IN RE: G.M.
No. 95410
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 18, 2011
2011-Ohio-4090
Minor Child [APPEAL BY GRANDMOTHER, P.C.M.]
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 08935487
BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: August 18, 2011
Jeffrey R. Froude
P.O. Box 761
Wickliffe, OH 44092-0761
ATTORNEY FOR APPELLEES A.M., ET AL., FOSTER PARENTS
Mark Witt
6209 Barton Road
North Olmsted, OH 44070-3856
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant County Prosecutor
Cuyahoga County Department of Children and Family Services
4261 Fulton Parkway
Cleveland, OH 44144
GUARDIAN AD LITEM FOR CHILD
Russell Ezolt
26341 Strawberry Lane
Westlake, OH 44145
{¶ 1} Appellant, P.C.M., the maternal grandmother to a now four-year-old child, G.M., appeals from a juvenile division order that granted legal custody of the child to foster parents, J.M. and A.M. The grandmother complains that the court lacked jurisdiction to hear the case, that the child‘s guardian ad litem had no authority to file a motion on behalf of the foster parents, and the court‘s judgment is against the manifest weight of the evidence.1
I
{¶ 2} The child was born to a teenage mother in California in Novembеr 2006. His paternity has not been established. The child and mother lived with the grandmother, but the grandmother‘s full-time pursuit of a nursing degree meant that various family members helped raise him. In February 2008, the grandmother moved from California to Georgia and brought the child with her. The mother stayed behind in California and would occasiоnally visit in Georgia. At times, the mother took the child to
{¶ 3} In June 2009, the agency filed a motion asking the court to award legal сustody of the child to the grandmother. The child‘s guardian ad litem objected and filed his own motion asking the court to award legal custody of the child to the foster parents. The paternal grandfather then filed his own motion for legal custody. The parties later reached an interim agreement on visitation and withdrew their respective motions, and the court continued the child in the temporary custody of the foster parents.
{¶ 4} The agreement between the parties unraveled, however, when the agency filed an amended case plan in which it stated a goal to return the
II
{¶ 5} The grandmother first argues that the court lacked jurisdiction to hear the matter under the Interstate Compact on the Placement of Children (“ICPC“) because the child hаd spent less than six months in the state of Ohio at the time motions for legal custody were filed. She argues that only the California or Georgia courts could rule on the custody motions.
{¶ 6} The ICPC is a contract among member states and U.S. territories authorizing them to work together to ensure that children who are рlaced across state lines for foster care or adoption receive adequate protection and support services. See
{¶ 7} The ICPC applies only if a state had previously exerted some form of jurisdiction оver a child. The record does not show that any other state agency had exerted jurisdiction over the child before he was moved to Ohio. It appears that the first time a state agency became involved occurred when the agency sought temporary custody of the child in order tо allow the foster parents to obtain medical treatment for him. The ICPC thus had no application to this case, and the court properly exercised jurisdiction to decide who should have legal custody of the child.
III
{¶ 8} The grandmother next argues that the child‘s guardian ad litem lacked authority to filе a motion for legal custody on behalf of the foster parents. She maintains that the guardian ad litem could only file a motion
{¶ 9} A child‘s guardian ad litem is required to “perform whatever functions are necessary to protect the best interests of the child *** and shall file any motions and other court papers that are in the best interests of the child.”
{¶ 10} It is true that the guardian ad litem did not, concurrent with the filing of his motion to award legal custody of the child to the foster рarents, file the foster parents’ statement of understanding as required by
{¶ 11} On the finаl day of the hearing, May 11, 2010, the grandmother, grandfather, and the agency made an oral motion to dismiss the guardian ad litem‘s motion to award legal custody to the foster parents on grounds that the foster parents had not filed a statement of understanding. The court agreed that the statement should have been filed earlier but also noted that “it‘s something that should have been caught earlier” by a magistrate or the parties. It orally denied the motion to dismiss, instructed the foster parents to file the statement by the following day, and stated its intent to grant legal custody to the foster parents. The foster parents filed their statement of understanding on May 12, 2010; the court issued the journal entry granting legal custody on June 12, 2010. Since the court speaks only through its journal, Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 382, 667 N.E.2d 1194,
{¶ 12} Although we find no jurisdictional impediment exists in this case, prudence would suggest that a statement of understanding be filed as a part of a motion for legal custody. But in a case like this, where the foster parents essentially testified to all that would have been contained in the statement of understanding, the court could, before issuing a journal entry awarding legal custody, ask the foster parents to rectify an obvious oversight in order to achieve full compliance with
IV
{¶ 13} For her final argument, the grandmother argues that the court‘s decision to award legal custody to the foster parents is against the manifest weight of the evidence. Claiming that there “is a fairly even division of positives and negatives for the child regardless of who gets custody,” she maintains that the court should have been guided by the statutory presumption that the child be placed with a suitable member of his extended family — a presumption that would have tipped the scales in her favor.
A
{¶ 14} After a child is adjudiсated abused, neglected, or dependent, the court may award legal custody to a non-parent after finding that legal custody is in the child‘s best interests.
{¶ 15} Unlike
{¶ 16} The differences in the best interеsts factors are of no great consequence, however, because the different statutes are merely instructive on the question of a child‘s best interests. In re Pryor (1993), 86 Ohio App.3d 327, 335, 620 N.E.2d 973. Rules of statutory construction state that it is generally presumed that the General Assembly acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another. State v. Vanderbilt (1882), 37 Ohio St. 590, 609. By failing to set forth in
B
{¶ 17} In oral remarks made at the conclusion of the hearing, the court stated that the case was one of the most difficult it had ever had because “we
{¶ 18} Contrary to the grandmother‘s assertions, the preference for a family placement as expressed in
{¶ 19} As noted, the court acknowledged the statutory preference that a child be placed with relatives when possible, but ultimately concludеd that it was more important that the child have a “good steady home[.]” It found that the child has spent the previous two, formative years with the foster
{¶ 20} The аbuse of discretion standard requires us to affirm a discretionary ruling by the court unless that ruling is arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. The grandmother concedes that the foster parents were suitable for legal custody. She acknowledges that the child had spent the last half of his life with the foster parents, that they loved the child, were raising him in a devoutly religious home, and more than adequately provided for him. And she does not deny that the parties stood in relative balance for purposes of which of them could serve the child‘s best interests as legal custodians. With these factors presеnt, we necessarily cannot conclude that the court abused its discretion by finding that an award of legal custody to the foster parents would be in the child‘s best interests.
Judgment affirmed.
It is ordered that appellees recover of appellant their 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 Cuyahoga County Court of Common Pleas – Juvenile Division to carry this judgment into execution.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR