[Cite as In re T-G.M., 2011-Ohio-3940.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

IN RE: T-G.M.                                           C.A. No.     25858
       T.M.

                                                        APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
                                                        COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
                                                        CASE Nos. DN 09-03-236
                                                                   DN 09-03-237

                                DECISION AND JOURNAL ENTRY

Dated: August 10, 2011



        MOORE, Judge.

        {¶1}    Father, Tyrone M., appeals from a judgment of the Summit County Court of

Common Pleas, Juvenile Division, that terminated his parental rights to his minor children, T-

G.M. and T.M., and placed them in the permanent custody of Summit County Children Services

Board (“CSB”). This Court affirms.

                                                 I.

        {¶2}    Andressa C. (“Mother”) and Tyrone M. (“Father”) are the parents of T-G.M.,

born April 9, 2007, and T.M, born March 27, 2008. Mother voluntarily surrendered her parental

rights to the children and filed an appellate brief in support of the trial court judgment. Father

has appealed to this Court, challenging the trial court’s termination of his parental rights and its

denial of legal custody to the paternal grandparents.

        {¶3}    CSB initially became involved with the family on March 16, 2009 after the

paternal grandfather called the police to his home because of a physical confrontation between
                                               2


Mother, who was holding T.M. in her arms, and the children’s paternal uncle. The police

removed both children pursuant to Juv.R. 6 and notified CSB. The following day, CSB filed

complaints in juvenile court and obtained emergency temporary custody of the children.

        {¶4}   On April 24, 2009, the children were adjudicated dependent and placed in the

temporary custody of the agency. The initial case planning goal was reunification. At that time,

Father was already attending anger management and domestic violence classes through an

existing probation requirement and was asked to continue those. He was also asked to engage in

parenting classes, drug counseling and drug screens, mental health counseling, and to seek

employment. Mother was to engage in mental health counseling and avoid abusive relationships.

After she tested positive for marijuana, a chemical dependency component was added to her case

plan.

        {¶5}   During the ensuing two years, the children remained in foster care. Father was

incarcerated for much of that time. Mother attempted to work on her case plan, but ultimately

surrendered her parental rights. CSB approved two sets of relatives for placement, but those

relatives eventually decided that they were unable to provide long-term care for these young

children.

        {¶6}   Father moved for custody in himself or with the paternal grandparents. On

September 3, 2010, CSB moved for permanent custody of both children. Following a hearing on

these motions, the trial court granted permanent custody of the children to CSB. Father appeals

and assigns two errors for review.

                                              II.

                                ASSIGNMENT OF ERROR I

        “THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY IS
        AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
                                                 3


                                 ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       DENYING FATHER’S MOTION FOR LEGAL CUSTODY OF THE
       CHILDREN TO [PATERNAL GRANDPARENTS].”

       {¶7}    Father contends that the trial court erred in finding that the weight of the evidence

supported a grant of permanent custody to the agency, and he also contends that the trial court

erred in denying his motion for legal custody to the paternal grandparents. Because these

arguments are legally and factually related, this Court will address them together.

       {¶8}    Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that

the child cannot be placed with either parent within a reasonable time or should not be placed

with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of

permanent custody to the agency is in the best interest of the child, based on an analysis under

R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S.

(1996), 75 Ohio St.3d 95, 99.

       {¶9}    The trial court found that the first prong of the permanent custody test was

satisfied because the children had been in the temporary custody of CSB for at least 12 of the

prior 22 months. The trial court also found that the children could not or should not be returned

to the custody of either parent in that Father failed to complete his case plan objectives and is in

prison, and Mother believes permanent custody is in the children’s best interests. Father does

not contest either first prong finding, but rather challenges the second prong finding that it was in

the best interest of the children to be placed in the permanent custody of the agency.
                                                  4


       {¶10} That permanent custody is in the best interest of the child must be established by

clear and convincing evidence. Clear and convincing evidence is that which will “produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In

re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161

Ohio St. 469, paragraph three of the syllabus.

       {¶11} This Court has previously held that the appropriateness of legal custody

essentially invokes consideration of the same factors as a determination of the best interest of the

child for purposes of a permanent custody decision. See In re S.S., 9th Dist. No. 23859, 2007-

Ohio-7046, at ¶13, citing In re S.N., 9th Dist. No. 23571, 2007-Ohio-2196, at ¶27 and R.C.

2151.414(D).

       {¶12} Father cites In re S.S. in support of his position that he has standing to challenge

the denial of his motion for legal custody to relatives, but he also claims that our decision in In re

C.D., 9th Dist. No. 22250, 2005-Ohio-158, at ¶7, is inconsistent with that position. In In re C.D.,

we merely emphasized that the parent has standing to challenge a trial court’s decision denying

legal custody to a relative and granting permanent custody to an agency for the reason that such a

decision affects the parent’s residual rights. Id. We address this matter only to conclude that we

find no inconsistency in our precedent insofar as it applies to the case before us.

       {¶13} The issues of denying legal custody to a relative and granting legal custody to an

agency are really two sides of the same coin. As stated above, the best interest considerations for

both are essentially the same. If a court finds that it is in the best interest of the child to be

placed in the permanent custody of an agency, then it is not in that child’s best interest to be

placed in the legal custody of a relative. As even Father makes clear in his appellate brief, much

of his argument regarding the failure to grant legal custody is a reiteration of his argument
                                                5


regarding the granting of permanent custody. Consequently, this Court will review the factors

set forth in R.C. 2151.414(D) in reviewing the decision of the trial court regarding the granting

of permanent custody to CSB and the denial of legal custody to the paternal grandparents.

       {¶14} When determining whether a grant of permanent custody is in a child’s best

interest, the juvenile court must consider all the relevant factors, including those enumerated in

R.C. 2151.414(D): the personal interaction and interrelationships of the children, the wishes of

the children regarding placement, the custodial history of the children, and whether there are any

appropriate alternatives to permanent custody. See In re R.G., 9th Dist. Nos. 24834 & 24850,

2009-Ohio-6284, at ¶11. “Although the trial court is not precluded from considering other

relevant factors, the statute explicitly requires the court to consider all of the enumerated

factors.” In re Smith (Jan. 2, 2002), 9th Dist. No. 20711, at *3. See, also, In re Palladino, 11th

Dist. No. 2002-G-2445, 2002-Ohio-5606, at ¶24.

       {¶15} The first best interest factor calls for a consideration of the personal interactions

and interrelationships of the children. The two children were said to share a definite bond. They

had been together their entire lives, either with their parents or in foster care. When they first

came into care, the children were described by the caseworker as “withdrawn, sort of lifeless.”

According to her, they did not seem to know how to play with toys and did not speak. They

would go with anyone and did not cry when their parents left. T.M. would scream because it

was his only means of communicating.

       {¶16} Developmental assessments were conducted, and each child was provided with

occupational, physical, and speech therapy on a regular basis. The caseworker explained that the

children have made gradual improvements. They have learned to play with toys, have started to

smile, have begun eating better, and seem a little happier. At the time of the permanent custody
                                                  6


hearing, the caseworker said the children show affection to others and try to communicate within

a limited vocabulary, but are not yet potty-trained and still do not speak very well. T.M. has

stopped screaming.

       {¶17} Father was given a case plan and was able to visit with the children for two

months until he was incarcerated. He was also incarcerated at the time of the permanent custody

hearing in February 2011. Father’s criminal history includes domestic violence against Mother

when she was nine months pregnant with T.M. on March 11, 2008, and the violation of a civil

protection order the following day. In December 2008, Father pled guilty to burglary, escape,

domestic violence, and violating a protection order, and in July 2009, he pled guilty to additional

counts of domestic violence and violating a protection order. For these latter two cases, he was

sentenced to a total term of incarceration of three years. He was expected to be released from

prison on April 3, 2012. The guardian ad litem stated that the children have had very little

contact with Father since the case began and that they have little memory of him.

       {¶18} Early in the proceedings, Mother sought reunification with her children, but by

the time of the permanent custody hearing, she decided to relinquish her parental rights. Mother

testified that she believed it would be in the children’s best interest to be adopted by a family that

could love them and provide for them financially, emotionally, psychologically, and spiritually

in a way that she could not. She testified that she would like to have the ability to continue to see

her children, but preferred that the children be adopted by an unrelated family than be placed

with the parental grandparents.

       {¶19} Mother opposed placement with the paternal grandparents because she believes

they repeatedly ignored Father’s aggression against her while they lived in the grandparents’

home. At the permanent custody hearing, Mother testified that Father would yell, scream, and
                                                7


strike her in the face on a daily basis, and that the children were often present to observe that

behavior. Mother explained that the abuse usually took place while the paternal grandmother

was working, the paternal grandfather was in his room, and Father’s two brothers were playing

video games, but she believed they nevertheless knew the abuse was taking place.

       {¶20} The paternal grandparents disputed this testimony and claimed that they had not

observed much of the abuse that Mother says she suffered while living in their home. At the

same time, the paternal grandmother admitted that her husband had told her about some of it. It

is undisputed that the parents had a history of domestic violence and some of it took place in the

home of the paternal grandparents.

       {¶21} Moreover, in terms of the ability of the grandparents to provide for the children’s

care and safety, it may be important to note that the paternal grandparents claim to have been

unaware of much about the troubled relationship between Mother and Father. The paternal

grandmother was not aware that any problems existed between the couple before they came to

live in their home. For example, she was unaware of her son’s domestic violence conviction

from March 2008. Also, neither of the paternal grandparents was aware of the protective order

that existed between the couple while they were living together in the paternal grandparents’

home prior to Father’s arrest. Subsequently, the paternal grandmother testified that she believed

the protective order was issued only because of verbal arguments and that her son had never been

physically violent. The paternal grandfather testified that he did not understand why the children

were removed from the home, although he was the one who called the police to his home at the

beginning of this case.

       {¶22} The paternal grandparents inquired about placement early in the proceeding, but

the agency denied their request due to concerns about the conflicts in the home and the paternal
                                                 8


grandparents’ ability to protect the children. The record reflects justification for these concerns.

Father, who had a history of domestic violence and was currently incarcerated, had lived in the

home with them, and another son was the subject of an arrest warrant. On at least two occasions,

the paternal grandfather called the police to his home because of violent incidents involving his

sons.

        {¶23} After the other potential relatives withdrew from consideration, Father requested

consideration of the paternal grandparents as custodians by filing a motion for legal custody to

them. Their home was reassessed by CSB shortly before the permanent custody hearing. Both

grandparents testified that they would like to have custody of the children and expressed concern

for them. The paternal grandmother testified that she loved the children and that she was

financially and otherwise able to provide for them. Both of the grandparents claimed that they

would bar Father from their home upon his release from prison, if the court so ordered.

        {¶24} The agency recommended against granting custody to the grandparents. In part,

the agency felt their relationship with the children was not strong enough. According to the

caseworker, the paternal grandfather had not seen the children for years, and the paternal

grandmother had only minimal contact with them, generally during visits at her sister’s home.

For his part, the paternal grandfather stated that he last saw the children shortly after Christmas.

He did not report additional visits. The paternal grandmother testified that she joined her son at

one or two visits before he was incarcerated and then saw the children four to six times during

visits held at her sister’s home.      In addition, the record demonstrates that the paternal

grandparents did not volunteer themselves to assume custody at a meeting held in August 2010

convened to solicit relative placement options, and that they failed to attend any juvenile court

proceedings until the permanent custody hearing in February 2011.
                                                 9


       {¶25} Father argues that the paternal grandparents were not given a sufficient

opportunity to visit with the children as they were denied regular visitation early in the

proceedings. The caseworker explained, through her testimony, that independent visits by the

paternal grandparents were denied because Father had accompanied the paternal grandmother on

a few early visits, and the agency was concerned that a reminder of his volatile relationship with

Mother could cause the children to regress.

       {¶26} In addition to questions about the paternal grandparents’ ability to provide for the

children’s safety, there were reasonable concerns about their ability to provide care for the

children because of time and health considerations. This is particularly true because the children

are very young, very active, and have multiple therapy appointments per week. The paternal

grandmother was working two or three jobs, totaling 50-60 hours a week, and the paternal

grandfather has health problems, including diabetes and kidney failure. He typically leaves the

home for dialysis treatment three times a week at 5:00 a.m. and returns at 9:00 a.m. Although

the paternal grandfather testified that his wife was in the home at that time, she testified that she

started work at 8:00 a.m. at least three days a week. The paternal grandfather is licensed to drive

a car. He generally uses a cane, walker, or wheelchair to get around the house. He is no longer

employed, but was previously a chef and claims that he could prepare meals for the children

when his wife is not present. While the paternal aunt speculated that the paternal grandmother

planned to quit her job, there was no testimony by the grandparents on this subject and no

explanation of how they would manage financially under that circumstance.

       {¶27} Father also disputed the trial court finding that the paternal grandparents did not

appreciate the severity of the children’s delays. In making this argument, he noted that the

observations of the paternal grandparents were largely based on the children’s behaviors at the
                                                10


time of their removal when they were quite young and some delays were not yet well-defined.

Even though the children were young, the caseworker’s testimony that the children were “sort of

lifeless” and did not know how to play with toys at that time should have signaled a concern in

the grandparents. Later, according to the guardian ad litem, T-G.M. could not count to three or

communicate more than three words by the age of four. These facts suggest a degree of delay

that should have aroused the attention of the paternal grandparents. The guardian ad litem also

noted that when the paternal grandfather was asked how he could manage the children while the

paternal grandmother was working, he indicated that “we’ll be just fine” and pointed to a large-

screened television. The evidence supports the trial court finding that the paternal grandparents

did not display a comprehension of the children’s special needs and the capacity to provide them

with necessary and appropriate care.

       {¶28} The second best interest factor concerns the children’s wishes about where they

should live. As these children were not of sufficient maturity to independently express such a

wish, the guardian ad litem recommended permanent custody on their behalf. While advocating

an open adoption with some continued contact with Mother, Father, and the maternal

grandmother, she nevertheless believed that permanent custody was in the best interest of the

children.

       {¶29} The third best interest factor calls for consideration of the custodial history of the

children. From the time of their birth, the children resided with their parents, first in their own

apartment and later in the home of the paternal grandparents. The family was residing with the

paternal grandparents when the children were removed by the police at the inception of this case.

At that time, T-G.M. was two years old and T.M. was one year old. The children lived with the

same foster parents for the next two years. As pointed out by Father, much time was devoted to
                                                11


efforts to place the children with the maternal grandparents and a paternal aunt. This does not

mean, however, that insufficient effort was devoted to placing the children with the paternal

grandparents. Evidence regarding concerns with such a placement is included above. Although

Father disagrees with the decision, he has not demonstrated legal error in regard to efforts made

in investigating or considering the possibility of a placement with the paternal grandparents.

       {¶30} Fourth, there was evidence before the trial court that supported the determination

that the children’s need for a legally secure permanent placement could only be met by a grant of

permanent custody to the agency.

       {¶31} Accordingly, upon this record, this Court concludes that the decision to grant

permanent custody of the children to CSB and terminate the parental rights of Father was not

against the weight of the evidence. Moreover, there was clear and convincing evidence before

the trial court from which it could conclude that permanent custody was in the children’s best

interest. Consequently, the trial court did not err in denying the motion for legal custody to the

paternal grandparents, in terminating Father’s parental rights, and in placing T-G.M. and T.M. in

the permanent custody of CSB. Father’s two assignments of error are overruled.

                                                III.

       {¶32} Father’s two assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                     Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                12


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT


CARR, P. J.
WHITMORE, J.
CONCUR

APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

ALEXANDRA HULL, Attorney at Law, for Appellee.

LINDA BENNETT, Attorney at Law, for Guardian ad Litem.
