In re T.K.M. , 2019 Ohio 5076 ( 2019 )

[Cite as In re T.K.M., 2019-Ohio-5076.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: T.K.M. : APPEAL NO. C-190020
TRIAL NO. F15-2118x
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 11, 2019
Charles H. Bartlett, Jr., for Appellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and R. Michael Waddle,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Elizabeth Stringer,
Assistant Public Defender, Guardian ad Litem for T.K.M.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} Appellant father appeals the decision of the Hamilton County Juvenile
Court granting custody of his daughter T.K.M. to J.C., the child’s step-aunt. We find
no merit in his sole assignment of error, and we affirm the juvenile court’s judgment.
Factual Background
{¶2} The record shows that father became involved with the child’s mother
and mother became pregnant while father was separated from his wife and living in
Cincinnati. Before the child’s birth, father moved from Cincinnati to Seattle,
Washington, to reconcile with his wife.
{¶3} T.K.M. was born in June 2014. Mother had a history of substance
abuse, and both mother and child tested positive for methadone. T.K.M. spent 27
days in in the neonatal intensive care unit receiving treatment. Nevertheless, T.K.M.
remained in her mother’s custody for the first year of her life. During that year,
T.K.M. spent significant time at the home of father’s mother, the child’s paternal
grandmother, who was helping mother. Father had little contact with the child
during that time.
{¶4} In August 2015, mother gave birth to another child, who tested
positive for opiates, which prompted the Hamilton County Department of Job and
Family Services (“HCJFS”) to file a complaint alleging that T.K.M. was dependent,
neglected, and abused, and a motion for interim custody. She was placed in
grandmother’s home.
{¶5} Father appeared at a pretrial hearing on November 13, 2015. He
stipulated that he was T.K.M.’s father and that he financially supported the child.
Subsequently, grandmother filed a petition for custody of T.K.M., which stated that
father “lives in Seattle, WA and wants baby to have contact with mother and has
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OHIO FIRST DISTRICT COURT OF APPEALS
asked * * * his mother[,] [the child’s] grandmother[,] to take custody and keep them
in contact.” A case plan filed on January 19, 2016, stated that father was aware of
T.K.M.’s living situation, and that he was “not interested in caring for” T.K.M.
{¶6} On February 25, 2016, T.K.M. was found to be dependent and abused.
The juvenile court granted temporary custody to HCJFS and continued placement
with grandmother. The case plan’s goal at that time was reunification with mother,
who was required to maintain sobriety and complete drug treatment.
{¶7} T.K.M. lived in grandmother’s home from September 4, 2015, until
February of 2017, when she was about two and one-half years old. During that time,
father visited the child several times and talked with her by phone. T.K.M. bonded
with father’s older daughter, who also lived with grandmother.
{¶8} During that time, grandmother reported significant concerns
regarding T.K.M.’s adjustment. She stated that T.K.M. did not sleep and would
frequently be up all night and that she was aggressive toward her half-sister who also
lived with grandmother for a time. Grandmother further reported that the child
suffered from eating disorders to a degree that grandmother had sought treatment
for her from the feeding team at Children’s Hospital Medical Center.
{¶9} During a home study of grandmother’s home, HCJFS discovered a
substantiated allegation of sexual abuse against grandmother’s husband, which had
not been revealed in previous background checks. When caseworkers confronted
grandmother’s husband, he admitted to sexually abusing his former stepdaughter
and to still having the same types of urges.
{¶10} T.K.M.’s guardian ad litem filed a motion to terminate temporary
custody to HCJFS and to award custody to J.C. Additionally, HCJFS filed a case plan
proposing that T.K.M. and her half-sister be removed from grandmother’s home and
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OHIO FIRST DISTRICT COURT OF APPEALS
placed with J.C. and her husband. J.C. is mother’s stepsister and T.K.M.’s step-aunt,
and she already had a significant relationship with T.K.M.’s older half-sister.
{¶11} Grandmother had had no knowledge of the sexual-abuse allegations
against her husband, and moved out of their home and into her daughter’s home.
While grandmother intended to remain in her daughter’s home, she had no plans to
file for separation or divorce from her husband. HCJFS remained concerned that
T.K.M. was still at risk to be exposed to grandmother’s husband and that
grandmother could not “give her the permanency she needs.”
{¶12} On October 17, 2016, the magistrate issued a decision placing T.K.M.
in the care of J.C. and granting custody to J.C. J.C. had already been granted custody
of T.K.M.’s older half-sister. Although mother and grandmother filed objections to
the magistrate’s decision, father did not. The juvenile court affirmed the magistrate’s
decision regarding placement in J.C.’s home, but vacated the award of custody
because the parties had only agreed to address the issue of placement at the hearing.
The court set the case for trial on the motion to terminate HCJFS’s temporary
custody and award custody to J.C.
{¶13} T.K.M. adjusted quickly to J.C.’s home. A caseworker observed that
after about a week in J.C.’s home, T.K.M. was “a different child.” She talked much
more than she had previously, and she was running around the home, laughing and
playing. J.C. saw no evidence of the eating and sleeping problems or of the
aggressive behavior grandmother had reported. T.K.M. quickly became attached to
J.C., and she developed a strong bond with her half-sister.
{¶14} Eventually, mother supported J.C.’s petition for custody. Mother was
not in a position to have custody of T.K.M., but she visited her regularly. Although
J.C. lived four hours away, mother was still able to visit twice a month. T.K.M. was
always excited to see her mother.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} After T.K.M. was placed with J.C, father filed a motion for custody.
Because he lived in Seattle, he was not able to visit T.K.M. often. He visited her twice
after she was placed with J.C. Those visits coincided with court hearings in
Cincinnati. At both visits, T.K.M. was nervous when she first saw him, and clung to
J.C. But she eventually warmed up to father, and both visits lasted several hours.
J.C. stated that she was willing to allow father to visit whenever he comes to Ohio
and to allow the child to travel to see him once she is old enough. Father had limited
telephone contact with the child while she lived with J.C. even though J.C. had not
restricted his ability to call.
{¶16} Because father lived in Seattle, HCJFS requested an interstate home
study from the state of Washington, which declined to approve him as a legal
custodian for T.K.M. The report stated that father had “no relationship or a minimal
relationship with his daughter” and had admitted to not having a relationship with
her. The report also expressed concern that father and his wife had not
“therapeutically explored the circumstances” of the child’s birth, which was the result
of father having a relationship with the child’s mother while being married. Finally,
the report indicated that a home study would not be approved unless (1) father
established a relationship with the child and participated in a parenting assessment
and (2) father and his wife participated in therapy to address their feelings toward
the child and how those feelings would impact their relationship and their ability to
raise the child.
{¶17} Father disputed that he had had limited contact with the child. He and
his wife both had stable employment. They lived in an apartment that was suitable
for T.K.M., although they planned to move to a larger condominium if father was
granted custody of T.K.M. Additionally, father’s adult son and daughter lived with
him or nearby.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Although at the time of the custody hearing father’s adult children
lived in Seattle, they had spent a substantial amount of their childhoods living with
grandmother. Grandmother still had a pending petition for custody of T.K.M. She
remained married to her husband. Although she claimed to have been separated
from him, the evidence showed that after T.K.M. was placed with J.C., grandmother
moved back in with her husband, and they lived together in a home that they both
had purchased.
{¶19} After hearing the evidence, the magistrate recommended that legal
custody of T.K.M. be awarded to J.C. He also recommended that father’s and
grandmother’s petitions for custody be denied. Father objected to the magistrate’s
decision. The juvenile court overruled his objections and adopted the magistrate’s
decision. This appeal followed.
{¶20} In his sole assignment of error, appellant father contends that the
juvenile court erred in failing to award custody of his daughter to him, instead
awarding custody to a nonrelative. He argues that as a parent, he has the paramount
right to raise his daughter, and that the court had to determine he was unfit before it
could deny his petition for custody. This assignment of error is not well taken.
No Finding of Unsuitability was Required
{¶21} Father relies on In re Hockstock, 98 Ohio St. 3d 238, 2002-Ohio-7208,
781 N.E.2d 971, and In re Perales, 52 Ohio St. 2d 89, 369 N.E.2d 1047 (1977), for the
proposition that because parents have a fundamental interest in the care, custody
and management of their children, a finding of parental unsuitability is a necessary
first step in child-custody proceedings between a natural parent and a nonparent.
But both of those cases involved private custody disputes, as opposed to cases
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OHIO FIRST DISTRICT COURT OF APPEALS
involving an abused, neglected, or dependent child. See In re C.R., 108 Ohio St. 3d
369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 18-19.
{¶22} When a child has been adjudicated abused, neglected, or dependent,
the juvenile court has a number of dispositional alternatives available to it, including
granting legal custody to a relative or any other person who has filed a petition for
legal custody. R.C. 2151.353(A); In re A.W., 1st Dist. Hamilton No. C-140142, 2015-
Ohio-489, ¶ 8. The Ohio Supreme Court has held that when a juvenile court
adjudicates a child abused, neglected or dependent, it has no duty to make a separate
finding at the dispositional hearing that a noncustodial parent is unsuitable before
awarding legal custody to a nonparent. See In re C.R. at paragraph three of the
syllabus; In re A.C., 1st Dist. Hamilton No. C-140273, 2015-Ohio-153, ¶ 9.
{¶23} The court noted that no statute requires a finding of parental unfitness
as a prerequisite to an award of legal custody in cases where a child is adjudged
abused, neglected or dependent. In re C.R. at ¶ 20, citing In re Cunningham, 59
Ohio St. 2d 100, 103, 391 N.E.2d 1034 (1979). That determination does not violate
the parents’ fundamental interests because an award of legal custody does not divest
the parents of their residual parental rights, privileges, and responsibilities. In re
C.R. at ¶ 17.
{¶24} Father contends that only mother was found to be unsuitable and
there was no determination that he was unsuitable. The Ohio Supreme Court has
rejected father’s argument stating, “A juvenile court adjudication of abuse, neglect,
or dependency is a determination about the care and condition of a child and
implicitly involves a determination of unsuitability of the child’s custodial and/or
noncustodial parents.” In re C.R. at paragraph two of the syllabus. The status of the
child is the focus, not the fitness of the parents. Additionally, this court has stated
that when a parent files a petition for custody, which is in reality a motion to modify
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OHIO FIRST DISTRICT COURT OF APPEALS
a prior order of custody granted at a dispositional hearing, there is no requirement
that the juvenile court first determine that the parent was unfit, as the court has
already determined that the child is abused, dependent, or neglected. In re Allah, 1st
Dist. Hamilton No. C-040239, 2005-Ohio-1182, ¶ 8.
{¶25} Father never objected to the court’s initial determination that T.K.M.
was dependent and abused. Further, an adjudication by a juvenile court that a child
is dependent, neglected or abused followed by a dispositional order awarding
temporary custody to a public children services agency is a final order and is
appealable to the court of appeals. In re Murray, 52 Ohio St. 3d 155, 556 N.E.2d 1169
(1990), syllabus; Allah at ¶ 3. Once the time for the filing of an appeal had passed,
the issue was res judicata and father could not challenge the court’s finding that the
child was dependent and abused. See In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-
6810, 900 N.E.2d 607, ¶ 15-17; In re J.D., 2d Dist. Montgomery No. 26588, 2015-
Ohio-4114, ¶ 66; In re Harris, 1st Dist. Hamilton No. C-020512, 2003-Ohio-672, ¶ 7-
12.
{¶26} Further, father never objected to the court’s initial decision to place
the child with J.C. Therefore, he forfeited all but plain error. See In re W.W., 1st
Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 37; In re Jones, 1st
Dist. Hamilton Nos. C-090497, C-090498 and C-090499, 2010-Ohio-3994, ¶ 32-33.
He had not yet filed his petition for custody, and he had no standing to assert
grandmother’s interest. See In re K.C., 2017-Ohio-8383, 99 N.E.3d 1061, ¶ 6-13 (1st
Dist.); In re T.W., 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754, ¶ 3-9.
{¶27} The fact of the matter is that father did not want custody after the
adjudication. The guardian ad litem specifically told him early in the proceedings
that he could file for custody and he declined to do so. He was content to let
grandmother raise the child. It was only after the child was removed from
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OHIO FIRST DISTRICT COURT OF APPEALS
grandmother’s home and placed with mother’s stepsister and her husband that
father filed his own motion. At that time, it was too late to contest the court’s
determination that T.K.M. was an abused and dependent child. The court was then
required to determine what disposition was in the child’s best interest.
Best Interest of the Child
{¶28} When deciding the disposition of an abused, neglected, or dependent
child, the court should base its determination on the best interest of the child. In re
A.W., 1st Dist. Hamilton No. C-140142, 2015-Ohio-489, at ¶ 8; In re A.C., 1st Dist.
Hamilton No. C-140273, 2015-Ohio-153, at ¶ 5. The statutory scheme provides no
specific set of criteria when determining the best interest of the child in a legal-
custody proceeding. But this court has held that the factors set forth in R.C.
2151.414(D) and 3109.04(F) are instructive. See In re F.B.D., 1st Dist. Hamilton No.
C-180356, 2019-Ohio-2562, ¶ 12; In re M., R., & H. Children, 1st Dist. Hamilton No.
C-170008, 2017-Ohio-1431, ¶ 31; In re A.W. at ¶ 8.
{¶29} The juvenile court has discretion to determine what placement is in
the child’s best interest, and an appellate court will not reverse that decision absent
an abuse of discretion. In re M., R., & H. Children at ¶ 30; In re A.W. at ¶ 10. An
abuse of discretion exists if the court’s decision is not supported by competent,
credible evidence. In re M., R., & H. Children at ¶ 30; In re A.W. at ¶ 10.
{¶30} The evidence showed that the child thrived in J.C.’s home in a way that
she had not while in grandmother’s home. She bonded with J.C. and her husband,
their biological children, and her half-sister, who was already in J.C.’s custody and
who was also thriving. Though mother could not have custody, she was able to visit
regularly and had established a positive relationship with the child. J.C. also testified
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OHIO FIRST DISTRICT COURT OF APPEALS
that she would continue to foster a relationship between father and the child if she
were granted legal custody.
{¶31} Father had no contact with the child during the first year of her life.
After that, he had only intermittent contact with the child, even when she lived with
grandmother. Even after the child was placed with J.C., he only called the child
sporadically, four or five times between the placement and the custody hearings. He
only visited the child twice, and he had no real bond with her. He claimed to have
spent substantial amounts of time with the child when she lived with grandmother,
but the juvenile court did not find that testimony to be credible. Matters as to the
credibility of evidence were for the trier of fact to decide. Davis v. Flickinger, 77
Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997); In re Z.H., 1st Dist. Hamilton Nos. C-
150305 and C-150301, 2015-Ohio-3209, ¶ 10.
{¶32} Competent, credible evidence supported the juvenile court’s decision
to grant custody to J.C. Consequently, we cannot reverse that decision as being an
abuse of discretion. In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008,
2017-Ohio-1431, at ¶ 30.
ICPC Precludes Placement with Father
{¶33} Additionally, the Interstate Compact for the Placement of Children
(“ICPC”), as adopted by R.C. 5103.20, precludes placement with father. Under
Article VI, Section B, when an Ohio agency requests that another state, the receiving
state, perform a local assessment or home study, and the receiving state does not
approve the placement, “the child shall not be placed.” There is no right to judicial
review in Ohio, the sending state. In the Matter of B.L., 2018-Ohio-547, 105 N.E.3d
379, ¶ 21 (12th Dist.). But any “interested party” has a right to seek judicial review
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OHIO FIRST DISTRICT COURT OF APPEALS
through procedures in the receiving state. ICPC, Article VI, Section C; In re B.L. at ¶
21.
{¶34} The state of Washington did not approve the placement primarily
because of father’s lack of a relationship with his daughter. Father argued below that
Washington’s determination was based only on the word of caseworkers from
HCJFS. But he never appealed the denial in the state of Washington, and the Ohio
court had no jurisdiction to review it.
{¶35} Father also relied on an exception set forth in ICPC, Article III, Section
(B)(4), which states that the “provisions of this compact shall not apply to * * * [t]he
placement of a child with a non-custodial parent” provided that (1) the noncustodial
parent proves to the satisfaction of a court in the sending state a substantial
relationship with the child; (2) the court in the sending state makes a written finding
that placement with the noncustodial parent in in the best interests of the child; and
(3) the court in the sending state dismisses its jurisdiction in the child’s case.
{¶36} None of these conditions apply in this case. Father specifically
admitted that he did not have a substantial relationship with the child. The court did
not find it was in the child’s best interest to place the child with father, and it did not
dismiss jurisdiction. Consequently, the juvenile court was precluded from placing
the child with father. We, therefore, overrule father’s assignment of error and affirm
the juvenile court’s judgment.
Judgment affirmed.
MYERS and BERGERON, JJ., concur.
Please note:
The court has recorded its own entry this date.
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