In re: K.S.
Caparella-Kraemer & Associates, LLC, Bradley M. Kraemer, 4841-A Rialto Road, West Chester, Ohio 45069, for appellant paternal grandfather
A. Aaron Aldridge, 130 East Mulberry Street, Lebanon, Ohio 45036, for appellant mother
Sean Brinkman, 10 West Monument Avenue, Dayton, Ohio 45402, guardian ad litem
HENDRICKSON, P.J.
{¶ 1} Appellants, the biological mother (“Mother“) and paternal grandfather (“Paternal Grandfather“) of K.S., appeal from the decision of the Warren County Court of Common Pleas, Juvenile Division, granting permanent custody of K.S. to appellee, Warren County Children Services (“WCCS” or “the Agency“), and denying Paternal Grandfather‘s motion for legal custody.
{¶ 3} On October 25, 2017, WCCS filed a complaint alleging K.S. was a neglected and dependent child. On that same date, the juvenile court held an emergency shelter care hearing and K.S. was placed in the emergency shelter care of the Agency. Mother, who was still a minor at this time, was also placed in the Agency‘s custody.
{¶ 4} On January 3, 2018, an adjudicatory hearing in K.S.‘s case was held. At this time, Mother and Father stipulated that Father was currently incarcerated due to offenses involving Mother and that Mother and her father had tested positive for illegal drugs. The juvenile court adjudicated K.S. a dependent and neglected child. Subsequently, on January 18, 2018, the juvenile court issued a dispositional decision ordering K.S. be placed in the temporary custody of the Agency.
{¶ 5} A guardian ad litem (“GAL“) was appointed for K.S. and a case plan was established for Mother. The case plan required Mother to cooperate and make herself available to the Agency, to submit to random drug screens, complete a mental health assessment and follow all recommendations, complete a drug and alcohol assessment and follow all recommendations, refrain from criminal activity, comply with the terms of her
{¶ 6} On October 24, 2018, the Agency filed a motion for permanent custody of K.S., contending that Mother and Father had not made sufficient case plan progress, that K.S. could not be placed with either of his parents within a reasonable time or should not be placed with his parents, and that vesting permanent custody to WCCS was in K.S.‘s best interest. A hearing on the Agency‘s motion was scheduled for January 7, 2019. Prior to the hearing, the GAL filed a report recommending that permanent custody be granted to the Agency.
{¶ 7} On January 7, 2019, the day of the permanent custody hearing, Paternal Grandfather filed a motion for legal custody of K.S and a statement of understanding, as required by
{¶ 8} The juvenile court indicated it was treating Paternal Grandfather‘s motion as a request to intervene in the case, as well as a request for legal custody of K.S. The court
{¶ 9} Paternal Grandfather first claimed that he did not know the Agency had removed K.S. from Mother‘s care until “six or nine months ago,” around April or July of 2018. However, Paternal Grandfather later admitted that he knew about the Agency‘s involvement “back in October of 2017” because Mother had contacted him and informed him that K.S. was in foster care. Paternal Grandfather testified he did not initially seek to get involved in the case because he thought Mother “was doing what she was supposed to be doing, and she was supposed to be getting [K.S.] back.” However, after he spoke with Mother “probably *** three months ago,” or around October 2018, and learned that Mother had been arrested and was in jail, Paternal Grandfather decided to file his motion for legal custody.
{¶ 10} The Agency opposed Paternal Grandfather‘s motion to intervene and motion for legal custody. The Agency noted that although Paternal Grandfather had been aware of the Agency‘s custody of K.S. for well over a year, Paternal Grandfather had not contacted WCCS to request that he be considered for placement of the child, nor had he attempted to set up visitation or contact with K.S. The juvenile court orally denied Paternal Grandfather‘s request to intervene and motion for legal custody. The court then heard testimony relating to the Agency‘s motion for permanent custody from K.S.‘s caseworker, Mother, Father, and
{¶ 11} K.S.‘s caseworker explained that the Agency had been involved with Mother‘s family since 2014 as a result of drug use by Mother and Mother‘s father. When K.S. was born in November 2015, Mother was living with her father and was on probation with the juvenile court as a result of drug-related activities. Mother tested positive for marijuana, benzodiazepines, MDMA, and cocaine when tested by probation. She was given an additional drug test by the Agency and tested positive for marijuana and Xanax. As a result, on October 25, 2017, K.S. was removed from Mother‘s care and placed in the Agency‘s custody.
{¶ 12} The caseworker explained that because Mother was also a minor, she was also removed from her father‘s care and placed in the Agency‘s custody. K.S. and Mother briefly lived together in an independent living facility. However, after the Agency realized K.S. needed a higher level of supervision, K.S. was placed in a foster-to-adopt home. According to the caseworker, K.S. has been in the same foster home for over a year and he has made “tremendous progress” in his foster home. The caseworker testified that when K.S. was originally removed from Mother‘s care, K.S. was developmentally behind, did not make eye contact with anyone, did not respond to anyone, and was noncommunicative. K.S. underwent physical, occupational, and speech therapy and received services from Head Start and Help Me Grow. K.S. progressed and can now carry on conversations, say full sentences, and knows people‘s names and his colors. K.S. and his foster family have bonded with one another and the foster family has expressed an interest in adopting K.S. The caseworker testified she believes it is in K.S.‘s best interest for permanent custody to be granted to WCCS.
{¶ 14} The caseworker testified Mother had not completed the mental health assessment set forth in her case plan. The Agency had requested a mental health assessment due to Mother‘s upbringing, her drug issues, her abusive relationship with Father, and the fact that she had a child at such a young age.
{¶ 15} The caseworker also testified that Mother had not maintained stable housing or a stable income after reaching the age of majority. While Mother was in the Agency‘s custody, she had stable housing. The caseworker discussed with Mother the option of Mother remaining in the Agency‘s custody beyond her eighteenth birthday to make it easier for Mother to complete her case plan requirements. The caseworker explained that if Mother had elected to stay in the Agency‘s custody, Mother would have been placed in her own apartment where she would have been responsible for her own bills, but would have received transportation assistance from the Agency. Mother insisted, however, that she wanted to
{¶ 16} After Mother left the Agency‘s custody, the caseworker discussed possible housing options with Mother. The caseworker explained to Mother that the Bridges Program could help Mother obtain housing. The caseworker knew that Mother had made initial contact with Bridges, but the caseworker did not have any additional information about the result of that contact. The caseworker also did not know if Mother had contacted any other housing providers before she was arrested and jailed in Florida.
{¶ 17} The caseworker testified about Mother‘s visitations with K.S., explaining that when Mother first exercised her visitation, K.S. was “very standoffish.” However, K.S.‘s bond with Mother improved as the visits continued. The caseworker testified Mother was “normally very good” with K.S. but did not always provide structure to K.S. during visits. When that issue was brought to Mother‘s attention, Mother stated that she was reluctant to discipline K.S. because she had limited time with her child and wanted to “be able to enjoy” the visits.
{¶ 18} When Mother was in the Agency‘s custody, she consistently attended visitations with K.S. However, once she left the Agency‘s custody, Mother arrived late or missed visitations altogether. Mother was required to confirm by 8:00 a.m. on the morning of each visit whether or not she would attend that day. Mother abided by this requirement only once or twice. Eventually, Mother was required to arrive at the visitation center an hour before her visits would begin to ensure her presence before K.S. was brought to the center. Mother also did not abide by this condition. Mother‘s last visit with K.S. occurred on September 26, 2018. Mother had gone more than 90 days without any communication with K.S. by the time of the
{¶ 19} The caseworker testified that Father was not a placement option for K.S. as he was serving a lengthy prison sentence in a federal penitentiary in Arizona for offenses committed against Mother when she was a minor. Father had been convicted of coercion and enticement of a minor and was not scheduled to be released from prison until 2027. Due to Father‘s lengthy incarceration, he did not have an active case plan with the Agency and the caseworker had not personally contacted Father regarding K.S. or any possible relative placements for K.S.
{¶ 20} When questioned about the Agency‘s communication with Paternal Grandfather, the caseworker stated that the Agency had not had any contact with him. The caseworker indicated that neither Mother nor Father had identified Paternal Grandfather as a potential placement for K.S. According to the caseworker, the Agency “ha[d] to be given his name by either parent *** or the parents [had to] sign a release for me to be able to call [him], because otherwise I can‘t confirm or deny there‘s an open case.” The caseworker noted that Mother had Paternal Grandfather‘s contact information but “didn‘t want to give it to [the Agency] because she *** didn‘t want [K.S.] to be in anybody else‘s care.” In order for Paternal Grandfather to be evaluated for placement, Paternal Grandfather‘s home state of Wisconsin would need to do a background check, fingerprinting, and a home study. The caseworker estimated the process would take somewhere between six months to a year.
{¶ 21} Mother testified K.S. has not been in her custody since October 25, 2017, and she has not visited with K.S. since September 26, 2018. Mother agreed that she had not completed all the case plan requirements for reunification but stated she had made more progress than the caseworker indicated. In addition to completing parenting classes, Mother claimed to have completed a mental health assessment at the same time she completed her
{¶ 22} Mother further admitted that after completing drug and alcohol treatment in April 2018, she relapsed in September 2018. Mother stated she intended to reengage in treatment through Recovery Define and had completed a second drug and alcohol assessment, where it was recommended that she engage in an intensive outpatient program. However, before she could undergo such treatment, she was arrested on drug offenses in Florida. Mother testified that she intended to start alcohol and drug courses and anger management courses in jail in February 2019.
{¶ 23} Mother acknowledged that after turning 18 years-old, she decided to leave the Agency‘s custody and move back in with her father. However, Mother stated she had been pursuing an alternative living arrangement. Before she was arrested, Mother had contacted the Bridges Program and filled out applications for Metropolitan and Section 8 housing.
{¶ 24} Mother testified she held various jobs during the pendency of the case but was unable to retain the jobs due to transportation issues. Mother explained that she was not permitted to obtain her license while in the Agency‘s custody and had yet to obtain her license after leaving the Agency‘s custody. Mother stated her transportation issues were the primary reason she missed or was tardy for visitations with K.S.
{¶ 25} Finally, Mother testified she has had contact with Paternal Grandfather since K.S.‘s birth, but Paternal Grandfather has never met K.S. Mother indicated she “would be in agreement” with Paternal Grandfather becoming K.S.‘s legal custodian.
{¶ 27} Paternal Grandfather was called as a witness by Father. He testified that in October 2017, he learned from Mother that the Agency had removed K.S. from her custody and placed him in foster care. Paternal Grandfather was not informed of the juvenile court case by the Agency and was never contacted by the Agency to see if he was a viable placement for K.S. Paternal Grandfather stated that on one occasion he contacted WCCS to obtain information about K.S.‘s case but was informed by the Agency that it could not provide him with information at that time. Paternal Grandfather‘s knowledge of the case proceedings, therefore, came from what he was told by Mother and Father. Paternal Grandfather acknowledged that prior to the date of the permanent custody hearing, he did not file a motion with the juvenile court asking to become involved in K.S.‘s case. Rather, Grandfather indicated he relied on Mother‘s representations that “everything was going fine *** and she would get [K.S.] back.”
{¶ 28} Paternal Grandfather admitted he has never seen or communicated with K.S. Nonetheless, Paternal Grandfather stated he was willing and able to take custody of K.S. and had the financial means to care for the child.
{¶ 29} After considering the foregoing testimony, the juvenile court issued a decision granting the Agency‘s motion for permanent custody and denying Paternal Grandfather‘s motion for legal custody. The court found by clear and convincing evidence that K.S. had been abandoned by Father and that K.S. could not be placed with either Mother or Father
{¶ 30} In denying Paternal Grandfather‘s motion for legal custody, the court indicated it took into consideration “the best interest of the minor child.” The court further stated that
[p]ursuant to In re Schmidt, 25 Ohio St.3d 331, 496 N.E. 2d 952 (1986), the Court finds that Paternal Grandfather does not have a legally protected right of association with the child. Further, the Court finds that there were no allegations or evidence presented that would reasonably indicate that Paternal Grandfather had a right to custody of, or visitation with, the minor child. He never obtained, through statute, court order, or other means, any legal right to custody or visitation with the minor child. Similarly, he had no legal interest in the care and custody of the minor child which would have allowed him to intervene as of right pursuant to
Civ.R. 24 .
{¶ 31} Mother and Paternal Grandfather separately appealed the juvenile court‘s decision.
Paternal Grandfather‘s Appeal
{¶ 32} Assignment of Error No. 1:
{¶ 33} THE TRIAL COURT ERRED IN DENYING [PATERNAL] GRANDFATHER‘S MOTION FOR LEGAL CUSTODY.
{¶ 35} After a child is adjudicated abused, neglected, or dependent, the court may award legal custody of the child to a nonparent who, like Paternal Grandfather, has filed a motion requesting legal custody and a statement of understanding.
{¶ 36} “[R]elatives seeking custody of a child are not afforded the same presumptive rights that a natural parent receives.” In re A.B., 12th Dist. Clermont No. CA2013-03-024, 2013-Ohio-3405, ¶ 34. A juvenile court is not required to find by clear and convincing evidence that a relative is an unsuitable placement option; rather, when a grandparent seeks legal custody, the inquiry focuses on what is in the best interest of the child. Id. at ¶ 34. “A juvenile court ‘may award legal custody to a nonparent upon a demonstration by a preponderance of the evidence that granting legal custody to the nonparent is in the child‘s best interest.‘” In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-Ohio-3341, ¶ 53, quoting In re C.A., 12th Dist. Butler No. CA2014-07-165, 2015-Ohio-1410, ¶ 13.
{¶ 37}
{¶ 38} A reviewing court will not reverse a juvenile court‘s custody decision absent an abuse of discretion. In re A.C., 12th Dist. Clermont No. CA2006-12-105, 2007-Ohio-3350, ¶ 15. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “The discretion granted to a juvenile court 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.‘” In re A.C. at ¶ 15, quoting In re A.W.-G., 12th Dist. Butler No. CA2003-04-099, 2004-Ohio-2298, ¶ 6.
{¶ 39} After a thorough review of the record, we find that the juvenile court did not abuse its discretion in denying Paternal Grandfather‘s motion for legal custody. We further
{¶ 40} Paternal Grandfather testified he was willing to care for K.S. and had the financial means to do so. However, because of the late filing of Paternal Grandfather‘s motion for legal custody, there had been no investigation into whether he would be an appropriate custodian for K.S. K.S.‘s caseworker testified that Paternal Grandfather‘s home state of Wisconsin would have to do a background check, fingerprinting, and a home study before Paternal Grandfather could be considered for placement, and that process could take up to a year. The juvenile court found that K.S. was in present need of legally secure placement and his “only chance at stability [was] to be placed in the permanent custody of WCCS so they [could] arrange for the Child to be adopted, hopefully through [the] same foster family.”
{¶ 41} Paternal Grandfather suggests that the Agency is at fault for his delay in seeking to become involved in the juvenile case. He contends that the Agency should have contacted him as an alternative placement for K.S. when the Agency‘s’ involvement began.
{¶ 42} Accordingly, for the reasons set forth above, we find no error in the juvenile court‘s denial of Paternal Grandfather‘s motion for legal custody. It was in K.S.‘s best interest for Paternal Grandfather‘s motion for legal custody to be denied and for permanent custody to be granted to the Agency. Paternal Grandfather‘s sole assignment of error is, therefore, overruled.
Mother‘s Appeal
{¶ 43} Counsel for Mother has filed a brief with this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which (1) indicates that a careful review of the record from the proceedings below fails to disclose any errors by the juvenile court prejudicial to the rights of Mother upon which an assignment of error may be predicated; (2) lists five potential errors “that might arguably support the appeal,” Anders at 744; (3) requests that this court review the record independently to determine whether the proceedings are free from
{¶ 44} Having allowed Mother sufficient time to respond, and no response having been received, we have accordingly examined the record and find no error prejudicial to Mother‘s rights in the proceedings in the juvenile court. Therefore, the motion of counsel for Mother requesting to withdraw as counsel is granted, and Mother‘s appeal is hereby dismissed for the reason that it is wholly frivolous.
Conclusion
{¶ 45} The assignment of error raised by Paternal Grandfather is overruled and the juvenile court‘s decision denying Paternal Grandfather‘s motion for legal custody and granting the permanent custody to WCCS is affirmed. Mother‘s appeal is dismissed and her counsel‘s request to withdraw is granted.
S. POWELL and RINGLAND, JJ., concur.
HENDRICKSON, P.J.
PRESIDING JUDGE