In re G.B.

2022 Ohio 1919

Opinion

[Cite as In re G.B., 2022-Ohio-1919.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: G.B. : JUDGES: : Hon. Earle E. Wise, Jr., P.J. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2022 CA 0004 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2020 DEP 00019

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 7, 2022

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JOHN C. O'DONNELL, III CHRISTOPHER W. ZUERCHER 10 West Newlon Place 731 Scholl Road Mansfield, OH 44902 Mansfield, OH 44902 Richland County, Case No. 2022 CA 0004 2

Wise, Earle, P.J.

{¶ 1} Appellant, J.B. appeals from the January 4, 2022 judgment entered in the

Richland County Court of Common Pleas, Juvenile Division, which terminated all parental

rights, privileges and responsibilities of J.B. and ordered permanent custody of G.B. be

granted to the Richland County Department of Job and Family Services (herein Agency).

{¶ 2} This case comes to us on the expedited calendar and shall be considered

in compliance with App.R. 11.2(C).

FACTS AND PROCEDURAL HISTORY

{¶ 3} G.B., born December 28, 2019, is the biological child of J.B. (herein Father)

and M.Z. (herein Mother).

{¶ 4} G.B. was placed in the emergency shelter care of Agency on February 4,

2020. The following day, a complaint was filed alleging G.B. was abused and dependent.

On April 16, 2020 G.B. was found to be abused and dependent and was placed in the

temporary custody of the Agency.

{¶ 5} As to Father, the circumstances leading to a finding of abuse and

dependency included physical abuse, economic instability, exposing G.B. to deplorable

conditions, cognitive delays, and lack of proper parenting and decision-making abilities.

On January 31, 2020, G.B. sustained significant injuries while in Father's care including

multiple new bone fractures, bone fractures in various stages of healing, numerous

internal injuries including subdural hematomas and intercranial hemorrhages, and

multiple bruises to his skull, face, and body. Before G.B.'s presentation at the hospital on

January 31, 2020, unexplained injuries were observed by G.B.'s pediatrician at his one Richland County, Case No. 2022 CA 0004 3

week and one-month visits. Neither Father nor Mother had plausible explanations for the

child's injuries. Father later pled guilty to two counts of felonious assault against G.B.

Because Father was incarcerated for harming G.B. he was not included in a case plan

with the Agency.

{¶ 6} Upon first being placed with his foster parents, G.B. required frequent

medical visits to monitor his brain bleeds and other injuries, as well as physical therapy.

G.B. also demonstrated mental trauma in the form of night terrors which would subside

but then resume after visits with mother, clenching his fists and holding his breath when

being held, and appearing generally fearful when picked up. Despite these initial

challenges, G.B. has thrived in his foster placement and has bonded with his foster family.

He has lived with his foster family since he was five and a half weeks old, and his foster

parents wish to adopt G.B. Transcript of permanent custody hearing (T.) 38-44.

{¶ 7} On May 24, 2021, the Agency filed a motion for permanent custody. On July

22, 2021, Father filed a motion requesting G.B. be placed in the legal custody of paternal

grandmother S.C. On August 5, 2021, Father filed a motion requesting G.B. be placed in

the temporary legal custody of paternal aunt, S.C. On September 27, 2021, and

November 15, 2021, a hearing was held on these motions.

{¶ 8} At the hearing, Mother agreed to termination of her parental rights. The

magistrate then heard testimony from Mother, Katie Craig who is the Agency's ongoing

case worker, foster mother N.Y., paternal grandmother S.C. and paternal aunt, S.C.

{¶ 9} Relevant to this appeal, Craig testified the Agency looked for appropriate

kinship placement for G.B., but none were found to be appropriate. She testified paternal

grandmother has an open case with Knox County Children's Services and has extensive Richland County, Case No. 2022 CA 0004 4

history with various Children's Services Agencies. Grandmother was evaluated and

disqualified as a kinship placement. As for paternal aunt, the Agency found she had no

stable environment in which to raise G.B. T. 21-22.

{¶ 10} Paternal grandmother testified on direct examination she has four children.

She admitted she had an open case with the Agency, but stated it was based on a

"falsified" claim by her daughter. T. 53. Grandmother also testified she does not have

custody of one of her sons who is placed outside the home due to behavioral issues and

will not be returned home "until he behaves." T. 53. Grandmother is employed and works

6:00 a.m. to 5:30 p.m. T. 55. She stated she talks to Father frequently, and Father had

told her he did not hurt G.B. She stated she did not know what to believe, but would not

allow Father access to G.B. if she were granted legal custody. T. 55. She admitted she

did not know what happened to G.B. T. 64-65.

{¶ 11} Grandmother admitted she had a pending motion in Knox County for her

son to enter a planned permanent living arrangement. T. 57. She further admitted there

had been 39 referrals to the Agency regarding her and her children wherein she was

identified as an alleged perpetrator. T. 58, 60. Grandmother blamed the referrals on her

husband who she does not live with but to whom she is still married. T. 59. She alternately

claimed her husband would not agree to a divorce and she could not afford divorce

proceedings. T. 59-61. Grandmother stated she and her boyfriend are the only occupants

of her home. T. 62. She stated she speaks to Father every couple of days and stated

Father denies harming G.B. T. 63. Grandmother admitted to using marijuana a week

before the hearing. T. 76. Richland County, Case No. 2022 CA 0004 5

{¶ 12} Grandmother had not seen G.B. since he was a month old and did not think

it was in his best interest to remove him from his foster home. But at the same time, she

did not think it was fair that she would be unable to see her grandson grow. T. 69.

{¶ 13} Paternal aunt testified she is 18 years old, works full time from 7:00 a.m. to

5:30 p.m., and lives with her boyfriend in a two-bedroom apartment. T.78 Paternal aunt

had been in her apartment for one month at the time of the hearing. T. 83. She had no

clear plan for child care while she works and also had no clear plan regarding keeping

G.B. safe from Father. T. 84. She was not convinced Father was to blame for G.B.'s

injuries. She further believed it would be in G.B.'s best interest to be removed from his

foster family and placed with "actual family" or to at least be around his "actual family." T.

86-88. She acknowledged it would be traumatic for G.B. to be removed from his foster

family, but believed he would understand when he got older. T. 95.

{¶ 14} At the conclusion of evidence, the Guardian ad Litem recommended it

would be in G.B.'s best interests to grant the Agency's motion for permanent custody.

{¶ 15} The magistrate took the matter under advisement and on December 16,

2021 issued a 13-page decision. The magistrate found neither legal custody to paternal

grandmother nor temporary legal custody to paternal aunt would be in G.B.'s best interest.

The magistrate noted grandmother and aunt are strangers to G.B. and they appear to be

interested only in what they want rather than what is best for G.B. The magistrate further

noted grandmother and aunt demonstrated through their testimony and demeanor that

they are unwilling to protect G.B. from future contact with Father. Additionally, the

magistrate found paternal aunt's desire to seek temporary legal custody of G.B. fails to

provide G.B. with the permanency he deserves and also fails to consider G.B.'s best Richland County, Case No. 2022 CA 0004 6

interests. The magistrate thus terminated the parental rights of both Mother and Father,

and denied Father's motion for legal custody to paternal grandmother as well as Father's

motion for temporary legal custody to paternal aunt.

{¶ 16} On January 4, 2022, the trial court approved the magistrate's decision.

Father timely filed this appeal. He raises one assignment of error as follows:

I

{¶ 17} "THE TRIAL COURT ERRED BY FAILING TO FIRST CONSIDER THE

AVAILABILITY OF THE CHILD'S EXTENDED FAMILY MEMBERS FOR LEGAL

CUSTODY IN LIEU OF PERMANENT CUSTODY TO CHILDREN SERVICES"

{¶ 18} In his sole assignment of error, Father argues the trial court failed to

adequately consider legal custody to either paternal grandmother or paternal aunt. We

disagree.

Permanent Custody

{¶ 19} R.C. 2151.414(B)(1) states permanent custody may be granted to a public

or private agency if the trial court determines by clear and convincing evidence at a

hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the

child and any of the following apply:

(a) The child is not abandoned or orphaned* * *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.

(b) The child is abandoned. Richland County, Case No. 2022 CA 0004 7

(c) The child is orphaned, and there are no relatives of the child who

are able to take permanent custody.

(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* *

*

(e) The child or another child in the custody of the parent or parents

from whose custody the child has been removed has been

adjudicated an abused, neglected, or dependent child on three

separate occasions by any court in this state or another state.

{¶ 20} Therefore, R.C. 2151.414(B) provides a two-pronged analysis the trial court

is required to apply when ruling on a motion for permanent custody. In practice, the trial

court will determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶ 21} R.C. 2151.414(D) governs "best interests" and states the following:

(D) 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: Richland County, Case No. 2022 CA 0004 8

(1) 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;

(2) 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;

(3) 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 ending on or

after March 18, 1999;

(4) 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;

(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

{¶ 22} 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, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).

"Where the degree of proof required to sustain an issue must be clear and convincing, a Richland County, Case No. 2022 CA 0004 9

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.

{¶ 23} Here, R.C. 2151.414(B)(1)(d) applies because G.B. was in the temporary

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

month period. Father does not dispute this fact. This court has adopted the position that

proof of temporary custody with an agency for twelve or more months of a consecutive

twenty-two-month period, standing alone is sufficient to award permanent custody. In the

Matter of A.S., V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040, 2013-Ohio-4018.

{¶ 24} Even if that were not true, contrary to Father's argument, the magistrate did

consider the possible availability of kinship placement. As set forth in our statement of

facts above, both grandmother and aunt are strangers to G.B. Grandmother has a long

history of involvement with various county children's services agencies and had an open

case with Knox County at the time of her testimony. Grandmother admitted to using

marijuana a week before the permanent custody hearing. She took no responsibility for

her history with children's services and placed the blame on her husband. While

Grandmother acknowledged it was within G.B.'s best interest to remain with his foster

family, she also felt it was unfair that she would not be able to see him grow.

{¶ 25} Paternal aunt works full time and had no concreate plan for child care while

she works. At the time of the hearing, she had just moved into an apartment with her

boyfriend of 7 months. While aunt stated she understood she was a complete stranger to

G.B. and acknowledged it would be traumatic for G.B. to be removed from the only family

he has ever known, she felt G.B. needed to be with "actual family" and would understand Richland County, Case No. 2022 CA 0004 10

the decision when he was older. Aunt also was not convinced Father was responsible for

G.B. injuries and had no clear plan to keep G.B. safe from Father.

{¶ 26} Meanwhile, the record reflects G.B. is thriving in his foster home. His needs

are being met, he is bonded with his foster family, and his foster family wishes to adopt

him.

{¶ 27} Given the forgoing, we find the trial court properly considered the possible

availability of G.B.'s family members for legal custody in lieu of permanent custody. We

further find the trial court did not abuse its discretion by denying both Father's motion for

legal custody to paternal grandmother and Father's motion for temporary legal custody to

paternal aunt as not being in G.B.'s best interest.

{¶ 28} The sole assignment of error is overruled.

{¶ 29} The decision of the Richland County Court of Common Pleas Juvenile

Division is affirmed.

By Wise, Earle, P.J.

Wise, John, J. and

Baldwin, J. concur.

EEW/rw