2021 Ohio 3273
Ohio Ct. App.2021Background
- Two children, G.B. (born 2014) and K.B. (born 2018), were removed in Feb. 2018 after parents tested positive for drugs at K.B.’s birth; children were adjudicated dependent/neglected and placed in Agency custody.
- Agency pursued relative placements: initially sought temporary custody with great-aunt/uncle Kevin and Nadine Hershey in 2018–2019 (denied by court at that time); later pursued the Fitschen couple in 2020 but that placement failed when the Fitschens withdrew.
- The Agency then moved to place the children in the legal custody of the Hersheys and to terminate protective supervision; the Fitschens intervened and sought kinship placement as well.
- At the Sept.–Oct. 2020 kinship/legal-custody hearing the contested issue was whether legal custody should be granted to the Hersheys or to the Fitschens (the Agency’s permanent-custody motion was rendered moot by a legal-custody award).
- Trial court awarded legal custody to the Hersheys (finding best interests supported placement: strong prior bonding, child preference, need for a legally secure, stable home); Father appealed, raising three assignments of error.
Issues
| Issue | Father’s Argument | Agency / Hersheys’ Argument | Held |
|---|---|---|---|
| 1. Whether granting legal custody to the Hersheys was against the manifest weight / an abuse of discretion (vs. placement with the Fitschens) | Father argued the court should have awarded legal custody to the Fitschens and that the Hersheys’ past hostility with the parents (and Father’s objections) made the Hersheys unsuitable | Agency, CASA and witnesses testified children were strongly bonded to the Hersheys, the Fitschens showed inconsistent commitment, and the Hersheys provided the better, legally secure option | Court affirmed: award to Hersheys supported by preponderance of evidence and not against manifest weight or an abuse of discretion |
| 2. Whether the court erred by failing to enter a visitation order for Father (residual parental visitation) | Father argued the court should have specified reasonable visitation despite awarding legal custody to kin | Agency/Court noted Father did not move for visitation; residual parental rights are not absolute and are subject to child welfare considerations | Court affirmed: no error—trial court did not abuse discretion because no visitation motion was pending |
| 3. Whether the court erred by not applying R.C. 3109.04(F) best-interest factors in making the legal-custody decision | Father contended the court should have applied R.C. 3109.04(F) (private-custody factors), including giving weight to his wishes | Agency/Court explained legal-custody decisions must be made in the child’s best interest and may consider either R.C. 2151.414(D) or R.C. 3109.04(F); court properly used 2151.414(D) as more directly applicable | Court affirmed: no reversible error in using R.C. 2151.414(D) factors; Father’s wishes were considered but the evidence favored the Hersheys |
Key Cases Cited
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for manifest‑weight review of evidence)
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (abuse‑of‑discretion standard in child custody matters)
- In re Mullen, 129 Ohio St.3d 417 (Ohio 2011) (trial court’s broad discretion in child‑custody proceedings)
- In re C.R., 108 Ohio St.3d 369 (Ohio 2006) (adjudication of abuse/neglect implies parental unsuitability relevant to custody decisions)
- In re Cunningham, 59 Ohio St.2d 100 (Ohio 1979) (residual parental rights are subject to child’s welfare)