Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re L.S.

Court of Appeals of Ohio, Second District, Montgomery

May 12, 2017

IN RE: L.S.

         Civil Appeal from Common Pleas Court No. 2013-6007, Juvenile Division

          ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Attorney for Appellee Montgomery County Children Services Board

          KELLY M. SCHROEDER, Atty. Reg. No. 0080637, Attorney for Appellant (Mother)

          ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Appellant (Father)

          OPINION

          FROELICH, J.

         {¶ 1} Mother and Father each appeal from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which granted permanent custody of their son, L.S., to Montgomery County Children Services (MCCS). For the following reasons, the judgment of the trial court will be affirmed.

         I. Procedural History

         {¶ 2} L.S. was born in July of 2013, and he was placed in the interim temporary custody of MCCS before his release from the hospital because there were multiple drugs present in his system at birth. Upon his release from the hospital, L.S. was placed in the care of an aunt for a couple of weeks. He moved to foster care in late August 2013, because the aunt was unable to care for him. L.S. has remained in the same foster home throughout these proceedings.

         {¶ 3} On November 8, 2013, the trial court found that L.S. was a dependent and abused child, and it continued the temporary custody of MCCS, with Mother's consent. (Paternity had not yet been established at that time.) Temporary custody was extended in July 2014 and January 2015.

         {¶ 4} Father established paternity of L.S. in approximately April 2015, but he did not have contact with MCCS or with L.S. throughout these proceedings. Father had been arrested in March or April 2014, had been convicted in June 2014 on drug and weapons offenses, went to prison, and will be incarcerated until 2022.

         {¶ 5} On July 6, 2015, MCCS filed a motion for permanent custody of L.S. Also in July 2015, B.S., Father's adult daughter and L.S.'s half-sister, contacted MCCS and expressed interest in obtaining custody of L.S. MCCS began an investigation into possible placement with B.S. On October 2, 2015, the guardian ad litem filed a motion for permanent custody of L.S. to MCCS. On October 9, 2015, Mother filed a motion requesting that permanent custody be returned to her or, in the alternative, that custody be awarded to a maternal aunt; she subsequently modified this motion to request that the alternate custodian be B.S. On November 6, 2015, Father also filed a motion requesting that custody be awarded to B.S.

         {¶ 6} On February 19, 2016, the magistrate held a hearing on all of the pending motions. On April 8, 2016, the magistrate filed a decision granting permanent custody to MCCS, and denying the motions for custody to Mother and B.S. Mother and Father filed objections. On February 6, 2017, the trial court overruled the objections and granted permanent custody of L.S. to MCCS.

         {¶ 7} Mother and Father have filed separate appeals, which we have consolidated. Mother raises three assignments of error, and Father raises one assignment.

         II. Requirements for an Award of Permanent Custody

         {¶ 8} R.C. 2151.414 establishes a two-part test for courts to apply when determining a motion for permanent custody of a child to a public children services agency. The statute requires the court to find, by clear and convincing evidence, that: (1) granting permanent custody of the child to the agency is in the best interest of the child; and (2) either the child (a) cannot be placed with either parent within a reasonable period of time or should not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of the child; or (d) has been in the temporary custody of one or more public or private children services agencies for twelve or more months of a consecutive twenty-two month period. R.C. 2151.414(B)(1); In re N.C., 2d Dist. Montgomery No. 26611, 2015-Ohio-2969, ¶ 13.

         {¶ 9} R.C. 2151.414(D)(1) directs the trial court to consider all relevant factors when determining the best interest of the child, including but not limited to: (a) the interaction and interrelationship of the child with the child's parents, relatives, foster parents 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; (c) the custodial history of the child, including whether the child has 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; (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; and (e) whether any of the factors in R.C. 2151.414(E)(7) through (11) are applicable. See also In re N.C. at ¶ 14. R.C. 2151.414(E)(7) through (11) include whether the parent has been convicted of any of a number of listed offenses; whether the parent has repeatedly withheld medical treatment or food; whether the parent has placed the child at substantial risk of harm two or more times due to substance abuse and has rejected treatment two or more times or refused to participate in treatment; whether the parent has abandoned the child; and whether the parent has had parental rights previously terminated.

         {¶ 10} All of the court's findings must be supported by clear and convincing evidence. R.C. 2151.414(E); In re J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-186, ¶ 9. A trial court's decision on termination of parental rights "will not be overturned as against the manifest weight of the evidence if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established." (Citations omitted.) In re L.J., 2d Dist. Clark No. 2015-CA-85, 2016-Ohio-2658, ¶ 21, citing In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15.

         {¶ 11} Furthermore, "issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact." In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-433, ¶ 22. The "rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co., Inc. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.