In re B.H.

[Cite as In re B.H., 2016-Ohio-5447.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
IN THE MATTER OF:
:
B.H., D.H., L.H., and M.H., : Case Nos. 16CA1
: 16CA2
: 16CA3
: 16CA4
:
ADJUDICATED DEPENDENT :
CHILDREN. : DECISION AND
: JUDGMENT ENTRY
:
: RELEASED 08/15/2016
APPEARANCES:
David J. Winkelmann, Millfield, Ohio, for Appellant.
Kyle C. Henderson, Hocking County Prosecuting Attorney, and Ann Allen McDonough,
Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.
Hoover, J.
{¶1} Appellant, B.G., appeals the trial court’s judgments that awarded appellee, South
Central Ohio Jobs and Family Services (SCOJFS), permanent custody of her four biological
children: (1) ten-year-old B.H.; (2) eight-year-old D.H.; (3) seven-year-old L.H.; and (4) five-
year-old M.H. For the reasons that follow, we affirm the trial court’s judgment.
I. Facts and Procedural History
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 2
{¶2} On August 6, 2014, appellee filed abuse, neglect, and dependency complaints
concerning the four children.1 At a shelter care hearing, the court placed the children in
appellee’s temporary custody. Appellee later dismissed these complaints.
{¶3} On December 3, 2014, appellee filed dependency complaints concerning the four
children. The complaints alleged that (1) appellee has been involved with the family since
February 2012; (2) in November 2013, the children were returned to their mother; (3) in July
2014, the mother and her boyfriend were reportedly using heroin and living at a homeless
shelter; (4) the mother sent the children to reside with the maternal grandparents; and (5) the
maternal grandfather subsequently was charged with theft after he was discovered stealing from
a graveyard while two of the children were present. Appellee requested that the court award it
temporary custody of the children. At a shelter care hearing, the court placed the children in
appellee’s temporary custody.
{¶4} On February 20, 2015, the trial court adjudicated the children dependent and
placed them in appellee’s temporary custody. On August 12, 2015, appellee filed motions for
permanent custody of the children.
{¶5} On December 7, 2015, the trial court held a hearing to consider appellee’s
permanent custody motions. SCOJFS caseworker Rebecca Carter testified that she started
working with the family in February or April 2012. Carter stated that appellee offered numerous
1
The procedural histories of the permanent custody cases are extremely confusing due to an unorthodox filing
system the trial court employed. It appears each child was assigned an “ID” number; and any filing pertaining to that
child was filed under this “ID” number. Thus, the record transmitted on appeal contains filings from case numbers
that have not been appealed or that were dismissed, such as a case the grandparents filed to obtain custody of the
children. Moreover, not all of the filings are organized by case number within the same set of files. For instance, the
August 6, 2014 complaint filed in B.H.’s case is not contained in the file that bears an identifying tag with that same
case number, 21430099. Instead, it is contained in the case file that appears to have begun with the grandparents’
February 28, 2012 pro se motion for custody. This filing system is apparently what led appellee to file its permanent
custody complaints in the wrong case numbers, i.e., cases that had been dismissed, and what led this court to remand
the matter to the trial court in order to correct the clerical errors associated with the case numbers. In the future, the
court may wish to review its filing system.
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 3
services to the mother, but the mother was not able to consistently comply with the case plan or
provide proper care for the children. Carter testified that the mother complied for a time and had
custody of the children for about eight months between February 2012 and August 2014. Carter
explained that one of the mother’s case plan requirements was that she not take the children to
the grandparents’ home. Carter stated that appellee “had concerns with the grandparents with
their drug and alcohol abuse reported by” B.H. She stated that the mother last visited the children
on February 9, 2015.
{¶6} Carter testified that the children’s father wants to reunify with the children; but he
has not complied with the case plan. He has been in jail; and the last time he saw the children
was in the summer of 2012.
{¶7} Carter explained that appellee investigated relative placements but found none
suitable for the children. She stated that the children lived with the maternal grandparents when
the children were removed in 2012; but shortly thereafter, the “grandparents had contacted us
and said they can’t keep the boys, their health was too bad, and they couldn’t control them, and it
was just too much strain on them.” Carter explained that the grandparents indicated they could
keep the oldest child; thus, appellee removed the three younger children and the oldest child
continued living with the grandparents. Later, the grandparents had a domestic violence incident
in which “a sheriff was involved, drugs [were] involved.” The grandfather “took off with [B.H.],
drove to Logan, wrecked the car, passed out, was taken by EMS because a neighbor notified the
police, [and] he was taken to the hospital.” B.H. then was placed with his other siblings. Carter
explained that appellee investigated the grandparents for placement but did not approve their
home “due to the past history of the grandparents of domestic violence and the drugs and due to
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 4
the home conditions of the grandparents, the boys not getting fed, and then the grandfather
taking two of the boys to a graveyard to steal copper and getting arrested for it.”
{¶8} Carter testified that the children struggled when they first arrived in foster care;
and they wanted to see their mother. She stated that “they eventually got to where they didn’t
[want to see their mother].” The children have been in the same foster home since the 2014
removal and “are very happy and well-adjusted in this home. They call the foster mom,
‘mamaw’ * * * and she has made sure to keep them involved with getting their school work
done.” Carter stated that the children share a room in the foster home; and they have an outdoor
“play area with a great big play swing set.” Carter explained that the foster mother also is
involved with the children’s extracurricular activities. She stated that the children “are part of the
family.”
{¶9} Carter testified that awarding appellee permanent custody is in the children’s best
interest because they “are in a good placement;” and the foster mother indicated that she would
like the children on a permanent basis. Carter stated that the children “are very settled in [the
foster home]. They love living there. They say they like to see their mom and/or dad. Don’t want
to live with them [sic]. Do not want to live with grandparents [sic]. They are forgetting some of
that past history * * * and * * * seem to be moving on and being settled in a place that they can
call home and they have stated that it feels like home there and a family * * * [sic].”
{¶10} Rikki Grace testified that she has counseled B.H. and M.H. since August 2014.
When she first started counseling M.H., he reported nightmares. Grace stated that M.H. no
longer has nightmares. Grace explained that when she started counseling with B.H., he “was
having issues as far as behavior. There was a lot of rough play between the boys * * *. He also
had made it known that he wanted to be at his grandparents[’] house at the beginning.” She
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 5
stated that B.H. initially did not like being in foster care; but his attitude has changed
“drastically.” B.H. and M.H. informed her that they feel “safe and well taken care of in [the
foster] home.” The children indicated that they love their mother; but they have negative feelings
for her boyfriend. The children rarely discuss their father.
{¶11} Jorden Meadows, the children’s guardian ad litem, stated that she believes
awarding appellee permanent custody is in the children’s best interest. She explained that the
children “desperately need stability.” Meadows testified that the children “are bonded;” and that
they indicated they feel “safe” and “like a family” with the foster family. She stated that the
children do not want to leave the foster home, “unless it is to go live with one of their parents,
but * * * they realize that that’s not likely to happen.” Meadows explained that the children miss
their parents and their “grandparents at times.” She stated that the three of the children indicated
that they wanted to see their grandparents and parents “so they can get a toy.” Meadows testified
that the children’s statements that they wanted to “get a toy” led her to believe that they did not
have a bond with either the parents or the grandparents. She stated: “I mean for the only reason
they want to see their parents so they can get a toy, not so that they can hug them, get kisses, you
know, be a family with them, just so that they can get a possession [sic].” Meadows explained
that the children did not “act like that when talking about” the foster mother. “They wanted to be
with her. They loved being there. They actually have this playroom off the kitchen that they were
so proud to show me. It has a TV in it and all sorts of toys and they can go in there and relax and
have fun after doing their homework and they were just filled with enthusiasm about where they
were and couldn’t wait to show me everything.” Meadows stated that she believes the foster
home is “the best place for [the children].”
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 6
{¶12} Meadows testified that she discussed relative placements with Carter; but Carter
stated that they had been “ruled out.” Meadows explained that she asked the mother about other
placements, and the mother “specifically said she did not want [the children] to go to [the
maternal] grandparents.” She additionally related that appellee informed her that the
grandparents’ “home was already declared not fit prior to [her] involvement” in the case.
{¶13} Meadows stated that in October 2015, she spoke with B.H. about living with his
grandparents. B.H. stated that he would like to see his grandparents; but he does not want to live
with them. Meadows testified that the children are in a foster-to-adopt home, that the foster
mother would like the children to live with her, and that the children “certainly” would like to
live there. She informed the court that she believes keeping the children in their current
placement and granting appellee permanent custody is in their best interests.
{¶14} On December 22, 2015, the trial court granted appellee permanent custody of the
children. The court found that the children have been in appellee’s temporary custody for twelve
out of the past twenty-two months. The court also determined that awarding appellee permanent
custody of the children would serve their best interests. The court considered the children’s
interactions and interrelationships. The court found their relationship with their mother to be
“nonexistent.” The court noted that the mother did not appear for recent court hearings
(including the permanent custody hearing), has not attempted to work on her case plan, and has
shown no interest in reunifying with the children. The court found that the mother essentially
abandoned the children.
{¶15} The court also determined that the children’s father has abandoned the children.
The court observed that the father has not had any contact with the children since the summer of
2012; and his present whereabouts are unknown.
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 7
{¶16} The court noted that the maternal grandparents had temporary custody of the
children numerous times; but that the guardian ad litem indicated that they are not a suitable
placement for the children. The court further stated: “In fact the Court has a no contact order in
effect between the maternal grandparents and [the children].”
{¶17} The court observed that the children have a loving relationship with the foster
family and are in the same home. The court recognized that B.H. initially “was reluctant” about
foster care; but B.H. now would like to remain in the foster home. The court also noted that the
guardian ad litem stated that B.H. would like to see his mother but not live with her; B.H. is
well-adjusted to his foster home; M.H. “has blossomed in foster care;” and L.H. and D.H. are
doing well in the foster home.
{¶18} The court considered the children’s wishes via the guardian ad litem. The
guardian ad litem indicated that the children would like appellee to obtain permanent custody so
that they can remain in the foster home. The guardian ad litem further indicated that the children
hope to stay in the foster home “long term.”
{¶19} The court reviewed the children’s custodial history and found that they were in
their mother’s custody until 2012, when appellee obtained temporary custody. The court found
that the children have been placed in their maternal grandparents’ custody several times and were
removed from their care in August 2014. Since August 2014, the children have remained in
appellee’s temporary custody.
{¶20} The court further determined that the children need a legally secure permanent
placement and that this type of placement cannot be achieved without granting appellee
permanent custody. The court found that the children lack any parental bond with their mother or
father, that neither parent has worked with the service providers, that both parents essentially
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 8
abandoned the children, and that no suitable relative placement is available. The court thus
granted appellee permanent custody of the children. These appeals followed.
II. Assignment of Error
{¶21} Appellant raises one assignment of error.
The trial court erred when it accepted Children Services decision [sic] not to place the
children with their maternal grandparents.
III. Law and Analysis
{¶22} In her sole assignment of error, appellant essentially asserts that the record does
not contain clear and convincing evidence to support the trial court’s finding that awarding
appellee permanent custody is in the children’s best interests. Appellant does not dispute that the
children have been in appellee’s custody for twelve of the past twenty-two months. She also does
not appear to challenge the court’s finding that the children should not be returned to her care.
Instead, appellant argues that the trial court was required to find, by clear and convincing
evidence, that the maternal grandparents were unsuitable caregivers for the children before the
court could award appellee permanent custody.
A. Standard of Review
{¶23} A reviewing court generally will not disturb a trial court’s permanent custody
decision unless the decision is against the manifest weight of the evidence. In re R.M., 2013–
Ohio–3588, 997 N.E.2d 169, ¶ 53 (4th Dist).
“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
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 9
established before them. Weight is not a question of mathematics, but depends on
its effect in inducing belief.’ ”
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 12, quoting State
v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary
1594 (6th Ed.1990).
{¶24} When an appellate court reviews whether a trial court’s permanent custody
decision is against the manifest weight of the evidence, the court “ ‘ “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” ’ ” Eastley
at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115, 750 N.E.2d 176 (9th Dist.2001),
quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717
(1st Dist.1983). Accord In re Pittman, 9th Dist. Summit No. 20894, 2002–Ohio–2208, ¶¶ 23–24.
{¶25} In a permanent custody case, the ultimate question for a reviewing court is
“whether the juvenile court’s findings * * * were supported by clear and convincing evidence.”
In re K.H., 119 Ohio St. 3d 538, 2008–Ohio–4825, 895 N.E.2d 809, ¶ 43. “Clear and convincing
evidence” is: “[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, 104, 495 N.E.2d 23 (1986). In determining 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
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 10
requisite degree of proof.” State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990). Accord
In re Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the clear and convincing standard has been met to
the satisfaction of the [trial] court, the reviewing court must examine the record and determine if
the trier of fact had sufficient evidence before it to satisfy this burden of proof.”). “Thus, if the
children services agency presented competent and credible evidence upon which the trier of fact
reasonably could have formed a firm belief that permanent custody is warranted, then the court’s
decision is not against the manifest weight of the evidence.” R.M.at ¶ 55.
{¶26} Once the reviewing court finishes its examination, the court may reverse the
judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “
‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must
be reversed and a new trial ordered.’ ” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin at 175. A reviewing court should find a trial court’s permanent custody decision
against the manifest weight of the evidence only in the “ ‘exceptional case in which the evidence
weighs heavily against the [decision].’ ” Id., quoting Martin at 175; accord State v. Lindsey, 87
Ohio St. 3d 479, 483, 721 N.E.2d 995 (2000).
{¶27} Furthermore, when reviewing evidence under the manifest weight of the evidence
standard, an appellate court generally must defer to the fact-finder’s credibility determinations.
As the Eastley court explained:
“[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 finding of facts. * * *
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 11
If the 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.”
Eastley, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 21, quoting 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).
B. Permanent Custody Principles
{¶28} 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, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re
Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990); accord 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. In re 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 polestar or controlling principle to be observed.’ ” In re
Cunningham, 59 Ohio St. 2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So. 2d
54, 58 (Fla.App.1974). Thus, the State may terminate parental rights when a child’s best interest
demands such termination. In re D.A. at ¶ 11.
{¶29} 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. Id. Additionally, when considering whether to grant a children services agency
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 12
permanent custody, a trial court should consider the underlying purposes of R.C. Chapter 2151,
as set forth in R.C. 2151.01:
(A) To provide for the care, protection, and mental and physical development of
children * * * whenever possible, in a family environment, separating the child
from the child’s parents only when necessary for the child’s welfare or in the
interests of public safety;
(B) To provide judicial procedures through which Chapters 2151. and 2152. of the
Revised Code are executed and enforced, and in which the parties are assured of a
fair hearing, and their constitutional and other legal rights are recognized and
enforced.
C. Permanent Custody Framework
{¶30} 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 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
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 13
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.
(e) The child or another child in the custody of the parent or parents from whose
custody the child has been removed has been adjudicated an abused, neglected, or
dependent child on three separate occasions by any court in this state or another
state.
{¶31} R.C. 2151.414(D) requires a trial court to consider specific factors to determine
whether a child’s best interest will be served by granting a children services agency permanent
custody. The factors include: (1) the child’s interaction and interrelationship 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 child’s wishes, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the child's maturity; (3) the child’s
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 14
custodial history; (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 listed under R.C. 2151.414(E)(7) to (11) apply.
{¶32} 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.
{¶33} In the case at bar, appellant does not challenge the trial court’s R.C.
2151.414(B)(1) finding. Nor does she specifically dispute the court’s finding that granting
appellee permanent custody is in the children’s best interests. Instead, appellant contends that the
trial court was required to find, by clear and convincing evidence, that the children’s maternal
grandparents were unsuitable caregivers. We limit our review accordingly.
D. Relative Placement
{¶34} We have repeatedly rejected parents’ arguments in permanent custody cases that a
trial court was required to determine that relative placement was not in a child’s best interest
before awarding permanent custody to a children services agency. Most recently, in In re M.H.,
4th Dist. Athens No. 15CA39, 2016-Ohio-3407, ¶¶ 33-35, we stated:
[A] trial court need not determine that terminating parental rights is “the only
option” or that no suitable person is available for placement. In re Schaefer, 111
Ohio St. 3d 498, 2006–Ohio–5513, ¶ 64 (2006). Rather, R.C. 2151.414 requires
the court to weigh “all the relevant factors * * * to find the best option for the
child.” Id. “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
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 15
does not even require the court to weigh that factor more heavily than other
factors.” Id. A child's best interest is served by placing the child in a permanent
situation that fosters growth, stability, and security. In re Adoption of Ridenour,
61 Ohio St. 3d 319, 324, 574 N.E.2d 1055 (1991). Therefore, courts are not
required to favor relative or non-relative placement if, after considering all the
factors, it is in the child’s best interest for the agency to be granted permanent
custody. Schaefer at ¶ 64; accord In re T.G., 4th Dist. Athens No. 15CA24, 2015–
Ohio–5330, ¶ 24; In re V.C., 8th Dist. Cuyahoga No. 102903, 2015–Ohio–4991, ¶
61 (stating that relative’s positive relationship with child and willingness to
provide an appropriate home did not trump child’s best interest). Additionally, we
observe that “[i]f permanent custody is in the child’s best interest, legal custody or
placement with [a parent or other relative] necessarily is not.” In re K.M., 9th
Dist. Medina No. 14CA0025–M, 2014–Ohio–4268, ¶ 9.
****
Moreover, we recognize that “[f]amily unity and blood relationship” may be
“vital factors” to consider, but neither is controlling. In re J.B., 8th Dist.
Cuyahoga Nos. 98518 and 98519, 2013–Ohio–1703, ¶ 31. Indeed, “neglected and
dependent children are entitled to stable, secure, nurturing and permanent homes
in the near term * * * and their best interest is the pivotal factor in permanency
case.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009–Ohio–5496, ¶ 35. Thus,
while biological relationships may be important considerations, they are not
controlling when ascertaining a child’s best interest. In re J.B., 8th Dist.
Cuyahoga Nos. 98518 and 98519, 2013–Ohio–1706, ¶ 111.
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 16
Accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, ¶¶ 66-67.
{¶35} Similarly, In re I.H., 3rd Dist. Allen No. 1-15-63, 2016-Ohio-2672, ¶ 26, the court
stated:
There is no requirement that a trial court find by clear and convincing evidence
that a relative is an unsuitable placement option prior to granting permanent
custody to an agency. In re Dylan B., 5th Dist. Stark No. 2007–CA–00362, 2008–
Ohio–2283, ¶ 67, citing In re Shaefer, 111 Ohio St. 3d 498, 2006–Ohio–5513, at ¶
65; In re S.E., 12th Dist. Clermont No. CA2008–05–045, 2008–Ohio–5300, ¶ 26,
citing In re Lewis, 4th Dist. Athens No. 01CA20, 2001–Ohio–2618, *9 (Nov. 7,
2001). Indeed, the statutory duty imposed by R.C. 2151.414(B)(1) does not
require a trial court to determine by clear and convincing evidence that the
termination of a parent’s rights is the only option. In re Shaefer, at ¶ 65. Instead,
the statute requires the trial court to find the “best option” for the child once a
determination is made under to R.C. 2151.414(B)(1). Id. “The statute does not
make the availability of a placement that would not require a termination of
parental rights an all-controlling factor.” Id.
{¶36} Based upon the foregoing authority, we disagree with appellant that the trial court
had a duty to determine, by clear and convincing evidence, that the maternal grandparents were
unsuitable caregivers before awarding appellee permanent custody. We further point out that
nothing in the statutory framework requires a trial court to make a finding of relative
unsuitability before terminating parental rights. Instead, whether a suitable relative placement is
available is but one factor that a court considers when evaluating a child’s need for a legally
secure permanent placement.
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 17
{¶37} Moreover, the trial court in the case at bar examined the children’s best interests
and determined that awarding appellee permanent custody would be in their best interests. Thus,
placing them with their maternal grandparents necessarily is not. M.H., supra.
{¶38} Additionally, appellant has not specifically challenged the trial court’s finding
that awarding appellee permanent custody is in the children’s best interest. We believe that the
record contains ample evidence to support the trial court’s finding that the children’s best
interests would be served by placing them in appellee’s permanent custody. With respect to the
children’s interactions and interrelationships, the children appear to be thriving in foster care and
share a loving relationship with their foster mother. The children’s mother has not had contact
with the children since February 2015; and the father has not seen them since the summer of
2012. The absence of the parents from their children’s lives has weakened whatever parental
bonds may have existed; and they have bonded to the foster family. The children’s relationship
with the grandparents appears to have been somewhat unhealthy. The grandparents returned the
three younger boys to appellee, experienced domestic violence in their household, had substance
abuse issues, and exposed at least two of the children to criminal acts.
{¶39} Concerning the children’s wishes, the guardian ad litem clearly expressed that the
children’s best interests demand that they be placed in appellee’s permanent custody. The
children also indicated that they would like to stay in the foster home on a permanent basis.
{¶40} With respect to the children’s custodial history, the evidence shows that they have
not had a stable, permanent home since February 2012. Since that time, they have been placed in
their grandparents’ care on a few separate occasions, in appellee’s temporary custody, in their
mother’s care, and in the foster home. Before August 2014, when the children were placed in
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 18
their present foster home, they had been shuffled among different places for more than two and
one-half years.
{¶41} The evidence also shows that the children need a legally secure permanent
placement; and they cannot achieve this type of placement without granting appellee permanent
custody. Neither parent has demonstrated a willingness or ability to provide proper care for the
children. Appellee did not find the maternal grandparents to be a suitable placement option for
the children due to their substance abuse issues, domestic violence concerns, and other issues.
Appellee did not locate any other suitable placement options.
{¶42} The totality of the evidence appellee presented at the permanent custody hearing
clearly and convincingly supports the trial court’s finding that awarding appellee permanent
custody of the children is in their best interests. Consequently, the trial court’s decision to grant
appellee permanent custody of the children is not against the manifest weight of the evidence.
{¶43} Accordingly, based upon the foregoing reasons, we overrule appellant’s sole
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Hocking App. Nos. 16CA1, 16CA2, 16CA3, and 16CA4 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay 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 Hocking County
Common Pleas Court, 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.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, 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.