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In re R.Mc.

Court of Appeals of Ohio, Fourth District, Hens

March 29, 2018

IN RE R.Mc., ADJUDICATED NEGLECTED AND DEPENDENT CHILD.

          David J. Winkelmann, Millfield, Ohio, for Appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge

         {¶1} The mother appeals the trial court's decision granting permanent custody of her child to Athens County Children Services ("the agency"); she contends that the trial court erred when it failed to find by clear and convincing evidence that kinship placement with the maternal grandmother was unsuitable prior to awarding permanent custody. The mother acknowledges that under Ohio law, a trial court is not required to find by clear and convincing evidence that kinship placement is unsuitable. However, she argues for a change in the evidentiary standard in order to preserve some aspect of a parent's right to care and custody of the child and to preserve sibling relationships. However, the Supreme Court of Ohio has already considered this issue and has ruled that, under the relevant statutory provisions, a trial court has no duty to find by clear and convincing evidence that no suitable kinship placement was available in order to award permanent custody to an agency. Thus any change in the standard will have to come from that court or the legislature.

          {¶2} We overrule the mother's assignment of error and affirm the trial court's judgment.

         I. FACTS & PROCEDURAL HISTORY

         {¶3} The agency filed a dependency complaint and motion requesting temporary custody of R.Mc. due to concerns over the mother's substance abuse and overall instability. R.Mc.'s father is currently serving an extended prison term and was in prison during all relevant times. The trial court adjudicated R.Mc. a neglected and dependent child and granted the agency temporary custody. The agency filed a motion for permanent custody after the mother failed to address her substance abuse issues. In response, the mother filed a motion asking the trial court to grant legal custody to R.Mc.'s maternal grandmother.

         {¶4} In a permanent custody hearing in October 2017 the agency presented testimony about efforts to reunify the family, as well as possible placement with various relatives. A social worker who had been counseling R.Mc. testified that the child was fearful of the maternal grandmother because she had hit R.Mc, splitting the child's lip, and that the child had stated a preference to live with the foster parents. A kinship caseworker testified that she investigated R.Mc.'s maternal grandmother for possible kinship placement but she had a number of concerns, including the grandmother's own long history with the agency involving neglect allegations.

         {¶5} On cross-examination the grandmother admitted that she had past involvement with the agency involving her own children and neglect allegations. The grandmother admitted that she had hit R.Mc. and split the child's lip after the child had surprised her by coming up behind her.

          {¶6} The trial court found that it was in the best interest of the child to terminate parental rights and grant permanent custody to the agency. The trial court denied the mother's motion to grant legal custody to the maternal grandmother and ordered that R.Mc. be placed in the agency's permanent custody, thus terminating the mother and father's parental rights.

         II. ASSIGNMENT OF ERROR

         {¶7} The mother raises one assignment of error:

         I. THE TRIAL COURT ERRED IN FAILING TO FULLY CONSIDER KINSHIP PLACEMENT WITH [R.Mc.'S] MATERNAL GRANDMOTHER ...


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