In re J.C. ( 2024 )

[Cite as In re J.C., 2024-Ohio-1505.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. William B. Hoffman, P.J.
J.C. : Hon. Patricia A. Delaney, J.
J.C. : Hon. Craig R. Baldwin, J.
C.C. :
: Case No. 2022 AP 11 0044
: 2022 AP 11 0045
: 2022 AP 11 0046
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 20JN00324
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 19, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Korenna Lint
LISA VITALE ARNOLD NICOLAS DOUGHTY
Tuscarawas County Job and Family 401 Tuscarawas Street West, Suite 201
Services Canton, Ohio 44702
389 16th Street SW
New Philadelphia, Ohio 44663 For Appellee Joshua Cameron
Guardian ad Litem LISA CALDWELL
203 Fair Avenue NE
GERRITT DENHEIJER New Philadelphia, Ohio 44663
222 West Main Street
Ravenna, Ohio 44266
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 2
Baldwin, J.
{¶1} This matter is before this Court on remand from the Supreme Court of Ohio
to apply the correct standard of review.
{¶2} The Mother of J.C., J.C. and C.C. appeals the decision of the Tuscarawas
Court of Common Pleas, Juvenile Division, granting permanent custody of the children to
appellee, Tuscarawas County Job and Family Services.
STATEMENT OF FACTS AND THE CASE
{¶3} This case began with a report in December 2020 that appellant Mother had
recently given birth to C.C. and that testing of the infant’s meconium reflected high levels
of methamphetamine. This discovery was reported to Tuscarawas County Job and Family
Services (TCJFS) who promptly began an investigation and discovered that the parents
tested positive for methamphetamines as well. The infant and two siblings, aged 4 and 6
at the time, were placed with their Great-grandparents under a voluntary safety
agreement and a case plan was drafted and approved. The case plan contained
obligations for the Parents and Great-grandparents.
{¶4} TCJFS grew concerned about the Great-grandparents ability to care for the
children and willingness to comply with the case plan. TCJFS moved to modify the
placement, planning to remove the children from the Great-grandparents and place them
in foster care absent locating another suitable and willing relative placement. The motion
was heard on November 4, 2021 and the court granted the motion. During the hearing,
TCJFS explained that suitable relatives were willing and able to accept the children, but
that the background checks had not been complete. The proposed relatives were present
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 3
at the hearing and the trial court placed them under oath, questioned them about their
criminal history and ordered that the children be placed with them pending the resolution
of the efforts to reunify the children with their parents.
{¶5} Though the relatives were willing to have the children placed with them, they
discovered that these children needed more attention than they had the ability to provide
and asked that they be placed elsewhere. TCJFS had consistently invited the parents to
provide the names of other relatives that might be willing to assist, but none were found
and the children were placed in the temporary custody of TCJFS. (Judgment Entry, March
14, 2022).
{¶6} While the children were outside of the home, the parents had the
opportunity to focus on the requirements of the case plan and to resolve the issues that
caused the removal of the children from the home, but the record reflects they made little
progress, particularly with regard to maintaining their sobriety. TCJFS concluded that the
parents had not made sufficient progress toward curing the issues identified in the case
plan and filed a motion for permanent custody on May 23, 2022. After that motion was
filed the Great-grandparents filed a motion for legal custody May 25, 2022, seeking to
have the children placed in their home.
{¶7} After the children were removed, and before TCJFS filed the motion for
permanent custody, Mother gave birth to another child. As she had been unable to resolve
her drug habit and consistently tested positive for illegal substances, this child was also
removed from her custody. That child’s placement is not addressed in this case.
{¶8} Also, during this period, it was determined that the father of J.C. and J.C.
was not the father of C.C. as revealed by a DNA test. Mother initially insisted he was the
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 4
father, but conceded that another may be the father during a conversation with a case
worker at a court hearing. The putative father was contacted, but he declined to become
involved and refused to appear for a DNA test, so paternity of C.C. was undetermined at
the time of the permanent custody hearing.
{¶9} At the permanent custody hearing, TCJFS offered the testimony of a
psychologist, a counselor, the case worker and the guardian ad litem. The evidence
supported a conclusion that the parents consistently tested positive for use of illegal drugs
during the pendency of the case and had not demonstrated material progress in
maintaining sobriety. The testimony further demonstrated that the parents contact with
the children had been limited, in part due to their inability to maintain sobriety, and that
they made little effort to see or have any contact with the children.
{¶10} The parents offered no evidence or testimony at the permanent custody
hearing, but counsel for Mother did support the Great-grandparents’ motion for legal
custody.
{¶11} The Great-grandfather testified in support of his motion for legal custody,
confirming that he and his wife believed that placement of the children with them was in
the child’s best interest. He agreed that his granddaughter’s drug habit made her
unsuitable to care for the children, but struggled to explain why he permitted his
granddaughter to take a newborn home without insuring that she was no longer using
drugs. He claimed that he could tell when she was under the influence, but did not appear
confident that he would be able to act on that knowledge.
{¶12} TCJFS’s concerns regarding Great-grandparents ability to care for the
children was explored at the hearing that resulted in removal of the children from their
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 5
care in November 2021. Great-grandfather is seventy-one years old and has had both
knees replaced, causing him discomfort during cold weather. His wife is sixty-five and
though both claim to be in good health, the record shows that caring for three children
under the age of six may present a serious challenge to them. The children were removed
from their care in 2021 in part due to concerns that Great-grandparents were unable to
match the children’s energy and closely supervise them. The case worker testified that
during her visit to the home while the children were placed with the Great-grandparents,
J.C., four years old at the time, darted from the home without Great-grandmother noticing.
The case worker also noted that the children were very active in the home and that one
of the children climbed and jumped from a dresser. The youngest child, placed in the
home as an infant, was left unattended on a bed rather than in a more secure crib.
{¶13} The case plan required Great-grandparents to complete a parenting
program, obtain a fetal alcohol syndrome test for one of the children and an evaluation of
the youngest child by the Help Me Grow Program. The Great-grandparents completed
the parenting program, taking much more time than typically allotted, but failed the written
test at the end of the program. They did not see that the fetal alcohol syndrome or Help
Me Grow assessments were completed.
{¶14} The concern about the ability of the Great-grandparents to care for the
children was aggravated by their belief that the children should be permitted to visit their
mother despite her unabated drug habit. While they consistently stated they did not and
would not permit contact, the record shows that they disagreed with that rule. These
issues lead to the Court removing the children from their custody in November 2021.
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 6
{¶15} The Great-grandparents expressed their continued interest in obtaining
custody of the children during the permanent custody hearing, but provided no evidence
that their understanding of the needs and challenges of the children had changed or that
they had invested any time preparing for the placement. Instead they relied upon their
belief that the children would be devastated by their separation and that the trial court’s
decision taking the children from them in the past was based upon faulty evidence.
{¶16} The trial court granted the motion for permanent custody and denied the
motion for legal custody. The Mother appealed and submitted one assignment of error:
{¶17} “I. THE TRIAL COURT'S FINDING THAT PERMANENT CUSTODY WAS
IN THE MINOR CHILD'S BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
{¶18} On April 17, 2023, this Court affirmed the trial court finding it did not abuse
its discretion by finding that the best interest of the child was served by granting
permanent custody to TCJFS.
{¶19} The Ohio Supreme Court accepted the appeal for Case Number 2022 AP
11 0044 on the following certified-conflict question: “When reviewing a trial court’s
decision to terminate parental rights, is the appellate standard of review abuse of
discretion, manifest weight of the evidence, clear and convincing evidence, or sufficiency
of the evidence?” 169 Ohio St.3d 1439, 2023-Ohio-482, 203 N.E.3d 730. The Ohio
Supreme Court remanded the case back to this Court finding “the proper appellate
standards of review to apply in cases involving a juvenile court’s decision under R.C.
2151.414 to award permanent custody of a child and to terminate parental rights are the
sufficiency-of-the-evidence and/or manifest-weight-of-the-evidence standards[.]” In re
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 7
J.C., 2024-Ohio-877; In re Z.C., --- Ohio St.3d ---, 2023-Ohio-4703, --- N.E.3d ---, ¶18.
This Court sua sponte reopened Case Numbers 2022 AP 11 0045 and 2022 AP 11 0046,
as they are related cases to 2022 AP 11 0044 impacted in the same manner.
STANDARD OF REVIEW
{¶20} Mother is appealing the trial court’s decision to grant the motion for
permanent custody. Specifically, that the trial court should have granted the Great-
grandparents’ motion for legal custody. For that reason, we consider the standard of
review applicable to both permanent custody and legal custody.
PERMANENT CUSTODY
{¶21} The appellant contends the award of permanent custody was against the
manifest weight of the evidence. Manifest weight of the evidence addresses the
evidence’s effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678
N.E.2d 541 (1997), superseded by constitutional amendment on the grounds as stated
by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355. The Thompkins
Court stated:
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
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 8
established before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.” (Emphasis added.)
Black’s, supra, at 1594.
Id. at 387.
{¶22} The Court stated further:
When a court of appeals reverses a judgment of a trial court
on the basis that the verdict is against the manifest weight of the
evidence, the appellate court sits as a “ ‘thirteenth juror’ ” and
disagrees with the factfinder’s resolution of the conflicting testimony.
Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See,
also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215,
219, 485 N.E.2d 717, 720-721 (“The court, reviewing the entire
record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. The discretionary power
to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.”).
Id.{¶23} In addition, “[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 findings of facts. * * *” “If the
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 9
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.” 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).
BURDEN OF PROOF FOR PERMANENT CUSTODY
{¶24} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id.{¶25} An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[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, 103-104, 495 N.E.2d
23 (1986).
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 10
{¶26} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶27} Following the hearing, R.C. 2151.414(B)(1) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, 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; or
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 11
(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.
{¶28} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child. The statutory best interest test is set out in R.C.
2151.414(D)(1):
In determining the best interest of a child at a hearing held pursuant to
division (A) of this section or for the purposes of division (A)(4) or (5) of
section 2151.353 or division (C) of section 2151.415 of the Revised Code,
the court shall consider all relevant factors, including, but not limited to, the
following:
(a) The interaction and interrelationship of the child with the child's parents,
siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 12
(b) The wishes of the child, as expressed directly by the child or through the
child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, 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;
(d) The child's need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
LEGAL CUSTODY
{¶29} Unlike in a permanent custody proceeding where a juvenile court's standard
of review is by clear and convincing evidence, the court’s standard of review in legal
custody proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
2013CA0081, 2013CA0082, 2013–Ohio–5752, ¶ 32; In re A.C., 12th Dist. No. CA2006–
12–105, 2007–Ohio–3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552(7th Dist.2001).
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 13
{¶30} The statutes regarding an award of legal custody do not include a specific
test or set of criteria, and a trial court must base its decision on the best interest of the
child. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188; In re P.S., 5th
Dist. Stark No. 2012CA00007, 2012-Ohio-3431. When determining the issue of legal
custody, the trial court should consider the totality of the circumstances and all factors
relevant to the best interest of the child. In re D.T., 5th Dist. Stark No. 2013CA00252,
2014-Ohio-2495. “The statutory best interest test designed for the permanent custody
situation may provide some ‘guidance’ for trial courts making legal custody decisions.” In
re A.F., 9th Dist. No. 24317, 2009–Ohio–333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954,
2006–Ohio–4468 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081, 2013CA0082,
2013–Ohio–5752, ¶ 33.
{¶31} We review the trial court’s award of legal custody for an abuse of discretion
and recognize that a trial court has broad discretion in proceedings involving the care and
custody of children. In re R.D.J., 5th Dist. Delaware No. 12 CAF 07 0046, 2013–Ohio–
1999, ¶ 29, quoting In re Gales, 10th Dist. No. 03AP–445, 2003–Ohio–6309; In re Nice,
141 Ohio App.3d 445, 455, 2001–Ohio–3214, 751 N.E.2d 552; In re Mullen, 129 Ohio
St.3d 417, 2011–Ohio–3361, ¶ 14. Abuse of discretion connotes more than an error of
law or judgment; rather, it implies that the trial court's decision was unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
ANALYSIS
{¶32} The trial court resolved two motions, a motion for legal custody, filed by the
Great-grandparents of the children, and a motion for permanent custody, filed by the
Tuscarawas County Department of County Children’s’ Services. Both dispositions require
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 14
consideration of the children’s best interest, though with different evidentiary standards.
Before granting legal custody, the trial court must determine whether the preponderance
of the evidence supports that result. Permanent custody, being a more drastic resolution
requires the trial court to find clear and convincing evidence in support of the disposition.
{¶33} And, as noted above, we review the trial court’s decision regarding
permanent custody under a manifest weight of the evidence standard and for legal
custody for an abuse of discretion.
{¶34} Mother submitted an assignment of error complaining that “[t]he trial court's
finding that permanent custody was in the minor child's best interests was against the
manifest weight of the evidence” but not because she had made sufficient progress on
her case plan so that the issues that caused removal of the child from the home had been
resolved. She did not present any evidence at the hearing on the motion for permanent
custody to refute TCJFS’s contention that she had made little progress in that regard.
Most significantly, the record supported a conclusion that Mother continued to use
amphetamines and methamphetamines without any evidence of material progress toward
becoming sober. Mother is not contending that the children should be returned to her, but
that “[i]t is in the best interest of the children to remain within the family environment under
the care of the [Great-grandparents].” (Appellant’s Brief, p. 4). Mother’s counsel
mentioned that she was in support of the Great-grandparents’ motion for legal custody at
the hearing on that motion and she repeating that position in her appeal of the trial court’s
decision.
{¶35} Our review is guided by precedent that makes clear that a trial court is not
required to consider placing a child with a relative prior to granting permanent custody to
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 15
an agency. In re Zoms, Franklin App. No. 02AP–1297, 2003–Ohio–5664, ¶ 28; In re
Turner, 5th Dist. Stark No. 2006CA00062, 2006–Ohio–4906, ¶ 35; In re Perry, 4th Dist.
Vinton Nos. 06 CA 648, 06 CA 649, 2006–Ohio–6128, ¶ 62. Relatives seeking custody
of a child are not afforded the same presumptive legal rights that a parent receives. Id. A
trial court does not even need to find by clear and convincing evidence that a grandparent
is not a suitable placement option. In re A.D., Cuyahoga App. No. 85648, 2005–Ohio–
5441, ¶ 12. Instead, it is within the trial court's discretion to determine whether to place
children with a relative, such as grandmother. In re Patterson, 134 Ohio App.3d 119, 129–
130, 730 N.E.2d 439(9th Dist.1999); In re Poke, 4th Dist. Lawrence App. No. 05CA15,
2005–Ohio–5226. We will reverse such a decision only upon an abuse of that discretion.
The term “abuse of discretion” connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶36} The willingness of a relative to care for a child does not alter the statutory
factors to be considered in granting permanent custody. In re Keaton; In re Dyal; In re
Jefferson (Oct. 25, 2000), Summit App. No. 20092. The child's best interests are served
by the child being placed in a permanent situation which fosters growth, stability, and
security. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055.
Accordingly, a court is not required to favor a relative if, after considering all the factors,
it is in the child's best interest for the agency to be granted permanent custody. In re
Keaton; In re P.P., Montgomery App. No. 19582, 2003–Ohio–1051.
{¶37} As the Ohio Supreme Court has instructed, in deciding what is in a child's
best interests, R.C. 2151.414 does not make the availability of a relative placement an
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 16
all-controlling factor; the statute does not even require the court to weigh that factor more
heavily than other factors. In re Schaefer, 111 Ohio St.3d 498, 2006–Ohio–5513, 857
N.E.2d 532, ¶ 63.
{¶38} The appellant does not contest the trial court’s findings that the children
“cannot and should not be placed with either parent within a reasonable time” and that
“[t]he evidence supports a finding that despite diligent, reasonable efforts and planning
by the Tuscarawas County Job and Family Services to remedy the problems which
caused removal of the children, said parents have failed continually and repeatedly to
substantially remedy the conditions causing removal.” Judgment Entry, Oct 13, 2022, p.
7. The only issue under review is what disposition served the best interest of the children.
{¶39} The appellant points to the close relationship between the children and the
Great-grandparents in support of their contention that they should receive legal custody.
Great-grandfather testified in support of his motion for legal custody and focused upon
refuting the trial court’s November 2021 decision to remove the children from their custody
and place them with an alternative family member, claiming that they did what was asked
of them, appropriately cared for the children and then blamed the caseworker for not
providing additional support. The trial court did not accept his explanation for their prior
failings and found that:
31. On November 4, 2021, the children were removed from the [Great-
grandparents’] home and placed with other family members.
32. The [Great-grandparents] reported multiple times that Mother should be
permitted to visit with the children.
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 17
33. Since the children were removed from the [Great-grandparents’] home,
the children's behaviors have improved.
34. Concern's with the [Great-grandparents] include:
a. Lack of supervision, children are young, didn't follow through
with making appointments for the children while the children were in
the [Great-grandparents’] custody.
b. The [Great-grandparents] did not take [C.C.] to Help Me Grow
appointment. [C.C.] did not receive needed vaccinations while in the
[Great-grandparents’] care.
c. The [Great-grandparents] did not get [J.C.] a fetal alcohol
syndrome (FAS) assessment.
Judgment Entry, Oct. 13, 2022.
{¶40} The November 2021 transcript of the hearing on the removal of the children
from the Great-grandparents’ home provides a foundation for the findings of the trial court
in the 2022 permanent custody hearing:
But what, what concerns me here is, Help Me Grow has been there
since day one, that's been a requirement, and for the two of you to say that
we just didn't do it because we just didn't think we had to, your, your
testimony was, quite frankly, inconsistent, and not believable. You know, it
was well, we were gonna do it, we initially waited, and then I felt that it
wouldn't benefit the child. That wasn't your call to make, folks, that was my
call, and I made that call at the very beginning of the case.
Transcript, Nov. 4, 2021, p. 103, line 21 to p. 104, line 5.
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 18
A fetal alcohol syndrome assessment, again, not your call. If there is
a medical expert, a doctor, that says this is a referral for the child, the case
plan is clear that that's required. You have to follow the assessments. And
for you to come in today, and even in your testimony, be so reluctant that
you are actually going to do it, I guess, I mean, your, your testimony, at
some point was that you are willing to do the services if they can be done
locally. Well, what the heck does that have to do with the children's best
interest? Whether it's locally, or if it's out of town, if the children need it, the
children need it, and that's what we need the person that's providing the
care to these children to do, whatever is necessary for these children's best
interests.
Id. at p. 104, lines 8-20.
{¶41} The trial court further found that it was “not convinced that the two of you
are going to follow through with, with what's being asked, and what's being required” and
that “[f]or whatever reason, that the two of you have chosen, rather than the paths of least
resistance, just to do whatever you thought was best for the children, and that's not how
it works in a Job and Family Services case.” Id. at p. 105, lines 3-5; p. 106, lines 4-7.
{¶42} The trial court was also concerned that the Great-grandparents would
encourage contact between the children and their Mother finding that “The [Great-
grandparents] reported multiple times that Mother should be permitted to visit with the
children.” Judgment Entry, p. 5, ⁋ 32. This concern arose from the fact that Mother was
unable to maintain her sobriety and persistently tested positive for consumption of
amphetamines and methamphetamines and had not been permitted to visit the children
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 19
as a result. Great-grandfather acknowledged that the Mother suffered from a drug
addiction but conceded that he was not always able to determine whether she was under
the influence. Further, Mother gave birth to a fourth child and took that baby to her home
and not only was Great-grandfather not concerned about the safety of the child being
cared for by a drug addict, he “didn’t even think about it.” Transcript, Dec. 19, 2022, p.
185, line 4.
{¶43} Great-grandparents did not think to seek legal custody of the children until
TCJFS filed the motion for permanent custody, presumably content with their monthly
visitation with the children. While the motion was appropriately filed and the Revised Code
only requires such a motion to be filed prior to the dispositional hearing, we find that the
timing of this motion supports the trial court’s concern that the Great-grandparents will
follow their inclination to allow the children contact with their Mother regardless of her
sobriety. And, while this Court and the trial court recognize that there is a bond between
the Great-grandparents and the children, the timing of the motion can be viewed as
serving their concerns rather than the best interest of the children.
{¶44} If the Great-grandparents believed that the best interests of the children
would be served by placing legal custody with them, it would be logical for them to take
steps to prepare for the return of the children and pursue legal custody prior to the filing
of the motion for permanent custody. During the hearing on the removal of the children
from their home, the discharge report from the Goodwill In-Home Parenting Program
recommended that they attend counseling, but they decided to forgo that opportunity and
there is no evidence they fulfilled that requirement before the seeking legal custody. Id.
at p. 176 line 18 to p. 177 line 1. And the record could support a conclusion that their
Tuscarawas County, Case No. 2022 AP 11 0044, 0045, 0046 20
motion was not motivated by their concern for the best interest of the children, but by the
realization that the parents had not resolved the problems that caused the removal of the
children from the home, that permanent custody would most likely be granted and that
they would lose contact with the children.
{¶45} The trial court issued a lengthy entry and we find that it considered all the
relevant evidence to determine what disposition was in the best interest of the children.
The GAL spoke on behalf of the children, recommending the grant of permanent custody
for these children who were too young to form and express their own opinions. The trial
court also acknowledge the relationship between the children and the Great-
grandparents, but still concluded that permanent custody best served the children’s
interest by providing a final resolution fostering growth, stability and security.
{¶46} We have reviewed the record and find the trial court did not abuse its
discretion by finding that the best interest of the children was served by denying the Great-
grandparents legal custody. Furthermore, the decision of the trial court to grant
permanent custody to TCJFS was not against the manifest weight of the evidence.
{¶47} Accordingly, the sole assignment of error is denied.
{¶48} The decision of the Tuscarawas County Common Pleas Court, Juvenile
Division, is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.