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In re T.L.W.

Court of Appeals of Ohio, Second District, Montgomery

August 2, 2019

IN RE T.L.W. and L.W.

          Juvenile Appeal from Common Pleas Court Nos. 2015-2394, 2015-2396

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor's Office, Attorney for Plaintiff-Appellant

          CHARLES W. SLICER, Atty. Reg. No. 0059927, Attorney for Mother

          OPINION

          HALL, J.

         {¶ 1} The Montgomery County Department of Job and Family Services, Children Services Division (MCCS), appeals from the trial court's judgment entry sustaining appellee Mother's objections to a magistrate's decision regarding the disposition of her two minor children, LW. and T.W.

         {¶ 2} MCCS advances four assignments of error. First, it contends the trial court erred in sustaining Mother's objection to the magistrate's decision awarding MCCS permanent custody of L.W. MCCS argues that the trial court improperly rejected the magistrate's decision "without conducting the statutorily required best interest analysis." Second, MCCS claims the trial court abused its discretion in rejecting the magistrate's decision awarding MCCS permanent custody of L.W. Third, MCCS asserts that the trial court abused its discretion in rejecting the magistrate's decision awarding legal custody of T.W. to Mother's cousin T.B.[1] Fourth, MCCS argues that the trial court erred in terminating the agency's temporary custody of L.W. and T.W. and returning legal custody to Mother "without conducting additional hearings."

         {¶ 3} The record reflects that MCCS filed separate neglect and dependency complaints in April 2015 with regard to Mother's children, L.W. and T.W. At the time of the complaints, L.W. was two months old, and T.W. was 15 months old. The complaints alleged that Mother was unable to care for her children's basic needs as she lacked income and appropriate housing.[2] MCCS obtained interim temporary custody in May 2015. The following month, both children were adjudicated dependent. MCCS was granted temporary custody of L.W., and Mother's cousin was granted temporary custody of T.W. First and second extensions of temporary custody were granted in both cases. Thereafter, in March 2017, MCCS moved for permanent custody of L.W. and for legal custody of T.W. to be granted to Mother's cousin. In April 2017, Mother moved to have legal custody returned to her in both cases. The case proceeded to a January 2018 hearing before a magistrate. Based on the evidence presented, the magistrate awarded MCCS permanent custody of L.W. and awarded Mother's cousin legal custody of T.W. In separate March 8, 2018 decisions, the magistrate found (1) that L.W. had been in MCCS' temporary custody for 12 or more months of a consecutive 22-month period and that awarding the agency permanent custody was in the child's best interest and (2) that awarding Mother's cousin legal custody of T.W. was in the child's best interest.

         {¶ 4} Mother filed objections and supplemental objections to both of the magistrate's decisions. Following briefing, the trial court resolved the objections in an April 19, 2019 decision and judgment entry. With regard to L.W., the trial court agreed with the magistrate's determination that the child had been in MCCS' temporary custody for 12 or more months of a consecutive 22-month period. However, the trial court rejected the magistrate's best-interest determination. Based on its own review of the record, the trial court found it in L.W.'s best interest to be reunited with Mother. As a result, the trial court sustained Mother's objection to the magistrate's decision, overruled MCCS' motion for permanent custody, and sustained Mother's motion for legal custody. With regard to T.W., the trial court again rejected the magistrate's best-interest determination and found it in the child's best interest to be reunited with Mother. Consequently, the trial court overruled Mother's cousin's motion for legal custody and sustained Mother's motion for legal custody. The trial court also granted MCCS six months of protective supervision. This appeal by MCCS followed.

         {¶ 5} In its first assignment of error, MCCS contends the trial court failed to conduct "the statutorily required best interest analysis" before denying its motion for permanent custody of L.W. MCCS notes that R.C. 2151.414(D)(1) obligated the trial court to "consider all relevant factors, including those set forth in the statute, when determining whether an award of permanent custody to the agency was in L.W.'s best interest. MCCS also notes that while the trial court "need not specifically enumerate each of the R.C. 2151.414(D)(1) factors in its decision, 'there must be some indication on the record that all of the necessary factors were considered.' " In re K.T.1, 1st Dist. Hamilton Nos. C-170667, et al., 2018-Ohio-1381, ¶14, quoting In re G.B., 10th Dist. Franklin No. 04AP-1024, 2005-Ohio-3141, ¶ 17. Here MCCS asserts that the trial court merely summarized the evidence as it pertained to each statutory best-interest factor. MCCS argues that this was insufficient, as a matter of law, to demonstrate that the trial court "considered" the best-interest factors as required by R.C. 2151.414(D)(1). MCCS argues that the trial court's analysis and holding did not mention the best-interest factors, focusing instead on other issues. Therefore, MCCS urges us to reverse the trial court's decision based on an error of law, namely a failure to "truly consider the best interest of L.W.

         {¶ 6} Upon review, we find MCCS' argument to be without merit. It is nearly impossible to read the trial court's opinion and conclude that it did not "consider" the best-interest factors under R.C. 2151.414(D)(1). Near the outset of its ruling (which was 22 single-spaced pages), the trial court stated that it would determine whether it was in the best interest of L.W. to grant permanent custody to MCCS. (Montgomery C.P. No. 2015-2396, Doc. # 4 at 4).[3] The trial court then stated that it would consider all relevant factors, including those identified in R.C. 2151.414(D)(1). (Id.). Following that statement, the trial court devoted nine single-spaced pages to identifying each best-interest factor and detailing the evidence as it pertained to each factor. (Id. at 4-12). This exercise by the trial court, alone, persuades us that it satisfied its statutory responsibility to "consider" the best-interest factors. But the trial court did more. In the pages that followed, it explicitly engaged in a best-interest analysis. Among other things, it found that Mother substantially had completed her case-plan objectives. The trial court recognized that this fact was not dispositive but found it to be a relevant best-interest consideration. (Id. at 12-13). The trial court also specifically analyzed the best-interest factor in R.C. 2151.414(D)(1)(d) regarding L.W.'s need for a legally secure placement and whether it could be achieved without awarding permanent custody to MCCS. (Id. at 14). The trial court's analysis then took into consideration "the significant time the child has been in Agency custody and in the placement of the current foster family, as well as the relationship that the child and foster family have built." (Id. at 15).These considerations implicated at least two additional statutory best-interest factors. See R.C. 2151.414(D)(1)(a) and (c). Finally, the trial court explained that it was considering what would "best promote the care, protection, and mental and physical development" of L.W. (Id. at 16). This statement embodied the concerns underlying all of the best-interest factors.

         {¶ 7} Having reviewed the record, we find no support for MCCS' assertion that the trial court failed to "consider the statutory best-interest factors or to conduct the required best-interest analysis.[4] Accordingly, the first assignment of error is overruled.

         {¶ 8} In its second assignment of error, MCCS argues that trial court abused its discretion in sustaining Mother's objection to the magistrate's decision regarding the best interest of L.W. Specifically, MCCS claims the trial court disregarded overwhelming evidence that awarding the agency permanent custody was in the child's best interest.

         {¶ 9} To obtain permanent custody and terminate Mother's parental rights, MCCS was required to establish by clear and convincing evidence that such a disposition was in L.W.'s best interest and that the child had been in the agency's temporary custody for at least 12 of the preceding 22 months. In re J.N ., 2d Dist. Montgomery No. 28247, 2019-Ohio-1800, ¶ 13. We apply an abuse-of-discretion standard to the trial court's resolution of the best-interest issue. In re L.T., 2d Dist. Montgomery No. 26922, 2016-Ohio-605, ¶ 4. The phrase "abuse of discretion" implies a decision that is unreasonable, arbitrary, or unconscionable. Id. Therefore, we may not reverse the trial court's decision based on a mere difference of opinion or substitution of our judgment for that of the trial court. With these standards in mind, we see no abuse of discretion in the trial court's determination that awarding Mother legal custody of L.W. was in the child's best interest. As a result, the trial court did not err in declining to award MCCS permanent custody.

         {¶ 10} In determining what is in the best interest of a child, a trial court must consider all relevant factors, including, but not limited to, (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers, and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child, as expressed directly by the child or through the child's guardian ad litem; (3) the custodial history of the child, including whether the child has been in the temporary custody of public or private children services agencies for 12 or more months; and (4) 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. R.C. 2151.414(D).[5]

         {¶ 11} In its decision, the trial court detailed the evidence as it pertained to each of the foregoing factors. (Doc. # 4 at 4-12). With regard to L.W.'s interaction and interrelationship with others, the trial court noted that the child was well bonded with a foster family that had cared for him since April 2015. The trial court also found that L.W. was bonded with Mother, who had maintained regular visits. The trial court noted that L.W. sometimes asked to stay with Mother after visits were completed. The trial court also recognized that the foster parents had treated L.W. for pink eye, reflux, and asthma. Additionally, the trial court noted that L.W. had undergone counseling for anxiety-related issues that manifested themselves while in the foster family's care. The trial court observed that L.W. had special "sensory" toys such as a trampoline, bean bags, and a blanket.

         {¶ 12} As for L.W.'s wishes, the trial court noted that the child was only two years old at the time of the permanent custody hearing. As a result, the child's wishes had not been ascertained or explored. With regard to L.W.'s custodial history, the trial court recognized that ...


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