[Cite as In re L.H., 2016-Ohio-8284.]


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

IN RE: L.H.                                           C.A. No.       28090



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 13-10-691

                                 DECISION AND JOURNAL ENTRY

Dated: December 21, 2016



        MOORE, Presiding Judge.

        {¶1}     Appellant, Tyrone P. (“Father”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that placed his minor child in the legal custody of a

maternal relative. This Court affirms.

                                                 I.

        {¶2}     Father is the biological father of L.H., born October 20, 2013. The child’s mother

(“Mother”) did not appeal from the trial court’s judgment.

        {¶3}     Shortly after L.H. was born, Summit County Children Services Board (“CSB”)

filed a complaint to allege that he was a dependent child because Mother had tested positive for

drugs during her pregnancy, failed to seek regular prenatal care, and had two older children who

had been permanently placed outside her custody because of her history of drug use and

domestic violence. L.H. was placed in the emergency temporary custody of Mother’s cousin
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(“Cousin”). Following the adjudication of L.H. as a dependent child, the trial court placed him

in the temporary custody of Cousin.

       {¶4}   Father had been present at the birth of L.H. and knew that CSB had removed him

from Mother’s custody, but he did not become involved in this case for several months.

Although Father always believed that he was the father of L.H., Mother had apparently

suggested otherwise.   During March 2014, paternity testing confirmed that Father was the

biological father of L.H. Until Father’s paternity was conclusively established, the paternal

grandmother (“Grandmother”) did not reach out to CSB to request visits with L.H. Grandmother

began visiting L.H. when he was five months old and visits were eventually extended to

bimonthly weekend visits at her home. Although Grandmother requested that L.H. be placed in

her custody, L.H. was already placed with a relative, Cousin, who had completed all of the

necessary assessments and had been approved for placement by CSB. L.H. had been living in

Cousin’s home for several months, was doing well there, and, according to the caseworker,

Cousin was “the only mother that [L.H.] has ever known[.]”

       {¶5}   During September 2014, Mother gave birth to a daughter, K.H., who is not a party

to this appeal because she is not Father’s child. Because Mother stopped complying with the

requirements of case plan in K.H.’s case, K.H. was also placed in the temporary custody of

Cousin.   For the next several months, both children continued to reside with Cousin and

developed a loving bond with Cousin and each other.

       {¶6}   By January 2015, Mother had stopped working on the reunification goals of the

case plan and had stopped communicating with Cousin and her children, the caseworker, and her

service providers. Father also failed to make progress toward remedying his parenting problems.

Consequently, CSB eventually moved the trial court to place L.H. in the legal custody of Cousin.
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Father and Mother alternatively requested that L.H. be placed in the legal custody of

Grandmother. Following a final dispositional hearing before a magistrate, L.H. was placed in the

legal custody of Cousin.     The trial court overruled Father’s objections to the magistrate’s

decision and placed L.H. in the legal custody of Cousin.           Father appeals and raises one

assignment of error.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       GRANTING [CSB’S] MOTION FOR LEGAL CUSTODY AND DENYING
       FATHER’S MOTION FOR LEGAL CUSTODY.

       {¶7}    Father’s sole assignment of error is that the trial court erred in placing L.H. in the

legal custody of Cousin rather than Grandmother. After an adjudication of neglect, dependency,

or abuse, “the juvenile court’s determination of whether to place a child in the legal custody of a

parent or a relative is based solely on the best interest of the child.” In re K.H., 9th Dist. Summit

No. 27952, 2016-Ohio-1330, ¶ 12. “Although there is no specific test or set of criteria set forth

in the statutory scheme, courts agree that the trial court must base its decision [regarding legal

custody] on the best interest of the child.” In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-

110, ¶ 23, citing In re Fulton, 12th Dist. Butler No. CA2002-09-236, 2003-Ohio-5984, ¶ 11.

       {¶8}    The focus of the legal custody hearing was on the parenting ability of the potential

custodians (Cousin and Grandmother) and whether it was in the best interest of L.H. to be

permanently placed in the legal custody of either of them. See In re K.C., 9th Dist. Summit Nos.

26992, 26993, 2014-Ohio-372, ¶ 20. CSB and the trial court recognized that Cousin and

Grandmother both had good relationships with L.H. and that either would be a suitable custodian
                                                   4


for him. The trial court found, however, that it was in the best interest of L.H. to remain in the

home of Cousin, where he had lived his entire life.

       {¶9}    Father does not dispute that Cousin is a suitable custodian for L.H. His primary

argument is that, because Grandmother has a closer blood relationship to L.H. than Cousin, the

trial court should have given her preference in its best interest determination. Father relies on a

decision from another appellate district, In re J.B.S., 4th Dist. Scioto No. 09CA3316, 2010-Ohio-

1974. Even if this Court were to accept the reasoning of that decision, it fails to support Father’s

argument.

       {¶10} To begin with, In re J.B.S. was an appeal from a trial court’s decision to place the

child in the legal custody of a non-relative. See id. at ¶ 4, 14. Here, L.H. was placed with

Cousin, who is also a relative. Moreover, although In re J.B.S. noted that “appropriate relatives”

should generally be given priority consideration over nonrelatives, it emphasized that a blood

relationship, in and of itself, does not control the trial court’s best interest determination. Id. at ¶

25. Instead, the court emphasized the bond that the J.B.S. had developed with her relatives and

siblings while placed in the relative’s home and concluded that it was “unreasonable” for the

child “to be torn from the only family that she has ever known.” Id. at ¶ 25-26. The court’s

emphasis in In re J.B.S. was on the child’s interaction and emotional bond with her relatives, not

simply their blood relationship. Id.

        {¶11} By the end of the legal custody hearing in this case, L.H. had lived with Cousin

for his entire 20-month life. The caseworker and the guardian ad litem described the close bond

between L.H. and Cousin and testified that L.H. is very comfortable in Cousin’s home. The

guardian ad litem described their interaction as “[j]ust like a mother and a child would have.”

Moreover, several witnesses testified about the close relationship between L.H. and his younger
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half-sibling, K.H., who also lived in Cousin’s home. CSB had also requested that K.H. be placed

in the legal custody of Cousin and that motion was not opposed. The trial court appropriately

weighed in Cousin’s favor the fact that the siblings would remain together if L.H. was also

placed in Cousin’s legal custody. Grandmother has no blood relationship to K.H. and was not

seeking legal custody of her. Although Grandmother expressed a willingness to allow visits

between L.H. and K.H., if L.H. had been placed in Grandmother’s legal custody, he would no

longer have day-to-day contact with K.H.

       {¶12} Father has failed to demonstrate that the trial court incorrectly weighed the best

interest factors to conclude that legal custody to Cousin was in the best interest of L.H. Father’s

assignment of error is overruled.

                                                III.

       {¶13} Father’s assignment of error is overruled. The judgment of the Summit 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 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(C). The Clerk of the Court of Appeals is
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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



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

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

RONALD GATTS, Attorney at Law, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.
