In re A.J.

[Cite as In re A.J., 2017-Ohio-9134.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.J. C.A. No. 28653
A.J.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 14-07-0441
DN 14-07-0442
DECISION AND JOURNAL ENTRY
Dated: December 20, 2017
SCHAFER, Presiding Judge.
{¶1} Appellant, D.J. (“Father”), appeals from a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that placed two of his minor children in the legal custody
of their paternal grandparents (“Grandparents”). This Court affirms.
I.
{¶2} Father is the biological father of two children with the initials A.J.: a girl, born
June 7, 2013; and a boy, born April 11, 2014. Although Father has other children, they are not
parties to this appeal. The mother of A.J. and A.J. (“Mother”) did not participate in the final
dispositional hearing and did not appeal from the trial court’s judgment.
{¶3} Before this case began, Summit County Children Services Board (“CSB”) had a
voluntary case with this family because Mother had attempted suicide and CSB was also
concerned about domestic violence and substance abuse in the home. Because Mother did not
comply with the requirements of the voluntary case plan, CSB filed this involuntary case on July
2
10, 2014. A.J. and A.J. were later adjudicated dependent children and placed in the legal custody
of CSB.
{¶4} When this involuntary case began, Mother was living with Father, but had moved
in and out of his home several times during their on and off relationship. Father and Mother’s
relationship had been plagued by ongoing domestic violence, often with Mother as the
perpetrator. Even under a court-ordered case plan, Mother refused to engage in any services to
address her serious mental health and substance abuse problems. Although the case plan did not
require Father to end his relationship with Mother, it did require that they engage in counseling
to address the violence in their relationship. Although Father complied with many of the
requirements of the case plan, he did not engage in counseling with Mother and/or end his
relationship with her. Mother did not maintain contact with CSB or the trial court and continued
to struggle with mental health and substance abuse problems. Moreover, incidents of domestic
violence continued between the parents throughout this case, including during the months that
the final dispositional hearing was held.
{¶5} Because Mother was not complying with the case plan, she was required to visit
the children at the visitation center. Father was permitted to visit the children at the home of
their relative caregiver. The children lived with an aunt during most of this case, but they were
later placed in the home of Grandparents. CSB eventually moved to have the children placed in
the legal custody of Grandparents and Father alternatively moved for legal custody of the
children.
{¶6} Following a four-day hearing that was held over several months, the magistrate
decided that A.J. and A.J. should be placed in the legal custody of Grandparents. The trial court
adopted the magistrate’s decision the same day, pending the filing of timely, written objections.
3
Father objected to the magistrate’s decision, arguing only that the best interest finding was not
supported by the evidence. The trial court overruled Father’s objection and placed A.J. and A.J.
in the legal custody of Grandparents. Father appeals and raises two assignments of error.
II
Assignment of Error I
The trial court abused its discretion in granting legal custody of the minor
children to their paternal grandparents as it is not in their best interest and
father has substantially completed his case plan.
{¶7} Father’s first assignment of error is that the trial court erred in concluding that
legal custody to Grandparents was in the best interest of his children. “Following an
adjudication of neglect, dependency, or abuse, the juvenile court’s determination of whether to
place a child in the legal custody of a parent or a relative is based solely on the best interest of
the child.” See In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. “Although there
is no specific test or set of criteria set forth in the statutory scheme, courts agree that the trial
court must base its decision [regarding legal custody] on the best interest of the child.” In re
N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. Butler
No. CA 2002-09-236, 2003-Ohio-5984, ¶ 11.
{¶8} The juvenile court is guided by the best interest factors set forth in R.C.
2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-
Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those
factors include the interaction and interrelationships of the children, their wishes, their custodial
history and their need for permanence in their lives. R.C. 2151.414(D)(1)(a)-(e). The juvenile
court may also look to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A.,
9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. Of relevance here, those
4
additional factors include the children’s adjustment to their environment; the mental and physical
health of all persons involved; and whether there is violence, abuse, or neglect in any household
involved. See R.C. 3109.04(F)(1).
{¶9} Father’s argument is based primarily on his assertion that he had “complied with
every facet of his case plan.” This Court has repeatedly stressed, however, that “evidence of
case plan compliance may be relevant to the trial court’s best interest determination, but is not
dispositive.” In re G.A., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13, citing In
re J.J., 9th Dist. Summit No. 22236, 2004-Ohio-6538, ¶ 8.
{¶10} Father also emphasizes that he has a family bond with his children “that must be
preserved.” The trial court’s placement of the children in the legal custody of Grandparents did
not sever that bond, however, because it leaves intact his residual parental rights including his
right to visitation with his children. See In re A.L., 9th Dist. Summit No. 28440, 2017-Ohio-
7689, ¶ 18. In fact, because the children had been placed with Father’s parents and Father had a
good relationship with them, they were permitting him to spend every day with the children in
their home.
{¶11} Grandparents agreed with other witnesses that, when Father visited the children
without Mother, his interaction with them was always loving and appropriate. Although CSB
still had some concerns that Father may have a drinking problem and that he was not employed,
the primary concern expressed by CSB, the guardian ad litem, Grandparents, and Father’s
counselor was that Father continued to have a relationship with Mother. Mother had done
nothing during this case to address her ongoing mental health and substance abuse problems or
her long history of domestic violence with Father.
5
{¶12} Throughout this case, domestic violence continued between Mother and Father.
Police were called to Father’s home multiple times to respond to incidents of domestic violence
that had involved weapons, substance abuse, and/or physical injuries. Father insisted that
Mother was the one with the substance abuse problem and that she was always the aggressor in
the domestic violence incidents between them. Even if Father’s assertions about Mother were
true, he had continued to allow her into his home throughout this case.
{¶13} For example, one month after Father moved for legal custody but before the
hearing commenced, police responded to an incident of domestic violence between Mother and
Father. One of the responding officers testified that both parents appeared to be intoxicated and
that both parents had sustained minor injuries. Again, between the second and third hearing
dates, police responded to Father’s house because of an incident of domestic violence between
Mother and Father. Mother was arrested because the police believed that she had been the
primary aggressor and Father had sustained more serious injuries than Mother.
{¶14} After Mother was arrested for domestic violence against Father, he continued to
call her and provide her with money while she was incarcerated. Father admitted during the final
day of the hearing that he still helped Mother and had allowed her to stay at his home because
she had no one else to turn to. Notably, Father never stated during his testimony that he would
protect his children from Mother or the ongoing violence between them. In fact, Father had also
told one of his counselors that he wanted Mother to be able to see the children. The trial court
reasonably concluded that, if Father had legal custody of the children, he may not protect them
from ongoing domestic violence between Mother and Father or other inappropriate behavior by
Mother.
6
{¶15} Furthermore, Father does not argue that he could provide his children with a
better home than Grandparents or that legal custody to them was not in the best interest of his
children. All witnesses agreed that Grandparents had been meeting the children’s needs and
were loving and nurturing with them. Grandparents were providing the children with a safe and
stable home and had ensured that the parents did not visit the children together and that Mother
had no unsupervised contact with them. CSB fully supported legal custody to Grandparents and
the guardian ad litem opined that legal custody to Grandparents was in the children’s best
interest.
{¶16} Given the evidence before the trial court, Father has failed to demonstrate that the
trial court erred in concluding that legal custody to Grandparents was in the best interest of his
children. Father’s first assignment of error is overruled.
Assignment of Error II
The trial court erred as a matter of law in granting legal custody of the
minor children to their paternal grandparents when [CSB] did not use
reasonable case planning and diligent efforts for reunification with their
father.
{¶17} Father’s second assignment of error is that CSB failed to make reasonable efforts
to reunify him with his children. Father did not raise this issue at the hearing or through his
objections to the magistrate’s decision, so he has forfeited all but plain error. See In re B.C., 9th
Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 24, citing Juv.R. 40(D)(3)(b)(iv). Because
Father did not timely raise a reasonable efforts challenge in the trial court and does not argue
plain error, this Court need not address this argument on appeal. In re I.T., 9th Dist. Summit No.
27826, 2016-Ohio-4668, ¶ 13, citing In re T.W., 9th Dist. Summit No. 27477, 2016-Ohio-92, ¶
11-12. Father’s second assignment of error is overruled.
7
III.
{¶18} Father’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
8
APPEARANCES:
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
ELIZABETH ABBOTT, Guardian ad Litem.