In re G.M. , 2011 Ohio 4090 ( 2011 )

[Cite as In re G.M., 2011-Ohio-4090.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95410
IN RE: G.M.
Minor Child
[APPEAL BY GRANDMOTHER, P.C.M.]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 08935487
BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEY FOR APPELLANT GRANDMOTHER
Jeffrey R. Froude
P.O. Box 761
Wickliffe, OH 44092-0761
ATTORNEY FOR APPELLEES A.M., ET AL., FOSTER PARENTS
Mark Witt
6209 Barton Road
North Olmsted, OH 44070-3856
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant County Prosecutor
Cuyahoga County Department of Children
and Family Services
4261 Fulton Parkway
Cleveland, OH 44144
GUARDIAN AD LITEM FOR CHILD
Russell Ezolt
26341 Strawberry Lane
Westlake, OH 44145
MELODY J. STEWART, P.J.:
{¶ 1} Appellant, P.C.M., the maternal grandmother to a now
four-year-old child, G.M., appeals from a juvenile division order that granted
legal custody of the child to foster parents, J.M. and A.M. The grandmother
complains that the court lacked jurisdiction to hear the case, that the child’s
guardian ad litem had no authority to file a motion on behalf of the foster
parents, and the court’s judgment is against the manifest weight of the
evidence.1
I
{¶ 2} The child was born to a teenage mother in California in
November 2006. His paternity has not been established. The child and
mother lived with the grandmother, but the grandmother’s full-time pursuit
of a nursing degree meant that various family members helped raise him. In
February 2008, the grandmother moved from California to Georgia and
brought the child with her. The mother stayed behind in California and
would occasionally visit in Georgia. At times, the mother took the child to
During oral argument, the guardian ad litem suggested that we lacked jurisdiction to hear this
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appeal because the court did not establish a visitation schedule, instead deferring that matter for a later
hearing. We disagree. Unlike permanent custody cases that require both an adjudicatory and
dispositional order for finality, see In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607,
¶8, “[t]here is no provision within R.C. Chapter 2151 addressing motions for visitation filed by a
parent who has lost legal custody of a child after a finding of dependency.” In re C.J., 4th Dist. No.
10CA681, 2011-Ohio-3366, ¶15. Visitation is thus ancillary to legal custody and has no effect on
the finality of a legal custody order.
Ohio to visit with his maternal grandfather, M.M. By April 2008, the
grandmother was devoting so many hours to advancing her nursing career
that she arranged for some friends in Ohio to foster the child. The foster
parents apparently understood this arrangement to be a prelude to their
adopting the child. In June 2008, the child required medical attention, but
the foster parents were unable to have the child treated because they had no
legal authority over the child. The Cuyahoga County Department of
Children and Family Services (“agency”) filed an emergency motion for
temporary custody of the child so that the child could obtain medical
treatment. The court appointed a guardian ad litem for the child, granted
the agency’s motion for emergency custody, and placed him with the foster
parents.
{¶ 3} In June 2009, the agency filed a motion asking the court to award
legal custody of the child to the grandmother. The child’s guardian ad litem
objected and filed his own motion asking the court to award legal custody of
the child to the foster parents. The paternal grandfather then filed his own
motion for legal custody. The parties later reached an interim agreement on
visitation and withdrew their respective motions, and the court continued the
child in the temporary custody of the foster parents.
{¶ 4} The agreement between the parties unraveled, however, when
the agency filed an amended case plan in which it stated a goal to return the
child to the grandmother. The child’s guardian ad litem objected and filed a
new motion asking the court to grant legal custody to the foster parents. The
agency filed a new motion asking the court to grant legal custody to the
grandmother, and the grandfather filed a new motion seeking legal custody
for himself. The court conducted a hearing on the motions and found that it
would be in the child’s best interests to have legal custody placed with the
foster parents.
II
{¶ 5} The grandmother first argues that the court lacked jurisdiction to
hear the matter under the Interstate Compact on the Placement of Children
(“ICPC”) because the child had spent less than six months in the state of Ohio
at the time motions for legal custody were filed. She argues that only the
California or Georgia courts could rule on the custody motions.
{¶ 6} The ICPC is a contract among member states and U.S. territories
authorizing them to work together to ensure that children who are placed
across state lines for foster care or adoption receive adequate protection and
support services. See R.C. 5103.20, Article I, Section (A)-(C). This is
accomplished by ensuring that if a child is moved across state lines, that
child’s rights are protected as if they were in their home state and all legal
requirements are observed. The compact characterizes states as either
“sending” or “receiving.” The sending agency/state is a member state that
sends, brings, or causes to be sent or brought any child to another member
state. Id. at Article II, Section (T). The receiving state is the state to which
the child is sent, brought, or caused to be sent or brought for placement with
state or local public authorities, or for placement with private agencies or
persons. Id. at Article II, Section (P). The ICPC states that jurisdiction is
vested in the sending state “over a child with respect to all matters of custody
and disposition of the child which it would have had if the child had remained
in the sending state. Such jurisdiction shall also include the power to order
the return of the child to the sending state.” Id. at Article IV, Section (A).
{¶ 7} The ICPC applies only if a state had previously exerted some
form of jurisdiction over a child. The record does not show that any other
state agency had exerted jurisdiction over the child before he was moved to
Ohio. It appears that the first time a state agency became involved occurred
when the agency sought temporary custody of the child in order to allow the
foster parents to obtain medical treatment for him. The ICPC thus had no
application to this case, and the court properly exercised jurisdiction to decide
who should have legal custody of the child.
III
{¶ 8} The grandmother next argues that the child’s guardian ad litem
lacked authority to file a motion for legal custody on behalf of the foster
parents. She maintains that the guardian ad litem could only file a motion
for custody in his own name, not in the name of another person, and in any
event had to file a statement of understanding as required by R.C.
2151.353(A)(3).
{¶ 9} A child’s guardian ad litem is required to “perform whatever
functions are necessary to protect the best interests of the child *** and shall
file any motions and other court papers that are in the best interests of the
child.” R.C. 2151.281(I) (emphasis added). Thus, “[a] guardian ad litem has
authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a
motion to terminate parental rights and award permanent custody in a child
welfare case.” In re C.T., 119 Ohio St.3d 494, 2008-Ohio-4570, 895 N.E.2d
527. It follows that the guardian ad litem could, in this case, file and
prosecute a motion seeking to award legal custody of the child.
{¶ 10} It is true that the guardian ad litem did not, concurrent with the
filing of his motion to award legal custody of the child to the foster parents,
file the foster parents’ statement of understanding as required by R.C.
2151.353(A)(3).2 A person proposed as a legal custodian of a child “shall be
A “statement of understanding” expresses, among other things, the intent of a person to
2
become the legal custodian of the child; that the person is able to assume legal responsibility for the
care and supervision of the child; that the person understands that legal custody of the child in
question is intended to be permanent in nature and that the person will be responsible as the custodian
for the child until the child reaches the age of majority; and that the parents of the child have residual
parental rights, privileges, and responsibilities, including, but not limited to, the privilege of
reasonable visitation, consent to adoption, the privilege to determine the child’s religious affiliation,
and the responsibility for support. See R.C. 2151.353(A)(3)(a)-(d).
awarded legal custody of the child only if the person identified signs a
statement of understanding for legal custody ***.” Id. Apart from stating
that the court cannot award legal custody to a party that has not filed a
statement of understanding, the statute does not give any specific time frame
in which the statement of understanding must be filed. The failure to file
the statement at the time of the motion for legal custody thus cannot be
considered a jurisdictional defect — the failure to file only affects the court’s
ability to award legal custody.
{¶ 11} On the final day of the hearing, May 11, 2010, the grandmother,
grandfather, and the agency made an oral motion to dismiss the guardian ad
litem’s motion to award legal custody to the foster parents on grounds that
the foster parents had not filed a statement of understanding. The court
agreed that the statement should have been filed earlier but also noted that
“it’s something that should have been caught earlier” by a magistrate or the
parties. It orally denied the motion to dismiss, instructed the foster parents
to file the statement by the following day, and stated its intent to grant legal
custody to the foster parents. The foster parents filed their statement of
understanding on May 12, 2010; the court issued the journal entry granting
legal custody on June 12, 2010. Since the court speaks only through its
journal, Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 382, 667 N.E.2d 1194,
there is no question that the court did not grant legal custody until after the
statement of understanding had been filed.
{¶ 12} Although we find no jurisdictional impediment exists in this case,
prudence would suggest that a statement of understanding be filed as a part
of a motion for legal custody. But in a case like this, where the foster
parents essentially testified to all that would have been contained in the
statement of understanding, the court could, before issuing a journal entry
awarding legal custody, ask the foster parents to rectify an obvious oversight
in order to achieve full compliance with R.C. 2151.353(A)(3).
IV
{¶ 13} For her final argument, the grandmother argues that the court’s
decision to award legal custody to the foster parents is against the manifest
weight of the evidence. Claiming that there “is a fairly even division of
positives and negatives for the child regardless of who gets custody,” she
maintains that the court should have been guided by the statutory
presumption that the child be placed with a suitable member of his extended
family — a presumption that would have tipped the scales in her favor.
A
{¶ 14} After a child is adjudicated abused, neglected, or dependent, the
court may award legal custody to a non-parent after finding that legal
custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C.
2151.415(B). Legal custody is significantly different than the termination of
parental rights — despite losing legal custody of a child, the parents of the
child retain residual parental rights, privileges, and responsibilities. R.C.
2151.353(A)(3)(c). For this reason, we apply the less restrictive
“preponderance of the evidence” standard of appellate review to the court’s
factual findings. In re S.E., 8th Dist. No. 96031, 2011-Ohio-2042, ¶14, citing
In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552.
However, when considering the court’s ultimate decision on whether the facts
as determined would make it in the child’s best interests to be placed in legal
custody, we apply the abuse of discretion standard. In re B.H., 8th Dist. No.
95794, 2010-Ohio-1967, ¶10.
{¶ 15} Unlike R.C. 2151.414(D), which sets forth specific factors that the
court must consider before terminating parental rights and granting
permanent custody, R.C. 2151.353(A)(3) does not independently set forth
factors that the court should consider for determining the child’s best
interests in a request for legal custody. Some appellate decisions suggest
that the trial courts apply the best interests factors set forth in R.C.
2151.414(D), the permanent custody statute. See, e.g., In re S.N., 9th Dist.
No. 23571, 2007-Ohio-2196, at ¶27; In re Eicher Children, 1st Dist. Nos.
C-080107 and C-080121, 2008-Ohio-2196, ¶15; In re Burnette, 5th Dist. No.
2007CA00076, 2007-Ohio-6269, ¶29. Other appellate courts, including this
district, have suggested that the trial court consider the best interests
factors set forth in R.C. 3109.04(F). See, e.g., In re J.O., 8th Dist. No. 87626,
2010-Ohio-407, ¶11; In re Fulton, 12th Dist. No. CA2002-09-236,
2003-Ohio-5984.
{¶ 16} The differences in the best interests factors are of no great
consequence, however, because the different statutes are merely instructive
on the question of a child’s best interests. In re Pryor (1993), 86 Ohio App.3d
327, 335, 620 N.E.2d 973. Rules of statutory construction state that it is
generally presumed that the General Assembly acts intentionally and
purposely when it includes particular language in one section of a statute but
omits it in another. State v. Vanderbilt (1882), 37 Ohio St. 590, 609. By
failing to set forth in R.C. 2151.353(A)(3) factors that the court must consider
when it had specifically done so in other statutes, we must presume that the
legislature did not intend to require the consideration of certain factors as a
predicate for granting legal custody. Of course, the courts are free to
consider any factors that they deem appropriate, including various statutory
formulations of a child’s best interests, but consideration of other statutes is
not mandatory.
B
{¶ 17} In oral remarks made at the conclusion of the hearing, the court
stated that the case was one of the most difficult it had ever had because “we
rarely have cases where we have this many good people arguing over a child.”
The court acknowledged that the law prefers placement of a child with
relatives, and that it considered family placements as the preferred course of
action if it could be done. However, the court found that removing the child
from the foster parents would not be in his best interests.
{¶ 18} Contrary to the grandmother’s assertions, the preference for a
family placement as expressed in R.C. 2151.412(G)(2) is not mandatory.
That section states that when, as here, neither parent is capable of
supporting the child or providing for its best interests, “the child should be
placed in the legal custody of a suitable member of the child’s extended
family.” The courts have held that this language is precatory, not
mandatory. See In re Leverett (Mar. 26, 1998), 8th Dist. Nos. 71357-71360;
In re A.E., Franklin App. Nos. 07AP685 and 07AP-748, 2008-Ohio-1375, at
¶35; In re Hiatt (1993), 86 Ohio App.3d 716, 722, 621 N.E.2d 1222. So to the
extent the court found that all parties arguing for custody would have made
for a good placement, it was not bound by the statute to favor the
grandmother.
{¶ 19} As noted, the court acknowledged the statutory preference that a
child be placed with relatives when possible, but ultimately concluded that it
was more important that the child have a “good steady home[.]” It found
that the child has spent the previous two, formative years with the foster
parents, whom he had come to see as his parents. The court found that “I
can’t see removing him, or how removing him from that situation would be in
his best interests.”
{¶ 20} The abuse of discretion standard requires us to affirm a
discretionary ruling by the court unless that ruling is arbitrary,
unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,
157, 404 N.E.2d 144. The grandmother concedes that the foster parents
were suitable for legal custody. She acknowledges that the child had spent
the last half of his life with the foster parents, that they loved the child, were
raising him in a devoutly religious home, and more than adequately provided
for him. And she does not deny that the parties stood in relative balance for
purposes of which of them could serve the child’s best interests as legal
custodians. With these factors present, we necessarily cannot conclude that
the court abused its discretion by finding that an award of legal custody to
the foster parents would be in the child’s best interests.
Judgment affirmed.
It is ordered that appellees recover of appellant their 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 Cuyahoga
County Court of Common Pleas – 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.
___________________________________________
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR