In re K.J.

2021 Ohio 3455

• Court: Ohio Court of Appeals
• Decided: September 30, 2021
• Docket: 2021 CA 0008
• Status: Published

Opinion

[Cite as In re K.J., 2021-Ohio-3455.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: K.J. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. : : : Case No. 2021 CA 0008 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. F2018-0733

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 30, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

GLORIA L. SMITH PAULA M. SAWYERS 670 Meridian Way, #188 20 S. Second Street Westerville, OH 43082 Newark, OH 43055

GUARDIAN AD LITEM ADAM JOHNSON 25 E. Waterloo Street Licking County, Case No. 2021 CA 0008 2

Canal Winchester, OH 43110 Wise, Earle, J.

{¶ 1} Appellant Tabitha Hensley, appeals the January 6, 2021 judgment of the

Licking County Court of Common Pleas which denied her objections to the magistrate's

decision granting the Licking County Department of Job and Family Services (herein

"LCDJFS") permanent custody of K.J. Plaintiff-Appellee is JFS.

Facts and Procedural History

{¶ 2} Appellant has not filed a transcript of the proceedings. We therefore glean

the following facts from documents filed with the trial court.

{¶ 3} K.J. was born on March 16, 2018. On October 28, 2018, K.J.'s mother was

found unresponsive from a heroin overdose at a fast food restaurant. K.J. was with mother

at the time. On October 29, 2018, an ex parte hearing was held and emergency shelter

care of K.J. was granted to LCDJFS. Mother was granted visitation rights.

{¶ 4} On December 7, 2018 JFS filed a case plan and on January 2, 2019,

temporary custody was granted to LCDJFS. K.J. was placed with a foster family with

which she strongly bonded. K.J. learned to walk and talk with her foster family.

{¶ 5} K.J.'s mother worked her case plan well and filed a motion for legal custody

on February 19, 2019. A hearing was held on the motion on April 3, 2019 and continued

to June 26, 2019. On May 21, 2019, however, K.J.'s mother died of a drug overdose.

{¶ 6} K.J.'s father was located in Florida however he was unable or unwilling to

provide for K.J. and had no interest in participating in genetic testing to establish paternity.

{¶ 7} On September 26, 2019, LCDJFS filed a motion for permanent custody of

K.J. A hearing on the matter was scheduled for January 27, 2020. Licking County, Case No. 2021 CA 0008 3

{¶ 8} More than three months later, on January 9, 2020, Appellant, who is a

maternal half-aunt to K.J. and had a rocky relationship with K.J.'s mother, filed a motion

for custody/kinship placement. Appellant and her husband reside in Kentucky. K.J. has

never lived with them, nor had they ever been K.J.'s guardian. Appellant's husband did

not join Appellant's motion for legal custody of K.J.

{¶ 9} Appellant was not granted party status in this matter as she did not meet

the requirements of Juv.R. 2(Y). She was nonetheless permitted to pursue legal custody

of K.J. without party status. For the same reason, others seeking legal custody of K.J.

including two other maternal half-aunts of K.J. and K.J.'s foster parents, were also denied

party status.

{¶ 10} Appellant's motion for kinship custody was denied and her motion for legal

custody was set for hearing.

{¶ 11} On August 25, 2020, the Guardian ad Litem filed a written report and

recommendations.

{¶ 12} On September 1, 2020, K.J.'s foster parents signed and filed with the court

a Statement of Understanding of Prospective Legal Custodians. They were also

interested in adopting K.J.

{¶ 13} On September 1 and 2, 2020, by stipulation of the parties and all interested

persons, all four motions seeking legal custody of K.J. were heard simultaneously. On

December 3, 2020, the magistrate issued her decision granting permanent custody to

LCDJFS, denying all other motions for legal custody, and terminating the parental rights

of the putative father. Licking County, Case No. 2021 CA 0008 4

{¶ 14} While Appellant did file an objection to the magistrate's decision, the

objections were untimely and unsupported. Nonetheless, in the interest of justice the trial

court conducted an independent examination of the audio record, exhibits, and the

magistrate's decision and found overwhelming evidence to support a finding that a grant

of permanent custody to LCDJFS was in K.J.'s best interest.

{¶ 15} Appellant filed an appeal and the matter is now before this court for

consideration. She raises one assignment of error as follows:

I

{¶ 16} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED

PERMANENT CUSTODY TO THE AGENCY AND DENIED HER MOTION FOR LEGAL

CUSTODY."

{¶ 17} In her sole assignment of error, Appellant argues the trial court abused its

discretion by denying her motion for legal custody of K.J. Specifically Appellant claims the

trial court demonstrated favoritism toward LCDJFS throughout the pendency of this

matter and additionally went out of its way to exclude Appellant from being a party to the

permanent custody hearing. We disagree.

{¶ 18} As an initial matter, Appellant has failed to provide this court with a transcript

of the proceedings below. Pursuant to App.R. 9(B), it is the appellant's duty to file the

transcript or any parts of the transcript that are necessary for evaluating the trial court's

decision. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384

(1980). "This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record." Id. at 199, citing State v. Skaggs, 53 Ohio St.2d

162, 372 N.E.2d 1355 (1978). Without the filing of a transcript (or a statement of the Licking County, Case No. 2021 CA 0008 5

evidence or proceedings under App.R. 9(C) or an agreed statement under App.R. 9(D)),

this court has nothing to pass upon and must presume the validity of the trial court's

proceedings and affirm. Id. This means that "we must presume that the trial court acted

with regularity and did not abuse its discretion." Rose Chevrolet, Inc. v. Adams, 36 Ohio

St.3d 17, 21, 520 N.E.2d 564 (1988).

{¶ 19} Due to the lack of a transcript, our review is "limited to whether the trial

court's application of the law to the magistrate's factual findings constituted an abuse of

discretion." Weston v. Weston, 5th Dist. Stark App. No. 2000CA00084, 2000WL 1862830,

*1 citing Vistula Mgt. Co. v. Newson, 120 Ohio App.3d 500, 503 698 N.E.2d 467 (1997),

citing State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654

N.E.2d 1254 (1995).

{¶ 20} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶ 21} Following the hearing, R.C. 2151.414(B) authorizes the court to grant

permanent custody of the child to the public or private agency if the court determines, by

clear and convincing evidence, it is in the best interest of the child to grant permanent

custody to the agency, and that 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; (c) the child is orphaned and there are no relatives of the child who are able Licking County, Case No. 2021 CA 0008 6

to take permanent custody; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶ 22} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster parents 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; (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; and (5) whether any of the factors in division (E)(7)

to (11) of R.C. 2151.414 apply in relation to the parents and child.

{¶ 23} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually 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.

{¶ 24} In this matter, the trial court denied Appellant's objections finding: 1.)

Appellant was not a legal party to the proceedings, and that K.J. had never lived with

Appellant nor had Appellant ever been her guardian; 2.) Appellant's husband had not

joined in Appellant's pursuit of custody of K.J.; 3.) K.J. had bonded with her foster parents Licking County, Case No. 2021 CA 0008 7

and Appellant acknowledged that removing K.J. from the home of her foster parents

would be detrimental to K.J; 4.) Appellant did not file a Statement of Understanding for

Legal Custody as required by R.C. 2151.353(A)(3); 5.) The guardian ad litem

recommended K.J.'s best interests would be served by a grant of permanent custody to

LCDJFS; 6.) The magistrate's 25-page opinion addressed all required issues, both factual

and legal and were supported by the audio record of the proceedings; 7.) Agreed with

LCDJFS that Appellant's objections should be dismissed for both untimeliness as well as

lack of party status, but nonetheless addressed the merits in the interest of judicial

economy; 8.) Noted Appellant failed to provide the trial court with references to the

transcript or references to the testimony presented to support her objections to the

magistrate's decision and further failed to file any affidavit in support of her objections. 9.)

Appellant's objections lacked the specificity required by Juv.R 40(D)(3)(b)(ii); 10.) that it

was not required to consider placement with a relative before granting permanent custody

to LCDJFS (citing In re M.H., 5th Dist. Tuscarawas 2016CA43, 2017-Ohio-1110 ¶ 24);

11.) the testimony of the assigned social worker in this matter was credible, and; 12.) the

decision to grant permanent custody to LCDJFS was supported by overwhelming

evidence.

{¶ 25} Based on the record before us, we find the trial court gave full and fair

consideration to Appellant's objections despite their untimeliness, lack of transcript, and

lack of support. We further find Appellant was not singled out for exclusion as a party as

she failed to meet the requirements of Juv.R. 2(Y). Further, all parties seeking legal

custody in this matter were denied party status yet permitted to participate in the

proceedings. There is therefore no evidence on the available record to support a finding Licking County, Case No. 2021 CA 0008 8

the trial court's decision overruling Appellant's objections to the magistrate's decision was

unreasonable, arbitrary, or unconscionable.

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

{¶ 27} The judgment of the Licking County Court of Common Pleas is affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, J., J. concur.

EEW/rw