In re A.B.

2025 Ohio 2298

Opinion

[Cite as In re A.B., 2025-Ohio-2298.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY

IN RE: CASE NO. 10-24-08

A.B.,

ADJUDICATED DEPENDENT CHILD. OPINION AND [AUSTIN B. - APPELLANT] JUDGMENT ENTRY

Appeal from Mercer County Common Pleas Court Juvenile Division Trial Court No. 3-2023-007

Judgment Affirmed

Date of Decision: June 30, 2025

APPEARANCES:

Christopher Bazeley for Appellant

Rebecca S. King-Newman for Appellee Case No. 10-24-08

WILLAMOWSKI, J.

{¶1} Appellant Austin B. (“Father”) brings this appeal from the judgment of

the Court of Common Pleas of Mercer County, Juvenile Division, terminating his

parental rights and awarding permanent custody of A.B. to the Mercer County

Department of Job and Family Services (“the Agency”). On appeal Father claims

that 1) the trial court’s decision was not supported by the weight of the evidence and

2) the trial court should have awarded legal custody to the paternal grandmother.

For the reasons set forth below, the judgment is affirmed.

{¶2} A.B. was born to Father and Lindsey Y. (“Mother”) in 2022. On

January 31, 2023, the Agency filed a complaint alleging that A.B. was a neglected

and/or a dependent child. An adjudicatory hearing was held on March 29, 2023.

The parties stipulated to the evidence and the trial court determined that A.B. was a

dependent child. At the dispositional hearing on April 12, 2023, the trial court

ordered that A.B. be placed in the temporary custody of the Agency. The Agency

filed a plan requiring Father to 1) clean the home and maintain a clean and safe

home; 2) participate in Help Me Grow services; 3) attend medical appointments for

A.B.; 4) learn feeding cues and techniques for A.B.; 5) sign releases of information;

6) complete a drug and alcohol assessment and follow the recommendations; and 7)

attend scheduled drug screenings as well as requested random screenings. The case

plan noted that the foster mother was Mother’s cousin.

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{¶3} In October of 2023, Father and Mother ended their relationship and

Father moved in with the paternal grandmother, Theresa W. (“Theresa”).

Eventually, Father sought a modification of visitation to allow Theresa to visit with

A.B. as well. On August 26, 2024, Father filed a motion for unsupervised visits

with A.B. in Theresa’s home. The trial court denied the motion “as this case is

currently scheduled for a Permanent Custody Hearing October 25, 2024”. Doc. 66.

The Agency then filed a motion for permanent custody on September 3, 2024. The

motion alleged that A.B. could not reasonably be placed with either parent within a

reasonable time and that it would be in A.B.’s best interest to terminate the parental

rights.1 The hearing was scheduled for October 25, 2024, and the Agency sent its

subpoenas.2

{¶4} On October 8, 2024, Father filed a motion to have Theresa granted legal

custody of A.B. and notified the trial court that he no longer was residing with

Theresa. The CASA report was filed on October 18, 2024. The CASA

recommended that permanent custody of A.B. be granted to the Agency. On

October 22, 2024, Mother decided to surrender her parental rights to A.B.

1 Despite the fact that A.B. had been in the temporary custody of the Agency for over twenty-two consecutive months, the Agency did not move to terminate parental rights for this reason. 2 Interestingly, the Agency subpoenaed the foster mother only to have the subpoena returned unserved as the last known address appeared to be “abandoned”. The Agency then served the subpoena at the county prosecutor’s office to keep the address confidential.

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{¶5} The permanent custody hearing was held on October 25, 2024.

Following the hearing, the trial court took the matter under advisement. On October

30, 2024, the trial court entered judgment terminating Father’s parental rights,

denying the motion to grant legal custody of A.B. to Theresa, and awarding

permanent custody of A.B. to the Agency. Father appeals from this judgment.

First Assignment of Error

The trial court’s decision awarding permanent custody of A.B. to the State is not supported by the weight of the evidence.

Second Assignment of Error

The trial court erred when it denied [Father’s] motion to award legal custody to his mother, [Theresa].

Manifest Weight of the Evidence

{¶6} Father’s first assignment of error alleges that the trial court’s decision

is against the manifest weight of the evidence. The right to parent one's own child

is a basic and essential civil right. In re Murray, 52 Ohio St.3d 155 (1990). “Parents

have a ‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 2003–Ohio–1269, ¶ 6 (3d Dist.). These rights may

be terminated, however, under appropriate circumstances and when all due process

safeguards have been followed. Id. When considering a motion

to terminate parental rights, the trial court must comply with the statutory

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requirements set forth in R.C. 2151.414. These requirements include, in pertinent

part, as follows:

(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, 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, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.

...

(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section . . . the court shall consider all relevant factors, including, but not limited to, the following:

(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;

(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;

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(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 . . . for twelve or more months of a consecutive twenty-two month period . . . .

(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.

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414. “A court’s decision to terminate parental rights will not be

overturned as against the manifest weight of the evidence if the record contains

competent, credible evidence by which a court can determine by clear and

convincing evidence that the essential statutory elements for a termination of

parental rights have been established.” In re Da.R., 2019-Ohio-2270, ¶ 9 (3d Dist.).

The standard of review for a determination of legal custody is an abuse of discretion

standard. In re C.S., 2022-Ohio-2451 (3d Dist.).

{¶7} The determination whether to grant a motion for permanent custody

requires a two-step approach. In re L.W., 2017-Ohio-4352 (3d Dist.). The first step

is to determine whether any of the factors set forth in R.C.

2151.414(B)(1) apply. Id. If one of those circumstances applies, then the trial court

must consider whether granting the motion is in the best interest of the child by

considering the factors set forth in R.C. 2151.414(D). Id.

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{¶8} Here, the trial court determined that A.B. had been in the temporary

custody of the Agency for twelve or more months in a consecutive twenty-two

month period. The record shows that A.B. was adjudicated to be a dependent child

on March 29, 2023. The motion for permanent custody was filed on September 3,

2024, which was approximately eighteen months after the adjudication of

dependency. Thus, the record supports the trial court’s determination under R.C.

2151.414(B)(1)(a).3

{¶9} The next step is to determine whether the record supports the trial

court’s determination that the termination of parental rights is in the best interest of

A.B. When considering the child’s relationship with others, the testimony showed

that although A.B. has a bond with Father and Theresa, he is also bonded with the

foster parents. According to the case worker, A.B. is very happy and bonded with

the caregivers and the foster siblings. The case worker noted that A.B. was “very

happy, comfortable, and doing well” in the foster home. Although A.B. is bonded

with Father, he is “not as carefree and comfortable” with Father as A.B. is with the

foster parents. The case worker also testified that A.B. was more bonded and

engaged with Theresa than with Father.

{¶10} The trial court noted that A.B. was not old enough to express his

wishes. A.B. was only two years old at the time of the hearing. However, the CASA

3 As noted earlier, this was not a basis requested by the Agency. The issue of whether the trial court should have used this basis was not raised on appeal and thus will not be addressed by this Court.

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noted in her report that it would be in A.B.’s best interest to grant the Agency’s

motion for permanent custody.

{¶11} The custodial history of A.B. shows that the child was born in August

of 2022. By November of 2022, A.B. was removed from the home. At no time

during this case was A.B. not in the temporary custody of the Agency. This means

that for all but approximately three months of A.B.’s life, the child has resided with

the foster family.

{¶12} The case worker testified that A.B. was in need of a permanent

placement. Although the caseworker admitted that there were other options that

could achieve a “legally secure permanent placement for the child” besides

permanent custody, she was recommending permanent custody because the foster

family was not interested in legal custody, only adoption. In her opinion, it would

be better for A.B. if Father did not have the possibility of attempting to regain

custody at a later date. The social service administrator for the Agency testified that

the Agency had no interest in changing the placement since A.B. was already in a

kinship home. He testified that permanent custody is always better than legal

custody because it establishes permanency. The administrator noted that there were

no better alternatives in this case because the foster parents were only interested in

adopting A.B., not in having legal custody.

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{¶13} Finally, the trial court has to consider whether any of the factors

pursuant to R.C. 2151.414(E)(7-11) apply. A review of the record shows that none

of these apply to Father. No testimony was presented to show that Father has a

criminal history regarding actions involving a child victim. R.C. 2151.414(E)(7).

The testimony did not establish that father repeatedly withheld food or medical

treatment when he had the means to supply it. R.C. 2151.414(E)(8). There was no

testimony that indicated Father placed A.B. at risk of harm due to alcohol or drug

abuse. R.C. 2151.414(E)(9). Father has not abandoned the child as the testimony

was that he has regularly visited with A.B. and was even visiting multiple times a

week. Although Father had missed some visits over the pendency of the case due

to illness, he was present for the large majority of his visits. R.C. 2151.414(E)(10).

No evidence was presented to show that Father had ever had his parental rights

involuntarily terminated with respect to a sibling. R.C. 2151.414(E)(11).

{¶14} The trial court considered all of these factors. The trial court also

noted that the parenting assessment showed that Father “would be in need of

continuous support in order to effectively parent the child” and that Father had not

followed through with the treatment for his mental health issues. Doc. 110. Based

upon this, the trial court determined it would be in the best interest of A.B. to

terminate Father’s parental rights and grant the Agency’s motion for permanent

custody. A review of the record shows that the trial court’s determinations are

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supported by competent, credible evidence. The facts show by clear and convincing

evidence that the essential statutory elements for a termination of parental rights

have been established. Thus, the first assignment of error is overruled.

Legal Custody {¶15} Father argues in his second assignment of error that the trial court erred

by not awarding legal custody to Theresa. Review of a denial of a motion for legal

custody is conducted under an abuse of discretion standard. In re B.P., 2015-Ohio-

5445, ¶ 21 (3d Dist.). An abuse of discretion is not merely an error in judgment, but

a decision that is unreasonable, arbitrary, or unconscionable. Southern v. Scheu,

2018-Ohio-1440, ¶ 10 (3d Dist.). The judgment of the trial court regarding a request

for legal custody will be affirmed if the preponderance of the evidence supports it.

In re I.T., 2023-Ohio-3010 (3d Dist.). Although no statute lists specific factors

when considering whether to grant or deny a motion for legal custody, courts are

generally guided by the same best interest factors set forth in R.C. 2151.414(D). Id.

at ¶ 23.

{¶16} We discussed the evidence in regard to these factors in the first

assignment of error. We note that the evidence showed that A.B. did have a bond

with Theresa, but A.B. also had a bond with the foster family. The evidence showed

that A.B. had spent the great majority of his life living with the foster family.

Additionally, the foster mother was Mother’s cousin, making this a family

placement as well. The trial court determined that it would be in A.B.’s best interest

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to remain in the foster home where A.B. was already settled rather than to

completely change A.B.’s living situation to place the child with a different relative.

Given the evidence before this Court, we cannot say that the trial court’s decision

to deny the motion for legal custody was unreasonable, arbitrary or unconscionable.

Thus, the second assignment of error is overruled.

{¶17} Having found no error prejudicial to appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Mercer County,

Juvenile Division is affirmed.

ZIMMERMAN and MILLER, J.J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

John R. Willamowski, Judge

William R. Zimmerman, Judge

Mark C. Miller, Judge

DATED: /hls

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