[Cite as In re R.Mc., 2018-Ohio-1260.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     ATHENS COUNTY


IN RE R.Mc.,                          :    Case No. 17CA40
                                      :
                                      :    DECISION AND
ADJUDICATED NEGLECTED AND             :    JUDGMENT ENTRY
DEPENDENT CHILD.                      :
                                      :    RELEASED: 03/29/2018
____________________________________________________________
                            APPEARANCES:

David J. Winkelmann, Millfield, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders,
Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
____________________________________________________________
Harsha, J.

        {¶1}    The mother appeals the trial court’s decision granting permanent custody

of her child to Athens County Children Services (“the agency”); she contends that the

trial court erred when it failed to find by clear and convincing evidence that kinship

placement with the maternal grandmother was unsuitable prior to awarding permanent

custody. The mother acknowledges that under Ohio law, a trial court is not required to

find by clear and convincing evidence that kinship placement is unsuitable. However,

she argues for a change in the evidentiary standard in order to preserve some aspect of

a parent’s right to care and custody of the child and to preserve sibling relationships.

However, the Supreme Court of Ohio has already considered this issue and has ruled

that, under the relevant statutory provisions, a trial court has no duty to find by clear and

convincing evidence that no suitable kinship placement was available in order to award

permanent custody to an agency. Thus any change in the standard will have to come

from that court or the legislature.
Athens App. No. 17CA40                                                                      2


       {¶2}   We overrule the mother’s assignment of error and affirm the trial court’s

judgment.

                             I. FACTS & PROCEDURAL HISTORY

       {¶3}   The agency filed a dependency complaint and motion requesting

temporary custody of R.Mc. due to concerns over the mother’s substance abuse and

overall instability. R.Mc.’s father is currently serving an extended prison term and was in

prison during all relevant times. The trial court adjudicated R.Mc. a neglected and

dependent child and granted the agency temporary custody. The agency filed a motion

for permanent custody after the mother failed to address her substance abuse issues. In

response, the mother filed a motion asking the trial court to grant legal custody to

R.Mc.’s maternal grandmother.

       {¶4}   In a permanent custody hearing in October 2017 the agency presented

testimony about efforts to reunify the family, as well as possible placement with various

relatives. A social worker who had been counseling R.Mc. testified that the child was

fearful of the maternal grandmother because she had hit R.Mc., splitting the child’s lip,

and that the child had stated a preference to live with the foster parents. A kinship

caseworker testified that she investigated R.Mc.’s maternal grandmother for possible

kinship placement but she had a number of concerns, including the grandmother’s own

long history with the agency involving neglect allegations.

       {¶5}   On cross-examination the grandmother admitted that she had past

involvement with the agency involving her own children and neglect allegations. The

grandmother admitted that she had hit R.Mc. and split the child’s lip after the child had

surprised her by coming up behind her.
Athens App. No. 17CA40                                                                       3


       {¶6}   The trial court found that it was in the best interest of the child to terminate

parental rights and grant permanent custody to the agency. The trial court denied the

mother’s motion to grant legal custody to the maternal grandmother and ordered that

R.Mc. be placed in the agency’s permanent custody, thus terminating the mother and

father’s parental rights.

                                  II. ASSIGNMENT OF ERROR

       {¶7}   The mother raises one assignment of error:

       I.     THE TRIAL COURT ERRED IN FAILING TO FULLY CONSIDER
              KINSHIP PLACEMENT WITH [R.Mc.’S] MATERNAL
              GRANDMOTHER UNDER A CLEAR AND CONVINCING
              STANDARD.


                                          III. ANALYSIS

                      A. THE STANDARD OF REVIEW WHEN
                DETERMINING SUITABILITY OF KINSHIP PLACEMENT

       {¶8}   The mother argues that the trial court erred when it failed to consider

kinship placement and find by clear and convincing evidence it was unsuitable. She

acknowledges that Ohio courts do not require the trial court to use a “clear and

convincing” standard in deciding whether kinship placement is unsuitable, citing In re

Dyal, 4th Dist. Hocking No. 01CA11, 2001 WL 925379 (Aug. 9, 2001). However, she

contends that the standard should be changed because placement with a relative will

preserve the right of a parent to the care and custody of their child and preserve sibling

relationships. In essence, she asks that we overturn both Dyal and the Supreme Court

of Ohio case law.

       {¶9}   In Dyal a maternal grandmother contended that the trial court erred in

determining that placement with her was unsuitable and awarding permanent custody of
Athens App. No. 17CA40                                                                      4

the child to the agency. Although some of the language in Dyal, supra may seem to

assert the trial court need not even consider kinship placement, that is not the holding of

the case. Indeed, when read in its entirety Dyal makes it clear that although kinship

placement may be relevant, the statute does not require the court to find it unsuitable by

clear and convincing evidence before rejecting such a placement. We held, “In other

words, a juvenile court need not find, by clear and convincing evidence, that a relative is

an unsuitable placement option prior to granting the permanent custody request.” Id. at

*4.

       {¶10} Several years after Dyal, the Supreme Court of Ohio addressed this issue

and likewise concluded that the relevant statute does not require the juvenile court find

by clear and convincing evidence that no suitable relative is available for placement

when deciding an agency’s motion for permanent custody. In In re Schaefer, 111 Ohio

St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64, the Supreme Court concluded:

        The statute requires a weighing of all relevant factors * * * . R.C.
       2151.414 requires the court to find the best option for the child once a
       determination has been made pursuant to R.C. 2151.414(B)(1)(a) through
       (d). The statute does not make the availability of a placement that would
       not require a termination of parental rights an all-controlling factor. The
       statute does not even require the court to weigh that factor more heavily
       than other factors.

Thus the appellate court in Schaefer had erred in determining that the trial court should

have required the agency “to present clear and convincing evidence that no suitable

relative was available for placement.” Accordingly, the Supreme Court reversed the

judgment of the appellate court and reinstated the judgment of the trial court. Id. at ¶ 27,

66.
Athens App. No. 17CA40                                                                     5


       {¶11} Although possible kinship placement and sibling relationships are factors

relevant to the court’s best interest determination, the statute does not require a court to

find by a “clear and convincing standard” that no suitable relative is available before

awarding custody to the agency. See R.C. 2151.414(D); In re M.O., 4th Dist. Ross No.

10CA3189, 2011-Ohio-2011, ¶ 13, citing In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532. We decline the mother’s invitation to judicially craft such a

standard into the statute and reject our highest court’s precedent. See In re Grand Jury

Subpoena Duces Tecum Directed to the Keeper of Records of My Sister’s Place, 4th

Dist. Athens No. 01CA55, 2002-Ohio-5600, ¶ 22 (“By and large, courts of appeal in

Ohio function in an error correction capacity. We leave the creation of public policy to

the legislature and the Supreme Court.”).

       {¶12} Accordingly, we overrule the mother’s assignment of error and affirm the

trial court's judgment.

                                                                 JUDGMENT AFFIRMED.
Athens App. No. 17CA40                                                                     6


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Juvenile Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.



                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
