In re S.G. , 2016 Ohio 8403 ( 2016 )

[Cite as In re S.G., 2016-Ohio-8403.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
IN RE:
S.G. CASE NO. 4-16-13
NEGLECTED/DEPENDENT CHILD.
OPINION
[PATRICK G. – APPELLANT]
Appeal from Defiance County Common Pleas Court
Juvenile Division
Trial Court No. 31284-2
Judgment Affirmed
Date of Decision: December 27, 2016
APPEARANCES:
Elizabeth H. Smith for Appellant
Joy S. O’Donnell for Appellee
Case No. 4-16-13
SHAW, P.J.
{¶1} Father-appellant, Patrick G. (“Patrick”), brings this appeal from the
May 27, 2016, judgment of the Defiance County Common Pleas Court, Juvenile
Division, granting permanent custody of the minor child S.G. to the Defiance
County Department of Job and Family Services (“the Agency”). On appeal, Patrick
contends that the trial court erred in denying the motion to intervene filed by his
mother, Kimberly Schroeder, and that granting permanent custody to the Agency
was not in S.G.’s best interest.
Relevant Facts and Procedural History
{¶2} S.G. was born in November of 2012, the daughter of Kimberly Schafer
and Patrick. The record indicates that the Agency first became involved with S.G.
in January of 2013 when S.G. was approximately 6 weeks old. At that time S.G.
was taken to the hospital for a broken arm. A subsequent investigation revealed that
S.G. also had a broken leg and three broken ribs, all of which had been caused by
Patrick.
{¶3} The Agency removed S.G. from her parents and she was placed with
Patrick’s sister for “about two days,” but when Patrick’s sister could not care for
S.G., she was placed with Patrick’s mother, Kimberly Schroeder (“Schroeder”).1
S.G. was with Schroeder from January 14, 2013, to January 24, 2013.
1
S.G. has two half-siblings. They all share the same mother but Patrick is only the father of S.G. As neither
of the other children are subject of this appeal, and are unrelated to Patrick, we will not further address them.
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{¶4} On January 24, 2013, Schroeder called the Agency and stated that her
companion, Larry, was having back surgery and Schroeder did not think she could
take care of both S.G. and Larry without assistance. The Agency then removed S.G.
and placed her in a foster home with Celeste and Josh Kenning.
{¶5} As a result of S.G.’s broken arm, broken leg, and three broken ribs,
Patrick was charged with, and pled guilty to, two counts of Endangering Children
in violation of R.C. 2919.22(A), both felonies of the third degree. Patrick was
ordered to serve 36 months in prison on each charge, consecutive to each other, for
an aggregate 72-month prison term. Patrick’s sentencing entry was filed May 24,
2013, and he was given credit for over 100 days served.
{¶6} Meanwhile, from late January of 2013 through February of 2015, S.G.
remained with the Kennings in a foster home. During that time, S.G.’s mother,
Kimberly Schafer, worked her case plan with the Agency. In February of 2015,
S.G. was returned to Kimberly’s legal custody, while the Agency retained protective
supervision over S.G. Kimberly continued working with the Agency once S.G. was
returned to her and Kimberly’s official case was closed in the summer of 2015;
however, Kimberly engaged in a voluntary plan with the Agency after her official
case was closed.
{¶7} On September 14, 2015, the Agency received information that
Kimberly and her new boyfriend were attempting to sell drugs in their apartment
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complex. Katie Piwarski, an ongoing caseworker with the Agency, went to
Kimberly’s residence to investigate the matter. Kimberly and her boyfriend
submitted to drug screens at that time. Kimberly tested positive for marijuana and
cocaine and her boyfriend tested positive for marijuana.
{¶8} On September 16, 2015, Kimberly’s house was searched by Piwarski
and a member of the Multi-Area Narcotics (“MAN”) Task Force. The search
revealed a pill bottle containing marijuana on an old television in the living room.
The old television was being used as a stand for a newer television. The pill bottle
containing marijuana was within reach of the children in the home. In addition,
drug paraphernalia was located in the residence.
{¶9} The same date that the search was conducted, September 16, 2015, the
Defiance County Common Pleas Court, Juvenile Division, issued an ex parte order
granting the Agency emergency custody of S.G.
{¶10} On September 17, 2015, the Agency filed a complaint alleging that
S.G. was a neglected and dependent child, contending that she lacked adequate
parental care, that Patrick was incarcerated, that Kimberly had tested positive for
drugs, that Kimberly was being evicted, and that marijuana was found in Kimberly’s
home within reach of the children residing there, including S.G.
{¶11} On September 17, 2015, a hearing was held on the previously issued
ex-parte temporary custody order wherein Piwarski provided an overview of the
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case history, leading to the current issues. Kimberly was present at the hearing and
she made a statement that she was being evicted from her apartment, that she had
no place to stay, that she was moving to Minnesota and that she wanted to give up
her parental rights. Based on the evidence presented at the hearing, the trial court
determined that probable cause existed to believe that S.G. was a neglected and or
dependent child in need of immediate protection and services and that her needs
could not be guaranteed in her present situation with Kimberly or Patrick, since he
was incarcerated.
{¶12} On September 24, 2015, the trial court held an initial hearing on the
complaint alleging that S.G. was a dependent and neglected child. Before the
hearing began, the trial court addressed Schroeder, Patrick’s mother, who was in
attendance. The trial court informed Schroeder that even though she had power of
attorney for her incarcerated son, in order to participate in this case as a party she
had to file a motion to intervene. The trial court explained what Schroeder had to
do and advised Schroeder to get an attorney if she wanted to intervene in this case.
During the hearing itself, Kimberly Schafer was present, and she reiterated that she
would be leaving soon to move to Minnesota.
{¶13} On September 25, 2015, Clay Crates was appointed as Guardian ad
Litem (“GAL”) for S.G. He had previously been the GAL for S.G. during the initial
case with the Agency.
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{¶14} According to the record, another hearing was held October 29, 2015.
At that time the trial court was informed that S.G.’s mother, Kimberly Schafer had
relocated as she had planned to Savage, Minnesota.
{¶15} On December 15, 2015, the Agency filed a motion to amend its
complaint, seeking permanent custody of S.G. pursuant to R.C. 2151.353(A)(4).
The Agency filed the amended complaint that same day.
{¶16} On January 28, 2016, an adjudication hearing was held on the
dependency and neglect allegations. It was reiterated at that time that Kimberly was
living in Minnesota and that Patrick was incarcerated. Piwarski then gave testimony
related to the incidents giving rise to the dependency and neglect allegations.
Piwarski also testified that Patrick’s mother, Schroeder, had been looked at as a
possible relative placement. Piwarski testified that Schroeder’s financial situation
precluded Schroeder from being a possible placement option. In addition, Piwarski
testified that Schroeder had called the Agency in 2013 after only 10 days of having
S.G. at the inception of the first case and stated that she needed assistance.
{¶17} Next, officer Aaron Gisige of the MAN Task Force provided
testimony related to the search of Kimberly’s residence on September 16, 2015.
After the evidence was presented, the GAL argued that he found it “disturbing” that
Kimberly tested positive for marijuana and cocaine on September 14, 2015, and
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would not even bother to clean up the drugs and drug paraphernalia around her
house by two days later when the search was conducted. (Jan. 28, 2016, Tr. at 62.).
{¶18} Based on the evidence presented at the adjudication hearing the trial
court found that clear and convincing evidence had been presented that S.G. was a
dependent and neglected child. No parties objected to S.G. remaining in the
Agency’s temporary custody pending further disposition. An entry summarizing
the evidence presented and making the appropriate findings of neglect and
dependency was filed February 5, 2016.
{¶19} On February 19, 2016, a case plan was filed. The case plan indicated
that Kimberly had told the Agency that she wanted S.G. to remain with Celeste and
Josh Kenning, her foster parents.
{¶20} On February 24, 2016, Patrick sent a letter to the trial court from prison
requesting that S.G. be placed with his mother, Schroeder. While this case was
pending, Schroeder was permitted a monthly visit with S.G. at the Agency for an
hour. However, Celeste Kenning facilitated additional time for Schroeder to see
S.G. when it was feasible.
{¶21} On April 26, 2016, the GAL filed a report. As it pertained to the
Agency’s request for permanent custody of S.G., the GAL recommended that
permanent custody be denied, stating that visitation should be increased with
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Schroeder and it should be investigated whether Schroeder could be a proper
placement for S.G.
{¶22} On May 2, 2016, Schroeder, proceeding pro se, filed a motion to
intervene in this case, which requested that she be named the residential parent and
legal custodian of S.G. Schroeder asserted that she had the capability of caring for
S.G. (Doc. No. 48).
{¶23} On May 3, 2016, the State filed a memorandum in opposition to
Schroeder’s motion to intervene, stating that the motion was filed too late as the
permanent custody hearing was scheduled to commence the next day.
{¶24} On May 4, 2016, the trial court filed an entry denying Schroeder’s pro
se motion. In its entry, the court noted that the matter was originally set for
disposition on March 15, 2016, but was continued at Patrick’s attorney’s request
and despite this, the motion to intervene was filed 2 days prior to final disposition.
The trial court thus concluded that the motion to intervene was not timely filed under
Civ.R. 24.
{¶25} On May 4, 2016, and May 6, 2016, the dispositional hearing was held.
Kimberly was not present, though her attorney was, and he expressed his belief, on
behalf of Kimberly, that the Agency’s permanent custody motion should be granted.
Patrick was also not present, as he was still incarcerated for his crimes related to
breaking S.G.’s bones. However, Patrick’s attorney argued that the trial court
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should have granted Schroeder’s motion to intervene, and, in any event, the trial
court should deny the Agency’s request for permanent custody and increase
Schroeder’s visitation with S.G.
{¶26} Although there were a number of witnesses presented at the final
hearing, much of the testimony presented pertained to whether Schroeder would
have made a reasonable alternative for placement.
{¶27} Katie Piwarski was the first witness to testify at the hearing. She
reiterated the case history from the inception of the Agency’s involvement with S.G.
through the current case.
{¶28} As it related to Schroeder, Piwarski testified that the Agency looked
into placement with Schroeder. Piwarski testified that Schroeder was initially used
as a “safety placement” under a voluntary agreement with Kimberly and Patrick
when S.G. was first discovered to have multiple broken bones in 2013. (May 4,
2016, Tr. at 54). Piwarski testified that S.G. was with Schroeder for approximately
10 days in January of 2013 when Schroeder contacted the agency. At that time,
S.G. was removed from Schroeder’s home and placed into foster care with the
Kennings.
{¶29} Piwarski testified that during the pendency of the case Schroeder had
asked that S.G. be placed with her four times; however, Piwarski testified that
Schroeder indicated that she would need financial help. Piwarski’s later testimony
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furthered this point as she testified that Schroeder was investigated as a possible
placement but the investigation proceeded no further when it was determined that
Schroeder could not financially support a child.
{¶30} Piwarski testified that Schroeder, who was 47 at the time of the
hearing, had no job and no income. Schroeder lived with her companion, Larry,
who received SSI/disability in the amount of $861 per month after his child support
obligation was taken out. Piwarski testified that Schroeder’s financials showed that
she had no savings, that she had overdue bills, and that Schroeder’s bank account
was overdrafted on multiple occasions.
{¶31} Conversely, Piwarski testified that S.G. was doing very well with her
foster family, the Kennings. Piwarski testified that S.G. had spent approximately 2
years with the Kennings from 2013 to 2015, and had been with the Kennings from
September of 2015 to the hearing in May of 2016. Piwarski testified that S.G. had
bonded with the Kennings, that the Kennings desired to adopt S.G., and that S.G.
even called Celeste and Josh “mom” and “dad.”
{¶32} Piwarski testified that the Kennings had actually facilitated extra
visiting time for Schroeder outside of the Agency. Piwarski testified that the
Kennings also maintained contact over the years with Kimberly, S.G.’s mother,
sharing pictures and information related to S.G.
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{¶33} Piwarski testified that there were many things considered as to
whether a relative could be an appropriate placement, but when Schroeder did not
even meet the financial qualifications, the Agency proceeded no further in
evaluating Schroeder. Nevertheless, Piwarksi did testify that Schroeder had a
“substantiated” medical neglect case in 2008 regarding her son Patrick.
{¶34} Ultimately Piwarski testified that S.G. could not be reunited with her
mother, who wanted the Kennings to have custody of S.G., and that S.G. could not
be reunited with her father, who was in prison. Piwarski testified that S.G. was in
need of permanency and that she believed it was in S.G.’s best interests for
permanent custody to be granted to the Agency.
{¶35} At the conclusion of Piwarski’s testimony, the hearing was continued
to a second day. On the second day of the hearing, Hillary Conley, an ongoing
caseworker and former investigator for the Agency, testified that she had originally
investigated Schroeder’s house and found it suitable for a safety placement in 2013.
However, Conley testified she was unsure why the Agency determined it was
suitable at that time given the substantiated medical neglect against Schroeder.
{¶36} As to what happened in 2013 related to Schroeder, Conley testified
that she received a call from Schroeder in January of 2013 after S.G. was with
Schroeder only 10 days wherein Schroeder stated that she could not take care of
S.G. Conley testified that she called and asked other family members if they were
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willing and able to care for S.G. and when they said no, the Agency filed an ex parte
motion for temporary custody, which resulted in S.G. being placed with the
Kennings.
{¶37} Celeste Kenning, S.G.’s foster mother, was the next witness to testify
at the hearing. Kenning’s testimony reaffirmed that S.G. had been in her home for
roughly 31 of the 39 months preceding the hearing.2 Kenning testified that S.G. was
doing well in her home, that S.G. was like a daughter to her, that Kenning treated
S.G. like a daughter and that S.G. called her “mom.” Kenning testified that she was
willing to adopt S.G. should she become available for adoption.
{¶38} Kenning also testified that she still facilitated contact between S.G.
and her mother, Kimberly, via skype and phone calls, even as recently as the day
before the hearing. Kenning testified that she facilitated extra contact with
Schroeder as well.
{¶39} Kenning testified that she had some concerns with Schroeder as
Schroeder had transportation difficulties and Schroeder had made comments
regarding her belief that Patrick was innocent of his crimes against S.G., despite his
admission to the crimes.
{¶40} Clay Crates, the GAL, was the next witness to testify. He testified that
he felt the foster parents were very appropriate with S.G. and that they were willing
2
Arguably the amount is 33 out of 39 months if partial months are taken into consideration.
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to adopt S.G. Crates testified that he had no contact with Schroeder from 2013 to
2015 during the pendency of the initial case. Crates testified that at some point he
learned of Schroeder’s desire for legal custody. Crates testified that he never
discussed his thoughts that visitation with Schroeder should be increased with the
Agency.
{¶41} Further, Crates admitted his knowledge that Schroeder was
unemployed and his knowledge that the Agency had never denied Schroeder
visitation. He stated that through his investigation of the case he was aware that
Schroeder and her companion were smokers, that the house smelled like smoke and
that they shared a vehicle. Nevertheless, Crates reiterated his written
recommendation that permanent custody be denied and he stated that he thought the
Agency needed to determine whether Schroeder was a possible appropriate
placement, despite being told by the Agency that Schroeder was investigated for
placement and that she was not capable financially of supporting another household
member.
{¶42} The Agency rested its case at that point. No witnesses were called on
behalf of S.G.’s mother, and her attorney reiterated that he believed permanent
custody to the Agency was in S.G.’s best interest.
{¶43} Patrick’s attorney then presented his case-in-chief, first calling Kim
Jackson of the Agency. Jackson testified that she supervised visitations and she had
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monitored Schroeder’s visits with S.G. Jackson testified that she never saw any
negative issues in Schroeder’s interaction with S.G.
{¶44} Patrick’s attorney then called Schroeder. Schroeder testified that she
lived in a duplex with her companion, Larry. Schroeder testified that she had no job
even though there was no reason she could not work. Specifically, Schroeder
testified, “no I don’t have any money,” and that she was completely dependent on
Larry. Schroeder testified that she simply did not need a job as she and Larry could
live off of his SSI/disability and food stamps. When asked why she did not go back
to work and get a job when she was told her finances were not enough to support
S.G. in the home, Schroeder testified that she did not need to at that time.
{¶45} Schroeder testified that in 2013 when S.G. was in her home, she was
merely seeking assistance when she called the Agency, not stating that she could
not care for S.G. Schroeder testified that she was upset that S.G. was taken from
her home.
{¶46} Schroeder testified that despite Patrick’s guilty pleas, she thought that
Kimberly was at least partially responsible for S.G.’s injuries as an infant.
Schroeder also testified that she was a smoker and that she had a criminal history
that included an Unauthorized Use of a Vehicle, for which she spent 56 days in jail,
and a Disorderly Conduct. Schroeder testified that Larry also had a criminal history
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with multiple “DUIs.” Schroeder testified that Larry never came to her visitations
with S.G.
{¶47} As to the incident of substantiated medical neglect related to Patrick,
Schroeder testified that her son was ordered to a mental hospital and she objected
to which hospital he was going to. She testified that contrary to what was stated,
she was not trying to prevent Patrick from getting treatment altogether.
{¶48} At the conclusion of the hearing, the parties submitted written
proposed findings of fact and conclusions of law.
{¶49} On May 27, 2016, the trial court issued its final judgment entry on the
matter. In its entry, the trial court reiterated the case history and made 36
enumerated factual and legal findings. Ultimately the trial court found that S.G. had
been in the temporary custody of the Agency for 12 or more of the previous 22
months, that she could not and should not be placed with either of her parents, and
that it was in her best interest that the Agency be granted permanent custody.
{¶50} It is from this judgment that Patrick appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
IN AN ABUSE OF DISCRETION, THE TRIAL COURT
DEPRIVED PATRICK [G.] OF DUE PROCESS WHEN IT
ERRONEOUSLY DENIED KIMBERLY SCHROEDER’S
MOTION TO INTERVENE AND REQUEST FOR CUSTODY
OF S.G.
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ASSIGNMENT OF ERROR 2
THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE
AGENCY FAILED TO PROVE, BY CLEAR AND
CONVINCING EVIDENCE, THAT THE BEST INTEREST OF
THE [CHILD] REQUIRES AN AWARD OF PERMANENT
CUSTODY WHERE A SUITABLE FAMILY MEMBER IS
READY, WILLING, AND ABLE TO ACCEPT LEGAL
CUSTODY OF THE CHILD.
First Assignment of Error
{¶51} In Patrick’s first assignment of error, he argues that the trial court erred
by denying the motion to intervene filed by his mother, Schroeder. Specifically, he
argues that the trial court abused its discretion by denying Schroeder the opportunity
to intervene and call witnesses on her own behalf and that the denial of the motion
was largely unsupported.
{¶52} By contrast, the State argues that Patrick has limited standing to
challenge the issue of the trial court denying his mother’s motion to intervene. The
State contends that Patrick can only challenge the trial court’s decision related to
Schroeder inasmuch as it impacted his rights, not the rights of his relative. In re
Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208. “A parent has no standing
to assert that the court abused its discretion by failing to give the [paternal
grandmother] legal custody; rather, the challenge is limited to whether the court’s
decision to terminate parental rights was proper.” Pittman at ¶ 70.
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{¶53} To the extent that the denial of the motion to intervene impacted
Patrick’s parental rights, we review the trial court’s decision to deny a motion to
intervene under an abuse of discretion standard. See In re Schmidt, 25 Ohio St. 3d
331, 337 (1986). An abuse of discretion constitutes a decision that is arbitrary,
capricious, or grossly unsound. Blakemore v. Blakemore, 5 Ohio St. 3d 217 (1983).
{¶54} Civil Rule 24 governs intervention in cases and reads, in pertinent part,
as follows.
(A) Intervention of right
Upon timely application anyone shall be permitted to intervene in
an action: (1) when a statute of this state confers an unconditional
right to intervene; or (2) when the applicant claims an interest
relating to the property or transaction that is the subject of the
action and the applicant is so situated that the disposition of the
action may as a practical matter impair or impede the applicant’s
ability to protect that interest, unless the applicant’s interest is
adequately represented by existing parties.
(B) Permissive intervention
Upon timely application anyone may be permitted to intervene in
an action: (1) when a statute of this state confers a conditional
right to intervene; or (2) when an applicant’s claim or defense and
the main action have a question of law or fact in common. When
a party to an action relies for ground of claim or defense upon any
statute or executive order administered by a federal or state
governmental officer or agency or upon any regulation, order,
requirement or agreement issued or made pursuant to the statute
or executive order, the officer or agency upon timely application
may be permitted to intervene in the action. In exercising its
discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties.
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{¶55} The Supreme Court of Ohio has definitively stated that grandparents
have “no legal interest in the care and custody of their [grandchild], which would
[allow] them to intervene as of right pursuant to Civ.R. 24(A).” (Emphasis sic). In
re Schmidt, 25 Ohio St. 3d 331, 336 (1986). The Schmidt Court further determined
that grandparents’ “desire for custody or visitation cannot be construed as a legal
right to custody or visitation,” as their “concern for their grand[child]’s welfare
cannot be construed as a legal interest that falls within the scope of Civ.R. 24(A).”
Id; see also In re Young, 5th Dist. Stark No. 2008CA00134, 2008-Ohio-5435, ¶ 15.
{¶56} The Supreme Court of Ohio’s clear statement in Schmidt indicates that
Schroeder could not intervene as of right in this case under Civ.R. 24(A). Thus we
must determine whether the trial court abused its discretion in denying Schroeder to
permissively intervene pursuant to Civ.R. 24(B).
{¶57} In this case, Schroeder was clearly aware of S.G.’s circumstances
throughout S.G.’s involvement with the Agency given that S.G. was placed with
Schroeder in early 2013 for ten days until Schroeder indicated she could not handle
the situation without assistance. Schroeder was also clearly aware of the new case
involving S.G. in September of 2015, basically from its inception, as Schroeder
actually attended the beginning of an initial hearing on the matter on September 24,
2015.
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{¶58} At the September 24, 2015, hearing, Schroeder was specifically told
by the trial court that she was not a party to this matter even though she had power
of attorney for her son Patrick. Schroeder was explicitly informed at that time, over
7 months prior to the final hearing, that if she wanted to be part of the proceedings
she had to file a motion to intervene. The trial court specifically took the time at the
hearing to explain to Schroeder that if she wanted to intervene she should get an
attorney and that was the only way she could potentially participate in this matter as
a party.
{¶59} Notwithstanding the trial court’s clear message to Schroeder,
Schroeder waited until two days before the final hearing to file her pro se motion to
intervene in this matter. The Agency opposed the motion.
{¶60} The trial court overruled Schroeder’s motion in a written entry, stating
that the final hearing had actually been scheduled for March 15, 2016, and was only
continued at Patrick’s attorney’s request. The trial court stated that filing the motion
to intervene two days before the final hearing was not timely under either paragraph
(A) or (B) of Civ.R. 24.
{¶61} We can find no abuse of discretion with the trial court decision on this
issue. If Schroeder wanted to intervene in the matter she could have started the
proceedings immediately as she was absolutely aware of the pending case. In fact,
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she was conducting at least semi-regular visitations with S.G., so she was not
oblivious to the ongoing court case and S.G.’s status.
{¶62} Nevertheless, even if Schroeder did file her motion earlier, we could
still find that the trial court did not abuse its discretion in denying Schroeder’s
motion to intervene. The record does not indicate that Schroeder ever stood in loco
parentis of S.G. outside of the 10 days S.G. was placed with her. Schroeder’s only
involvement with S.G. was facilitated through the Agency, or through S.G.’s foster
parents. See In re Stanley, 9th Dist. Summit No. 20128, 2000 WL 1507917
(“notwithstanding the interest of relatives in the disposition of custody of a minor
child, the trial court acts within its sound discretion in refusing to join such relatives
as parties, where there is no showing that the relatives stood in loco parentis to the
child.”); see also In re E.C., 8th Dist. Cuyahoga No. 103968, 2016-Ohio-4870, ¶
20. Thus even if Schroeder’s motion was more timely, we would find that the trial
court did not abuse its discretion in denying the motion. Accordingly, Patrick’s first
assignment of error is overruled.
Second Assignment of Error
{¶63} In Patrick’s second assignment of error, he argues that the trial court’s
decision granting permanent custody of S.G. to the Agency was against the weight
of the evidence. Specifically, Patrick argues that Schroeder was able to show that
she was a willing and suitable blood relative for the placement of S.G., that the GAL
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recommended against granting the Agency permanent custody so that the Agency
could further investigate whether Schroeder would be a proper placement, and that
the trial court failed to specify why it disagreed with the GAL.
Standard of Review
{¶64} When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court “ ‘weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.’ ” Eastley v. Volkman, 132 Ohio St. 3d
328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115
(9th Dist.2001), quoting State v. Thompkins, 78 Ohio St. 3d 380, 387
(1997), quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶65} In a permanent custody case, the ultimate question for a reviewing
court is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St. 3d 538, 2008–Ohio–4825, ¶
43. “Clear and convincing evidence” is: “[T]he measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the allegations
sought to be established. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable doubt as in
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criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes,
25 Ohio St. 3d 101, 104, (1986).
{¶66} In determining whether a trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite
degree of proof.” State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990);
accord In re Holcomb, 18 Ohio St. 3d 361, 368 (1985), citing Cross v. Ledford, 161
Ohio St. 469 (1954). “Thus, if the children services agency presented competent and
credible evidence upon which the trier of fact reasonably could have formed a firm
belief that permanent custody is warranted, then the court’s decision is not against
the manifest weight of the evidence.” In re R.M., M.M., D.M., B.M., 4th Dist.
Athens Nos. 12CA43, 12CA44, 2013-Ohio-3588, ¶ 55.
{¶67} “Reviewing courts should accord deference to the trial court’s decision
because the trial court has had the opportunity to observe the witnesses’ demeanor,
gestures, and voice inflections that cannot be conveyed to us through the written
record.” In re S.D., 5th Dist. No. 2016CA00124, 2016-Ohio-7057, ¶ 20, citing
Miller v. Miller, 37 Ohio St. 3d 71 (1988). A reviewing court should find a trial
court’s permanent custody decision against the manifest weight of the evidence only
in the “ ‘exceptional case in which the evidence weighs heavily against the
[decision].’ ” Thompkins at 387, quoting Martin at 175.
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Best Interests Analysis
{¶68} Revised Code 2151.414 provides a two-part analysis for courts to
apply when determining a motion for permanent custody. The Agency must prove
by clear and convincing evidence that, (1) granting permanent custody of the child
to the agency is in the best interest of the child, and that (2) the child either (a) cannot
be placed with either parent within a reasonable period of time for one of the
statutorily enumerated reasons, which includes, inter alia, that the child has been in
the temporary custody of the Agency for twelve or more months out of a consecutive
twenty-two month period, or that (b) the child should not be placed with either
parent within a reasonable period of time.
{¶69} In this case, Patrick concedes that the trial court made the proper and
appropriate finding that S.G. could not be placed with either parent within a
reasonable time as “Patrick * * * is incarcerated for offenses against the child and *
* * Kimberly * * * has abandoned S.G. by moving out of state.” (Appt.’s Br. at 7).
{¶70} What Patrick does argue on appeal is that the trial court erred by
determining that awarding permanent custody of S.G. to the Agency was in S.G.’s
best interest. When determining the best interest of the child related to permanent
custody a trial court is required to consider the factors in R.C. 2151.414(D)(1),
which reads,
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-
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home providers, and any other person who may significantly
affect the child;
(b) 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;
(c) 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,
or 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 and, as described in division (D)(1) of section 2151.413 of
the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶71} In its entry on the matter, the trial court stated that it had considered
all relevant factors under R.C. 2151.414(D)(1) in making its best interest
determination in this case. We will review the relevant testimony related to each
factor.
{¶72} As it relates to factor (D)(1)(a), the trial court was presented with
testimony that S.G. was doing well with her foster family, that her foster family
wanted to adopt her, and that S.G. was essentially part of the foster family.
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{¶73} S.G.’s mother, though she stayed in contact with S.G., had moved out
of state and expressed her desire that the Agency be granted permanent custody of
S.G. She wanted S.G.’s foster parents to have custody of S.G. She was adamantly
against Schroeder as a placement option.
{¶74} Patrick was incarcerated for his crimes against S.G., and had no real
relationship with her.
{¶75} Schroeder met with S.G. monthly for an hour at the Agency—or more,
if facilitated by the Kennings—and by all accounts had a good relationship with her.
{¶76} As it relates to factor (D)(1)(b), S.G. was too young to express her own
wishes, so the GAL spoke on her behalf, recommending that permanent custody be
denied. Notably, the GAL did not recommend that Schroeder be granted legal
custody; rather, he recommended that visitation be increased with Schroeder and
that the Agency investigate whether Schroeder was a suitable placement option for
S.G., which would prolong S.G.’s indeterminate status even longer.
{¶77} Strangely, the GAL seems to ignore the fact that the Agency had
already investigated Schroeder and found that she could not handle another
household member financially. The GAL even testified that he was informed of this
fact. The GAL also seemed to place no emphasis on the fact that Schroeder had
S.G. in her care and could only manage it for ten days without seeking assistance.
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Further, the GAL seemed to place no emphasis on Schroeder’s criminal history or
her substantiated medical neglect against Patrick.
{¶78} As it relates to factor (D)(1)(c), S.G. had been in the custody of her
foster family for nearly her entire life.
{¶79} As it relates to factor (D)(1)(d), S.G. had been in and out of the
Agency’s care for over three years, almost her entire life. She was in need of
permanency.
{¶80} As it relates to factor (D)(1)(e), and the considerations referenced
therein, Patrick was convicted of two counts of Endangering Children, specifically
for breaking no less than five bones of this particular child, which weighs against
him under factor (E)(7)(c). Patrick was also incarcerated, which weighed against
him under factor (E)(12).
{¶81} With that summary of the factors in mind, we turn to Patrick’s
arguments related to best interests on appeal. Notably, Patrick makes essentially no
arguments on his own behalf that granting the permanent custody motion was
against the weight of the evidence; rather, his brief is dedicated to painting
Schroeder as an acceptable candidate for alternative placement. Patrick thus
contends that factor (D)(1)(b), and the GAL’s recommendation, should outweigh all
other factors in this case.
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{¶82} It is important to recognize that a trial court is not bound by the
recommendation of the GAL. In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-
Ohio-3194, ¶ 35. Furthermore, courts have consistently held that, “The willingness
of a relative to care for the child does not alter what a court considers in determining
permanent custody.” In re P.S., 5th Dist. Licking No. 16-CA-11, 2016-Ohio-3489,
¶ 57, citing In re Patterson, 134 Ohio App. 3d 119, 129, 730 N.E.2d 439, 447 (9th
Dist.1999); In re J.T., 8th Dist. Cuyahoga Nos. 93240, 93241, 2009-Ohio-6224, ¶
58; see In re Haller, Wyandot No. 16-08-16, 2009-Ohio-545, ¶ 34; In re D.K.W.,
Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 34. “Accordingly, a court is not
required to consider placing a child with a relative prior to granting permanent
custody to an agency.” In re P.S. at ¶ 57.
{¶83} When considering the evidence and testimony in this case, we find that
the evidence supports the trial court’s decision. Looking at the evidence related to
the parents of S.G. specifically, the trial court’s decision was clearly supported in
the record due to S.G.’s mother’s abandonment and Patrick’s lengthy incarceration
for his crimes related to S.G.
{¶84} Patrick requests that this Court ignore all the evidence related to the
parents and focus on the one factor related to the GAL’s recommendation, even
though the GAL’s recommendation itself ignores significant facts in the record that
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he was aware of. As the evidence supports the court’s decision, we do not find
Patrick’s argument well-taken.
Trial Court’s Disagreement with the GAL’s Recommendation
{¶85} Patrick next argues that the trial court erred by failing to specifically
identify why it disagreed with the GAL’s recommendation. At the outset, we do
not accept Patrick’s characterization of the trial court’s entry on the matter. The
trial court’s entry contains all of the following findings that either directly or
tangentially relate to Schroeder, and thus the GAL’s recommendation that
permanent custody should be denied and visitation with Schroeder should be
increased.
11. The Agency has looked for relative placements on both sides
for [S.G.], to no avail.
12. Even though [S.G.] was originally placed with Kim
Schroeder under a safety plan, the child only remained in her care
for ten (10) days before she requested the child be removed, at
which point the Agency removed the child and sought and
obtained an ex parte temporary custody order.
13. Kimberly Schroeder later indicated to Agency
representatives that she would take the child back, but needed
financial assistance in order to do so. Agency representatives
determined that Kimberly Schroeder was not financially able to
care for [S.G].
14. Agency representatives indicated that Kimberly Schroeder
would still qualify under their standards for safety placement of
[S.G.], but she would not qualify for a long term relative
placement.
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15. Agency representatives indicated that Kimberly Schroeder
was not financially able to provide for the child; that the Agency
was concerned that Kimberly Schroeder would allow contact
between [S.G.] and Patrick [G.] when he is eventually released
from prison; that Kimberly Schroeder has no independent source
of income, other than the monies she receives from her live-in
boyfriend; and that Kimberly Schroeder had a substantiated
medical neglect case according to Agency records regarding her
son, Patrick [G.] in 2008.
16. [S.G.] was placed in foster care with Joshua and Celeste
Kenning in January 2013 when Kimberly Schroeder requested
[S.G.] be removed from her home.
***
27. The [GAL] recommended that visitation time with paternal
grandmother, Kimberly Schroeder and [S.G.] be increased to
determine whether Kimberly Schroeder could be an appropriate
placement; however, the [GAL] indicated that he could not say
that Kimberly Schroeder would be an appropriate placement at
the present time.
28. Kimberly Schroeder testified that she believes Kimberly
Schafer broke [S.G.]’s leg, not her son Patrick [G.], even though
Patrick [G.] plead [sic] guilty and was sentence[d] for causing the
physical harm to [S.G.].
29. Kimberly Schroeder testified that she has no money or
income, and relies totally upon the disability income received by
her live-in boyfriend, Larry.
30. Kimberly Schroeder testified that if she had custody of [S.G.],
it would be up to Larry to support the child since she has no
source of income and Larry controls the money in their
household.
(Doc. No. 59).
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{¶86} The preceding extensive analysis of the testimony related to Schroeder
makes clear that while the trial court might not have said the exact words that it
disagreed with the GAL for those specific reasons, the trial court had a number of
very specific reasons as to why the GAL’s recommendation was not going to be
followed in this case.
{¶87} We would even add to the trial court’s analysis that the GAL took no
initiative in bringing his belief to the Agency that Schroeder’s visitation should be
increased or that Schroeder should be investigated as possible placement. The GAL
seems to repeatedly suggest that the Agency should have evaluated Schroeder for
possible placement, but he ignores the fact that the Agency already had evaluated
Schroeder.
{¶88} Moreover, the GAL gives no credence to the fact that this case had
been pending off and on for years and Schroeder was fully capable of working to
remedy her financial situation, which disqualified her, yet she chose not to work
simply because she did not have to.
{¶89} Finally, similar arguments to Patrick’s regarding relative placement
have been made and overruled by other Ohio Appellate Courts and we find Patrick’s
arguments similarly unpersuasive here. In re P.S., 5th Dist. Licking No. 16-CA-11,
2016-Ohio-3489, ¶ 62 (wherein GAL recommended relative placement in
permanent custody case but relative’s past history was a factor to determine
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appropriateness of that issue and trial court ignored GAL’s recommendation); In re
Patterson, 134 Ohio App. 3d 119, 730 N.E.2d 439 (9th Dist.1999) (although
relative’s home was sufficient to care for child, relative unable to provide child
necessary level of care).
{¶90} In sum, the trial court’s decision is supported by the record and we
cannot find that the trial court erred in determining that it was in S.G.’s best interest
for the Agency to be awarded permanent custody in this case. Therefore, Patrick’s
second assignment of error is overruled.
Conclusion
{¶91} For the foregoing reasons Patrick’s assignments of error are overruled
and the judgment of the Defiance County Common Pleas Court, Juvenile Division,
is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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