[Cite as In re C.R.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

IN RE: CASE NO. 13-20-21 C.R.,

DEPENDENT CHILD. OPINION [K.W. - APPELLANT]

Appeal from Seneca County Common Pleas Court Juvenile Division Trial Court No. 21950072

Judgment Affirmed

Date of Decision: August 2, 2021

APPEARANCES:

Derek R. Dailey for Appellant

Rebecca J. Schreiner for Appellee Case No. 13-20-21

MILLER, J.

{¶1} Appellant, Kimberly W., appeals the October 21, 2020 judgment of the

Seneca County Common Pleas Court, Juvenile Division, granting legal custody of

C.R. to Anneliese H. For the reasons that follow, we affirm.

Facts and Procedural History

{¶2} Kimberly W. and James R. are the biological parents of C.R., born

September 2019.1 On October 9, 2019, the Seneca County Department of Job and

Family Services (“SCDJFS”) filed a complaint alleging C.R. was a neglected and

dependent child and requesting the trial court place C.R. in the temporary custody

of Anneliese under the protective supervision of SCDJFS. In its complaint, SCDJFS

alleged Kimberly and James were not properly caring for the child after her birth

and were exhibiting risky behaviors, including indications of recent or current drug

use. That same day, SCDJFS filed a motion for ex parte temporary orders placing

C.R. in the temporary custody of Anneliese under the protective supervision of

SCDJFS, which the trial court granted.

{¶3} On October 10, 2019, the trial court held a probable cause hearing.

Upon the agreement of the parties, the trial court issued temporary orders

maintaining C.R. in the temporary custody of Anneliese under the protective

supervision of SCDJFS. The parties also agreed Kimberly and James would enjoy

1 Although James is a party to the proceeding, the record does not indicate that he filed a notice of appeal. Accordingly, our review focuses primarily on the trial court’s findings as they relate to Kimberly.

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supervised visits with C.R. as directed by SCDJFS and the guardian ad litem

(“GAL”).

{¶4} On November 5, 2019, SCDJFS filed its first case plan, which was

approved by the trial court on November 12, 2019. The case plan required

Kimberly, in part, to complete drug and alcohol and mental health assessments,

participate in counseling to address drug abuse and domestic violence concerns, and

obtain and maintain employment and suitable housing. The case plan also required

Kimberly to sign releases of information and submit to random drug tests conducted

by SCDJFS.

{¶5} An adjudication hearing was scheduled for November 6, 2019;

however, Kimberly and James did not appear for the hearing. At the request of their

attorneys, the hearing was continued to allow Kimberly and James to attend. On

January 6, 2020, the trial court held a combined adjudication and disposition

hearing. At the hearing, Kimberly and James admitted that C.R. was a dependent

child pursuant to R.C. 2151.04(C), and the trial court found C.R. was a dependent

child pursuant to that admission. At disposition, all parties agreed C.R. should

continue in the temporary custody of Anneliese under the protective supervision of

SCDJFS. The parties further recommended that Kimberly and James continue to

exercise supervised visitation as directed by SCDJFS and the GAL. Upon the

motion of SCDJFS, and without objection, the allegations in the complaint alleging

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that C.R. was a neglected child were dismissed by the trial court without prejudice.

On January 23, 2020, the trial court filed its judgment entry of agreed adjudication

and disposition.

{¶6} SCDJFS conducted a semi-annual review on April 6, 2020. In the semi-

annual review, SCDJFS noted that Kimberly was making insufficient progress on

her case plan. Specifically, Kimberly was continuing to test positive for drugs and

was not exercising regular visitation with C.R. As a result of the parents’ poor

progress on the case plan, SCDJFS indicated it intended to pursue legal custody of

C.R. to Anneliese. On June 16, 2020, SCDJFS filed a motion requesting an order

modifying the disposition by placing C.R. in the legal custody of Anneliese.

{¶7} After a continuance due to the growing COVID-19 public health crisis,

the trial court scheduled the review hearing for August 13, 2020. The trial court

also scheduled SCDJFS’s motion for legal custody for a hearing at the same time.

{¶8} At the August 13, 2020 hearing, Kimberly and James requested a

continuance due to James reporting to be ill. The trial court granted their request

and rescheduled the review hearing and the hearing on SCDJFS’s motion for

October 7, 2020. SCDJFS filed another semi-annual review on October 5, 2020, in

which it noted that Kimberly had again made insufficient progress toward the case

plan.

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{¶9} On October 7, 2020, the trial court conducted a full evidentiary review

hearing and a hearing on SCDJFS’s motion for legal custody. In a judgment entry

filed on October 21, 2020, the trial court granted SCDJFS’s motion for legal

custody. The trial court ordered C.R. be placed in the legal custody of Anneliese

and that Kimberly and James continue to have supervised visitation with C.R.

{¶10} On November 20, 2020, Kimberly filed her notice of appeal. She

raises one assignment of error.

Assignment of Error

The trial court erred and abused its discretion in denying Mother’s oral motion for a continuance due to the COVID-19 Pandemic.

{¶11} In her assignment of error, Kimberly contends the trial court erred and

abused its discretion by denying her motion for a continuance of the October 7, 2020

hearing on SCDJFS’s motion for legal custody. Specifically, Kimberly argues that

at time of her request for a continuance, she was trying to further her treatment and

had recently made some progress toward her case plan, including procuring stable

housing. Kimberly contends that “[b]ut for the COVID-19 Pandemic and the

hardships that arose because of it, [she] would have been successful” in furthering

her treatment.

{¶12} As an initial matter, we note that even though Kimberly argues in her

assignment of error and throughout her brief in support that the trial court denied

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her request for a continuance, the record reflects that Kimberly’s trial counsel

requested an extension of the temporary custody orders. At the beginning of the

October 7, 2020 hearing, the parties engaged in the following exchange:

[Kimberly’s trial counsel]: My client would like an extension, Your Honor, and the reason being because of COVID. When the case started, COVID was not in effect, but then as the case proceeded up through March was when COVID, obviously, took over. In March until about June was a gap that she was not eligible or able to fully engage in what she needed to do to try to accomplish the objectives of the case plan. And she admits that she tested positive [for drugs] last time she was in court here, and a lot of it was because she felt like she wasn’t in the spot where she was going to be able to get her child back. But since that period of time, she’s actively involved in services, she’s told me, and that she would like to have one more extension for 90 days2 to try to show the Court that she’s clean and sober and that she deserves to get her child back. Is that correct?

[Kimberly]: Yes.

[Kimberly’s trial counsel]: Okay.

[Trial Court]: Response from the Department today?

[Counsel for SCDJFS]: Yes, Your Honor. Today is our annual review, so for the Court to extend our temporary custody orders for an additional six months, there would need to be substantial progress on the case plan. We would object to any such finding as since, even since our last hearing

2 We note that, during the proceedings, there was a consistent discrepancy between the parties when referencing the amount of additional time Kimberly requested. Although Kimberly’s attorney requested an “extension for 90 days,” the trial court and counsel for SCDJFS referred to the amount of time requested as six months. (Oct. 7, 2020 Tr. at 6-9); (Doc. No. 33). Although this Court is aware of the discrepancy, it is not relevant to our legal analysis and will not be further addressed.

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in August, mom and dad have not made additional progress on the case plan. They’re claiming that they’ve been involved in services, but we’ve been unable to verify that due to their failure to meet with the caseworker to sign releases.

As for the argument about COVID, services through Firelands and Rigel have been available through COVID. Mom and dad have been referred to that multiple times. In fact, at our last hearing, they were both given information as to resources for inpatient and outpatient services, and they’ve not taken advantage of those.

So we would ask that the request for an extension be denied and that we go forward today.

***

[Trial Court]: Okay. Well, the Court does not find the request to be well taken. The Court notes it’s been almost a year since we started. Court’s inclined to allow [SCDJFS] to proceed with their Motion for Legal Custody. And if the Court, in the process of getting evidence, determines that that motion isn’t well taken then, in essence, you get your extension. The Court will extend this case if the Court doesn’t find the Motion for Legal Custody to be well taken. I think I’ll be in a better position after hearing all the evidence as far as what’s going on maybe to reconsider that. But as of right now, based upon the information properly before me, * * * the Court does not find the request to be well taken. The Court denies the request at this time for an extension.

(Oct. 7, 2020 Tr. at 6-9).

{¶13} Further, when Kimberly testified on the witness stand, her trial counsel

inquired why she thought she “deserve[d] an extension.” (Oct. 7, 2020 Tr. at 74).

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In fact, at the hearing, none of the parties used the term “continuance” to describe

the relief Kimberly requested.3 Moreover, the trial court’s judgment entry filed on

October 21, 2020 reflects that Kimberly “made an oral Motion for a six-month

extension to continue to work the Case Plan.” Accordingly, the record indicates

that, despite the references in her assignment of error and throughout her appellate

brief for a motion for a continuance, Kimberly actually requested an extension of

the temporary orders. Nevertheless, we dispose of the assignment of error by

reviewing the criteria for both a continuance and an extension.

{¶14} A temporary custody order terminates one year after the date the child

entered shelter care unless a motion is filed to extend temporary custody. R.C.

2151.353(G). “Although the case can be extended for an additional time, there is

no requirement that the extension must occur and the determination as to whether

the extension * * * is in the best interest of the child is left to the trial court’s

discretion.” In re J.C., 3d Dist. Henry No. 7-20-10,

. R.C.

2151.415 addresses the extension of temporary custody orders once an annual

review is reached in a children’s services proceeding. Pursuant to R.C. 2151.415,

the trial court may grant an extension of up to six months if it determines “the

extension is in the best interest of the child, there has been significant progress on

the case plan of the child, and there is reasonable cause to believe that the child will

3 James’s trial counsel also requested an “extension” of the temporary orders on James’s behalf, which the trial court denied. (Oct. 7, 2020 Tr. at 8-9).

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be reunified with one of the parents or otherwise permanently placed within the

period of extension.” R.C. 2151.415(D)(1). The determination regarding whether

an extension of a temporary custody order is in the best interest of the child is left

to the trial court’s discretion. In re C.K., 5th Dist. Muskingum No. CT2020-0027,

. Accordingly, a trial court’s decision will only be reversed

if it is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore,

(1983). “An abuse of discretion exists if the court’s decision

regarding the child’s best interests is not supported by competent, credible

evidence.” In re D.M., 1st Dist. Hamilton No. C-140648,

.

{¶15} However, even if we frame the arguments in Kimberly’s appellate

brief in terms of the trial court’s denial of her request for an extension, rather than a

request for a continuance, we conclude that the trial court did not err by denying her

request. Initially, we note that in denying Kimberly’s motion, the trial court

reserved the right to reconsider the motion at the conclusion of the hearing if, upon

reviewing the evidence introduced at the hearing, it determined an extension of the

temporary custody order was proper.

{¶16} However, the evidence introduced at the hearing on SCDJFS’s motion

for legal custody indicates that Kimberly had not made significant progress on her

case plan. Specifically, Kimberly’s case plan required her to complete drug and

alcohol and mental health assessments, participate in counseling to address both

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drug abuse and domestic violence concerns, and obtain and maintain employment

as well as suitable housing. Kimberly was also required to sign releases of

information and submit to random drug tests conducted by SCDJFS. With respect

to drug and alcohol treatments, Kimberly argued at the hearing that she was unable

to make progress on her case plan due to drug-treatment programs and services

being unavailable due to the COVID-19 health crisis. Yet, the caseworker testified

the local drug treatment and counseling programs continued to provide services

throughout the pandemic. Additionally, the caseworker testified that she attempted

to assist Kimberly in gaining admission to a rehabilitation facility, but Kimberly

refused treatment. Kimberly testified that despite the apparent lack of drug-

treatment resources available to her during the pandemic, she stopped using drugs

without the assistance of a program. However, throughout the pendency of the case,

Kimberly provided numerous drug screens which were positive for illegal drugs,

including a drug test taken on the day intended to be the final hearing in August,

until it was continued due to James reporting to be sick. Kimberly admitted she had

since relapsed and, at the time of the hearing, she had only abstained from drug use

for several days.

{¶17} The testimony adduced at the hearing also indicated that Kimberly

failed to engage in mental health counseling, including domestic violence

counseling. Further, although Kimberly had housing that the caseworker would

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consider “stable,” the caseworker opted not to review the inside of the residence due

to James’s presence at the residence during the visit and the history of domestic

violence between the parties. Kimberly was also unemployed at the time of the final

hearing. Finally, Kimberly failed to sign releases to allow the caseworker access to

her treatment records. Accordingly, the evidence indicates that Kimberly was not

making significant progress on her case plan.

{¶18} Next, there was no reasonable cause to believe that C.R. would be

reunited with one of her parents in the time period of the extension. As detailed,

Kimberly had failed to make progress on her case plan. At the time of the hearing,

she had used illegal drugs within the previous several days and was not actively

engaged in drug treatment services. Furthermore, at the time of the hearing, the case

plan had been in place for nearly a year, yet Kimberly had consistently failed to

advance in her case plan goals. Additionally, at the time of the final hearing,

Kimberly was not exercising consistent visitation with C.R. Given the lack of

progress on the case plan in the previous year, and Kimberly’s continued drug use

and lack of initiative to engage in drug and mental health treatment, it was not likely

that C.R. would be reunited with Kimberly in the time period of the extension.

Further, the evidence introduced at trial indicated James was also not making

progress on his case plan and likewise would not be reunited with C.R. in the time

period of the extension.

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{¶19} Finally, Kimberly did not make an argument to the trial court that an

extension of the temporary custody orders would be in C.R.’s best interest and our

review of the record does not indicate that an extension of the temporary custody

orders would be in C.R.’s best interest. Rather, the caseworker testified that she

believed it would be in C.R.’s best interest for the trial court to grant Anneliese legal

custody of C.R. Further, the GAL assigned to the case recommended that the trial

court grant legal custody to Anneliese. Accordingly, we do not find the trial court

abused its discretion in denying Kimberly’s motion for an extension of the

temporary orders.

{¶20} Although the record indicates that Kimberly requested the trial court

grant an extension of the temporary orders, Kimberly’s assignment of error and

supporting arguments frame her request as a motion for a continuance. However,

even if we construe Kimberly’s motion as a request for a continuance, the request

was properly denied.

{¶21} “‘Continuances shall be granted only when imperative to secure fair

treatment for the parties.’” In re Distafano, 3d Dist. Seneca No. 13-06-14, 2006-

Ohio-4430, ¶ 11, quoting Juv.R. 23. “‘A decision by the trial court to deny a motion

for continuance is within the sound discretion of the trial court and should not be

reversed absent a showing of abuse of that discretion.’”

quoting In re Miller,

3d Dist. Auglaize No. 2-04-02,

.

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{¶22} In considering a motion for a continuance, a court should consider (1)

the length of the delay requested; (2) whether other continuances have been

requested and granted; (3) any inconvenience to parties, witnesses, opposing

counsel, and the court; (4) whether the requested delay is for a legitimate purpose

or is instead dilatory, purposeful, or contrived; (5) whether the defendant

contributed to the situation that gives rise to the motion for a continuance; and (6)

other relevant factors, depending on the unique facts of a case. State v. Unger,

(1981).

{¶23} At the hearing, Kimberly did not make any argument specific to

whether a continuance should be granted or make any reference to the Unger factors.

However, if Kimberly’s oral motion is treated as a request for a continuance, the

trial court did not abuse its discretion by denying it. Kimberly requested and was

granted two previous continuances, one on November 6, 2019, and the other on

August 13, 2020. (Doc. Nos. 16, 31). Further, granting the motion would have

caused inconvenience to the parties, witnesses, opposing counsel, and the trial court.

Specifically, Kimberly made her oral motion at the beginning of the hearing, at

which time witnesses, opposing counsel, and the trial court were present and

prepared to proceed and would have been inconvenienced by rescheduling the

matter for a later date. Additionally, Kimberly contributed to the situation giving

rise to her request for a continuance. Although Kimberly framed her request as

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seeking more time as a result of the COVID-19 health crises and the perceived

obstacles it created, the testimony at the hearing established that local drug recovery

and mental health resources were offering services throughout the pandemic.

Further, the case plan was established prior to the COVID-19 pandemic, yet

Kimberly failed to work toward her case plan goals at that time. Accordingly,

Kimberly’s lack of diligence in working on her case plan was a contributing factor

in her request for a continuance. Accordingly, we do not find that the trial court

abused its discretion by denying her motion for a continuance.

{¶24} Finally, at the end of her appellate brief, Kimberly summarily states

that the trial court “further abused its discretion by awarding legal custody of [C.R.]

to [Anneliese].” (Appellant’s Brief at 11). However, Kimberly offers no support

for this statement. “App.R. 12(A)(2) provides that an appellate court ‘may disregard

an assignment of error presented for review if the party raising it fails to identify in

the record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).’” State v.

Jackson, 10th Dist. Franklin No. 14AP-670,

, quoting App.R.

12(A)(2). “Additionally, App.R. 16(A)(7) requires that an appellant’s brief include

‘[a]n argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

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which appellant relies.’”

quoting App.R. 16(A)(7). Here, not only did Kimberly

fail to include an argument regarding how the trial court abused its discretion by

awarding legal custody of C.R. to Anneliese, she also failed to provide citations to

the authorities, statutes, and parts of the record that support her argument. Thus, we

need not address her argument that the trial court abused its discretion by awarding

legal custody of C.R. to Anneliese.

{¶25} Consequently, Kimberly’s assignment of error is overruled.

{¶26} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Seneca County

Common Pleas Court, Juvenile Division.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr

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