[Cite as In re A.S., 2010-Ohio-4873.]


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

IN THE MATTER OF:                :
                                 : Case Nos. 10CA16
A.S.                             :           10CA17
                                 :           10CA18
Adjudicated Abused, Neglected,   : Released: September 30, 2010
and Dependent Child.             : DECISION AND JUDGMENT
                                 : ENTRY
_____________________________________________________________
                           APPEARANCES:

James A. Wallace, Athens, Ohio, for Appellant Anthony Spears.

David G. Baer, Athens, Ohio, for Appellant Sarah Jeric.

William B. Biddlestone, Athens, Ohio, for Appellants George Spears and
Nancy Spears.

C. David Warren, Athens County Prosecuting Attorney, and Myca S.
Haynes, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Appellee, Athens County Children Services.
_____________________________________________________________

McFarland, P.J.:

        {¶1}       Appellants, Anthony Spears and Sarah Jeric, mother and

father of A.S., and George and Nancy Spears, grandfather and step-

grandmother of A.S., appeal the decision of the Athens County Court of

Common Pleas, Juvenile Division. The trial court terminated Anthony

Spears and Sarah Jeric's parental rights, denied the custody request of

George and Nancy Spears, and awarded permanent custody of A.S. to
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      2


Athens County Children Services. Because there was clear and convincing

evidence that A.S’s best interests required a legally secure placement with

Children Services, we affirm the trial court's decision and overrule the

appellants assignments of error.

                                   I. Facts

      {¶2}    A.S., born in March 2008, is the biological child of appellants

Anthony Spears and Sarah Jeric. Both Anthony Spears and Sarah Jeric have

a substantial and continuing history of drug abuse. In 2005, Spears was

convicted of felony possession of cocaine. And due to Jeric’s substance

abuse during her pregnancy, A.S. was born addicted to opiates. After birth,

A.S. remained in the hospital for several weeks for treatment before being

placed in foster care. He has had continuing related health issues. At the

time of the permanent custody hearing at issue in this case, both Anthony

Spears and Sarah Jeric were incarcerated due to drug offenses and other

offenses.

      {¶3}    In April 2008, shortly after A.S.’s birth, Athens County

Children Services obtained an ex parte emergency custody order for A.S.

and another child of Anthony Spears, J.S. Children Services also filed a

complaint seeking to have A.S. and J.S. adjudicated dependant children.

After holding a hearing on temporary custody, the Athens County Juvenile
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      3


Court continued the emergency custody order and scheduled an adjudication

hearing. On the same day of the custody hearing, Anthony Spears and Sarah

Jeric were stopped by police while returning from a methadone clinic in

West Virginia. Police found 43 bindles of heroin in the car and $1200 in

cash. Subsequent to the emergency custody hearing, George and Nancy

Spears, as grandfather and step-grandmother, filed a motion to intervene and

a motion for custody of both A.S. and J.S.

      {¶4}     The trial court subsequently found A.S. to be an abused,

neglected, and dependent child. The court awarded temporary custody of

A.S. to Children Services in September 2008 and Children Services has

retained custody since that decision. The trial court also found J.S. to be a

dependent child. Anthony Spears and George and Nancy Spears appealed

the decision as to J.S., but not as to A.S. We reversed the trial court's

decision and remanded the case in In re J.S., 4th Dist. No. 08CA26, 2009-

Ohio-1621 and In re J.S., 4th Dist. No. No. 08CA27, 2009-Ohio-1622. On

remand, the trial court found J.S. was not dependent and dismissed the case.

      {¶5}     The trial court subsequently held multiple review hearings on

the matter. After each hearing, the court continued temporary custody and

determined that Children Services had made reasonable efforts by providing

case management, foster care, visitation and referrals. In September 2009,
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      4


Children Services moved to modify disposition to permanent custody of

A.S. Anthony Spears and Sarah Jeric both contested the motion.

      {¶6}      After a full hearing on the motion for permanent custody, in

which all parties were represented by counsel, the trial court terminated the

parental rights of Anthony Spears and Sarah Jeric and awarded permanent

custody of A.S. to Children Services. Further, George and Nancy Spears’

motion for custody was denied. Following that decision, Anthony Spears,

Sarah Jeric, and George and Nancy Spears, each filed an appeal. We sua

sponte consolidated their appeals and consider them together below.

                          II. Assignments of Error
Anthony Spears’ Assignment of Error
      THE TRIAL COURT’S DETERMINATION THAT GRANTING
      PERMANENT CUSTODY OF A.S. TO ATHENS COUNTY
      CHILDREN SERVICES IS IN HIS BEST INTEREST WAS NOT
      SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
George and Nancy Spears’ Assignment of Error
      THE TRIAL COURT ERRED BY NOT PLACING AS [sic] WITH
      HIS PATERNAL GRANDPARENTS, VIOLATING APPELLANTS
      [sic] RIGHTS PURSUANT TO THE OHIO AND UNITED STATES
      CONSTITUTIONS.

Sarah Jeric’s Assignment of Error

      THE TRIAL COURT ERRED BY NOT PLACING A.S. WITH HIS
      PATERNAL GRANDPARENTS, GEORGE AND NANCY
      SPEARS, THEREBY VIOLATING APPELLANT’S RIGHTS
      PURSUANT TO THE OHIO AND UNITED STATES
      CONSTITUTIONS AND THE OHIO REVISED CODE.
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                        5


                  III. Anthony Spears’ Assignment of Error

      {¶7}     An appellate court will not overrule a trial court’s decision

regarding permanent custody if there is competent and credible evidence to

support the judgment. In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-

1429, at ¶8. “If the trial court’s judgment is supported by some competent,

credible evidence going to all the essential elements of the case, an appellate

court must affirm the judgment and not substitute its judgment for that of the

trial court.” In re Buck, 4th Dist. No. 06CA3123, 2007-Ohio-1491, at ¶7.

Therefore, an appellate court’s review of a decision to award permanent

custody is deferential. McCain at ¶8.

      {¶8}     “An agency seeking permanent custody bears the burden of

proving its case by clear and convincing evidence.” In re Perry, 4th Dist.

Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶13. Clear and convincing

evidence has been defined as “[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 criminal cases. It does not mean clear and

unequivocal.” McCain at ¶9, citing In re Estate of Haynes (1986), 25 Ohio

St.3d 101, 103-04, 495 N.E.2d 23.
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      6


      {¶9}     In his sole assignment of error, Anthony Spears argues that

the trial court's decision to award permanent custody of A.S. to Children

Services was not supported by clear and convincing evidence. Accordingly,

we first state the appropriate test a trial court must apply in ruling on a

motion for permanent custody.

      {¶10} Under R.C. 2151.414(B)(1), an agency seeking permanent

custody must meet a two-part test before parental rights may be terminated

and permanent custody awarded. In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532, at ¶31. First, one or more of conditions listed

in R.C. 2151.414(B)(1)(a) through (d) must apply:

      {¶11} “(a) The child is not abandoned or orphaned, has not 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 the child cannot be placed with either of

the child’s parents within a reasonable time or should not be placed with the

child’s parents.

      {¶12} (b) The child is abandoned.

      {¶13} (c) The child is orphaned, and there are no relatives of the

child who are able to take permanent custody.
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      7


      {¶14} (d) 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 * * * .”

      {¶15} An agency seeking permanent custody must also demonstrate

by clear and convincing evidence that such action is in the best interest of

the child. R.C. 2151.414(D) sets forth the factors a court must consider in

the best interest analysis:

      {¶16} “(a) The interaction and interrelationship of the child with the

child’s parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the child;

      {¶17} (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;

      {¶18} (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
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                         8


2151.413 of the Revised Code, the child was previously in the temporary

custody of an equivalent agency in another state;

      {¶19} (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;

      {¶20} (e) Whether any of the factors in divisions (E)(7) to (11) of

this section apply in relation to the parents and child.”

      {¶21} Divisions (E)(7) to (11) include: (7) whether the parent has

been convicted of a number of listed offenses; (8) whether the parent has

repeatedly withheld medical treatment or food; (9) whether the parent has

placed the child at substantial risk of harm two or more times due to

substance abuse and has rejected treatment two or more times or refused to

participate in treatment; (10) whether the parent has abandoned the child;

(11) whether the parent has had parental rights previously terminated.

      {¶22} Thus, to terminate parental rights and award permanent

custody, a trial court must find that both parts of the two-part test under R.C.

2151.414 have been established. In the case sub judice, it is undisputed that

the first part of the test was met. When the motion for permanent custody

was filed, A.S. had been in the temporary custody of Children Services for

more than twelve months of a consecutive twenty two month period. As
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                        9


such, R.C. 2151.414(B)(1)(d) applies. Accordingly, our analysis shifts to

the other prong of the permanent custody test, whether or not permanent

custody is in the best interest of the child.

      {¶23} In his brief, Anthony Spears alleges that the court gave “scant

attention” to section R.C. 2151.414(D)(1)(a), regarding the child's

interactions with relatives and caregivers, and section R.C.

2151.414(D)(1)(d), regarding the need for a legally secure placement. We

strongly disagree with this assertion. The trial court's decision clearly shows

that it fully engaged in the required best interest analysis. The court first

cited the relevant Revised Code sections, R.C. 2151.414(D)(1)(a) through

(e), and then analyzed each section as it pertains to the current matter. As to

R.C. 2151.414(D)(1)(a), the court stated the following:

      {¶24} “A.S. has seen little of his parents due primarily to their

incarcerations, sporadic visitations; and unfitness to care for him. He has

half siblings on his biological father's side, but only sees a half-brother

named [J.S.] under supervised or monitored situations. An attempt was

made to allow A.S. and [J.S.] to live together in foster care at a time when

[J.S.] was also in the temporary custody of [Children Services]. [J.S.] was,

however, removed from that home due to rage-like behaviors and

threatening actions toward A.S. The paternal grandparents now have
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                       10


custody of [J.S.] and visit regularly with A.S., often bringing [J.S.] to said

visits. Those visits are reported to be pleasant. A.S. enjoys a well-bonded

relationship with the foster family where he has lived since his eventual

release from the hospital after his birth.”

      {¶25} The court stated the following regarding 2151.414(D)(1)(d):

      {¶26} “A.S. needs and deserves a legally secure placement which

can only be achieved by a termination of parental rights and an award of

permanent custody to [Children Services]. The paternal grandparents

request that they be awarded custody of A.S. They have, over the years, had

custody of their own children and children of various relatives. They clearly

love A.S. and would spend as much time with him as they were allowed.

They are currently capable of meeting his basic physical needs and

reasonable expenses. However, numerous factors convince the Court that

A.S.’s best interests would be served by placing for adoption elsewhere.

[Emphasis added.]

      {¶27} George and Nancy Spears have been criticized at various

times in this case by different sources. It is clear that [Children Services]

does not think it appropriate to place A.S. with them and opposed this

Court's earlier decision to allow then [sic] custody of [J.S.]. Melanie Dawn

Spears (mother of [J.S.]) also speaks negatively of the [sic] George and
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                        11


Nancy Spears but acknowledges that she has a criminal past and is trying to

gain custody of [J.S.] from them. A.S.’s mother has taken polar opposite

positions in this case, once willing to expose all the damning information on

the family and then reversing field to support their effort for custody. As in

any case, the trier of fact weights the credibility.

      {¶28} It is undisputed that George Spears has a relatively recent

felony conviction in this county for obstructing official business, a bargained

result of an indictment for drug trafficking. It is also undisputed that

Anthony Spears, the father in this proceeding, has regularly returned to the

home of George and Nancy Spears to live at various times in his adult life.

Half-sibling [J.S.] has spent much of his life in the home of George and

Nancy Spears, sometimes with his father also there and sometimes without.

The length and extent of the bonding between [J.S.] and George and Nancy

Spears was a major factor in this Court's ultimate decision to allow [J.S.] to

return to George and Nancy Spears’ custody. However, A.S. has never lived

with mother, father, or parental grandparents. He has always been in the

custody of [Children Services] and the safety of a foster family since his

release from the hospital. In light of his biological parents’ serious

shortcomings, the opportunity for him to be spared from the dysfunction,

now and possibly in the future, is an opportunity that we must provide this
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                         12


child. Both parents will be released from prison within a few years, and one

or both may well return to the home of the parental grandparents. While

there are good things to be said for family loyalty, this should not be the life

that lies ahead for A.S. The grandparents’ motion for custody is denied.”

      {¶29} In our view, the trial court's findings quoted above clearly

refute Anthony Spears’ allegation that the trial court preformed a “scant

analysis” of the relevant Revised Code sections. Further, our review of the

transcript of the permanent custody hearing shows that the trial court's

findings were fully supported by witness testimony and the other evidence

presented. Because A.S. had been in the temporary custody of Children

Services for more than twelve months of a consecutive twenty two month

period at the time of the permanent custody hearing, and because the trial

court had clear and convincing evidence that awarding permanent custody to

Children Services was in A.S.’s best interest, we overrule Anthony Spears’

sole assignment of error.

      {¶30} As to Anthony Spears’ argument regarding the proper

standard of review to be applied in permanent custody cases, we see no

inconsistency in our current standard of review and no reason to modify it.

We reiterate that a trial court’s decision must find that the movant met or did

not meet its burden by clear and convincing evidence. We then review the
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                          13


record to determine whether there was competent and credible evidence to

support the trial court's decision.

   IV. Sarah Jeric’s and George and Nancy Spears’ Assignment of Error

      {¶31} Whereas Anthony Spears’ assignment of error directly

challenges the trial court's best interest analysis, both Sarah Jeric’s and

George and Nancy Spears’ assignment of error is limited to whether the trial

court should have placed A.S. in the custody of George and Nancy Spears.

We review a trial court's decision to award or not award custody to an

extended family member under an abuse of discretion standard. In re Perry,

4th Dist. Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶63; In re A.C.,

12th Dist. No. CA2006-12-105, 2007-Ohio-3350, at ¶17. “Moreover,

relatives seeking the placement of the child do not have the benefit of the

presumptive rights afforded to a child's natural parents as a matter of law,

and the relative's willingness to care for the child does not alter the statutory

factors to be considered in granting permanent custody.” Perry at ¶64.

      {¶32} At the permanent custody hearing, the trial court heard an

abundance of evidence indicating that placing A.S. with George and Nancy

Spears would not constitute a legally secure placement. As the trial court

noted in its decision, George Spears was indicted for trafficking and felony

possession of cocaine and marijuana in 2007. As a result of a plea
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                       14


agreement, George Spears pleaded guilty to obstructing justice, a felony. He

is currently on probation for that offense. The court also heard the testimony

of Melanie Spears, J.S.’s biological mother, stating that she had witnessed

George Spears exchange pills for cash in his home.

      {¶33} Further, the court heard testimony that J.S., who is in the

custody of George and Nancy Spears and who resides at their home, exhibits

aggressive and hyperactive behavior. In the past, when he resided in foster

care, J.S.’s behavior worsened when A.S. was brought into the foster home.

The foster mother testified that on numerous occasions she was concerned

that J.S. would harm A.S. In one instance, she found J.S. standing over

A.S’s crib telling him to shut up or that he was going to kill him. If George

and Nancy Spears were granted custody of A.S., he would once again be

living with J.S.

      {¶34} Additionally, Anthony Spears testified that at some point in

the future he planned to put his family back together again and have A.S.

and J.S. live with him. Testimony indicated that if Children Services was

not awarded permanent custody, A.S. may be, upon Anthony Spears’ release

from incarceration, once again exposed to his father's continuing criminal

drug activity. As a trial court stated, “[i]n light of his biological parents’

serious shortcomings, the opportunity for [A.S.] to be spared from the
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                        15


dysfunction, now and possibly in the future, is an opportunity that we must

provide this child. Both parents will be released from prison within a few

years, and one or both may well return to the home of the paternal

grandparents. While there are good things to be said for family loyalty, this

should not be the life that lies ahead for A.S.”

      {¶35} As Sarah Jeric notes in her brief, granting legal custody to a

member of the child's extended family is preferred over granting custody to

a children services agency. But as Jeric also acknowledged, a trial court is

not required to favor relatives if, after considering all the relevant factors,

the court determines that a grant of permanent custody to the agency is in the

child's best interest. Perry at ¶64. As shown above, and as we concluded in

our analysis of Anthony Spears’ assignment of error, there was clear and

convincing evidence for the trial court in this matter to so determine.

Accordingly, we find the trial court did not abuse its discretion in deciding

not to award custody of A.S. to George and Nancy Spears. As such, Sarah

Jeric's and George and Nancy Spears’ assignments of error are also

overruled.

                                                   JUDGMENT AFFIRMED.
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      16


Kline, J., concurring.

      {¶36} I concur in judgment and opinion with the following

observation. In my view, the opinion should note that we assume without

deciding that Sarah Jeric has standing to assert her sole assignment of error

in Case Number 10CA18. See In re Hilyard, Vinton App. Nos. 05CA600,

05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608,

& 05CA609, at ¶40.
Athens App. Nos. 10CA16, 10CA17 and 10CA18                                      17


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellants costs herein taxed.

      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 Court of Common Pleas, Juvenile Division, 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.
Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion with Concurring Opinion.



                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland
                                           Presiding 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.
