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In re T.H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 25, 2019

IN RE T.H. A Minor Child [Appeal by Father]

          Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division Case No. AD-17-904898

          Mark A. Stanton, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.



         {¶ 1} Appellant-Father ("father"), appeals the juvenile court's decision awarding permanent custody of his minor child to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). For the reasons that follow, we affirm the juvenile court's decision.

         {¶ 2} On March 24, 2017, CCDCFS filed a complaint for dependency and temporary custody following the child's birth due to mother's failure to provide appropriate care for the child and father's inability to establish paternity, and provide basic needs due to his criminal history. CCDCFS received emergency custody on April 17, 2017. On July 19, 2017, the child was adjudicated dependent and the agency was subsequently granted temporary custody in September 2017.

         {¶ 3} After the child was placed in the custody of CCDCFS, father was evasive with CCDCFS, preventing the agency from referring him for case planning services. During that time, father did not seek visitation with the child. In fact, CCDCFS had no contact with father until he was apprehended in December 2017 on an outstanding capias on a criminal matter. Father was subsequently sentenced to three years in prison.

         {¶ 4} Although father was in prison, his sister expressed an interest in visiting and caring for the child. However, because paternity had not been established, father's sister was not initially considered a relative for legal purposes. Following the establishment of paternity and a background check, paternal aunt was granted visitation with the child in June 2018. Between this time and the time of trial, paternal aunt attended four of the eight scheduled visitations.

         {¶ 5} On October 13, 2017, the CCDCFS filed a motion to modify temporary custody to permanent custody. On May 21, 2018, father moved to terminate temporary custody and grant legal custody to his sister, the child's paternal aunt. Hearings were held on the motions in July, August, and early October 2018.

         {¶ 6} Testimony was given that the child's mother has had no contact with the minor child since the child's removal and placement with CCDCFS. Evidence established that mother had her parental rights terminated regarding another child who was placed with, and adopted by, the foster family where the minor child subject to this case was placed and currently lived.

         {¶ 7} Testimony was presented by both the child's guardian ad litem ("GAL") and the foster mother, that the child has lived with the foster mother for almost her entire life - at the time of the hearings, the child was two and one-half years old. They testified that the child has a strong bond with her foster family, which includes the child's half-brother. According to the GAL, the child considers her foster family as her family and the home as her home. In his written report, the GAL noted that the child "appears to be thriving in her current environment." Foster mother testified that she wished to adopt the child.

         {¶ 8} Paternal aunt testified that she wanted legal custody of the child to maintain the family relationship. The testimony and evidence revealed that she was declined consideration for the child's placement because of a situation involving her daughter, who was convicted of disorderly conduct, domestic violence, and assault. Additionally, paternal aunt admitted that she had a pending criminal charge and was recently convicted for driving under suspension. Testimony was presented, however, that the visitations between the child and paternal aunt were appropriate and that the child actively engaged with the paternal aunt.

         {¶ 9} Although the GAL testified that the child's bond with her foster family was strong and that she was thriving in her current environment, he recommended that the juvenile court deny CCDCFS's petition for permanent custody, but grant legal custody to foster mother and award paternal aunt visitation. The GAL justified his recommendation based his perception that the foster mother was "overstepping" her role as a foster parent and that it was in the child's best interest to protect the relationship she has with her biological family. The GAL made this recommendation despite conducting a thorough investigation and background check of the paternal aunt.

         {¶ 10} On October 29, 2018, the juvenile court granted CCDCFS's motion to place the child in the permanent custody of CCDCFS and denied father's ...

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