In re G.S.

[Cite as In re G.S., 2016-Ohio-1197.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

IN RE: G.S. C.A. No. 27967
J.S.

APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 14-07-474
DN 14-07-475

DECISION AND JOURNAL ENTRY

Dated: March 23, 2016

CARR, Presiding Judge.

{¶1} Appellant, Belinda C. (“Mother”) appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that terminated her parental rights to her two minor

children and placed them in the permanent custody of Summit County Children Services

(“CSB”). This Court affirms.

I.

{¶2} Appellant is the mother of G.S., born August 11, 2004, and J.S., born September

20, 2008. The biological father of G.S. is Donald S. and the biological father of J.S. is Tim S.

Neither man is a party to this appeal. At the time the current case began, the children were

residing with Mother and Tim S. Donald S. has had very little contact with the family over the

years and no participation in these proceedings.

{¶3} Before CSB initiated the present case, the agency had prosecuted two prior

dependency cases against the family based on concerns of homelessness, substance abuse,
 2

domestic violence, and an inability to provide for the basic needs of the children. See In re G.S.

& J.S., Summit C.P. Juv., Nos. DN 10-10-757 and DN 10-10-758 and In re G.S. & J.S., Summit

C.P. Juv., Nos. DN 12-10-661 and DN 12-10-662. Both earlier cases ended with a termination

of protective supervision by the agency and a return of the children to the legal custody of

Mother. The present matter was begun on July 23, 2014, with a complaint that alleged that the

children were abused, neglected, and dependent. CSB claimed that Mother failed to properly

supervise her children, failed to provide them with sufficient and nutritious food, was involved in

criminal activity, and that the family had recently been evicted from its home. CSB also claimed

that the children had witnessed domestic violence, drug use, and damaging of property in the

home. Mother and Tim S. agreed to the emergency placement of the children with Megan S.

(“Paternal Aunt”), the sister of G.S.’s father.

{¶4} The trial court adjudicated both children to be neglected and dependent, and

additionally adjudicated J.S. to be abused by endangerment. Based on the testimony presented at

the hearing, the trial court made several findings of fact. First, the trial court found that police

were alerted to a car parked in Barberton, containing Mother and J.S. in February 2014. Mother

was reclined in the front seat and J.S. was awake in the back. J.S. unlocked the door for the

officer and complained of the cold. He had no coat or shoes. The police officer had difficulty

rousing Mother, and her explanation that she was waiting for a friend to get off work in Ravenna

made no sense to the officer. The police permitted Donald S.’s father to retrieve the child.

Second, the trial court found that police responded to a call on May 25, 2014, that a man, later

determined to be Tim S., was hiding in the bushes and claiming that his wife had stabbed him.

Tim S. also claimed that he and Mother had argued about Mother smoking methamphetamine.

The police observed him “to be under the influence” based on his rapid and incoherent speech,
 3

constricted pupils, and inability to stand still. Third, the trial court found that the police

responded to a call four days later, on May 29, 2014, involving Mother, Tim S., and three others.

They had apparently been arguing about drug paraphernalia. Tim S. ran away and when found

by police, he claimed that Mother told him to run away with drugs she had given him. Finally,

the trial court found that paternal grandfather, the father of Donald S., had permitted Mother and

the children to stay with him in June 2014, when they had no other place to stay. When the

grandfather denied Mother the use of his car, she “punched him” and took the car. The car was

later found to have been damaged and the word “pervert” scratched into it. Based on these facts,

the trial court concluded that CSB had sufficiently established domestic violence, transient

housing, and irrational behavior by Mother and Tim S., along with the likelihood that such

behavior was caused or aggravated by drug abuse.

{¶5} Following the dispositional hearing, temporary custody was granted to the agency

and CSB continued the placement of the children with Paternal Aunt. The court appointed

independent counsel to represent the children because their wishes conflicted with the

recommendation of the guardian ad litem. See In re B.W., 9th Dist. Medina No. 12CA0016-M,

2012-Ohio-3416, ¶ 41, citing In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶ 17-18, 29.

The guardian ad litem recommended that neither child should be returned to their parents.

According to the attorneys appointed to represent children, G.S.’s preference was to live with his

father, Donald S., and his brother, while J.S.’s preference was to live with Mother. If placement

with those parents did not work out, the attorneys reported that both boys would choose to live

with Paternal Aunt along with their brothers. Both boys were said to be happy and well-adjusted

to living with Paternal Aunt.
 4

{¶6} The trial court adopted a case plan which required the parents to (1) provide for

the basic needs of the children by becoming more financially stable, maintaining safe and stable

housing, providing proper nourishment, providing clean clothing, and assuring consistent school

attendance; (2) participate in therapeutic counseling for domestic violence and violent

relationships; and (3) complete a chemical dependency evaluation and follow all

recommendations, including random drug tests at the request of CSB and/or the assessor. The

children and their caregiver were to engage in counseling and the caregiver was to follow

recommendations for parenting, interaction, and dispensing medications. Weekly visitation was

offered to Mother and Tim S. at the visitation center, and Mother was offered additional visits

under the supervision of Paternal Aunt.

{¶7} On February 25, 2015, CSB moved for permanent custody of the children.

Following a hearing, the trial court granted permanent custody to CSB and terminated the

parents’ parental rights to the children. Mother has appealed and has assigned one error for

review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT AWARDED PERMANENT CUSTODY OF THE CHILDREN TO
SUMMIT COUNTY CHILDREN SERVICES BASED ON THE INTERESTS
OF THE CUSTODIAN AND NOT THE BEST INTERESTS OF THE
CHILDREN.

{¶8} Mother contends the trial court erred in granting permanent custody to CSB and

claims it should have granted legal custody to Paternal Aunt instead. For the reasons that follow,

this Court finds Mother’s argument to be without merit.
 5

{¶9} Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the

child or another child of the same parent has been adjudicated abused, neglected, or dependent

three times; or that the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2)

that the grant of permanent custody to the agency is in the best interest of the child, based on an

analysis under R.C. 2151.414(D). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re

William S., 75 Ohio St.3d 95, 99 (1996).

{¶10} The trial court made two first prong findings in this case: (1) the children could

not or should not be placed with either parent within a reasonable time; and (2) the children had

been adjudicated abused, neglected, or dependent on three separate occasions. See R.C.

2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(e). In support of the finding that the children could

not or should not be placed with either parent within a reasonable time, the trial court found that

Mother and Tim S., J.S.’s father, had not remedied the conditions that brought the children into

care. See R.C. 2151.414(E)(1). The court also found that Donald S., G.S.’s father, had

demonstrated a lack of commitment to his son. See R.C. 2151.414(E)(4). Mother has not

challenged the first prong findings of the trial court. Rather, Mother challenges only the finding

that permanent custody was in the best interest of the children, and she asserts that an award of

legal custody to Paternal Aunt would have been in the best interests of the children instead. See

R.C. 2151.414(D)(1)(a)-(e).
 6

{¶11} When determining whether a grant of permanent custody is in the children’s best

interest, the juvenile court must consider all relevant factors, including those enumerated in R.C.

2151.414(D)(1): the interaction and interrelationships of the children, the wishes of the children,

the custodial history of the children, the children’s need for permanence in their lives, and

whether any of the factors in R.C. 2151.414(E)(7)-(11) apply. See In re R.G., 9th Dist. Summit

Nos. 24834 & 24850, 2009-Ohio-6284, ¶ 11. “Although the trial court is not precluded from

considering other relevant factors, the statute explicitly requires the court to consider all of the

enumerated factors.” In re Smith, 9th Dist. Summit No. 20711, 2002 WL 5178, *3, (Jan. 2,

2002).

1. The personal interactions and interrelationships of the children

{¶12} The two boys share a very close bond, and their most important relationship is

with each other. They consistently expressed a desire to live together and a concern that they

might be separated. The guardian ad litem emphasized that the two boys love each other and are

very protective of each other. Caseworker Christina Kist testified similarly and stated her belief

that it is very important that they be kept together.

{¶13} As far as the children’s relationship with Mother, Caseworker Kist testified that

the boys love her and they are all very affectionate with each other. The guardian ad litem said

that they were always happy to see each other at visits and she believes there is a bond between

them. During visits, they sat together on a couch and played video games, laughed and joked.

The guardian ad litem did not see Mother bring any snacks, food, or gifts to visits.

{¶14} At the permanent custody hearing, Mother testified that she had three jobs:

driving a tow truck to haul junk cars, working at an auto parts store, and working at a pizza

place. She described the tow truck work as “sporadic.” She stated that her children are very
 7

well-mannered, polite, and have great values, and she takes credit for them being as kind as they

are. She took “a hundred percent responsibility” for their exposure to domestic violence and

everything that has affected them. At the same time, she refused to credit much of the negative

evidence presented by CSB. The record reveals convictions for disorderly conduct on September

11, 2013, criminal damaging on February 18, 2015, and assault and unauthorized use on

February 18, 2015. She claims the assault against the grandfather was self-defense, and she is

appealing the conviction. Mother denies that she damaged the grandfather’s vehicle and believes

he only wanted her to be incarcerated so that Paternal Aunt could get custody of the boys.

Mother denies being passed out in a car with J.S., who was unprepared for the cold weather.

Rather, she claims she fell asleep. She claims that she completed drug tests for the last six or

seven weeks, while apparently conceding that she completed no drug tests until that late date. At

the same time, she admits that drug usage has been a concern throughout the case and that she

did not complete a substance abuse evaluation as required by her case plan.

{¶15} The boys have resided with Paternal Aunt for a year since July 2014. Caseworker

Kist testified that neither Mother nor Tim S. expressed dissatisfaction with the care provided to

the children by Paternal Aunt. The children’s therapist believes the boys have a very positive

and loving relationship with Paternal Aunt. The therapist said Paternal Aunt articulates

appropriate boundaries and appears to be affectionate and involved with the boys.

{¶16} Paternal Aunt testified at the permanent custody hearing. She stated that she has

sufficient income and space in her home to meet the needs of the boys. She said that she and the

boys get along well and love each other. She recently took the boys on a vacation to

Disneyworld where G.S. had his 11th birthday. She said the boys enjoy her home and her pet

dogs, and they have a lot of friends. She testified that since being placed with her, G.S. has done
 8

very well in school and is very excited about his grades. His self-esteem has improved. J.S. has

overcome shyness, is much more talkative, and has developed more self-confidence. She

indicated that she was committed to following through with counseling for the children and

believed counseling with a third-party has helped them.

{¶17} The children are said to have relationships with several members of their extended

family, and there is evidence before the trial court that Paternal Aunt would maintain those

relationships. The boys have a good relationship with Mother’s parents and with Mother’s third

child, who resides with Mother’s parents. Paternal Aunt has a close relationship with Mother’s

parents as well and explained that they all get together for family celebrations. The guardian ad

litem believes it is important for those relationships to continue and believes Paternal Aunt

would continue them even if permanent custody is granted and she is permitted to adopt the boys

as she would like. The guardian ad litem added that future visits with Mother would be

beneficial to the boys “[u]nder certain circumstances” and believes Paternal Aunt would allow

such visits if she felt the conditions were safe and appropriate. In addition, Paternal Aunt has

kept the boys involved with her own parents (G.S.’s paternal grandparents) and her cousins.

{¶18} The record contains some evidence about the boy’s relationships with their

fathers. J.S. has said that he misses Tim S., his biological father. The record reveals that Tim S.

completed a drug evaluation through the probation department and participated in a halfway-

house program in mid-2015. When he was released from that program, he was to meet with the

caseworker about seeing his son again, but he failed to keep his scheduled appointment and he

failed to respond to her follow-up messages.

{¶19} G.S. has not seen his father, Donald S., for two years. G.S. rarely mentions his

father, but wishes he could spend time with him. He recalls the times he did spend with him and
 9

the fun he had. Paternal Aunt, who is Donald S.’s sister, and the caseworker each attempted to

reach him to arrange visits, but they were unable to make contact with him.

A. Therapy of the children

{¶20} In the course of reporting the relationships between the children and relatives, it is

important to also consider the testimony of Ruth Freeman, the licensed social worker at

Guidestone who provided in-home therapy to the children for almost a year before the permanent

custody hearing. Ms. Freeman explained that the boys were evaluated and treatment plans were

constructed for them. G.S.’s treatment plan focused on helping him deal with anxiety related to

the trauma he experienced while living with Mother and Tim S. G.S. told the therapist that he

had witnessed domestic violence between Tim S. and Mother, particularly reporting that Tim S.

woke Mother up by hitting her with his fist and also hit her on other occasions. G.S. told the

therapist that he was “scared” for Mother, and he tried to make her feel better by making her

laugh. He also witnessed name-calling between Mother and Tim S. J.S.’s treatment plan

focused on dealing with the emotional issues caused by the removal from his home, and his

adjustment to the placement with Paternal Aunt.

{¶21} The therapist testified to what she learned about the family’s existence prior to

removal of the children. The family had to move multiple times, and G.S. has always tried to

take care of his younger brother. He helped feed him and take care of him when the boys were

left alone at night or when Mother was asleep during the day. Both boys said they were

occasionally hungry and food was “minimally provided.” The boys mostly ate ramen noodles,

cereal, and hot dogs, which G.S. could prepare. They were said to be getting regular and more

varied meals now with Paternal Aunt, including vegetables and smoothies, which they liked.

The therapist believes it is important that the boys continue in counseling.
 10

B. Suspended visitation

{¶22} The therapist explained that the boys personally withdrew and regressed in their

treatment as a result of Mother’s broken promises and their inconsistent attendance at visits. She

reported that the children exhibited trauma-like behavior after Mother’s missed visits. The

caseworker also observed the children’s disappointment when Mother missed visits. Because of

these reactions, CSB requested that Mother call to confirm her visits to avert the necessity of

transporting the children forty minutes to the visitation center only to be disappointed. Mother

failed to comply with the request and also failed to attend a meeting she herself had requested

with CSB regarding the request.

{¶23} Therefore, on January 1, 2015, CSB moved to amend the case plan to suspend

visits. The magistrate granted the motion, observing that the parents had not complied with “any

case plan services.” The magistrate found the suspension of visits to be in the best interests of

the children until there was some case plan compliance that would demonstrate a commitment to

consistent and appropriate visits. The magistrate ruled that visits could be resumed upon

agreement of the guardian ad litem and the caseworker or upon further court order. An amended

case plan, reflecting the court-ordered suspension of visits, was adopted by the trial court.

{¶24} On July 31, 2015, shortly before the permanent custody hearing, the court denied

a motion to reinstate visits. The court found that psychological harm could result to the children

if visits resumed prior to the determination of the motion for permanent custody. The court

emphasized that it was relying upon information from the children’s therapist that the boys had

suffered serious neglect and abuse while in Mother’s custody and that the therapist was only able

to make progress in addressing the trauma issues after the visits with Mother had ceased. The
 11

court concluded that it was in the best interests of the children that visits not be reinstated before

permanent custody was addressed.

2. Wishes of the children

{¶25} As explained by their independent counsel, J.S.’s first preference is to live with

Mother, while his second choice is to stay with Paternal Aunt and his older brother, and G.S.

would like to live with his father, Donald S., while his second choice is to reside with Paternal

Aunt provided his younger brother is there.

{¶26} The guardian ad litem had worked with the family for three and one-half years

during this case as well as the prior case. She believes that permanent custody is in the best

interest of the children so that they might be able to reside in a stable, healthy, and productive

environment. She does not believe Mother has fully remedied the concerns of domestic

violence, employment, or substance abuse, and does not believe the parents are capable of

providing consistent care to the children. She believes that both children are happy in the care of

Paternal Aunt.

3. Custodial history

{¶27} The children resided with Mother and Tim S. when the present case began, but the

record is not clear as to how long they had resided with them. Since the initiation of the present

case, the children have resided with Paternal Aunt, approximately fourteen months until the

permanent custody hearing. Without providing dates, the caseworker testified that the boys have

recently lived with Mother, Tim S., Tim S.’s mother, Donald S.’s father, and Paternal Aunt.

Paternal Aunt testified that she and her father often took care of the boys on weekends while they

were growing up. She also explained that she had occasional placement of the children during

the previous dependency cases.
 12

4. Legally secure permanent placement

{¶28} There was evidence before the trial court that the children were in need of a

legally secure permanent placement and that it could only be achieved by an award of permanent

custody. The family was aware of the children’s situation, but no relatives sought legal custody

and there were no motions for legal custody before the trial court.

{¶29} Caseworker Kist testified that she believes permanent custody is in the best

interest of G.S. and J.S. She does not believe that the parents have remedied the safety issues

identified at the beginning of the case, nor does she believe that they could do so within a six-

month extension. The guardian ad litem similarly believes that Mother cannot provide an

appropriate home for the children and that she has failed to fully address domestic violence,

employment, and chemical dependency issues. Further, she believes Mother has not accepted

responsibility for the actions that caused the boys to come into care.

{¶30} Mother argues that the trial court should have granted legal custody to Paternal

Aunt instead of granting permanent custody to the agency. In so doing, she claims that

“inappropriate consideration was given to the wishes of the Aunt.” In support of her argument,

Mother points to the caseworker’s statement that the agency would have supported an award of

legal custody to Paternal Aunt. However, the caseworker specifically conditioned her statement

upon Paternal Aunt’s willingness to accept legal custody. In fact, the caseworker explained that,

once Paternal Aunt learned what legal custody meant, she consistently and adamantly maintained

that she wanted to pursue adoption and not legal custody.

{¶31} Paternal Aunt confirmed that position in her own testimony. She explained that

she had looked into the alternatives available to her as a caregiver. Her expressed desire is that,

rather than seeking legal custody of the children, she wants “to be able to adopt them.” She
 13

believes that, in that way, she can provide them with a home that is “safe and healthy.” In stating

that she is willing to consider future contact between the boys and their parents, she wants to

ensure that those relationships are healthy and that any contact be conducted in a safe and secure

setting.

{¶32} Paternal Aunt’s position is further supported by record evidence that the

caseworker had to intervene into the relationship between Mother and Paternal Aunt during the

trial court proceedings. Mother accused Paternal Aunt of “stealing” her children and Paternal

Aunt complained that Mother texted her in the middle of the night and was verbally abusive to

her. Paternal Aunt was not willing to accept legal custody of the children given these

circumstances.

{¶33} The Ohio Supreme Court has explained that in considering an award of permanent

custody, the juvenile court need not determine that the termination of parent rights was “the only

option.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 64 (2006). Nor must the court

find that no suitable relative was available for placement. Id. Rather, R.C. 2151.414 requires

that the juvenile court weigh all the relevant factors and “find the best option for the child.” Id.

“The statute does not make the availability of a placement that would not require a termination of

parental rights an all-controlling factor. The statute does not even require the court to weigh that

factor more heavily than other factors.” Id. Moreover, in the absence of any friends or relatives

seeking legal custody, that was not an option available to the trial court. See In re S.R.T., 9th

Dist. Summit 27978, 2016-Ohio-788, ¶ 28. Accordingly, Mother’s argument that the trial court

should have granted legal custody to Paternal Aunt is without merit.

{¶34} Mother’s sole assignment of error is overruled.
 14

III.

{¶35} Mother’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT

MOORE, J.
HENSAL, J.
CONCUR.

APPEARANCES:

RANDALL C. BRAY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.