[Cite as In re A.S., 2010-Ohio-4873.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

IN THE MATTER OF: : 

 : Case Nos. 10CA16 

A.S. : 10CA17 

 : 10CA18 

Adjudicated Abused, Neglected, : Released: September 30, 2010

and Dependent Child. : DECISION AND JUDGMENT

 : ENTRY

_____________________________________________________________ 

APPEARANCES:

James A. Wallace, Athens, Ohio, for Appellant Anthony Spears. 

David G. Baer, Athens, Ohio, for Appellant Sarah Jeric. 

William B. Biddlestone, Athens, Ohio, for Appellants George Spears and 

Nancy Spears. 

C. David Warren, Athens County Prosecuting Attorney, and Myca S. 

Haynes, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for 

Appellee, Athens County Children Services. 

_____________________________________________________________ 

McFarland, P.J.: 

{¶1} Appellants, Anthony Spears and Sarah Jeric, mother and 

father of A.S., and George and Nancy Spears, grandfather and stepgrandmother of A.S., appeal the decision of the Athens County Court of 

Common Pleas, Juvenile Division. The trial court terminated Anthony 

Spears and Sarah Jeric's parental rights, denied the custody request of 

George and Nancy Spears, and awarded permanent custody of A.S. to 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 2 

Athens County Children Services. Because there was clear and convincing 

evidence that A.S’s best interests required a legally secure placement with 

Children Services, we affirm the trial court's decision and overrule the 

appellants assignments of error. 

I. Facts 

{¶2} A.S., born in March 2008, is the biological child of appellants 

Anthony Spears and Sarah Jeric. Both Anthony Spears and Sarah Jeric have 

a substantial and continuing history of drug abuse. In 2005, Spears was 

convicted of felony possession of cocaine. And due to Jeric’s substance 

abuse during her pregnancy, A.S. was born addicted to opiates. After birth, 

A.S. remained in the hospital for several weeks for treatment before being 

placed in foster care. He has had continuing related health issues. At the 

time of the permanent custody hearing at issue in this case, both Anthony 

Spears and Sarah Jeric were incarcerated due to drug offenses and other 

offenses. 

{¶3} In April 2008, shortly after A.S.’s birth, Athens County 

Children Services obtained an ex parte emergency custody order for A.S. 

and another child of Anthony Spears, J.S. Children Services also filed a 

complaint seeking to have A.S. and J.S. adjudicated dependant children. 

After holding a hearing on temporary custody, the Athens County Juvenile 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 3 

Court continued the emergency custody order and scheduled an adjudication 

hearing. On the same day of the custody hearing, Anthony Spears and Sarah 

Jeric were stopped by police while returning from a methadone clinic in 

West Virginia. Police found 43 bindles of heroin in the car and $1200 in 

cash. Subsequent to the emergency custody hearing, George and Nancy 

Spears, as grandfather and step-grandmother, filed a motion to intervene and 

a motion for custody of both A.S. and J.S. 

{¶4} The trial court subsequently found A.S. to be an abused, 

neglected, and dependent child. The court awarded temporary custody of 

A.S. to Children Services in September 2008 and Children Services has 

retained custody since that decision. The trial court also found J.S. to be a 

dependent child. Anthony Spears and George and Nancy Spears appealed 

the decision as to J.S., but not as to A.S. We reversed the trial court's 

decision and remanded the case in In re J.S., 4th Dist. No. 08CA26, 2009-

Ohio-1621 and In re J.S., 4th Dist. No. No. 08CA27, 2009-Ohio-1622. On 

remand, the trial court found J.S. was not dependent and dismissed the case. 

{¶5} The trial court subsequently held multiple review hearings on 

the matter. After each hearing, the court continued temporary custody and 

determined that Children Services had made reasonable efforts by providing 

case management, foster care, visitation and referrals. In September 2009, 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 4 

Children Services moved to modify disposition to permanent custody of 

A.S. Anthony Spears and Sarah Jeric both contested the motion. 

{¶6} After a full hearing on the motion for permanent custody, in 

which all parties were represented by counsel, the trial court terminated the 

parental rights of Anthony Spears and Sarah Jeric and awarded permanent 

custody of A.S. to Children Services. Further, George and Nancy Spears’ 

motion for custody was denied. Following that decision, Anthony Spears, 

Sarah Jeric, and George and Nancy Spears, each filed an appeal. We sua 

sponte consolidated their appeals and consider them together below. 

II. Assignments of Error 

Anthony Spears’ Assignment of Error 

THE TRIAL COURT’S DETERMINATION THAT GRANTING 

PERMANENT CUSTODY OF A.S. TO ATHENS COUNTY 

CHILDREN SERVICES IS IN HIS BEST INTEREST WAS NOT 

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. 

George and Nancy Spears’ Assignment of Error 

THE TRIAL COURT ERRED BY NOT PLACING AS [sic] WITH 

HIS PATERNAL GRANDPARENTS, VIOLATING APPELLANTS 

[sic] RIGHTS PURSUANT TO THE OHIO AND UNITED STATES 

CONSTITUTIONS. 

Sarah Jeric’s Assignment of Error 

THE TRIAL COURT ERRED BY NOT PLACING A.S. WITH HIS 

PATERNAL GRANDPARENTS, GEORGE AND NANCY 

SPEARS, THEREBY VIOLATING APPELLANT’S RIGHTS 

PURSUANT TO THE OHIO AND UNITED STATES 

CONSTITUTIONS AND THE OHIO REVISED CODE. 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 5 

III. Anthony Spears’ Assignment of Error 

{¶7} An appellate court will not overrule a trial court’s decision 

regarding permanent custody if there is competent and credible evidence to 

support the judgment. In re McCain, 4th Dist. No. 06CA654, 2007-Ohio1429, at ¶8. “If the trial court’s judgment is supported by some competent, 

credible evidence going to all the essential elements of the case, an appellate 

court must affirm the judgment and not substitute its judgment for that of the 

trial court.” In re Buck, 4th Dist. No. 06CA3123, 2007-Ohio-1491, at ¶7. 

Therefore, an appellate court’s review of a decision to award permanent 

custody is deferential. McCain at ¶8. 

{¶8} “An agency seeking permanent custody bears the burden of 

proving its case by clear and convincing evidence.” In re Perry, 4th Dist. 

Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶13. Clear and convincing 

evidence has been defined as “[t]he measure or degree of proof that will 

produce in the mind of the trier of fact a firm belief or conviction as to the 

allegations sought to be established. It is intermediate, being more than a 

mere preponderance, but not to the extent of such certainty as required 

beyond a reasonable doubt as in criminal cases. It does not mean clear and 

unequivocal.” McCain at ¶9, citing In re Estate of Haynes (1986), 25 Ohio 

St.3d 101, 103-04, 495 N.E.2d 23. 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 6 

{¶9} In his sole assignment of error, Anthony Spears argues that 

the trial court's decision to award permanent custody of A.S. to Children 

Services was not supported by clear and convincing evidence. Accordingly, 

we first state the appropriate test a trial court must apply in ruling on a 

motion for permanent custody. 

{¶10} Under R.C. 2151.414(B)(1), an agency seeking permanent 

custody must meet a two-part test before parental rights may be terminated 

and permanent custody awarded. In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532, at ¶31. First, one or more of conditions listed 

in R.C. 2151.414(B)(1)(a) through (d) must apply: 

{¶11} “(a) The child is not abandoned or orphaned, has not been in 

the temporary custody of one or more public children services agencies or 

private child placing agencies for twelve or more months of a consecutive 

twenty-two-month period, * * * and the child cannot be placed with either of 

the child’s parents within a reasonable time or should not be placed with the 

child’s parents. 

{¶12} (b) The child is abandoned. 

{¶13} (c) The child is orphaned, and there are no relatives of the 

child who are able to take permanent custody. 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 7 

{¶14} (d) The child has been in the temporary custody of one or 

more public children services agencies or private child placing agencies for 

twelve or more months of a consecutive twenty-two-month period * * * .” 

{¶15} An agency seeking permanent custody must also demonstrate 

by clear and convincing evidence that such action is in the best interest of 

the child. R.C. 2151.414(D) sets forth the factors a court must consider in 

the best interest analysis: 

{¶16} “(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; 

{¶17} (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; 

{¶18} (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 more 

months of a consecutive twenty-two-month period, or the child has been in 

the temporary custody of one or more public children services agencies or 

private child placing agencies for twelve or more months of a consecutive 

twenty-two-month period and, as described in division (D)(1) of section 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 8 

2151.413 of the Revised Code, the child was previously in the temporary 

custody of an equivalent agency in another state; 

{¶19} (d) 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 to the agency; 

{¶20} (e) Whether any of the factors in divisions (E)(7) to (11) of 

this section apply in relation to the parents and child.” 

{¶21} Divisions (E)(7) to (11) include: (7) whether the parent has 

been convicted of a number of listed offenses; (8) whether the parent has 

repeatedly withheld medical treatment or food; (9) whether the parent has 

placed the child at substantial risk of harm two or more times due to 

substance abuse and has rejected treatment two or more times or refused to 

participate in treatment; (10) whether the parent has abandoned the child; 

(11) whether the parent has had parental rights previously terminated. 

{¶22} Thus, to terminate parental rights and award permanent 

custody, a trial court must find that both parts of the two-part test under R.C. 

2151.414 have been established. In the case sub judice, it is undisputed that 

the first part of the test was met. When the motion for permanent custody 

was filed, A.S. had been in the temporary custody of Children Services for 

more than twelve months of a consecutive twenty two month period. As 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 9 

such, R.C. 2151.414(B)(1)(d) applies. Accordingly, our analysis shifts to 

the other prong of the permanent custody test, whether or not permanent 

custody is in the best interest of the child. 

{¶23} In his brief, Anthony Spears alleges that the court gave “scant 

attention” to section R.C. 2151.414(D)(1)(a), regarding the child's 

interactions with relatives and caregivers, and section R.C. 

2151.414(D)(1)(d), regarding the need for a legally secure placement. We 

strongly disagree with this assertion. The trial court's decision clearly shows 

that it fully engaged in the required best interest analysis. The court first 

cited the relevant Revised Code sections, R.C. 2151.414(D)(1)(a) through 

(e), and then analyzed each section as it pertains to the current matter. As to 

R.C. 2151.414(D)(1)(a), the court stated the following: 

{¶24} “A.S. has seen little of his parents due primarily to their 

incarcerations, sporadic visitations; and unfitness to care for him. He has 

half siblings on his biological father's side, but only sees a half-brother 

named [J.S.] under supervised or monitored situations. An attempt was 

made to allow A.S. and [J.S.] to live together in foster care at a time when 

[J.S.] was also in the temporary custody of [Children Services]. [J.S.] was, 

however, removed from that home due to rage-like behaviors and 

threatening actions toward A.S. The paternal grandparents now have 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 10 

custody of [J.S.] and visit regularly with A.S., often bringing [J.S.] to said 

visits. Those visits are reported to be pleasant. A.S. enjoys a well-bonded 

relationship with the foster family where he has lived since his eventual 

release from the hospital after his birth.” 

{¶25} The court stated the following regarding 2151.414(D)(1)(d): 

{¶26} “A.S. needs and deserves a legally secure placement which 

can only be achieved by a termination of parental rights and an award of 

permanent custody to [Children Services]. The paternal grandparents 

request that they be awarded custody of A.S. They have, over the years, had 

custody of their own children and children of various relatives. They clearly 

love A.S. and would spend as much time with him as they were allowed. 

They are currently capable of meeting his basic physical needs and 

reasonable expenses. However, numerous factors convince the Court that 

A.S.’s best interests would be served by placing for adoption elsewhere. 

[Emphasis added.] 

{¶27} George and Nancy Spears have been criticized at various 

times in this case by different sources. It is clear that [Children Services] 

does not think it appropriate to place A.S. with them and opposed this 

Court's earlier decision to allow then [sic] custody of [J.S.]. Melanie Dawn 

Spears (mother of [J.S.]) also speaks negatively of the [sic] George and 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 11 

Nancy Spears but acknowledges that she has a criminal past and is trying to 

gain custody of [J.S.] from them. A.S.’s mother has taken polar opposite 

positions in this case, once willing to expose all the damning information on 

the family and then reversing field to support their effort for custody. As in 

any case, the trier of fact weights the credibility. 

{¶28} It is undisputed that George Spears has a relatively recent 

felony conviction in this county for obstructing official business, a bargained 

result of an indictment for drug trafficking. It is also undisputed that 

Anthony Spears, the father in this proceeding, has regularly returned to the 

home of George and Nancy Spears to live at various times in his adult life. 

Half-sibling [J.S.] has spent much of his life in the home of George and 

Nancy Spears, sometimes with his father also there and sometimes without. 

The length and extent of the bonding between [J.S.] and George and Nancy 

Spears was a major factor in this Court's ultimate decision to allow [J.S.] to 

return to George and Nancy Spears’ custody. However, A.S. has never lived 

with mother, father, or parental grandparents. He has always been in the 

custody of [Children Services] and the safety of a foster family since his 

release from the hospital. In light of his biological parents’ serious 

shortcomings, the opportunity for him to be spared from the dysfunction, 

now and possibly in the future, is an opportunity that we must provide this 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 12 

child. Both parents will be released from prison within a few years, and one 

or both may well return to the home of the parental grandparents. While 

there are good things to be said for family loyalty, this should not be the life 

that lies ahead for A.S. The grandparents’ motion for custody is denied.” 

{¶29} In our view, the trial court's findings quoted above clearly 

refute Anthony Spears’ allegation that the trial court preformed a “scant 

analysis” of the relevant Revised Code sections. Further, our review of the 

transcript of the permanent custody hearing shows that the trial court's 

findings were fully supported by witness testimony and the other evidence 

presented. Because A.S. had been in the temporary custody of Children 

Services for more than twelve months of a consecutive twenty two month 

period at the time of the permanent custody hearing, and because the trial 

court had clear and convincing evidence that awarding permanent custody to 

Children Services was in A.S.’s best interest, we overrule Anthony Spears’ 

sole assignment of error. 

{¶30} As to Anthony Spears’ argument regarding the proper 

standard of review to be applied in permanent custody cases, we see no 

inconsistency in our current standard of review and no reason to modify it. 

We reiterate that a trial court’s decision must find that the movant met or did 

not meet its burden by clear and convincing evidence. We then review the 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 13 

record to determine whether there was competent and credible evidence to 

support the trial court's decision. 

IV. Sarah Jeric’s and George and Nancy Spears’ Assignment of Error 

{¶31} Whereas Anthony Spears’ assignment of error directly 

challenges the trial court's best interest analysis, both Sarah Jeric’s and 

George and Nancy Spears’ assignment of error is limited to whether the trial 

court should have placed A.S. in the custody of George and Nancy Spears. 

We review a trial court's decision to award or not award custody to an 

extended family member under an abuse of discretion standard. In re Perry, 

4th Dist. Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶63; In re A.C., 

12th Dist. No. CA2006-12-105, 2007-Ohio-3350, at ¶17. “Moreover, 

relatives seeking the placement of the child do not have the benefit of the 

presumptive rights afforded to a child's natural parents as a matter of law, 

and the relative's willingness to care for the child does not alter the statutory 

factors to be considered in granting permanent custody.” Perry at ¶64. 

{¶32} At the permanent custody hearing, the trial court heard an 

abundance of evidence indicating that placing A.S. with George and Nancy 

Spears would not constitute a legally secure placement. As the trial court 

noted in its decision, George Spears was indicted for trafficking and felony 

possession of cocaine and marijuana in 2007. As a result of a plea 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 14 

agreement, George Spears pleaded guilty to obstructing justice, a felony. He 

is currently on probation for that offense. The court also heard the testimony 

of Melanie Spears, J.S.’s biological mother, stating that she had witnessed 

George Spears exchange pills for cash in his home. 

{¶33} Further, the court heard testimony that J.S., who is in the 

custody of George and Nancy Spears and who resides at their home, exhibits 

aggressive and hyperactive behavior. In the past, when he resided in foster 

care, J.S.’s behavior worsened when A.S. was brought into the foster home. 

The foster mother testified that on numerous occasions she was concerned 

that J.S. would harm A.S. In one instance, she found J.S. standing over 

A.S’s crib telling him to shut up or that he was going to kill him. If George 

and Nancy Spears were granted custody of A.S., he would once again be 

living with J.S. 

{¶34} Additionally, Anthony Spears testified that at some point in 

the future he planned to put his family back together again and have A.S. 

and J.S. live with him. Testimony indicated that if Children Services was 

not awarded permanent custody, A.S. may be, upon Anthony Spears’ release 

from incarceration, once again exposed to his father's continuing criminal 

drug activity. As a trial court stated, “[i]n light of his biological parents’ 

serious shortcomings, the opportunity for [A.S.] to be spared from the 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 15 

dysfunction, now and possibly in the future, is an opportunity that we must 

provide this child. Both parents will be released from prison within a few 

years, and one or both may well return to the home of the paternal 

grandparents. While there are good things to be said for family loyalty, this 

should not be the life that lies ahead for A.S.” 

{¶35} As Sarah Jeric notes in her brief, granting legal custody to a 

member of the child's extended family is preferred over granting custody to 

a children services agency. But as Jeric also acknowledged, a trial court is 

not required to favor relatives if, after considering all the relevant factors, 

the court determines that a grant of permanent custody to the agency is in the 

child's best interest. Perry at ¶64. As shown above, and as we concluded in 

our analysis of Anthony Spears’ assignment of error, there was clear and 

convincing evidence for the trial court in this matter to so determine. 

Accordingly, we find the trial court did not abuse its discretion in deciding 

not to award custody of A.S. to George and Nancy Spears. As such, Sarah 

Jeric's and George and Nancy Spears’ assignments of error are also 

overruled. 

JUDGMENT AFFIRMED. 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 16 

Kline, J., concurring. 

{¶36} I concur in judgment and opinion with the following 

observation. In my view, the opinion should note that we assume without 

deciding that Sarah Jeric has standing to assert her sole assignment of error 

in Case Number 10CA18. See In re Hilyard, Vinton App. Nos. 05CA600, 

05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, 

& 05CA609, at ¶40. 
Athens App. Nos. 10CA16, 10CA17 and 10CA18 17 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellants 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 Athens County Court of Common Pleas, Juvenile Division, to carry this 

judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, J.: Concurs in Judgment and Opinion. 

Kline, J.: Concurs in Judgment and Opinion with Concurring Opinion. 

 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.