In re S.F.

[Cite as In re S.F., 2020-Ohio-693.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
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IN RE: S.F. : Appellate Case No. 28606
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: Trial Court Case No. 2018-0268
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: (Appeal from Common Pleas Court –
: Juvenile Division)
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OPINION
Rendered on the 28th day of February, 2020.
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MATHIAS H. HECK JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Appellee, MCCS
SARA M. BARRY, Atty. Reg. No. 0090909, 1139 Holly Avenue, Dayton, Ohio 45410
Attorney for Appellant, Father
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FROELICH, J.
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{¶ 1} Following a hearing, the trial court awarded permanent custody of S.F., a
minor child, to Montgomery County Children Services (“MCCS”). S.F.’s father (“Father”)
alone appeals from that judgment. The judgment of the trial court will be affirmed.
Factual and Procedural Background
{¶ 2} On November 11, 2017, Hamilton County Children Services (“HCCS”)
obtained emergency custody of S.F., who was then two months old. (See Stipulations, ¶
1, 5.)1 The Hamilton County Juvenile Court thereafter held an adjudication hearing at
which both Father and S.F.’s mother (“Mother”) appeared. During that hearing, Mother
admitted to abusing prescription drugs and heroin “for several years;” she also had been
treated for a heroin overdose while 21-weeks pregnant with S.F. (Id. at ¶ 6.) Father, who
resided in Montgomery County, admitted to a substance abuse problem as well. (Id. at ¶
7-8.)
{¶ 3} On December 19, 2017, the court adjudicated S.F. dependent and placed
him in HCCS’s custody “on an interim basis.” (Id. at ¶ 10.) The court declined to place
S.F. with Father’s mother (“Paternal Grandmother”) due to “a substantiated report of
sexual abuse” against her husband (see Guardian Ad Litem Report, p. 1), and HCCS was
unable to locate a suitable placement with any other relative. (Stipulations, ¶ 9-10.)
{¶ 4} By agreement of the parties, S.F.’s case was transferred to the Montgomery
County Juvenile Court on February 8, 2018. (Id. at ¶ 11-12.) Because Mother was
incarcerated and Father’s whereabouts were unknown, neither parent attended a July 6,
1
Although the record from the Hamilton County case does not appear in the record before
us, the parties have stipulated in this appeal to certain rulings issued in that case and to
certain other relevant facts. The same stipulations appear in the transcript of the final
custody hearing. (Tr. p. 7-15.)
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2018 hearing that resulted in a grant of interim temporary custody to MCCS. (Id. at ¶ 13.)
Following an August 21, 2018 hearing that both parents did attend, the court granted
temporary custody to MCCS, to expire on November 13, 2018. (Id. at ¶ 14.) At the same
time, the court granted weekly visits with S.F. in Paternal Grandmother’s home, to begin
in September 2018. (Id.)
{¶ 5} On October 22, 2018, MCCS filed a motion for an extension of temporary
custody. As a result of an annual review on October 23, 2018, the trial court terminated
Paternal Grandmother’s in-home visits and deemed both Mother and Father to have
tested “positive” due to their failure to complete a court-ordered drug screen. (Id. at ¶ 16.)
On November 26, 2018, after S.F. had been in the agency’s care for more than a year,
MCCS moved for permanent custody. (Id. at ¶ 20.) Mother and Father responded with
separate motions requesting that Paternal Grandmother be granted legal custody
instead.2
{¶ 6} A hearing on all pending motions was held before a magistrate on February
20, 2019 and March 13, 2019. However, upon Father’s filing of objections to the
magistrate’s decision on those motions, it was discovered that the hearing had not been
recorded and could not be transcribed. Consequently, the magistrate’s decision was
vacated and the matter was set for a new hearing. In the interim, MCCS filed an amended
motion for permanent custody, adding a claim of abandonment based on Mother and
Father’s extended absences from authorized visits with S.F.
2 Paternal Grandmother filed her own motion to intervene and for custody of S.F. on
January 30, 2019, but withdrew that motion after Mother and Father filed theirs. (See
Stipulations, ¶ 20; Tr. p. 5-6.)
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{¶ 7} At the outset of the September 3, 2019 hearing reset on the custody motions,
the parties entered into various stipulations for the record. Next, the State submitted an
exhibit evidencing Father’s August 19, 2019 guilty plea to possessing drug abuse
instruments (specifically, a syringe) on April 9, 2019. (Tr., State’s Exh. 8.) That exhibit
was admitted without objection. The State then presented six witnesses.
{¶ 8} Officers Karina Sulek and Douglas Gresham of the Dayton Police
Department testified consecutively about responding to a report of someone being
unconscious in a vehicle on the morning of August 16, 2019. Officer Sulek testified that
upon arriving at the scene, she found medics already there and Mother in the car’s front
passenger seat, Father in the backseat, and a woman who identified herself as Mother’s
mother (“Maternal Grandmother”) in the driver’s seat. Father told Officer Sulek that he
had snorted “Coke”3 that day. Officer Sulek said Father “was very drowsy”; “his eyes were
pinpoints,” he had “marks” on his arm, and “his speech was kind of mumbled, he was
difficult to understand at times.” (Tr. p. 21.) Although Father told Sulek that the marks on
his arm were from poison ivy, Officer Sulek testified that those marks “appeared to be
from drug use.” (Tr. at p. 22.) According to Officer Sulek, Mother “had pinpoint eyes as
well” and “her speech was slurred.” (Id.) Like Father, Mother claimed that marks on her
arm were “poison ivy,” but acknowledged that she was a recovering drug user. (Id.)
Mother denied taking any drugs that day.
{¶ 9} Officer Sulek said Father was transported to Miami Valley Hospital by
ambulance. While sitting outside his room, Officer Sulek overheard Father say “his skin
was crawling with bugs.” (Tr. p. 24.) Based on her experience, Officer Sulek opined that
3 Officer Sulek testified that she understood Father to mean cocaine.
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Father appeared to be hallucinating. (Tr. p. 25.) Although Mother had said she would
meet them at the hospital, Officer Sulek did not see her there. Officer Sulek testified that
Mother told her that the group had been on their way to visit Mother’s child at children
services when the police encountered them. (Tr. p. 26.)
{¶ 10} Officer Gresham offered similar testimony about the August 16 encounter
with Father and Mother, stating that Father was “super fidgety” and “showing signs of an
overdose.” (Tr. p. 36-37.) Officer Gresham testified that, once at the hospital, Father said
he had used cocaine, heroin, and methamphetamine that day. Gresham said Father also
told him (Gresham) that Father, Mother, and Maternal Grandmother had been headed to
children services for visitation with a child. Although he confirmed that Mother denied
using any drugs that day, Officer Gresham said Mother “was showing signs of an
overdose.” (Tr. p. 39.) However, he said she refused any medical treatment, saying that
Maternal Grandmother would take her to the hospital if she (Mother) “ha[d] a problem.”
(Id.) When Father was discharged from the hospital, Officer Gresham booked him into
the Montgomery County Jail on an outstanding warrant.
{¶ 11} Next, S.F.’s foster mother (“Foster Mother”) testified about her experience
caring for him since March 20, 2018. Although she described him as “developmentally
behind” when he first entered her care, Foster Mother said that S.F.’s development was
“on target” at the time of the hearing. (Tr. p. 48.) She said that S.F. was diagnosed with
asthma in September 2018, however, and for a period of time required “a once a day daily
inhaler” and “a rescue inhaler to use as needed.” (Tr. p. 50.) According to Foster Mother,
when S.F. attended his first visitation in Paternal Grandmother’s home in September
2018, he returned “smell[ing] like * * * cigarette smoke,” and Foster Mother had to take
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him to urgent care for “wheezing and labored breathing.” (Tr. p. 52-54.) She said that
since then, S.F. “is supposed to be in a smoke[-]free environment.” (Tr. p. 50.) Foster
Mother relayed that restriction to MCCS, but S.F. returned from two subsequent visits to
Paternal Grandmother’s home again smelling of smoke and requiring trips to urgent care
for labored breathing. The in-home visits ended after September 24, 2018. As of the
hearing date, Foster Mother said S.F. had not had to use either inhaler since March or
April of 2019.
{¶ 12} The State called Monica Burton, a child welfare supervisor with MCCS who
was responsible for overseeing S.F.’s case. Burton said that in trying to find the “least
restrictive” placement for S.F., MCCS initially had considered Paternal Grandmother’s
home as a possible option. However, their review of a state-wide database revealed that
Hamilton County had ruled out that placement because Paternal Grandmother’s husband
(“T.J.”) “was involved in several cases where * * * sexual abuse [was substantiated] and
he was listed as the alleged perpetrator.” (Tr. p. 86-87.) Burton said those cases involved
children who had been present in Paternal Grandmother’s home.
{¶ 13} Because Paternal Grandmother continued her relationship with T.J. despite
knowing of the sexual abuse allegations, the child services agencies that investigated the
abuse complaints4 “were concerned about her protective capacity.” (Tr. p. 87.) Burton
testified she told Paternal Grandmother that in order to obtain custody of S.F., Paternal
Grandmother “needed to have her own independent housing * * * away from [T.J.]” and
“would need to have sufficient income to meet all of [S.F.’s] needs.” (Tr. p. 91.) Burton
4
Burton indicated that the children involved in the sexual abuse allegations lived in
Greene and Clinton Counties, so the investigations were conducted by agencies from
those two counties.
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also told Paternal Grandmother that Mother and Father could not be living in the home
due to “ongoing substance abuse concerns.” (Id.) Burton was aware that Paternal
Grandmother had custody of C.F., S.F.’s older brother, through an earlier custody
proceeding in Clinton County. However, Burton questioned whether Clinton County was
aware that T.J. was living in the same home.
{¶ 14} A home study begun by MCCS in July 2018 concluded that Paternal
Grandmother would not provide a suitable placement for S.F. (Tr., Exh. 4.) Burton testified
that she still did not consider Paternal Grandmother’s home an appropriate placement
due to concerns about her protective capacity, her continuing to live with T.J., her ability
to maintain appropriate boundaries (with Father and Mother), and her ability to maintain
stable employment and support the children in her care. Most recently, Burton had
learned that another infant – Father’s grandchild (“N.”) – also was living in Paternal
Grandmother’s home, along with S.F.’s brother, C.F. The presence of an additional child
added to Burton’s concerns.
{¶ 15} Serah Siemann, S.F.’s court-appointed guardian ad litem (“GAL”), testified
that she first met Paternal Grandmother when examining her home in August 2018.
Siemann had recommended that S.F. have visitation in that home beginning in
September 2018, “to see how that would work.” (Tr. p. 131.) Siemann said she became
concerned, however, when S.F. reportedly smelled of cigarette smoke and experienced
labored breathing after his first visit there. When she asked Paternal Grandmother to
maintain a smoke-free environment in S.F.’s presence, Paternal Grandmother denied that
anyone had smoked around him, but S.F. again was reported to smell of smoke and
experience breathing problems after subsequent visits. Siemann then asked the court to
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terminate the in-home visits. Although Paternal Grandmother was permitted to have
monthly visits with S.F. at MCCS thereafter, Siemann said Paternal Grandmother had
visited the child only three times between October 2018 and the September 2019 hearing.
{¶ 16} Siemann testified to having additional concerns when she “confronted”
Paternal Grandmother regarding the sexual abuse allegations against T.J. and Paternal
Grandmother denied knowing about the allegations, even though reports on the
investigations into those allegations included “very * * * detailed” discussions about
Paternal Grandmother. (Tr. p. 134.)5 Siemann said Paternal Grandmother was unable to
explain those inconsistencies.
{¶ 17} Siemann said she recently learned that in addition to having custody of
S.F.’s older brother, C.F., Paternal Grandmother also had physical custody of N., an infant
who is the child of another son of Father’s. She said N. would fall under the authority of
Greene County Children Services. When Siemann made an “unannounced” visit to
Paternal Grandmother’s home the day before the hearing, Mother answered the door.
Paternal Grandmother was not at home, but Father was in the bedroom with C.F., a
woman carrying an infant walked out of Paternal Grandmother’s bedroom, “[t]here was a
girl sleeping on the couch, and also another female in the home.” (Tr. p. 140.) Siemann
testified to feeling “uncomfortable;” she said “a lot of people were in the home” and Father
“appeared to be a little nervous that I was there”, so Siemann left before Paternal
Grandmother returned. (Tr. p. 141.)
5
Siemann did not elaborate on the nature of the reports’ discussions about Paternal
Grandmother. However, a copy of a “case summary” dated November 13, 2011 and
appended to an exhibit admitted at trial reports that one of T.J.’s alleged victims told a
Clinton County sexual abuse screener that Paternal Grandmother called the victim “a liar”
when the victim told Paternal Grandmother about T.J.’s abuse. (Tr. Exh. 4.)
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{¶ 18} Siemann testified that Paternal Grandmother’s current lease allowed for
one adult and no more than two children living in that apartment. (See Tr., Father’s Exh.
A.) She opined that S.F. could not live there with both C.F. and N. under the terms of that
lease. She also opined that Paternal Grandmother lacked “any significant bond” with S.F.;
“I believe since he’s been born she’s only seen him a total of nine times[,] roughly.” (Tr.
p. 141.) Further, Siemann had seen no evidence that Paternal Grandmother had current
employment or a stable income. Although Siemann had asked Paternal Grandmother for
statements evidencing disability income she claimed to receive, Paternal Grandmother
had produced no documentation. Finally, Siemann expressed concern about both
Mother’s and Father’s having ongoing substance abuse issues, no sustained periods of
sobriety, and no stable housing or income. She recommended that S.F.’s best interest
would be served by awarding permanent custody to MCCS.
{¶ 19} On cross-examination, Siemann said that although C.F. seemed to be doing
fine in Paternal Grandmother’s home, she (Siemann) was concerned about his being
around Mother and Father there without supervision. She noted recent evidence of
Mother’s and Father’s active drug use. She also expressed concern about the presence
of so many people in the home. Siemann said that one woman present during the
unannounced visit identified herself as the baby’s maternal grandmother, and identified
another woman as the mother of the infant (N., Father’s grandchild). Prior to the hearing,
Siemann had confirmed the existence of an outstanding warrant for N.’s mother.
{¶ 20} Shanta Anderson testified as S.F.’s caseworker since his case was
transferred to Montgomery County in February 2018. From the outset, Anderson was
aware of concerns about Mother’s and Father’s substance abuse and lack of housing and
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income. MCCS created a case plan and worked with S.F.’s parents toward achieving
objectives that would permit reunification. Due to transportation issues affecting visitation,
S.F. was transferred in March 2018 from his then-existing foster home in Hamilton County
to a foster home in Montgomery County, where he had remained since.
{¶ 21} Anderson said the main case plan objectives were for Mother and Father to
obtain and maintain income and safe and stable housing, to complete an agency-
approved parenting class, and to obtain a substance abuse assessment and follow all
resulting recommendations. They also were expected to demonstrate a period of sobriety,
to submit to additional drug screens, and to consistently participate in visitation with S.F.
In addition, Father was asked to complete a parenting psychological evaluation6 and
Mother was asked to resolve outstanding legal issues and avoid further criminal activity.
Anderson stated that Father completed the parenting class requirement. However, a
parenting class that Mother attended while incarcerated7 was not agency-approved. By
February 2019, Mother still had not complied with MCCS’s parenting class requirement,
and neither parent had achieved the plan’s remaining objectives.
{¶ 22} As to housing, Anderson testified that Mother and Father maintained a
residence together in New Vienna, Ohio for three or four months in 2018, but Father was
unable to afford the rent after Mother was incarcerated. Although Anderson referred
Father to Job and Family Services near New Vienna (in another county), Father did not
pursue that resource. Anderson testified that Mother and Father still did not have
6
Ultimately, because Father no longer was being considered for custody of S.F., MCCS
dropped the request for a parenting psychological examination. (Tr. p. 185-186.)
7
The record is unclear as to the exact period that Mother was jailed during 2018.
However, she was released before Anderson met with her on July 17, 2018. (Tr. p. 180.)
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independent housing as of the hearing date; they reported moving between the homes of
Maternal Grandmother and Paternal Grandmother. As a result, S.F.’s parents had not
completed the case plan’s housing objective. While Father reported receiving under $700
per month in disability payments, he declined to obtain a job, and Mother also had no
employment. Thus, they had not met the income objective.
{¶ 23} According to Anderson, only in June 2019 did Father complete a substance
abuse assessment, as required by the case plan. That assessment recommended that
Father receive ongoing counseling and medication management. Aside from receiving
Vivitrol, however, Father had not complied with the recommendations. Anderson
expressed concerns about Father’s ongoing substance abuse, including the incident
where he overdosed while on his way to supervised visitation with S.F. She said Father
also had tested positive on multiple drug screens. (See Tr., State’s Exhs. 1, 6.)8 Anderson
considered the case plan regarding substance abuse to be incomplete as to Father, and
testified that she did not expect Father to be able to complete his case plan objectives in
the foreseeable future. She opined that in the two years since S.F. had entered foster
care, “there’s been no significant improvement with the parents.” (Tr. p. 186.)
{¶ 24} Turning to Mother, Anderson said that she initially referred Mother to
resources in Montgomery County, but Mother did not take advantage of any of those
resources. When Mother and Father moved to New Vienna, Anderson attempted to find
referrals there, but Mother was incarcerated before those resources became available.
8 Laboratory reports admitted into evidence showed that Father tested positive for
fentanyl and buprenorphine on August 21, 2018, and for amphetamines,
methamphetamines, and fentanyl on December 28, 2018.
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Upon her release, Mother did obtain a substance abuse and mental health assessment.
Anderson testified that Mother was found to have an opiate use disorder. Despite the
assessment’s recommendation that she attend individual and group counseling, Mother
attended for only about two months before being released by her counselor in December
2018, for failure to actively participate. Anderson said that Mother maintained sobriety
while incarcerated and for a short time thereafter, but soon tested positive on a drug
screen. (See Tr., State’s Exh. 2.)9 According to Anderson, Mother had not completed the
recommended ongoing care, had not dealt adequately with her substance abuse issues,
had not made adequate progress on her case plan objectives, and was not expected to
do so in the foreseeable future.
{¶ 25} Finally, as to visitation, Anderson identified a log maintained by MCCS as
to all supervised visits with S.F. from February 28, 2018 through August 30, 2019. (Tr.,
State’s Exh. 9.) According Anderson, because Mother and Father’s weekly visits were
“very sporadic; either they didn’t show or they were late,” MCCS imposed a requirement
that they arrive an hour ahead of each scheduled visit (Tr. p. 193); only then would MCCS
send a vehicle to transport S.F. No visits occurred between January 7, 2019 and June
14, 2019. The log reflects that during that period, Mother and Father failed to appear
without calling for five consecutive weeks, from January 15, 2019 to February 12, 2019.
MCCS then sent Mother, Father, and Paternal Grandmother a letter instructing them to
contact MCCS if they wished to resume visitation. That did not occur until June 14, 2019.
{¶ 26} Beginning on June 14, 2019, both Mother and Father visited S.F. for three
9 A laboratory report admitted into evidence showed that Mother tested positive for
cocaine and benzoylecgonine on December 28, 2018.
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consecutive weeks. Because they arrived late on July 5, 2019, no visit occurred on that
date; however, both attended weekly from July 12, 2019 through August 9, 2019. They
missed the August 16 and August 23, 2019 visits, but returned on August 30, 2019.
Paternal Grandmother attended visits on only two occasions from June through
September 2019. Anderson further noted that Father was asked to leave a scheduled
visitation in October 2018 when he showed up “intoxicated.” (Tr. p. 203-204.)
{¶ 27} Anderson testified that when MCCS opened S.F.’s case, Paternal
Grandmother was the first relative investigated as a possible placement. Later, Father’s
sister was suggested as a possible custodian for S.F., but was determined not to be a
suitable placement. Anderson said Father’s sister had an open agency case – “[i]f it was
not child neglect, it was something like that.” (Tr. p. 204-205.) On her own initiative,
Anderson sought out Maternal Grandmother, who told Anderson that no one from
Mother’s family was able to take custody of S.F.
{¶ 28} As to Paternal Grandmother’s suitability, Anderson first expressed concerns
related to income; “it’s always been a struggle to get proof of income from” Paternal
Grandmother. (Tr. p. 206.) Anderson had seen no evidence that Paternal Grandmother
was working as of the time of the hearing. Further, only months into the investigation did
Anderson learn that the home where Paternal Grandmother lived was shared with T.J.,
the subject of substantiated allegations of sexual abuse. Anderson said Paternal
Grandmother claimed she and T.J. were not living together, but she gave Anderson a
series of wrong telephone numbers and addresses for T.J. before Anderson finally was
able to locate him in a rooming house. Although T.J. showed her a receipt for rent at the
rooming house, Anderson saw “no personal effects at all” in his room, “no food, toiletries,
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clothing, nothing to show that he was [living] there.” (Tr. p. 211.) Subsequently, Paternal
Grandmother advised Anderson that she (Paternal Grandmother) had moved out of the
marital home and into a property in Pleasant Plain, Ohio, where she resided at the time
of the hearing.
{¶ 29} Although Paternal Grandmother was permitted to have in-home visitation
during September 2018, Anderson said the GAL requested that those visits end after S.F.
suffered asthma symptoms following each visit. Anderson testified that Paternal
Grandmother also failed the home study conducted while she remained in the marital
residence. Anderson said the primary reason for that failure was MCCS’s inability to
establish that T.J. was not living in the home. Anderson said Paternal Grandmother gave
“inconsistent statements,” including saying she did not know where T.J. was or how to
contact him, but also saying that he was paying her living expenses. (Tr. p. 219.) Although
Paternal Grandmother no longer lived in the marital residence in February 2019, MCCS
continued to have concerns about her lack of income and her lack of healthy boundaries
with Mother and Father.10
{¶ 30} Anderson testified that S.F. was doing well in his foster home. She stated
that he was “very energetic and rambunctious,” his asthma was under control, and he
appeared to be very bonded with his foster parents, as well as his foster father’s mother,
who visited often. (Tr. p. 222-223.) Anderson said that MCCS would continue to work with
the foster parents toward adopting S.F. Anderson opined that it would be impossible for
S.F. to be reunified with Mother and Father within reasonable time limits. Further, she
10 On cross-examination, Anderson explained her boundary issue concerns by stating
that Paternal Grandmother is “not able to tell [Father] and [Mother] no.” (Tr. p. 254.)
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opined that Paternal Grandmother was not bonded with S.F.; she said that Paternal
Grandmother had visited him only seven times and was not taking advantage of all
opportunities to visit. Anderson stated that on the two occasions she witnessed Paternal
Grandmother’s visits with S.F., “there was not a lot of interaction.” (Tr. p. 250.) Anderson
also noted that Paternal Grandmother’s lease would not permit S.F. to live in her current
apartment along with C.F. and N. Anderson concluded that S.F.’s best interest would be
served by granting MCCS permanent custody.
{¶ 31} Finally, Paternal Grandmother appeared as the sole witness opposing
MCCS’s request for permanent custody. She testified that she had lived in Pleasant Plain
since November 2018. However, she stated that she was living in Dayton when she first
met with MCCS regarding S.F. in February 2018. Paternal Grandmother said that an
MCCS representative initially told her that she (Paternal Grandmother) had passed the
home study conducted in February 2018. Only later did she learn that MCCS would not
place S.F. with her due to concerns that T.J., her husband, was living in the home.
Paternal Grandmother testified that T.J. had moved out of their Dayton marital residence
in December 2017,11 when HCCS advised her that S.F. could not live with her if T.J. were
there. She maintained that T.J. did not live with her at any time after MCCS became
involved in S.F.’s case. Paternal Grandmother said she had considered divorcing T.J.,
but currently was spending her funds on the custody matter instead.
{¶ 32} Paternal Grandmother said she had no criminal record. She explained that
11 Later, however, Paternal Grandmother testified that T.J. still lived at the marital
residence; “[h]e never left.” (Tr. p. 299.) She also acknowledged that the car she drove
was registered to T.J. at the marital address, and “guess[ed]” that T.J. paid for the
insurance on that car.
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she obtained custody of C.F., S.F.’s older brother, in April 2017, through a Clinton County
case. She said that although the same county’s Sheriff’s office had investigated the
sexual abuse allegations made against T.J. in 2012, Clinton County Children Services
supported her getting legal custody of C.F. after meeting with her and T.J. in 2017. A copy
of the custody entry was admitted into evidence. (Tr., Father’s Exh. P.)
{¶ 33} Regarding visitation with S.F., Paternal Grandmother said she initially was
told that she could not attend the earliest supervised visits, which were limited to Mother
and Father. However, she said she later was permitted to accompany Mother and Father
to weekly visitation, and during September 2018, visitation occurred in her home. Paternal
Grandmother acknowledged that she was a smoker at that time,12 but denied that anyone
smoked inside her home during S.F.’s visits or at any other time. She stated that she did
witness S.F. “kinda wheezing” during one visit there, and told MCCS.13 (Tr. p. 280.) She
said that Anderson later “gave [her] a paper” forbidding smoking around S.F.; Paternal
Grandmother said she honored that prohibition. (Tr. p. 280-281.)
{¶ 34} Paternal Grandmother testified that S.F.’s visits to her home went well, and
that S.F. and his brother C.F. bonded “[i]mmediately.” (Tr. p. 282.) She said that she also
felt bonded to S.F., and that S.F. had played at her home with another grandchild near
his age. Paternal Grandmother said she then was allowed one monthly visitation, which
she claimed to attend regularly with one exception, when she had no one to watch N., her
infant great-grandchild. She said that N. was placed with her after N.’s mother granted
12
Paternal Grandmother subsequently testified that she quit smoking in 2019 due to
S.F.’s health condition. (Tr. p. 292.)
13
Later, she said that Father, not she, told Anderson of MCCS about the wheezing
incident at her home. (Tr. p. 316.)
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permission and Greene County conducted an investigation.
{¶ 35} Although Paternal Grandmother acknowledged that her then-current lease
did not allow for three children in that apartment, she intimated that her landlord “has no
problem with the baby being there.” (Tr. p. 285-286.) She also said that she had an
appointment to “look at” a three-bedroom townhouse (Tr. p. 286); she said she believed
she could afford the rent there of “just a tad over a thousand dollars a month.” (Tr. p. 293.)
She also identified photographs of her then-current apartment, including one bedroom for
C.F. with a crib for S.F. and one bedroom that she shared with N. (Tr., Father’s Exhs. B-
O.)
{¶ 36} Paternal Grandmother testified that she was employed on weekends at a
nursing home in Batavia, Ohio, and also babysat during the week. She estimated her
annual income to be $43,000. She expressed confidence that she could provide for
herself, C.F., S.F., and N., “[a]s long as I keep babysitting.” (Tr. p. 289.)
{¶ 37} Later, however, she acknowledged that she had not yet begun the job in
Batavia. (Tr. p. 302.) She said her last previous employment had ended in March 2019,
and she had no income during the intervening six months. As to babysitting, she said she
had been doing so for “eight weeks, twelve weeks” for her daughter’s children, and was
being paid $325 per week by her daughter’s father. (Tr. p. 315.) However, she
acknowledged that she never provided MCCS with any verification of income.
{¶ 38} With regard to the GAL’s unannounced visit the previous day, Paternal
Grandmother said that she was “[a]t the grocery store, getting something for dinner,” and
was gone 40 to 45 minutes. She said that in her absence, N.’s other grandmother was
watching N. and C.F.; she said another granddaughter of her own was there as well,
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along with N.’s mother, Mother, and Father. She maintained that N.’s other grandmother
was an appropriate caregiver in her absence, and that no one present was under the
influence of drugs or alcohol.
{¶ 39} Paternal Grandmother said that granting her legal custody would be in
S.F.’s best interest, because “I’ve got my love into my favor to get to him.” (Tr. p. 290.)
She pledged to assure that C.F., S.F. and N. had “[t]he basics and anything else I can
give ‘em.” (Id.) She said that she “[n]ever again in my life” planned to have T.J. in her
home, and was prepared to “call and have * * * removed” anyone who entered her home
while under the influence of drugs or alcohol. (Tr. p. 291.) She also said she would be
willing to supervise Mother and Father’s visits with S.F., and would not leave him with
them without supervision. While Paternal Grandmother indicated that Father “shares a lot
with me,” she testified that she was not aware of the circumstances of Father’s encounter
with Dayton police on August 16, 2019. (Tr. p. 318-319.)
{¶ 40} On October 17, 2019, the trial court issued a decision finding “that the State
presented clear and convincing evidence that a grant of permanent custody to the agency
is in the child’s best interest,” and that Paternal Grandmother “is not able to adequately
care for the child.” (Judge’s Final Order, p. 10.) Accordingly, the court entered judgment
granting permanent custody to MCCS, denying legal custody to Paternal Grandmother,
and terminating Mother and Father’s parental rights. (Id. at p. 11.)
{¶ 41} Father’s appeal from the trial court’s judgment raises this single assignment
of error: “The grant of permanent custody to MCCS was an abuse of discretion as the
court did not consider the requirements of OAC 5101:2-42-05 and 5101:2-42-18.”
Standard of Review
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{¶ 42} 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. See In re K.W., 185
Ohio App. 3d 629, 2010-Ohio-29, 925 N.E.2d 181, ¶ 15 (2d Dist.) (applying abuse of
discretion standard to decision granting permanent custody and terminating parental
rights); In re M.O., 2d Dist. Montgomery No. 26457, 2015-Ohio-2430, ¶ 7 (applying abuse
of discretion standard to decision granting legal custody). The term “abuse of discretion”
implies that the court’s decision was unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 43} If the juvenile court’s determination as to a child’s best interest is not
supported by competent, credible evidence, that decision is unreasonable, and we may
reverse. In re Starks, 2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶ 17, citing In re Nice,
141 Ohio App. 3d 445, 455, 751 N.E.2d 552 (7th Dist.2001). However, “the discretion
which a trial court enjoys in custody matters should be accorded the utmost respect, given
the nature of the proceeding and the impact the court’s determination will have on the
lives of the parties concerned.” Miller v. Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d 846
(1988). Because “[t]he knowledge a trial court gains through observing the witnesses and
the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed
record[,] * * * the reviewing court in such proceedings should be guided by the
presumption that the trial court’s findings were indeed correct.” (Citations omitted.) Id.
Such deference to the trial court’s findings “is even more crucial in a child custody case,
where there may be much evident in the parties’ demeanor and attitude that does not
translate to the record well.” (Emphasis sic.) Davis v. Flickinger, 77 Ohio St. 3d 415, 419,
674 N.E.2d 1159 (1997).
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Law Governing Permanent and Legal Custody Decisions
{¶ 44} The United States Supreme Court has stated that a parent’s interest in the
care, custody, and control of his or her children “is perhaps the oldest of the fundamental
liberty interests recognized by” that court. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000). Unless they forfeit the right through specific conduct,
“suitable” parents have a “paramount” right to the custody of their minor children. In re
Perales, 52 Ohio St. 2d 89, 97, 369 N.E.2d 1047 (1977). Still, “the natural rights of a parent
are not absolute, but are always subject to the ultimate welfare of the child, which is the
polestar or controlling principle to be observed.” (Citation omitted.) In re Cunningham, 59
Ohio St. 2d 100, 106, 391 N.E.2d 1034 (1979).
{¶ 45} Pursuant to R.C. 2151.414(B)(1), a juvenile court may grant permanent
custody of a child to a child services agency upon determining that permanent custody is
in the child’s best interest. Because an award of permanent custody is “ ‘a drastic
remedy’ ” that “involves the termination of parental rights,” permanent custody
determinations must be based upon clear and convincing evidence. In re S.M., 2d Dist.
Montgomery No. 24539, 2011-Ohio-6710, ¶ 4, fn.1, quoting In re A.W., 2d Dist.
Montgomery No. 21309, 2006-Ohio-2103, ¶ 6; see also R.C. 2151.414(B)(1) and (E).
“Clear and convincing evidence” is “ ‘the 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.’ ” In re Rose, 2017-Ohio-694, 85 N.E.3d 498, ¶ 19 (2d Dist.), quoting In re
Estate of Haynes, 25 Ohio St. 3d 101, 104, 495 N.E.2d 23 (1986). “Clear and convincing”
means “more than a mere preponderance,” but less than “clear and unequivocal.” Id.
{¶ 46} R.C. 2151.414 establishes a two-part test for courts to apply when
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determining a motion for permanent custody to a public services agency. First, the court
must find by clear and convincing evidence that the child either (a) cannot or should not
be placed with either parent within a reasonable period of time; (b) is abandoned; (c) is
orphaned and no relatives are able to take permanent custody of the child; or (d) has
been in the temporary custody of one or more public or private children services agencies
for 12 or more months of a consecutive 22-month period. In re S.J., 2d Dist. Montgomery
No. 25550, 2013-Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-
Ohio-6010, ¶ 8; R.C. 2151.414(B)(1). Second, the court must determine that granting
permanent custody to the agency is in the child’s best interest. Id.
{¶ 47} In determining a child’s “best interest” under R.C. 2151.414(B)(1), a court
must consider the factors set forth at R.C. 2151.414(D)(1). Those factors include:
(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;
(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
* * * for twelve or more months of a consecutive twenty-two-month period
* * *;
(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;
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(e) [Whether additional factors listed at R.C. 2151.414(E)(7)-(11) apply].
R.C. 2151.414(D)(1).
{¶ 48} As an alternative to an award of permanent custody, a juvenile court may
award legal custody of a dependent child to a non-parent who asks for legal custody or
is proposed as a legal custodian. In re A.F., 2018-Ohio-310, 103 N.E.3d 1260, ¶ 51 (2d
Dist.), citing R.C. 2151.353(A)(3). Unlike an award of permanent custody, “[a]n award of
legal custody of a child does not divest parents of their residual parental rights, privileges,
and responsibilities.” In re C.R., 108 Ohio St. 3d 369, 2006-Ohio-1191, 843 N.E.2d 1188,
paragraph one of the syllabus. Those privileges include reasonable visitation. R.C.
2151.353(A)(3)(c).
{¶ 49} When making a legal custody determination under R.C. 2151.353, the
juvenile court must apply the “best interest of the child” standard set forth in R.C.
3109.04(F)(1). In re A.F at ¶ 52, citing In re D.S., 2d Dist. Clark No. 2013 CA 51, 2014-
Ohio-2444, ¶ 9; In re Poling, 64 Ohio St. 3d 211, 594 N.E.2d 589 (1992), paragraph two
of the syllabus; R.C. 2151.23(F)(1). The “best interest” factors for purposes of legal
custody differ somewhat from those for permanent custody determinations, in that
considerations for the former include “[t]he wishes of the child’s parents regarding the
child’s care” and “[t]he child’s adjustment to the child’s home, school, and community.”
See R.C. 2141.23(F)(1)(a), (d).
{¶ 50} Significantly, however, “R.C. 2151.353(A) does not require a juvenile court
to consider placing [a] child[ ] with a relative prior to granting the permanent custody
request of an agency.” In re A.A., 2d Dist. Greene No. 2008 CA 53, 2009-Ohio-2172,
¶ 19. “Relatives seeking the placement of the child are not afforded the same presumptive
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rights that a biological parent receives as a matter of law, and the willingness of a relative
to care for the child does not alter the statutory factors to be considered in granting
permanent custody.” Id., citing In re A.V., 4th Dist. Lawrence No. 08CA31, 2009-Ohio-
886, ¶ 17. Accordingly, “[c]ourts are 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.” Id., citing In re A.V. at ¶ 17; In re Wilkenson, 1st Dist. Hamilton Nos. C-010402,
C-010408, 2001 WL 1220026 (Oct. 12, 2001).
Preliminary Issue – Standing
{¶ 51} We first address the State’s suggestion that Father lacks standing to
challenge the trial court’s denial of the motions to have legal custody assigned to Paternal
Grandmother. (See Brief of Appellee, p. 12-13.) The State asserts that “a parent may only
appeal the termination of parental rights and not the denial of a motion for a third party.”
(Id. at p. 13, citing In re S.C., 2018-Ohio-2523, 115 N.E.3d 813, ¶ 14 (8th Dist.), and In re
K.C., 2017-Ohio-8383, 99 N.E.3d 1061, ¶ 8 (1st Dist.).) The cited cases are
distinguishable, however, in that Father is appealing from the denial not of a third-party’s
motion, but of his own motion asking that Paternal Grandmother be granted legal custody
of S.F. Compare In re K.C. at ¶ 11 (finding parent lacked standing to appeal “denial of a
relative’s custody petition”) (Emphasis added.).
{¶ 52} Further, we concur in the Eighth District’s observation that “[i]f permanent
custody to [the agency] is in the child[ ]’s best interest[ ], legal custody to a relative
necessarily is not.” In re S.C. at ¶ 16. Because our review establishes that the trial court
did not abuse its discretion by determining that a grant of permanent custody to MCCS
was in S.F.’s best interest, we decline to engage in an extensive analysis of the State’s
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secondary argument regarding standing.
Father’s Assignment of Error
{¶ 53} Father contends that the trial court erred in granting permanent custody to
MCCS without considering the requirements of Ohio Adm.Code 5101:2-42-05 and
5101:2-42-18. Specifically, he argues that MCCS rejected Paternal Grandmother as a
suitable placement for S.F. based upon its improper consideration of sexual abuse
allegations that occurred “at least six years prior to [S.F.’s] birth,” “were never proven in
a court of law,” and were made against someone (J.T.) purported to have moved from
Paternal Grandmother’s home even before MCCS began its placement search.
{¶ 54} As an initial matter, we note that the parties have directed us to nothing in
the record to indicate that any argument regarding MCCS’s alleged non-compliance with
the administrative regulations was presented to the trial court. We ordinarily do not
consider issues raised for the first time on appeal. See Tax Ease Ohio, LLC v. Lucas, 2d
Dist. Montgomery No. 27836, 2018-Ohio-3075, ¶ 6, quoting State v. Schneider, 2d Dist.
Greene No. 95-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995) (“It is settled law that issues
raised for the first time on appeal and not having been raised in the trial court are not
properly before this court and will not be addressed.”). That omission alone might warrant
rejecting Father’s assignment of error. However, we also conclude that Father’s argument
is without merit.
{¶ 55} Under Ohio Adm.Code 5101:2-42-05(A), agencies such as MCCS are
required to “explore both maternal and paternal relatives” as possible temporary
custodians of a child unable to remain in his or her home. Aside from placement with a
parent, Ohio Adm.Code 5101:2-42-05(F)(2) assigns the highest preference to
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placements in “[t]he home of a suitable relative.” Regardless of that preference, Ohio
Adm.Code 5101:2-42-18(H) sets forth an extensive list of criminal violations that will
preclude approving as a substitute caregiver any person who has “been convicted of or
pleaded guilty to” those offenses, or resides with another adult who has.
{¶ 56} Under Ohio Adm.Code 5101:2-42-18(H), mere allegations of criminal
conduct are not a proper basis for refusing to place a dependent child with a family
member. See In re A.J., 148 Ohio St. 3d 218, 2016-Ohio-8196, 69 N.E.3d 733. In In re
A.J., the Supreme Court of Ohio considered the appeal of a mother whose parental rights
were terminated after a child services agency found a maternal aunt to be an unsuitable
substitute caregiver. On appeal, the mother argued that the agency “ignore[d] the
mandates of [Ohio Adm.Code] 4101:2-42-05” by refusing to place her child with a relative
due to 10-year-old child endangerment allegations against that relative. Id. at ¶ 17. The
Supreme Court determined “that the plain language of [Ohio Adm.Code 5101:2-42-18]
requires proof of a conviction or guilty plea” in order for a relative’s criminal history to
disqualify him or her from serving as a substitute caregiver. In re A.J. at ¶ 21. Father thus
is correct in asserting that MCCS should not have denied Paternal Grandmother custody
of A.F. based upon the sexual abuse allegations against J.T.
{¶ 57} Nevertheless, the Court in In re A.J. found that the agency also denied
placement with the maternal aunt due to her lack of income, meaning that the criminal
allegations against her “w[ere] not the sole basis for the agency’s decision.” Id. at ¶ 22,
26. The majority affirmed the trial court’s judgment awarding permanent custody to the
agency, declining to find that the trial court abused its discretion by not finding error in the
agency’s decision to reject the maternal aunt as a substitute caregiver. Id. at ¶ 27.
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{¶ 58} As in In re A.J., the agency in S.F.’s case found that Paternal Grandmother’s
lack of income left her unable to provide an appropriate placement. Father’s challenge to
that finding relies heavily on the dissenting opinion in In re A.J. In that opinion, the
dissenting justices faulted the majority for “fail[ing] to consider that Ohio Adm.Code
5101:2-42-18 contemplates that a relative may be suitable to care for a child but may
require financial or other assistance.” Id. at ¶ 32 (O’Donnell, J., dissenting). In part
because the record “[wa]s silent about whether the agency gave [information about
possible resources] to” the maternal aunt, the two dissenting justices said they would
reverse the court of appeals, vacate the trial court’s permanent custody judgment, and
remand for a new placement decision. Id. at ¶ 34.
{¶ 59} Father argues that a reversal on that basis is warranted in this case. We
disagree, for multiple reasons. First, Father cites only that dissenting opinion for the
proposition that because MCCS did not prove it provided Paternal Grandmother with
information about resources for possible financial and other assistance in accordance
with Ohio Adm. Code 5101:2-42-18(B)(4) and (5), the trial court erred by not finding that
the agency acted improperly in deeming Paternal Grandmother to be an unsuitable
substitute caregiver due to lack of income. The majority in In re A.J. held otherwise, stating
that “the record indicates that [the maternal aunt’s] lack of income excluded her as a
relative substitute caregiver.” In re A.J. at ¶ 26. The record before us likewise
demonstrates that Paternal Grandmother did not provide evidence of an income adequate
to meet the needs of A.F. in addition to those of the children already in her care.
{¶ 60} Second, the dissenting justices in In re A.J. based their disagreement with
the majority in part on the absence from the record of “information about [the maternal
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aunt’s] assets or employment history or prospects * * *.” Id. at ¶ 33. In the opinion of the
dissenting justices, the maternal aunt’s lack of income at the time of the home study,
“standing alone, d[id] not demonstrate [the maternal aunt wa]s unsuitable to care for” the
infant child at issue. Id. In the instant case, however, the record contains significant
information about Paternal Grandmother’s lack of stable employment, job opportunities,
or documented income over an extended period. In fact, during the custody hearing
conducted more than a year after a home study found her to have no verified income,
Paternal Grandmother projected that she would have an adequate annual income based
only a weekend job that she had not yet begun and a recent arrangement to provide paid
childcare for her grandchildren during the week. The record contains clear and convincing
evidence to support MCCS’s conclusion that Paternal Grandmother lacked sufficient
stable income and housing to serve as a suitable placement.
{¶ 61} Finally, under our existing precedent, the juvenile court was not required to
consider placing S.F. with Paternal Grandmother prior to granting the agency’s
permanent custody request. See In re A.A., 2d Dist. Greene No. 2008 CA 53, 2009-Ohio-
2172, ¶ 19, citing R.C. 2151.353(A). “[T]he willingness of a relative to care for the child
does not alter the statutory factors to be considered in granting permanent custody.” Id.
As stated by the Eighth District Court of Appeals:
In deciding what is in a child’s best interest in a permanent custody
proceeding, the trial court need not find by clear and convincing evidence
that termination of parental rights is the only option or that no suitable
relative is available for placement. * * * Rather, R.C. 2151.414 requires the
court to find the best option for the child upon a weighing of all the relevant
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factors. * * * “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 does not even require the court to weigh that factor more heavily
than other factors.”
(Citations omitted.) In re T.H., 8th Dist. Cuyahoga No. 107947, 2019-Ohio-3045, ¶ 14.
Father’s challenge based on the juvenile court’s failure to consider whether MCCS fully
complied with the requirements of Ohio Adm.Code 5101:2-42-05 and 5101:2-42-18 is not
well taken.
{¶ 62} Further, we conclude that clear and convincing evidence supports the trial
court’s determination that awarding permanent custody to MCCS was in S.F.’s best
interest. First, the evidence demonstrates that grounds for permanent custody existed
under R.C. 2151.414(B)(1)(a), and Father does not dispute the trial court’s finding that
S.F. could not be placed with either parent within a reasonable time, or that S.F. had been
in agency custody for more than 12 consecutive months. Second, in discerning S.F.’s
best interest, the trial court properly considered the appropriate factors under R.C.
2151.414(D)(1). The record substantiates the trial court’s finding that two-year-old S.F.
was too young to express a placement preference in accordance with R.C.
2151.414(D)(1)(b). Clear and convincing evidence supported a conclusion that the
remaining factors all weighed in favor of granting permanent custody to MCCS – i.e.,
testimony about S.F.’s bonded relationship with his foster family compared to limited and
sporadic visits with Mother, Father, and Paternal Grandmother (R.C. 2151.414(D)(1)(a));
S.F.’s presence in agency custody since two months of age and with the same foster
family since he was six months old (R.C. 2151.414(D)(1)(c)); S.F.’s need for a legally
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secure permanent placement such as what the foster parents had been providing,
whereas Mother, Father, and Paternal Grandmother had not convincingly shown they
could provide S.F. with secure, stable housing, provide adequate income for his needs,
or insulate him from his parents’ illegal drug use (R.C. 2151.414(D)(1)(d)); and Mother,
Father, and Paternal Grandmother’s abandonment of S.F. by repeatedly failing to appear
for supervised visitation as scheduled (R.C. 2151.414(D)(1)(e) and (E)(10)).
{¶ 63} Father’s assignment of error is overruled.
Conclusion
{¶ 64} The judgment of the juvenile court will be affirmed.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck Jr.
Sarah E. Hutnik
Sara M. Barry
Jessica Andress
M.J.
Serah Siemanm, GAL
Hon. Helen Wallace