[Cite as In re T.M., 2014-Ohio-1131.]


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

IN RE: T.M.                                          C.A. No.       13CA0043



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
                                                     CASE No.   11-1760-AND

                                 DECISION AND JOURNAL ENTRY

Dated: March 24, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Leisa Ritzi, appeals from the judgment of the Wayne County Court of

Common Pleas, Juvenile Division, that denied her motion for legal custody of T.M. and granted

the motion of the Wayne County Children Services Board (“CSB”) for permanent custody of the

child. This Court affirms.

                                                I.

        {¶2}     T.M. was born to Hillery Y. (“Mother”) and Louis M. Jr., (“Father”) on August

29, 2008. From the beginning of their child’s life, both parents suffered from substance abuse

and had difficulty providing for their child’s needs. Leisa Ritzi, the child’s paternal grandmother

(“Grandmother”), often assisted with needed supplies, food, and child care. In time, the parents

separated. Father moved in with the child’s great-grandparents, Connie and Cecil Wolfe, while

Mother and T.M. moved in with her parents. Problems with substance abuse and providing for
                                                2


the child’s needs persisted. On August 29, 2011, CSB filed a complaint in juvenile court,

alleging that T.M. was neglected and dependent.

       {¶3}    At the initial shelter care hearing, the juvenile court magistrate ordered the child

into the custody of the agency. Also, at that time, Dawn Durkee, the agency caseworker

assigned to the task of conducting relative home studies, began the process of attempting to

locate a relative placement for the child. As part of that process, she interviewed the parents and

asked them for placement recommendations. Father recommended placement with his father

(“Grandfather”), while Mother recommended placement with Grandmother.                  These two

individuals were the previously married and now divorced parents of Father. The couple’s

relationship appears to have been acrimonious during much of their married life and since then.

       {¶4}    Ms. Durkee inquired of the two individuals recommended by the parents for

placement of T.M. Grandfather expressed willingness to accept placement of T.M., while

Grandmother was willing, but unable. Instead, she recommended her mother and stepfather,

Connie and Cecil Wolfe, as caregivers. Ms. Durkee began the investigation protocol as to

Grandfather and the Wolfes, and considered their criminal histories, child welfare histories,

fingerprints, home inspections, personal interviews, and medical and financial reports.

       {¶5}    In the meantime, the trial court continued the shelter care hearing for ten days. At

that point, CSB’s position was to oppose placement with the Wolfes. Ms. Durkee later explained

that there had been many domestic disturbances at the Wolfes’ home during their ten years of

marriage, some of which involved Father, and the agency did not believe that was the kind of

environment the child should be in. Nevertheless, against the recommendation of CSB, the

magistrate ordered that T.M. should be placed with Mr. and Mrs. Wolfe.
                                                3


        {¶6}   On November 14, 2011, T.M. was adjudicated dependent and was placed in the

temporary custody of the agency. T.M. remained with the Wolfes, pursuant to court order. The

court adopted a case plan that addressed substance abuse, parenting skills, mental health, stable

housing, and employment or income for both parents.

        {¶7}   Ms. Durkee explained that, when a placement is made by the court with which the

agency disagrees, the agency will review that placement at six-month intervals. See Ohio

Adm.Code 5101:2-42-18(H).        In May 2012, the agency reassessed the Wolfe home and

continued its opposition to the placement. The agency reiterated that the couple has a history of

domestic disputes involving the local police department. Some of those disputes involved

Father. Some of the calls to the police were made by Grandmother. The agency also reported

that Mr. Wolfe, who is in his 70s, was uncertain whether he wanted to be involved in long-term

parenting of this young child. The caseworker reported that the couple argues “over almost

every conceivable topic,” including childcare issues of discipline, sleep routines, diet, and potty

training.

        {¶8}   Following the agency’s negative reassessment of the Wolfe home, the on-going

caseworker prepared a motion to change T.M.’s placement. Thereupon, Ms. Durkee reengaged

her home study regarding Grandfather and, at Grandmother’s request, initiated a home study for

her also. In the end, Grandfather’s home study was approved, but Grandmother’s was not.

        {¶9}   It had become apparent that neither parent was making satisfactory progress on

their case plan requirements. Accordingly, the agency moved for permanent custody on July 24,

2012. Grandmother moved for legal custody on September 26, 2012. Also, in September 2012,

T.M. was moved from the Wolfes’ home to Grandfather’s home.
                                                   4


       {¶10} A four-day hearing was conducted on both motions as well as a review of the

child’s current placement. On the first day of the hearing, Mother voluntarily surrendered her

parental rights. Subsequently, Father testified that he was requesting that his parental rights not

be terminated, but that the court grant legal custody to Grandmother. He explained that he was

not able to provide a stable home for the child.

       {¶11} At the conclusion of the hearing, the trial court found that Mother surrendered her

parental rights, both parents abandoned the child, the child could not be placed with either parent

within a reasonable time or should not be placed with either parent, and it was in the best interest

of the child to be placed in the permanent custody of the agency. Consequently, the trial judge

denied Grandmother’s motion for legal custody and granted the agency’s motion for permanent

custody.

       {¶12} Neither parent has appealed from the judgment of the trial court. Grandmother

has appealed and has assigned one error for review.

                                                   II.

                                  ASSIGNMENT OF ERROR

       THE JUVENILE COURT’S DECISION TO AWARD PERMANENT
       CUSTODY TO THE WAYNE COUNTY CHILDREN SERVICES BOARD
       WAS AGAINST THE MANIFEST [WEIGHT] OF THE EVIDENCE.

       {¶13} In her sole assignment of error, Grandmother has argued that the trial court’s

determination that permanent custody was in the best interest of the child was in error because

the manifest weight of the evidence supported placement of the child in her legal custody. For

the reasons set forth below, we conclude that the trial court did not err in granting CSB’s motion

for permanent custody or in denying Grandmother’s motion for legal custody.
                                                 5


       {¶14} In reviewing a challenge to the weight of the evidence, this Court must determine

whether the trier of fact, in resolving evidentiary conflicts and making credibility determinations,

clearly lost its way and created a manifest miscarriage of justice. See In re M.C., 9th Dist.

Summit No. 24797, 2009-Ohio-5544, ¶ 8 and ¶ 17. See also Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, ¶ 20.

       {¶15} An order granting permanent custody of a child to a proper moving agency

requires 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., 75 Ohio St.3d 95, 97-99 (1996).            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, 18 Ohio St.3d

361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

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

satisfied because Mother voluntarily surrendered her parental rights to the child, both parents had

abandoned him, and the child could not be placed with either parent within a reasonable time or

should not be placed with either parent. See R.C. 2151.414(B)(1)(a) and (B)(1)(b), and R.C.

2151.011(C). In support of the finding that the child could not or should not be placed with

either parent, the trial court cited Father’s severe chemical dependency and his lack of
                                                  6


commitment to the child. See R.C. 2151.414(E)(2) and R.C. 2151.414(E)(4). There is no

challenge to the trial court finding on this prong of the permanent custody test. Regarding the

second prong, the trial court found that an award of permanent custody was in the best interest of

the child, and also specifically found that an award of legal custody to Grandmother was not in

the child’s best interest. See R.C. 2151.414(B)(1). Grandmother challenges this finding on

appeal.

          {¶17} Because the trial court’s decision to deny Grandmother’s motion for legal custody

hinges on the best interest of the child, this Court “typically conducts a single ‘best interest’

review of the trial court’s decision to place the child in the permanent custody of the agency

rather than in the legal custody to a relative.” In re I.A., 9th Dist. Summit No. 26642, 2013-

Ohio-360, ¶ 10.       If permanent custody is in the child’s best interest, legal custody with

Grandmother necessarily is not.         See id.   Consequently, in reviewing the best interest

determination by the trial court, we will review the relevant factors, including those set forth in

R.C. 2151.414(D)(1): the interaction and interrelationships of the child, the wishes of the child,

the custodial history of the child, and the child’s need for permanence in his or her life. R.C.

2151.414(D).

          {¶18} T.M.’s relationship with his parents was limited by the fact that each parent had a

significant history of substance abuse, resulting in sporadic visits and few opportunities for

positive interactions.

          {¶19} Grandmother frequently provided care-giving and financial support to T.M. and

his parents during the three years before CSB became involved and during the year the child was

placed with the Wolfes. Grandmother has not visited with T.M. while he has been placed with

Grandfather, but the record demonstrates that Grandmother was very involved with the child for
                                                7


four years. The trial court had additional evidence before it, however, that tended to raise doubts

about Grandmother’s ability to safely and securely provide care for a young child.

       {¶20} First, CSB’s home study of Grandmother, conducted in the summer of 2012, was

denied. While Grandmother had no criminal or children services history, the report indicated

that her home lacked sufficient stability due to multiple incidents in which there was a risk of

harm to Grandmother or her family. The agency found that Grandmother made choices that

continued to place her and her family at risk and she failed to take measures that would have

been more protective. The agency also expressed concern with several misrepresentations of

factual information during the interview process. The report explained that the agency must rely

on caregivers of children to share accurate information for the protection and well-being of

children placed in their homes.

       {¶21} As examples of misrepresentations in this case, Ms. Durkee cited:                  (1)

Grandmother’s varied references to her fractured arm as either an accident or intentional by her

son, as further explained below; (2) her statement denying recent contact with her son when

telephone records established that she had recent contact with him; and (3) her assertion that

Grandfather paid no attention to his children when he was actually vacationing with his daughter

at the time. Ms. Durkee explained that the agency’s concern is not so much with the substance

of the matters that were misrepresented as with the possibility that the potential custodian may

misrepresent other matters regarding a child placed in the home.

       {¶22} Second, Grandmother has close personal relationships with others who have

contributed to the chaos and tumult in her life. Those people include her son, her mother and

step-father, and two ex-husbands. Regarding her son, Grandmother’s relationship with him has

been conflicted. She loves him and has provided him with financial support and a home at times,
                                                 8


but there has also been turmoil between them. For example, Grandmother testified that she

contacted the police several times about her son being violent towards her while he was a

juvenile. In addition, during a shared car ride, Grandmother’s arm was fractured by her son.

Grandmother has variously described her son’s actions as intentional and accidental. She did not

file a police report following the incident, but her son soon moved out of her home.

Furthermore, in telling Ms. Durkee the last time she saw her son, Grandmother was said to have

turned to her fiancé, George, and said, “[O]f course, George would not want me around [my son]

after he did that (broke my arm) to me.” At the time, Grandmother did not describe the fractured

arm as an accident. Ms. Durkee felt Grandmother was being untruthful in the presence of her

fiancé, and was, therefore, building another unhealthy relationship.

       {¶23} Father also displayed his anger in the presence of the ongoing CSB caseworker,

Martha Jackson-Hill. Ms. Jackson-Hill testified that Father loudly carried on at the visitation

center and claimed that he “slugged” his mother so hard that her arm was broken. The same

caseworker testified to being terrified by Father during a visit at Grandmother’s home just one

month before the final dispositional hearing and after Father had completed an anger

management course. She described Father as yelling, cursing, waving his hands, and calling her

racially derogatory names.

       {¶24} In addition, Grandmother has a close relationship with her mother and step-father,

Connie and Cecil Wolfe, whom she recommended as caregivers for T.M. There was evidence

before the trial court that was critical of the quality of care provided by the Wolfes to T.M. and

particularly critical as to the stability of that home. In her judgment entry, the trial judge noted

the numerous police reports taken when law enforcement responded to calls for domestic
                                                9


disputes and/or violence between Connie and Cecil Wolfe at their home, including the fact that

Grandmother initiated some of the calls for assistance.1

       {¶25} Lastly, Grandmother had two marriages that she herself describes as turbulent and

violent. Her second marriage to Christopher Ritzi lasted 16 years, from 1995 to 2011, despite

the fact that Grandmother described him as being physically assaultive throughout most of the

marriage and stating that she feared for her life while she was with him. Police were called to

the home in June 2002 for domestic violence. Grandmother obtained a no contact order against

Mr. Ritzi in 2005.    Father added the fact that Mr. Ritzi once broke Grandmother’s nose.

Grandmother separated from Mr. Ritzi in 2009 or 2010, and they were finally divorced in

September 2011.

       {¶26} Grandmother’s first marriage was to Grandfather, T.M.’s current caregiver, and

lasted from 1987 to 1994. Grandmother testified that he was abusive and controlling, and that he

got physical with her several times. Grandmother also claimed that Grandfather was not a good

father to their children and that he failed to assist T.M. and his parents during the early years.

The couple’s two grown children generally corroborated Grandmother’s testimony, although

their son, Father, told Ms. Durkee that he would like T.M. to be placed with Grandfather at the

beginning of the case, and their daughter admitted she loved her father and communicated

regularly with him on Facebook.

       {¶27} For his part, Grandfather and his second wife have been married for 14 years.

They have no children together, but Grandfather helped raise his wife’s two boys through their


1
  This finding was made by Judge Latecia E. Wiles who was appointed as the new Wayne
County Juvenile Court Judge in the midst of this case and heard the matter from April 2012
forward.
                                                10


teen years. Those boys are now grown and one of them testified to considering Grandfather as

his father and having a “big brother” relationship with T.M. Grandfather testified that he is

dedicated to providing a safe and secure home to T.M. and maintains that the child has done well

in his home for the last eight months.      He admits to making mistakes in his marriage to

Grandmother, but he generally had a different view of their married life. He denies ever striking

Grandmother, though he admits putting a hole in a wall, and denies being abusive to his children.

He claims that his truck-driving job and military career often kept him away from his children

during their early years, and that he returned to Ohio in 2006 to attempt to repair and improve

those relationships. In particular, he pointed to financial assistance to help his son pay for drug

rehabilitation programs and a graduation trip to California with his daughter. Grandfather used

his military opportunities to obtain a bachelor’s and master’s degree.

       {¶28} Grandfather’s home study revealed no criminal or children services history. The

agency looked into Grandmother’s claims of violent behavior by Grandfather during their

marriage, but found no documentation to validate them. Grandmother claims that there are no

records of police calls to the house because the old microfiche records no longer exist.

Nonetheless, there is no evidence of convictions in the record.          According to the CSB

caseworker, Grandfather’s home appears to be stable, and she noted that the couple worked

through some non-violent marital difficulties with the aid of counseling. The agency’s home

study of Grandfather approved him for temporary custody placement. Grandfather and his wife

have stated that they would be interested in adoption if permanent custody is granted.

       {¶29} It may be noted that some of the chaos in Grandmother’s life involved

Grandfather.    CSB compared how the two responded to their personal problems.                 The

caseworker distinguished Grandfather’s behavior by the fact that he admitted to past difficulties,
                                                11


sought counseling, and made positive changes in his life that resulted in a generally stable

situation, whereas Grandmother has not admitted to failings, has failed to protect herself and

those around her from risks of harm, and has continued to have violence and chaos in her life.

Grandmother claims she did not cause the problem in these situations and that she was the

victim. There is no evidence that Grandmother has sought counseling or taken steps to address

her admitted victimization. Moreover, Ms. Durkee questions whether Grandmother is embarking

on another unhealthy relationship based on comments she made to her fiancé.

       {¶30} The wishes of this young child were expressed by the guardian ad litem. She

recommended an award of permanent custody to CSB as she believed that would be in the best

interest of the child. She explained that the parents have had little contact with the child since

early 2012 and neither is in compliance with their case plan obligations. T.M. is doing well in his

current placement and his caregivers are interested in adoption if that option should become

available.

       {¶31} The guardian ad litem further explained that she opposed an award of legal

custody because it would open up all of the contentious conversations and the animosity

expressed over three days of hearings in court. In particular, she did not believe it was in T.M.’s

best interest to be placed in the legal custody of Grandmother due to her history of domestic

violence and abuse. She did not believe that was a safe environment for the child. In support of

her opinion, she cited the denial of Grandmother’s home study by CSB. She testified that after

hearing three days of testimony, she was more certain of her recommendation than before.

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

child. T.M. resided with both parents or just with Mother for the first three years of his life.

After his removal from Mother’s home, T.M. was placed with the Wolfes for one year.
                                                 12


Following a reassessment of that home, T.M. was removed and placed with Grandfather and his

wife. T.M. resided there for approximately eight months at the time of the dispositional hearing,

and he is reported to be doing well in their care.

       {¶33} As to the fourth best interest factor, Caseworker Jackson-Hill testified that the

child needs permanency and should be adopted by someone who is stable, responsible, has a

genuine connection to him, and will be there to help him. She believes T.M. is currently doing

well because he has consistency in his life and feels safe and secure. He is enrolled in Head Start

and is in family counseling. Ms. Jackson-Hill believes that if Grandmother were given legal

custody the “drama” of her life would continue and that would not be in the child’s best interest.

She also explained that Grandfather prefers to seek adoption rather than legal custody because of

the adversarial relationships between family members over the years.

       {¶34} Upon consideration, the record demonstrates that there was ample evidence

before the trial court from which it could conclude that permanent custody to CSB, and not legal

custody to Grandmother, was in T.M.’s best interest. The record does not support a conclusion

that the trial court clearly lost its way and created a manifest miscarriage of justice.

Consequently, the trial court did not err in denying Grandmother’s motion for legal custody, in

terminating the parents’ parental rights, and in placing T.M. in the permanent custody of CSB.

Grandmother’s sole assignment of error is overruled.

       {¶35} As a final point, this Court emphasizes that this case addresses only with the

question of whether permanent custody is in the best interest of the child. The issue of adoption

was not before the trial court and is not before this Court. That is a separate matter for another

day.
                                                13


                                                III.

       {¶36} Grandmother’s assignment of error is overruled. The judgment of the Wayne

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

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Pleas, County of Wayne, 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(C). 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.




                                                       BETH WHITMORE
                                                       FOR THE COURT



HENSAL, P. J.
CONCURS.
                                               14


CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶37} Although I agree that the trial court did not err in granting CSB permanent

custody of T.M., I would not discuss placement with Grandfather as compared to Grandmother.

The issue is not whether placement with Grandfather is better than with Grandmother. The issue

is whether permanent custody is in T.M.’s best interest.


APPEARANCES:

ROSEANNE K. SHRINER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.

REBECCA A. CLARK, Attorney at Law, for Appellee.

MICHELE SHERRIN, Attorney at Law, for Appellee.

LYNN BEAUMONT, Attorney at Law, for Appellee.

KAREN WIEST, Guardian ad litem.
