[Cite as In re C.H., 2016-Ohio-26.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 103171




                              IN RE: C.H. AND B.C., JR.
                                   Minor Children

                                      [Appeal By B.C., Father ]



                                           JUDGMENT:
                                            AFFIRMED



                                      Civil Appeal from the
                                Cuyahoga Court of Common Pleas
                                        Juvenile Division
                           Case Nos. AD-12-912210 and AD-12-912211


        BEFORE: Jones, A.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 7, 2016
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

FOR C.C.D.C.F.S.

Adrienne M. Watson
Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Avenue
Cleveland, Ohio 44115

FOR GUARDIAN AD LITEM

Suzanne H. Adrain-Piccorelli
255 Falmouth
Rocky River, Ohio 44116

FOR K.H.

K. H.
10622 Hampden Avenue
Cleveland, Ohio 44108
LARRY A. JONES, SR., A.J.:

       {¶1} Father-appellant appeals from the judgment of the Cuyahoga County Juvenile

Court granting Cuyahoga County Department of Children and Family Services’

(“CCDCFS” ) motion for permanent custody of B.C., Jr. (“B.C.”) and C.H. and denying

legal custody to the paternal grandmother.    We affirm.

                              Procedural History and Facts

       {¶2} The appellant is the father of both children, and this appeal relates to the trial

court’s decision to grant permanent custody of the children to CCDCFS and denying

father’s motion for legal custody to the paternal grandmother.    Father does not argue that

he should have been awarded custody of the children.       Mother has not appealed the trial

court’s ruling.

       {¶3} CCDCFS’s first involvement with the family was in 2011 when father and

mother were involved with a domestic violence incident while the older child, B.C., was

present.   In July 2012, the agency was contacted when C.H. tested positive for marijuana

and experienced withdrawal from opiates at birth.          Mother also tested positive for

marijuana and opiates at C.H.’s birth.    The agency filed a complaint alleging C.H. to be

an abused and dependent child and B.C. a dependent child and requested a disposition of

protective supervision to the agency.

       {¶4} The agency attempted to place the children with family members, but none

were able to provide care for the children, so they were placed with a foster family.    The

agency amended the complaint to request temporary custody of the children.
       {¶5} At the time the children were removed from their parents, the goal was

reunification.   To achieve this goal, the agency developed a case plan, which included

objectives for the father to establish paternity and address concerns for domestic violence,

substance abuse, mental health and resource management, and for mother to address

concerns for substance abuse, mental health, domestic violence, and obtain stable housing

and employment.

       {¶6} The children were moved from the foster family to the home of their maternal

aunt in September 2012.     At this time, the paternal grandmother and a second maternal

aunt expressed interest in caring for the children but the paternal grandmother eventually

determined that she would prefer to assist the maternal aunt and not be the full-time

caregiver.

       {¶7} At the time of the agency’s annual review meeting in July 2013, father had

not made any progress on his case plan.        The same month, after approximately ten

months of caring for the children, the maternal aunt asked CCDCFS to remove the

children from her home, stating that she lacked family support.               The paternal

grandmother declined to have the children placed in her home at this time, citing a need to

complete parenting classes and obtain employment.      The children were placed back into

a foster home, where they remained up and through the permanent custody hearing.

       {¶8} Also in July 2013, the agency moved for permanent custody, citing mother’s

mental health problems, specifically her schizophrenia, her unwillingness to engage in

services, and the fact that she had two other children that were not in her care or custody.
 As to father, the agency’s motion stated that he had failed to establish paternity, had

been diagnosed with bipolar disorder, and had not otherwise complied with the case plan.

 The motion also indicated that father had not consistently visited with the children while

they were in agency custody and there were no suitable relatives available for placement.

         {¶9} In January 2014, the children’s guardian ad litem (“GAL”) filed a motion for

legal custody to the paternal grandmother and subsequently filed a GAL report with the

court.    In her report, the GAL stated that the children had previously been placed with

the maternal aunt, but once the aunt realized the children’s mother was not going to

progress on the case plan, she asked for the children to be removed.       The GAL also

noted that the children had received excellent care in their foster home and the foster

parents worked diligently to provide the boys with needed services. The GAL noted that

the paternal grandmother wanted custody of the children, had completed foster parenting

classes, and visited with the children. Finally, the GAL indicated that father was starting

to be engaged with case plan services.    In February 2014, father filed a motion for legal

custody to the paternal grandmother.

         {¶10} In September 2014, however, the GAL moved to withdraw her motion for

legal custody to the paternal grandmother.   In her motion, the GAL stated:

         The paternal grandmother desires legal custody to allow her son to maintain
         a bond with his children. Her home is sufficient and her son and daughter
         have visited with the children. Unfortunately the boys have many needs,
         B.C. is only now developing understandable speech and C.H. must still be
         monitored when he eats so he does not eat to the point of choking or being
         sick. C.H. has now spent more than half of his life in the foster home and
         the boys are significantly bonded to the foster family. When hurt or
         needing something, they go immediately to their foster mother. With this
       being the third placement in B.C.’s young life I am very concerned about
       attachment disorder and the upheaval a fourth placement would entail.

       {¶11} In January 2015, the court held a pretrial at which the parties discussed

placement with the paternal grandmother.        The case social worker stated that the

paternal grandmother attended visitation but did not spend time with the children during

the visits and had not bonded with C.H. To illustrate the problems the social worker

saw, she told the court that the grandmother spent the visitation periods over-feeding the

children, who had documented feeding issues, to the point where one child had vomited.

The paternal grandmother would also order father around and tell him what to do with the

children rather than interact with the children herself. The paternal grandmother also

refused to change diapers, instead waiting for mother or father to arrive to do the job.

According to the social worker, the paternal grandmother planned on having father care

for the children once she obtained legal custody.

       {¶12} The GAL told the court the children were thriving in their foster home, were

engaged in activities, had made significant progress on their feeding issues, and B.C. had

nearly corrected his speech problems.

       {¶13} In March 2015, the court held a hearing on the agency’s motion for

permanent custody and on father’s motion for legal custody to the paternal grandmother.

Mother was not present at the hearing.

       {¶14} Father’s probation officer testified that father was placed on probation after

his 2011 domestic violence conviction involving the children’s mother. He violated his
probation, however, because he did not attend intensive outpatient drug treatment and a

warrant had been issued for his arrest.

       {¶15} The foster mother testified that the children were placed in her home in July

2013 and had made tremendous improvement. The boys were involved in community,

preschool, library, and church-based programs.   The agency had approached her and her

husband about adopting the children and they agreed they would pursue adoption of the

boys if the agency obtained permanent custody of them, but, if adopted, the boys would

continue to have contact with their biological family.   The foster mother indicated that

she had communicated with the paternal grandmother in the past, but during those

communications the paternal grandmother never asked how the children were doing.

       {¶16} The social worker, Mary Blue (“Blue”), testified that neither parent had

complied with the case plan and were not considered appropriate for placement.

Mother continued to have a substance abuse problem and while she had sought treatment,

she had never completed a treatment program.     Blue testified that mother was compliant

with the mental health portion of her case plan and was on medication. Mother moved

around a lot, and at the time of the hearing, Blue did not know where mother was living.

       {¶17} Blue testified that father had not completed any of his case plan goals.

Father did not have stable housing, had not been compliant with domestic violence,

mental health, or substance abuse treatment, was unemployed, and was in and out of jail.

       {¶18} As to placement, the social worker testified that the children were placed

with a maternal aunt until the aunt could no longer care for the children because the aunt
was not receiving family support and had her own children to care for.      At the time the

children moved out of the maternal aunt’s home, CCDCFS investigated placement with

the paternal grandmother but, according to the social worker, the “[paternal grandmother]

felt the need to complete the parenting class.     She needed to get some employment.

She said she was overwhelmed, and she wanted to help her son with his kids, but she

didn’t really want to have them.”

       {¶19} Blue testified that the agency investigated the paternal grandmother for

placement a second time but still did not believe that placement with the paternal

grandmother would be in the best interest of the children because the paternal

grandmother’s intention was to allow the kids to remain with their father while she was

their legal guardian:

       [B]ut she does not intend to raise the children. * * * She said that she will

       help him get his kids, but she is not gonna raise these kids. She has taken

       foster classes, but her intentions are not to adopt, but to get legal custody,

       and at some point hoping dad do get himself together so that she can sign

       the kids over to him to intervene from the agency getting permanent

       custody.

       {¶20} Blue stated that the paternal grandmother has been twice offered placement

of the children but “always backed out.”   Blue further testified that although the paternal

grandmother came to visits and brought activities for the children, she was not physically

involved with the children during the visits and “watched” the children far more then she
interacted with them. Of particular concern to the social worker was C.H., who needed

physical touch to bond with his caregivers.

       {¶21} The paternal grandmother testified that she wanted custody of the children

since they were first taken by the agency but thought that the maternal aunt was the best

caregiver for the children.   She testified that she took classes to become a certified foster

parent, participated in home visits with the social worker, and consistently visited with the

children. She insisted that she would follow the agency’s rules and not allow her son to

have unsupervised access to the children if she was given legal custody of the children.

She also disagreed with the social worker’s opinion that she was not bonding with the

children, insisting she had plenty of physical interaction with her grandsons during visits.

       {¶22} The GAL gave her recommendation to the court, stating that the parents

were unable to care for the children, who still had special needs and were thriving in their

foster home, and she had concerns about removing the children from their current

placement.

       {¶23} The trial court granted permanent custody to the agency and denied father’s

motion for legal custody to the paternal grandmother.

       {¶24} Father filed the instant appeal and assigns the following assignment of error

for our review:

       I.    The trial court erred in finding that permanent custody rather than legal

       custody was in the best interest of the children.

                                     Law and Analysis
No preference in awarding custody to relatives

      {¶25} Father argues that the trial court erred in finding that the agency showed by

clear and convincing evidence that no suitable relative was available for placement before

granting permanent custody to CCDCFS.       ‘“Clear and convincing evidence’ is evidence

that ‘will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.”’    In re C.B., 8th Dist. Cuyahoga No. 92775,

2011-Ohio-5491, ¶ 28, quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118

(1954).

      {¶26} But the issue facing the trial court at the permanent custody hearing was not

whether the children should have been placed with the paternal grandmother; rather, the

issue was whether the agency’s motion for permanent custody should be granted.     While

it may be preferential in custody actions that children be placed with an appropriate

relative, see R.C. 2151.412(G), the preference applies only to case plans, not to custody

determinations. In re M.W., 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444, ¶ 26,

citing In re B.D., 4th Dist. Ross No. 08CA3016, 2008-Ohio-6273, ¶ 30. A juvenile

court need not find, by clear and convincing evidence, that a relative is an unsuitable

placement option prior to granting an agency’s motion for permanent custody. In re

B.D. at ¶ 29, citing In the Matter of Keaton, 4th Dist. Ross Nos. 04CA2785 and

04CA2788, 2004-Ohio-6210.

      {¶27} We are reminded that relatives seeking custody of a child do not have the

same rights as biological parents. In Re M.W. at ¶ 27, citing In re Jaron Patterson, 1st
Dist. Hamilton No. C-090311, 2010-Ohio-766, ¶ 16. No preference exists for family

members, other than parents, in custody awards. Id. citing id.; In re A.V., 10th Dist.

Franklin No. 05AP-789, 2006-Ohio-3149, ¶ 14. Thus, the trial court was not required to

give preferential consideration to father’s request that the paternal grandmother be

granted custody of the children.

Permanent custody factors

       {¶28}   A trial court’s decisions with respect to child custody issues should

generally be accorded the utmost respect, especially in view of the nature of the

proceeding and the impact the court’s determination will have on the parties’ lives. See

generally Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Absent an

abuse of discretion, a reviewing court should affirm a trial court’s judgment.     Thus, a

reviewing court will not overturn a trial court’s custody or placement decision unless the

trial court has acted in a manner that can be characterized as arbitrary, unreasonable, or

capricious. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

When applying an abuse of discretion standard, a reviewing court may not substitute its

judgment for that of the trial court.   Berk v. Matthews, 53 Ohio St.3d 161, 169, 559

N.E.2d 1301 (1990).

       {¶29} R.C. 2151.414 sets forth a two-part test that courts must apply when

deciding whether to award permanent custody to a public services agency.       The statute

requires a court find, by clear and convincing evidence, that (1) granting permanent

custody of the child to the agency is in the best interest of the child, and (2) either the
child (a) cannot be placed with either parent within a reasonable period of time or should

not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of

the child; or (d) has been in the temporary custody of one or more public or private

children services agencies for 12 or more months of a consecutive 22-month period. R.C.

2151.414(B)(1).

       {¶30} In this case, at the time of the dispositional hearing, it is undisputed that the

children had been in agency custody for more than 12 months of a consecutive 22-month

period. Thus, the second prong of R.C. 2151.414(B) was met and the court needed only

to consider whether permanent custody was in the children’s best interests. See In re

D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 44.

Permanent custody was in children’s best interests

       {¶31} After reviewing the transcripts and record, we find that the trial court’s

findings were supported by competent, credible evidence.

       {¶32} In determining the best interests of a child, R.C. 2151.414(D)(1) directs the

trial court to consider “all relevant factors, including, but not limited to”:

       (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;

       (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;

       (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, * * * ;

       (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 CCDCFS;

       (e) Whether any of the factors in divisions (E)(7) to (11) of this section

       apply in relation to the parents and child.

       {¶33} The trial court found that factors R.C. 2151.414(D)(1)(a), (b), (c), and (d)

were met.        R.C. 2151.414(D)(1)(a) asks the court to consider the children’s

relationships with their caregivers.     The record demonstrates that father loves his

children, but he did not comply with his case plan and does not dispute that the children

should not be placed with him. And, although the paternal grandmother insisted she had

bonded with both children, the social worker testified that grandmother rarely physically

interacted with the children and had not bonded with C.H.

       {¶34} By contrast, the social worker testified that both boys had greatly benefitted

from the foster parents’ parenting and the children considered the foster parents their

“mom” and “dad.”      Each boy had different special needs that were being addressed in

the foster home and they were engaged in community services.

       {¶35} R.C. 2151.414(D)(1)(b) asks the court to consider the child’s wishes, as

expressed directly by the children or through the children’s guardian ad litem. The GAL

stated that it would not be beneficial to the boys to remove them from their current

placement and neither parent could presently or within a reasonable time care for the

children.
       {¶36} Under R.C. 2151.414(D)(1)(c), the court may consider the custodial history

of the child, including whether the children had been in the temporary custody of one or

more public services agencies for 12 or more months of a consecutive 22-month period.

This factor is significant because it reflects the child’s need for security, which comes

from a safe and secure home.           In re D.S., 8th Dist. Cuyahoga No. 101906,

2015-Ohio-2042, ¶ 25.     The social worker testified that the children had been in three

different placements while in temporary custody because CCDCFS attempted to place the

children with several different relatives, who were ultimately unable to obtain or maintain

custody of the children. At the time of the dispositional hearing, the children had been

in CCDCFS’s custody for over two years; therefore, pursuant to R.C. 2151.415(D)(4),

CCDCFS no longer qualified for any further extension of temporary custody. C.H. had

been in agency custody since birth and the only stable home he had experienced was his

foster home. The GAL testified that while B.C. was bonded with his biological family,

he was also extremely bonded with C.H. and his foster family.

       {¶37} Pursuant to R.C. 2151.414(D)(1)(d), the court may consider whether the

need for permanency can be achieved without granting permanent custody.       In this case,

the court found that the children could not be placed with their parents within a

reasonable time, and that CCDCFS exhausted all efforts to find a suitable home with a

relative.

       {¶38} In sum, although a trial court is required to consider each of the factors

under R.C. 2151.414(D)(1) in making a determination regarding permanent custody, this
court has noted that “[o]nly one of these factors needs to be resolved in favor of the award

of permanent custody.” In re M.W., 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444 at

¶ 52, citing In re Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958

(Aug. 31, 2000).     The trial court’s determination was based on several of the best

interests factors and those findings were supported by competent, credible evidence.

Thus, on this record, we cannot say that the trial court abused its discretion when it found

by clear and convincing evidence that granting permanent custody to CCDCFS was in the

children’s best interests.

No abuse of discretion in denying motion for legal custody

       {¶39} Father argues that the trial court should have granted legal custody to the

paternal grandmother instead of granting permanent custody to the agency.        We disagree

and find that the trial court did not abuse its discretion in denying father’s motion.

       {¶40} Although it is apparent that the paternal grandmother loves the children, the

social worker testified that she had twice tried to place the children with the paternal

grandmother but the paternal grandmother backed out each time.        The social worker also

had concerns about the paternal grandmother’s inability or unwillingness to bond with

C.H. The paternal grandmother spent visits with the children supervising them and the

other adults who were interacting with the boys, as opposed to directly caring for the

children.   And, according to the social worker, the grandmother repeatedly made it

known that although she was trying to get legal custody, she was going to permit the

children’s father to care for the children.
          {¶41} The GAL, who initially filed a motion for legal custody to the paternal

grandmother, later withdrew the motion, noting that the children had special needs and a

change in placement would not be in their best interests.          At the permanent custody

hearing, the GAL told the court that the children still had special needs, C.H. had spent

two-thirds of his life in his current placement, the boys were “extraordinarily bonded” to

one another, a change in placement would not be in the children’s best interests, and the

children could not presently or within a reasonable time period be placed with either

parent.

          {¶42} In light of the above, the trial court did not abuse its discretion when it

denied father’s motion for legal custody to the paternal grandmother.

          {¶43} The sole assignment of error is overruled.

          {¶44} Judgment affirmed.

          It is ordered that appellee recover from appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

          A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
