In re KC ( 2016 )

[Cite as In re KC, 2016-Ohio-3229.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
)
K.C. )
) CASE NO. 15 MO 0016
)
) OPINION
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CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division, of Monroe
County, Ohio
Case No. 2013 DNA 5036
JUDGMENT: Affirmed.
APPEARANCES:
For Appellee/Monroe County DJFS Attorney Jamie Riley
Assistant Prosecutor
101 North Main Street, Room 15
Woodsfield, Ohio 43793
For Appellant/Father Attorney Travis Collins
P.O. Box 271
Cadiz, Ohio 43907
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: May 27, 2016
[Cite as In re KC, 2016-Ohio-3229.]
DeGENARO, J.
{¶1} Appellant-Father, Brett Brunner, appeals the September 28, 2015
judgment of the Monroe County Juvenile Court granting the Monroe County
Department of Job and Family Services' (the "Agency") motion for permanent
custody. On appeal Brunner asserts the Agency failed in its duty to secure a family
placement, specifically with the paternal grandmother. Brunner's arguments are
meritless. Fundamentally, Brunner does not challenge the termination of his parental
rights, and the paternal grandmother did not file a motion for the child to be placed
with her. Moreover, there was clear and convincing evidence to support the juvenile
court's judgment that it was in the best interests of the child to grant permanent
custody to the Agency. Accordingly the judgment of the juvenile court is affirmed.
Facts and Procedural History
{¶2} K. C. was born on September 11, 2013. The following day the Agency
filed a complaint with the Monroe County Juvenile Court alleging that K.C. was an
abused and neglected child. The juvenile court entered an ex parte emergency order
placing K.C. into the temporary custody of the Agency. On September 16, 2013, the
court conducted a shelter care hearing and continued K.C. in the custody of the
Agency.
{¶3} In December of 2013, Brunner was confirmed as K.C.'s father by DNA
testing. The Agency filed a motion to amend the original complaint to name Brunner
as the father, which was granted. On January 21, 2014, an adjudication hearing was
held at which time the Agency moved to dismiss count two of the complaint alleging
that K.C. was a neglected child. The Agency also moved to amend the complaint to
allege K.C. was a dependent child. K.C.'s mother, not a party to the present appeal,
entered an admission that K.C. was a dependent child. Father was not present.
{¶4} During January of 2014, Father met with the Agency and agreed to a
case plan that required, among other things, that he seek mental health services,
drug and alcohol services, and visitations with K.C.
{¶5} On March 4, 2014, the matter was set for a disposition hearing
regarding Mother and an adjudication hearing regarding Father. Mother permanently
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surrendered her parental rights. Father entered an admission to the amended
complaint, agreed to an immediate disposition hearing, and consented to K.C.
continuing in the temporary custody of the Agency.
{¶6} A review hearing was held on December 17, 2014. Father was notified
and did not appear. The trial court found that Father had not seen the child since July
29, 2014, and had not made progress on his case plan. No other family members
appeared at this time expressing an interest in K.C.
{¶7} The Agency filed a motion for permanent custody of K.C, and the first
day of testimony was July 22, 2015. At the hearing, Father's attorney moved to
disqualify the guardian ad litem based upon a conflict of interest. The court granted
this motion, appointed a new GAL, and continued testimony for August 25, 2015.
{¶8} It is uncontested that Father never completed alcohol and drug
treatment or follow-up counseling. He did visit with K.C. several times but stopped
after July 29, 2014. Further, as of the date of the permanent custody hearing Father
had been incarcerated for 130 days and was scheduled for release from the Eastern
Ohio Correctional Center in mid-January 2016. Father believed he could complete all
of the requirements of his case plan at the EOCC, that he wanted to get custody of
K.C. and if he couldn't, he wanted his mother to have custody.
{¶9} Regarding his mother, Loretta Sheppard, the caseworker testified that
in December of 2013, she contacted the Agency and expressed her desire to be
considered as a relative placement for K.C. Loretta's home study was approved. She
had visits with K.C. at the Agency through February and March of 2014 and three,
supervised in-home visits with an overnight visitation scheduled for April 3, 2014.
However, Loretta called the caseworker the day before the visit and indicated that
she no longer wanted to be considered as a relative placement, stating that her
husband was sick, that she didn't feel that she could start over raising another child,
and that she hoped that her son would take a more active role and gain custody of
K.C. Three months later Loretta called the caseworker one week prior to the
permanency hearing and informed her that she had clothes for K.C. and that she
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wanted to try to adopt K.C. However, Loretta never filed a motion with the juvenile
court to be awarded permanent custody.
{¶10} At the hearing, Loretta testified that originally she was prepared to take
custody of K.C. but changed her willingness to take the child because the Agency
had informed her that Father could not stay in her home while K.C. was placed with
her. She noted her husband had cancer in 2011 but it was in remission as of the
hearing date; she expressed her willingness to adopt K.C.
{¶11} The juvenile court granted the Agency's motion for permanent custody.
Standing
{¶12} Father does not argue on appeal that it was error for the juvenile court
to terminate his parental rights. His argument is strictly limited to asserting that his
mother, Loretta, should be awarded permanent custody. "Generally, a party cannot
appeal an alleged violation of another party's rights. However, '[a]n appealing party
may complain of an error committed against a nonappealing party when the error is
prejudicial to the rights of the appellant.'" In re Mourey, 4th Dist. No. 02CA48, 2003-
Ohio-1870, ¶ 20 citing In re Smith, 77 Ohio App. 3d 1, 13, 601 N.E.2d 45 (6th
Dist.1991); In re Hiatt, 86 Ohio App. 3d 716, 721, 621 N.E.2d 1222 (4th Dist.1993).
Father does not argue how his rights have been impacted. In fact, he does not
challenge the termination of his parental rights.
{¶13} Loretta has never properly made herself a party by filing a motion to
intervene or a motion for permanent custody. Pursuant to Juv. R 2(Y) "party" is
defined as "a child who is the subject of a juvenile court proceeding, the child's
spouse, if any, the child's parent or parents, or if the parent of a child is a child, the
parent of that parent, in appropriate cases, the child's custodian, guardian, or
guardian ad litem, the state, and any other person specifically designated by the
court." Thus, Loretta is not a party to the proceedings. Further, "grandparents do not
have any legal right to have contact with their grandchildren until a court grants them
such a right." In re Schmidt, 25 Ohio St. 3d 331, 336, 496 N.E.2d 952 (1986). Loretta
never obtained, through statute, court order, or other means, any legal right to
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custody or visitation with the child.
Duty to Reunite Child with Paternal Grandmother
{¶14} As Father's two assignments of error are interrelated they will be
discussed together for ease of analysis. Father asserts respectively:
The Trial Court improperly held that the Agency does not have a duty to
reunite the child with a family member unless the family member is a
party to the case.
The Trial Court abused its discretion by not adequately considering the
possibility of placing K.C. with Loretta Sheppard.
{¶15} Before parental rights can be terminated, an agency must prove by
clear and convincing evidence that permanent custody is in the best interests of the
child and one of the following provisions: "(a) the child cannot be placed with either
parent within a reasonable amount of time or should not be placed with either parent,
(b) the child is orphaned, (c) the child is abandoned, (d) the child has been in the
temporary custody of the agency for twelve or more months of a consecutive twenty-
two month period." In re J.Z., 7th Dist. No. 08 CO 31, 2009–Ohio–1937, ¶ 18, citing
R.C. 2151.414(B)(1)(a)-(d). "An appellate court's review of a juvenile court's decision
granting permanent custody is limited to whether sufficient credible evidence exists to
support the juvenile court's determination." In re G.N., 170 Ohio App. 3d 76, 2007–
Ohio–126, 866 N.E.2d 32, ¶ 27 (12th Dist.) citing In re Starkey, 150 Ohio App. 3d 612,
2002–Ohio–6892, 782 N.E.2d 665, ¶ 16 (7th Dist.).
{¶16} The juvenile court found by clear and convincing evidence that the child
had been in the temporary custody of the Agency for twelve or more months of a
consecutive twenty-two month period. Father does not dispute this finding and makes
no argument to the contrary. As such, the Agency's remaining task was to prove by
clear and convincing evidence that permanent custody was in the best interests of
the child. R.C. 2151.414.
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{¶17} R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (1) the
interaction and interrelationship of the child with the child's parents, relatives, foster
parents and any other person who may significantly affect the child; (2) the wishes 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; (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; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are
applicable.
{¶18} The juvenile court clearly considered the best interest factors as
demonstrated in the judgment entry. The court noted the child was just under two
years old and too young to express his desire of where and with whom to live, and
recognized that the child had only known his foster parents as his mother and father.
K.C.'s biological mother had already lost her parental rights, and he had been in the
temporary custody of the agency his whole life. Further, the GAL recommended that
Father's parental rights be terminated, which he does not challenge on appeal.
{¶19} Father had not been convicted of any crimes of violence or sexual
abuse, but was incarcerated as of the trial date until at least January 2016. Prior to
that he had been incarcerated from May to July of 2014. Father had long-standing
issues with drugs and alcohol. He was required to complete drug and alcohol
counseling but was discharged from two programs for non-compliance. The juvenile
court noted that Father had only seen the child five or six times in the previous two
years and had not provided any support to the child for seven months.
{¶20} The juvenile court acknowledged that the child had been in the custody
of the Agency for longer than two years and did not qualify for further temporary
custody or a planned permanent living arrangement, and the child needed a legally
secure placement which could only be done through permanency.
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{¶21} Father argues that the juvenile court did not adequately consider
placing the minor child with his mother, Loretta. This is not supported by the record.
There was ample evidence presented that Loretta was considered for placement.
She had participated early in the proceedings stating that she wanted custody. She
completed supervised and unsupervised visits. A home study was conducted and
approved. However, she later withdrew herself from consideration citing her
husband's illness, not wanting to start over again with a small child, and her hope that
Father would take a more active role. Not until days prior to the permanency hearing
did Loretta express her desire to have custody, but she never filed a motion to either
intervene or seek permanent custody.
{¶22} Citing In re Alexander, 7th Dist. No. 06-CA-834, 2006-Ohio-7083, the
juvenile court stated that "DJFS does not have a duty to reunite the child with a family
member unless the family member is a party to the case." Father argues that this
was an incorrect statement of law. In Alexander, Father appealed the termination of
his parental rights, arguing that the agency failed to take steps to find a suitable
adoptive home among his relatives. Id. ¶ 12. We held that R.C. 2151.412 "clearly
deals with the creation and implementation of case plans, not the determination of
whether to grant permanent custody of a child to a children's services agency." Id. ¶
54. This court in Alexander also noted that neither Father, nor any of his relatives,
filed a motion requesting the court to give them custody. Id. ¶ 55.
{¶23} Instead of arguing any statutory or case law to the contrary, Father
contends: "Nothing in Alexander holds that a children's services agency has no duty
to try to reunite a child with a family member unless the family member is a party to
the case." Father states that other R.C. sections (specifically R.C. 2151.412 which
deals with case plans and R.C. 2151.353 which deals with disposition options for
abused, neglected and dependent children) are premised on the notion that it is in
the best interests of the child to attempt to reunite a child with a family member.
Father fails to recognize that the Agency did attempt to reunite the child with Loretta.
{¶24} There was clear and convincing evidence to support the juvenile court's
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judgment granting permanent custody to the Agency. Loretta was given proper
consideration for placement, but she withdrew her willingness to seek custody of the
minor child, and never sought to intervene or file her own motion for permanent
custody. The evidence demonstrated that it was in the child's best interest for the
court to grant permanent custody to the Agency. Accordingly, Father's assignments
of error are meritless, and the judgment of the trial court is affirmed.
Donofrio, P. J., concurs.
Robb, J., concurs.