In re C.W.G. , 2016 Ohio 5448 ( 2016 )

[Cite as In re C.W.G., 2016-Ohio-5448.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
IN THE MATTER OF:
:
C.W.G., : Case No. 16CA12
:
:
Adjudicated Abused/Neglected/ :
Dependent Child. : DECISION AND
: JUDGMENT ENTRY
:
: RELEASED 08/16/2016
APPEARANCES:
Robert Henry, Law Office of Robert Henry, LLC, Marietta, Ohio, for appellant.
Kevin Rings, Washington County Prosecuting Attorney, and Amy Graham, Washington
County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Hoover, J.
{¶1} Appellant, L.L., appeals the trial court’s judgment that awarded appellee,
Washington County Children Services Board (WCCS), permanent custody of her
biological child, C.W.G. For the reasons that follow, we affirm the trial court’s judgment.
I. Facts
{¶2} C.W.G. was born prematurely in January 2012. At the time of his birth he
tested positive for the anti-anxiety drug benzodiazepine. When C.W.G. was
approximately one year of age, he and appellant were referred to the Washington County
Board of Developmental Disabilities and other social services because of C.W.G.’s
extreme delays. At the time, C.W.G. was not walking or talking, and had motor and
Washington App. No. 16CA12 2
social skill delays. Appellant refused services for C.W.G. because she said she was
moving. Tests conducted six months later showed that C.W.G.’s delays had increased.
{¶3} WCCS and other agencies worked with appellant and her father, W.G., to
address C.W.G.’s developmental concerns. Appellant cared for C.W.G. with assistance
from W.G., during C.W.G.’s first years. Some progress was made; but appellant was
inconsistent and missed a significant amount of appointments with service providers.
{¶4} WCCS’s history with the appellant also included several concerned calls
about appellant’s drug use and C.W.G.’s well being. WCCS retrieved the child’s medical
records that indicated that he was diagnosed with low muscle development and Global
developmental delay. The medical records further contained recommendations for
follow-up tests and examinations, specifically for possible chromosomal disorders.
WCCS alleged that appellant did not follow through with those recommendations and
that at two years of age C.W.G. was still drinking from a bottle, not eating food, could
not walk, sit by himself, feed himself, or talk. Appellant denied some of these allegations.
{¶5} In early May 2014, appellant was found passed-out at a fast-food drive
thru with C.W.G. in the car. As a result of the incident appellant was arrested and charged
with OVI; and C.W.G. was briefly placed in the care of W.G. under an agreed safety
plan. After it was learned that W.G. violated the safety plan by leaving C.W.G.
unsupervised with a suspected drug user, WCCS obtained emergency custody of C.W.G.
on May 6, 2014.
{¶6} On May 7, 2014, WCCS filed abuse, neglect, and dependency complaints
concerning C.W.G. and requested temporary custody of the child. On June 2, 2014, the
maternal grandfather, W.G., filed a motion for custody of C.W.G. On June 9, 2014, after
Washington App. No. 16CA12 3
an initial hearing, the trial court concluded that it was in the best interest of C.W.G. to
remain in the temporary custody of WCCS. On July 7, 2014, the trial court adjudicated
the child abused, neglected, and dependent and awarded WCCS temporary custody of
C.W.G. C.W.G. was then placed in a foster home. While in the temporary custody of
WCCS and in the home of the foster family C.W.G.’s health and development improved
greatly.
{¶7} WCCS developed a case plan with the goal of reunification that required
appellant, among other things, (1) to remain sober, (2) to no longer misuse prescribed
medication, (3) to attend substance abuse counseling and submit to random drug screens,
(4) to participate in the Help Me Grow Program, (5) to attend a parenting education class,
(6) to provide food and basic needs of C.W.G. during visitations, (7) to have a regular
form of income, (8) to attend all service provider meetings and follow all
recommendations of the service providers, (9) to attend all of C.W.G.’s medical
appointments, and (10) to ensure a safe, stable home environment for C.W.G. WCCS also
developed a case plan that required W.G., among other things, (1) to ensure all bed bugs
were gone from his residence, (2) to have all guns and safety threats locked away at all
times while C.W.G. was at the residence, (3) to attend all service provider meetings and
follow all recommendations of the service providers, (4) to complete a home study, and
(5) to attend all of C.W.G.’s medical appointments.
{¶8} On April 3, 2015, appellant filed a motion for custody.
{¶9} On October 21, 2015, WCCS filed its motion for permanent custody.
WCCS alleged that C.W.G. had been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or more months of
Washington App. No. 16CA12 4
a consecutive twenty-two month period. WCCS also argued that obtaining permanent
custody would be in C.W.G.’s best interest. WCCS asserted that appellant indicated that
she does not abuse drugs even though she continued to test positive during drug
screenings. WCCS further claimed that appellant tested positive for amphetamines,
methamphetamines, and suboxone in June 2015. WCCS contended that appellant was
discharged from drug counseling services due to “drug seeking behaviors”. WCCS
alleged that appellant also failed several drug screens administered by her probation
officer in the summer and fall of 2015. WCCS alleged that while appellant has always
denied using drugs, all three of her children have been born with withdrawal symptoms
and have suffered medical problems as a result. Finally, WCCS alleged that appellant did
not make any progress to indicate that she would be able to provide C.W.G. with basic
and special needs to keep him safe and that nothing had really changed in appellant’s
lifestyle from the time WCCS obtained temporary custody of C.W.G.
{¶10} On January 6, 2016, WCCS filed a semi annual administrative review. In
it, WCCS asserted that appellant was arrested and sent to the Washington County Jail due
to a failed drug screen given by her probation officer in October 2015. WCCS further
noted that once released from jail appellant began a Vivitrol treatment program for her
opioid drug addiction. The review also noted that in the prior six months appellant had
missed 13 visits with C.W.G. and several home visits with the agency.
{¶11} On February 16, 2016, W.G., the maternal grandfather, again filed a
motion for custody of C.W.G.
{¶12} On February 22, 2016, the trial court held a hearing to consider WCCS’s
permanent custody motion. Nancy Coleman, a developmental specialist at the
Washington App. No. 16CA12 5
Washington County Board of Developmental Disabilities, testified that C.W.G. qualified
for services through Help Me Grow prior to WCCS taking temporary custody. Coleman
explained that appellant initially refused services through Help Me Grow because she
indicated she was moving. Several months later C.W.G. was again referred to the Help
Me Grow program. Coleman stated that additional testing revealed that C.W.G.’s
developmental delays had increased in severity from the time he was initially tested.
Appellant eventually enrolled C.W.G. in the Help Me Grow program in August 2013.
Coleman noted that once enrolled appellant missed 25 of the 35 scheduled appointments
between July 2013 and April 2014. During those missed appointments, however,
Coleman indicated that W.G. was present and was C.W.G.’s main caretaker. Coleman
stated that while W.G. “was there”, he could not physically and readily do the things
necessary to significantly improve C.W.G.’s development. Coleman noted that W.G. has
an artificial leg that impedes his movement and lacked necessary parenting skills because
in the past he was a working dad who had never really raised a little child before.
Coleman did credit W.G. with keeping C.W.G. safe and providing C.W.G. with love.
Coleman also explained that after being placed with the foster family she noticed
significant and drastic improvements in C.W.G.’s development. Finally, Coleman stated
that she would be concerned if C.W.G. was returned to the care of his mother or
grandfather.
{¶13} Marietta Municipal Court probation officer Eric Brockmeier testified that
he began supervising appellant when she was placed on probation for the offense of OVI
in October 2014. According to Brockmeier, he had to revoke appellant’s probation for
multiple failed drug tests. He noted that appellant is addicted to opioids and
Washington App. No. 16CA12 6
benzodiazepines and she had also tested positive for amphetamines and
methamphetamines. Brockmeier testified that appellant had entered drug counseling but
was unsuccessfully terminated due to constant relapse. Brockmeier opined that it would
be “very concerning” if C.W.G. was returned to appellant’s custody
{¶14} WCCS caseworker Emily Tewanger testified that appellant “was very
unsuccessful at times” in meeting the goals of the case plan and that it was very difficult
to meet with appellant. Tewanger stated that appellant missed numerous home visits and
often times refused to answer her phone. Tewanger testified that appellant’s home was
often cluttered with belongings strewn about the floor. Tewanger also stated that
appellant only attended 61% of the scheduled visitations she had with C.W.G. Tewanger
testified that appellant became pregnant while C.W.G. was in the temporary custody of
WCCS, and that that child had been born addicted to drugs and with severe withdrawal
symptoms. Tewanger also indicated that W.G. appeared to be the primary caretaker of
C.W.G., not appellant. However, Tewanger was concerned about the environment at
W.G.’s residence, and noted that appellant’s brother lived with W.G. and also appeared to
have substance abuse problems. Tewanger also stated that W.G. had once indicated that
he did not know if he could care for C.W.G. given his age and health. Tewanger also
testified that a home study for W.G.’s residence was denied due to a previous criminal
conviction and an active case of bed bugs. Specifically, Tewanger testified that W.G. had
pled guilty to menacing by stalking, but that the charge had originally been conspiracy to
commit murder.
{¶15} WCCS visitation coordinator Amanda Reed testified that appellant and
W.G. did not consistently attend their scheduled visitations with C.W.G. and that there
Washington App. No. 16CA12 7
were a lot of missed visits. Reed stated that appellant and W.G. also failed to properly
discipline C.W.G. during monitored visits, allowed C.W.G. to eat food off of unsanitary
places, and consistently brought food to visits to which C.W.G. was allergic. Reed
indicated that C.W.G. interacted more with W.G. than appellant during visits. Reed also
testified that W.G. was only permitted to visit C.W.G. if appellant was also present.
{¶16} WCCS caseworker Pamela McKenna testified that appellant was rarely
home and that she had trouble meeting appellant at her home. McKenna also indicated
that appellant failed to make substantial progress towards many of her case plan goals.
McKenna testified that substance abuse remained “a big issue” and that appellant doctor
shops to obtain prescription medication. McKenna also identified poor attendance at drug
counseling and poor compliance with probation as “big issue[s]”. McKenna stated that
appellant had been in jail for probation violations several times in the months leading up
to the custody hearing. Finally, McKenna testified that she did not see any bonding
between C.W.G. and appellant; but that C.W.G. had bonded quite well with the foster
family.
{¶17} C.W.G.’s foster mother testified with regards to C.W.G.’s developmental
delays and improvements while in foster care. When the foster family first received
C.W.G. in May 2014, he was 28 months old and could not roll over, crawl, walk, talk, or
pull himself up. Within days of receiving C.W.G. and taking an active involvement in his
care the foster mother noted drastic improvements. By the time of the permanent custody
hearing, the foster mother indicated that she believed C.W.G. to be mostly caught-up in
his development. The foster mother also stated that in the recent months preceding the
hearing C.W.G. would throw fits and act out prior to leaving for visitations with
Washington App. No. 16CA12 8
appellant. She also indicated that appellant and W.G. never attended any of C.W.G.’s
medical appointments.
{¶18} The parties stipulated to the guardian ad litem reports that had been filed
in the case. In addition, the child’s guardian ad litem testified at the hearing that placing
C.W.G. in W.G.’s home would not be desirable because the child’s uncle, W.G.’s son,
also resides in the residence and the uncle “is not an appropriate person to be around
[C.W.G.]”. He also stated that he did not believe the home would pass a home study as
long as the uncle remains in the home.
{¶19} Appellant testified that it had been seven years since she had abused
opioids, except that just prior to the permanent custody hearing she admitted to taking
one Vicodin. She stated that she has been prescribed suboxone for the past six years.
Appellant indicated that she was involved in “intensive” drug and alcohol counseling that
includes weekly individual and group sessions. Appellant also claimed that any failed
drug screens, with the exception of the one time she took the Vicodin, were the result of
prescribed medication, and that she does not use street drugs. Appellant explained that
many of her missed visitations were the result of medical appointments, specifically
appointments at suboxone clinics that required travel to Columbus. She described W.G.
as her best friend and agreed that C.W.G. was very close to his grandfather. Appellant
requested that the trial court award her custody of C.W.G., but if that could not be done,
she expressed her desire that C.W.G. be placed with W.G.
{¶20} W.G. testified that he has lived at his current residence for almost seven
years. He indicated that he has a steady source of income of $5,500 per month. He agreed
that his son also lives at the residence and is dependent upon pain medication, but
Washington App. No. 16CA12 9
testified that his son suffers from cancer and that a mass on his spine is the cause of his
son’s pain problems. W.G. also denied ever leaving C.W.G. alone with his son. W.G.
stated that he had been C.W.G.’s main caretaker up until the time that WCCS obtained
temporary custody. W.G. testified that he performed exercises with C.W.G. to aid his
physical and social development. W.G. also testified that he was only permitted to visit
C.W.G. when appellant was also present, and when appellant missed visitations he was
not permitted to visit with C.W.G. Finally, W.G. testified that he thought it would be in
C.W.G.’s best interest if custody was awarded to him.
{¶21} On March 21, 2016, the trial court granted appellee permanent custody of
the child. The court found that the child had been in appellee’s temporary custody for at
least twelve out of the past twenty-two months. The court also determined that awarding
appellee permanent custody of C.W.G. would serve his best interest. The court
considered the child’s interactions and interrelationships. The court found that appellant
“showed very little involvement in her son’s welfare” and had “very little bonding with
the child.” The court noted that the mother only visited C.W.G. 61% of the time, missed
25 out of 35 appointments with the Early Intervention Specialist, and continued to abuse
drugs.
{¶22} The court also determined that C.W.G.’s father had abandoned the child.
The court observed that the father had not had any involvement with his son; and that his
present whereabouts were unknown.
{¶23} The court noted that the maternal grandfather, W.G., had “appeared to be
the primary caretaker of the child rather than the mother”; but noted that an early
intervention worker with the Developmental Disabilities Board (Coleman) had indicated
Washington App. No. 16CA12 10
that W.G. was not a suitable placement for the child. The court further stated: “Although
the grandfather was very loving and concerned about the child and receptive to the
services and trainings offered, he was not able to effectively help his grandson.”
{¶24} The court observed that since being placed in the foster home C.W.G.’s
development had greatly improved. The court recognized that at the time of the final
hearing C.W.G. was running, eating regular food with utensils, and talking more; but that
his speech was still delayed. The court also noted that the early intervention worker stated
that C.W.G. would not be at the level he is at if not placed in foster care. Finally, the
court noted that C.W.G. was “doing extremely well in the current foster home” but that
the foster parents were not seeking to adopt C.W.G. due to their age.
{¶25} The court reviewed the child’s custodial history and found that he was in
appellant’s custody from his birth in January 2012 until May 2014, when appellee
obtained temporary custody. Although appellant was technically in custody of C.W.G.
during his first years, the court noted that W.G., the maternal grandfather, appeared to be
the primary caretaker. Since May 2014, the child has remained in appellee’s temporary
custody.
{¶26} The court further determined that C.W.G. needs a legally secure
permanent placement and that this type of placement cannot be achieved without granting
appellee permanent custody. The court found that C.W.G. lacked a bond with appellant
and W.G., that appellant failed to work with the service providers, that appellant’s home
“was never acceptable other than one time during the one and half years she was involved
with the case”, that the father essentially abandoned the child, that W.G. lacked parenting
skills and other abilities due to his age and artificial leg and was incapable of parenting a
Washington App. No. 16CA12 11
young child with delays, and that no suitable relative placement was available. The court
also noted that W.G. was not a suitable placement option because his home study was
denied “due to a past conviction for menacing by stalking which was originally charged
as conspiracy to commit murder”. Finally, the court noted that the early intervention
worker indicated that she “would be concerned if the child was returned to the mother or
grandfather as neither is able to handle his issues” and that appellant’s probation officer
expressed that he “would be very concerned if the child was returned to the mother due to
her significant unaddressed drug problem.” The court thus granted appellee permanent
custody of the children. This appeal followed.
II. Assignment of Error
{¶27} Appellant raises one assignment of error.
The juvenile court abused its discretion, and its judgment was against the
weight of the evidence, when it found that it was in the best interest of the
child to permanently terminate the parental rights of the mother and award
Appellee permanent custody.
III. Law and Analysis
{¶28} In her sole assignment of error, appellant contends that the trial court erred
by determining that awarding appellee permanent custody was in the child’s best interest.
Appellant does not dispute that C.W.G. had been in appellee’s custody for at least twelve
of the past twenty-two months. She also does not challenge the court’s finding that the
child should not be returned to her care. Instead, appellant disputes the court’s finding
that the child could not achieve a legally secure permanent placement without granting
permanent custody to appellee. Appellant argues that the child’s grandfather, W.G., could
have provided a legally secure permanent placement for the child and, thus, awarding
permanent custody was not necessary.
Washington App. No. 16CA12 12
A. Standard of Review
{¶29} A reviewing court generally will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the evidence. In re
R.M., 2013–Ohio–3588, 997 N.E.2d 169, ¶ 53 (4th Dist.).
“Weight of the evidence concerns ‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the
burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics, but depends on its effect in inducing
belief.’ ”
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 12,
quoting State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting
Black’s Law Dictionary 1594 (6th Ed.1990).
{¶30} When an appellate court reviews whether a trial court’s permanent custody
decision is against the manifest weight of the evidence, the court “ ‘ “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and
created such a manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.” ’ ” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103,
115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins at 387, quoting State v. Martin,
Washington App. No. 16CA12 13
20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord In re Pittman, 9th
Dist. Summit No. 20894, 2002–Ohio–2208, ¶¶ 23–24.
{¶31} In a permanent custody case, the ultimate question for a reviewing court is
“whether the juvenile court’s findings * * * were supported by clear and convincing
evidence.” In re K.H., 119 Ohio St. 3d 538, 2008–Ohio–4825, 895 N.E.2d 809, ¶ 43.
“Clear and convincing evidence” is: “[T]he measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St. 3d 101, 104,
495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon clear
and convincing evidence, “a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990). Accord In re
Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the clear and convincing standard has been
met to the satisfaction of the [trial] court, the reviewing court must examine the record
and determine if the trier of fact had sufficient evidence before it to satisfy this burden of
proof.”). “Thus, if the children services agency presented competent and credible
evidence upon which the trier of fact reasonably could have formed a firm belief that
permanent custody is warranted, then the court’s decision is not against the manifest
weight of the evidence.” R.M. at ¶ 55.
Washington App. No. 16CA12 14
{¶32} Once the reviewing court finishes its examination, the court may reverse
the judgment only if it appears that the fact-finder, when resolving the conflicts in
evidence, “ ‘clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.’ ” Thompkins, 78 Ohio St. 3d at 387,
678 N.E.2d 541, quoting Martin at 175. A reviewing court should find a trial court’s
permanent custody decision against the manifest weight of the evidence only in the “
‘exceptional case in which the evidence weighs heavily against the [decision].’ ” Id.,
quoting Martin at 175; accord State v. Lindsey, 87 Ohio St. 3d 479, 483, 721 N.E.2d 995
(2000).
{¶33} Furthermore, when reviewing evidence under the manifest weight of the
evidence standard, an appellate court generally must defer to the fact-finder’s credibility
determinations. As the Eastley court explained:
“[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of
facts. * * *
If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Eastley, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 21, quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting
5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Washington App. No. 16CA12 15
B. Permanent Custody Principles
{¶34} A parent has a “fundamental liberty interest” in the care, custody, and
management of his or her child and an “essential” and “basic civil right” to raise his or
her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982); In re Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990); accord In re
D.A., 113 Ohio St. 3d 88, 2007–Ohio–1105, 862 N.E.2d 829. A parent’s rights, however,
are not absolute. In re D.A. at ¶ 11. Rather, “ ‘it is plain that the natural rights of a parent
* * * are always subject to the ultimate welfare of the child, which is the polestar or
controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St. 2d 100, 106, 391
N.E.2d 1034 (1979), quoting In re R.J.C., 300 So. 2d 54, 58 (Fla.App.1974). Thus, the
State may terminate parental rights when a child’s best interest demands such
termination. In re D.A. at ¶ 11.
{¶35} Before a court may award a children services agency permanent custody
of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The primary purpose
of the hearing is to allow the court to determine whether the child’s best interests would
be served by permanently terminating the parental relationship and by awarding
permanent custody to the agency. Id. Additionally, when considering whether to grant a
children services agency permanent custody, a trial court should consider the underlying
purposes of R.C. Chapter 2151, as set forth in R.C. 2151.01:
(A) To provide for the care, protection, and mental and physical
development of children * * * whenever possible, in a family
environment, separating the child from the child’s parents only when
necessary for the child’s welfare or in the interests of public safety;
Washington App. No. 16CA12 16
(B) To provide judicial procedures through which Chapters 2151. and
2152. of the Revised Code are executed and enforced, and in which the
parties are assured of a fair hearing, and their constitutional and other legal
rights are recognized and enforced.
C. Permanent Custody Framework
{¶36} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody of a
child to a children services agency if the court determines, by clear and convincing
evidence, that the child’s best interest would be served by the award of permanent
custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the temporary
custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-
month period, or has not been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child’s
parents.
(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.
Washington App. No. 16CA12 17
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period, or 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 and, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
(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.
{¶37} R.C. 2151.414(D) requires a trial court to consider specific factors to
determine whether a child’s best interest will be served by granting a children services
agency permanent custody. The factors include: (1) the child’s interaction and
interrelationship with the child’s parents, siblings, relatives, foster parents and out-of-
home providers, and any other person who may significantly affect the child; (2) the
child’s wishes, as expressed directly by the child or through the child’s guardian ad litem,
with due regard for the child's maturity; (3) the child’s custodial history; (4) the child’s
need for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody to the agency; and (5) whether any factors
listed under R.C. 2151.414(E)(7) to (11) apply.
Washington App. No. 16CA12 18
{¶38} Thus, before a trial court may award a children services agency permanent
custody, it must find (1) that one of the circumstances described in R.C. 2151.414(B)(1)
applies, and (2) that awarding the children services agency permanent custody would
further the child’s best interests.
{¶39} In the case at bar, appellant does not challenge the trial court’s R.C.
2151.414(B)(1) finding. Therefore, we do not address it. Instead, appellant focuses her
argument on the trial court’s best interest determination.
D. Best Interest
{¶40} Here, the only best interest factor appellant challenges is the court’s
finding regarding the child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without granting permanent custody to appellee.
Appellant contends that the evidence shows that the child’s grandfather, W.G., could
provide a legally secure permanent placement for the child. She further argues that W.G.
was heavily involved in raising C.W.G. before his removal, that W.G. possessed the
necessary skills and physical ability to raise the child, and that W.G. demonstrated a
willingness to work with area agencies to aid in the development of C.W.G. Appellant
thus contends that the court should have placed the child with the grandfather.
{¶41} We do not agree with appellant that the trial court should have placed the
child with the grandfather. We have previously recognized that a trial court need not
consider relative placement before awarding a children services agency permanent
custody. E.g., In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶ 39; In re J.H.,
4th Dist. Hocking No. 14CA4, 2014-Ohio-3108, ¶ 27; In re C.T.L.A., 4th Dist. Hocking
No. 13CA24, 2014-Ohio-1550, ¶ 52. In J.H., we explained:
Washington App. No. 16CA12 19
[In In re Schaefer, 111 Ohio St. 3d 498, 2006–Ohio–5513, 857 N.E.2d 532,
the court] rejected the argument that a trial court must find by clear and
convincing evidence that no suitable relative is available for placement
before awarding a children services agency permanent custody. The court
explained that R.C. 2151.414(D)(1)(d) is not entitled to any “heightened
importance,” and the trial court is not “required to credit evidence in
support of maintaining the parental relationship when evidence supporting
termination outweighs it clearly and convincingly.” Id. at ¶ 56, 857 N.E.2d
532. The Schaefer court further rejected any argument that a juvenile court
must determine by clear and convincing evidence that “termination of
appellant’s parental rights was not only a necessary option, but also the
only option” or that “no suitable relative was available for placement.” Id.
at ¶ 64, 857 N.E.2d 532. The court stated that R.C. 2151.414(D) “does not
make the availability of a placement that would not require a termination
of parental rights an all-controlling factor,” and it “does not even require
the court to weigh that factor more heavily than other factors.” Id. Accord
C. T.L.A., supra, at ¶ 52 (stating that trial court “had no duty to first
consider placing the child with [a]ppellant's relatives or a family friend
before granting [a]ppellee permanent custody”); In re J.K., 4th Dist. Ross
No. 11CA3269, 2012–Ohio–214, ¶ 27 and ¶ 30; In re A.C.H., 4th Dist.
Gallia No. 11 CA2, 2011–Ohio–5595, ¶ 44; In re M.O., 4th Dist. Ross No.
10CA3189, 2011–Ohio–2011, ¶ 20 (stating that children services agency
“had no statutory duty to make ‘reasonable efforts’ to effect a relative
Washington App. No. 16CA12 20
placement before seeking permanent custody * * * * [, and] the juvenile
court did not have to find by clear and convincing evidence that no
suitable relative was available for placement before awarding the agency
permanent custody”).
Id. at ¶ 27; accord In re A.R., 4th Dist. Highland No. 14CA10, 2014-Ohio-4916, ¶ 21.
{¶42} Here, the trial court considered whether placing the child with the
grandfather would be in the child’s best interest and found that it would not. The court
offered a logical rationale for rejecting the grandfather’s request for legal custody of the
child. The court explained that the grandfather was limited in his abilities due to his age
and artificial leg, which made it difficult to work with the child on the floor. The court
further observed that the grandfather lacked necessary parenting skills and was unable to
effectively help the child in his development. These findings are supported by witness
testimony, especially the testimony of Nancy Coleman and Emily Tewanger who were
able to observe grandfather and C.W.G.’s interactions. Moreover, the fact that C.W.G.
saw almost immediate developmental improvements upon his placement with the foster
family further supports the court’s finding that W.G. could not effectively parent a young
child with delays. The court also found relevant the fact that grandfather's home study
was denied due to his past conviction. The court could have concluded that placing
C.W.G. in the grandfather's custody would not have led to a stable, safe, and secure life
for the child. See In re A.R. at ¶¶ 2, 11, and 24 (holding that grandmother’s prior
marijuana possession conviction supported trial court’s finding that grandmother would
not be able to provide grandchildren with a legally secure permanent placement).
Washington App. No. 16CA12 21
{¶43} We therefore disagree with appellant that the trial court wrongly
determined that the child needed a legally secure permanent placement that could not be
achieved without granting appellee permanent custody.
IV. Conclusion
{¶44} Accordingly, based upon the foregoing reasons, we overrule appellant’s
sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Washington App. No. 16CA12 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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
Washington County 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.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.