[Cite as In re G.M., 2011-Ohio-4090.]

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 95410 

IN RE: G.M. 

 

Minor Child 

 

[APPEAL BY GRANDMOTHER, P.C.M.] 

JUDGMENT: 

AFFIRMED 

 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. AD 08935487 

BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J. 

RELEASED AND JOURNALIZED: August 18, 2011 
 

ATTORNEY FOR APPELLANT GRANDMOTHER

Jeffrey R. Froude 

P.O. Box 761 

Wickliffe, OH 44092-0761 

ATTORNEY FOR APPELLEES A.M., ET AL., FOSTER PARENTS 

 

Mark Witt 

6209 Barton Road 

North Olmsted, OH 44070-3856 

 

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES 

 

William D. Mason 

Cuyahoga County Prosecutor 

BY: Gina S. Lowe 

Assistant County Prosecutor 

Cuyahoga County Department of Children 

 and Family Services 

4261 Fulton Parkway 

Cleveland, OH 44144 

GUARDIAN AD LITEM FOR CHILD

Russell Ezolt 

26341 Strawberry Lane 

Westlake, OH 44145 
MELODY J. STEWART, P.J.: 

{¶ 1} Appellant, P.C.M., the maternal grandmother to a now 

four-year-old child, G.M., appeals from a juvenile division order that granted 

legal custody of the child to foster parents, J.M. and A.M. The grandmother 

complains that the court lacked jurisdiction to hear the case, that the child’s 

guardian ad litem had no authority to file a motion on behalf of the foster 

parents, and the court’s judgment is against the manifest weight of the 

evidence.1

I 

{¶ 2} The child was born to a teenage mother in California in 

November 2006. His paternity has not been established. The child and 

mother lived with the grandmother, but the grandmother’s full-time pursuit 

of a nursing degree meant that various family members helped raise him. In 

February 2008, the grandmother moved from California to Georgia and 

brought the child with her. The mother stayed behind in California and 

would occasionally visit in Georgia. At times, the mother took the child to 

 1

During oral argument, the guardian ad litem suggested that we lacked jurisdiction to hear this 

appeal because the court did not establish a visitation schedule, instead deferring that matter for a later 

hearing. We disagree. Unlike permanent custody cases that require both an adjudicatory and 

dispositional order for finality, see In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, 

¶8, “[t]here is no provision within R.C. Chapter 2151 addressing motions for visitation filed by a 

parent who has lost legal custody of a child after a finding of dependency.” In re C.J., 4th Dist. No. 

10CA681, 2011-Ohio-3366, ¶15. Visitation is thus ancillary to legal custody and has no effect on 

the finality of a legal custody order. 
Ohio to visit with his maternal grandfather, M.M. By April 2008, the 

grandmother was devoting so many hours to advancing her nursing career 

that she arranged for some friends in Ohio to foster the child. The foster 

parents apparently understood this arrangement to be a prelude to their 

adopting the child. In June 2008, the child required medical attention, but 

the foster parents were unable to have the child treated because they had no 

legal authority over the child. The Cuyahoga County Department of 

Children and Family Services (“agency”) filed an emergency motion for 

temporary custody of the child so that the child could obtain medical 

treatment. The court appointed a guardian ad litem for the child, granted 

the agency’s motion for emergency custody, and placed him with the foster 

parents. 

{¶ 3} In June 2009, the agency filed a motion asking the court to award 

legal custody of the child to the grandmother. The child’s guardian ad litem 

objected and filed his own motion asking the court to award legal custody of 

the child to the foster parents. The paternal grandfather then filed his own 

motion for legal custody. The parties later reached an interim agreement on 

visitation and withdrew their respective motions, and the court continued the 

child in the temporary custody of the foster parents. 

{¶ 4} The agreement between the parties unraveled, however, when 

the agency filed an amended case plan in which it stated a goal to return the 
child to the grandmother. The child’s guardian ad litem objected and filed a 

new motion asking the court to grant legal custody to the foster parents. The 

agency filed a new motion asking the court to grant legal custody to the 

grandmother, and the grandfather filed a new motion seeking legal custody 

for himself. The court conducted a hearing on the motions and found that it 

would be in the child’s best interests to have legal custody placed with the 

foster parents. 

II 

{¶ 5} The grandmother first argues that the court lacked jurisdiction to 

hear the matter under the Interstate Compact on the Placement of Children 

(“ICPC”) because the child had spent less than six months in the state of Ohio 

at the time motions for legal custody were filed. She argues that only the 

California or Georgia courts could rule on the custody motions. 

{¶ 6} The ICPC is a contract among member states and U.S. territories 

authorizing them to work together to ensure that children who are placed 

across state lines for foster care or adoption receive adequate protection and 

support services. See R.C. 5103.20, Article I, Section (A)-(C). This is 

accomplished by ensuring that if a child is moved across state lines, that 

child’s rights are protected as if they were in their home state and all legal 

requirements are observed. The compact characterizes states as either 

“sending” or “receiving.” The sending agency/state is a member state that 
sends, brings, or causes to be sent or brought any child to another member 

state. Id. at Article II, Section (T). The receiving state is the state to which 

the child is sent, brought, or caused to be sent or brought for placement with 

state or local public authorities, or for placement with private agencies or 

persons. Id. at Article II, Section (P). The ICPC states that jurisdiction is 

vested in the sending state “over a child with respect to all matters of custody 

and disposition of the child which it would have had if the child had remained 

in the sending state. Such jurisdiction shall also include the power to order 

the return of the child to the sending state.” Id. at Article IV, Section (A). 

{¶ 7} The ICPC applies only if a state had previously exerted some 

form of jurisdiction over a child. The record does not show that any other 

state agency had exerted jurisdiction over the child before he was moved to 

Ohio. It appears that the first time a state agency became involved occurred 

when the agency sought temporary custody of the child in order to allow the 

foster parents to obtain medical treatment for him. The ICPC thus had no 

application to this case, and the court properly exercised jurisdiction to decide 

who should have legal custody of the child. 

III 

{¶ 8} The grandmother next argues that the child’s guardian ad litem 

lacked authority to file a motion for legal custody on behalf of the foster 

parents. She maintains that the guardian ad litem could only file a motion 
for custody in his own name, not in the name of another person, and in any 

event had to file a statement of understanding as required by R.C. 

2151.353(A)(3). 

{¶ 9} A child’s guardian ad litem is required to “perform whatever 

functions are necessary to protect the best interests of the child *** and shall 

file any motions and other court papers that are in the best interests of the 

child.” R.C. 2151.281(I) (emphasis added). Thus, “[a] guardian ad litem has 

authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a 

motion to terminate parental rights and award permanent custody in a child 

welfare case.” In re C.T., 119 Ohio St.3d 494, 2008-Ohio-4570, 895 N.E.2d 

527. It follows that the guardian ad litem could, in this case, file and 

prosecute a motion seeking to award legal custody of the child. 

{¶ 10} It is true that the guardian ad litem did not, concurrent with the 

filing of his motion to award legal custody of the child to the foster parents, 

file the foster parents’ statement of understanding as required by R.C. 

2151.353(A)(3).2 A person proposed as a legal custodian of a child “shall be 

 2

A “statement of understanding” expresses, among other things, the intent of a person to 

become the legal custodian of the child; that the person is able to assume legal responsibility for the 

care and supervision of the child; that the person understands that legal custody of the child in 

question is intended to be permanent in nature and that the person will be responsible as the custodian 

for the child until the child reaches the age of majority; and that the parents of the child have residual 

parental rights, privileges, and responsibilities, including, but not limited to, the privilege of 

reasonable visitation, consent to adoption, the privilege to determine the child’s religious affiliation, 

and the responsibility for support. See R.C. 2151.353(A)(3)(a)-(d). 
awarded legal custody of the child only if the person identified signs a 

statement of understanding for legal custody ***.” Id. Apart from stating 

that the court cannot award legal custody to a party that has not filed a 

statement of understanding, the statute does not give any specific time frame 

in which the statement of understanding must be filed. The failure to file 

the statement at the time of the motion for legal custody thus cannot be 

considered a jurisdictional defect — the failure to file only affects the court’s 

ability to award legal custody. 

{¶ 11} On the final day of the hearing, May 11, 2010, the grandmother, 

grandfather, and the agency made an oral motion to dismiss the guardian ad 

litem’s motion to award legal custody to the foster parents on grounds that 

the foster parents had not filed a statement of understanding. The court 

agreed that the statement should have been filed earlier but also noted that 

“it’s something that should have been caught earlier” by a magistrate or the 

parties. It orally denied the motion to dismiss, instructed the foster parents 

to file the statement by the following day, and stated its intent to grant legal 

custody to the foster parents. The foster parents filed their statement of 

understanding on May 12, 2010; the court issued the journal entry granting 

legal custody on June 12, 2010. Since the court speaks only through its 

journal, Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 382, 667 N.E.2d 1194, 

 
there is no question that the court did not grant legal custody until after the 

statement of understanding had been filed. 

{¶ 12} Although we find no jurisdictional impediment exists in this case, 

prudence would suggest that a statement of understanding be filed as a part 

of a motion for legal custody. But in a case like this, where the foster 

parents essentially testified to all that would have been contained in the 

statement of understanding, the court could, before issuing a journal entry 

awarding legal custody, ask the foster parents to rectify an obvious oversight 

in order to achieve full compliance with R.C. 2151.353(A)(3). 

IV 

{¶ 13} For her final argument, the grandmother argues that the court’s 

decision to award legal custody to the foster parents is against the manifest 

weight of the evidence. Claiming that there “is a fairly even division of 

positives and negatives for the child regardless of who gets custody,” she 

maintains that the court should have been guided by the statutory 

presumption that the child be placed with a suitable member of his extended 

family — a presumption that would have tipped the scales in her favor. 

A 

{¶ 14} After a child is adjudicated abused, neglected, or dependent, the 

court may award legal custody to a non-parent after finding that legal 

custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C. 
2151.415(B). Legal custody is significantly different than the termination of 

parental rights — despite losing legal custody of a child, the parents of the 

child retain residual parental rights, privileges, and responsibilities. R.C. 

2151.353(A)(3)(c). For this reason, we apply the less restrictive 

“preponderance of the evidence” standard of appellate review to the court’s 

factual findings. In re S.E., 8th Dist. No. 96031, 2011-Ohio-2042, ¶14, citing

In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552. 

However, when considering the court’s ultimate decision on whether the facts 

as determined would make it in the child’s best interests to be placed in legal 

custody, we apply the abuse of discretion standard. In re B.H., 8th Dist. No. 

95794, 2010-Ohio-1967, ¶10. 

{¶ 15} Unlike R.C. 2151.414(D), which sets forth specific factors that the 

court must consider before terminating parental rights and granting 

permanent custody, R.C. 2151.353(A)(3) does not independently set forth 

factors that the court should consider for determining the child’s best 

interests in a request for legal custody. Some appellate decisions suggest 

that the trial courts apply the best interests factors set forth in R.C. 

2151.414(D), the permanent custody statute. See, e.g., In re S.N., 9th Dist. 

No. 23571, 2007-Ohio-2196, at ¶27; In re Eicher Children, 1st Dist. Nos. 

C-080107 and C-080121, 2008-Ohio-2196, ¶15; In re Burnette, 5th Dist. No. 

2007CA00076, 2007-Ohio-6269, ¶29. Other appellate courts, including this 
district, have suggested that the trial court consider the best interests 

factors set forth in R.C. 3109.04(F). See, e.g., In re J.O., 8th Dist. No. 87626, 

2010-Ohio-407, ¶11; In re Fulton, 12th Dist. No. CA2002-09-236, 

2003-Ohio-5984. 

{¶ 16} The differences in the best interests factors are of no great 

consequence, however, because the different statutes are merely instructive 

on the question of a child’s best interests. In re Pryor (1993), 86 Ohio App.3d 

327, 335, 620 N.E.2d 973. Rules of statutory construction state that it is 

generally presumed that the General Assembly acts intentionally and 

purposely when it includes particular language in one section of a statute but 

omits it in another. State v. Vanderbilt (1882), 37 Ohio St. 590, 609. By 

failing to set forth in R.C. 2151.353(A)(3) factors that the court must consider 

when it had specifically done so in other statutes, we must presume that the 

legislature did not intend to require the consideration of certain factors as a 

predicate for granting legal custody. Of course, the courts are free to 

consider any factors that they deem appropriate, including various statutory 

formulations of a child’s best interests, but consideration of other statutes is 

not mandatory. 

B 

{¶ 17} In oral remarks made at the conclusion of the hearing, the court 

stated that the case was one of the most difficult it had ever had because “we 
rarely have cases where we have this many good people arguing over a child.” 

 The court acknowledged that the law prefers placement of a child with 

relatives, and that it considered family placements as the preferred course of 

action if it could be done. However, the court found that removing the child 

from the foster parents would not be in his best interests. 

{¶ 18} Contrary to the grandmother’s assertions, the preference for a 

family placement as expressed in R.C. 2151.412(G)(2) is not mandatory. 

That section states that when, as here, neither parent is capable of 

supporting the child or providing for its best interests, “the child should be 

placed in the legal custody of a suitable member of the child’s extended 

family.” The courts have held that this language is precatory, not 

mandatory. See In re Leverett (Mar. 26, 1998), 8th Dist. Nos. 71357-71360; 

In re A.E., Franklin App. Nos. 07AP685 and 07AP-748, 2008-Ohio-1375, at 

¶35; In re Hiatt (1993), 86 Ohio App.3d 716, 722, 621 N.E.2d 1222. So to the 

extent the court found that all parties arguing for custody would have made 

for a good placement, it was not bound by the statute to favor the 

grandmother. 

{¶ 19} As noted, the court acknowledged the statutory preference that a 

child be placed with relatives when possible, but ultimately concluded that it 

was more important that the child have a “good steady home[.]” It found 

that the child has spent the previous two, formative years with the foster 
parents, whom he had come to see as his parents. The court found that “I 

can’t see removing him, or how removing him from that situation would be in 

his best interests.” 

{¶ 20} The abuse of discretion standard requires us to affirm a 

discretionary ruling by the court unless that ruling is arbitrary, 

unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 

157, 404 N.E.2d 144. The grandmother concedes that the foster parents 

were suitable for legal custody. She acknowledges that the child had spent 

the last half of his life with the foster parents, that they loved the child, were 

raising him in a devoutly religious home, and more than adequately provided 

for him. And she does not deny that the parties stood in relative balance for 

purposes of which of them could serve the child’s best interests as legal 

custodians. With these factors present, we necessarily cannot conclude that 

the court abused its discretion by finding that an award of legal custody to 

the foster parents would be in the child’s best interests. 

Judgment affirmed.

It is ordered that appellees recover of appellant their costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas – Juvenile Division to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

___________________________________________ 

MELODY J. STEWART, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

KENNETH A. ROCCO, J., CONCUR