[Cite as In re K.R., 2011-Ohio-5694.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
IN THE MATTER OF: K.R. :
: C.A. CASE NO. 2011 CA
39
: T.C. NO.
2011-117
: (Civil appeal from Common Pleas Court,
Juvenile Division)
:
:
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OPINION
Rendered on the 4th day of November ,
2011.
..........
ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting
Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield,
Ohio 45501
Attorney for Plaintiff-Appellee
THEODORE D. VALLEY, Atty. Reg. No. 0070867, 854 East Franklin Street,
Centerville, Ohio 45459
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Appellant S.R. (Mother) appeals from a judgment of the Clark
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County Court of Common Pleas, Juvenile Division, which denied her
motion to place her child in the temporary custody of her cousin or
alternatively with either of the two friends that she recommended. For
the following reasons, the judgment of the trial court will be Affirmed.
I
{¶ 2} On January 27, 2011, Family and Children’s Services of Clark
County (FCSCC) filed a complaint alleging that Mother’s newborn child,
K.R., was an abused and dependent child. A shelter care hearing was
held, after which K.R. was placed in the temporary shelter care of
FCSCC, and a Guardian ad Litem (GAL) was appointed.
{¶ 3} In February, 2011, the GAL filed a report recommending that
temporary custody of K.R. be granted to FCSCC. The following month,
the GAL filed a more detailed report, recommending that FCSCC have
temporary custody of K.R. and that she remain in her current foster
home. On March 15, 2011, K.R. was found to be a dependant child, and
she was placed in the temporary custody of FCSCC.
{¶ 4} In April, 2011, Mother filed a motion requesting that K.R. be
placed in the temporary custody of either Mother’s cousin Jennifer R., or
one of her friends Angela K. or Amanda V., all of whom had passed home
studies conducted by FCSCC, and all of whom she alleged were
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appropriate and willing care givers for her child.1 At this time the GAL
also filed a supplemental report.
{¶ 5} The GAL filed an additional report prior to the May 9, 2011
hearing on Mother’s motion. The trial court concluded that it was in the
child’s best interest to remain in the temporary custody of FCSCC and to
stay in her current foster home rather than being moved to any of the
homes that Mother had recommended. From this decision, Mother
appeals.
II
{¶ 6} Mother’s First Assignment of Error:
{¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTIONS.”
{¶ 8} Mother’s Second Assignment of Error:
{¶ 9} “THE TRIAL COURT’S DECISION REGARDING K.R.’S BEST
INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 10} Mother argues that the trial court abused its discretion in
denying her motion for placement of K.R. with one of the three
individuals that she proposed because the court’s conclusion that it was
in K.R.’s best interest to remain in the same foster home rather than
being moved into one of those three homes was against the manifest
1
For privacy reasons, we will only use first names and an initial.
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weight of the evidence.
{¶ 11} “If a child is adjudicated an abused, neglected, or dependent
child, the court may [c]ommit the child to the temporary custody of a
public children services agency, a private child placing agency, either
parent, a relative residing within or outside the state, or a probation
officer for placement in a certified foster home, or in any other home
approved by the court.” R.C. 2151.353(A)(2). “In choosing among the
alternatives, the best interest of the child is the court’s primary
consideration. In re L.C., Clark App. No. 2010 CA 90, 2011-Ohio-2066,
¶13, citations omitted.
{¶ 12} The trial court retains jurisdiction over the child until she is
eighteen years old, during which time the court may amend its
dispositional order in compliance with R.C. 2151.42. R.C.
2151.353(E)(1) and R.C. 2151.417(B). When a trial court reviews the
child’s placement or custody, the court “shall determine the
appropriateness of any agency actions, the safety and appropriateness of
continuing the child’s placement or custody arrangement, and whether
any changes should be made with respect to the child’s * * * placement
or custody arrangement.” R.C. 2151.417(A). In considering the
potential modification or termination of a dispositional order issued under
R.C. 2151.353, the court must consider the best interest of the child.
R.C. 2151.42(A).
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{¶ 13} A trial court necessarily has substantial discretion in weighing
the considerations involved in making the determination regarding a
child's best interest, and the court’s determination will not be reversed
absent an abuse of that discretion. In re K.H., Clark App. No.
2009-CA-80, 2010-Ohio-1609, ¶66. A trial court abuses its discretion
when its decision is “unreasonable, arbitrary or unconscionable.“
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 14} “In assessing a manifest weight challenge in the civil context,
we will not reverse a judgment as being against the manifest weight of
the evidence where the judgment ‘is supported by some competent,
credible evidence going to all the essential elements of the case.’” In re
S.S., Montgomery App. No. 22980, 2008-Ohio-294, ¶47, quoting
Gevedon v. Ivey, 172 Ohio App.3d 567, 2007-Ohio-2970, ¶54, in turn
quoting C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279.
“[W]hen reviewing a judgment under a manifest-weight-of-the-evidence
standard, a court has an obligation to presume that the findings of the
trier of fact are correct. * * * This presumption arises because the trial
judge had an opportunity ‘to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.’ * * * ‘A reviewing
court should not reverse a decision simply because it holds a different
opinion concerning the credibility of the witnesses and evidence
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submitted before the trial court. A finding of an error in law is a
legitimate grounds for reversal, but a difference of opinion is not.’” Id. at
¶48, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶24.
{¶ 15} At the May 9, 2011 hearing on Mother’s motion, the trial
court heard testimony from Mother, two FCSCC workers, the GAL,
Jennifer R., Amanda V., Angela K., and Tommie C. (the legal guardian of
one of Mother’s other children, and sister to Angela K.). The trial court
also had before it the safety audit reports for the three homes
recommended by Mother and the four GAL reports.
{¶ 16} The FCSCC case worker testified that there were no major
safety concerns with any of the three homes suggested by Mother and
suggested that K.R. be placed in one of those homes. The primary
advantage of any of the homes was that the three potential care givers
were all willing and able to facilitate the development of a relationship
between K.R. and her half-brother, as well as with other relatives.
However, no visitations had been established between any of the three
recommended care givers and K.R. during the first few months of her
life.
{¶ 17} The GAL’s reports indicate that she and the case worker
visited the homes of Jennifer R., Amanda V., and Angela K. Jennifer was
not present for the first scheduled meeting; she called later in the day
and advised the case worker that she could not keep the scheduled
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interview because her son was home. A later visit was scheduled at
which time the GAL learned that Jennifer had lived in their home, which
was in need of repairs, for ten years. Jennifer is unemployed and
supports her family with child support money that she receives for her
three children and food stamps. Jennifer had a previous relationship
with a man who had recently been released from prison. When asked
about the relationship, “she became very agitated and refused to give
CASA any information about him.” Jennifer has a 2006 conviction for
driving without a license.
{¶ 18} The GAL described Amanda V.’s home as dirty, unsafe, and
overcrowded, without the financial resources necessary to be able to add
K.R. to the household. Amanda was unemployed at that time and
supported her family with welfare and the social security benefits of her
seven-year-old, whose father died. By the time of the May 9, 2011,
hearing, however, Amanda reported that she was employed. Amanda
had prior involvement with FCSCC for a neglect screening in 1997. In
2000, she was charged with two counts of child endangering and was
convicted of one count of disorderly conduct.
{¶ 19} The GAL reported that Angela K. works part-time. Although
Angela’s five-bedroom home is large enough to have room for K.R., the
baby’s room would be located far from Angela’s. There was also some
concern that while Angela’s bedroom contained a bed, the other four
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bedrooms had only mattresses on the floor. More importantly, however,
neither of Angela’s adult roommates was home, so they were unable to
sign releases of information. By the time of the hearing, it appears that
one of the adult roommates and her two children had moved out of the
home. In 2000, Angela was charged with failure to display a dog
license, two counts of failure to control her dog, and failure to obey a
health department ordinance; she was found guilty by waiver.
{¶ 20} In all four of the GAL’s written reports, she recommended
that K.R. be in the temporary custody of FCSCC and remain in the foster
home in which she had been placed since birth, where she was doing
very well. The GAL expressed concern that while both Amanda and
Angela explained that they wanted to keep K.R. out of foster care,
neither of the women expressed a desire to “love, nurture, and provide
the best life for” K.R. Nor had either woman “had any kind of
relationship with [Mother] or her family for years.”
{¶ 21} In its decision, the trial court found that “while any of the
three (3) proposed custodians may be [able] to meet the needs of the
child, the child’s best interest would be served by remaining in the
temporary custody of FCSCC with placement in the current foster home.”
The court explained that the child is an infant who “has no relationship
with her mother, father, or any relatives. * * * The only family that
the child knows is her foster parents.”
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{¶ 22} The trial court further stated that “it is agreed by all parties
that the child is safe, secure, and well cared for in her current placement.
Her foster parents have provided for her many needs. The testimony
clearly indicates that the child is well served and blessed to be in a loving
and appropriate foster home, at this time in her life. There is no
justification offered to remove the child from placement where she is well
cared for. It is clearly in the best interest of this child to remain in the
home, which she has known, since her removal from the home of her
parents. It is not in her best interest to be removed from the only
‘family’ that she knows, and to place her with people that have had no
interaction or relationship with her. Simply yanking a child from the only
home that she knows, to place her with a friend of the mother, would not
serve her needs or be in her best interest.”
{¶ 23} Thus, the court concluded that “the motion of the mother for
an order granting legal custody of her child to strangers and/or distant
relatives is not in the best interest of the child. Considering all relevant
factors the child is well served by remaining in the home where she
resides, and remains in her best interest to stay there.”
{¶ 24} The trial court’s decision was based upon competent, credible
evidence; the decision was not against the manifest weight of the
evidence, and the trial court did not abuse its discretion in concluding
that it was in K.R.’s best interest to remain in the temporary custody of
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FCSCC and to stay in the same foster home where she had lived since
birth, and where she was thriving, rather than to be moved to the home
of a relative or family friend with whom she had experienced no previous
contact.
{¶ 25} Mother’s first and second assignments of error are overruled.
III
{¶ 26} Mother’s assignments of error having been overruled, the
judgment of the trial court is Affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Andrew R. Picek
Theodore D. Valley
Hon. Joseph N. Monnin