author: WELBAUM, J.

text:
    IN RE: C.M.R.
    No. 27519
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 12, 2018
    MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449, Attorney for Defendant-Appellant
   WELBAUM, J.

{¶ 1} C.M.R. appeals from his adjudication of delinquency in the Montgomery County Court of Common Pleas, Juvenile Division, for an act that, if committed by an adult, would constitute the offense of rape of a person under the age of 13. In support of his appeal, C.M.R. challenges the trial court's decision overruling his motion to suppress statements he made to an investigating detective. C.M.R. also claims that he was denied his Sixth Amendment right to counsel and that his adjudication was not supported by sufficient evidence and was otherwise against the manifest weight of the evidence. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On July 12, 2016, the Warren County Sheriff's Department began to investigate allegations that fourteen-year-old C.M.R. had nine-year-old C.C. perform fellatio on him while the boys were in the woods behind C.C.'s grandfather's home in Waynesville, Ohio. C.M.R. occasionally spent time with C.C.'s family because C.M.R.'s father was in a relationship with C.C.'s mother. In conducting the investigation, Detective Brandi Carter performed a forensic interview with C.C. on July 14, 2016. During the interview, C.C. indicated that there were a few incidents where C.M.R. exposed his genitals and one incident where C.M.R. placed his penis in C.C.'s mouth.

{¶ 3} Following the forensic interview, Detective Carter contacted C.M.R.'s mother by telephone and asked to question C.M.R. regarding the allegations. Although C.M.R.'s mother initially indicated that she was going to get an attorney, she nevertheless called Detective Carter back and scheduled to meet with Carter at the sheriff's office on August 3, 2016. Thereafter, C.M.R. and his mother appeared at the sheriff's office as scheduled and spoke with Detective Carter.

{¶ 4} During the meeting, Detective Carter first spoke with C.M.R.'s mother about the investigation, the allegations, and the fact that C.M.R. could be charged with rape. Detective Carter also advised C.M.R.'s mother that C.M.R. was not obligated to submit to questioning and that she and C.M.R. were free to leave and speak to an attorney. Following this discussion, C.M.R.'s mother permitted Detective Carter to question C.M.R. without an attorney present. During the questioning, C.M.R., who was then 15 years old, admitted to putting his penis in C.C.s' mouth on one occasion while he and C.C. were playing outside.

{¶ 5} After Detective Carter completed her investigation, on August 15, 2016, a complaint was filed against C.M.R. in the Warren County Juvenile Court alleging one count of rape of a person less than 13 years of age in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. C.M.R. thereafter filed a motion to suppress the statements he made to Detective Carter during the August 3, 2016 interview. A hearing on the motion was held on December 5, 2016, during which the State presented the testimony of Detective Carter and the defense presented the testimony of C.M.R.'s mother. After taking the matter under advisement, the trial court overruled C.M.R.'s motion to suppress.

{¶ 6} On January 18, 2017, the case proceeded to trial. At trial, the State presented the testimony of C.C., C.C.'s mother, and Detective Carter. After the State rested its case, C.M.R. moved for an acquittal pursuant to Crim.R. 29 on grounds that the State failed to prove the venue and date of the offense as alleged in the complaint. C.M.R. also alleged the State failed to prove that he engaged in sexual conduct with C.C. Following the parties' arguments, the trial court overruled the Crim.R. 29 motion and adjudicated C.M.R. a delinquent child for the charge of rape alleged in the complaint.

{¶ 7} Given that C.M.R. was a resident of Montgomery County, Ohio, the Warren County Juvenile Court ordered the case be transferred to the Montgomery County Juvenile Court for final disposition. On April 10, 2017, the Montgomery County Juvenile Court held a final disposition hearing and ordered that C.M.R. be committed to the legal custody of the Department of Youth Services for a minimum period of one year and a maximum period not to exceed C.M.R.'s attainment of the age of 21. The court, however, suspended C.M.R.'s commitment on the condition that he abide by the terms of probation, which was ordered to last through March 22, 2018. The trial court also ordered C.M.R. to be monitored by the court for an additional 18 months after his probation term ended.

{¶ 8} C.M.R. now appeals from his adjudication of delinquency, raising three assignments of error for review.

First Assignment of Error

{¶ 9} C.M.R.'s First Assignment of Error is as follows:

[C.M.R.]'S FIFTH AMENDMENT RIGHT AGAINST SELF INCRIMINATION AND FIFTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED BECAUSE HIS STATEMENTS WERE INVOLUNTARILY INDUCED AND WITHOUT ADMINISTRATION OF THE NECESSARY MIRANDA RIGHTS AND WITHOUT THE BENEFIT OF AN ATTORNEY.

{¶ 10} Under his First Assignment of Error, C.M.R. challenges the trial court's decision overruling his motion to suppress the statements he made to Detective Carter during the August, 3, 2016 interview. C.M.R. claims his statements should have been suppressed because he was: (1) not advised of his Miranda rights; (2) denied his right to counsel after his mother allegedly invoked the right on his behalf; and (3) involuntarily induced to speak with Detective Carter.

Standard of Review

{¶ 11} "In ruling on a motion to suppress, the trial court 'assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.' " State v. Prater , 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7 (2d Dist.), quoting State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). "As a result, when we review suppression decisions, 'we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.' " Id. , quoting Retherford .

Miranda Warnings

{¶ 12} As noted above, C.M.R. initially claims that the statements he made to Detective Carter during the August 3, 2016 interview should have been suppressed because Carter failed to administer Miranda warnings in violation of his Fifth Amendment right against self-incrimination. Although the record indicates that Carter did not administer Miranda warnings, we disagree with C.M.R.'s conclusion that this necessitated the suppression of his statements.

{¶ 13} " 'It is well-settled that many constitutional protections enjoyed by adults also apply to juveniles. One such constitutional protection is the privilege against self-incrimination.' " In re R.L. , 2014-Ohio-5065, 23 N.E.3d 298, ¶ 17 (2d Dist.), quoting In re Haubeil , 4th Dist. Ross No. 01CA2631, 2002-Ohio-4095, 2002 WL 1823001, ¶ 9. (Other citation omitted.) The privilege against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution, which provides that no person "shall be compelled in any criminal case to be a witness against himself."

{¶ 14} "In order to ensure that this right is protected, statements resulting from custodial interrogations are admissible only after a showing that the procedural safeguards described in Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed." In re L.G. , 2017-Ohio-2781, 82 N.E.3d 52, ¶ 11 (2d Dist.), citing State v. Earnest , 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, 2015 WL 5642917, ¶ 21. " Miranda requires police to give a suspect certain prescribed warnings before custodial interrogation commences and provides that if the warnings are not given, any statements elicited from the suspect through police interrogation in that circumstance must be suppressed." State v. Petitjean , 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2d Dist.2000). Specifically, "police officers must warn a suspect, prior to questioning, that he or she has a right to remain silent and a right to the presence of an attorney." (Citations omitted.) L.G. at ¶ 11. " 'After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present.' " Id. , quoting Maryland v. Shatzer , 559 U.S. 98, 104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010).

{¶ 15} Police, however, are not required to administer Miranda warnings to every person they question, even if the person being questioned is a suspect. State v. Biros , 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Miranda warnings are required only for custodial interrogations. Id. , citing Mathiason at 494, 97 S.Ct. 711. (Other citation omitted.) Miranda defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda at 444, 86 S.Ct. 1602.

{¶ 16} "An individual is in custody when there has been a formal arrest or a restraint of freedom of movement such that a reasonable man would believe that he is under arrest." State v. Wenzler , 2d Dist. Greene No. 2003-CA-16, 2004-Ohio-1811, 2004 WL 758384, ¶ 15, citing Biros at 440, 678 N.E.2d 891. Accordingly, " 'the ultimate inquiry is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' " Biros at 440, 678 N.E.2d 891, quoting California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting Mathiason at 495, 97 S.Ct. 711. (Other citation omitted.)

{¶ 17} "The subjective views of the interviewing officer and the suspect are immaterial to the determination of whether a custodial interrogation was conducted." (Citations omitted.) L.G. , 2017-Ohio-2781, 82 N.E.3d 52 at ¶ 13. "The inquiry whether a person is subject to custodial interrogation is an objective question, focusing on how a reasonable person in the suspect's position would have understood the situation." (Citations omitted.) Id.

{¶ 18} The United States Supreme Court has recognized that, "[i]n some circumstances, a child's age 'would have affected how a reasonable person' in the suspect's position 'would perceive his or her freedom to leave.' " J.D.B. v. North Carolina , 564 U.S. 261, 270, 271-272, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), quoting Stansbury v. California , 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The Court held that, "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test." Id. at 277, 131 S.Ct. 2394.

{¶ 19} In this case, we do not find that Detective Carter's interview with C.M.R. amounted to a custodial interrogation. Although the interview occurred at the sheriff's office, at no point did Detective Carter order C.M.R. or his mother to appear there for the interview. Rather, C.M.R.'s mother voluntarily brought C.M.R. to the sheriff's office after she discussed the matter over the phone with Detective Carter and voluntarily scheduled a time to meet.

{¶ 20} Furthermore, on the day of the interview, Detective Carter told C.M.R. and his mother that C.M.R. did not have to talk to her and that C.M.R. was free to leave and to speak with an attorney. Detective Carter left the door to the interview room open during the entire interview and advised C.M.R. and his mother that the outer door to the interview room was unlocked so that they could leave at any time. Detective Carter also told C.M.R. that there were no charges filed against him and that he would be going home after the interview. While C.M.R.'s mother left in the middle of the interview, she did so voluntarily to make C.M.R. more comfortable and she waited outside the interview room. Moreover, the interview lasted only ten minutes and C.M.R. was never handcuffed or constrained in any way.

{¶ 21} Based on these circumstances, a reasonable 15-year-old in C.M.R.'s position would not have believed he was under arrest or otherwise deprived of his freedom so as to amount to a custodial interrogation. Given that there was no custodial interrogation, Miranda warnings were not required. Accordingly, Detective Carter's failure to administer Miranda warnings does not warrant suppression of the statements C.M.R. made during the August 3, 2016 interview.

Fifth Amendment Right to Counsel

{¶ 22} C.M.R. next claims that his statements should have been suppressed because Detective Carter continued to interview him even though his mother allegedly invoked his Fifth Amendment right to counsel. This argument fails for multiple reasons.

{¶ 23} First, the Fifth Amendment right to counsel only attaches when the defendant is subjected to a custodial interrogation. State v. Guysinger , 4th Dist. Ross No. 11CA3251, 2012-Ohio-4169, 2012 WL 4021058, ¶ 13, citing State v. Boyd , 4th Dist. Adams No. 02CA744, 2003-Ohio-983, 2003 WL 753877, ¶ 7 ("In a non-custodial interrogation, law enforcement officers do not need to give Miranda warnings and no right to counsel attaches."). A defendant has no right to counsel under the Fifth Amendment if he or she is not in custody.

State v. Spitler , 75 Ohio App.3d 341, 353, 599 N.E.2d 408 (10th Dist.1991), citing Arizona v. Roberson , 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) and State v. Wiles , 59 Ohio St.3d 71, 83, 571 N.E.2d 97 (1991).

{¶ 24} As previously discussed, we have already determined that C.M.R. was not in custody during the interview with Detective Carter and was not subjected to a custodial interrogation. As a result, C.M.R.'s Fifth Amendment right to counsel did not attach during the August 3, 2016 interview in question.

{¶ 25} That said, even if C.M.R.'s Fifth Amendment right to counsel had attached during the interview, the right is not violated unless a defendant "unambiguously invoked his right to counsel." State v. Williams , 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 32, citing Davis v. United States , 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

{¶ 26} In State v. Baker , 2d Dist. Champaign No. 2004 CA 19, 2005-Ohio-46, 2005 WL 37868, we explained that:

A request for an attorney must be clear and unambiguous such that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to counsel. * * * The Supreme Court of Ohio has held that the statement "I think I need a lawyer" was not an unequivocal assertion of the right to counsel. State v. Henness , [79 Ohio St.3d 53, 63, 679 N.E.2d 686 (1997) ]. "Don't I supposed to have a lawyer present" has also been found to be ambiguous. State v. Brown , [100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 19].
"If a suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." [ Davis at 461-62, 114 S.Ct. 2350 ; Brown at ¶ 18 ]. Moreover, the officers have no obligation to ask clarifying questions to ascertain if the suspect is attempting to invoke his right to counsel. Davis , supra .

Baker at ¶ 33-34.

{¶ 27} In this case, there is nothing in the record indicating that C.M.R. or his mother unambiguously invoked the right to counsel. Immediately prior to C.M.R.'s interview, C.M.R.'s mother met with Detective Carter and expressed her uncertainty as to whether she should retain an attorney before allowing Carter to question her son. Although Detective Carter told C.M.R.'s mother multiple times that they were free to leave and speak with an attorney, C.M.R.'s mother ultimately decided to allow Detective Carter to interview C.M.R. without an attorney present. Based on the recorded conversation between Detective Carter and C.M.R.'s mother, a reasonable officer in Carter's position would not have understood the conversation as invoking C.M.R.'s right to counsel.

{¶ 28} Because C.M.R.'s Fifth Amendment right to counsel did not attach and because there was no unambiguous invocation of said right, the statements C.M.R. made during the interview with Detective Carter are not suppressible.

Voluntariness of Statements

{¶ 29} C.M.R. also argues that his statements to Detective Carter should have been suppressed because both his statements and his mother's permission for him to speak with Detective Carter were involuntarily induced by coercive police conduct. We once again disagree with C.M.R.'s claim.

{¶ 30} "Regardless of whether Miranda warnings were required and given, a defendant's statement may have been given involuntarily and thus be subject to exclusion." State v. Lovato , 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, 2014 WL 2475593, ¶ 30, citing State v. Kelly , 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, 2005 WL 182900, ¶ 11. "A confession is voluntary 'absent evidence that [the defendant's] will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct.' " State v. Banks-Harvey , 2d Dist. Montgomery No. 26786, 2016-Ohio-4715, 2016 WL 3573127, ¶ 8, quoting State v. Jackson , 2d Dist. Greene No. 02CA0001, 2002-Ohio-4680, 2002 WL 31002619, ¶ 20. (Other citation omitted.)

{¶ 31} " '[S]pecial caution' should be given to a review of a juvenile's pretrial statement, admission or confession." In re R.L. , 2014-Ohio-5065, 23 N.E.3d 298 at ¶ 24, quoting In re N.J.M. , 12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526, 2010 WL 4621877, ¶ 19. (Other citations omitted.) "Care must be taken to make sure that the juvenile's statement was not the product of coercion or suggestion and that it was not elicited due to the juvenile's ignorance of his rights or as the result of adolescent fantasy, fright, or despair." (Citations omitted.) Id. at ¶ 25.

{¶ 32} "In deciding whether a juvenile's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; and the existence of physical deprivation or inducement." In re Watson , 47 Ohio St.3d 86, 548 N.E.2d 210 (1989), paragraph one of the syllabus, citing State v. Edwards , 49 Ohio St.2d 31, 40-41, 358 N.E.2d 1051 (1976), vacated on other grounds , Edwards v. Ohio , 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

{¶ 33} "[A]ppropriate additional factors in considering the totality-of-the-circumstances are whether the juvenile, either before or during the questioning, had the opportunity to consult with an adult interested in his welfare; whether the police prevented the juvenile from consulting with a concerned adult; whether the police frustrated an adult's attempt to confer with the juvenile, and the presence of police trickery and deceit." (Citations omitted.) In re R.L. at ¶ 25. However, "no one factor is per se coercive without reference to its factual context; coercion can only be defined relative to the characteristics of the individual." (Citations omitted.) Id.

{¶ 34} Here, Detective Carter questioned C.M.R. for only ten minutes. Prior to the questioning, Detective Carter told C.M.R. that he did not have to talk to her, that he was free to leave the interview at any time, and that he was free to speak with an attorney before being questioned. C.M.R.'s mother was present during the first half of the interview, but chose to leave after C.M.R. indicated that he would be more comfortable speaking with only Detective Carter about the incident in question. The door to the interview room was left open, the outer door was unlocked at all times, and C.M.R.'s mother waited outside the interview room. Detective Cater never prevented C.M.R. from consulting with his mother nor made any promises, threats, or inducements to get C.M.R. to speak with her. Moreover, at the time of the interview, C.M.R. was not a small child, but a 15-year-old young man.

{¶ 35} In an effort to establish that C.M.R. had cognitive limitations that prevented him from understanding Detective Carter's questions, C.M.R. submitted medical records showing that he was diagnosed with Attention Deficit Hyperactivity Disorder. C.M.R. also submitted school records showing that he was taking Individualized Education Program classes. These records, however, do not establish that C.M.R. was unable to understand and participate in the interview performed by Detective Carter. Rather, the records indicate that C.M.R.'s ability to focus had improved since 2015, and that he struggles with math and reading skills, which he was not required to use during the interview in question. Moreover, the video recording of C.M.R.'s interview with Detective Carter does not demonstrate that C.M.R. had any difficulty understanding or answering Detective Carter's questions. Rather, C.M.R. was alert, attentive, and responsive during the entire interview. In addition, at no point did C.M.R.'s mother advise Detective Carter that C.M.R. had cognitive limitations or express any concern with C.M.R.'s ability to answer Detective Carter's questions. Rather, C.M.R.'s mother was comfortable leaving the interview room and having Detective Carter question C.M.R. without her present.

{¶ 36} While C.M.R.'s mother testified that C.M.R. had no prior experience with the criminal justice system, this single factor does not render the interview coercive in nature. Under the facts of this case, Detective Carter did not act coercively, employ deprivation or inducement, play on C.M.R.'s fears or inexperience, or prevent the involvement of his mother while he was being questioned. Therefore, even though C.M.R. had no prior experience with law enforcement or the criminal justice system, we find no basis to conclude that the trial court erred in finding that his statements were voluntarily made and not suppressible.

{¶ 37} Although irrelevant to C.M.R.'s statements, we also note that there is no indication that the permission given by C.M.R.'s mother to allow Detective Carter to question C.M.R was involuntarily induced. The evidence establishes that C.M.R.'s mother was well informed about her son's situation before allowing him to be questioned. Detective Carter spoke with C.M.R.'s mother for approximately 35 minutes about the investigation and advised C.M.R.'s mother that the investigation would eventually be submitted to the prosecutor's office and that C.M.R. could be charged with rape as a juvenile. In addition, Detective Carter advised C.M.R's mother multiple times that she was free to speak with an attorney and to decline Carter's request to question her son. Furthermore, the video recording of their discussion establishes that Detective Carter did not use any coercive, manipulative tactics to induce C.M.R.'s mother to grant Carter permission to question her son. Therefore, C.M.R.'s claim to the contrary lacks merit.

{¶ 38} For all the foregoing reasons, the trial court did not err in overruling C.M.R.'s motion to suppress the statements he made to Detective Carter during the August 3, 2016 interview. Accordingly, C.M.R.'s First Assignment of error is overruled.

Second Assignment of Error

{¶ 39} C.M.R.'s Second Assignment of Error is as follows:

[C.M.R.]'S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED.

{¶ 40} Under his Second Assignment of Error, C.M.R. contends that his Sixth Amendment right to counsel was violated when Detective Carter interviewed him without an attorney present.

{¶ 41} The Supreme Court of Ohio has "recognized that the right to counsel 'flows to the juvenile through the Due Process Clause of the Fourteenth Amendment, not the Sixth Amendment.' " State v. Bode , 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 15, quoting In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 79. (Other citation omitted.) "Due process requires that a juvenile facing commitment have the right to counsel at every stage of the proceedings." In re B.T. , 2d Dist. Clark No. 2009 CA 123, 2010-Ohio-2829, 2010 WL 2487839, ¶ 13, citing In re C.S. at ¶ 78.

{¶ 42} "[T]he General Assembly acknowledged the importance of counsel in juvenile proceedings by codifying a juvenile's constitutional right to appointed counsel through R.C. 2151.352, thus providing 'a statutory right to appointed counsel that goes beyond constitutional requirements.' " Bode at ¶ 15, quoting In re C.S. at ¶ 83. R.C. 2151.352 provides, in relevant part, that: "A child, the child's parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152 of the Revised Code."

{¶ 43} "The term 'proceedings' as used in R.C. 2151.352 means court proceedings, and in that context, a child is statutorily entitled to representation by legal counsel upon the filing of a complaint in juvenile court or upon initial appearance in the juvenile court." In re M.W. , 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 27. "Thus, the right of a juvenile to counsel pursuant to R.C. 2151.352 attaches when the jurisdiction of a juvenile court is properly invoked." Id. "[A]n interrogation that occurs prior to the filing of a complaint alleging delinquency or prior to an appearance in juvenile court is not a proceeding that falls within the scope of R.C. Chapter 2151." Id. at ¶ 23.

{¶ 44} In this case, the record is clear that at the time of C.M.R.'s interview with Detective Carter, no complaint had been filed against C.M.R. and C.M.R. had not made an appearance in juvenile court. Accordingly, C.M.R.'s statutory and constitutional right to counsel had not yet attached, rendering his Second Assignment of Error meritless.

{¶ 45} C.M.R.'s Second Assignment of Error is overruled.

Third Assignment of Error

{¶ 46} C.M.R.'s Third Assignment of Error is as follows:

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN [C.M.R.]'S [ADJUDICATION] FOR RAPE.

{¶ 47} Under his Third Assignment of Error, C.M.R. contends that his juvenile adjudication for rape was not supported by sufficient evidence and was otherwise against the manifest weight of the evidence.

{¶ 48} When considering whether a juvenile's adjudication is supported by sufficient evidence or is against the manifest weight of the evidence, this court applies the same standard of review that is applied in adult criminal cases. In re C.M. , 12th Dist. Butler No. CA2003-03-063, 2004-Ohio-1927, 2004 WL 829937, ¶ 10, citing In re Washington , 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998) ; In re L.W. , 5th Dist. Muskingum No. CT2014-0033, 2015-Ohio-267, 2015 WL 329478, ¶ 22.

{¶ 49} "A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, 2009 WL 282079, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt." (Citations omitted.) State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). "The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact." (Citations omitted.) Id.

{¶ 50} In contrast, "[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." (Citation omitted.) Wilson at ¶ 12. When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence." State v. Adams , 2d Dist. Greene Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, 2014 WL 3887215, ¶ 24, citing Wilson at ¶ 14.

{¶ 51} " 'Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.' " State v. Flores-Lopez , 2d Dist. Montgomery No. 26964, 2016-Ohio-7687, 2016 WL 6671428, ¶ 26, quoting State v. McCrary , 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 11. (Other citations omitted.) "Consequently, 'a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.' " Id ., quoting State v. Braxton , 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, 2005 WL 1055819, ¶ 15.

{¶ 52} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). Accordingly, "[t]he credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve." State v. Hammad , 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, 2014 WL 4176077, ¶ 13, citing State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). "This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the factfinder lost its way." (Citation omitted.) State v. Bradley , 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).

{¶ 53} In this case, C.M.R. was adjudicated a juvenile delinquent for the commission of an act that, if committed by an adult, would have been the offense of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. R.C. 2907.02(A)(1)(b) prohibits a person from engaging in non-spousal "sexual conduct" with another when "[t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." R.C. 2907.01(A) defines "sexual conduct" to include "fellatio * * * between persons regardless of sex[.]" The act of " '[f]ellatio is committed by touching the male sex organ with any part of the mouth.' " State v. Hudson , 2d Dist. Montgomery No. 22793, 2009-Ohio-2776, 2009 WL 1653012, ¶ 42, citing State v. Long , 64 Ohio App.3d 615, 618, 582 N.E.2d 626 (9th Dist.1989).

{¶ 54} The victim, C.C., who was ten years old at the time of trial, testified that C.M.R., who was then fifteen years old, put his penis in C.C's mouth while the boys were playing in the woods behind C.C.'s grandfather's home in Waynesville, Ohio. In addition, Detective Carter testified that during her August 3, 2016 interview with C.M.R, C.M.R. admitted to putting his penis in C.C.'s mouth on one occasion because he was curious what it would feel like.

{¶ 55} C.M.R. does not take issue with the aforementioned testimony or challenge the State's evidence supporting the material elements of rape, i.e., sexual conduct with a non-spouse under the age of thirteen. Rather, C.M.R. contends his adjudication for rape is not supported by sufficient evidence and is against the manifest weight of the evidence because the State failed to establish the venue and date of the rape offense as alleged in the complaint.

{¶ 56} "Although venue is not a material element of a charged offense, the prosecution must nevertheless prove it." State v. Richardson , 2016-Ohio-8081, 75 N.E.3d 831, ¶ 25 (2d Dist.), citing State v. Draggo , 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). "However, venue need not be proved in express terms, so long as it is established by all the facts and circumstances in the case." Id. , citing State v. Gribble , 24 Ohio St.2d 85, 263 N.E.2d 904 (1970), paragraph two of the syllabus. "Venue is proper in the county where the offense or any element of the offense was committed." Id. , citing R.C. 2901.12(A). "Trial courts have broad discretion to determine the facts that would establish venue." Id. , citing State v. Jackson , 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 144.

{¶ 57} The complaint filed against C.M.R. alleged that the offense occurred in Warren County, Ohio. At trial, C.C. specifically testified that the incident with C.M.R. occurred in the woods behind his grandfather's home in Waynesville, Ohio. C.C.'s mother also testified that C.C.'s grandfather lived in Waynesville, Ohio. Detective Carter further testified that C.M.R. admitted the incident in question took place at C.C.'s grandfather's home, which Carter specified was in "the Village of Waynesville, Warren County, Ohio." Trial Trans. (Jan. 18, 2017), p. 64-65. All the foregoing testimony indicates that the sexual conduct at issue took place in Warren County, Ohio. Accordingly, the State sufficiently established venue in Warren County and the weight of the evidence supports such a finding.

{¶ 58} As for the date of the rape offense, " '[o]rdinarily, precise times and dates are not essential elements of offenses.' " State v. Lackey , 2015-Ohio-5492, 55 N.E.3d 613, ¶ 65 (2d Dist.), quoting State v. Sellards , 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). " 'Proof of the offense on or about the alleged date is sufficient to support a conviction even where evidence as to the exact date of the offense is in conflict.' " Richardson at ¶ 22, quoting State v. S.S. , 10th Dist. Franklin No. 13AP-1060, 2014-Ohio-5352, 2014 WL 6851969, ¶ 39. (Other citations omitted.) " 'The state's only responsibility is to present proof that the offenses alleged in the indictment occurred reasonably within the time frame alleged.' " Id. " 'The exact date is not essential to the validity of the conviction and the failure to prove that is of no consequence.' " Id.

{¶ 59} The complaint filed against C.M.R. alleged that the rape offense occurred on or near November 25, 2015. At trial, C.C. initially testified that the incident with C.M.R. happened in 2014 or 2015. However, C.C. later clarified that he was in the third grade when the incident happened and noted that his third grade school year took place during 2015 and 2016. C.C. thereafter confirmed the incident with C.M.R. occurred in 2015. He also testified that the incident occurred when there were leaves on the ground and in the trees and that the temperature was cold enough to wear "a hoodie or something." Trial Trans. (Jan. 18, 2017), p. 47. However, C.C. also testified that the incident occurred after Christmas and a couple weeks after Valentine's Day. C.C. further testified that the incident might have occurred during the spring, and then associated spring with the month of February.

{¶ 60} C.C.'s mother testified that the last time C.C. and C.M.R. were together at her father's home in Waynesville was during the last two weekends of November 2015. After that, C.C.'s mother testified the boys were together only one other time when they celebrated Christmas in Kentucky with the family of C.M.R.'s father. She further testified that C.C. told her about the incident with C.M.R. in April 2016, and that in May 2016, C.M.R. sent her a text message apologizing for his actions. Detective Carter also testified that during her August 3, 2016 interview with C.M.R., C.M.R. told her that he was not sure of the exact timeframe of the incident with C.C., but that he believed it could have occurred around Thanksgiving.

{¶ 61} Although there was some conflicting testimony provided by C.C., who again was only ten years old at the time of trial, when considering all the testimony and reasonable inferences, the trial court as finder of fact could have reasonably concluded that the incident took place sometime near the timeframe alleged in the complaint. In other words, we do not find that the trial court created a manifest miscarriage of justice in finding that the rape offense occurred on or near November 25, 2015. Accordingly, such a finding is not against the manifest weight of the evidence.

{¶ 62} Since it is not patently apparent that the trial court lost its way in finding that the offense occurred in Warren County, Ohio, on or near November 25, 2015, the trial court's delinquency adjudication is not against the manifest weight of the evidence. The trial court's adjudication is also necessarily supported by sufficient evidence, as a rational trier of fact could find that the venue, timeframe, and the essential elements of rape were proven beyond a reasonable doubt.

{¶ 63} C.M.R.'s Third Assignment of Error is overruled.

Conclusion

{¶ 64} Having overruled all three assignments of error raised by C.M.R., the judgment of the trial court is affirmed.

DONOVAN, J. and FROELICH, J., concur.

      R.C. 2151.271 provides, in relevant part, that "if the child resides in a county of the state and the proceeding is commenced in a juvenile court of another county, that court, on its own motion or a motion of a party, may transfer the proceeding to the county of the child's residence * * * after the adjudicatory, or dispositional hearing, for such further proceeding as required. The court of the child's residence shall then proceed as if the original complaint had been filed in that court."


source: Caselaw Access Project

author: LUPER SCHUSTER, J.

license: Public Domain

text:
    In the MATTER OF: [K.J.], et al.,
    [K.B., Appellant].
    In the Matter of: [K.J.], et al.,
    [C.J., Appellant].
    No. 17AP-457 No. 17AP-500
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 6, 2018
    On brief: William T. Cramer, Westerville, for K.J. Argued: William T. Cramer.
    On brief: Robert J. McClaren, Kenton, for Franklin County Children Services. Argued: Robert J. McClaren.
    On brief: Alex J. Pomerants, Columbus, for appellant K.B. Argued: Alex J. Pomerants.
    On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, Columbus, for appellant C.J. Argued: Timothy E. Pierce.
    On brief: Daniel W. Sullenberger, Guardian ad Litem. Argued: Daniel W. Sullenberger.
    DECISION
   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 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 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 Father-Appellant 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 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, 2014 WL 286001, ¶ 10, citing Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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, 556 N.E.2d 1169 (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, 391 N.E.2d 1034 (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-Ohio-3658, 2007 WL 2052002, ¶ 8, citing In re Harmon , 4th Dist. No. 00 CA 2694, 2000 WL 1424829 (Sept. 25, 2000); In re Wise , 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (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, 2016 WL 3405753, ¶ 52, quoting In re J.T. , 10th Dist. No. 11AP-1056, 2012-Ohio-2818, 2012 WL 2367541, ¶ 9. On appeal, we will not reverse a trial 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, 2005 WL 3416146, ¶ 4, citing In re Andy-Jones , 10th Dist. No. 03AP-1167, 2004-Ohio-3312, 2004 WL 1405319, ¶ 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, 2009 WL 1830516, ¶ 26, citing In re B.G.W. , 10th Dist. No. 08AP-181, 2008-Ohio-3693, 2008 WL 2854532, ¶ 23. An abuse of discretion connotes a decision that was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (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, 84 S.Ct. 841, 11 L.Ed.2d 921 (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, 2010 WL 1408317, ¶ 24 ; In re M.K. , 10th Dist. No. 09AP-1141, 2010-Ohio-2194, 2010 WL 1987522, ¶ 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, 423 N.E.2d 1078 (1981) ; In re J.B. at ¶ 26.

A. Mother's Request for a Continuance

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 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, 2011 WL 553173, ¶ 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, 2015 WL 5703586, ¶ 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, 2016 WL 3019033, ¶ 27 (noting a parent requesting a continuance for additional time to demonstrate she has met the objectives of a nearly two-year 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 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 one-half 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, 120 S.Ct. 2054. "[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. , 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 5, quoting In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith , 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (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, 2009 WL 2940171, ¶ 13.

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, 2009 WL 4861413, ¶ 61, quoting State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus; In re Dailey , 10th Dist. No. 04AP-1346, 2005-Ohio-2196, 2005 WL 1055783, ¶ 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, 2014 WL 6468945, ¶ 43, quoting Abuhilwa v. Board , 4th Dist. No. 08CA3, 2008-Ohio-5326, 2008 WL 4561209, ¶ 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, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In re K.L. , 10th Dist. No. 13AP-218, 2013-Ohio-3499, 2013 WL 4055850, ¶ 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, 96 S.Ct. 893.

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 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 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.