In Re Weaver, Unpublished Decision (10-27-2006)
In Re Weaver, Unpublished Decision (10-27-2006)
Opinion of the Court
{¶ 2} On February 4, 2005, Appellee Coshocton County Department of Job and Family Services ("JFS") was summoned to the Coshocton County Memorial Hospital following the birth of the minor child that is the subject of this appeal. At the time of the child's birth, the child and mother, Melanie Weaver, tested positive for cocaine. Ms. Weaver refused to identify the child's biological father. However, shortly thereafter, Ms. Weaver identified appellant as the child's biological father, which was subsequently confirmed through DNA testing in March 2004.
{¶ 3} JFS's initial involvement with the minor child commenced under Case No. 20530006. However, the statutory time requirements for the adjudication and disposition in dependency and neglect actions expired before appellant was determined to be the child's biological father. Therefore, JFS filed a second complaint, under Case No. 20630013, on March 14, 2006. In the prayer of the second complaint, JFS requested permanent custody of the minor child.
{¶ 4} The trial court conducted an adjudicatory arraignment on March 23, 2006. Appellant was not represented by counsel at this hearing. The trial court entered a denial on his behalf and appointed counsel to represent him. On April 3, 2006, the trial court filed a judgment entry continuing the temporary custody of the minor child with JFS. On May 3, 2006, the trial court conducted an adjudicatory hearing on the dependency complaint. As a result of the hearing, the trial court found the minor child to be dependent. The trial court immediately proceeded to disposition.
{¶ 5} In a judgment entry of the dispositional hearing dated June 5, 2006, the trial court specifically noted that appellant was not included in the case plan because of his apparent disinterest and lack of follow through for scheduled appointments with Gary Wolfgang, Ph.D. and Coshocton Behavioral Health Choices. Judgment Entry, June 5, 2006, Findings of Fact, at ¶ 6. Accordingly, the trial court terminated appellant's parental rights and granted JFS's complaint for permanent custody.
{¶ 6} Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:
{¶ 7} "I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY TO THE CHILDREN SERVICES AGENCY AS THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.
{¶ 8} "II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN DENYING APPELLANT'S REQUEST FOR AN EXTENSION OF TIME TO ATTEMPT TO REGAIN CUSTODY OF THE CHILD."
{¶ 10} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment.Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. (1978),
{¶ 11} R.C.
{¶ 12} "(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
{¶ 13} "(a) The child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
{¶ 14} "(b) The child is orphaned.
{¶ 15} "(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
{¶ 16} "(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999."
{¶ 17} In the case sub judice, pursuant to R.C.
{¶ 18} These arguments are irrelevant since the trial court granted permanent custody to JFS pursuant to R.C.
{¶ 19} Appellant's First Assignment of Error is overruled.
{¶ 21} Appellant argues the trial court should have granted his request for a continuance of the dispositional hearing because JFS made few attempts to identify a suitable member of his family for placement of his minor daughter. In the judgment entry of the dispositional hearing, the trial stated as follows in denying appellant's request for a continuance:
{¶ 22} "Attorney Mencer advised the Court that Father was willing to go forward with the Adjudicatory Hearing, but requested a postponement of the Dispositional Hearing to allow him more time to work the Case Plan. The record reflects that Counsel for Father had agreed at the time the adjudicatory hearing was scheduled to proceed with the dispositional hearing immediately following the adjudicatory hearing in the event the child was found to be dependent. Further, Father was served with all documents required for the dispositional hearing prior to adjudication. Finally, permanency planning is of utmost importance for this Child and Father has had more than ample time to work the Case Plan had he not absented himself from the Community in the weeks and months proceeding (sic) the May 3, 2006, hearing. It is therefore the Order of the Court that Father's request to postpone disposition be and hereby isDENIED." (Emphasis sic.)
{¶ 23} The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court.State v. Unger (1981),
{¶ 24} Further, JFS gave appellant an opportunity on March 23, 2005, to provide it with the names of relatives with whom the minor child could be placed. Tr. at 19-20. However, appellant refused to provide JFS with any names, addresses or phone numbers of relatives that could be considered for placement. Id. JFS also attempted to contact appellant's mother. Id. at 20. However, the hospital where she was staying refused to allow JFS to speak to her because she was too fragile. Id.
{¶ 25} Finally, it is clear from appellant's testimony, during the adjudication hearing, that even if the trial court had granted his request for a continuance of the dispositional hearing, appellant would not have cooperated with JFS. On cross-examination, appellant testified as follows:
{¶ 26} "Q. But you, when you were given the opportunity to have a relationship with your child, you did nothing, none of the things that J.F.S. asked you to do, did you?
{¶ 27} "A.J.F.S. had no reason to ask me to do those things. The Revised Code of Ohio says, me being the biological father, with proof that I'm the biological father, there is not an assumed right. It is a God-given right that I have custody of my child, permanent custody, a permanent relationship with my child. God gave me that, not the department of Job and Family Services.
{¶ 28} "Q. And from this point on, your position on that hasn't changed, has it?
{¶ 29} "A. No, it hasn't." Tr. at 32-33.
{¶ 30} Based upon the above, we conclude the trial court did not abuse its discretion when it denied appellant's request for a continuance of the dispositional hearing.
{¶ 31} Appellant's Second Assignment of Error is overruled.
{¶ 32} For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Coshocton County, Ohio, is hereby affirmed.
Wise, P.J. Gwin, J., and Farmer, J., concur.
Costs assessed to Appellant.
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