Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court No. 2013-6007, Juvenile
B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting
Attorney, Attorney for Appellee Montgomery County Children
M. SCHROEDER, Atty. Reg. No. 0080637, Attorney for Appellant
ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Appellant
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
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.
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
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. ...