[Cite as In re D.P., 2020-Ohio-17.]


                                          COURT OF APPEALS
                                      COSHOCTON COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT



                                                     JUDGES:
IN THE MATTER OF:                                    Hon. William B. Hoffman, P. J.
                                                     Hon. John W. Wise, J.
        D.P.                                         Hon. Patricia A. Delaney, J.

        DEPENDENT CHILD                              Case No. 2019CA0008

                                                     OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Juvenile Division, Case No.
                                                  21730035


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          January 6, 2020



APPEARANCES:

For Appellee CCJFS                                For Appellant-Mother

CHRISTIE M.L. THORNSLEY                          E. MARIE SEIBER
ASSISTANT PROSECUTOR                             6525 Walkers Lane SE
318 Chestnut Street                              Uhrichsville, Ohio 44683
Coshocton, Ohio 43812
Coshocton County, Case No. 2019CA0008                                                   2


Wise, J.

       {¶1}   Appellant Stephanie S. appeals the decision of the Coshocton County Court

of Common Pleas, Juvenile Division, which granted permanent custody of her minor son,

D.P., to Appellee Coshocton County Job and Family Services. The relevant facts leading

to this appeal are as follows.

       {¶2}   On June 29, 2017, Appellee CCJFS filed a complaint in the trial court

alleging that D.P., born in 2015, was a dependent and neglected child. CCJFS alleged

inter alia that there were concerns of parental drug abuse, unstable and unsafe home

conditions, mental health issues, and domestic violence in the home. Following a shelter

care hearing, D.P was placed in the temporary custody of CCJFS.

       {¶3}   On September 20, 2017, appellant stipulated to a dependency finding. A

case plan was presented to the trial court, and, as to disposition, D.P. was ordered to be

maintained in the temporary custody of CCJFS.

       {¶4}   On September 6, 2018, CCJFS filed a motion for permanent custody.

       {¶5}   An evidentiary hearing was scheduled for December 14, 2018. However,

on November 1, 2018, about six weeks before the hearing, one of D.P.’s maternal aunts,

Jolene B., contacted the agency caseworker and requested a home study for placement

and potential legal custody of the child. Tr. 183, 239.1

       {¶6}   According to the record before us, CCJFS generally contracts for home

studies with an outside specialist, Marcia Schmitt. However, upon receipt of Jolene B.’s

November 1, 2018 request, the assigned CCJFS caseworker, Erin Heard, decided not to



1  By that time, the agency had already considered and rejected two other relatives for
potential placement and/or legal custody. We presently find it unnecessary to recite the
details of these investigations by the agency.
Coshocton County, Case No. 2019CA0008                                                 3


make a referral to Schmitt; instead, she essentially reviewed the aunt’s extensive prior

Ohio children services involvement in Ohio via the Statewide Automated Child Welfare

Information System (“SACWIS”). Tr. at 238. Based on this review, the agency did not

pursue Jolene B. as a potential person for placement or eventual legal custody.

Caseworker Heard also found out later that appellant and Jolene B. were living in the

same home. Heard later testified that had she known of this arrangement, Jolene’s

request would have been automatically denied. Tr. at 239.

      {¶7}   The permanent custody motion was heard by the trial court on December

14, 2018 and January 12, 2019. The trial court issued a 21-page decision granting

permanent custody to the agency on March 21, 2019, approximately five months after the

aforesaid request by the aunt, Jolene B., for a home study.

      {¶8}   On April 22, 2019, appellant-mother filed a notice of appeal. She herein

raises the following two Assignments of Error:

      {¶9}   “I. THE COURT ERRED AS A MATTER OF LAW BY PROCEEDING TO

A BEST INTEREST ANALYSIS WITHOUT FIRST FINDING THAT THERE HAD BEEN

SUBSTANTIAL COMPLIANCE WITH OHIO ADMINISTRATIVE CODE §5101:2-42 ET

SEQ. REGARDING RELATIVE PLACEMENT BY COSHOCTON COUNTY JOB AND

FAMILY SERVICES WITH MATERNAL AUNT, JOLENE B.

      {¶10} “II.   II. THE FINDING BY THE COURT THAT JFS HAD PROPERLY

FINALIZED A PERMANENCY PLAN WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE DUE TO JFS'S FAILURE TO CONDUCT A HOME SAFETY AUDIT AND

HOME STUDY IN SUBSTANTIAL COMPLIANCE WITH OHIO ADMINISTRATIVE CODE

§5101:2-42 ET SEQ. FOR MATERNAL AUNT JOLENE B.”
Coshocton County, Case No. 2019CA0008                                                         4


                                                   I.

       {¶11} In her First Assignment of Error, appellant contends the trial court erred in

failing to determine whether the agency had substantially complied with OAC 5101:2-42

et seq. regarding D.P.s maternal aunt, prior to the court granting permanent custody of

D.P. to CCJFS. We disagree.

       {¶12} OAC 5101:2-42 sets forth the regulations applicable to public children

services agencies' authority to place a child in a substitute home. In re A.F., 12th Dist.

Butler No. CA2019-01-005, 2019-Ohio-4627, ¶ 61. In particular, OAC 5101:2-42-05(A)

states: “When a child cannot remain in his or her own home, the public children services

agency (PCSA) or private child placing agency (PCPA) shall explore both maternal and

paternal relatives including a non-custodial parent regarding their willingness and ability

to assume temporary custody or guardianship of the child. Unless it is not in the child's

best interest, the PCSA or PCPA shall explore the non-custodial parent before

considering other relatives.”

       {¶13} R.C. 2151.353(A)(3) provides, in pertinent part: “If a child is adjudicated an

abused, neglected, or dependent child, the court may make any of the following orders of

disposition: * * * Award legal custody of the child to either parent or to any other person

who, prior to the dispositional hearing, files a motion requesting legal custody of the child

or is identified as a proposed legal custodian in a complaint or motion filed prior to the

dispositional hearing by any party to the proceedings. * * *.” See, also, Matter of C.C., 5th

Dist. Muskingum No. CT2017-0085, 2018-Ohio-2686, ¶ 16. If permanent custody to an

agency is in a child’s best interests, “legal custody to [a relative] necessarily is not.” In re

V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 61. But
Coshocton County, Case No. 2019CA0008                                                       5


it has also been aptly recognized that, as a general rule, “a parent has no standing to

assert that the court abused its discretion by failing to give [a third party] legal custody;

rather, the challenge is limited to whether the court's decision to terminate parental rights

was proper.” In re S.C., 8th Dist. Cuyahoga No. 106701, 2018-Ohio-2523, 115 N.E.3d

813, ¶ 16 (citations and internal quotations omitted).

        {¶14} The trial court’s grounds for granting permanent custody in the case sub

judice were primarily based on R.C. 2151.414(B)(1)(a). See Judgment Entry at 15, 17.

The focus of this statutory subsection is whether there is clear and convincing evidence

that it is in the best interest of the child to grant permanent custody to the agency and that

“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.” In determining this question of whether a

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, a trial court is mandated to consider all relevant

evidence in light of the factors set forth in R.C. 2151.414(E), including the catch-all “any

other factor the court considers relevant.”

        {¶15} However, appellant herein provides no clear authority for her proposition

that substantial compliance with the regulations for substitute care and relative

placements in OAC 5101:2-42 functions as a mandatory hurdle to be cleared before a

trial court may grant permanent custody to an agency. Indeed, “*** OAC Section 5101

pertains to [an agency’s] obligations and its determination regarding substitute-care

placement, rather than a trial court's permanent custody determination.” In re S.C., supra,

at ¶ 62, citing In re J.F., 8th Dist. Cuyahoga No. 105504, 2018-Ohio-96, 102 N.E.3d 1264,

¶ 36.
Coshocton County, Case No. 2019CA0008                                                    6




       {¶16} In the case sub judice, appellant states that for purposes of this appeal, her

unfitness as a parent “is admitted.” Appellant’s Brief at 8. Upon review, we find the trial

court, relying inter alia on R.C. 2151.414(B)(1)(a), 2151.414(D)(1), and 2151.414(E), duly

heard the evidence and rendered a detailed and lawful decision accordingly. We conclude

the grant of permanent custody of D.P. to CCJFS was made in the consideration of the

child's best interests and did not constitute reversible error.

       {¶17} Appellant's First Assignment of Error is therefore overruled.

                                                 II.

       {¶18} In her Second Assignment of Error, appellant contends the trial court erred

in concluding that CCJFS had properly finalized a permanency plan, alleging that the

home study concerning the aunt, Jolene B., was not done in substantial compliance with

OAC 5101:2-42, et seq. We disagree.

       {¶19} R.C. 2151.412(A) states as follows:

                (A) Each public children services agency and private child placing

       agency shall prepare and maintain a case plan for any child to whom the

       agency is providing services and to whom any of the following applies:

                (1) The agency filed a complaint pursuant to section 2151.27 of the

       Revised Code alleging that the child is an abused, neglected, or dependent

       child;

                (2) The agency has temporary or permanent custody of the child;

                (3) The child is living at home subject to an order for protective

       supervision;
Coshocton County, Case No. 2019CA0008                                                     7


               (4) The child is in a planned permanent living arrangement.

      {¶20} Generally, the case plan serves as the permanency plan for the child. See

In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 41.

      {¶21} Appellant, in similar fashion to her argument in the first assigned error, fails

to present any clear authority that substantial compliance with the regulations for

substitute care and relative placements in OAC 5101:2-42 is a prerequisite to the trial

court accepting an agency’s permanency plan for a dependent child subject to the court’s

jurisdiction in a permanent custody matter.2

      {¶22} Appellant's Second Assignment of Error is therefore overruled.

      {¶23} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Coshocton County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



JWW/d 1219




2  Furthermore, although not discussed in the briefs, case planning is specifically
addressed in another regulatory chapter, OAC 5101:2-38.
