[Cite as In re J.P., 2016-Ohio-1262.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

          In the Matter of:                       :   Appellate Case No. 2015-CA-84
                                                  :
                J.P., J.P., J.P., and J.P.        :   Trial Court Case Nos. 2011-1567
                                                  :   Trial Court Case Nos. 2011-1568
                                                  :   Trial Court Case Nos. 2011-1569
                                                  :   Trial Court Case Nos. 2011-1570
                                                  :
                                                  :   (Juvenile Appeal from
                                                  :    Common Pleas Court)
                                                  :
                                                  :

                                             ...........

                                             OPINION

                            Rendered on the 25th day of March, 2016.

                                             ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

CYNTHIA L. WESTWOOD, Atty. Reg. No. Rogers & Greenberg, LLP, 2160 Kettering
Tower, Dayton, Ohio 45423
      Attorneys for Defendants-Appellants

                                         .............

FAIN, J.

        {¶ 1} H.M. and J.M. appeal from an order of the Clark County Common Pleas

Court, Juvenile Section, overruling their motion for legal custody of their four
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grandchildren and awarding permanent custody to the Clark County Department of Jobs

and Family Services, Children Services Division. They contend that the order is not

supported by the evidence.

       {¶ 2} We conclude that the juvenile court’s order is supported by competent,

credible evidence, and that the order is not against the manifest weight of the evidence.

Accordingly, the order of the juvenile court from which this appeal is taken is Affirmed.

                             I. The Course of Proceedings

       {¶ 3} In 2011, the Clark County Department of Jobs and Family Services, Children

Services Division (the Agency) filed a complaint for protective supervision over these

children due to concerns of sexual abuse.      At that time, the children were living with

their parents, J.P. and C.P. A protective supervision order was entered, and the children

and Father began residing with Father’s parents. C.P. was granted visitation. In April

2012, the family was reunited. Thereafter, following a domestic violence incident, the

protective supervision order was extended.

       {¶ 4} In December 2012, temporary custody was awarded to H.M. and J.M., who

are the maternal grandparents.        The children were removed from the maternal

grandparents’ home three months later, on March 7, 2013, following allegations by one

of the children that she had been molested by the adult son of H.M. and J.M., while

residing with the grandparents. In May 2013, legal custody of all four children was

awarded to a paternal aunt and uncle. In May 2014, the aunt and uncle moved to

terminate custody, due to their inability to care for the children. Temporary custody was

awarded to the Agency in July 2014, and the children were placed in foster care. In

February 2015, the Agency moved for permanent custody. J.M. and H.M. moved to
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intervene, and for legal custody. Their motion to intervene was sustained.

      {¶ 5} A hearing on permanent custody and the motion for legal custody was

conducted in August 2015. At that time, the children were nine, eight, seven, and five

years old.   Both parents, and their counsel, in open court and on the record,

acknowledged that the parents wanted to voluntarily relinquish their parental rights.

Evidence was adduced that neither parent had complied with their case plan despite

appropriate referrals by the Agency, and that they had not rectified any of the problems

leading to the Agency’s involvement.

      {¶ 6} The hearing proceeded upon the maternal grandparents’ motion for legal

custody. Evidence was presented that, prior to permitting H.M. and J.M. to assume

temporary custody of the children, the Agency conducted a home study of their residence.

The Agency approved the study.         However, the Agency later learned that the

grandparents were permitting other adults to live in their home, displacing the children

from their bedrooms. Indeed, H.M. and J.M. were aware that one man living there had

been accused of sexually abusing a family member. They permitted the man to live with

them despite this concern. The Agency further learned that there was a BB gun in the

residence, despite the fact that the Agency had questioned the grandparents about any

type of firearms, ammunition, or any object that would shoot projectiles. There was

testimony in the record that H.M. had fired the BB gun in the direction of the boys on at

least one occasion. The Agency indicated that the home study would not have been

approved had the grandparents informed it of these facts.

      {¶ 7} The Agency also submitted evidence that although the allegation of sexual

abuse could not be substantiated, it had substantiated that the children were being
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neglected during their time in the maternal grandparents’ home. There was evidence

that the grandparents permitted mother’s boyfriend access to the children, despite the

fact that the Agency specifically told them that such contact was inappropriate, because

the boyfriend had abused the children. The grandparents further permitted their son in

their home, despite the fact that he smoked marijuana around the children. Evidence

was adduced that the Agency had been involved with the grandparents since the mother

of the children, C.P., was an infant. Evidence was presented that C.P. had alleged that

H.M. had sexually abused her in the past; but there was also evidence that she had

recanted the allegation. There was evidence that C.P. was sexually abused on several

occasions as a child when she was living with H.M. and J.M. There was evidence that

the Agency had a long history with H.M. and J.M., having received 40 referrals regarding

H.M. and J.M. involving allegations of abuse and neglect as to both C.P. and her siblings,

as well as the grandchildren. Finally, it was determined that the grandparents had no

income other than approximately $730 per month in Social Security Disability benefits,

and they had no vehicle.

      {¶ 8} The juvenile court overruled the grandparents’ motion for legal custody, and

awarded permanent custody to the Agency. H.M. and J.M. appeal.

    II. The Order Awarding Permanent Custody to the Agency Is Supported by

      Sufficient Evidence, and Is Not Against the Manifest Weight of the Evidence

      {¶ 9} The grandparents’ sole assignment of error states as follows:

                    THE TRIAL COURT ERRED IN GRANTING PERMANENT

             CUSTODY TO THE CLARK COUNTY DEPARTMENT OF JOBS

             AND FAMILY SERVICES, CHILDREN SERVICES DIVISION, AS
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                 THE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING

                 EVIDENCE THAT PERMANENT CUSTODY WAS IN THE BEST

                 INTEREST OF THE CHILDREN AND SUCH, WAS AGAINST THE

                 MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 10} H.M. and J.M. contend that the evidence does not support the juvenile

court’s order.

       {¶ 11} Included among the dispositional orders a juvenile court may make

concerning an abused, neglected, or dependent child are committing the child to the

permanent custody of a public children services agency, or awarding legal custody to a

relative or any other person. R.C. 2151.353(A). When determining the disposition, the

best interest of the children is the primary consideration. In re L.C., 2d Dist. Clark No.

2010 CA 90, 2011-Ohio-2066, ¶ 13. On appeal, we will not reverse an award of legal

custody absent an abuse of discretion. In re Starks, 2d Dist. Darke No. 1646, 2005-

Ohio-1912, ¶ 17.

       {¶ 12} Thus, we must determine whether the evidence supports the juvenile court’s

finding that awarding legal custody to the grandparents would not be in the best interest

of the children.    In doing so, we look to the best-interest factors set forth in R.C.

3109.04(F). In re. K.Y., 2d Dist. Clark No. 2012-CA-71, 2013-Ohio-3039, ¶ 12. Those

factors include, among other factors, the wishes and concerns of the child, the child’s

interaction and relationship with the child’s parents, siblings, and other relatives, and the

child’s adjustment to the child’s home, school, and community. R.C. 3109.04(F).

       {¶ 13} The children have all indicated that they want to live with their foster parents,

and the oldest child has indicated that he does not want to be around H.M. and J.M. Two
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of the children have indicated that they do not feel safe in the grandparents’ home. The

Guardian ad Litem recommended that permanent custody be awarded to the Agency.

The GAL found the home to be dirty, and noted that one room had items piled from floor

to ceiling. Competent, credible evidence was presented that the children were in foster

care, that they were doing well, and that they were bonded to their foster parents. The

evidence also supports a finding that the foster parents wish to adopt the children. The

children had not had any interaction with H.M. and J.M. for the two years preceding the

hearing.

       {¶ 14} The trial court specifically found that H.M. and J.M. were aware that their

own children, including C.P., were sexually and physically abused by individuals they

allowed into their home. The court also found that there was credible evidence that H.M.

had sexually abused his daughter, C.P. The court stated that H.M. was not credible, and

that he was evasive and furtive when denying allegations that he had abused his own

children. The court found that the grandparents did not understand the nature of the

damage suffered by their grandchildren, and that they did not persuade the court that they

could prevent future abuse. The court further found that the history of abuse, along with

the report of the GAL that H.M. and J.M.’s residence was dirty and lacked adequate

space, rendered their motion for legal custody meritless.

       {¶ 15} We conclude that the juvenile court did not abuse its discretion in

determining that the best interest of the children would be served by awarding permanent

custody to the Agency, that its order is supported by sufficient evidence, and that its order

is not against the manifest weight of the evidence.

       {¶ 16} The sole assignment of error is overruled.
                                                                                -7-


                                     III. Conclusion

       {¶ 17} The sole assignment of error having been overruled, the order of the

juvenile court from which this appeal is taken is Affirmed.

                                     .............



DONOVAN, P.J., and FROELICH, J., concur.


Copies mailed to:

Megan M. Farley
Cynthia L. Westwood
James Griffin
Melissa Tuttle
Gregory Lind
Michael Edwards
Hon. Joseph N. Monnin
