In re R.V.
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James J. Popil, for appellant K.V., Jr.
K.V., maternal grandmother, pro se.
Dianne L. Keeler, for appellee.
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PER CURIAM.
{¶ 1} This is an appeal of a decision terminating parental rights by the Lucas County Court of Common Pleas, Juvenile Division.
{¶ 3} This case was originally opened in March 2008, and on April 30, 2008, LCCS was granted two ex parte orders placing R.V. and K.V. into shelter care custody. At that time, these children resided with their mother, D.V., and K.V., Jr., the natural father of K.V. The orders were granted, in part, due to alleged domestic violence between the mother and K.V., Jr., and due to the fact that K.V. was diagnosed with failure to thrive. K.V. was not fed for twelve hours and lost one-half pound over the course of one weekend. There was also very little food in the home and the mother had no means of transportation other than through K.V., Jr. Both parents also have untreated mental health issues.
{¶ 4} This matter also involves two other children born to D.V., their mother, as well as the natural father of each. These children, along with their respective fathers, are not at issue in this appeal.
{¶ 5} On May 1, 2008, LCCS filed a complaint in dependency and neglect for R.V. and K.V. After mediation, held on June 4, 2008, the mother consented to a finding that R.V. and K.V. were dependent and neglected. On June 17, 2008, an adjudication hearing was held. None of the natural parents appeared, but all court appointed attorneys and the guardian ad litem were present. The court determined that R.V. and K.V. were
{¶ 6} LCCS filed a motion for an extension of temporary custody on February 6, 2009, and again on September 24, 2009, in order to give the parents additional time to comply with the case plans. On January 28, 2010, the paternal grandparents of K.V. filed a motion to intervene, which was subsequently granted on June 16, 2010.
{¶ 7} On March 30, 2010, after the children had been in foster care for more than two years, LCCS filed a motion for permanent custody of R.V. and K.V. A dispositional hearing on LCCS’ motion for permanent custody of R.V. and K.V. and the paternal grandparents’ motion for legal custody of K.V. was held on July 9 and 14, 2010, and August 4 and 10, 2010.
{¶ 8} On the second day of the dispositional hearing, the maternal grandmother appeared as a witness. The attorney for the mother made a motion to allow the maternal grandmother to testify. The maternal grandmother was neither a party to the trial court proceedings nor on the witness list. However, over the state‘s objection, the court ruled that she could testify, but only in support of the mother‘s case against permanent custody. Her testimony, contrary to the court‘s ruling, clearly reflected that she desired legal custody of R.V. She testified that she was also willing to take legal custody of K.V. if his paternal grandparents were not awarded legal custody. The court permitted the grandmother‘s testimony regarding her own ability to care for R.V. and K.V., but
{¶ 9} The juvenile court‘s decision granting LCCS’ motion for permanent custody and denying the paternal grandparents’ motion for legal custody was journalized on August 13, 2010.
{¶ 10} This matter is a consolidated appeal of K.V., Jr., the father of K.V., and of the maternal grandmother from the trial court‘s final decision. The mother and the paternal grandparents did not appeal.
{¶ 11} K.V., Jr. raises the following two assignments of error:
{¶ 12} “THE TRIAL COURT ERRED IN GRANTING APPELLEE LUCAS COUNTY CHILDREN SERVICES’ MOTION FOR PERMANENT CUSTODY AS THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 13} “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR WHEN THE COURT DENIED PATERNAL GRANDPARENT‘S [SIC] MOTION FOR LEGAL CUSTODY SINCE A PREPONDERANCE OF THE EVIDENCE SHOWED THAT IT WOULD BE IN THE BEST INTERST OF THE CHILD FOR CUSTODY TO BE AWARDED TO THEM.”
{¶ 14} In the father‘s second assignment of error, he contends that the trial court erred by granting the motion for permanent custody because it should have placed K.V. in the legal custody of the paternal grandparents. We must initially determine whether the father has standing to raise this challenge on appeal.
{¶ 16} K.V., Jr.‘s standing is therefore limited to whether the trial court improperly terminated his parental rights. Consequently, his second assignment of error is found not well-taken.
{¶ 17} Turning to K.V., Jr.‘s first assignment of error, a juvenile court can terminate parental rights and award permanent custody to a proper moving agency if it finds clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 of the prior 22 months, or cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on the analysis under
{¶ 18} The father concedes that the first prong of the test was satisfied. The trial court found that K.V. was in the custody of LCCS for more than two years at the time of
{¶ 19} Next, we turn to the best-interest prong of the permanent custody test. The juvenile court must consider the following when determining whether a grant of permanent custody is in the child‘s best interest:
{¶ 20} “(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
{¶ 21} “(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
{¶ 22} “(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
{¶ 23} “(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; [and]
{¶ 25} The failure of the trial court to consider each of these factors in reaching a determination concerning a child‘s best interest is prejudicial error. In re Wright, 10th Dist. No. 04AP-435, 2004-Ohio-4045, ¶ 8.
{¶ 26} We note that the trial court considered
{¶ 27} The father contends that the court‘s findings were not supported by clear and convincing evidence as required by
{¶ 28} After thoroughly reviewing the court‘s record, we find the trial court‘s decision awarding permanent custody of K.V. to LCCS is supported by clear and convincing evidence.
{¶ 30} K.V., Jr. received intensive outpatient counseling as part of his substance abuse case plan services. However, the caseworker testified that K.V., Jr. routinely tested positive for marijuana throughout the case. He has also failed to leave a urine screen since January 2010, even though he was asked to leave screens monthly through April 2010. Testimony also reflects that K.V., Jr. did not consistently take his medication required to treat his anxiety.
{¶ 31} The record also clearly reflects that K.V. Jr. was abusive towards D.V., and towards the paternal grandmother. The paternal grandmother testified that K.V., Jr. pushed D.V. to the ground when she was pregnant with K.V. The paternal grandmother further testified that K.V., Jr. “beat [the paternal grandmother] up” and then he disappeared for 32 days. The guardian ad litem testified about a police report, also admitted into evidence, describing an act of domestic violence committed by K.V., Jr. against D.V. on October 9, 2009. The guardian ad litem described his behavior as “out of control and somewhat vicious.” At the time of this incident, K.V., Jr. was in counseling
{¶ 32} The guardian ad litem testified on behalf of K.V. because he was only two and one-half years old at the time of the hearing. She testified that permanent custody to LCCS was in the best interest of K.V. She specifically stated that R.V. and K.V. “need each other,” and since their current foster family had an interest in adopting both boys, she felt that remaining together was in their best interest.
{¶ 33} The custodial history of K.V. included virtually no time living with his parents. K.V. was taken into custody when he was only four months old. He has spent the remaining time in foster care with his brother, R.V. The guardian ad litem stated that K.V. has never been in “conscious placement with his parents.”
{¶ 34} There is also evidence that K.V. needs a legally secure permanent placement. The trial court found that “* * * [K.V., Jr.] has conceded that he cannot care for his son.” At the time of the dispositional hearing, K.V., Jr. was unemployed and did not have a residence. In fact, LCCS posted notice regarding the dispositional hearing for K.V., Jr. because he could not be located for service. The father also had no means of transportation other than a bicycle. On the other hand, R.V. and K.V. have lived with
{¶ 35} The father asserts that his parents were suitable and that K.V. should have been placed in their custody. LCCS did consider the paternal grandparents for placement, but found them to be unsuitable. As a result, their home study was not approved. The paternal grandmother had a history of using marijuana, and testimony from both the caseworker and the guardian ad litem showed the paternal grandmother made inconsistent statements regarding her use of marijuana. The paternal grandmother reported that she used marijuana daily, and then later reported only using marijuana during her menstrual cycle. Further, the paternal grandfather, who testified that he did not like marijuana because it “reminds [him] of horse manure,” tested positive for marijuana after the second day of the hearing. He then gave contradictory statements to explain his use of marijuana. The trial court specifically found that their testimony was not credible. The trial court also considered the history of domestic violence between K.V., Jr. and the paternal grandmother, as well as between D.V. and the paternal grandmother, when it determined that granting legal custody to the paternal grandparents was not appropriate.
{¶ 36} There was ample evidence before the trial court from which it could conclude that granting permanent custody of K.V. to LCCS was in his best interest. Consequently, the trial court did not err in terminating the father‘s parental rights.
{¶ 37} Accordingly, K.V., Jr.‘s first assignment of error is found not well-taken.
{¶ 39} “I am [the maternal grandmother] am [sic] requesting a lawyer for the appeal that Im [sic] filing for the custody of my grandsons[.] [T]he Judge did not give me a chance to show as well [sic] provide information on the case that would help her decisions.”
{¶ 40} We note that the maternal grandmother failed to submit a brief or any other argument in support of her assignment of error. Nonetheless, we afford the maternal grandmother reasonable leeway in liberally construing her motion as one to decide this issue on the merits. See Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, ¶ 3.
{¶ 41} We have interpreted the maternal grandmother‘s appeal as raising three distinct arguments. First, the trial court failed to allow her to intervene in the proceedings sub judice. Second, the trial court failed to provide her with a separate hearing on her oral motion for legal custody. And finally, she is appealing “for the custody of [her] grandsons,” which goes to the merits of the trial court‘s final decision. The state contends that the maternal grandmother was not a “party” to the proceedings below, and therefore has no standing to appeal.
{¶ 42} Turning to the maternal grandmother‘s first argument, we have thoroughly reviewed the record and find the maternal grandmother did not file a written motion to intervene or motion for legal custody prior to the dispositional hearing. Instead, the maternal grandmother appeared on the second day of the dispositional hearing and was
{¶ 43} Hearings for custody of a child are governed by the Rules of Juvenile Procedure.
{¶ 44} This court has held in custody matters that the trial court is permitted to “include individuals not specifically otherwise designated a party but whose presence is necessary to fully litigate an issue presented in the action.” Christopher A.L. v. Heather D.R., 6th Dist. No. H-03-040, 2004-Ohio-4271, ¶ 11, citing In re Parsons (May 29, 1996), 9th Dist. No. 95CA006217. The rationale is for the court to “protect and adjudicate all legitimate claims, protect all interests appearing, avoid multiple litigation and conserve judicial time in the orderly administration of justice. Id. citing In re Franklin (1993), 88 Ohio App.3d 277, 280. A trial court‘s determination of whether to include a person as a party will not be reversed absent a showing of an abuse of
{¶ 45} A grandparent may file a motion to intervene in a permanent custody action. In re Titionna K., 6th Dist. No. L-06-1232, ¶ 4, citing In re Schmidt (1986), 25 Ohio St.3d 331. If the grandparent‘s motion is denied, an abuse of discretion will be found if the grandparent had a “legal right to or a legally protectable interest in custody or visitation with their grandchild, where the grandparents have stood in loco parentis to their grandchild, or where the grandparents have exercised significant control over, or assumed parental duties for the benefit of, their grandchild.” Schmidt, 25 Ohio St.3d at 338.
{¶ 46} At best, the maternal grandmother‘s testimony could be construed as an informal motion for intervention. See In re Wood (June 28, 1999), 7th Dist. No. 240. Further, while the trial court did not specifically deny the maternal grandmother‘s motion to intervene, it effectively did so in its final decision by stating that “she is not a party to this matter.” We must determine whether the trial court‘s denial of the maternal grandmother‘s motion to intervene was an abuse of discretion.
{¶ 47} After thoroughly reviewing the record, we cannot find any evidence that the maternal grandmother ever stood in loco parentis, exercised significant control over, or assumed parental duties for the benefit of, either R.V. or K.V.
{¶ 49} The maternal grandmother‘s home was evaluated by LCCS for possible placement of R.V. and K.V. However, the home study was not approved because of substantiated claims of neglect regarding a different grandchild that lives with the maternal grandmother. That grandchild was removed from the maternal grandmother‘s home for several months due to the maternal grandmother‘s failure to properly supervise the grandchild. Further, the maternal grandfather, who also resides in the home, has a history of “assaultive behavior,” including domestic violence towards the maternal grandmother, and a history of substance abuse. Therefore, we cannot find the trial court abused its discretion when it effectively disallowed the maternal grandmother from intervening.
{¶ 50} Finding that the maternal grandmother was not a party to the proceedings sub judice, we must determine whether she has standing to raise her second and third
{¶ 51} The second district has held that even where a grandparent lacked party status, the grandparent had standing to challenge a dispositional order by filing a motion for legal custody and being permitted to testify in support of that motion. In re P.P., 2d Dist. No. 19582, 2003-Ohio-1051, ¶ 21. The fifth district has concluded that a grandparent had standing to challenge the denial of a custodial decision by filing a motion for legal custody and testifying in support of that motion. In re Travis Children (1992), 80 Ohio App. 3d 620, 625-626. The eighth district has held that a grandmother had standing to appeal the denial of her motion to modify custody in an adoption proceeding because the trial court entertained her motions and therefore “implicitly permitted” her to intervene in the action after judgment. In re T.N.W., 8th Dist. No. 89815, 2008-Ohio-1088, ¶ 17.
{¶ 52} We do not find the facts of those cases sufficiently similar to the facts in this case. Here, the grandmother was denied the ability to intervene, but she made an oral motion for legal custody on the second day of the dispositional hearing. Testimony from
{¶ 53}
{¶ 54} Finally, we address the maternal grandmother‘s “appeal for the custody of her grandsons.” We conclude, as set forth above, that the maternal grandmother was not a party to the proceedings. Therefore, she lacks standing to appeal the merits of the final termination order. In re D.S., supra at ¶ 7, 13.
{¶ 56} Accordingly, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Thomas J. Osowik, P.J.
CONCUR. _______________________________
JUDGE
Stephen A. Yarbrough, J.,
CONCURS AND WRITES _______________________________
SEPARATELY. JUDGE
YARBROUGH, J.
{¶ 57} I concur but write separately to address the use of the much-parroted statement that “[a] termination of parental rights is the family law equivalent of the death
{¶ 58} It is time to put this analogy to rest. The “death penalty” language—often repeated verbatim by judges in their courtrooms, and echoed by attorneys to their clients—has had the unfortunate, although certainly unintended, consequence of causing parents and children to believe that after the final order of termination, they must abandon forever any hope of a future relationship. This is simply untrue. While the judicial termination order is unquestionably the end of their legal rights as natural parents, no order of the court can permanently sever the relationship between a parent and child. Unfortunately, in almost all of these termination cases, parents have failed to live their lives in a way that would allow them to develop positive and beneficial relationships with their children. However, unlike death, a judicial termination order does not foreclose the possibility that parents can change their ways, and at some point become capable of developing healthy relationships with their adult children.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.