In re M.G. , 2022 Ohio 1077 ( 2022 )

[Cite as In re M.G., 2022-Ohio-1077.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE: M.G. :
: No. 111144
A Minor Child :
:
[Appeal by Ma.G., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-19-901850
Appearances:
Cullen Sweeney, Cuyahoga County Public Defender, and
Britta Barthol, Assistant Public Defender, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, J.:
Appellant-father, Ma.G. (“Father”), appeals the juvenile court’s decision
terminating his parental rights and granting permanent custody of his minor child
to the Cuyahoga County Division of Children and Family Services (“CCDCFS” or
“agency”). He raises the following assignment of error for review:
The trial court abused its discretion when it awarded permanent
custody to CCFCFS as the decision is against the weight of the evidence
and is not supported by clear and convincing evidence.
After careful review of the record and relevant case law, we affirm the
juvenile court’s judgment.
I. Procedural and Factual History
Father and A.B. (“Mother”) are the biological parents of the minor
child, M.G. (d.o.b. 02/06/2019).
On February 13, 2019, CCDCFS filed a complaint alleging that M.G. was
an abused and dependent child based on the following relevant particulars:
1. Mother used opiates and cocaine during her pregnancy with the
child. The child has remained hospitalized since birth due to suffering
from withdrawal symptoms.
2. Mother has a substance abuse disorder related to opiates and
cocaine which prevents her from providing a safe home for the child.
Mother has participated in substance abuse treatment in the past but
has failed to maintain her sobriety.
3. Mother does not have stable housing in which to provide shelter for
the child.
4. Alleged father, [Ma.G.], has repeatedly been physically abusive to
Mother. Mother continues to maintain a relationship with the alleged
father despite knowing his propensity for violence.
5. Mother and [Ma.G.] have an older child who was adjudicated abused
and neglected, due in part to Mother’s substance abuse and domestic
abuse violence between the parents.
6. [Ma.G.] has an anger management problem which prevents him
from providing a safe home for the child.
7. [Ma.G.] has pending charges for aggravated vehicular homicide,
having weapons while under disability, and aggravated vehicular
assault.
8. On November 27, 2017, [Ma.G.] was convicted of trafficking in
heroin and trafficking in cocaine.
9. [Ma.G.] has not yet established paternity.1
On February 26, 2019, the child was committed to the predispositional
temporary custody of CCDCFS. On April 17, 2019, the court determined that the
allegations of the amended complaint were proven by clear and convincing evidence.
Accordingly, M.G. was adjudicated as an abused and dependent child.
A dispositional hearing was held on June 19, 2019. At the conclusion
of the hearing, the magistrate committed M.G. to the temporary custody of CCDCFS,
stating, in relevant part:
The court finds that the child’s continued residence in or return to the
home of [Mother], would be contrary to the child’s best interests.
The court finds that [CCDCFS] has made reasonable efforts to prevent
the removal of the child, to eliminate the continued removal of the child
from her home, or to make it possible for the child to return home.
These efforts are: substance abuse assessment and treatment as
recommended, mental health services, assistance in finding adequate
housing and domestic violence classes.
The magistrate’s decision was affirmed, approved, and adopted by the juvenile court
on July 9, 2019.
On January 27, 2020, the agency filed a motion to extend temporary
custody for a period of six months based on the progress Mother was making
towards reunification. However, on May 12, 2020, CCDCFS withdrew its motion to
1 The complaint was amended prior to the adjudication hearing. The allegations
levied against Father, however, were substantially consistent with the allegations posed
in the original complaint.
extend temporary custody and moved the court to modify the order of temporary
custody to an order of permanent custody. The motion was supported by the
affidavit of CCDCFS social worker, Melanie Green (“Green”), who averred, in
pertinent part:
A case plan was filed with the juvenile court and approved which
required that Mother complete a drug and alcohol assessment and
follow any treatment recommendations. Additionally, the case plan
required Mother complete domestic violence counseling and obtain
appropriate housing.
Mother lacks appropriate housing and lives with an active drug user.
Although Mother has engaged in substance abuse services she tested
positive for cocaine in January 2020. Mother has refused to complete
random drug screens as requested by the agency.
Mother has not visited with the child since the beginning of February
2020.
The case plan required that Father complete a drug and alcohol
assessment and follow any treatment recommendations. Additionally,
the case plan required that Father complete domestic violence
counseling, obtain appropriate housing, and establish paternity.
Father established paternity but has not participated in other case-plan
services. He is currently incarcerated and his stated release date is
January 2023.
On December 4, 2020, the child’s paternal grandmother, S.M., filed a
motion to intervene and a motion for legal custody. S.M. attached a signed
Statement of Understanding to her motion for legal custody, expressing that she was
ready, willing, and able to assume legal responsibility for the care and supervision
of M.G.
On February 3, 2021, the trial court denied S.M.’s motion to intervene,
finding “[S.M.] has not stood in loco parentis to her grandchild, nor exercised
significant parental control over or assumed parental duties for the benefit of her
grandchild.”
On March 29, 2021, Father filed a motion for legal custody in favor of
paternal grandmother pursuant to R.C. 2151.353(A)(3). Father alleged that legal
custody in favor of S.M. was in the child’s best interests and was the least restrictive
alternative to permanent custody.
On November 9, 2021, the matter proceeded to a hearing on the
outstanding motions. At the hearing, Green outlined the parents’ history with the
agency and stated that she was originally assigned to the case in July 2017, during
the custody proceedings involving M.G.’s older sibling, A.G. Green testified that
once A.G. was placed in the legal custody of his paternal aunt, R.M., the agency
continued to work with Mother to address the issues that caused A.G. to be removed
from her care. At the time of M.G.’s birth, the agency continued to have ongoing
concerns with Mother’s housing situation and her sobriety. Accordingly, M.G. was
committed to the agency’s emergency temporary custody the day she left the
hospital. She has continuously remained in the care of a licensed foster home since
February 26, 2019. M.G., who was two-years old at the time of trial, was fully
integrated into her foster family. Green testified that M.G. referred to her foster
parents as “Mommy” and “Daddy,” and was bonded with her foster parents’ adopted
child. (Tr. 40.) The foster parents were interested in adoption and were open to
“maintaining family bonds with all appropriate family members.” (Tr. 41.)
Once M.G. was removed from the parents’ care, a case plan for
reunification was developed to assist Mother and Father in addressing the issues
that led to the child’s removal. Green testified that Mother failed to comply with her
case plan objectives, including Mother’s obligation to complete services for
substance abuse, domestic violence, and housing. Specifically, Mother failed to
attend services for domestic abuse counseling and continued to test positive for
“high levels of cocaine” between December 2, 2020, and January 12, 2021. Mother
had not submitted to a drug screen since February 2021. In addition, Green testified
that she was unaware of Mother’s current housing situation and had not spoken to
Mother in person since May 2021. Given Mother’s lack of communication with the
agency, Green stated that she did not know where Mother was currently living, did
not know whether she was working, and did not know whether she was sober.
With respect to Father, Green testified that his case plan included
services to address issues with substance abuse, domestic violence, and stable
housing. Green stated Father is currently serving a four-year prison sentence and
has been incarcerated since July 2019. Green testified that prior to his incarceration,
Father had the opportunity to work towards reunification, but “refused to
participate in the case plan services.” (Tr. 21.)
Green confirmed that CCDCFS attempted to identify a relative for
placement following M.G.’s removal, but was unsuccessful because identified
relatives were either unsuitable for placement or were unwilling to care for the child.
Regarding the child’s paternal grandmother, S.M., Green testified that S.M. has
continuously expressed interest in obtaining custody of M.G. Green acknowledged
that S.M. visited the child approximately 50 to 52 times throughout 2019. However,
the agency was not comfortable recommending her for placement based on
information gathered during the agency’s investigation during the custody case
involving A.G. Green explained that, at the time of the child’s birth,
[S.M.] had an open case with our agency in regards to domestic
violence between her and her spouse with one of Father’s other
children present at the time, so she did not meet the Ohio Adm.Code
standards to be recommended for placement.
(Tr. 25-26.) This incident prompted the agency to have concerns with S.M.’s
proximity to her spouse given his criminal history and his continued residence in
S.M.’s home. (Tr. 83-84.) Green testified that CCDCFS also had concerns with S.M.’s
judgment, including her decision to leave A.G. in Mother’s care during a time period
when Mother “was actively using heroin.” (Tr. 27.) Finally, Green testified that the
agency had concerns with S.M.’s physical health. Green noted that S.M. was often in
poor health during the pendency of this case and, in fact, was hospitalized at the time
A.G. was removed from Mother’s care.
Green testified that once the agency requested permanent custody, she
was contacted by the child’s paternal aunt, Sh.M., in May 2021. According to Green,
Sh.M. indicated that she was interested in obtaining custody of M.G. “solely because
nobody else in the family is able to provide care or able to get custody of [M.G.]” (Tr.
30.) Green stated that Sh.M. was fingerprinted, completed a home-study
investigation, and participated in adoption classes. M.G. also began attending
supervised visits with Sh.M. in her home in September 2021. At the time of the
permanent-custody hearing, M.G. had completed three visits with Sh.M. Green
testified that M.G. had not yet bonded with Sh.M., but was becoming more
comfortable with Sh.M. and her home. Despite the foregoing, however, Green
testified that she was not aware of “any petition/motion pending before the court for
legal custody of [M.G.] to [Sh.M.]” (Tr. 81.) Accordingly, Green opined that it was
in the child’s best interests to terminate Mother and Father’s parental rights and
award the agency permanent custody.
S.M. testified on behalf of Father. S.M., then 64 years old, testified
that she has resided in her current home for approximately four to five years and
obtained ownership of the home three years ago when Father transferred her the
title to the home. S.M. was questioned at length about her background, including
her employment status and criminal history. S.M. was also questioned about her
relationship with her spouse and the domestic violence incident that raised concerns
with the agency. S.M. maintained that the argument was not physical and that
contrary to Green’s testimony, her spouse has not lived in her home for
approximately one and one-half years.
Regarding M.G., S.M. expressed her willingness to serve as the child’s
legal custodian. She confirmed that she signed a Statement of Understanding on
December 4, 2020, and understood that if she were granted legal custody of the
child, she would be accepting legal responsibility for the care and supervision of
M.G. until she reaches the age of majority. S.M. testified that she still wanted M.G.
to live with her. However, she acknowledged that M.G. might be better off with
Sh.M. because “she’s younger.” Nevertheless, S.M. testified that if she were granted
legal custody, she would have a strong support system and family members who are
willing to assist her when necessary.
At the close of trial, the court heard from the child’s guardian ad litem,
Carla Golubovic, Esq. (“GAL”). Consistent with the recommendations of the social
worker, the GAL recommended that permanent custody be granted in favor of
CCDCFS, stating, in relevant part:
I do not believe that either the mother, [A.B.], or the father, [Ma.G.],
are able to parent this child. Mother is compromised by addiction,
homelessness. She’s not presented for at least two years in this matter.
Her compliance with case plan objectives over the year 2021 is
unknown. I’ve not been in contact with her but one time. I have no
idea as the guardian ad litem what she’s currently doing, where she
lives, how she is physically.
With regard to [Father], he’s incarcerated for vehicular homicide. He
is not able to provide for this child.
(Tr. 135.) The GAL further opined that it would not be in the child’s best interests to
be placed in the legal custody of S.M. Specifically, the GAL raised concerns with S.M.’s
present ability to care for M.G. when she conceded that she would be dependent on
assistance from her daughters, R.M. and Sh.M.
On November 19, 2021, the juvenile court granted the agency’s request
for permanent custody and dismissed all remaining motions as moot. The juvenile
court found, by clear and convincing evidence, that it is in the best interests of the
child to be placed in the permanent custody of CCDCFS. The court further made
alternative findings under R.C. 2151.414(B)(1)(a)(b) and (d), stating:
The child cannot be placed with either parent within a reasonable time
or should not be placed with the parents. This factor is discussed as
part of the (E) factors of R.C. 2151.414 below.
The child is abandoned. The mother has not visited or had contact with
the child since March 2021. The father has been incarcerated since at
least July 2019 when he was sentenced to four years in prison for
aggravated vehicular assault and having a weapon while under
disability.
The child has been in the temporary custody of CCDCFS for twelve or
more months of a consecutive twenty-two-month period. As stated
above, this matter was opened on February 13, 2019, when the
complaint was filed and the child was committed to the emergency
temporary custody of the agency on February 27, 2019, when the child
was released from the hospital following her birth. The permanent
custody motion was filed on May 12, 2020.
Father now appeals from the juvenile court’s judgment.
II. Law and Analysis
A. Termination of Parental Rights
In his sole assignment of error, Father argues the juvenile court’s
judgment is against the manifest weight of the evidence. Father contends “that the
record lacks competent, credible evidence to support the court’s finding that a grant
of permanent custody to the agency is in the best interests of his daughter.”
We take our responsibility in reviewing cases involving the
termination of parental rights and the award of permanent custody very seriously.
A parent has a “‘fundamental liberty interest’ in the care, custody and management”
of his or her child, In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990),
quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982), and the right to raise one’s own child is “‘an essential and basic civil right.’”
In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However, this right is not
absolute. It is “‘always subject to the ultimate welfare of the child, which is the
polestar or controlling principle to be observed.’” In re L.D., 2017-Ohio-1037, 86
N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106,
391 N.E.2d 1034 (1979).
Because the termination of parental rights is “‘the family law
equivalent of the death penalty in a criminal case,’” it is “an alternative [of] last
resort.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In
re Hoffman, 97 Ohio St.3d 92, 776 N.E.2d 485, ¶ 14 (2002); In re Gill, 8th Dist.
Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when
necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and
101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645
N.E.2d 812 (9th Dist.1994). All children have “‘the right, if possible, to parenting
from either natural or adoptive parents which provides support, care, discipline,
protection and motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio
App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are
terminated, the goal is to create “a more stable life” for dependent children and to
“facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing In
re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5
(Aug. 1, 1986).
R.C. 2151.414 provides a two-prong analysis to be applied by a juvenile
court in adjudicating a motion for permanent custody. In re S.C., 2018-Ohio-2523,
115 N.E.3d 813, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). This first prong of this
statute authorizes the juvenile court to grant permanent custody of a child to the
public agency if, after a hearing, the court determines by clear and convincing
evidence, that any of the following factors apply: (a) the child is not abandoned or
orphaned, but the child cannot be placed with either parent within a reasonable time
or should not be placed with the child’s parents; (b) the child is abandoned; (c) the
child is orphaned, and there are no relatives of the child who are able to take
permanent custody; (d) the child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for 12 or more
months of a consecutive 22-month period; or (e) the child or another child in the
custody of the parent or parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on three separate
occasions by any court in this state or another state. R.C. 2151.414(B)(1)(a)-(e).
In accordance with the second prong of R.C. 2151.414, when any one
of the above factors exists, the juvenile court must then analyze whether, by clear
and convincing evidence, it is in the best interest of the child to grant permanent
custody to the agency pursuant to R.C. 2151.414(D).
“A juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence ‘if the record contains
some competent, credible evidence from which the court could have found that the
essential statutory elements for permanent custody had been established by clear
and convincing evidence.’” In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-
1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
“‘Clear and convincing evidence’ is evidence that ‘will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.’” In re T.B., 8th Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
With respect to the first prong of the permanent-custody analysis, the
juvenile court made alternative findings under R.C. 2151.414(B)(1)(a)(b) and (d),
concluding that (1) M.G. is an abandoned child, (2) M.G. cannot be placed with
either parent within a reasonable time or should not be placed with either parent,
and (3) M.G. has been in the temporary custody of CCDCFS for 12 or more months
of a consecutive 22 month period.
On appeal, Father does not contest the juvenile court’s findings under
R.C. 2151.414(B)(1). For clarity, however, we find competent, credible evidence
supports the juvenile court’s finding pursuant to R.C. 2151.414(B)(1)(d) that M.G.
has been in an agency’s temporary custody for 12 or more months of a consecutive
22-month period.
For purposes of calculating time under subsection (d), R.C.
2151.413(D)(1) provides that “a child shall be considered to have entered the
temporary custody of an agency on the earlier of the date the child is adjudicated
pursuant to section 2151.28 of the Revised Code or the date that is sixty days after
the removal of the child from home.” In this case, M.G. was initially removed from
the parents’ care on February 26, 2019, and was adjudicated as an abused and
dependent child on April 17, 2019. She remained in the emergency temporary
custody of the agency until she was committed to the temporary custody of the
agency on July 9, 2019. Here, the earliest date was 60 days after M.G. was removed
from her home, or April 27, 2019. Thus, at the time the agency filed its motion for
permanent custody on May 12, 2020, M.G. had resided in the temporary care of the
agency for at least 12 months. Because the time requirements under R.C.
2151.414(B)(1)(d) were satisfied, it was unnecessary for the court to determine
whether R.C. 2151.414(B)(1)(a) or (b) were applicable to the circumstances
presented in this matter. See In re L.W., 8th Dist. Cuyahoga No. 107648, 2019-
Ohio-1344, at ¶ 15, citing In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818
N.E.2d 1176, ¶ 21.
Turning to the second prong of the permanent-custody analysis, we
recognize “[t]he discretion that the juvenile court enjoys in [deciding] whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
[decision] will have on the lives of the parties concerned.” In re Awkal, 95 Ohio
App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). Thus, we review a juvenile court’s
determination of a child’s best interests under R.C. 2151.414(D) for abuse of
discretion. In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. An
abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
In determining the best interests of a child at a hearing held pursuant
to R.C. 2151.414(A)(1), the juvenile court must consider all relevant factors,
including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity
of the child;
(c) The custodial history of the child, including whether 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 * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Although a juvenile court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in making a determination regarding permanent custody,
“there is not one element that is given greater weight than the others pursuant to the
statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
Moreover, the Ohio Supreme Court has clarified that
R.C. 2151.414(D)(1) does not require a juvenile court to expressly
discuss each of the best-interest factors in R.C. 2151.414(D)(1)(a)
through (e). Consideration is all the statute requires.
In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 31.
In this case, the juvenile court expressed that it considered all relevant
factors under R.C. 2151.414(D)(1) in determining that an award of permanent
custody to the agency was in the child’s best interest. In its judgment entry, the court
emphasized that M.G. has remained in the custody of the agency since the moment
she left the hospital following her birth. The court further discussed the various
factors supporting the court’s determination that M.G. is an abandoned child,
including Mother’s ongoing chemical dependency and Father’s incarceration.
Finally, in assessing the recommendations of the GAL and whether legally secure
placement could be achieved without a grant of permanent custody to the agency,
the court stated, in relevant part:
The child was removed from the hospital following her birth and placed
with the foster family with whom she still lives, two and a half years
later. She refers to her foster parents as “Mommy” and “Daddy” and
this is the only family she has known since she came home from the
hospital following her birth. She is very attached to her foster parents
and her foster sibling, and this is an adoptive placement.
***
The Guardian ad litem for the child recommends that permanent
custody is in the child’s best interests. The GAL for this child was also
the GAL for the child’s biological sibling, A.G. A.G. was placed in the
legal custody of a paternal aunt, but the GAL’s investigation and the
testimony at trial established that A.G. spends a very significant
amount of time (days per week) in the care of his paternal
grandmother. The testimony of the proposed legal custodian
established that if she was granted legal custody of this child, her
daughters would provide the care for the child. It is this daughter, but
not the grandmother/proposed legal custodian, who has visited the
child three times since September of 2021. The grandmother has not
visited the child since 2019. However, only the grandmother has been
identified in a written motion for legal custody. Moreover, the social
worker was very clear that CCDCFS did not and could not recommend
legal custody to the paternal grandmother based on concerns of
domestic violence between her and her spouse when A.G. was present,
based on issues of judgment when the mother was living with
grandmother over the course of this child’s and A.G.’s cases. It is not
clear who actually owns the grandmother’s house, and based on the
testimony, the court shares the concerns of the social worker for
CCDCFS, and the child’s GAL about the stability of this situation.
After careful consideration of the testimony presented at the
permanent custody hearing, we find there is competent, credible evidence in the
record to support the juvenile court’s reliance on the factors set forth under R.C.
2151.414(D) and its conclusion that permanent custody to the agency is in child’s
best interests.
First, with respect to the child’s relationship with her parents, siblings,
relatives, and foster parents, Green testified that Mother’s relationship with her
child has been negatively impaired by her unresolved substance abuse addiction and
her sudden absence from M.G.’s life. Green stated Mother’s “visitation attendance
has been poor since November 2020,” and that her last visit with the child occurred
on March 18, 2021. (Tr. 23.) Similarly, Father’s ability to interact with M.G. has
been significantly impaired by his incarceration in July 2019. The record contains
minimal information concerning the scope and nature of Father’s relationship with
the child. However, Green and the GAL each opined that Father was unable to
parent the child due to his ongoing term of imprisonment and his past behavior.
Regarding S.M., Green conceded that she consistently visited M.G. throughout the
entirety of 2019. However, due to circumstances beyond S.M.’s control, including
the COVID-19 pandemic, S.M. was unable to visit the child in 2020 and the majority
of 2021. Green confirmed that S.M. was present for portions of M.G.’s three visits
in Sh.M.’s home. However, Green testified that M.G. did not interact with S.M. and
would not be capable of identifying S.M. as a person she knew.
In contrast, Green testified that M.G. has bonded with her foster
family and has lived under their care for her entire life. She refers to her foster
parents as “Mommy” and “Daddy,” and interacts with their adopted child as a
sibling. The foster parents have expressed their love for M.G. and their commitment
to her long-term care.
With respect to the wishes of the child, the GAL recommended that
the court grant permanent custody in favor of CCDCFS based on the GAL’s
familiarity with the parents and their inability to remedy the issues that led to the
removal of M.G. and A.G. from their care. The GAL further opined that she did not
believe legal custody to paternal grandmother was in the child’s best interests. The
GAL explained that she had concerns with S.M.’s ability to care for the child without
substantial assistance, stating:
You Honor, [S.M.] is a kind woman, but I do not believe that it is in the
child’s best interest to be in her legal custody. I was also the guardian
ad litem for the minor child [A.G.]. My understanding and my
observation of what has transpired with the entire family since the
commitment of [A.G.] with legal custody of his aunt is that he’s kind of
a community child and he’s often with grandmother as she stated, and
often with other relatives which there’s no problem with that
necessarily, but it is my understanding from speaking with [Sh.M.],
[R.M.], and [S.M.], that this is the plan. The familial plan for [M.G.] is
to kind of be again a community baby and if she’s committed to the
legal custody of [S.M.], that often means she’s gonna be with one or
another relative. Your Honor, I don’t believe that’s in the child’s best
interest.
(Tr. 136.)
The record further supports the court’s conclusion that M.G.’s
custodial history weighed heavily in favor of an award of permanent custody. There
is no dispute that M.G. was placed with the foster family immediately following her
release from the hospital. Following her placement with the agency, Mother and
Father each failed to take the necessary steps to remedy the problems that caused
M.G. to be removed from their care. As a result, M.G. remained in the agency’s
custody for approximately 32 months before the permanent-custody hearing
commenced.
Finally, as to whether the child’s need for a legally secure permanent
placement could be achieved without a grant of permanent custody, Father argues
that the award of legal custody to paternal grandmother is a legally secure placement
that is both in the child’s best interest and necessary to preserve family unity and
blood relationships. Father submits that the juvenile court’s judgment may result
in “devastating long-term consequences,” stating:
If the agency is to receive permanent custody of M.G., the child will lose
all contact, along with the connection she has with her family, which
includes her grandmother, her aunts, and her cousins. * * * There is no
reason to deny M.G. the right to be part of her extended family where
she can benefit from having a shared family history and where she can
participate in her family’s traditions and learn her culture. If M.G. is
severed from her family, she will always have questions as to her social
and cultural background.
Preliminarily, we note that “the issue facing the trial court at the
permanent custody hearing [is] not whether the child should have been placed with
[the proposed legal custodian]; rather, the issue [is] whether the agency’s motion for
permanent custody should be granted.” In re C.H., 8th Dist. Cuyahoga No. 103171,
2016-Ohio-26, ¶ 26. The willingness of a relative to care for a child does not alter
what a court must consider when determining whether to grant permanent custody.
See, e.g., In re T.H., 8th Dist. Cuyahoga No. 107947, 2019-Ohio-3045, ¶ 13; In re
Tr.T., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 19; In re V.C., 8th Dist.
Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 61. Thus, “courts
are not required to favor a relative if, after considering all the factors, it is in the
child’s best interest for the agency to be granted permanent custody.’” In re S.F., 2d
Dist. Montgomery No. 28606, 2020-Ohio-693, ¶ 50, quoting In re A.A., 2d Dist.
Greene No. 2008 CA 53, 2009-Ohio-2172, ¶ 19.
Relevant to this appeal, the Supreme Court of Ohio has also recognized
that there is no heightened importance to the R.C. 2151.414(D)(1)(d) factor and the
trial court’s statutory duty does not include a requirement that the juvenile court
find by clear and convincing evidence that no suitable relative is available for
placement. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, at
¶ 56, 64. However, ‘“[t]he possibility that a relative could provide a permanent
placement for a child by assuming legal custody is relevant to the consideration of
the R.C. 2151.414(D)(1)(d) best-interest factor,’” i.e., the child’s need for a legally
secure permanent placement and whether that type of placement can be achieved
without a grant of permanent custody to the agency. In re E.M.B.T., 8th Dist.
Cuyahoga No. 109479, 2020-Ohio-4308, ¶ 23, quoting In re J.P., 10th Dist. Franklin
No. 18AP-834, 2019-Ohio-1619, ¶ 27.2
As acknowledged by Green and the child’s GAL, the issues raised
before at the permanent custody hearing were delicate and required the court to
confront difficult questions when considering the best interests of the child. The
testimony presented at trial demonstrated that M.G. has family members who care
deeply about her interests and her well-being. M.G.’s paternal relatives have worked
as a unit to ensure that M.G.’s older sibling, A.G., is provided a safe and stable home
life. Collectively, the paternal relatives have shown a willingness to support their
grandchildren, nieces, and nephews, even when such efforts have not been
reciprocated by the children’s biological parents.
2 Citing In re Tr.T., 8th Dist. Cuyahoga No. 107947, 2019-Ohio-3045, at ¶ 17, and
In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, at ¶ 42, the agency asserts that Father cannot
challenge the juvenile court’s failure to award legal custody to S.M.; rather, his challenge
is limited to whether the juvenile court’s decision to terminate his parental rights was
proper. We agree that our inquiry is limited to the juvenile court’s termination of Father’s
parental rights and not whether the court erred in dismissing the motion for legal custody
to a third party as moot. However, the foregoing decisions do not preclude this court from
assessing a relative’s ability to provide the child a legally secure placement when
reviewing the juvenile court’s best interest determination. Nor were the decisions
intended to do so. As this court has consistently explained, because “‘[t]he possibility that
a relative could provide a permanent placement for a child by assuming legal custody is
relevant to the consideration of the R.C. 2151.414(D)(1)(d) best-interest factor, * * * a
parent has standing to raise arguments regarding the possibility of a relative assuming
legal custody of a child * * * to the extent those arguments challenge the decision to
terminate the parent’s rights.’” In re E.M.B.T. at ¶ 23, quoting In re J.P. at ¶ 27, citing In
re S.C., 2018-Ohio-2523, 115 N.E.3d 813, ¶ 16 (8th Dist.).
However, the fact remains that M.G. has no bond or relationship with
her paternal grandmother. M.G. was less than one-year old the last time she and
S.M. had any significant interactions. In contrast, M.G. has developed a loving
relationship with the family that has raised her since birth — the only family she has
ever known — including her adoptive sibling, with whom M.G. has developed a
strong bond. Moreover, this court shares the juvenile court’s concerns with S.M.’s
past judgment and whether she is presently able to care for the child without
substantial assistance of other family members who have not formally committed to
the legal care of the child. Under these circumstances, we cannot say that the
juvenile court acted unreasonably, arbitrarily, or unconscionably in determining
that it was in M.G.’s best interest to grant permanent custody to the agency. See In
re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, at
¶ 61, citing In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028,
at ¶ 11 (“[I]f permanent custody to the agency is in [a child’s] best interest, legal
custody to [a relative] necessarily is not.”).
The juvenile court’s award of permanent custody to CCDCFS is
supported by clear and convincing evidence in the record and is not against the
manifest weight of the evidence. Accordingly, Father’s sole assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR