In re A.M.

2024 Ohio 1168

Opinion

[Cite as In re A.M., 2024-Ohio-1168.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE A.M. : No. 113284 A Minor Child :

[Appeal by J.W., Father] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 28, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD19914813

Appearances:

Rosel C. Hurley III, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Zachary J. Lafleur, Assistant Prosecuting Attorney, for appellee.

MICHELLE J. SHEEHAN, P.J.:

Appellant J.W., the father of A.M., a minor child, appeals the juvenile

court’s grant of permanent custody of A.M. to the Cuyahoga County Division of

Children and Family Services (hereinafter “CCDCFS” or the “Agency”). Because the

juvenile court’s judgment to award permanent custody was based on competent, credible evidence in the record and the juvenile court’s judgment was not against

the manifest weight of the evidence, the judgment is affirmed.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. Procedural History

On December 11, 2019, the Cuyahoga County Division of Children and

Family Services (the “Agency”) filed a complaint in the juvenile court alleging that

A.M., a minor child, was neglected and requested temporary custody of the child to

the Agency. On September 9, 2020, A.M. was adjudicated to be neglected and was

placed in the temporary custody of the Agency. A.M. was placed with his paternal

aunt, A.B.

On September 21, 2021, J.W. (hereinafter “Father”), filed a motion

asking that custody of A.M. be given to his fiancée, Jewel Banks. On December 9,

2021, the Agency filed a motion to modify temporary custody to permanent custody.

A hearing on the motion for permanent custody was held over two days on May 31,

2023, and August 31, 2023. On August 31, 2023, Mother stipulated to the Agency’s

motion for permanent custody. On September 29, 2023, the juvenile court granted

the Agency’s motion for permanent custody to the Agency.

B. Motion for Permanent Custody and Evidence Presented at Hearing

Within its motion for permanent custody, the Agency alleged A.M. had

been in the temporary custody of the Agency from September 9, 2020, through

December 9, 2021, that one or more of the factors to determine permanent custody in R.C. 2151.414(E) applied to A.M.’s parents, and that the award of permanent

custody would be in A.M.’s best interests. The motion was supported by an affidavit

from Selina Agee, a child protection specialist with the Agency. Agee averred that

A.M. was then three years old, that the mother was unable to sustain sobriety, and

that mother’s younger child was in temporary custody of that child’s father due to

mother’s substance abuse. The social worker further stated Father was in prison

and unable to care for A.M.

Agee testified at the hearing that Father was incarcerated until

December 2024. She testified that prior to his incarceration, Father sporadically

visited A.M. As to A.M.’s placement, she said A.M. has been with A.B. since before

the Agency became involved. She stated that A.B. had been providing care for A.M.

for the majority of his life and he was bonded to his aunt and her family. Agee

further stated A.B. was “very loving toward [A.M.]. She redirects him when he needs

to be redirected. She’s very involved, very interactive with him.”

As to other possible placements, the Agency investigated Father’s

fiancée because of Father’s interest in having A.M. placed with her. Agee stated that

A.M. and Banks were forming a relationship in October 2021 and that Banks had

weekly visitation with A.M. beginning in January 2022. As to why A.M. remained

with his aunt, Agee testified that A.M. had been in his aunt’s care for years and that

if Banks “were to get legal custody, [A.M.] would have to be moved out of the home

and that to disrupt him from where he’s been for most of his life would be traumatic and we felt not beneficial to his wellbeing.” She further noted that a move to Banks’s

custody would add “unnecessary trauma to what [A.M.] is familiar with.”

A.B. testified that she ensured that A.M.’s medical, educational, and

basic needs had been met since he was six months old. She further testified her older

children, aged 19 and 11 years old, considered their cousin A.M. to be “their little

brother.” She expressed a willingness to ensure that A.M. continued communication

with both his parents as well as extended family. As to Father’s request for Banks to

have custody, she stated she was confused because Father had never indicated any

concerns, issues, or problems with A.M.

Ariel Bourdess, an early childhood mental health therapist with the

Agency, testified that she worked with A.M. and his aunt in their home on emotional

regulation. She testified that as between A.M. and his aunt, she witnessed “positive

interaction patterns” and that A.M.’s aunt was able to support A.M. in whatever he

does need. Banks testified that she participated in visitation as much as she could

and that her children liked to play with A.M. She further stated that she had an

expanded family support system.

A.M. had a guardian ad litem (“GAL”) assigned during the

proceedings who recommended that A.M. be permanently placed with the Agency.

The GAL observed A.M. with both his aunt and Banks and was concerned that a

change in placement would not be in A.M.’s best interests because his aunt was

committed to ensuring A.M.’s continued contact with his family. The GAL noted

that the aunt had taken A.M. to visit Father while he was in prison. C. Decision Granting Permanent Custody to the Agency

In awarding permanent custody to the Agency, the juvenile court

found that A.M. had been in the temporary custody of the Agency for 12 or more

months of a consecutive 22-month period and that A.M.’s return to mother or

Father’s home would be contrary to his best interest. As to A.M.’s best interests, the

juvenile court found that pursuant to R.C. 2151.414(D)(1)(a) that

[A.M.] has been in the uninterrupted care of his current caregiver since placed by his parents at six months old, prior to CCDCFS involvement.

*** [A.M.] is too young to express his wishes. GAL recommends permanent custody.

***

[A.M.] has been in CCDCFS custody since December of 2019.

The juvenile court further found pursuant to R.C. 2151.414(E) that

“Mother and Father placed [A.M.] at 6 months [of age] with current caregiver and

neither showed strong commitment to [him] when Father was in the community”

and that Father was incarcerated and would not be available to care for [A.M.] for at

least eighteen months after the motion for permanent custody had been filed. The

juvenile court further found relevant that A.M. had been with his paternal aunt since

the age of six months and that A.M.’s mother and Father had placed him there prior

to Agency involvement and that A.M. had no relationship with Banks prior to

Father’s incarceration. II. LAW AND ARGUMENT

A. Assignment of Error

Father’s sole assignment of error reads:

The trial court erred in awarding permanent custody to CCDCFS as [Appellee] failed to show by clear and convincing evidence that adequate grounds existed for a grant of permanent custody and therefore such decision was contrary to the manifest weight of the evidence.

Father argues that the trial court erred where it severed his parental

rights because there was not clear and convincing evidence to do so because he

would be available to take custody of A.M. as early as June 2024, but no later than

December 2024. He also argues that the trial court should have granted Banks

custody of A.M. in lieu of severing his parental rights because there were no

disqualifying issues regarding placement of the child with her.

B. Relevant Law and Standards of Review

R.C. 2151.414(B)(1) provides for awarding permanent custody to a

children services agency if the juvenile court finds, 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 and that any of the conditions listed in R.C. 2151.414(B)(1)(a)-(e) apply.

In this case, Father argues that the award of permanent custody to the

Agency was against the manifest weight of the evidence. A juvenile court’s decision

to grant permanent custody will not be reversed as being against the manifest weight

of the evidence when the record contains competent, credible evidence by which it

could have found that the essential statutory elements for an award of permanent custody have been established. In re B.M., 8th Dist. Cuyahoga No. 109647, 2020-

Ohio-4756, ¶ 11. Clear and convincing evidence is

that measure or degree of proof which is more than a mere “preponderance of the evidence” but not to the extent of such certainty required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist. 1994), fn. 2, citing

Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979

(1987). “When reviewing for manifest weight, the appellate court must weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the finder of fact clearly

lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed and a new trial ordered.” In re Z.C., Slip Opinion No. 2023-Ohio-

4703, ¶ 14.

R.C. 2151.414(D)(1) provides the factors the juvenile court is to

consider when determining the best interests of a child. It reads:

(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;

(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;

(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(D)(1).

When determining the best-interest of a child pursuant to

R.C. 2151.414(D), “[t]he court must consider all of the elements in R.C. 2151.414(D)

as well as other relevant factors. There is not one element that is given greater

weight than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498,

2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. If it is in the best interests of a child that

permanent custody be granted, R.C. 2151.414(B)(1)(a)-(e) provides, in pertinent

part, conditions upon which the juvenile court may grant permanent custody:

(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) 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.

C. The Juvenile Court’s Grant of Permanent Custody to the Agency Was Based on Credible, Competent Evidence and Was Not Against the Manifest Weight of the Evidence

Pursuant to R.C. 2151.414(B), permanent custody of A.M. in this

matter could be awarded to the Agency if the juvenile court found by clear and

convincing evidence that the award of permanent custody was in A.M.’s best interest

and that any of the conditions listed in R.C. 2151.414(B)(1)(a)-(e) were present. A.M.

was in Agency custody for over 12 months within the past 24 months at the time of

the filing of the permanent custody complaint. Accordingly, the trial court’s finding

that the condition listed in R.C. 2151.414(B)(1)(d) was met is not in dispute.

In making its determination that permanent custody would be in

A.M.’s best interest, the juvenile court was required pursuant to R.C. 2151.414(D) to

consider A.M.’s interaction with parents, siblings, relatives; his wishes; his custodial

history; the 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

whether any of the factors in divisions R.C. 2151.414(E)(7) to (11) apply in relation

to A.M. and his parents.

As to the interaction and relationship of A.M. and his parents

pursuant to R.C. 2151.414(D)(1)(a), the juvenile court found that both mother and

Father had minimal involvement in A.M.’s care and had A.M. cared for by A.B. prior

to the Agency being involved. Pursuant to R.C. 2151.414(D)(1)(b), the juvenile court

found that the GAL recommended placement with the Agency, noting A.M. was too

young to express his wishes. And pursuant to R.C. 2151.414(D)(1)(e), the juvenile

court found that A.M. had been in Agency custody since December 2019, a period of

almost four years at the time of the grant of permanent custody. These findings are

supported by the record of the case and the testimony presented at the hearing.

Father argues that the juvenile court’s decision is against the manifest

weight of the evidence because it did not fully consider his wishes that Banks be

granted custody of A.M. and because Banks was not found to be an unsuitable

caregiver. However, as to mother and Father’s interaction and relationship with

A.M., the juvenile court found they had allowed A.B. to care for A.M. before the

Agency was involved. The record reflects that A.M. had been in A.B.’s custody for

the majority of his lifetime. Further, A.B. provided a suitable home and was able to

meet A.M.’s needs. Pursuant to R.C. 2151.414(D)(1)(b), the juvenile court found that

the GAL recommended permanent placement with the Agency. The juvenile court

considered the relevant statutory factors in granting permanent custody and its findings were supported by competent, credible evidence. Given the length of time

A.B. cared for A.M. and how he came to be in her care, we cannot say the grant of

permanent custody was against the manifest weight of the evidence or that the

judgment created a manifest injustice.

The sole assignment of error presented is overruled.

III. Conclusion

We find that the juvenile court’s judgment to award permanent

custody was based on competent, credible evidence in the record. Further we find

that the judgment was not against the manifest weight of the evidence . Accordingly,

we affirm the judgment of the juvenile court.

Judgment affirmed.

It is ordered that appellee recover from appellant 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

common pleas court, juvenile division, 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.

_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE

LISA B. FORBES, J., and MARY J. BOYLE, J., CONCUR