[Cite as In re K.R., 2011-Ohio-5694.]




             IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

IN THE MATTER OF: K.R.                            :

                                                  :     C.A. CASE NO. 2011 CA
                                                        39

                                                  :          T.C.              NO.
                                                        2011-117

                                        : (Civil appeal from Common   Pleas Court,
Juvenile Division)
                                                  :

                                                  :

                                         ..........

                                        OPINION

                         Rendered on the         4th   day of       November     ,
2011.

                                         ..........

ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting
Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield,
Ohio 45501
      Attorney for Plaintiff-Appellee

THEODORE D. VALLEY, Atty. Reg. No. 0070867, 854 East Franklin Street,
Centerville, Ohio 45459
     Attorney for Defendant-Appellant

                                         ..........

FROELICH, J.

        {¶ 1} Appellant S.R. (Mother) appeals from a judgment of the Clark
                                                                             2

County Court of Common Pleas, Juvenile Division, which denied her

motion to place her child in the temporary custody of her cousin or

alternatively with either of the two friends that she recommended.         For

the following reasons, the judgment of the trial court will be Affirmed.

                                        I

      {¶ 2} On January 27, 2011, Family and Children’s Services of Clark

County (FCSCC) filed a complaint alleging that Mother’s newborn child,

K.R., was an abused and dependent child.       A shelter care hearing was

held, after which K.R. was placed in the temporary shelter care of

FCSCC, and a Guardian ad Litem (GAL) was appointed.

      {¶ 3} In February, 2011, the GAL filed a report recommending that

temporary custody of K.R. be granted to FCSCC.       The following month,

the GAL filed a more detailed report, recommending that FCSCC have

temporary custody of K.R. and that she remain in her current foster

home.   On March 15, 2011, K.R. was found to be a dependant child, and

she was placed in the temporary custody of FCSCC.

      {¶ 4} In April, 2011, Mother filed a motion requesting that K.R. be

placed in the temporary custody of either Mother’s cousin Jennifer R., or

one of her friends Angela K. or Amanda V., all of whom had passed home

studies conducted by FCSCC, and all of whom she alleged were
                                                                                                     3

appropriate and willing care givers for her child.1                               At this time the GAL

also filed a supplemental report.

        {¶ 5} The GAL filed an additional report prior to the May 9, 2011

hearing on Mother’s motion.                            The trial court concluded that it was in the

child’s best interest to remain in the temporary custody of FCSCC and to

stay in her current foster home rather than being moved to any of the

homes that Mother had recommended.                                          From this decision, Mother

appeals.

                                                                       II

        {¶ 6} Mother’s First Assignment of Error:

        {¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT’S MOTIONS.”

        {¶ 8} Mother’s Second Assignment of Error:

        {¶ 9} “THE TRIAL COURT’S DECISION REGARDING K.R.’S BEST

INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

        {¶ 10} Mother argues that the trial court abused its discretion in

denying her motion for placement of K.R. with one of the three

individuals that she proposed because the court’s conclusion that it was

in K.R.’s best interest to remain in the same foster home rather than

being moved into one of those three homes was against the manifest


  1
   For privacy reasons, we will only use first names and an initial.
                                                                                  4

weight of the evidence.

      {¶ 11} “If a child is adjudicated an abused, neglected, or dependent

child, the court may      [c]ommit the child to the temporary custody of a

public children services agency, a private child placing agency, either

parent, a relative residing within or outside the state, or a probation

officer for placement in a certified foster home, or in any other home

approved by the court.”        R.C. 2151.353(A)(2).       “In choosing among the

alternatives, the best interest of the child is the court’s primary

consideration.   In re L.C., Clark App. No. 2010 CA 90, 2011-Ohio-2066,

¶13, citations omitted.

      {¶ 12} The trial court retains jurisdiction over the child until she is

eighteen years old, during which time the court may amend its

dispositional    order    in    compliance      with     R.C.    2151.42.      R.C.

2151.353(E)(1) and R.C. 2151.417(B).            When a trial court reviews the

child’s   placement      or    custody,   the    court    “shall   determine   the

appropriateness of any agency actions, the safety and appropriateness of

continuing the child’s placement or custody arrangement, and whether

any changes should be made with respect to the child’s * * * placement

or custody arrangement.”           R.C. 2151.417(A).            In considering the

potential modification or termination of a dispositional order issued under

R.C. 2151.353, the court must consider the best interest of the child.

R.C. 2151.42(A).
                                                                               5

       {¶ 13} A trial court necessarily has substantial discretion in weighing

the considerations involved in making the determination regarding a

child's best interest, and the court’s determination will not be reversed

absent an abuse of that discretion.            In re K.H., Clark App. No.

2009-CA-80, 2010-Ohio-1609, ¶66.          A trial court abuses its discretion

when    its   decision   is   “unreasonable,   arbitrary   or   unconscionable.“

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶ 14} “In assessing a manifest weight challenge in the civil context,

we will not reverse a judgment as being against the manifest weight of

the evidence where the judgment ‘is supported by some competent,

credible evidence going to all the essential elements of the case.’” In re

S.S., Montgomery App. No. 22980, 2008-Ohio-294, ¶47, quoting

Gevedon v. Ivey, 172 Ohio App.3d 567, 2007-Ohio-2970, ¶54, in turn

quoting C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279.

“[W]hen reviewing a judgment under a manifest-weight-of-the-evidence

standard, a court has an obligation to presume that the findings of the

trier of fact are correct.    * * * This presumption arises because the trial

judge had an opportunity ‘to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’ * * * ‘A reviewing

court should not reverse a decision simply because it holds a different

opinion concerning the credibility of the witnesses and evidence
                                                                           6

submitted before the trial court.      A finding of an error in law is a

legitimate grounds for reversal, but a difference of opinion is not.’” Id. at

¶48, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶24.

        {¶ 15} At the May 9, 2011 hearing on Mother’s motion, the trial

court heard testimony from Mother, two FCSCC workers, the GAL,

Jennifer R., Amanda V., Angela K., and Tommie C. (the legal guardian of

one of Mother’s other children, and sister to   Angela K.).   The trial court

also had before it the safety audit reports for the three homes

recommended by Mother and the four GAL reports.

        {¶ 16} The FCSCC case worker testified that there were no major

safety concerns with any of the three homes suggested by Mother and

suggested that K.R. be placed in one of those homes.           The primary

advantage of any of the homes was that the three potential care givers

were all willing and able to facilitate the development of a relationship

between K.R. and her half-brother, as well as with other relatives.

However, no visitations had been established between any of the three

recommended care givers and K.R. during the first few months of her

life.

        {¶ 17} The GAL’s reports indicate that she and the case worker

visited the homes of Jennifer R., Amanda V., and Angela K.      Jennifer was

not present for the first scheduled meeting; she called later in the day

and advised the case worker that she could not keep the scheduled
                                                                        7

interview because her son was home.       A later visit was scheduled at

which time the GAL learned that Jennifer had lived in their home, which

was in need of repairs, for ten years.      Jennifer is unemployed and

supports her family with child support money that she receives for her

three children and food stamps.     Jennifer had a previous relationship

with a man who had recently been released from prison.      When asked

about the relationship, “she became very agitated and refused to give

CASA any information about him.”      Jennifer has a 2006 conviction for

driving without a license.

      {¶ 18} The GAL described Amanda V.’s home as dirty, unsafe, and

overcrowded, without the financial resources necessary to be able to add

K.R. to the household.       Amanda was unemployed at that time and

supported her family with welfare and the social security benefits of her

seven-year-old, whose father died.    By the time of the May 9, 2011,

hearing, however, Amanda reported that she was employed.        Amanda

had prior involvement with FCSCC for a neglect screening in 1997.     In

2000, she was charged with two counts of child endangering and was

convicted of one count of disorderly conduct.

      {¶ 19} The GAL reported that Angela K. works part-time.   Although

Angela’s five-bedroom home is large enough to have room for K.R., the

baby’s room would be located far from Angela’s.    There was also some

concern that while Angela’s bedroom contained a bed, the other four
                                                                          8

bedrooms had only mattresses on the floor.     More importantly, however,

neither of Angela’s adult roommates was home, so they were unable to

sign releases of information.   By the time of the hearing, it appears that

one of the adult roommates and her two children had moved out of the

home.    In 2000, Angela was charged with failure to display a dog

license, two counts of failure to control her dog, and failure to obey a

health department ordinance; she was found guilty by waiver.

      {¶ 20} In all four of the GAL’s written reports, she recommended

that K.R. be in the temporary custody of FCSCC and remain in the foster

home in which she had been placed since birth, where she was doing

very well.   The GAL expressed concern that while both Amanda and

Angela explained that they wanted to keep K.R. out of foster care,

neither of the women expressed a desire to “love, nurture, and provide

the best life for” K.R.     Nor had either woman “had any kind of

relationship with [Mother] or her family for years.”

      {¶ 21} In its decision, the trial court found that “while any of the

three (3) proposed custodians may be [able] to meet the needs of the

child, the child’s best interest would be served by remaining in the

temporary custody of FCSCC with placement in the current foster home.”

 The court explained that the child is an infant who “has no relationship

with her mother, father, or any relatives.    * * *    The only family that

the child knows is her foster parents.”
                                                                             9

      {¶ 22} The trial court further stated that “it is agreed by all parties

that the child is safe, secure, and well cared for in her current placement.

 Her foster parents have provided for her many needs.          The testimony

clearly indicates that the child is well served and blessed to be in a loving

and appropriate foster home, at this time in her life.           There is no

justification offered to remove the child from placement where she is well

cared for.    It is clearly in the best interest of this child to remain in the

home, which she has known, since her removal from the home of her

parents.     It is not in her best interest to be removed from the only

‘family’ that she knows, and to place her with people that have had no

interaction or relationship with her.   Simply yanking a child from the only

home that she knows, to place her with a friend of the mother, would not

serve her needs or be in her best interest.”

      {¶ 23} Thus, the court concluded that “the motion of the mother for

an order granting legal custody of her child to strangers and/or distant

relatives is not in the best interest of the child.   Considering all relevant

factors the child is well served by remaining in the home where she

resides, and remains in her best interest to stay there.”

      {¶ 24} The trial court’s decision was based upon competent, credible

evidence; the decision was not against the manifest weight of the

evidence, and the trial court did not abuse its discretion in concluding

that it was in K.R.’s best interest to remain in the temporary custody of
                                                                        10

FCSCC and to stay in the same foster home where she had lived since

birth, and where she was thriving, rather than to be moved to the home

of a relative or family friend with whom she had experienced no previous

contact.

      {¶ 25} Mother’s first and second assignments of error are overruled.

                                           III

      {¶ 26} Mother’s assignments of error having been overruled, the

judgment of the trial court is Affirmed.

                               ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Andrew R. Picek
Theodore D. Valley
Hon. Joseph N. Monnin
