In re J.K. , 2012 Ohio 214 ( 2012 )

[Cite as In re J.K., 2012-Ohio-214.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF: : Case No. 11CA3269
J.K. :
Adjudicated Dependent Child. : DECISION AND JUDGMENT ENTRY
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: John K. Clark, Jr., 17 South Paint Street, Chillicothe,
Ohio 45601
COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting
Attorney, and Jennifer L. Ater, Ross County Assistant
Prosecuting Attorney, 72 North Paint Street, Chillicothe,
Ohio 45601
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 1-18-12
ABELE, P.J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court, Juvenile
Division, judgment that awarded Ross County Job and Family Services Children’s Division,
appellee herein, permanent custody of J.K. (born October 18, 2000).
{¶ 2} G.K., the child’s natural mother and appellant herein, assigns the following
error for review:
“THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY BY NOT REQUIRING ROSS COUNTY
CHILDREN’S SERVICES TO USE ITS BEST EFFORTS TO
AVOID AN AWARD OF PERMANENT CUSTODY WHEN PPLA
(PLANNED PERMANENT LIVING ARRANGEMENT) WAS
STILL WORKING AND NO CHANGES HAVE OCCURRED.”
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{¶ 3} Appellee has been actively involved in the child’s life since March 20, 2002,
when it filed a complaint that alleged the child to be a dependent child. Appellee alleged
that the child’s home environment was unsanitary. After the court found the child
dependent, it placed the child in appellee’s temporary custody. The child then lived with
his maternal grandparents, but the court allowed the parents to exercise unsupervised
visitation.
{¶ 4} Over the next few years, the child continued to live with his grandparents,
with some intervention from appellee. On January 13, 2006, appellee filed a motion to
place the child in a planned permanent living arrangement. On September 21, 2006, the
magistrate recommended that the court place the child in a PPLA. The magistrate found:
(1) the child has been in appellee’s temporary custody since August 24, 2004; (2) the
child’s parents “have significant physical, mental, or psychological problems and are
unable to care for the child because of those problems”; (3) the “child has a significant and
positive relationship with his parents, maternal grandparents, and siblings, such that a
continued meaningful relationship with said parents and relatives is in the child’s best
interest”; (4) no appropriate relatives are available to care for the child; (5) appellee “has
considered all other possible dispositions for said child” and (5) the parents consented to a
PPLA. On that same date, the trial court adopted the magistrate’s decision.
{¶ 5} On May 18, 2009, appellee filed a motion for permanent custody. Appellee
asserted that the child recently underwent a psychological evaluation, which indicated that
the child would benefit from being adopted by his foster parents.
{¶ 6} On March 14, 2011, the guardian ad litem filed a report that observed: (1) the
ROSS, 11CA3269 3
child has been with the foster family for five years; (2) when the guardian ad litem met with
the child, the child stated that he is not “sad” when he does not get to see his mother; and
(3) the child loves his biological mother, but feels that the foster parents are his parents.
The guardian ad litem believed that the adoption is in the child’s best interests. He noted
that despite ample opportunity, appellant has been unable to provide a stable home for the
child.
{¶ 7} On June 22, 2011, the child’s attorney filed a written argument. In it, the
attorney stated that it would be in the child’s best interest for the court to grant appellee
permanent custody:
“This child is clearly better off with his current foster parents if they
have the option to pursue adopting him. [The child] is bonded with his
current home and foster parents who are ready, willing and able to adopt
him. He has been in a PPLA since September 2006. He is not as bonded
with either of his parents, and both parents have been proven to be
unsuitable for his care and nurture.”
He continued: “The life this child looks forward to with the fine foster parents (who intend to
adopt) is almost an idyllic life compared to the abysmal, subsistence-level and porn culture
which the parents subjected him to.” The attorney further stated that the child is happy in
his foster home and wishes to stay there.
{¶ 8} On August 1, 2011, the magistrate recommended that the trial court award
appellee permanent custody. The magistrate found: (1) on September 28, 2005, the
child was placed in the Garman foster home, where he has since remained; (2) the parties
agreed to a PPLA in September 2006; (3) appellant regularly visited the child, but is unable
to have home visits or overnight visits; (4) appellant has not maintained stable housing and
her personal hygiene continues to be a problem; (5) the child has done well in his current
ROSS, 11CA3269 4
foster home and in school; (6) the child is “very bonded” to his foster family and refers to
the foster parents as “Mommy and Daddy”; (7) the child has acted out after visits; (8) the
child is not upset if a visit is cancelled; (9) the foster parents wish to adopt the child and
would maintain contact with the child’s biological relatives; (10) being adopted would
provide the child “with a more normal and stable environment”; (11) the child was
counseled on the issue of adoption and did not express a preference; (12) the child is in
need of a legally secure placement that cannot be granted without permanent custody; (13)
appellee has made reasonable efforts; and (14) it is in the child’s best interest to place the
child in appellee’s permanent custody.
{¶ 9} The trial court subsequently adopted the magistrate’s decision, and this
appeal followed.
{¶ 10} In her sole assignment of error, appellant argues that the trial court erred by
awarding appellee permanent custody. Appellant asserts that the trial court should have
determined that placing the child with a relative or continuing the child in a PPLA would
serve the child’s best interests. She suggests that a trial court must find that a child is
unqualified for a PPLA before awarding permanent custody to a children’s services agency
and that permanent custody cannot be in a child’s best interest when a PPLA would serve
those same interests. In essence, appellant asserts that the trial court is required to
choose the least drastic alternative. She also asserts that the trial court erred by failing to
consider the child’s wishes.
{¶ 11} Appellee argues that appellant did not file Juv.R. 40(D) objections to the
magistrate’s decision and, thus, has waived the right to assign error on appeal.
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A
FAILURE TO FILE OBJECTIONS
{¶ 12} Initially, we consider appellee’s argument that appellant has waived the right
to assign the trial court’s adoption of the magistrate’s decision as error on appeal.1 We
recently addressed this same issue in In re D.N., Ross App. No. 11CA3203,
2011-Ohio-4627:
“‘The juvenile rules require written objections to a magistrate’s
decision to be filed within 14 days of the decision. Juv.R. 40(D)(3)(b)(I).
The rules provide that “[e]xcept for a claim of plain error, a party shall not
assign as error on appeal the court’s [adoption] of any factual finding or
legal conclusion * * * unless the party has objected to that finding as
required by Juv.R. 40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv). This waiver under
the rule embodies the long-recognized principle that the failure to draw the
trial court’s attention to possible error when the error could have been
corrected results in a waiver of the issue for purposes of appeal. In re
Etter (1998), 134 Ohio App.3d 484, 492.’”
Id. at ¶21, quoting In re D.S., Clermont App. Nos. CA2010–08–058, CA2010–08–064, &
CA2010–08–065, 2011–Ohio–1279, at ¶31.
{¶ 13} Thus, the failure to file written objections challenging a finding of fact or
conclusion of law precludes a party from assigning as error on appeal the court’s adoption
1 1
On December 6, 2011, appellant filed a reply to appellee’s brief. Appellant asserts that
objections to the magistrate’s decision were “impossible and not necessary,” because the trial court
immediately adopted the magistrate’s decision. Appellant’s assertion is incorrect.
Civ.R. 53(D)(3)(b)(I) states that “[a] party may file written objections to a magistrate’s decision
within fourteen days of the filing of the decision, whether or not the court has adopted the decision during
that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(I).”
Civ.R. 53(D)(4)(e)(I) permits a court to “enter a judgment either during the fourteen days permitted
by Civ.R. 53(D)(3)(b)(I) for the filing of objections to a magistrate's decision or after the fourteen days have
expired.” “If the court enters a judgment during the fourteen days permitted by Civ.R. 53(D)(3)(b)(I) for
the filing of objections,” a party is not excused from filing objections to the magistrate’s decision. Civ.R.
53(D)(4)(e)(I). Rather, “the timely filing of objections to the magistrate’s decision shall operate as an
automatic stay of execution of the judgment until the court disposes of those objections and vacates,
modifies, or adheres to the judgment previously entered.” Id.
Thus, under the plain terms of Civ.R. 53, the trial court’s immediate adoption of the magistrate’s
decision did not render it impossible or unnecessary for appellant to object to the magistrate’s decision.
ROSS, 11CA3269 6
of that finding or conclusion, absent plain error. In re Z.A.P., 177 Ohio App.3d 217,
2008-Ohio-3701, 894 N.E.2d 342, ¶15. The plain error doctrine is applicable in civil cases
only where the error “seriously affects the basic fairness, integrity, or public reputation of
the judicial process[.]” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 123, 679 N.E.2d
1099.
{¶ 14} Moreover, when a party fails to file objections to a magistrate’s decision, an
appellate court may not consider a transcript of the hearing before the magistrate. As we
explained in Z.A.P. at ¶¶21-23:
“Under Juv.R. 40(D)(3)(b)(iii), a party objecting to a magistrate’s
factual finding is required to support the objection with a transcript of all the
evidence submitted to the magistrate relevant to that finding. The trial
court may properly adopt a magistrate’s factual findings without further
consideration when the objecting party fails to provide the court with a
transcript of the magistrate’s hearing or other relevant material to support
their objections. In re Maxwell, Ross App. No. 05CA2863, 2006-Ohio-527,
2006 WL 290292, at ¶27, citing Proctor v. Proctor (1988), 48 Ohio App.3d
55, 60, 548 N.E.2d 287, in turn citing Purpura v. Purpura (1986), 33 Ohio
App.3d 237, 515 N.E.2d 27.
The fact that [appellant] failed to file objections at the trial level and
failed to provide the trial court with a transcript or affidavit precludes us from
considering the transcript she has submitted in this appeal. See Maxwell,
2006-Ohio-527, 2006 WL 290292, at ¶28, citing Lincoln S. & L. Assn. v.
Damron, Lawrence App. No. 02CA4, 2003-Ohio-2596, 2003 WL 21152844.
See also State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio
St.3d 728, 730, 654 N.E.2d 1254. “This is because appellate courts will
not take into consideration evidence not presented before the trial court.’
Maxwell, citing Unger v. Reams (Aug. 6, 1993), Lake App. No. 92-L-116,
1993 WL 317448. Furthermore, ‘[w]hen portions of the record necessary
for the determination of an assigned error are absent, the reviewing court
has nothing to pass on and has no choice but to presume the validity of the
trial court’s proceedings.’ Lincoln at ¶27, citing Metzger v. Metzger (Aug.
21 1989), Crawford App. No. 3-87-39, 1989 WL 94813.
{¶ 15} Without the transcript properly before us, we simply have no basis to
ROSS, 11CA3269 7
conclude that the trial court erred in adopting the magistrate’s factual findings. To the
extent that [appellant]’s assignment of error is based on challenges to the factual findings,
we must presume the validity of the trial court’s proceeding and reject her contention that
the trial court erred in adopting the magistrate’s decision.”
{¶ 16} In the case sub judice, appellant did not object to the magistrate’s decision.
Thus, we may review the trial court’s decision only for plain error. Furthermore, because
the transcript was not before the trial court, we may not consider it. Consequently, based
upon our review of the limited record before us, we are unable to conclude that the trial
court's awarding permanent custody to appellee constitutes plain error.
B
STANDARD OF REVIEW
{¶ 17} Generally, an appellate court will not reverse a trial court’s permanent
custody decision if some competent and credible evidence supports the judgment. In re
Perry, Vinton App. Nos. 06CA648 and 06CA649, 2006-Ohio-6128, at ¶40, citing State v.
Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. Thus, our review of a trial court’s
permanent custody decision is deferential. See In re Hilyard, Vinton App. Nos. 05CA600,
05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, 05CA609, at
¶17. Moreover, “an appellate court should not substitute its judgment for that of the trial
court when there exists competent and credible evidence supporting the findings of fact
and conclusion of law.” Schiebel, 55 Ohio St.3d at 74. Issues relating to the credibility of
witnesses and the weight to be given the evidence are primarily for the trier of fact. As the
court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461
ROSS, 11CA3269 8
N.E.2d 1273: “The underlying rationale of giving deference to the findings of the trial court
rests with the knowledge that the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Moreover, deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger (1997), 77 Ohio St.3d 415, 419, 674 N.E.2d 1159; see, also, In re Christian,
Athens App. No. 04CA10, 2004-Ohio-3146.
C
STANDARD FOR GRANTING PERMANENT CUSTODY
{¶ 18} A trial court may not grant a permanent custody motion absent clear and
convincing evidence to support the judgment. The Ohio Supreme Court defined “clear
and convincing evidence” as:
“The 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.”
{¶ 19} In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23;
see, also, Schiebel, 55 Ohio St.3d at 74. In reviewing 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.” Schiebel, 55 Ohio St.3d at 74.
D
ROSS, 11CA3269 9
PERMANENT CUSTODY PRINCIPLES
{¶ 20} 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 (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599;
In re Murray (1990), 52 Ohio St.3d 155, 156, 556 N.E.2d 1169; see, also, 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. See 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 pole star or controlling
principle to be observed.’” In re Cunningham (1979), 59 Ohio St.2d 100, 106, 391 N.E.2d
1034 (quoting In re R.J.C. (Fla.App.1974), 300 So.2d 54, 58). Thus, the state may
terminate parental rights when a child’s best interest demands such termination. D.A. at
¶11.
{¶ 21} 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. See R.C. 2151.414(A)(1). Additionally, when considering whether
to grant a children services agency permanent custody, a trial court should consider the
underlying principles of R.C. Chapter 2151:
(A) To provide for the care, protection, and mental and physical
development of children * * *;
***
(B) To achieve the foregoing purpose[ ], whenever possible, in a
family environment, separating the child from its parents only when
necessary for his welfare or in the interests of public safety.
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E
PERMANENT CUSTODY FRAMEWORK
{¶ 22} 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:
(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.
(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.
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.
ROSS, 11CA3269 11
{¶ 23} Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when a child has
been in a children services agency’s temporary custody for twelve or more months of a
consecutive twenty-two month period, a trial court need not find that the child cannot or
should not be placed with either parent within a reasonable time. See, e.g., In re T.F.,
Pickaway App. No. 07CA34, 2008-Ohio-1238, at ¶23; In re Williams, Franklin App. No.
02AP-924, 2002-Ohio-7205; In re Dyal (Aug. 9, 2001), Hocking App. No. 01CA11.
Consequently, when considering a R.C. 2151.414(B)(1)(d) permanent custody motion, the
only other consideration becomes the child’s best interests. A trial court need not conduct
an R.C. 2151.414(B)(1)(a) analysis of whether the child cannot or should not be placed
with either parent within a reasonable time. Dyal; see, also, In re Berkley, Pickaway App.
Nos. 04CA12, 04CA13, and 04CA14, 2004-Ohio-4797, at ¶61.
F
BEST INTERESTS
{¶ 24} R.C. 2151.414(D) requires a trial court to consider specific factors to
determine whether a child’s best interests will be served by granting a children services
agency permanent custody. The factors include: (1) the interaction and interrelationship
of the child 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 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; (3) the custodial history of the child; (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
ROSS, 11CA3269 12
listed under R.C. 2151.414(E)(7) to (11) apply.2
{¶ 25} In the case at bar, we do not believe that the trial court erred when it applied
the best interest factors and determined that they support awarding appellee permanent
custody of the child. As the court’s decision notes, the child is bonded to the foster family
and is not as bonded with appellant. The child’s guardian ad litem and attorney both
recommended that the court award appellee permanent custody. The record shows that
the child has been involved with children services for the majority of his young life and has
2
R.C. 2151.414(E)(7) to (11) provide as follows:
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section 2903.01, 2903.02, or 2903.03 of the Revised Code or under an
existing or former law of this state, any other state, or the United States that is substantially equivalent to
an offense described in those sections and the victim of the offense was a sibling of the child or the victim
was another child who lived in the parent’s household at the time of the offense;
(b) An offense under section 2903.11, 2903.12, or 2903.13 of the Revised Code or under an
existing or former law of this state, any other state, or the United States that is substantially equivalent to
an offense described in those sections and the victim of the offense is the child, a sibling of the child, or
another child who lived in the parent's household at the time of the offense;
(c) An offense under division (B)(2) of section 2919.22 of the Revised Code or under an existing
or former law of this state, any other state, or the United States that is substantially equivalent to the
offense described in that section and the child, a sibling of the child, or another child who lived in the
parent’s household at the time of the offense is the victim of the offense;
(d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.06 of the Revised
Code or under an existing or former law of this state, any other state, or the United States requiring
treatment of the parent was journalized as part of a dispositional order issued with respect to the child or
an order was issued by any other court requiring treatment of the parent.
(e) A conspiracy or attempt to commit, or complicity in committing, an offense described in
division (E)(7)(a) or (d) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent
has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent
withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual
means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or
drug abuse and has rejected treatment two or more times or refused to participate in further treatment two
or more times after a case plan issued pursuant to section 2151.412 [2151.41.2] of the Revised Code.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the
child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under an existing
or former law of this state, any other state, or the United States that is substantially equivalent to those
sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.
ROSS, 11CA3269 13
not had a stable home, except for his time with the current foster family. Without
appellee’s intervention, the child lacks a legally secure permanent placement. While
appellee has maintained the child in a PPLA for several years, appellee now believes that
permanent custody, with adoption as the goal, will further the child’s best interests by
providing the foster family with the authority to make decisions on the child’s behalf and by
providing the child with a sense of permanency. Based upon the foregoing factors, we
conclude that the trial court did not err by awarding appellee permanent custody.
{¶ 26} Appellant asserts that the trial court committed reversible error by failing to
consider the child’s wishes. However, nothing in the limited record shows that the court
failed to consider the child’s wishes. Because this alleged error has not been properly
preserved, we presume the regularity of the trial court proceedings and presume that the
trial court considered all relevant factors.
{¶ 27} Appellant also asserts that the trial court was first required to find that the
PPLA is not in the child’s best interests before it awarded appellee permanent custody is
without merit. Her argument, however, is similar to the one rejected in In re Schaefer, 111
Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶64. In Schaefer, the court held that a
trial court does not have a duty to find that terminating parental rights is the “only way” to
provide the children with a legally secure placement. The court explained:
“[The court has no duty to] determine by clear and convincing
evidence that ‘termination of appellant’s parental rights was not only a
necessary option, but also the only option.’ Nor did that duty include the
requirement that the juvenile court find by clear and convincing evidence
that no suitable relative was available for placement. The statute requires
a weighing of all the relevant factors, and the trial court did that in this case.
R.C. 2151.414 requires the court to find the best option for the child once a
determination has been made pursuant to R.C. 2151.414(B)(1)(a) through
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(d). The statute does not make the availability of a placement that would
not require a termination of parental rights an all-controlling factor. The
statute does not even require the court to weigh that factor more heavily
than other factors.”
{¶ 28} Id. Based upon this rationale, we reject appellant’s argument that the trial
court erred by failing to determine that the PPLA no longer served the child’s best interests.
{¶ 29} Moreover, we observe that the Tenth District has rejected the argument that a
child who qualifies for PPLA cannot eventually qualify for permanent custody. See In re
M.P., Franklin App. No. 10AP-478, 2010-Ohio-5877. The court explained:
“ * * * [C]lear statutory language undercuts appellant’s argument.
R.C. 2151.413(C) expressly provides that ‘[a] public children services
agency or private child placing agency that, pursuant to an order of
disposition’ under R.C. 2151.353(A)(5), ‘places a child in a [PPLA] may file
a motion in the court that made the disposition of the child requesting
permanent custody of the child.’ The juvenile court further maintains
continuing jurisdiction pursuant to R.C. 2151.353(E)(1) over ‘any child for
whom the court issues an order of disposition’ under R.C. 2151.353(A) or
2151.414 or 2151.415. Id. Lastly, under R.C. 2151.353(E)(2), ‘[a]ny public
children services agency * * *, by filing a motion with the court, may at any
time request the court to modify or terminate any order of disposition.’ Id.The statutory provisions thus establish FCCS could move for permanent
custody even after the children were placed in a PPLA.
Ohio courts also recognize the evolving nature of such custody
cases, granting motions for permanent custody where the children were
previously in a PPLA. See, e.g., In re K.R., 5th Dist. No.2009 CA 00061,
2009-Ohio-4350 (affirming trial court’s grant of permanent custody where
agency filed motion for permanent custody while child was in a PPLA); In re
Hess, 5th Dist. No.2007CA00262, 2008-Ohio-1920 (affirming trial court’s
grant of permanent custody to agency where child had previously been in a
PPLA); In re J.I., 12th Dist. No. CA2005-05-008, 2005-Ohio-4920, ¶15
(affirming trial court’s grant of permanent custody to agency where child
was in a PPLA at time of motion for permanent custody, and noting
‘[w]hether a child is in a PPLA or in an agency’s temporary custody, the
agency can institute a permanent-custody action under R.C. 2151.413').
Thus, appellant’s argument that the trial court acted improperly in
converting the children’s PPLA status to permanent custody is without
merit.”
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Id. at ¶¶23-24.
{¶ 30} Furthermore, to the extent appellant contends that the trial court should have
placed the child with a relative, we have previously rejected the argument that a court must
consider relative placement before awarding a children services agency permanent
custody. We stated:
“[T]he [permanent custody] statute does not require a juvenile court
to consider relative placement before granting [a] motion for permanent
custody. See In re Dyal (Aug. 9, 2001), Hocking App. No. 01 CA 11; In the
Matter of Knight (Mar. 22, 2000), Lorain App. Nos. 98CA72589 and
98CA726698. In other words, a juvenile court need not find, by clear and
convincing evidence, that a relative is an unsuitable placement option prior
to granting the permanent custody request. Id. Relatives seeking the
placement of the child are not afforded the same presumptive rights that a
natural parent receives as a matter of law, and the willingness of a relative
to care for the child does not alter the statutory factors to be considered in
granting permanent custody. See Dyal; In re Jefferson (Oct. 25, 2000),
Summit App. Nos. 20092 and 20110; In re Davis (Oct. 12, 2000), Cuyahoga
App. No. 77124. Rather, a juvenile court is vested with discretion to
determine what placement option is in the child's best interest. See Dyal;
Patterson; Benavides. The child’s best interests are served by the child
being placed in a permanent situation that fosters growth, stability, and
security. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574
N.E.2d 1055. Therefore, 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. See In re Schaefer, 111 Ohio St.3d 498,
2006–Ohio–5513, 857 N.E.2d 532, ¶64; see, also, In re Dyal, Hocking App
No. 01CA11, 2001–Ohio–2383; see, also, In re Lewis, Athens App. No.
01CA20, 2001–Ohio–2618; In re Wilkenson, (Oct 12, 2001), Hamilton App.
No. C–010402, C–010408; Knight.”
In re A.C.H., Gallia App. No. 11CA2, 2011-Ohio-5595, ¶44.
{¶ 31} Consequently, we reject appellant’s arguments that the trial court should
have considered a placing the child with a relative or continuing the child in the PPLA
before awarding appellee permanent custody. We further reject her argument that the trial
court erred by awarding appellee permanent custody.
ROSS, 11CA3269 16
{¶ 32} Accordingly, based upon the foregoing reasons, we hereby overrule
appellant’s assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant
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 Ross
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY: ______
Peter B. Abele
Presiding 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