency, and that she had failed to comply with services that were offered. In 

awarding emergency temporary custody of the child herein to CCDCFS, the court determined 

that Mother suffers from posttraumatic stress disorder. The social worker involved in this case 

testified that Mother had a history of depression, anxiety, and other things, and that she did not 

complete a mental health assessment until February 2018. 

{¶12} The guardian ad litem for the child indicated in his report that the minor child was 

exposed to methadone and heroin while Mother was pregnant. The social worker testified that 

Mother “has a very long history of heroin addiction.” Mother began but failed to complete 

multiple treatment programs. She had been discharged from Harbor Light for sporadic 

attendance, and she also had a positive drug test at Harbor Light. Further, she failed to 

cooperate with agency requests for drug screens, had yet to engage in mental health services, and 

had not completed parenting classes. Although Mother did engage in some case plan services 

and had appropriate visits with the child, she failed to substantially remedy her substance abuse 

problems and mental health issues. Our review of the record demonstrates that there is 

competent, credible evidence to support the trial court’s finding that the child cannot be placed 

with either parent within a reasonable time or should not be placed with either parent. 

{¶13} In determining the best interest of a child, R.C. 2151.414(D)(1) directs the trial 

court to consider “all relevant factors,” including, but not limited to the following: (1) the 

interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster 

parents, and out-of-home 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; (3) the custodial history of the child; (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; and (5) whether any of the factors set forth in 

R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). A juvenile court does not 

abuse its discretion if its decision regarding the children’s best interest is supported by 

competent, credible evidence. In re R.T., 2016-Ohio-8490, 79 N.E.3d 138, ¶ 57 (8th Dist.). 

{¶14} In conducting a best-interest analysis under R.C. 2151.414(D), “[t]he court must 

consider all of the elements in R.C. 2151.414(D) as well as other relevant factors. There is not 

one element that is given greater weight than the others pursuant to the statute.” In re Schaefer, 

111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. 

{¶15} Here, the trial court’s opinion demonstrates that it considered the relevant factors 

and found by clear and convincing evidence that an order of permanent custody is in the best 

interest of the child, notwithstanding the recommendation of the guardian ad litem that the child 

be placed in temporary custody. The trial court acted within its discretion in choosing not to 

follow the recommendation of the guardian ad litem. The trial court recognized that relevant 

services had been provided, but determined they were not successful because “Mother has a 

mental illness and has not complied with treatment, mother has not provided drug screens, 

mother has been inconsistent in visitation and has not completed the case plan.” The trial 

court’s determination that permanent custody is in the child’s best interest is supported by 

competent, credible evidence in the record. 

{¶16} In light of the above, we conclude that the trial court did not abuse its discretion in 

determining that permanent custody of the child should be awarded to CCDCFS. Appellant’s 

second assignment of error is overruled. 

{¶17} Judgment affirmed. 
It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court, juvenile division, to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

MARY J. BOYLE, J., CONCUR 

.