[Cite as In re L.J., 2009-Ohio-5658.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY



IN THE MATTER OF:

        L.J.,                                               CASE NO. 8-09-07

DEPENDENT CHILD,

[KENNETH JOHNSON, SR., APPELLANT,
MARIA JOHNSON, APPELLANT],
                                                            OPINION
[ASHLEY NICOLE JOHNSON, APPELLANT],

[KENNETH JOHNSON, JR., APPELLANT].



                  Appeal from Logan County Common Pleas Court,
                                  Juvenile Division
                            Trial Court No. 07-CS-0028

                                        Judgment Affirmed

                            Date of Decision: October 26, 2009




APPEARANCES:

        Bridget D. Hawkins for Appellant

        Deborah K. Wolf for Appellee

        Linda MacGillivray, Guardian Ad Litem
Case No. 8-09-07


WILLAMOWSKI, J.,

      {¶1} Appellants Kenny Johnson Jr. (“Kenny”) and Maria and Kenny

Johnson Sr. (“the Johnsons”) bring appeals from the judgment of the Court of

Common Pleas of Logan County, Juvenile Division, terminating the parental

rights of Kenny and awarding permanent custody of L.J. to appellee Logan County

Children Services Board (“LCCSB”).            For the reasons set forth below, the

judgment is affirmed.

      {¶2} L.J. was born to Kenny and Ashley Johnson (“Ashley”) on April 17,

2007. LCCSB was contacted by the hospital when concerns arose about Ashley’s

parenting ability. On April 18, 2007, LCCSB filed a complaint alleging that L.J.

was a dependent child and requesting temporary custody. LCCSB also filed a

motion requesting emergency temporary custody. This motion was granted that

same day. A hearing was held on the emergency motion on April 20, 2007. The

parents agreed at the hearing to temporary custody pending an adjudicatory

hearing. The trial court thus entered an order continuing LCCSB’s temporary

custody of L.J.. On May 18, 2007, the first proposed case plan was filed with the

trial court. This plan required that 1) Kenny and Ashley to obtain services through

the Logan County Board of Mental Retardation and Development Disabilities

(“MRDD”) in order to learn independent living skills; 2) Kenny and Ashley would

learn to resolve their disputes without police involvement by obtaining counseling;



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and 3) Kenny and Ashley would take parenting classes and apply what they

learned in those classes. The adjudicatory hearing was held on June 4, 2007. At

the hearing, the parents consented to a finding that L.J. was a dependent child, but

no agreement was reached as to disposition. The dispositional hearing was then

held on July 13, 2007. The trial court entered its judgment on July 26, 2007,

awarding temporary custody of L.J. to LCCSB and approving the May 18, 2007,

case plan.

       {¶3} On October 18, 2007, the first semi-annual review of the case plan

was held. The review indicated that Kenny and Ashley were receiving services

from MR/DD and were learning budgeting skills.          The pair had no reported

domestic incidents and had fewer calls to the police to help resolve their disputes.

The review also indicated that although Kenny and Ashley cooperated with

service providers, they did not always follow the instructions of the service

providers.   Finally, the review indicated that Kenny and Ashley had begun

parenting classes. The conclusion was that although some progress had been

made in all areas, additional services were needed. This review was filed with the

trial court on October 24, 2007.

       {¶4} On December 6, 2007, LCCSB filed a request for an extension of

temporary custody with the current case plan.       This motion was granted on




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January 18, 2008. A case plan review was conducted on January 18, 2008. The

review indicated the following concerns.

       Kenny and Ashley have service providers involved with them to
       assist in working with their cognitive and mental health
       disabilities. Ashley has a legal guardian who assists with her
       decision making processes, as she was determined to be
       incompetent. Budgeting and daily living skills are also provided
       to Kenny and Ashley through MRDD. In the past Kenny and
       Ashley’s relationship has consisted of problems with domestic
       incidents, substance abuse issues with Kenny, and concerns with
       parenting practices. Ashley’s older daughter is placed in the
       legal custody of a relative. There is turmoil between Kenny and
       Ashley and their extended family members and this has also
       created much chaos in their lives.

       [L.J.] has not been in Kenny and Ashley’s custody since her
       birth. They recently moved into a new place and there are
       physical hazards that would be concerns, if [L.J.] would be in
       the home.

Jan. 18, 2008, Case Review, 4. This review was filed with the trial court on

January 24, 2008. On January 22, 2008, LCCSB filed a motion for permanent

custody pursuant to R.C. 2151.414(E)(1-4). On February 22, 2008, the Johnsons

filed a motion for custody of L.J.

       {¶5} On April 7, 2008, the annual case plan review was conducted. The

review summary stated as follows.

       Kenny and Ashley have worked cooperatively with most of the
       service providers involved with them. On January 9, 2008,
       Ashley started working at RTC. Kenny and Ashley made the
       decision on their own to move into a trailer, which repairs have
       been made and repairs are still being done to the trailer. The
       potential safety risks that this home environment has posed to a


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Case No. 8-09-07


       child have been significant at times, including improper wiring
       and heating concerns, the floor not being stable, and the
       bathroom wall being removed.

       * * On December 5, 2007, Kenny and Ashley attended an
       appointment with Carl Newcomer at Consolidated Care to start
       marital counseling.     During the counseling session, Carl
       Newcomer reported that he discussed with Kenny and Ashley
       about a marital confrontation that they had over the previous
       weekend. Carl Newcomer also reported that Kenny and Ashley
       said that they had been arguing and Kenny called law
       enforcement on Ashley. Carl Newcomer stated that Ashley
       admitted that she still has problems with anger.         Carl
       Newcomer reported that there still seems to be continual
       conflict between Kenny and Ashley. On December 17, 2007,
       Kenny and Ashley did not attend a scheduled appointment with
       Carl Newcomer. It appears that Kenny and Ashley have not
       attended any additional appointments with Carl Newcomer. On
       March 20, 2008, Ashley stated that she would not sign an
       Authorization for Exchange of Information for Consolidated
       Care. On March 24, 2008, Kenny and Ashley got into an
       argument and law enforcement was called to their home.
       Ashley has been living separately from Kenny since this
       incident.

       * * Kenny and Ashley met with Kit Wehe from Help Me Grow
       to discuss the services that Help Me Grow offers to families. No
       other services have been provided from Help Me Grow at this
       time. Kenny and Ashley attended and participated in the
       parenting evaluation, which was completed by Carl Newcomer
       at Consolidated Care.

April 7, 2008, Annual Review, 1-2. Another semi-annual review was completed

on April 18, 2008, and filed with the trial court on April 24, 2008. This review

noted that Kenny and Ashley struggle to understand L.J.’s needs and cope with




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them during visits. The next review was completed on July 11, 2008, and filed on

July 14, 2008. No progress had been noted from the prior review.

       {¶6} On July 17, 2008, the Guardian Ad Litem, Linda MacGillivray

(“MacGillivray”), filed her report. In her opinion, Kenny and Ashley lacked

sufficient mental functions and ability to care for L.J. She noted that the Johnsons

had a history with social services agencies and that they were “often harsh and

inappropriate in their parenting skills.” GAL Report, 2. Based upon her opinion

that L.J. had bonded with her foster parents, who wished to adopt her, the GAL

recommended granting permanent custody to LCCSB.

       {¶7} On July 24 and 25, 2008, the permanent custody hearing was held.

LCCSB presented the testimony of nine witnesses. Jennifer Meyer (“Meyer”)

was the original case worker who developed the case plan with Kenny and

Ashley. Meyer testified that the trailer to which Kenny and Ashley moved was in

a state of disrepair. Tr. 33. There were safety concerns due to exposed wires, a

buckling floor, lack of water at times, and a wall furnace without a guard. Tr. 34.

Kenny was very attentive at visits and took instruction well. Tr. 35. Meyer

testified that progress on the case plan was minimal. Tr. 37. “They would start to

do something, but then never really got completed to the degree it needed to be.”

Id. Ashley and Kenny were inconsistent in attending counseling appointments.

Id. They did not like having providers be in charge of their money. Id. Ashley



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Case No. 8-09-07


and Kenny frequently resolved arguments by calling the police because they

lacked the skills to resolve the conflict for themselves. Tr. 39. Ashley and Kenny

also had problems with transportation because neither of them has a driver’s

license. Tr. 42. Kenny attended almost all of his visits. Tr. 47. Meyer also

testified that she had no concerns about the Johnsons based upon her observations

of them during visits with L.J.      Tr. 49.    However, the home evaluation

recommended denying custody to the Johnsons. Tr. 54. In her opinion, it would

be in L.J.’s best interest to grant permanent custody to LCCSB. Tr. 57.

      {¶8} Amanda Willis (“Amanda”) took over L.J.’s case on December 21,

2007, when Meyer left LCCSB.           Amanda testified that Kenny had not

consistently attended counseling as required by the case plan and had only

attended two out of the six scheduled appointments in the six months prior to the

hearing. Tr. 71. As of April 2008, Kenny was no longer employed. Id. She

stated that there were several safety concerns about Ashley and Kenny’s residence

due to the perpetual state of construction. Tr. 73. She also testified that Ashley

and Kenny have some personal hygiene issues.          Tr. 74.   Based upon her

observations, there has been minimal progress on the case plan objectives and the

risk level has actually increased from high risk to intensive risk. Tr. 81-82.

Amanda testified that it would be in L.J.’s best interest to grant permanent

custody to LCCSB. Tr. 82. On cross-examination, Amanda did admit that the



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Case No. 8-09-07


safety issues in the home had been remedied. Tr. 84-85. She also admitted that

Kenny does well with L.J. and there were no concerns about his parenting skills.

Tr. 89.   Finally, Amanda admitted during cross-examination that Kenny had

completed everything under the case plan that could make a difference. Tr. 91.

      {¶9} When discussing the Johnsons, Amanda testified that they have

attended all visits and acted appropriately. Tr. 77-78. There were no negative

references to the Johnson’s behavior with L.J. in the notes, which, in fact,

contained several positives. Tr. 91. Amanda testified that since the Johnsons’

original home study was denied, they could no longer be considered regardless of

any changes that were made to the home. Tr. 93.

      {¶10} Rodney Willis (“Rodney”) is employed as a case manager with

MR/DD, and works with Kenny. He began working with Kenny in 2004. Tr.

133. Kenny uses the agency for payeeship, but has not accessed home maker

services or anything else to maintain independent living. Id. Kenny did not wish

to use these services because he wanted to be independent. Tr. 134. Kenny did

not fully cooperate with his direct care provider. Id. Kenny had been employed

by Heritage Court in the maintenance department for 8-9 years until the new

owners cut his position due to budget constraints. Tr. 135. Rodney also testified

that Kenny could work through RTC, but does not want to do so. Id. When

discussing the residences, Rodney testified that in his opinion Kenny’s home



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would not be appropriate for a child. Tr. 141. Kenny and Ashley had problems

dealing with each other. Tr. 143. Kenny has not always followed Rodney’s

recommendations.     Tr. 146.   In his opinion, Rodney believes that Kenny’s

decisions “have been made in ways that can jeopardize his health and safety.” Id.

He did not believe that Kenny would be able to follow the recommendations

made by service providers. Tr. 147. When questioned about his contact with the

Johnsons, Rodney testified that he had no problems with them. Tr. 150-51. The

assessments have shown that Kenny has an IQ of approximately 45. Tr. 152.

      {¶11} Elizabeth McClure (“McClure”) was an in-home caseworker for

LCCSB. She was responsible for completing the home study evaluations. Tr.

195. She testified that they did not recommend placing L.J. with the Johnsons

due to the strained relationships between Kenny and Ashley and the Johnsons.

Tr. 196. She also testified that the Johnsons had previously been involved with

LCCSB and were not cooperative with service providers in the past. Id. The

home was clean, but was small, dark and “gloomy.” Tr. 197. Although the

Johnsons are “making ends meet,” they do not have much discretionary income.

Id. McClure also testified that she did not believe the home was appropriate for a

child because it was very small and full of stuff. Tr. 200. The only issue with the

Johnson’s home safety audit was that there was no fire extinguisher. Tr. 206.




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Case No. 8-09-07


      {¶12} The next witness for LCCSB was MacGillivray. She testified that it

would be in L.J.’s best interest to grant permanent custody to LCCSB.

       I do not believe any of the movants or the parents are capable of
       bringing her to a safe, healthy, happy, productive adulthood. I
       can elaborate on that in a minute.

       She has bonded very well to her foster family. She knows them
       as mother and father. She knows no one else as her mother and
       father. Although she visits with them, I have seen a few of the
       visits, Kenny is somewhat bonded to [L.J.]. I question that
       Ashley has ever bonded with [L.J.]. And certainly [L.J.] has not
       bonded with them as being her parents.

       ***

       Secondly, the home conditions at all of the homes are
       questionable at best. However, if they all lived in the Tajmahal,
       my opinion would still be the same. But they don’t. The home
       conditions are questionable. Their stability is questionable at
       best. Various parties have moved. I don’t believe any of them
       are employed. Most are on Social Security because of mental
       deficiencies. And in the case of Kenny and Ashley, their mental
       deficiencies are to the point no amount of services are going to
       change that.

       I feel this is a very, very sad case. However I don’t believe they
       are ever going to raise (sic) to the level of being able to care for a
       child. They have been found repeatedly by the courts to not be
       able to care for themselves.

       If they had a stable marriage relationship, that would help. But
       they do not. But they have been separated on and off in just this
       past year. There were difficulties before that.

       We have seen no progress, in fact it has only gotten worse.

       **



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       When [the Johnsons] were appointed an attorney, he requested,
       by leaving a message at my office, he would like for me to do a
       home visit with them. Which I did a couple of weeks ago.

       It was in July. Mark is still living there. I made my scheduled
       home visit at 9:30. Mark never got out of bed. There is a
       curtain on his bedroom door. He could hear me. He didn’t get
       out of bed to meet me. You have to walk through the parent’s
       bedroom to get to the kitchen in the back part of the house. I
       didn’t (sic) recall seeing a door on any bedroom.

       I came away from that home visit very . . . I feel very sorry for
       [the Johnsons]. For a year now, they have been given some
       visits. They have fallen in love with [L.J.]. I do not believe
       likewise they are capable of raising her.

       They have taken steps to make a bedroom. They have cleared
       out their little office thing. It’s very small. It’s okay. They
       bought a crib probably at a garage sale. They got a stroller. A
       car seat (sic). They have been given a court appointed attorney.
       Visits.

       My heart goes out to them. I feel they have been somewhat
       misled. Which (sic) they are going to be sad if they don’t get
       custody.

       I still must sit here and say I don’t feel they should get custody.

Tr. 209-13. LCCSB presented no other witnesses.

      {¶13} MacGillivray presented the testimony of two witnesses. Christa

Oldiges (“Oldiges”) was the case manager for Kenny at MRDD from 2001 to

2004. She testified that Kenny, who was an adult at the time, had been kicked out

of the family home by his parents after several disagreements. Tr. 308. Once he

was kicked out of the home, the Johnsons refused to act as his payee and returned



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his money to social security indicating that a new payee needed to be found. Tr.

310. Oldiges had not ever been to current residence of the Johnsons and admitted

that Kenny was sometimes difficult to deal with. Tr. 311-12. She thought “he

was independent and had clear ideas about how he wants things done.” Tr. 312.

      {¶14} Liz Rose was the case worker before Oldiges, and worked with

Kenny from 1994 until 2001. Tr. 315. She testified as follows.

       Q. And how would you say, during the 7 years that he lived at
       home that you worked with him, the home, physical home
       situation was? We will start with the physical aspect of his
       living situation.

       A.   The appearance of the home?

       Q. Appearance, condition, stability, cleanliness?

       A. I would say over those years, off and on, the family was in
       need of some financial assistance for various things. I would
       say, I guess the care of Kenny at that time probably would have
       been marginal, I guess. The physical condition of the home
       would have been probably, I guess marginal.

       Q. Would you say in your working with the family that his
       parents were extremely responsive to your efforts to improve
       their situation?

       A. I would say that Kenny’s parents were open for help and
       accepting of that. But there were a lot of services and supports
       that I assisted with through those years.

       Q. That they willingly opened their arms and accepted? I am
       not sure I understand your answer?

       A. I would say at that time that we worked well together, but
       there were a lot of needs.


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Case No. 8-09-07



       ***

       A.     I would say there was a consistent need for some assistance.

Tr. 316-18.

      {¶15} Following the conclusion of the hearing, the parties submitted

written closing arguments to the trial court. LCCSB filed its motion for an

extension of temporary custody on September 18, 2008. A hearing on that motion

was set for October 7, 2008. A case review was conducted on October 6, 2008,

and filed with the court on October 8, 2008. On October 24, 2008, the trial court

entered its order granting the extension of temporary custody.

      {¶16} Another case review occurred on December 31, 2008, and was filed

with the trial court on January 6, 2009. The review indicated that Kenny and

Ashley had not attended counseling since April of 2008, and that during a home

visit on December 29, 2008, they had a verbal argument. Ashley indicated that

she wanted to move out. The case worker noted that insufficient progress had

been made on this requirement.

      {¶17} On February 26, 2009, the trial court entered judgment granting

permanent custody to LCCSB. On March 2, 2009, the trial court entered a nunc

pro tunc judgment entry correcting some errors in the original entry.        The

Johnsons filed their notice of appeal from this judgment on March 23, 2009. On




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March 27, 2009, Ashley filed her notice of appeal.1 Kenny filed his notice of

appeal on March 30, 2009. Kenny alleges the following assignment of error.

         The trial court erred in granting permanent custody of the
         minor child to [LCCSB].

The Johnsons raise the following assignment of error in their appeal.

         The trial court erred by finding the evidence produced by
         [LCCSB] and the State of Ohio as clear and convincing, such
         that a grant of permanent custody of the minor child to
         [LCCSB] was warranted.

         {¶18} The right to raise one’s own child is a basic and essential civil right.

In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a

‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269,

¶6. These rights may be terminated, however, under appropriate circumstances

and when all due process safeguards have been followed. Id. When considering

a motion to terminate parental rights, the trial court must comply with the

statutory requirements set forth in R.C. 2151.414. These requirements include in

pertinent part as follows.

         (B)(1) Except as provided in division (B)(2) of this section, the
         court may grant permanent custody of a child to a movant if the
         court determines at the hearing held pursuant to division (A) of
         this section, by clear and convincing evidence, that it is in the
         best interest of the child to grant permanent custody of the child


1
   Ashley filed a notice of appeal, but failed to file a brief alleging an assignment of error. However, she
has not been formally dismissed from this appeal.


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Case No. 8-09-07


      to the agency that filed the motion for permanent custody and
      that any of the following apply:

      (a) The child is not abandoned or orphaned or 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 ending on or
      after March 18, 1999, 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.

      ***

      (2) With respect to a motion made pursuant to [R.C.
      2151.413(D)(1)], the court shall grant permanent custody of the
      child to the movant if the court determines in accordance with
      division (E) of this section that the child cannot be placed with
      one of the child’s parents within a reasonable time or should not
      be placed with either parent and determines in accordance with
      division (D) of this section that permanent custody is in the
      child’s best interest.

      (C) In making the determination required by this section * * *,
      a court shall not consider the effect the granting of permanent
      custody to the agency would have upon any parent of the child.
      A written report of the guardian ad litem of the child shall be
      submitted to the court prior to or at the time of the hearing held
      pursuant to division (A) of this section * * * but shall not be
      submitted under oath.

      ***

      (D)(1) In determining the best interest of a child at a hearing
      held pursuant to division (A) of this section * * *, the court shall
      consider all relevant factors, including, but not limited to, the
      following:

      (a) The interaction and interrelationship of the child with the
      child’s parents, siblings, relatives, foster caregivers and out-of-



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Case No. 8-09-07


      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
      services 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 the agency;

      (e) Whether any of the factors in divisions (E)(7) to (11) of this
      section apply in relation to the parents and child.

      ***

      (E) In determining at a hearing held pursuant to division (A) of
      this section * * * whether a child cannot be placed with either
      parent within a reasonable period of time or should not be
      placed with the parents, the court shall consider all relevant
      evidence. If the court determines by clear and convincing
      evidence, at a hearing held pursuant to division (A) of this
      section * * * that one or more of the following exist as to each of
      the child’s parents, the court shall enter a finding that the child
      cannot be placed with either parent within a reasonable time or
      should not be placed with either parent:

      (1) Following the placement of the child outside the child’s
      home and notwithstanding reasonable case planning and
      diligent efforts by the agency to assist the parents to remedy the
      problems that initially caused the child to be placed outside the
      home, the parent has failed continuously and repeatedly to
      substantially remedy the conditions causing the child to be
      placed outside the child’s home. In determining whether the
      parents have substantially remedied those conditions, the court


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Case No. 8-09-07


       shall consider parental utilization of medical, psychiatric,
       psychological, and other social and rehabilitative services and
       material resources that were made available to the parents for
       the purpose of changing parental conduct to allow them to
       resume and maintain parental duties.

       (2) Chronic mental illness, chronic emotional illness, mental
       retardation, physical disability, or chemical dependency of the
       parent that is so severe that it makes the parent unable to
       provide an adequate permanent home for the child at the
       present time and, as anticipated within one year after the court
       holds the hearing pursuant to division (A) of this section * * *;

       ***

       (4) The parent has demonstrated a lack of commitment toward
       the child by failing to regularly support, visit, or communicate
       with the child when able to do so, or by other actions showing
       an unwillingness to provide an adequate permanent home for
       the child;

       ***

       (14) The parent for any reason is unwilling to provide food,
       clothing, shelter, and other basic necessities for the child or to
       prevent the child from suffering physical, emotional, or sexual
       abuse or physical, emotional, or mental neglect.

       ***

       (16) Any other factor the court considers relevant.

R.C. 2151.414.

      {¶19} The trial court’s judgment terminating parental rights are required to

be supported by clear and convincing evidence. In re Robinson Children, 3d Dist.

Nos. 5-07-26, 5-07-27, 5-07-28, 5-07-29, 5-07-30, 5-07-31, 5-07-32, and 5-07-33,



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2008-Ohio-1139, ¶24. Thus, this court must determine whether the trial court’s

determination is supported by sufficient credible evidence to satisfy a higher

degree of proof than a mere preponderance of the evidence. Id. If there is such

evidence, this court must uphold the trial court’s decision. Id.

       {¶20} Kenny’s assignment of error is that the trial court erred in

terminating his parental rights. The case plan required Ashley and Kenny to 1)

apply for services through MRDD, 2) cooperate and follow the recommendations

of the service plans, 3) cooperate with the budgeting service, 4) sign releases for

information, 5) have a home free of violence and police involvement, 6) attend

counseling, and 7) participate in parenting classes. Ashley and Kenny complied

with signing the releases, the budgeting services, and Kenny successfully

completed the parenting class and applied the lessons during visits. They did not

apply for services through MRDD except those offered through Champaign

Residential Services, Inc. (“CRSI”). Ashley and Kenny did not follow through

with the recommendations made by the caseworkers at CRSI. They moved out of

public subsidized housing into a mobile home which they purchased for $200.

The lot rent was much higher than their prior rental payment and the mobile home

needed many repairs just to be habitable. When Kenny and Ashley separated,

Kenny sold the mobile home for $100 and had to seek assistance to get the mobile

home back after they reconciled.



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        {¶21} Ashley and Kenny have had a tumultuous relationship marked by

frequent separations and reconciliations. During the case, they separated for three

months.2 When they argue, they frequently call the police to resolve their issues.

Between May 5, 2007, and June 19, 2008, the police responded to 29 calls

concerning Ashley and Kenny.               The parties were referred for individual and

marital counseling by LCCSB. Although they attended some of the counseling

sessions, both Ashley and Kenny stopped attending counseling in April 2008.

        {¶22} The failure to seek the services offered by MRDD had a negative

effect on Kenny and Ashley.               They refused to work with MRDD to obtain

employment which would bring additional income to the home.3 They did not

utilize the services that would have helped them learn independent living skills

such as cooking, cleaning, personal hygiene, and budgeting. The trial court noted

that even after LCCSB filed for permanent custody, Kenny and Ashley did

nothing to improve their situation and show their desire to have L.J. returned to

them. In fact, the parents did less. Thus, the trial court could conclude that the

parents were demonstrating a lack of commitment to L.J..

        {¶23} Based upon the above competent, credible evidence, the trial court

could reasonably conclude that Kenny and Ashley have not complied with the case



2
  Evidence in the record subsequent to the hearing indicates that Kenny and Ashley had again separated.
3
   The only income of the parties was social security disability payments and any money brought in by
Kenny working odd jobs and scrapping metal.


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plan and have thus “failed to remedy the conditions causing the child to be placed

in foster care.” R.C. 2151.414(E)(1),(4). Having made this finding, the trial court

is required to make a finding that the children either cannot or should not be

returned to their parents within a reasonable time. R.C. 2151.414(E). Once that

finding is made, the trial court only needs to determine if granting permanent

custody to LCCSB would be in L.J.’s best interest.

        {¶24} R.C. 2151.414(D) requires the trial court to consider specific factors.

The trial court considered the relationship of L.J. with her parents, foster parents,

and other relatives. He found that L.J. had little bond with Ashley as Ashley

generally acted as an observer during visits. Although L.J. played with Kenny, the

trial court found that due to her age there was no significant bond with him. This

despite the fact that both Ashley and Kenny made almost all of their visits, only

missing due to illness. The trial court also found that due to L.J.’s limited visits

with the grandparents and other relatives, there was no strong bonds with them. In

contrast, the trial court noted that L.J. had developed a strong bond with her foster

parents.4 L.J. even suffered separation anxiety during visits and became fussy




4
    This attachment should be expected when an infant is taken from the hospital and placed with foster
parents. L.J. only saw her biological parents for two hours per week and one hour of that time was shared
with grandparents. The foster parents were with her the remaining hours of the week. Thus, it is natural
that she would develop a strong relationship with them.


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until reunited with the foster mother.5

        {¶25} Due to L.J.’s young age, she was not able to express her own wishes.

The GAL, acting on behalf of L.J., filed her report stating that, in her opinion, L.J.

would prefer to remain with the foster parents. The child had spent her entire life

with the foster parents. In comparison, L.J. had only spent approximately 27

hours with Ashley and Kenny since her birth. The trial court also determined that

the foster parents were the only ones who could guarantee that L.J. have a

permanent placement.

        {¶26} The trial court considered all of the statutory factors and its findings

were supported by competent, credible evidence. Based upon these factors, the

trial court determined that granting permanent custody to LCCSB would be in

L.J.’s best interest. Since both the finding that L.J. could not be placed with her

parents within a reasonable time and that a grant of permanent custody to LCCSB

was in L.J.’s best interest are supported by some competent and credible evidence,

this court must affirm the judgment of the trial court. Kenny’s assignment of error

is overruled.

        {¶27} The Johnsons’ also claim that the trial court erred in granting

permanent custody to LCCSB when they wished to have custody of their


5
     The trial court classified it as “attachment disorder.” There was no testimony that there was an
attachment disorder, only that the child was upset when separated from the foster mother. This is
developmentally appropriate for a child of that age when separated from the primary caregiver and not the
result of some underlying disorder.


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Case No. 8-09-07


granddaughter. Unlike the parents, grandparents do not have a fundamental right

to raise their grandchildren and have no inherent legal rights based solely upon

their family relationship. In re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, ¶9,

868 N.E.2d 261.

         [A] trial court is not required to consider placing a child with a
         relative prior to granting permanent custody to an agency. In re
         Zoms, [10th Dist.] No. 02AP-1297, 2003-Ohio-5664, ¶28.
         Relatives seeking custody of a child are not afforded the same
         presumptive legal rights that a parent receives. Id. A trial
         court does not even need to find by clear and convincing
         evidence that a grandparent is not a suitable placement option.
         In re A.D., [8th Dist.] No. 85648, 2005-Ohio-5441, ¶12. Instead, it
         is within the trial court’s discretion to determine whether to
         place children with a relative, such as grandmother.

In re J.S. et al., 10th Dist. Nos. 05AP-615, 05AP-616, 05AP-622, 05AP-623,

05AP-627, 05AP-628, 2006-Ohio-702, ¶34.

        {¶28} Here, McClure testified that the Johnsons’ home was inappropriate.

The GAL also testified that the home was inappropriate because it was smoky.

However MacGillivray did testify that the Johnsons’ had purchased a crib and

other necessary supplies and that the Johnsons’ room, although small, would be

appropriate for a baby. This court notes that McClure testified that the she had

heard from other sources, such as MRDD, that the Johnsons had a history with

LCCSB6 and had issues cooperating with service providers. Interestingly, when



6
    No testimony was presented as to what this prior history was or what the outcome was. McClure just
testified that she had heard about it.


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one of the service providers for MRDD testified concerning her interactions with

the Johnsons, she described them as needing financial help, but generally

cooperative. All of the testimony was that the Johnsons behaved appropriately

with L.J. during visits, made all of the visits, and loved the child. There also was

no testimony that the Johnsons would not be able to parent L.J.. The general

consensus was that they were too financially challenged to be granted custody and

that the foster parents would be a better placement.

       {¶29} If the standard of review were clear and convincing, this court could

find that LCCSB had not met its burden of proof that L.J. should not be placed

with the Johnsons. However, the standard of review is abuse of discretion. A

review of the record indicates that there is some competent, credible evidence to

support the judgment of the trial court.       Thus, this court must affirm that

judgment. The Johnsons’ assignment of error is overruled.

       {¶30} Having found no error with the judgment of the Court of Common

Pleas of Logan County, the judgment is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J., Concurring in Judgment Only.
ROGERS, J., concurs.
/jlr




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