Opinion
2023CA0003 2023CA0004
08-14-2023
IN THE MATTER OF: S.A.W. AND S.J.W.
For Appellants DAN GUINN For Appellee Agency FREDERICK A. SEALOVER
Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 20213009 and 20213010
For Appellants DAN GUINN
For Appellee Agency FREDERICK A. SEALOVER
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J.
OPINION
KING, J.
{¶ 1} Appellants, K.B. and T.B., appeal the January 6, 2023 judgment entries of the Court of Common Pleas of Coshocton County, Ohio, Juvenile Division, denying their motion for legal custody of two children. Appellee is Coshocton County Job and Family Services ("agency"). We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} These cases involve twins, S.A.W. and S.J.W., born February 2021. Mother of the children is T.W.; father is A.W. The children were removed from mother's care right after birth. On April 28, 2021, the parents stipulated that the children were dependent; the trial court ordered the children remain in the temporary custody of agency. Judgment entries journalizing the admissions and the dispositions were filed on November 15, 2021.
{¶ 3} On July 26, 2022, agency filed motions for permanent custody of the children.
{¶ 4} On September 29, 2022, appellants, paternal grandmother and paternal step-grandfather of the children, filed motions to intervene and motions to be named legal custodians of the children.
{¶ 5} A hearing was held on October 4, 2022. By judgment entries filed January 6, 2023, the trial court denied appellants' motion for legal custody and granted agency permanent custody of the children.
{¶ 6} Appellants filed appeals and this matter is now before this court for consideration. The assignment of error in each appeal is identical and is as follows:
{¶ 7} "THE COURT ERRED IN DETERMINING THAT THE APPELLANTS SHOULD NOT BE NAMED THE LEGAL CUSTODIANS OF THE CHILD."
I
{¶ 8} In their sole assignment of error, appellants claim the trial court erred in finding they should not be named the legal custodians of the children. We disagree.
{¶ 9} R.C. 2151.353 governs disposition of abused, neglected, or dependent child and states in pertinent part:
(A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition:
(3)Award legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings.
(4)Commit the child to the permanent custody of a public children services agency or private child placing agency, if the court determines in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child.
{¶ 10} In In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-4818, ¶ 20-22, our colleagues from the Eighth District explained the following:
Unlike permanent custody cases in which the trial court is guided by the factors outlined in R.C. 2151.414(D) before terminating parental rights and granting permanent custody, R.C. 2151.353(A)(3) does not provide factors the court should consider in determining the child's best interest in a motion for legal custody. In re G.M. [8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090] at ¶ 15. We must presume that, in the absence of best interest factors in a legal custody case, "the legislature did not intend to require the consideration of certain factors as a predicate for granting legal custody." Id. at ¶ 16. Such factors, however, are instructive when making a determination as to the child's best interest. In re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13.
The best interest factors include, for example, the interaction of the child with the child's parents, relatives, and caregivers; the custodial history of the child; the child's need for a legally secure permanent placement; and whether a parent has continuously and repeatedly failed to substantially remedy the conditions causing the child to be placed outside the child's home. R.C. 2151.414(D).
Because custody determinations" 'are some of the most difficult and agonizing decisions a trial judge must make,'" a trial judge must have broad discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We therefore review a trial court's determination of legal custody for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} During the October 4, 2022 permanent custody hearing, the trial court heard from eleven witnesses including appellants. At the outset, mother of the children supported agency's motions for permanent custody; father supported his mother and step-father's motions for legal custody. T. at 14-15, 38.
{¶ 12} Erin Heard, the ongoing case supervisor, testified the agency first spoke to appellants about kinship placement when the children were removed in February 2021. T. at 24. Appellants stated they wanted to see father "work on getting the children" and would ask their landlord if they were permitted to have children at their apartment. Id. Appellants did not follow through with anything. T. at 24-25.
{¶ 13} Tiffany Fisher, the ongoing caseworker, was assigned the case in November 2021. T. at 29. She also spoke to appellants about a possible kinship placement. T. at 56. At the time, appellant grandmother stated her apartment was too small and" '[w]e can't take them.'" Id. In December 2021, appellants expressed an interest in kinship placement so Ms. Fisher prepared a home assessment of appellants' household. T. at 45, 57. Ms. Fisher compiled information and the administrator for agency, Kathy Art, reviewed the assessment and determined appellants' household was not recommended for placement and denied the home study. T. at 45-46. Ms. Fisher testified there was previous history in Tuscarawas County regarding appellant grandmother and her other children; the main concern "was her failure to protect the children that she had in the home as a parent." T. at 53. There were concerns of sexual abuse in the home, not from appellants, but "with the other child in the home." T. at 54. Appellants were never charged with anything, but appellant grandmother lost custody of her youngest son. T. at 54. When asked during the home study about any child protective services involvement in her life, appellant grandmother was not forthcoming and did not report her history with Tuscarawas County. T. at 55. Ms. Fisher testified father did not substantially complete the objectives of his case plan and did not make any significant progress. T. at 43.
{¶ 14} Ms. Fisher testified the children and the foster parents "are deeply bonded to each other" and there are "no concerns with their interactions or meeting their needs." T. at 47. Ms. Fisher opined it would be detrimental for the children to be removed from their present placement. T. at 48. Throughout the case, the foster parents have expressed their desire to adopt the children. Id. Ms. Fisher opined it would be in the children's best interest to be adopted by the foster parents. Id.
{¶ 15} Kathy Art, agency's administrator, reviewed the information provided by Ms. Fisher and denied the home study. T. at 59-60. Ms. Art was concerned about the past history in Tuscarawas County. T. at 60. When appellant grandmother's youngest son was going to be released from psychiatric treatment, appellants did not want to reunify with him and have him back in the home due to his "significant mental health issues." T. at 60-61. The Tuscarawas County case indicated "emotional maltreatment" by appellants. T. at 66. Appellants partially completed court-ordered services. Id. Ms. Art testified after looking into the Tuscarawas County case, she "found it quite concerning" and "did not feel that that would warrant us placing children in their home with her denying that she actually had an ongoing case for five and a half years." T. at 62. Ms. Art thoroughly reviewed the Tuscarawas County case records and was very confident in her determination to deny the home study. T. at 62-63. Ms. Art opined it would not be in the children's best interest to be placed in appellants' legal custody. T. at 63.
{¶ 16} Two witnesses testified to father's mental health. Although father's ability to parent is not an issue in this appeal, it is relevant to appellant grandmother's belief that father could parent with support. A licensed psychologist who evaluated father diagnosed him with mild intellectual impairment, and carried forth the diagnosis of schizophrenia based on father's report of auditory hallucinations and continued treatment with anti-psychotic medication. T. at 80. He opined "these two impairments, as severe as they were, would severely impair his ability to care for" the children. T. at 81. He thought it was unlikely for father to independently parent the children at any point in the foreseeable future. T. at 84. Father lacked any kind of adequate knowledge as to what the children could do at various ages and he "would require more training than is probably feasible for many agencies" to provide in order for him to parent effectively. T. at 81-82, 85, 94-95. A counselor who evaluated and treated father testified father suffered from depression. T. at 97. Father attended four therapy sessions and then stopped attending and did not complete his treatment goals. T. at 98.
{¶ 17} Sara Lusk supervised father's visitations with the children. T. at 104. She observed nine visits. T. at 104-105. Father needed a lot of help and "wasn't able to pretty much do anything." T. at 106. She would show him how to do something and he would be able to do the task, but "he wasn't able to retain and do the same task when the same issue" came up again. T. at 107. Father did not make any progress over the nine visits as he "was not able to retain and apply the knowledge that was given to him to the next visit." T. at 108. He never engaged with the children and when shown how, he could not continue or maintain what he was shown. Id. Father "would turn red and he would sweat and become very frustrated with the children." T. at 109. Ms. Lusk had safety concerns when father was visiting with the children. Id. Father missed many visitations and was constantly late. T. at 110. His visitations stopped due to failed drug screens. T. at 111.
{¶ 18} Joy Padgett, the guardian ad litem, first met with appellants in April 2021. T. at 124. At that time, they indicated they did not want a kinship relationship, but were looking to help father get established. They stated their apartment was "entirely too small to even consider bringing the children in." Id. Ms. Padgett conducted a home visit and appellants expressed a desire for legal custody. T. at 125. Ms. Padgett opined the home was very small, not "enough space to accommodate two little toddlers." T. at 125-126. Ms. Padgett did not think appellants were a viable, potential placement for the children. T. at 126. She was concerned appellants would open the children up to father and allow him to be alone with them. T. at 127. She had observed the children with the foster parents and there was a "really great interaction with all four of them," the children's needs were being met, and they were "thriving at the highest level due to their attention and care." Id. Ms. Padgett recommended permanent custody of the children be granted to agency with adoption to the current foster parents. T. at 128.
{¶ 19} Appellant grandmother testified when she was first contacted about housing the newborn children, she said no because they did not know if her son was the father of the children. T. at 139. After paternity was established, appellants indicated they would support father in the custody of the children. T. at 140. Appellant grandmother stated a home study was conducted and denied because "we were accused of being alleged sexual perpetrators" which was not true. Id. She admitted to involvement with child protective services in Tuscarawas County, explaining they reached out for services due to odd behavior from her youngest son. T. at 141. He received psychiatric treatment and was to go back home, but appellants did not want him to return, they did not know what to do; he remained in a planned permanent living arrangement for the next five years until he aged out of the system. T. at 141-142, 147-148. Appellant grandmother has never been charged with any kind of sexual offenses, does not have any issues with drugs or alcohol, and does not have a history of domestic violence. T. at 142, 145. She resides in a two-bedroom apartment with appellant step-grandfather and a twenty-six-year old son. T. at 143. If she received custody of the children, the children would sleep in a bedroom and the son would sleep in the basement. Id. Appellant grandmother testified the guardian ad litem's testimony was not accurate, but did not elaborate on how the testimony was inaccurate. T. at 144. When questioned as to why she was not forthcoming with her prior history with Tuscarawas County, she testified "I wasn't asked." T. at 146. She admitted at the time of the hearing, she did not have a relationship with the children, but that was because they had not been given the opportunity. T. at 149-150. She was present for two visitations with father and thought he did very well caring for the children, she did not have any concerns. T. at 150-151. If they had legal custody of the children, they would "definitely be the sole caregivers" for the children, but they could not keep father away from them "because those are his kids." T. at 151. She thought if father had enough guidance, he would be able to parent the children. T. at 152.
{¶ 20} Appellant step-grandfather testified he does not have any children and did not have any child protective services cases of his own; his only involvement was with the case of appellant grandmother's youngest son. T. at 155. He is an intervention specialist at the local school and has passed two background checks. T. at 155-156. He would like to have custody of the children and thought their two visitations went really well. T. at 156.
{¶ 21} In its January 6, 2023 judgment entries denying appellants' motions for legal custody, the trial court noted the denial of the home study was timely communicated to appellants and father "and the basis of the denial and the concerns regarding placement were known to them early in the case. Any meaningful challenge by them to JFS' decision needed to come at some earlier point, and at least before the attachment of the infant children to the foster placement was established." The trial court weighed the best interest standards and found permanent custody to agency was in the children's best interest. The trial court concluded the children "need a legally secure placement, which can only be obtained through a grant of permanent custody to the agency."
{¶ 22} Before the trial court were two motions, one for legal custody to appellants and one for permanent custody to agency. Both motions required the consideration of the children's best interest. We note a trial court "is not required to favor a relative if, after considering all the factors, it is in the child's best interest for the agency to be granted permanent custody." Matter of J.C., 5th Dist. Tuscarawas Nos. 2022 AP 11 0044 - 2022 AP 11 0049, 2023-Ohio-1263, ¶ 34. (Citations omitted.)
{¶ 23} When appellants were first approached to care for the children, they declined, first questioning paternity and then stating their apartment was too small. After paternity was established and realizing father may lose custody, appellants expressed an interest in kinship placement to help support father, not care for the children by themselves. After their home study was denied, appellants did nothing to contest the denial until filing their motion for legal custody five days before the permanent custody hearing. Appellants were present for the testimony of the witnesses and heard father's impairments would "severely impair his ability to care for" the children and he was unable to retain anything shown to him and use the knowledge for future visits. Despite hearing this, appellant grandmother testified in her judgment, based on two visitations with father, father did very well caring for the children and she did not have any concerns. In her opinion, they could not keep father away from the children and with enough guidance, he would be able to parent the children. Given her lack of insight on father's inability to effectively parent, if the trial court awarded legal custody of the children to appellants, father could be left alone with the children which was an agency concern. In addition, appellant grandmother has a history with child protective services and was not forthcoming about her past.
{¶ 24} Although father supported legal custody to appellants, based upon the evidence presented, that placement was not in the best interest of the children. The foster parents provided the children with a stable placement and desired to adopt them; they were all bonded. It was reasonable for the trial court to conclude a legally secure permanent placement would best be served with permanent custody to agency.
{¶ 25} Upon review, we find the trial court did not err in denying appellants' motions for legal custody.
{¶ 26} The sole assignment of error is denied.
{¶ 27} The judgments of the Court of Common Pleas of Coshocton County, Ohio, Juvenile Division, are hereby affirmed.
King, J. Hoffman, P.J. and Wise, J. concur.