In re J.A.

[Cite as In re J.A., 2020-Ohio-5354.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
IN THE MATTER OF: J.A. and D.T. :
:
: Appellate Case No. 2020-CA-31
:
: Trial Court Case Nos. 2017-1163 and
: 2017-1164
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
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OPINION
Rendered on the 20th day of November, 2020.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Appellee, Clark County Dept. of Job & Family Services
ERIC M. SOMMER, Atty. Reg. No. 0066363, 202 North Limestone Street, Suite 250,
Springfield, Ohio 45503
Attorney for Appellant, Mother
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TUCKER, P.J.
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{¶ 1} Mother appeals from a judgment of the Clark County Juvenile Court denying
her request that legal custody of her two children, J.A. and D.T., be awarded to their
maternal grandfather and awarding custody to Clark County Department of Job and
Family Services (DJFS). We find no merit in her sole assignment of error, and we affirm
the juvenile court's judgment.
I. Facts and Procedural History
{¶ 2} In November 2017, Mother took D.T., who was then two months old, to
Springfield Regional Medical Center because the child had been vomiting. D.T. was
transferred to Dayton Children’s Hospital, where it was determined he had been shaken
hard enough to cause subdural and subarachnoid hemorrhaging. In addition, D.T.
suffered from malnutrition and torticollis, a condition that caused his head to tilt downward.
Mother’s other child, J.A., who was born in July 2016, was also malnourished. DJFS
filed a dependency complaint regarding both children. The trial court granted DJFS
temporary custody, and the children were placed with a foster family.
{¶ 3} In December 2017, Mother was indicted for felonious assault and
endangering children. Following a guilty plea, she was sentenced to prison; she was
expected to be released in May 2020. Thereafter, the children were adjudicated to be
dependent.
{¶ 4} R.G., the children’s maternal grandfather, was identified as a possible
relative placement. Because R.G. and his wife, W.G., lived in Kentucky, DJFS asked
the appropriate Kentucky child welfare agency to conduct a study on the suitability of such
a placement. The Kentucky agency denied the placement because W.G. had a prior
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criminal conviction for child abuse. It also determined that W.G. had been involved in at
least two other substantiated cases of child abuse.
{¶ 5} In January 2019, DJFS filed a motion seeking permanent custody of the
children. In April 2019, Mother filed a motion requesting that the court award legal
custody of the children to her father, R.G. Three days prior to the scheduled disposition
hearing, R.G. and W.G. filed a motion to intervene. They also filed a motion for
temporary legal custody of the children. The motion to intervene was granted, and a
hearing before a magistrate was conducted on May 9, 2019.
{¶ 6} Following the hearing, the magistrate denied the motion for legal custody filed
by the maternal grandparents and Mother’s motion for custody to the grandparents. The
magistrate awarded permanent custody to DJFS. Mother filed objections to the
magistrate’s decision, which were overruled by the juvenile court. The juvenile court
awarded permanent custody to DJFS. Mother appeals.
II. Analysis
{¶ 7} The sole assignment of error asserted by Mother is as follows:
DOES A TRIAL COURT ERR IN GRANTING PERMANENT CUSTODY TO
A PUBLIC CHILDRENS’ SERVICES AGENCY, WHEN THERE IS A
SUITABLE RELATIVE WHO IS READY, WILLING AND ABLE TO ACCEPT
CUSTODY OF THE MINOR CHILDREN WHO ARE THE SUBJECT OF
THE PERMANENT CUSTODY PROCEEDING?
{¶ 8} Mother contests the juvenile court’s decision to deny R.G. and W.G. legal
custody of the children and instead grant permanent custody to DJFS.
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{¶ 9} We begin by noting that the State contends Mother has no standing to assert
the rights of R.G. and W.G., as they did not file an appeal of the juvenile court’s judgment.
In support, the State cites In re K.C., 2017-Ohio-8383, 99 N.E.3d 1061 (1st Dist.) for the
proposition that “a parent has no standing to appeal an award of permanent custody and
a denial of a relative's custody petition where the parent does not challenge the
termination of her parental rights and the relative did not appeal the denial of her custody
petition.” Id. at ¶ 12.1 However, this case is distinguishable, as Mother appeals from
the denial of her own motion requesting that the maternal grandfather be granted legal
custody of the children. See In re S.F., 2d Dist. Montgomery No. 28606, 2020-Ohio-693,
¶ 51. Thus, Mother has standing to assert that the juvenile court erred by overruling her
motion requesting that R.G. be granted custody of the children.
{¶ 10} Turning to the merits, we conclude that Mother’s challenge to the juvenile
court’s judgment is without merit. First, the Interstate Compact for the Placement of
Children (“ICPC”), as codified by R.C. 5103.20 thru 5103.237, precluded placement with
the maternal grandparents. Second, because the record established that granting
permanent custody to DJFS was in the best interest of the children, “legal custody to a
relative necessarily is not.” In re S.F., 2d Dist. Montgomery 28606, 2020-Ohio-693, ¶ 52,
citing In re S.C., 2018-Ohio-2523, 115 N.E.3d 813, ¶ 16 (8th Dist.).
{¶ 11} Ohio has adopted the ICPC, which is a compact among member states
authorizing them to work together to ensure that children who are placed across state
lines receive adequate protection and support services as though the placement was
1
The State also cites In re N.H. and N.T., 10th Dist. Franklin No. 10AP-620 and 10AP-
621, 2017-Ohio-1491 and In re A.W., 1st Dist. Hamilton No. C-120787, 2013-Ohio-909as support for its argument.
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made intrastate. See R.C. 5103.20. Because the maternal grandparents reside in
Kentucky, the ICPC applied to this case.
{¶ 12} A purpose of the ICPC is to ensure that “[t]he appropriate authorities in a
state where a child is to be placed * * * have [a] full opportunity to ascertain the
circumstances of the proposed placement, thereby promoting full compliance with
applicable requirements for the protection of the child[,]” and “[t]he proper authorities of
the state from which the placement is made may obtain the most complete information
* * * to evaluate a projected placement before it is made.” R.C. 5103.23.
{¶ 13} To that end, no interstate placement can be made until the receiving state
has performed an assessment and determined that the placement is both safe and
suitable for the child and is in compliance with the applicable laws of the receiving state
governing the placement of children therein. R.C. 5103.20. When the receiving state
does not approve the placement, “the child shall not be placed.” Id. While any
“interested party” has a right to seek judicial review in the receiving state of that state’s
disapproval of the placement, there is no right to judicial review in the sending state. Id.{¶ 14} In this case, the record demonstrates the placement was not approved by
Kentucky because W.G. had a criminal history involving child abuse as well as at least
two other substantiated protective services investigations of W.G.’s engaging in child
abuse. The maternal grandparents failed to seek review of that denial in the state of
Kentucky, and Ohio courts had no jurisdiction to review it.
{¶ 15} Next, while not expressly argued by Mother, we note that her assignment
of error implicitly raises a question of whether the juvenile court erred in terminating her
parental rights and awarding permanent custody to DJFS.
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{¶ 16} R.C. 2151.414(B)(1) specifies that a trial court may grant a children services
agency permanent custody of a child if the court finds, by clear and convincing evidence,
that (1) it is in the best interest of the child to grant permanent custody of the child to the
agency, and (2) 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.
{¶ 17} A child cannot be placed with a parent within a reasonable time or should
not be placed with a parent when that parent is incarcerated for an offense committed
against the child or a sibling of the child. R.C. 2151.414(E)(5). In this case, at the time
DJFS filed for permanent custody, Mother was incarcerated for child endangerment and
felonious assault in relation to her children. Thus, the juvenile court correctly determined
that the children should not be placed with Mother.
{¶ 18} Next, R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (1) the
interaction and interrelationship of the child with the child's parents, relatives, foster
parents and any other person who may significantly affect the child; (2) the wishes of the
child; (3) 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 12 or more months of a consecutive 22-month period; (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 of
the factors in R.C. 2151.414(E)(7) through (11) are applicable.
{¶ 19} The evidence regarding the interactions and interrelationships of the
children with Mother established that Mother had caused a serious, permanent brain
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injury to D.T. and that both boys were malnourished while in her care. As a result of the
brain injury, D.T. needed ongoing neurological and optometry treatment. J.A. also had
special needs and had ongoing occupational, physical, and speech therapy. The boys
were together and doing well in foster care, and the foster family was able to meet their
special needs and medical treatment. R.G. and W.G. had not had contact with the
children since they were placed in foster care. Based upon this evidence, the court
correctly found this factor weighed in favor of granting permanent custody to DJFS.
{¶ 20} With regard the custodial history and need for a legally secure placement,
the evidence demonstrated that the children had been in foster care for 18 months at the
time of the dispositional hearing. At that point, J.A. had spent approximately half of his
life in foster care, and D.T. had spent all but the first two months of his life in foster care.
Neither of the boys’ fathers was identified by Mother and, despite public notice, no one
claimed to be the father of either child. Mother was incarcerated for a significant portion
of each child’s life, and there was no evidence that she could provide a safe, secure and
appropriate home for them. The ICPC prevented the placement of the children with their
maternal grandparents, and there was no evidence that any other relative came forward
as a potential placement. Thus, the juvenile court reasonably found that these two
factors weighed in favor of an award of permanent custody to DJFS, and we agree.
{¶ 21} An appellate court will not reverse a decision regarding permanent or legal
custody of a child absent an abuse of discretion by the juvenile court. In re K.W., 185
Ohio App.3d 629, 2010-Ohio-29, 925 N.E.2d 181, ¶ 15 (2d Dist.); In re M.O., 2d Dist.
Montgomery No. 26457, 2015-Ohio-2430, ¶ 7. The term “abuse of discretion” implies
that the court's decision was unreasonable, arbitrary or unconscionable. Blakemore v.
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Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 22} Based upon the record before us, we conclude that the juvenile court did
not err in denying Mother’s motion for an award of legal custody of the children to the
maternal grandfather. We further find that the court’s decision to terminate Mother’s
parental rights and to award permanent custody of the children to DJFS was supported
by the evidence.
{¶ 23} Accordingly, the sole assignment of error is overruled.
III. Conclusion
{¶ 24} Mother’s assignment of error being overruled, the judgment of the juvenile
court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Eric M. Sommer
Amanda Lantz
Hon. Katrine Lancaster