In re G.M.

2011 Ohio 4090

• Court: Ohio Court of Appeals
• Decided: August 18, 2011
• Docket: 95410
• Status: Published

Opinion

[Cite as In re G.M., 2011-Ohio-4090.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95410

IN RE: G.M.

Minor Child

[APPEAL BY GRANDMOTHER, P.C.M.]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 08935487

BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.

RELEASED AND JOURNALIZED: August 18, 2011 ATTORNEY FOR APPELLANT GRANDMOTHER

Jeffrey R. Froude P.O. Box 761 Wickliffe, OH 44092-0761

ATTORNEY FOR APPELLEES A.M., ET AL., FOSTER PARENTS

Mark Witt 6209 Barton Road North Olmsted, OH 44070-3856

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

William D. Mason Cuyahoga County Prosecutor

BY: Gina S. Lowe Assistant County Prosecutor Cuyahoga County Department of Children and Family Services 4261 Fulton Parkway Cleveland, OH 44144

GUARDIAN AD LITEM FOR CHILD

Russell Ezolt 26341 Strawberry Lane Westlake, OH 44145 MELODY J. STEWART, P.J.:

{¶ 1} Appellant, P.C.M., the maternal grandmother to a now

four-year-old child, G.M., appeals from a juvenile division order that granted

legal custody of the child to foster parents, J.M. and A.M. The grandmother

complains that the court lacked jurisdiction to hear the case, that the child’s

guardian ad litem had no authority to file a motion on behalf of the foster

parents, and the court’s judgment is against the manifest weight of the

evidence.1

I

{¶ 2} The child was born to a teenage mother in California in

November 2006. His paternity has not been established. The child and

mother lived with the grandmother, but the grandmother’s full-time pursuit

of a nursing degree meant that various family members helped raise him. In

February 2008, the grandmother moved from California to Georgia and

brought the child with her. The mother stayed behind in California and

would occasionally visit in Georgia. At times, the mother took the child to

During oral argument, the guardian ad litem suggested that we lacked jurisdiction to hear this 1

appeal because the court did not establish a visitation schedule, instead deferring that matter for a later hearing. We disagree. Unlike permanent custody cases that require both an adjudicatory and dispositional order for finality, see In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶8, “[t]here is no provision within R.C. Chapter 2151 addressing motions for visitation filed by a parent who has lost legal custody of a child after a finding of dependency.” In re C.J., 4th Dist. No. 10CA681, 2011-Ohio-3366, ¶15. Visitation is thus ancillary to legal custody and has no effect on the finality of a legal custody order. Ohio to visit with his maternal grandfather, M.M. By April 2008, the

grandmother was devoting so many hours to advancing her nursing career

that she arranged for some friends in Ohio to foster the child. The foster

parents apparently understood this arrangement to be a prelude to their

adopting the child. In June 2008, the child required medical attention, but

the foster parents were unable to have the child treated because they had no

legal authority over the child. The Cuyahoga County Department of

Children and Family Services (“agency”) filed an emergency motion for

temporary custody of the child so that the child could obtain medical

treatment. The court appointed a guardian ad litem for the child, granted

the agency’s motion for emergency custody, and placed him with the foster

parents.

{¶ 3} In June 2009, the agency filed a motion asking the court to award

legal custody of the child to the grandmother. The child’s guardian ad litem

objected and filed his own motion asking the court to award legal custody of

the child to the foster parents. The paternal grandfather then filed his own

motion for legal custody. The parties later reached an interim agreement on

visitation and withdrew their respective motions, and the court continued the

child in the temporary custody of the foster parents.

{¶ 4} The agreement between the parties unraveled, however, when

the agency filed an amended case plan in which it stated a goal to return the child to the grandmother. The child’s guardian ad litem objected and filed a

new motion asking the court to grant legal custody to the foster parents. The

agency filed a new motion asking the court to grant legal custody to the

grandmother, and the grandfather filed a new motion seeking legal custody

for himself. The court conducted a hearing on the motions and found that it

would be in the child’s best interests to have legal custody placed with the

foster parents.

II

{¶ 5} The grandmother first argues that the court lacked jurisdiction to

hear the matter under the Interstate Compact on the Placement of Children

(“ICPC”) because the child had spent less than six months in the state of Ohio

at the time motions for legal custody were filed. She argues that only the

California or Georgia courts could rule on the custody motions.

{¶ 6} The ICPC is a contract among member states and U.S. territories

authorizing them to work together to ensure that children who are placed

across state lines for foster care or adoption receive adequate protection and

support services. See R.C. 5103.20, Article I, Section (A)-(C). This is

accomplished by ensuring that if a child is moved across state lines, that

child’s rights are protected as if they were in their home state and all legal

requirements are observed. The compact characterizes states as either

“sending” or “receiving.” The sending agency/state is a member state that sends, brings, or causes to be sent or brought any child to another member

state. Id. at Article II, Section (T). The receiving state is the state to which

the child is sent, brought, or caused to be sent or brought for placement with

state or local public authorities, or for placement with private agencies or

persons. Id. at Article II, Section (P). The ICPC states that jurisdiction is

vested in the sending state “over a child with respect to all matters of custody

and disposition of the child which it would have had if the child had remained

in the sending state. Such jurisdiction shall also include the power to order

the return of the child to the sending state.” Id. at Article IV, Section (A).

{¶ 7} The ICPC applies only if a state had previously exerted some

form of jurisdiction over a child. The record does not show that any other

state agency had exerted jurisdiction over the child before he was moved to

Ohio. It appears that the first time a state agency became involved occurred

when the agency sought temporary custody of the child in order to allow the

foster parents to obtain medical treatment for him. The ICPC thus had no

application to this case, and the court properly exercised jurisdiction to decide

who should have legal custody of the child.

III

{¶ 8} The grandmother next argues that the child’s guardian ad litem

lacked authority to file a motion for legal custody on behalf of the foster

parents. She maintains that the guardian ad litem could only file a motion for custody in his own name, not in the name of another person, and in any

event had to file a statement of understanding as required by R.C.

2151.353(A)(3).

{¶ 9} A child’s guardian ad litem is required to “perform whatever

functions are necessary to protect the best interests of the child *** and shall

file any motions and other court papers that are in the best interests of the

child.” R.C. 2151.281(I) (emphasis added). Thus, “[a] guardian ad litem has

authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a

motion to terminate parental rights and award permanent custody in a child

welfare case.” In re C.T., 119 Ohio St.3d 494, 2008-Ohio-4570, 895 N.E.2d

527. It follows that the guardian ad litem could, in this case, file and

prosecute a motion seeking to award legal custody of the child.

{¶ 10} It is true that the guardian ad litem did not, concurrent with the

filing of his motion to award legal custody of the child to the foster parents,

file the foster parents’ statement of understanding as required by R.C.

2151.353(A)(3).2 A person proposed as a legal custodian of a child “shall be

A “statement of understanding” expresses, among other things, the intent of a person to 2

become the legal custodian of the child; that the person is able to assume legal responsibility for the care and supervision of the child; that the person understands that legal custody of the child in question is intended to be permanent in nature and that the person will be responsible as the custodian for the child until the child reaches the age of majority; and that the parents of the child have residual parental rights, privileges, and responsibilities, including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child’s religious affiliation, and the responsibility for support. See R.C. 2151.353(A)(3)(a)-(d). awarded legal custody of the child only if the person identified signs a

statement of understanding for legal custody ***.” Id. Apart from stating

that the court cannot award legal custody to a party that has not filed a

statement of understanding, the statute does not give any specific time frame

in which the statement of understanding must be filed. The failure to file

the statement at the time of the motion for legal custody thus cannot be

considered a jurisdictional defect — the failure to file only affects the court’s

ability to award legal custody.

{¶ 11} On the final day of the hearing, May 11, 2010, the grandmother,

grandfather, and the agency made an oral motion to dismiss the guardian ad

litem’s motion to award legal custody to the foster parents on grounds that

the foster parents had not filed a statement of understanding. The court

agreed that the statement should have been filed earlier but also noted that

“it’s something that should have been caught earlier” by a magistrate or the

parties. It orally denied the motion to dismiss, instructed the foster parents

to file the statement by the following day, and stated its intent to grant legal

custody to the foster parents. The foster parents filed their statement of

understanding on May 12, 2010; the court issued the journal entry granting

legal custody on June 12, 2010. Since the court speaks only through its

journal, Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 382, 667 N.E.2d 1194, there is no question that the court did not grant legal custody until after the

statement of understanding had been filed.

{¶ 12} Although we find no jurisdictional impediment exists in this case,

prudence would suggest that a statement of understanding be filed as a part

of a motion for legal custody. But in a case like this, where the foster

parents essentially testified to all that would have been contained in the

statement of understanding, the court could, before issuing a journal entry

awarding legal custody, ask the foster parents to rectify an obvious oversight

in order to achieve full compliance with R.C. 2151.353(A)(3).

IV

{¶ 13} For her final argument, the grandmother argues that the court’s

decision to award legal custody to the foster parents is against the manifest

weight of the evidence. Claiming that there “is a fairly even division of

positives and negatives for the child regardless of who gets custody,” she

maintains that the court should have been guided by the statutory

presumption that the child be placed with a suitable member of his extended

family — a presumption that would have tipped the scales in her favor.

A

{¶ 14} After a child is adjudicated abused, neglected, or dependent, the

court may award legal custody to a non-parent after finding that legal

custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C. 2151.415(B). Legal custody is significantly different than the termination of

parental rights — despite losing legal custody of a child, the parents of the

child retain residual parental rights, privileges, and responsibilities. R.C.

2151.353(A)(3)(c). For this reason, we apply the less restrictive

“preponderance of the evidence” standard of appellate review to the court’s

factual findings. In re S.E., 8th Dist. No. 96031, 2011-Ohio-2042, ¶14, citing

In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552.

However, when considering the court’s ultimate decision on whether the facts

as determined would make it in the child’s best interests to be placed in legal

custody, we apply the abuse of discretion standard. In re B.H., 8th Dist. No.

95794, 2010-Ohio-1967, ¶10.

{¶ 15} Unlike R.C. 2151.414(D), which sets forth specific factors that the

court must consider before terminating parental rights and granting

permanent custody, R.C. 2151.353(A)(3) does not independently set forth

factors that the court should consider for determining the child’s best

interests in a request for legal custody. Some appellate decisions suggest

that the trial courts apply the best interests factors set forth in R.C.

2151.414(D), the permanent custody statute. See, e.g., In re S.N., 9th Dist.

No. 23571, 2007-Ohio-2196, at ¶27; In re Eicher Children, 1st Dist. Nos.

C-080107 and C-080121, 2008-Ohio-2196, ¶15; In re Burnette, 5th Dist. No.

2007CA00076, 2007-Ohio-6269, ¶29. Other appellate courts, including this district, have suggested that the trial court consider the best interests

factors set forth in R.C. 3109.04(F). See, e.g., In re J.O., 8th Dist. No. 87626,

2010-Ohio-407, ¶11; In re Fulton, 12th Dist. No. CA2002-09-236,

2003-Ohio-5984.

{¶ 16} The differences in the best interests factors are of no great

consequence, however, because the different statutes are merely instructive

on the question of a child’s best interests. In re Pryor (1993), 86 Ohio App.3d

327, 335, 620 N.E.2d 973. Rules of statutory construction state that it is

generally presumed that the General Assembly acts intentionally and

purposely when it includes particular language in one section of a statute but

omits it in another. State v. Vanderbilt (1882), 37 Ohio St. 590, 609. By

failing to set forth in R.C. 2151.353(A)(3) factors that the court must consider

when it had specifically done so in other statutes, we must presume that the

legislature did not intend to require the consideration of certain factors as a

predicate for granting legal custody. Of course, the courts are free to

consider any factors that they deem appropriate, including various statutory

formulations of a child’s best interests, but consideration of other statutes is

not mandatory.

B

{¶ 17} In oral remarks made at the conclusion of the hearing, the court

stated that the case was one of the most difficult it had ever had because “we rarely have cases where we have this many good people arguing over a child.”

The court acknowledged that the law prefers placement of a child with

relatives, and that it considered family placements as the preferred course of

action if it could be done. However, the court found that removing the child

from the foster parents would not be in his best interests.

{¶ 18} Contrary to the grandmother’s assertions, the preference for a

family placement as expressed in R.C. 2151.412(G)(2) is not mandatory.

That section states that when, as here, neither parent is capable of

supporting the child or providing for its best interests, “the child should be

placed in the legal custody of a suitable member of the child’s extended

family.” The courts have held that this language is precatory, not

mandatory. See In re Leverett (Mar. 26, 1998), 8th Dist. Nos. 71357-71360;

In re A.E., Franklin App. Nos. 07AP685 and 07AP-748, 2008-Ohio-1375, at

¶35; In re Hiatt (1993), 86 Ohio App.3d 716, 722, 621 N.E.2d 1222. So to the

extent the court found that all parties arguing for custody would have made

for a good placement, it was not bound by the statute to favor the

grandmother.

{¶ 19} As noted, the court acknowledged the statutory preference that a

child be placed with relatives when possible, but ultimately concluded that it

was more important that the child have a “good steady home[.]” It found

that the child has spent the previous two, formative years with the foster parents, whom he had come to see as his parents. The court found that “I

can’t see removing him, or how removing him from that situation would be in

his best interests.”

{¶ 20} The abuse of discretion standard requires us to affirm a

discretionary ruling by the court unless that ruling is arbitrary,

unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144. The grandmother concedes that the foster parents

were suitable for legal custody. She acknowledges that the child had spent

the last half of his life with the foster parents, that they loved the child, were

raising him in a devoutly religious home, and more than adequately provided

for him. And she does not deny that the parties stood in relative balance for

purposes of which of them could serve the child’s best interests as legal

custodians. With these factors present, we necessarily cannot conclude that

the court abused its discretion by finding that an award of legal custody to

the foster parents would be in the child’s best interests.

Judgment affirmed.

It is ordered that appellees recover of appellant their 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 Cuyahoga

County Court of Common Pleas – 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.

___________________________________________ MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and KENNETH A. ROCCO, J., CONCUR