[Cite as In re T.A. , 2013-Ohio-5646.]

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

IN RE: T.A. T.A. C.A. Nos. 13CA010439 13CA010445

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 11JC33947 11JC33948

DECISION AND JOURNAL ENTRY Dated: December 23, 2013

HENSAL, Judge. {¶1} Appellants. Brytny M. (“Mother”) and T.A. (“Father”) appeal from a judgment of the Lorain County Court of Common Pleas, Juven ile Division, that termin ated their parental rights to their two minor children and placed th em in the permanent custody of Lorain County Children Services (“LCCS”). This Court affirms.

I. {¶2} Mother and Father are the natural parent s of twins, T.A. and T.A., born December 27, 2009. At the time this case began, the children were living with Mother, who was a minor at that time, and the maternal grandmother. The ag ency had received a variety of referrals about problems in the home, including that the twins’ basic daily needs were not being met and that they were sometimes left home alone. The childre n had also required hospital treatment because one of them ingested cocaine and the other wa s covered with bedbug b ites. LCCS also had2

concerns about illegal drug use by both parents and allegations concerning Mother’s mental health. On August 21, 2011, LCCS filed depend ency and neglect complaints, and the children were removed from Mother’s custody. The tr ial court later adjudicated them neglected and dependent children. {¶3} Although the children were placed with a maternal great-grandmother for a period of time, she later informed LCCS that she was no longer able to care for the children. The children were then placed in a foster home where they remained throughout this case. During the next year, Mother made minimal progress on the reunification goals of the case plan. Specifically, she had not taken substantial steps toward achieving sobriety or addressing her mental health problems. Father initially made progress in substance abuse treatment and was eventually allowed to have an overnight visit with the children. Shortly afterward, however, Father began missing parenting classes and othe r case plan appointments and did not maintain contact with the caseworker or guardian ad litem. Because Father’s whereabouts were unknown at that point, LCCS decided that reunification with Father was no longer a viable option for the

children. {¶4} LCCS had been unable to find a suitable relative who was willing to provide a permanent home for the children, so it moved for pe rmanent custody of T.A. and T.A. Although a paternal great-grandmother had made some contact with the caseworker, she lived in Florida and had not complied with the caseworker’s sugges tions that she become more involved with the case by working a case plan, communicating regularly with the caseworker, and/or participating in periodic family team meetings via telephone. {¶5} On the day initially set for the permanent custody hearing, both parents stipulated that the children could not be returned to their custody because they had failed to remedy their3

problems with substance abuse. See R.C. 2151.414(E)(1). They asked, however, that the paternal great-grandparents be considered as legal custodians for the children. Because the great-grandparents lived in Florida and did not have an established relationship with the children, the trial court continued the best interest hearing to allow the great-grandparents more time to visit the children and demonstrate that they could provide T.A. and T.A. with a suitable permanent home. The trial court journalized the results of the first hearing, including that the matter would reconvene on May 6, 2013 for a hearin g on the children’s best interests. The journal entry further indicated that, “[a]t that time, the Court will consider paternal great grandparents as potential relative placements.” {¶6} On May 6, 2013, the best interest hearing was held before the trial judge. Although the paternal great-grandparents had not fo rmally moved for legal custody, the hearing proceeded with the parties presenting evidence a bout the following alternate placements for the children: legal custody or temporary placement with the great-grandparents or permanent custody to the agency. {¶7} Ten days after the hearing, and before the trial court had issued its judgment, it notified the parties that the foster father had passed away. During the next three weeks, none of the parties filed anything with the trial court to assert that the fo ster father’s death should affect the court’s ultimate judgment. On June 10, 2013, the trial court i ssued its final judgment. It found that permanent custody to LCCS was in the best interests of T.A. and T.A. and terminated the parents’ rights. Father and Mother separately appealed and their appeals were later consolidated. Father raises two assign ments of error and Mother raises one.4

II.

FATHER’S ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY TO THE AGENCY RATHER THAN LEGAL CUSTODY TO PATERNAL GREAT-GRANDPARENTS, DESPITE DISCOVERING A MATERIAL CHANGE IN CIRCUMSTANCES FOLLOWING THE PERMANENT CUSTODY HEARING. {¶8} Father’s first assignment of error argues that, when the trial court learned about the foster father’s death shortly after the perm anent custody hearing, it should have either: (1) held another hearing to allow the parents to cross-examine witnesses about the impact of his death on the court’s permanent custody decision, or (2) placed the children with the paternal great-grandparents because the foster parents were no longer a viable adoptive placement. {¶9} As indicated already, after the trial court learned about the foster father’s death, it journalized that fact on the record and notified all parties. The court then waited more than three weeks before it issued its final judgment. Duri ng that three-week period, however, Father did

not ask the trial court to take evidence about the death of the foster father. In fact, none of the parties filed anything with the c ourt to assert that the death of the foster father could or should have any impact on the permanent custody decision. Because Father raises th is issue for the first time on appeal and does not argue plain error, this Court need not reach the merits of his assigned error. See In re J.G. , 9th Dist. Wayne No. 12CA0037, 2013-Ohio-417, ¶ 20. {¶10} Moreover, although the trial court heard testimony that the foster parents were interested in adopting the children if LCCS was granted permanent custody, that potential adoption was not a focus of the tr ial court’s permanent custody de cision. The trial court’s best interest determination was guided by specific st atutory factors, which do not include the child’s probability of being adopted. See R.C. 2151.414(D); In re T.R. , 120 Ohio St.3d 136, 2008-Ohio-5

5219, ¶ 14. LCCS presented evidence at the hear ing about the children’s interaction with the foster parents and how well the children were doi ng in the foster home, but the primary purpose

of that evidence was to demonstrate that thei r developmental delays and behavioral problems significantly improved when they were placed in a stable, secure, and loving environment. That evidence further demonstrated that, in contrast to their relationship with their parents and the paternal grandparents, the children had been able to develop a close bond with other caregivers and looked to them for love and support. Because Father has failed to demonstrate that the death of the foster father affected the propriety of the trial court’s judgment, his first assignment of

error is overruled.

FATHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT’S JUDGMENT THAT PERMANENT CUSTODY TO THE AGENCY WAS IN [THE CHILDREN’S] BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

MOTHER’S ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN VIOLATION OF MOTHER’S [RIGHTS UNDER THE] FOURTEENTH AMENDMENT TO THE UNTIED STATES CONSTITUTION DUE PROCESS CLAUSE AND ARTICLE I SECTION SIXTEEN OF THE OHIO CONSTITUTION IN FINDING THAT PERMANENT CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, AND IN TERMINATING APPELLANT’S PARENTAL RIGHTS WHEN THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶11} This Court will address Father’s second a ssignment of error and Mother’s sole assignment of error together because they are closely related. Each parent asserts that the trial

court’s best interest decision wa s not supported by the evidence. Although Mother also argues that the trial court made errors in finding that th e children could not or should not be returned to her custody, both parents waived any challe nge to the trial court’s finding under R.C.6

2151.414(E)(1) by stipulating on the record that the first prong of the permanent custody test had been satisfied on that ground. Mother’s brief includes additional arguments, such as the

effectiveness of her trial counsel in entering such a stipulati on, which this Court will disregard because she did not separately assign them as error. See App.R. 12(A)(1)(b) and App.R. 12(A)(2). This Court will confine its review to the evidence supporting the permanent custody

decision. {¶12} Before a juvenile court may terminate parental rights and award permanent custody of children to a children services agen cy, it must find clear and convincing evidence of both prongs of the permanent custody test tha t: (1) the children are abandoned, orphaned, have been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the children 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) the grant of permanent custody to the agency is in the best interest of the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S. , 75 Ohio St.3d 95, 99 (1996). {¶13} The trial court found that the first prong of the permanent custody test had been satisfied, based on a stipulation by all parties, that the child ren could not or should not be returned to either parent’s custody because they had failed to remedy the problems that caused the continued removal of the children from their custody. See R.C. 2151.414(E)(1). The parties litigated only whether permanent custody was in th e best interests of the children. Although the parents conceded that they were not able to pr ovide their children with a suitable home at that time, they argued that the children should be pl aced with their paternal great-grandparents.7

{¶14} Although the great-grandparents did not formally move for legal custody of the children, the trial court issued a journal entr y on March 4, 2013, stating that it would take evidence at the best interest hearing to dete rmine whether it should place the children with the great-grandparents. Because the trial court’s decision whether to place the children in the custody of the paternal great-grandparents was al so based on the best interest of the children, “this Court typically conducts a single ‘best interest’ review of the trial court’s decision to place the child[ren] in the permanent custody of the agency rather than in the legal custody to a

relative.” In re I.A ., 9th Dist. Summit No. 26642, 2013-Ohio-360, ¶ 10. If permanent custody is in the children’s best interest, legal custody or placement with the great-grandparents necessarily

is not. Id. “‘Consequently, this Court will review th e factors set forth in R.C. 2151.414(D) in reviewing the [best interest] decision of the trial court * * *.’” Id ., quoting In re T-G.M ., 9th Dist. Summit No. 25858, 2011-Ohio-3940, ¶ 13. {¶15} When determining whether a grant of permanent custody is in the children’s best interests, the juvenile court must consider the following factors: (a) 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; (b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child; (c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or mo re months of a consecutive twenty-twomonth period * * *; (d) The child’s need for a legally secu re permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency * * *.8

R.C. 2151.414(D)(1)(a)-(d). 1 {¶16} The interaction between the great-grandp arents and the children had been very limited during the lives of these young children. The great-grandparents lived in Florida and, although the great-grandmother testified that she visited Ohio every summer, her husband apparently did not, and she did not explain the extent of contact, if any, that she had with the children before they were removed from Mother ’s custody. When the great-grandmother first contacted LCCS to express interest in providing an alternate placement for the children, the caseworker encouraged her to work a case plan at the same time as the parents, in case

reunification with one or both parents was not possible. Ne vertheless, although the greatgrandmother communicated with Father and the maternal grandmother about what was happening in the case and tried to assist Father behind the scenes, she did not start working with LCCS to consider placing the children with her until it became apparent that reunification with Father would not be possible. {¶17} During the first year of the case, the gr eat-grandmother did not visit the children, work on a reunification plan, or even participat e in family team meetings via telephone. The caseworker, a 15-year veteran at LCCS, testif ied that she has worked with many nonparent relatives and that she could “usually get a pretty good indicator of how serious a relative is” about providing a home for the children by how of ten they call her, how long they stay on the phone with her, and the types of questions that they ask. She would expect a relative who seriously wanted to keep the children with family and out of foster care to have become involved in family team meetings and ca ll her often to check on the children. These grandparents, however, did not call the caseworker to ask about the children. Instead, they waited almost a

1 The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.9

year before they started working with LCCS, allowing the children to remain in foster care and assimilate into another family. {¶18} After visits with the children began, th e great-grandmother visited the children only a few times and her husband visited them only once. During the visits with the children, the great-grandmother showed no affection toward them and would tend to watch them play with each other rather than interacting with them. Th e guardian ad litem opined that the children were not comfortable with the great-grandparents a nd that there was no loving bond between them. The guardian ad litem further testified that the great-grandmother did not redirect their misbehavior even when they were throwing toys or hitting each other. {¶19} In contrast to the distant interaction between the children and their greatgrandparents, the guardian tes tified about the positive interacti on between the children and their foster mother. The foster mother was attentive, loving, and provided the children with firm boundaries. The children’s speech and behavior ha d improved and they were thriving in the stable and loving environment in their foster home. {¶20} Because the children were only three years old at the time of the permanent custody hearing, the guardian ad litem spoke on their behalf. She opined that permanent custody

was in their best interests. She did not believe that the grea t-grandparents could provide them with a suitable home because they were not very attentive to the children and had no bond with them. She further testified that “[t]he children don’t know these grandparents.” {¶21} By the time of the permanent custody hearing, the children had spent most of their lives in temporary homes and were in need of a legally secure permanent placement. Their parents were unable to provide them with a suitable home at that time or in the foreseeable future

and LCCS had been unable to find a relative w ho was dedicated to providing them with a10

suitable permanent home. Consequently, the trial court reasonably concluded that a legally secure permanent placement would only be achieve d by terminating parental rights and placing the children for adoption. {¶22} There was ample evidence before the tria l court to support its conclusion that permanent custody to LCCS was in the best in terests of T.A. and T.A. Father’s second assignment of error and Mother’s sole assignment of error are overruled.

III. {¶23} The parents’ assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas, Juve nile 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 Lorain, State of Ohio, to carry th is 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 docum ent 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. 30.11

Costs taxed to Appellants.

JENNIFER HENSAL FOR THE COURT

MOORE, P. J. CARR, J. CONCUR.

APPEARANCES: ROBERT CABRERA, Attorney at Law, for Appellant. KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and FAYE LIST, Assistant Prosecuting Attorney, for Appellee.