In re E.B.
Judgment Appealed From Is: Affirmed in C-190050; Appeal Dismissed in C-190054
Date of Judgment Entry on Appeal: September 27, 2019
Raymond T. Faller, Hamilton County Public Defender, and Elizabeth Stringer, Assistant Public Defender, Guardian ad Litem for appellant E.B.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas Varney, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Chris Kapsal, for Appellee Mother.
{1} This child-custody dispute arises in an unusual posture-the appellant guardian ad litem (“GAL“) for the child insists that the child be placed in the permanent custody of the Hamilton County Department of Job and Family Services (“HCJFS“). But HCJFS is holding up its hands, resisting that result. It instead desires that the child live with her maternal cousin, which is exactly what the juvenile court ordered. Upon a comprehensive review of the record, we affirm the juvenile court‘s judgment and dissolve the stay that we previously issued.
I.
{2} In July 2016, just a few days after E.B.‘s birth, HCJFS initiated a complaint requesting interim custody of her due to, among other things, Mother‘s substance abuse, untreated mental health issues, unstable housing, and domestic violence incidents, as well as E.B.‘s positive test for marijuana upon birth. After a hearing, the court awarded that relief, thereby placing E.B. in foster care. A couple of months later, the court adjudicated E.B. abused and dependent, committing her to the temporary custody of HCJFS.
{3} As reunification efforts proceeded, Mother continued to struggle with depression, bipolar disorder, and substance abuse, declining to take any medications for her mental health concerns. As a result, in June 2017, all parties agreed to extend temporary custody to January 2018, and the court granted that request. Subsequently, in August 2017, Mother‘s maternal (second) cousin, Afia Thornton, entered upon the custody scene, filing a legal custody petition for E.B. A home study ensued, yet because of various delays, the study did not begin until January 2018. In the meantime, due to the pending expiration of the first extension of temporary custody, HCJFS moved to extend temporary custody again in December 2017, with the hope of approving the home study and commencing visits.
{4} Finally, in March 2018, HCJFS approved Ms. Thornton‘s home study, and it promptly filed a case plan, which included supervised visits between E.B. and Ms. Thornton to foster a relationship. But GAL interceded and objected, triggering the need for a hearing before the magistrate. Agreeing with GAL‘s objections, the court halted Ms. Thornton‘s visits, but noted that “the lack of visitation with Ms. Thornton and [E.B.] would not be considered as a barrier to her custody petition.” Because of the parties’ unavailability for an expedited hearing, the earliest time to address GAL‘s objections for the case plan was the previously scheduled date for the trial. Therefore, by the time of trial, the magistrate had before her a trio of competing motions—HCJFS‘s motion to extend temporary custody, Ms. Thornton‘s legal custody petition, and GAL‘s motion for permanent custody.
{5} At the three-day trial, while testimony concerning Ms. Thornton‘s delayed application and her husband‘s criminal record emerged as focal points, the court also heard from the foster mother and received conflicting testimony from HCJFS employees. After considering all the evidence, the magistrate accepted HCJFS‘s recommendation and granted legal custody of E.B. to Ms. Thornton, thereby denying GAL‘s motion seeking permanent custody and dismissing HCJFS‘s motion to extend temporary custody. While GAL lodged objections to the magistrate‘s decision, the juvenile court ultimately upheld the decision granting legal custody to Ms. Thornton. Yet the court modified the magistrate‘s decision, requiring E.B. to remain in custody of HCJFS during the transition plan, allowing E.B. a brief period of time to adjust from foster care to Ms. Thornton.
{6} GAL now appeals this order granting legal custody to Ms. Thornton, presenting a two-fold argument. First, as to the first and second assignments of error, GAL
II.
{7} Before turning to the merits of this appeal, we first address a challenge to our own jurisdiction. Mother asserts that the juvenile court‘s decision does not constitute a final, appealable order, and she requests that we dismiss this appeal for lack of appellate jurisdiction. Because
{8} The familiar (albeit sometimes confounding)
{9} It is well-established that a GAL possesses a “‘statutory right to ensure that the best interests of the child are enforced and protected in the permanent custody proceeding,‘” and thus a juvenile court‘s order affecting this “substantial right” constitutes a final, appealable order. In re S Children, 2018-Ohio-5010, 126 N.E.3d 239, ¶ 32 (1st Dist.), quoting In re C.B. at ¶ 14 (noting
{10} But the premise of her argument rests on a misreading of Adams, where the juvenile court denied permanent custody to the child services agency, but continued temporary custody. Because “the continuation of temporary custody [did] not foreclose appropriate relief in the future” for the agency, the Supreme Court deemed the order non-final. Id. at ¶ 44. Conversely, here, the court did not deny permanent custody and continue temporary custody for an indefinite period, but instead denied permanent custody, dismissed HCJFS‘s motion to extend temporary custody, and awarded legal custody to Ms.
{11} We find this case more akin to our recent decision in In re L.A., 2014-Ohio-894, 9 N.E.3d 525 (1st Dist.). In that case, the juvenile court rejected the magistrate‘s decision to award permanent custody to HCJFS, remanding the case for a new hearing to evaluate whether the grandparents or parents would be a proper placement for the children. Even after specifically terminating HCJFS‘s temporary custody of the children, the court ordered that the children remain in foster care under orders of supervision while HCJFS evaluated the appropriate legal custodian. Id. at ¶ 2. Despite HCJFS‘s continued custody of the children through foster care, this court allowed HCJFS and GAL‘s appeal of the court‘s order, recognizing GAL had “a statutory obligation to protect the children‘s best interests and * * * it is not in a child‘s best interest to be left without, at the very least, a temporary safe and secure placement.” Id. at ¶ 7. This case presents a stronger claim to finality than L.A., where the court failed to award the child to anyone, because the juvenile court in the case at hand awarded legal custody of E.B. to Ms. Thornton, only postponing the effective date of legal custody to allow a smooth transition for E.B. (which should be in everyone‘s best interests).
{12} Based on our analysis above, we conclude that the juvenile court‘s order is final under
{13} We begin our analysis of the merits by considering GAL‘s first and second assignments of error, where she presents an array of arguments all targeting the juvenile court‘s decision to deny GAL‘s motion for permanent custody and award legal custody to Ms. Thornton. When reviewing a juvenile court‘s grant of legal custody, we apply an abuse of discretion standard and consider whether the court‘s “best-interest determination is not supported by competent and credible evidence.” In re F.B.D., 1st Dist. Hamilton No. C-180356, 2019-Ohio-2562, ¶ 11. GAL resists the abuse of discretion standard, but in doing so offers cases discussing permanent custody rather than legal custody. See In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-4818, ¶ 19-22 (distinguishing between legal and permanent custody). As this court has determined before, in the legal custody context, abuse of discretion applies. In re F.B.D. at ¶ 11.
{14} Pursuant to
{15} Using the
{16} Moreover, after noting E.B.‘s nonexistent relationship with her alleged Father and sparse visits from Mother, the court acknowledged E.B.‘s strong bond with her foster parents. Additionally, the court considered the fact that Mother‘s other four children lived with the maternal grandparents, weighing this, amongst the other factors, in favor of awarding Ms. Thornton (maternal cousin) legal custody.
{17} Turning to “the wishes of the child,” the court certainly considered GAL‘s position and her recommendation to grant HCJFS permanent custody, since it was over HCJFS‘s own objections. See
{18}
{19} To support her first argument, GAL directs our attention to Schaefer, emphasizing the “nearly identical” facts. Yet Schaefer faulted an appellate court for creating a statutory duty upon “the juvenile court [to] determine by clear and convincing evidence that ‘termination of appellant‘s parental rights was not only a necessary option, but also the only option’ * * * [and] that no suitable relative was available for placement.” Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, at ¶ 64. Confronted with these extra requirements, the Supreme Court found the “heightened importance that the appellate court assigned to
{20} Unlike in Schaefer, the juvenile court here did not fashion “the availability of a placement that would not require a termination of parental rights” as “an all-controlling factor.” See id. at ¶ 64. Instead, the court weighed this factor exactly as permitted under the
{21} Further, after documenting the series of procedural hurdles that precluded Ms. Thornton from visits, the juvenile court became comfortable that E.B. could bond with Ms. Thornton. E.B. showed an ability to bond with caregivers, and the juvenile court had before it credible testimony by Ms. Thornton of her commitment to raising E.B., how her work schedule would enable her to spend substantial time with E.B., and her desire to keep E.B. anchored in her natural family. Ms. Thornton conveyed the same points to the HCJFS employee who interviewed her, who walked away convinced (as did the juvenile court) of Ms. Thornton‘s sincerity and her ability to live up to the expectations of caring for E.B. Ms. Thornton did the best she could to demonstrate her commitment and try to foster a relationship with E.B.—our system should be designed to help actual or prospective parents succeed, not bury them with red-tape and trap them in a bureaucratic maze so that they fail. We do not suggest that GAL acted in anything other than good faith in objecting to the opportunity of Ms. Thornton to cultivate a relationship with E.B., but GAL cannot take measures to prevent that relationship from developing and then complain about the juvenile court‘s assessment of the imperfect record before it.
{23} We also find sufficient record support for the juvenile court‘s conclusion that Ms. Thornton would provide a legally secure placement. Before it, the court heard conflicting testimony as to whether Ms. Thornton‘s home was a legally secure placement for E.B. On one hand, Ms. Davis, the HCJFS kinship assessor who approved Ms. Thornton‘s home study, offered testimony at trial as to her home study procedures and recommendation, explaining that after her two-hour interview with Ms. Thornton and her husband, her verification of husband‘s criminal record, and her conversations with others about husband, she found Ms. Thornton‘s home to be a safe and secure place for E.B. And notably, HCJFS supported Ms. Davis‘s recommendation. On the other hand, Ms. Graham, the HCJFS caseworker, expressed her personal opinion that Ms. Thornton‘s husband‘s criminal record created a dangerous environment, and thus recommended permanent custody be granted to HCJFS (noting the foster family‘s willingness to adopt). Weighing the credibility of both these opinions (and presumably taking into account that Ms. Davis actually met with Ms. Thornton and her husband, whereas Ms. Graham did not meet with both of them), and hearing from Ms. Thornton herself regarding her husband‘s distant past
{24} In an attempt to poke holes in Ms. Davis‘s recommendation, GAL also alleges a litany of violations Ms. Davis committed in her home study assessment under
{25} Finally,
IV.
{27} Turning to GAL‘s third assignment of error, she argues that the court stepped beyond the bounds of its jurisdiction by ordering temporary custody indefinitely, specifically citing
{28} The court‘s direction for a transition plan strikes us as a reasonable way to implement its decision and to mitigate any distress to the child. And recall why we need the transition plan here in the first place-bureaucratic and related delays and obstacles (some at the hand of GAL) prevented what should have occurred in the ordinary course. With that in mind, the court did not exceed its statutory and jurisdictional authority, and we accordingly overrule GAL‘s third assignment of error.
V.
{29} For the foregoing reasons, we find that the juvenile court‘s determinations as to E.B. were supported by competent and credible evidence and that it did not abuse its discretion. We therefore overrule all three of GAL‘s assignments of error and affirm the juvenile court‘s judgment in the appeal numbered C-190050. We also immediately dissolve the stay order that this court previously issued, and we deny all pending motions as moot in light of our disposition. Last, as to the appeal numbered C-190054, because it does not raise any assignments of error, we accordingly dismiss it.
Judgment accordingly.
WINKLER, J., concurs.
MYERS, P.J., dissents.
MYERS, P.J., dissenting.
{30} Because I would find that the trial court abused its discretion in determining the best interest of E.B., I must dissent. As recognized by the majority, a nonparent relative is not entitled to any more preference for custody than a nonrelative. In re Patterson, 1st Dist. Hamilton No. C-090311, 2010-Ohio-766, at ¶ 16. E.B. has lived her entire life with her foster parents who want to adopt her. She has a loving, established relationship with them. On the other hand, she has virtually no relationship with her second cousin, once removed. In addition, while he has not been convicted of any crimes recently, the cousin‘s husband, to whom the cousin has only been married since April of 2017, has a troubling criminal history, including convictions for domestic violence.
{31} Applying the factors of
Please note:
The court has recorded its own entry this date.