IN RE: M.S. and J.S. Minor Children [Appeal By Father]
Nos. 101693 and 101694
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 19, 2015
2015-Ohio-1028
Keough, J., Jones, P.J., and E.A. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 12914289 and AD 14900469
ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: Susan M. Walters Assistant County Prosecutor Cuyahoga County Division of Children and Family Services 8111 Quincy Avenue Cleveland, Ohio 44104
Timothy J. McGinty Cuyahoga County Prosecutor By: Cheryl Rice Assistant County Prosecutor Cuyahoga County Division of Children and Family Services 3955 Euclid Avenue Cleveland, Ohio 44115
GUARDIAN AD LITEM
Wildon V. Ellison 12020 Lake Avenue, Suite 205 Lakewood, Ohio 44107
KATHLEEN ANN KEOUGH, J.:
{¶1} Appellant (Father) appeals the juvenile court‘s decision granting permanent
I. Background
{¶2} Appellant is the biological father of M.S., born August 26, 2012, and J.S., born November 10, 2013. M.S. was removed from her parents’ custody four days after she was born, and CCDCFS was granted emergency pre-dispositional custody. After a hearing on December 10, 2012, she was found to be a dependent child and temporary custody was granted to CCDCFS. A complaint for permanent custody was filed on June 19, 2013.
{¶3} CCDCFS was also granted emergency pre-dispositional custody of J.S. when he was born, and he was removed from his parents’ custody when he was four days old. On January 17, 2014, CCDCFS refiled a complaint alleging that J.S. was a dependent child and seeking permanent custody. J.S. was adjudicated dependent on March 19, 2014.
{¶4} On January 17, 2014, Father filed a motion requesting that the court grant legal custody of the children to his niece K.G. or other relatives. The trial court held a hearing on CCDCFS‘s motions for permanent custody of M.S. and J.S. and Father‘s motion for legal custody to his relatives on April 25 and April 28, 2014. After hearing the evidence, the trial court found that the children could not be placed with either parent within a reasonable time, and that an award of permanent custody to CCDCFS was in their best interest. This appeal followed.
II. Analysis
{¶6} When reviewing a trial court‘s judgment in child custody cases, the appropriate standard of review is whether the trial court abused its discretion. Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Miller v. Miller, 37 Ohio St.3d 71, 73, 523 N.E.2d 846 (1988). When reviewing the trial court‘s custody decision, an appellate court must make every reasonable presumption in favor of the lower court‘s judgment and finding of facts. In re Broadbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994).
{¶7} Termination of parental rights is an alternative of last resort but is sanctioned when necessary for the welfare of a child. In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). Before a juvenile court may terminate parental rights and award permanent custody of a child who is neither abandoned nor orphaned to a proper moving agency, it must find by clear and convincing evidence that (1) the grant of permanent custody to the agency is in the best interest of the child; and (2) the child cannot be placed with either parent within a reasonable time or should not be placed with either parent.
{¶8} Clear and convincing evidence is more than a mere preponderance of the evidence, but does not rise to the level of certainty required by the beyond a reasonable doubt standard in criminal cases. In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It produces in the mind of the trier of fact a firm belief or conviction as
{¶9} In this case, the juvenile court found, and Father does not dispute, that the children could not be placed with either parent within a reasonable time or should not be placed with either parent.
{¶10} When considering the best interest of a child in a permanent custody hearing, the juvenile court is required under
{¶11} As an initial matter, we note that if permanent custody to the agency is in the children‘s best interest, legal custody to K.G. and C.G. necessarily is not. In re L.C., 9th Dist. Summit No. 26816, 2013-Ohio-2799, ¶ 10. Moreover, a child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991). Accordingly, the willingness of a relative to care for a child does not alter what the court must consider in determining permanent custody. In re A.D., 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, ¶ 12, citing In re Benavides, 8th Dist. Cuyahoga No. 78204, 2001 Ohio App. LEXIS 2002 (May 3, 2001). A court is 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. In the Matter of B.H., 5th Dist. Fairfield No. 14-CA-53, 2014-Ohio-5790, ¶ 72.
{¶12} Here, the evidence before the juvenile court clearly and convincingly demonstrated that upon consideration of the
{¶13} In light of this testimony, it is apparent that K.G. and C.G.‘s interaction with the children was minimal and that neither of them had a close relationship with the children. The children‘s interaction and relationship with their foster family, however, was described by the caseworker and their guardian ad litem as very positive. The evidence demonstrated that both children had been in the same good, loving foster home since birth and had bonded with the foster parents, as well as with each other and the other two children in the home. The foster parents also indicated they were interested in adopting M.S. and J.S. if the trial court granted permanent custody to CCDCFS. When K.G. was asked about taking custody of the children, however, she testified that she would take both, if I have to, clearly indicating that she did not have an emotional bond with the children.
{¶14} With respect to the wishes of the children, the guardian ad litem for the children recommended that the court grant permanent custody of both children to CCDCFS. He informed the court that due to the parents’ severe issues, they would not be able to parent the children in the foreseeable future, and that even though it seemed the relatives wanted to help out, he had observed serious issues with them such that he could not recommend granting them legal custody.
{¶15} With respect to the custodial history of the children, the evidence demonstrated that as of the hearing, M.S. had been in agency custody for nearly two years and J.S. for over five
{¶16} As to whether the children‘s need for a legally secure permanent placement could be achieved without a grant of permanent custody, the evidence demonstrated that neither K.G. nor C.G. completed the requirements for becoming foster parents, despite being informed by CCDCFS that this was a requirement for having legal custody of the children. Stevens testified that she asked C.G. several times for income verification, but that as of the permanent custody hearing, she still had not received all of the information necessary to complete the approval process. Stevens also asked K.G. to provide income verification. Although K.G. once told Stevens that she was a hair stylist and another time that she owned a hair salon, she never provided sufficient written documentation to verify her income. At the hearing, K.G. stated that she could not remember her income for either 2012 or 2013.
{¶17} In addition to failing to complete the approval process, the evidence demonstrated there were significant concerns about what the children‘s living conditions would be with either K.G. or C.G. The guardian ad litem reported that when he visited C.G.‘s home, there were roaches and ants in the cabinets, as well as black stuff that stank. K.G., on the other hand, already had five children living with her.
{¶18} There were also concerns about K.G.‘s parenting decisions. Although Stevens observed an unassembled crib in a box when she visited K.G.‘s home, K.G. told Stevens that her infant child slept in her bed with her, creating a risk that the child could be harmed if K.G. rolled over on him. CCDCFS also had concerns about how K.G. would care for the children when she was at work. Stevens testified that every time she asked K.G. about child care arrangements, her story would change. K.G. first said that she would take the children to work with her and put
{¶19} K.G.‘s inability to give a consistent response to Stevens‘s questions was like her hearing testimony, which was nonresponsive and evasive. During her testimony, K.G. insisted she could not remember such basic details as when she was married, her husband‘s criminal history, when her house went into foreclosure, whether she still owed back taxes on the property, when she declared bankruptcy, how much she owed when she declared bankruptcy, whether her phone service was cancelled for nonpayment, when the father of her children had last visited, or what sentence she received on a drug abuse conviction.
{¶20} [I]t is axiomatic that the court and the CCDCFS must be able to repose trust in the individual seeking custody. In re S.D., 8th Dist. Cuyahoga No. 97322, 2012-Ohio-2299, ¶ 44. Here, however, the record contained compelling evidence that K.G. was not trustworthy. Indeed, as the trial court found, K.G.‘s testimony amply demonstrated all the concerns CCDCFS ha[d] in placing the children with her. Although Father argues that the trial court misinterpreted the evidence in the record, issues relating to the credibility of the witnesses and the weight to be given the evidence are primarily for the trier of fact. In re L.S., 8th Dist. Cuyahoga No. 95809, 2011-Ohio-3836, ¶ 19, citing Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990). We find nothing in the record to suggest that the juvenile court erred in finding that K.G. was not a credible witness.
{¶21} Finally, we note that if the trial court had granted legal custody of the children to K.G. or C.G., the natural parents would have residual rights to seek a change of custody. See
{¶22} In light of the foregoing, we find that the juvenile court did not abuse its discretion in determining that neither K.G. nor C.G. were suitable custodians for M.S. and J.S., and that permanent custody should be awarded to CCDCFS. The juvenile court‘s determination that an award of permanent custody to CCDCFS is in the children‘s best interest is supported by clear and convincing evidence, and therefore, the assignment of error is overruled.
{¶23} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Juvenile Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and EILEEN A. GALLAGHER, J., CONCUR