[Cite as In re A.K.

- R.M. , 2023

- Ohio

- 4172.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE:

A.K.

- R.N. :

:

:

:

:

: CASE NO. CA 2 0 2 3

- 06

- 067

O P I N I O N

11/20/2023

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS

JUVENILE DIVISION

Case No. JN2021

- 0176

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant

Prosecuting Attorney, for appellee

.

Mark W. Raines, for appellant.

David S. Washington, Jr., for mother.

Amy R. Ashcraft, guardian ad litem.

M

. POWELL

, J.

{¶ 1} Appellant, the biological father of A.K.

- R.N., appeals a decision of the Butler

County Court of Common Pleas, Juvenile Division, granting permanent custody of the childButler CA2 0 2 3

- 0 6

- 0 67

- 2

- to Butler County Children Services.

{¶ 2} The agency became involved with A.K.

- R.N. in March 2021 when a non

relative family friend filed for legal custody of the child. The agency was asked to

investigate, and after a shelter care hearing, temporary custody of the child was granted to

the agency. The agency performed a home study of the non

- relative caregiver, but it was

denied. The agency also asked the child's mother to complete a substance abuse and

mental illness assessment. Although the mother completed the initial assessment, she

failed to participate in any of the recommended services.

{¶ 3} Based on these facts, on July 8, 2021, the agency filed a complaint alleging

A.K.

- R.N. was a dependent child. After hearings, the child was adjudicated dependent and

temporary custody was granted to the agency.

{¶ 4} A case plan was created for the child's parents

, but neither made progress on

the plan for reunification. The trial court made findings during the progress of the case that

both parents had abandoned the child.

{¶ 5} Early in the case, the paternal grandmother ("Grandmother") was identified

as a possible caregiver for the child. A home study was approved, and to acclimate the

child to Grandmother's home, the agency discussed a plan with Grandmother to start with

two

- hour visits, then eight

- hour visits, then overnight visits. Grandmother did not follow

through consistently on the visitation plan.

{¶ 6} The agency filed a motion for permanent custody of A.K.

- R.N. on December

29, 2022. After hearings on the motion, a magistrate recommended granting permanent

custody to the agency. The trial court held a hearing on objections that were filed by Father,

and on June 1, 2023, overruled the objections and adopted the magistrate's decision

granting permanent custody of A.K.

- R.N. to the agency.

{¶ 7} Father now appeals this decision and raises one assignment of error for ourButler CA2 0 2 3

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- review:

{¶ 8} THE TRIAL COURT ERRED WHEN IT GRANTED [THE AGENCY'S]

MOTION FOR PERMANENT CUSTODY AS THERE WAS AN APPROPRIATE RELATIVE

PLACEMENT THAT WAS A LESS RESTRICTIVE ALTERNATIVE TO PERMANENT

CUSTODY.

{¶ 9} Before a natural parent's constitutionally protected liberty interest in the care

and custody of his or her child may be terminated, the state is required to prove by clear

and convincing evidence that the statutory standards for permanent custody have been

met. Santosky v. Kramer

, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Generally, an

appellate court's review of a juvenile court's decision granting permanent custody is limited

to considering whether sufficient credible evidence exists to support the juvenile court's

determination. In re W.R.

, 12th Dist. Butler No. CA2022

- 09

- 091, 2023

- Ohio

- 334, ¶ 24. An

appellate court will reverse a juvenile court's finding that the evidence was clear and

convincing only if there is a sufficient conflict in the evidence presented. In re T.P.

, 12th

Dist. Butler No. CA2015

- 08

- 164, 2016

- Ohio

- 72, ¶ 18.

{¶ 10} Pursuant to R.C. 2151.414(B)(1), a juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

makes findings pursuant to a two

- part test. In re J.L

- H

, 12th Dist. Warren No. CA2020

- 01

-

002, 2020

- Ohio

- 3321, ¶ 8. First, the juvenile court must find that the grant of permanent

custody to the agency is in the best interest of the child, utilizing, in part, the factors of R.C.

2151.414(D). Id. Second, the juvenile court must find that one of the circumstances set

forth in R.C. 2151.414(B)(1)(a) to (e) applies. Id. at ¶ 9. Only one of the statutory findings

must be met to satisfy the second prong of the two

- part permanent custody test under R.C.

2151.414. Id.

{¶ 11} With regard to the second part of the test, the trial court determined that theButler CA2 0 2 3

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- child had been abandoned pursuant to R.C. 2151.414(B)(1)(b) and that finding is not

challenged on appeal. Instead, Father argues that permanent custody was not in the child's

best interest because there was an appropriate relative placement which was a less

restrictive alternative than permanent custody. He contends that the court should have

denied the motion and transitioned the child into Grandmother's care.

{¶ 12} R.C. 2151.414(D)(1) provides that in determining whether a grant of

permanent custody is in a child's best interest, a juvenile court must consider "all relevant

factors," including, but not limited to: (1) 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; (2) the wishes of the child, as expressed

directly by the child or through the child's guardian ad litem; (3) the custodial history of the

child; (4) 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; and (5)

whether any of the factors listed in R.C. 2151.414(E)(7) thru (11) apply in relation to the

parents and child. In re A.D

., 12th Dist. Clermont No. CA2021

- 11

- 060, 2022

- Ohio

- 736, ¶

24. In considering these best interest factors, "[t]here is not one element that is given

greater weight than the others pursuant to the statute." In re Schaefer

, 111 Ohio St.3d 498,

2006

- Ohio

- 5513, ¶ 56.

{¶ 13} It should be noted that with relation to the best interest factors, Father does

not dispute the trial court’s determination that the child could not be placed with him or with

the child’s mother. Instead, he only argues that the child could have been placed with a

relative. Father contends that the child has a relationship with Grandmother and there were

other family members who testified at the hearing that they were willing to take custody of

the child. He further argues that although the child was in the custody of the agency

throughout the case, the agency should have transitioned the child to Grandmother’sButler CA2 0 2 3

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- custody and the agency was not reasonable when visitation problems arose. Finally, Father

argues that the child’s need for a legally secure placement can be achieved without a grant

of permanent custody because Grandmother was a viable alternative.

{¶ 14} We begin by addressing Father’s argument that the agency was required to

place the child with a suitable family member pursuant to R.C. 2151.412(H)(2). This section

provides general priorities in the agency's development and court's review of a case plan,

and states that if the parents are not options for custody, " the child should be placed in the

legal custody of a suitable member of the child’s extended family." However, by its plain

language, this provision applies to the agency’s duties in preparing a case plan, not

permanent custody hearings. In re C.T.

, 8th Dist. Cuyahoga No. 11030, 2021

- Ohio

- 2274.

{¶ 15} Moreover, our review of the record reveals that the agency identified

Grandmother as an alternative to foster care early in the case and prepared a plan to

transition the child into Grandmother’s care. The plan involved a series of continuous visits

that increased in length, progressing to overnight visits, followed by a transfer of custody to

Grandmother. The caseworker testified that the reason for the schedule was for the child

to get to know her grandmother and Grandmother understood what was asked of her

regarding the visitation schedule.

{¶ 16} However, the record shows that Grandmother failed to actively and continually

work toward this transition in custody. Although Father argues that the failure of the visits

to occur regularly was the fault of the agency and foster parents, the record shows that the

agency had to encourage grandmother at several points in the case to schedule visits, and

the foster parents reported that Grandmother was failing to follow through in scheduling

visitations. When Grandmother told the agency that the foster parents were responsible for

the problems in scheduling visitations, the agency instructed Grandmother to contact them

if there were problems, but Grandmother failed to do so.Butler CA2 0 2 3

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- {¶ 17} In addition, the agency had concerns regarding whether Grandmother truly

wanted custody, or just wanted to visit with the child. Early in the case, the agency spoke

to Grandmother and discussed the need for the child to be placed with her sooner, rather

than later, because the longer the child was with foster parents, the more bonded she would

become with them. The agency also invited Grandmother to participate in a review hearing

so they could discuss her intentions toward gaining custody of the child, but Grandmother

failed to appear at the hearing.

{¶ 18} Finally, although Father argues a legally secure placement can be achieved

without a grant of permanent custody to the agency because Grandmother is a suitable

alternative, Grandmother failed to file a motion for custody prior to the permanent custody

hearing. R.C. 2151.414(D)(1)(d) provides that a court may grant legal custody of a child to

a person who has filed a motion prior to the hearing. As this court has previously stated, "it

is well

- settled that a nonparent who seeks legal custody of a child must file a motion for

legal custody pursuant to R.C. 2151.353(A)(3)." In re K.F.

, 12th Dist. Clermont Nos.

CA2020

- 10

- 061 and CA2020

- 10

- 062, 2021

- Ohio

- 1183, ¶ 74. A trial court cannot grant legal

custody unless a motion has been filed before the hearing. See In re L.R.T.

, 165 Ohio

App.3d 77, 2006

- Ohio

- 207 (12th Dist.).

{¶ 19} In this case, the court held a review hearing on January 3, 2023, over two

months prior to the permanent custody hearing. Grandmother attended this hearing. The

court discussed the issue of placing the child with Grandmother and in no uncertain terms,

informed Grandmother that she needed to file a motion for legal custody prior to the hearing

in order to be considered as a placement option for the child. The court stressed the

importance of filing a motion and suggested that Grandmother seek legal counsel.

However, despite this admonition, Grandmother failed to file a motion for custody. At the

permanent custody hearing, Grandmother initially said she did not know she needed to fileButler CA2 0 2 3

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- a motion, but on further questioning, admitted that the court had informed her of the

necessity of filing a motion.

{¶ 20} Finally, despite Father’s argument to the contrary, the court did not err in

determining that a legally secure placement could not occur without a grant of permanent

custody. As mentioned above, R.C. 2151.414(D)(1)(d) requires the court to consider " 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." As discussed,

because Grandmother did not file a motion, granting legal custody to her was not an option.

Moreover, the record shows that Grandmother allowed Father to visit the child during some

of the visitations, contrary to the court’s order.

{¶ 21} In addition, while Grandmother stated she was willing to take custody, her

commitment to obtaining legal custody was questioned by the agency, and the record

reveals a lack of commitment in her failure to follow through on a simple visitation schedule

that would have allowed her to take temporary custody of the child at an early stage in the

case. Although Father argues that the court could have denied permanent custody and

transitioned the child into Grandmother’s care after the hearing, the court did not err in this

regard given Grandmother’s lack of commitment and failure to follow through. With regard

to Father's arguments concerning the two relatives he contends were alternatives to

permanent custody, these two people failed to express their interest in obtaining custody of

the child until commencement of the permanent custody hearing, and neither filed a motion

for custody. Thus, neither was a viable option at the time of the hearing.

{¶ 22} On the other hand, the evidence at the hearing established that the child was

bonded to the foster parents. These foster parents had custody of the child from the

beginning of the case when the child was a little over a year old. At the time of the hearing,

the child was over three years old and was thriving in the foster home. The foster parentsButler CA2 0 2 3

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- indicated a desire to adopt the child if such was an option and evidenced a commitment to

the child throughout the case. In addition, the guardian ad litem recommended granting

permanent custody to the agency.

{¶ 23} Given our review of the record, we find that the trial court did not err in granting

permanent custody of the child to the agency. Father's assignment of error is overruled.

{¶ 24} Judgment affirmed

.

HENDRICKSON

, P.J., and PIPER

, J., concur.