In re B.J. , 2021 Ohio 373 ( 2021 )

[Cite as In re B.J., 2021-Ohio-373.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: B.J. : APPEAL NOS. C-200372
C-200376
: TRIAL NO. F18-835Z
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: February 10, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alyssa M. Miller,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Kathleen Kenney,
Assistant Public Defender, for Appellee Guardian ad Litem,
Jeffrey J. Cutcher, for Appellant Mother,
Barr, Jones & Associates and Christopher Sawyer, for Appellant Maternal
Grandfather.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Both mother and maternal grandfather have appealed the trial court’s
entry granting permanent custody of B.J. to the Hamilton County Department of Job
and Family Services (“HCJFS”). Because we find that the trial court’s determination
that a grant of permanent custody was in B.J.’s best interest was not supported by
sufficient evidence, we reverse the trial court’s judgment.
Factual and Procedural Background
{¶2} HCJFS filed a complaint seeking temporary custody of B.J. on June 11,
2018, several days after B.J.’s birth. The agency was awarded an interim order of
temporary custody pending a full hearing on the complaint, and B.J. was placed in a
foster home. An amended complaint for temporary custody was filed on June 22,
2018, alleging that B.J. was abused and dependent and that mother had severe
mental-health issues and posed a threat to B.J.
{¶3} On July 10, 2018, a juvenile court magistrate issued an order directing
that a home study be completed on maternal grandfather, who resided in Nebraska,
pursuant to the Interstate Compact on the Placement of Children (“ICPC”). The
initial case plan for B.J. filed by HCJFS indicated that maternal grandfather had
been in contact with the agency and was willing to work with ICPC to take placement
of B.J.
{¶4} Following an adjudication and disposition hearing, B.J. was
adjudicated dependent and HCJFS’s motion for temporary custody was granted. The
magistrate dismissed the allegation of abuse.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On December 13, 2018, HCJFS filed a “Semi-Annual Administrative
Review.” The review indicated that a home study had been completed on maternal
grandfather, but that he still needed to undergo a background check prior to being
approved to care for B.J.
{¶6} On March 19, 2019, HCJFS filed a motion to modify temporary
custody to permanent custody, alleging that B.J. could not or should be placed with
either parent within a reasonable time and that a grant of permanent custody was in
B.J.’s best interest. Maternal grandfather subsequently filed a petition for custody of
B.J. and a motion to remand B.J. into his custody. And both maternal grandfather
and mother filed motions to extend temporary custody. B.J.’s guardian ad litem filed
a report recommending that permanent custody be granted to HCJFS.
{¶7} A hearing was held before a juvenile court magistrate on these
competing motions. HCJFS caseworker Amber Mingo-Foggie testified that mother
was listed as an absent parent in B.J.’s case plan due to consistent noncontact with
the agency. HCJFS had requested that mother undergo mental-health services and
engage with the agency, but she failed to do so. Mother told Mingo-Foggie that she
had moved to Nebraska and was engaged in mental-health services there, but she
failed to sign a release of information so that HCJFS could obtain documentation of
these services. L.E. was established as the legal father of B.J., but he did not
participate in the proceedings and never visited with B.J. or provided child support.
{¶8} Mingo-Foggie testified that B.J. has been in the same foster home
since birth, that B.J. was bonded with her foster family, and that it was a foster-to-
adopt placement. Mingo-Foggie further testified that she believed a grant of
permanent custody was in B.J.’s best interest, and that HCJFS was not in support of
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OHIO FIRST DISTRICT COURT OF APPEALS
a grant of custody to maternal grandfather, who had only visited with B.J. twice since
her birth. HCJFS had concerns that maternal grandfather would be unable to
adequately protect B.J. because he had a guardianship over mother, whom the
agency had not approved to visit B.J. because of her mental-health issues. This
concern over maternal grandfather’s ability to protect B.J. was based on a statement
that maternal grandfather made to Mingo-Foggie indicating that he hoped mother
would return to Nebraska if B.J. was placed in his care. Mingo-Foggie testified that
an ICPC home study had been completed and that it approved of maternal
grandfather’s home for placement of B.J.
{¶9} Maternal grandfather testified that he lived in Omaha, Nebraska. He
was currently unemployed after losing his job due to his travel to Ohio for the
custody proceedings, but he had a job waiting for him upon his return to Nebraska.
Maternal grandfather indicated that mother had lived with him for several weeks
when she first moved back to Nebraska. He explained that he was mother’s legal
guardian, and that he had allowed mother to live with him while he obtained
medication and alternate housing for her. He introduced into evidence a lease
documenting mother’s residence in Salvation Army housing. Maternal grandfather
addressed HCJFS’s concerns that he would be unable to protect B.J. from mother,
testifying that if mother attempted to see B.J. without court approval he would call
911 or the Board of Mental Health for assistance. He explained that he had a room
for B.J. set up in his home.
{¶10} Darryl Summers, brother of maternal grandfather, testified that he had
no concerns with maternal grandfather’s ability to provide a safe and loving home for
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OHIO FIRST DISTRICT COURT OF APPEALS
B.J. He described maternal grandfather as a very positive and ethical individual who
was constantly helping his church and community.
{¶11} During closing arguments, counsel for mother stated that mother was
in favor of B.J. being placed with maternal grandfather. The magistrate issued a
decision finding that neither parent was appropriate to care for B.J., and that an
extension of temporary custody to HCJFS and placement with maternal grandfather
was in B.J.’s best interest. The magistrate accordingly granted the motions for
extensions of temporary custody and denied HCJFS’s motion to modify temporary
custody to permanent custody.
{¶12} Both HCJFS and B.J.’s guardian ad litem filed objections to the
magistrate’s decision. The trial court issued an entry granting the objections and
rejecting the magistrate’s decision after finding that it was not supported by the
evidence. The court held that it was undisputed that B.J. could not or should not be
placed with either parent within a reasonable time, and that a grant of permanent
custody was in B.J.’s best interest. The trial court granted HCJFS’s motion to modify
temporary custody to permanent custody and denied the competing motions filed by
mother and maternal grandfather.
Best-Interest Analysis
{¶13} Both mother and maternal grandfather have appealed. Each raises a
single assignment of error challenging the sufficiency and the weight of the evidence
supporting the trial court’s determination that a grant of permanent custody was in
B.J.’s best interest.
{¶14} A juvenile court’s determination on a motion for permanent custody
must be supported by clear and convincing evidence. In re W Children, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-180620, 2019-Ohio-690, ¶ 34. Clear and convincing evidence is
evidence sufficient to “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. In reviewing a juvenile court’s
determination on a permanent-custody motion, we must examine the record and
determine if the juvenile court had sufficient evidence before it to satisfy the clear-
and-convincing standard. In re W Children at ¶ 34. In reviewing a challenge to the
weight of the evidence, we review the record to determine whether the trial court lost
its way and created such a manifest miscarriage of justice in resolving conflicts in the
evidence that its judgment must be reversed. In re J.W. and H.W., 1st Dist.
Hamilton No. C-190189, 2019-Ohio-2730, ¶ 13.
{¶15} Under R.C. 2151.414(B), a trial court may grant permanent custody if it
finds that a grant of permanent custody is in the child’s best interest and that one of
the conditions in R.C. 2151.414(B)(1) applies. In re H.R.H., 1st Dist. Hamilton No. C-
200071, 2020-Ohio-3160, ¶ 16. Here, the trial court found that under R.C.
2151.414(B)(1)(a), B.J. could not or should not be placed with either parent within a
reasonable time and that a grant of permanent custody was in B.J.’s best interest.
Neither mother nor maternal grandfather challenge the trial court’s determination
that B.J. could not or should not be placed with either parent within a reasonable
time. Rather, both challenge the trial court’s finding that a grant of permanent
custody was in B.J.’s best interest.
{¶16} In determining whether permanent custody is in a child’s best interest,
the juvenile court must consider all relevant factors, including: (a) the child’s
interaction with parents, siblings, relatives, foster caregivers and out-of-home
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OHIO FIRST DISTRICT COURT OF APPEALS
providers, and any other person who may significantly affect the child; (b) the child’s
wishes; (c) the custodial history of the child; (d) the child’s need for a legally secure
placement and whether that type of placement can be achieved without a grant of
permanent custody; and (e) whether any of the factors under R.C.
2151.414(E)(7) to (E)(11) apply. See R.C. 2151.414(D)(1)(a)-(e). When considering
these best-interest factors, “[n]o single factor is given greater weight or heightened
significance.” In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-
3637, ¶ 35.
{¶17} With respect to the factor in R.C. 2151.414(a), the trial court found that
B.J. had been placed with the same foster family since birth and that she was well
bonded with that family. The court also recognized that maternal grandfather had
visited with B.J. twice and that the visits had gone well. In considering the factor in
R.C. 2151.414(b), the trial court found that B.J. was too young to express her own
wishes, but that her guardian ad litem was in favor of a grant of permanent custody.
{¶18} As to the factor in R.C. 2151.414(c), which required the trial court to
consider B.J.’s custodial history, the trial court found that B.J. had been in the
temporary custody of HCJFS for more than 12 months of a consecutive 22-month
period, and had been in agency custody nearly her entire life.
{¶19} With respect to the factor in R.C. 2151.414(D)(1)(d), the trial court
found that B.J. was in need of a legally secure placement. It recognized that an ICPC
home study had approved maternal grandfather for placement, but stated that it had
concerns about maternal grandfather’s ability to be both the legal guardian for
mother and B.J. And last, under the factor set forth in R.C. 2151.414(D)(1)(e), the
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OHIO FIRST DISTRICT COURT OF APPEALS
trial court cited division (E)(10) of R.C. 2151.414 to find that both parents had
abandoned B.J.
{¶20} The trial court’s findings under the best-interest factors set forth in
R.C. 2151.414(D)(1)(a), (b), and (e) were supported by sufficient evidence. As to its
finding under R.C. 2151.414(D)(1)(c) regarding B.J.’s custodial history, the trial
correctly noted that B.J. had been in agency custody almost her entire life. But as to
its finding that B.J. had been in agency custody for 12 or more months of a
consecutive 22-month period, we note that B.J. had only been in agency custody for
approximately seven and a half months at the time that the motion for permanent
custody was filed.
{¶21} While, under the factor set forth in R.C. 2151.414(D)(1)(d), B.J. is
clearly in need of a legally secure placement, we are troubled by the trial court’s
finding that maternal grandfather lacked the ability to serve as a guardian for both
mother and B.J. This finding was based on speculation. B.J. has yet to be placed in
maternal grandfather’s care, and he accordingly has never been in the position to
protect B.J. from mother or failed to do so. Maternal grandfather’s testimony, in
fact, supported a finding that he would not hesitate to protect B.J. and would call 911
or the Board of Mental Health if needed to protect her from mother. The record
contains no evidence indicating that maternal grandfather’s guardianship over
mother would impair his ability to protect B.J.; rather, it indicates that maternal
grandfather is a loving parent who is concerned about his daughter—mother—but
who is willing to put the needs of B.J. first.
{¶22} Maternal grandfather has expressed an interest in caring for B.J. since
her birth. He traveled to Ohio from Nebraska multiple times for the court
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OHIO FIRST DISTRICT COURT OF APPEALS
proceedings and has filed petitions for B.J.’s custody. While his visits with B.J. have
been few, they have indisputably gone well. Maternal grandfather also fully
participated with the ICPC home-study process. The home study completed on
maternal grandfather indicates that he, along with his wife, are responsible for their
teenage son who is in high school and has plans to study business in college, and who
is involved in the family’s church. Maternal grandfather has a steady income and a
safe home where B.J. will have her own bedroom. He also has a strong family
support system, including his brother Darryl Summers who testified at trial. The
home study approved of maternal grandfather’s home for placement of B.J., stating
that:
[Maternal grandparents] appear to be caring, kind, and compassionate
people. They have a safe, stable home and a steady source of income.
They have a good support network of family and church members.
[Grandmother] is unemployed, which allows her time to care for the
needs of an infant. [Grandparents] have a good understanding of their
daughter’s mental health needs and are able to establish strong
boundaries with her, in order to maintain [B.J.’s] safety and well-
being.
{¶23} The record demonstrates that a legally secure placement for B.J. could
be obtained with maternal grandfather. We therefore find that the trial court’s
determination that a grant of permanent custody to HCJFS was in B.J.’s best interest
was not supported by sufficient evidence. Mother’s and maternal grandfather’s
assignments of error are sustained.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} The trial court’s grant of permanent custody is reversed, and this case
is remanded for further proceedings.
Judgment reversed and cause remanded.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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