[Cite as In re B.P., 2013-Ohio-2711.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. B.P. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 13-CA-12 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2011-AB-0069
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
MICHELLE L. EDGAR JULIE S. BLAISDELL 414 East Main Street 239 West Main Street Suite 200 Suite 101 Lancaster, OH 43130 Lancaster, OH 43130
For Christopher Oiler Guardian ad Litem
GILBERTO J. CHARRIEZ KRISTI McANAUL P.O. Box 1091 660 Hill Road North Lancaster, OH 43130 Pickerington, OH 43147
For Roberta Prevette For B.P.
ADRIENNE LARIMER JAMES DYE 118 West Chestnut Street P.O. Box 161 Lancaster, OH 43130 Pickerington, OH 43147 Fairfield County, Case No. 13-CA-12 2
Farmer, J.
{¶1} On May 3, 2011, B.P., born January 19, 2011, was found to be an abused
child and placed in the temporary custody of appellee, Fairfield County Child Protective
Services. Mother of the child is Roberta Prevette; father is Christopher Oiler. Sherry
Oiler is the child's paternal grandmother, appellant herein.
{¶2} On August 1, 2011, appellee filed a motion for permanent custody of the
child. On August 23, 2011, appellant filed a motion requesting legal custody of the
child. Hearings were held on August 21, and November 20, 2012. By entry filed
January 8, 2013, the trial court overruled appellant's motion and granted permanent
custody of the child to appellee. Findings of fact and conclusions of law were attached
to the entry.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTEREST OF B.P. FOR PERMANENT CUSTODY TO BE GRANTED TO
FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES INSTEAD OF GRANTING
LEGAL CUSTODY TO THE PATERNAL GRANDMOTHER, APPELLANT, SHERRY
OILER."
{¶5} Appellant claims the trial court erred in granting permanent custody of B.P.
to appellee as the evidence was not clear and convincing that legal custody with her
was not in B.P.'s best interests. We disagree. Fairfield County, Case No. 13-CA-12 3
{¶6} R.C. 2151.414(B) enables a trial court to grant permanent custody of a
child if the court determines by clear and convincing evidence that it is in the best
interests of the child. Clear and convincing evidence is that evidence "which will provide
in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof." Cross, at 477.
{¶7} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interests of a child:
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
or (5) of section 2151.353 or division (C) of section 2151.415 of the
Revised Code, 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; Fairfield County, Case No. 13-CA-12 4
(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.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28 of
the Revised Code or the date that is sixty days after the removal of the
child from home.
{¶8} While agreeing that B.P. has been in appellee's temporary custody for
twelve of the last consecutive twenty-two months, appellant argues appellee "basically
shut the door to the possibility of Mr. (sic) [Ms.] Oiler having placement of B.P. and
never looked back." Appellant's Brief at 11. Fairfield County, Case No. 13-CA-12 5
{¶9} In its findings of fact filed January 8, 2013, the trial court found the
following:
[B.P.] suffered injuries when she was an infant and it has not been
determined how the injuries occurred or who is responsible for the injuries.
Sherry Oiler is one of the three people who may be responsible for injuries
to [B.P.] Christopher Oiler is not currently residing with Sherry Oiler, but
has lived with her for most of his life. Christopher Oiler has not been
honest about his relationship with Roberta Prevette, who is the third
person who may have been responsible for the injuries to [B.P.] If
Christopher Oiler were allowed unsupervised access to [B.P.], there is a
reasonable cause to believe that he would allow Roberta Prevette to have
access to the child. Sherry Oiler's ex-husband, with whom she had a
history of violence due to his alcohol use, has been to her home and
brought alcohol to her home. Placement of the half siblings of [B.P.] with
Sherry Oiler in the past did not prove to be a successful placement.
All of this information is relevant to the Court. It is imperative that
[B.P.] receive stability in her life. If she were to be placed in the legal
custody of Sherry Oiler, history indicates that she could be at risk for
physical harm, and at risk of contact with individuals who abuse drugs
and/or alcohol. Given these circumstances, the Court cannot find that it is
in the best interest of [B.P.] for her to be placed in the legal custody of
Sherry Oiler. Fairfield County, Case No. 13-CA-12 6
{¶10} The guardian ad litem identified two issues mitigating against placement
with appellant. The first was the initial placement of B.P.'s half-siblings with appellant
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[Cite as In re B.P., 2013-Ohio-2711.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. B.P. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 13-CA-12 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2011-AB-0069
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
MICHELLE L. EDGAR JULIE S. BLAISDELL 414 East Main Street 239 West Main Street Suite 200 Suite 101 Lancaster, OH 43130 Lancaster, OH 43130
For Christopher Oiler Guardian ad Litem
GILBERTO J. CHARRIEZ KRISTI McANAUL P.O. Box 1091 660 Hill Road North Lancaster, OH 43130 Pickerington, OH 43147
For Roberta Prevette For B.P.
ADRIENNE LARIMER JAMES DYE 118 West Chestnut Street P.O. Box 161 Lancaster, OH 43130 Pickerington, OH 43147 Fairfield County, Case No. 13-CA-12 2
Farmer, J.
{¶1} On May 3, 2011, B.P., born January 19, 2011, was found to be an abused
child and placed in the temporary custody of appellee, Fairfield County Child Protective
Services. Mother of the child is Roberta Prevette; father is Christopher Oiler. Sherry
Oiler is the child's paternal grandmother, appellant herein.
{¶2} On August 1, 2011, appellee filed a motion for permanent custody of the
child. On August 23, 2011, appellant filed a motion requesting legal custody of the
child. Hearings were held on August 21, and November 20, 2012. By entry filed
January 8, 2013, the trial court overruled appellant's motion and granted permanent
custody of the child to appellee. Findings of fact and conclusions of law were attached
to the entry.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTEREST OF B.P. FOR PERMANENT CUSTODY TO BE GRANTED TO
FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES INSTEAD OF GRANTING
LEGAL CUSTODY TO THE PATERNAL GRANDMOTHER, APPELLANT, SHERRY
OILER."
{¶5} Appellant claims the trial court erred in granting permanent custody of B.P.
to appellee as the evidence was not clear and convincing that legal custody with her
was not in B.P.'s best interests. We disagree. Fairfield County, Case No. 13-CA-12 3
{¶6} R.C. 2151.414(B) enables a trial court to grant permanent custody of a
child if the court determines by clear and convincing evidence that it is in the best
interests of the child. Clear and convincing evidence is that evidence "which will provide
in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof." Cross, at 477.
{¶7} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interests of a child:
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
or (5) of section 2151.353 or division (C) of section 2151.415 of the
Revised Code, 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; Fairfield County, Case No. 13-CA-12 4
(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.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28 of
the Revised Code or the date that is sixty days after the removal of the
child from home.
{¶8} While agreeing that B.P. has been in appellee's temporary custody for
twelve of the last consecutive twenty-two months, appellant argues appellee "basically
shut the door to the possibility of Mr. (sic) [Ms.] Oiler having placement of B.P. and
never looked back." Appellant's Brief at 11. Fairfield County, Case No. 13-CA-12 5
{¶9} In its findings of fact filed January 8, 2013, the trial court found the
following:
[B.P.] suffered injuries when she was an infant and it has not been
determined how the injuries occurred or who is responsible for the injuries.
Sherry Oiler is one of the three people who may be responsible for injuries
to [B.P.] Christopher Oiler is not currently residing with Sherry Oiler, but
has lived with her for most of his life. Christopher Oiler has not been
honest about his relationship with Roberta Prevette, who is the third
person who may have been responsible for the injuries to [B.P.] If
Christopher Oiler were allowed unsupervised access to [B.P.], there is a
reasonable cause to believe that he would allow Roberta Prevette to have
access to the child. Sherry Oiler's ex-husband, with whom she had a
history of violence due to his alcohol use, has been to her home and
brought alcohol to her home. Placement of the half siblings of [B.P.] with
Sherry Oiler in the past did not prove to be a successful placement.
All of this information is relevant to the Court. It is imperative that
[B.P.] receive stability in her life. If she were to be placed in the legal
custody of Sherry Oiler, history indicates that she could be at risk for
physical harm, and at risk of contact with individuals who abuse drugs
and/or alcohol. Given these circumstances, the Court cannot find that it is
in the best interest of [B.P.] for her to be placed in the legal custody of
Sherry Oiler. Fairfield County, Case No. 13-CA-12 6
{¶10} The guardian ad litem identified two issues mitigating against placement
with appellant. The first was the initial placement of B.P.'s half-siblings with appellant
which generated reports by those children related to their care. Day 2 T. at 178, 184-
185. The second was the extent of B.P.'s injuries which manifested while B.P. was in
appellant's home. Id.
{¶11} B.P. was born on January 19, 2011. On February 28, 2011, B.P. suffered
six fractured ribs and a fractured left wrist. At the time of the hearings, no criminal
charges had been filed related to the injuries. The guardian ad litem and the social
worker opined that appellant and/or her son, B.P.'s father, knew who cause the injuries
or caused the injuries themselves. Day 2 T. at 37, 71-72, 186.
{¶12} Appellant's home environment was in question. She was unable to handle
the placement of the half-siblings. Day 2 T. at 46-47, 178. Her ex-husband had
domestic violence issues and there was a concern about his presence in the home. Id.
at 44-45. The guardian ad litem and the social worker believed appellant could not
protect B.P. from her ex-husband and her son who continued contact with B.P.'s mother
who relinquished her parental rights by stipulation. Day 1 T. at 8; Day 2 T. at 43-45,
182, 186-187, 190-191, 195.
{¶13} Although faced with appellant's willingness and ability to care, the trial
court nevertheless balanced this willingness against the possibility of further injury to
B.P. Whoever the person was who caused the injuries to the one month old, the
injuries occurred while appellant and her son were in control. We find this overriding
element supports the trial court's conclusion.
{¶14} Upon review, we find the trial court did not err in overruling appellant's
motion for legal custody of B.P., and find the trial court had clear and convincing Fairfield County, Case No. 13-CA-12 7
evidence to find the best interests of the child was best served by granting permanent
custody to appellee.
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Court of Common Pleas of Fairfield County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_______________________________
JUDGES
SGF/sg 522 [Cite as In re B.P., 2013-Ohio-2711.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : B.P. : JUDGMENT ENTRY : : : : CASE NO. 13-CA-12
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division is
affirmed. Costs to appellant.