In re T-G.M. , 2011 Ohio 3940 ( 2011 )

[Cite as In re T-G.M., 2011-Ohio-3940.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: T-G.M. C.A. No. 25858
T.M.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 09-03-236
DN 09-03-237
DECISION AND JOURNAL ENTRY
Dated: August 10, 2011
MOORE, Judge.
{¶1} Father, Tyrone M., appeals from a judgment of the Summit County Court of
Common Pleas, Juvenile Division, that terminated his parental rights to his minor children, T-
G.M. and T.M., and placed them in the permanent custody of Summit County Children Services
Board (“CSB”). This Court affirms.
I.
{¶2} Andressa C. (“Mother”) and Tyrone M. (“Father”) are the parents of T-G.M.,
born April 9, 2007, and T.M, born March 27, 2008. Mother voluntarily surrendered her parental
rights to the children and filed an appellate brief in support of the trial court judgment. Father
has appealed to this Court, challenging the trial court’s termination of his parental rights and its
denial of legal custody to the paternal grandparents.
{¶3} CSB initially became involved with the family on March 16, 2009 after the
paternal grandfather called the police to his home because of a physical confrontation between
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Mother, who was holding T.M. in her arms, and the children’s paternal uncle. The police
removed both children pursuant to Juv.R. 6 and notified CSB. The following day, CSB filed
complaints in juvenile court and obtained emergency temporary custody of the children.
{¶4} On April 24, 2009, the children were adjudicated dependent and placed in the
temporary custody of the agency. The initial case planning goal was reunification. At that time,
Father was already attending anger management and domestic violence classes through an
existing probation requirement and was asked to continue those. He was also asked to engage in
parenting classes, drug counseling and drug screens, mental health counseling, and to seek
employment. Mother was to engage in mental health counseling and avoid abusive relationships.
After she tested positive for marijuana, a chemical dependency component was added to her case
plan.
{¶5} During the ensuing two years, the children remained in foster care. Father was
incarcerated for much of that time. Mother attempted to work on her case plan, but ultimately
surrendered her parental rights. CSB approved two sets of relatives for placement, but those
relatives eventually decided that they were unable to provide long-term care for these young
children.
{¶6} Father moved for custody in himself or with the paternal grandparents. On
September 3, 2010, CSB moved for permanent custody of both children. Following a hearing on
these motions, the trial court granted permanent custody of the children to CSB. Father appeals
and assigns two errors for review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
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ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING FATHER’S MOTION FOR LEGAL CUSTODY OF THE
CHILDREN TO [PATERNAL GRANDPARENTS].”
{¶7} Father contends that the trial court erred in finding that the weight of the evidence
supported a grant of permanent custody to the agency, and he also contends that the trial court
erred in denying his motion for legal custody to the paternal grandparents. Because these
arguments are legally and factually related, this Court will address them together.
{¶8} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that
the child cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of
permanent custody to the agency is in the best interest of the child, based on an analysis under
R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S.
(1996), 75 Ohio St.3d 95, 99.
{¶9} The trial court found that the first prong of the permanent custody test was
satisfied because the children had been in the temporary custody of CSB for at least 12 of the
prior 22 months. The trial court also found that the children could not or should not be returned
to the custody of either parent in that Father failed to complete his case plan objectives and is in
prison, and Mother believes permanent custody is in the children’s best interests. Father does
not contest either first prong finding, but rather challenges the second prong finding that it was in
the best interest of the children to be placed in the permanent custody of the agency.
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{¶10} That permanent custody is in the best interest of the child must be established by
clear and convincing evidence. Clear and convincing evidence is that which will “produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In
re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161
Ohio St. 469, paragraph three of the syllabus.
{¶11} This Court has previously held that the appropriateness of legal custody
essentially invokes consideration of the same factors as a determination of the best interest of the
child for purposes of a permanent custody decision. See In re S.S., 9th Dist. No. 23859, 2007-
Ohio-7046, at ¶13, citing In re S.N., 9th Dist. No. 23571, 2007-Ohio-2196, at ¶27 and R.C.
2151.414(D).
{¶12} Father cites In re S.S. in support of his position that he has standing to challenge
the denial of his motion for legal custody to relatives, but he also claims that our decision in In re
C.D., 9th Dist. No. 22250, 2005-Ohio-158, at ¶7, is inconsistent with that position. In In re C.D.,
we merely emphasized that the parent has standing to challenge a trial court’s decision denying
legal custody to a relative and granting permanent custody to an agency for the reason that such a
decision affects the parent’s residual rights. Id. We address this matter only to conclude that we
find no inconsistency in our precedent insofar as it applies to the case before us.
{¶13} The issues of denying legal custody to a relative and granting legal custody to an
agency are really two sides of the same coin. As stated above, the best interest considerations for
both are essentially the same. If a court finds that it is in the best interest of the child to be
placed in the permanent custody of an agency, then it is not in that child’s best interest to be
placed in the legal custody of a relative. As even Father makes clear in his appellate brief, much
of his argument regarding the failure to grant legal custody is a reiteration of his argument
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regarding the granting of permanent custody. Consequently, this Court will review the factors
set forth in R.C. 2151.414(D) in reviewing the decision of the trial court regarding the granting
of permanent custody to CSB and the denial of legal custody to the paternal grandparents.
{¶14} When determining whether a grant of permanent custody is in a child’s best
interest, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D): the personal interaction and interrelationships of the children, the wishes of
the children regarding placement, the custodial history of the children, and whether there are any
appropriate alternatives to permanent custody. See In re R.G., 9th Dist. Nos. 24834 & 24850,
2009-Ohio-6284, at ¶11. “Although the trial court is not precluded from considering other
relevant factors, the statute explicitly requires the court to consider all of the enumerated
factors.” In re Smith (Jan. 2, 2002), 9th Dist. No. 20711, at *3. See, also, In re Palladino, 11th
Dist. No. 2002-G-2445, 2002-Ohio-5606, at ¶24.
{¶15} The first best interest factor calls for a consideration of the personal interactions
and interrelationships of the children. The two children were said to share a definite bond. They
had been together their entire lives, either with their parents or in foster care. When they first
came into care, the children were described by the caseworker as “withdrawn, sort of lifeless.”
According to her, they did not seem to know how to play with toys and did not speak. They
would go with anyone and did not cry when their parents left. T.M. would scream because it
was his only means of communicating.
{¶16} Developmental assessments were conducted, and each child was provided with
occupational, physical, and speech therapy on a regular basis. The caseworker explained that the
children have made gradual improvements. They have learned to play with toys, have started to
smile, have begun eating better, and seem a little happier. At the time of the permanent custody
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hearing, the caseworker said the children show affection to others and try to communicate within
a limited vocabulary, but are not yet potty-trained and still do not speak very well. T.M. has
stopped screaming.
{¶17} Father was given a case plan and was able to visit with the children for two
months until he was incarcerated. He was also incarcerated at the time of the permanent custody
hearing in February 2011. Father’s criminal history includes domestic violence against Mother
when she was nine months pregnant with T.M. on March 11, 2008, and the violation of a civil
protection order the following day. In December 2008, Father pled guilty to burglary, escape,
domestic violence, and violating a protection order, and in July 2009, he pled guilty to additional
counts of domestic violence and violating a protection order. For these latter two cases, he was
sentenced to a total term of incarceration of three years. He was expected to be released from
prison on April 3, 2012. The guardian ad litem stated that the children have had very little
contact with Father since the case began and that they have little memory of him.
{¶18} Early in the proceedings, Mother sought reunification with her children, but by
the time of the permanent custody hearing, she decided to relinquish her parental rights. Mother
testified that she believed it would be in the children’s best interest to be adopted by a family that
could love them and provide for them financially, emotionally, psychologically, and spiritually
in a way that she could not. She testified that she would like to have the ability to continue to see
her children, but preferred that the children be adopted by an unrelated family than be placed
with the parental grandparents.
{¶19} Mother opposed placement with the paternal grandparents because she believes
they repeatedly ignored Father’s aggression against her while they lived in the grandparents’
home. At the permanent custody hearing, Mother testified that Father would yell, scream, and
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strike her in the face on a daily basis, and that the children were often present to observe that
behavior. Mother explained that the abuse usually took place while the paternal grandmother
was working, the paternal grandfather was in his room, and Father’s two brothers were playing
video games, but she believed they nevertheless knew the abuse was taking place.
{¶20} The paternal grandparents disputed this testimony and claimed that they had not
observed much of the abuse that Mother says she suffered while living in their home. At the
same time, the paternal grandmother admitted that her husband had told her about some of it. It
is undisputed that the parents had a history of domestic violence and some of it took place in the
home of the paternal grandparents.
{¶21} Moreover, in terms of the ability of the grandparents to provide for the children’s
care and safety, it may be important to note that the paternal grandparents claim to have been
unaware of much about the troubled relationship between Mother and Father. The paternal
grandmother was not aware that any problems existed between the couple before they came to
live in their home. For example, she was unaware of her son’s domestic violence conviction
from March 2008. Also, neither of the paternal grandparents was aware of the protective order
that existed between the couple while they were living together in the paternal grandparents’
home prior to Father’s arrest. Subsequently, the paternal grandmother testified that she believed
the protective order was issued only because of verbal arguments and that her son had never been
physically violent. The paternal grandfather testified that he did not understand why the children
were removed from the home, although he was the one who called the police to his home at the
beginning of this case.
{¶22} The paternal grandparents inquired about placement early in the proceeding, but
the agency denied their request due to concerns about the conflicts in the home and the paternal
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grandparents’ ability to protect the children. The record reflects justification for these concerns.
Father, who had a history of domestic violence and was currently incarcerated, had lived in the
home with them, and another son was the subject of an arrest warrant. On at least two occasions,
the paternal grandfather called the police to his home because of violent incidents involving his
sons.
{¶23} After the other potential relatives withdrew from consideration, Father requested
consideration of the paternal grandparents as custodians by filing a motion for legal custody to
them. Their home was reassessed by CSB shortly before the permanent custody hearing. Both
grandparents testified that they would like to have custody of the children and expressed concern
for them. The paternal grandmother testified that she loved the children and that she was
financially and otherwise able to provide for them. Both of the grandparents claimed that they
would bar Father from their home upon his release from prison, if the court so ordered.
{¶24} The agency recommended against granting custody to the grandparents. In part,
the agency felt their relationship with the children was not strong enough. According to the
caseworker, the paternal grandfather had not seen the children for years, and the paternal
grandmother had only minimal contact with them, generally during visits at her sister’s home.
For his part, the paternal grandfather stated that he last saw the children shortly after Christmas.
He did not report additional visits. The paternal grandmother testified that she joined her son at
one or two visits before he was incarcerated and then saw the children four to six times during
visits held at her sister’s home. In addition, the record demonstrates that the paternal
grandparents did not volunteer themselves to assume custody at a meeting held in August 2010
convened to solicit relative placement options, and that they failed to attend any juvenile court
proceedings until the permanent custody hearing in February 2011.
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{¶25} Father argues that the paternal grandparents were not given a sufficient
opportunity to visit with the children as they were denied regular visitation early in the
proceedings. The caseworker explained, through her testimony, that independent visits by the
paternal grandparents were denied because Father had accompanied the paternal grandmother on
a few early visits, and the agency was concerned that a reminder of his volatile relationship with
Mother could cause the children to regress.
{¶26} In addition to questions about the paternal grandparents’ ability to provide for the
children’s safety, there were reasonable concerns about their ability to provide care for the
children because of time and health considerations. This is particularly true because the children
are very young, very active, and have multiple therapy appointments per week. The paternal
grandmother was working two or three jobs, totaling 50-60 hours a week, and the paternal
grandfather has health problems, including diabetes and kidney failure. He typically leaves the
home for dialysis treatment three times a week at 5:00 a.m. and returns at 9:00 a.m. Although
the paternal grandfather testified that his wife was in the home at that time, she testified that she
started work at 8:00 a.m. at least three days a week. The paternal grandfather is licensed to drive
a car. He generally uses a cane, walker, or wheelchair to get around the house. He is no longer
employed, but was previously a chef and claims that he could prepare meals for the children
when his wife is not present. While the paternal aunt speculated that the paternal grandmother
planned to quit her job, there was no testimony by the grandparents on this subject and no
explanation of how they would manage financially under that circumstance.
{¶27} Father also disputed the trial court finding that the paternal grandparents did not
appreciate the severity of the children’s delays. In making this argument, he noted that the
observations of the paternal grandparents were largely based on the children’s behaviors at the
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time of their removal when they were quite young and some delays were not yet well-defined.
Even though the children were young, the caseworker’s testimony that the children were “sort of
lifeless” and did not know how to play with toys at that time should have signaled a concern in
the grandparents. Later, according to the guardian ad litem, T-G.M. could not count to three or
communicate more than three words by the age of four. These facts suggest a degree of delay
that should have aroused the attention of the paternal grandparents. The guardian ad litem also
noted that when the paternal grandfather was asked how he could manage the children while the
paternal grandmother was working, he indicated that “we’ll be just fine” and pointed to a large-
screened television. The evidence supports the trial court finding that the paternal grandparents
did not display a comprehension of the children’s special needs and the capacity to provide them
with necessary and appropriate care.
{¶28} The second best interest factor concerns the children’s wishes about where they
should live. As these children were not of sufficient maturity to independently express such a
wish, the guardian ad litem recommended permanent custody on their behalf. While advocating
an open adoption with some continued contact with Mother, Father, and the maternal
grandmother, she nevertheless believed that permanent custody was in the best interest of the
children.
{¶29} The third best interest factor calls for consideration of the custodial history of the
children. From the time of their birth, the children resided with their parents, first in their own
apartment and later in the home of the paternal grandparents. The family was residing with the
paternal grandparents when the children were removed by the police at the inception of this case.
At that time, T-G.M. was two years old and T.M. was one year old. The children lived with the
same foster parents for the next two years. As pointed out by Father, much time was devoted to
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efforts to place the children with the maternal grandparents and a paternal aunt. This does not
mean, however, that insufficient effort was devoted to placing the children with the paternal
grandparents. Evidence regarding concerns with such a placement is included above. Although
Father disagrees with the decision, he has not demonstrated legal error in regard to efforts made
in investigating or considering the possibility of a placement with the paternal grandparents.
{¶30} Fourth, there was evidence before the trial court that supported the determination
that the children’s need for a legally secure permanent placement could only be met by a grant of
permanent custody to the agency.
{¶31} Accordingly, upon this record, this Court concludes that the decision to grant
permanent custody of the children to CSB and terminate the parental rights of Father was not
against the weight of the evidence. Moreover, there was clear and convincing evidence before
the trial court from which it could conclude that permanent custody was in the children’s best
interest. Consequently, the trial court did not err in denying the motion for legal custody to the
paternal grandparents, in terminating Father’s parental rights, and in placing T-G.M. and T.M. in
the permanent custody of CSB. Father’s two assignments of error are overruled.
III.
{¶32} Father’s two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
DEREK CEK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
ALEXANDRA HULL, Attorney at Law, for Appellee.
LINDA BENNETT, Attorney at Law, for Guardian ad Litem.