text:
    IN RE:, D.D., dob: 06/17/2007,
    T.A.J., Petitioner-Appellee, v. G.L.D., Respondent-Appellant.
    NO. 17 CA 0914
    Court of Appeals of Ohio, Seventh District, Carroll County.
    Dated: October 20, 2017
    Atty. Kathleen Allmon Stoneman, 63 2nd Street SW, P.O. Box 326, Carrollton, Ohio 44615, For Petitioner-Appellee
    Atty. Michael J. Roth, 200 North Main Street, Minerva, Ohio 44657, For Respondent-Appellant
   JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Appellant G.D. appeals the decision of Carroll County Common Pleas Court, Juvenile Division, finding him unsuitable and granting custody of his minor child to Appellee T.J., the child's maternal uncle. The issue in this case is whether the trial court abused its discretion in finding Appellant unsuitable. We hold the trial court did not abuse its discretion.

Statement of the Facts and Case

{¶ 2} Appellant and mother were married in March 2002. They resided in Carroll County, Ohio and had one child born in June 2007. Appellant filed for divorce in 2012. The divorce was finalized February 26, 2014. Mother was granted sole custody of the minor child and Appellant was granted supervised visits every Sunday for two hours. Why this limited visitation was ordered is not apparent from the record. The divorce decree, which is a part of the record, does not indicate the factual basis for supervised visits.

{¶ 3} The supervised visits occurred at one of two places, McDonald's or the park, and were supervised by mother or Appellee. Appellant consistently exercised his right to visitation.

{¶ 4} Following the divorce, the child and Appellant participated in some joint counseling sessions. These counseling sessions were to create a bond between Appellant and the child. The child also had private sessions with another therapist.

{¶ 5} Mother was diagnosed with cancer either shortly before the divorce was finalized or sometime after it was finalized. Following the divorce, Mother and child lived with Appellee and Appellee helped Mother with treatments and caring for the child. Mother died January 2, 2016.

{¶ 6} Following her death, Appellant and Appellee both filed petitions for custody in the Juvenile Court. 1/11/16 Appellee petition for custody; 1/11/16 Appellant petition for custody. The case proceeded to a bench trial. 10/13/16 and 11/17/16 Trial.

{¶ 7} During pendency of the action, Appellant continued exercising his visitation and Appellee permitted the visitation to be unsupervised. The child continued to have private sessions with a therapist and another attempt at joint counseling with Appellant and the child occurred.

{¶ 8} After two days of testimony, the trial court took the matter under advisement. The trial court found, based on the child's feeling of ill will for Appellant, Appellant was unsuitable. The trial court then determined it was in the best interest of the child for custody to be awarded to Appellee. 1/30/17 J.E. Appellant was granted visitation. The visitation was expanded; Appellant was granted visitation every other weekend, holidays were alternated, and Appellant was granted two weeks of summer visitation. 2/7/17 J.E.

{¶ 9} Appellant timely appeals the award of custody of the child to Appellee, a non-parent.

Assignment of Error

"The trial court violated Appellant's Fourteenth Amendment Right to care and custody of his child when it failed to correctly apply the Perales unsuitability test in divesting father of custody and granting custody to a non-relative."

{¶ 10} The juvenile court has exclusive original jurisdiction to determine the custody of a child who is not a ward of another Ohio court. R.C. 2151.23(A)(2). See also R.C. 2151.23(F)(1) (the juvenile court shall exercise its jurisdiction in child custody matters in accordance with R.C. 3109.04 ). Although a domestic relations court has continuing jurisdiction over child custody and child support resulting from a divorce, a child who is the beneficiary of those orders is not a ward of that court; the two courts have concurrent jurisdiction. Freed v. Freed , 3d Dist. No. 5-15-15, 2015-Ohio-4527, 2015 WL 6663274, ¶ 6. Therefore, although custody and support were previously determined by the domestic relations court, the juvenile court had jurisdiction to determine the child's custody in the matter at hand.

{¶ 11} A trial court has broad discretion in determining custody matters. Reynolds v. Goll , 75 Ohio St.3d 121, 124, 661 N.E.2d 1008 (1996). Thus, the court's unsuitability and custody determination is reviewed for an abuse of discretion. Polhamus v. Robinson , 2017-Ohio-39, 80 N.E.3d 1142, ¶ 15-17. When applying an abuse of discretion standard, we are not free to merely substitute our judgment for that of the trial court. Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). A deferential review in a child custody case is appropriate because much may be evident in the parties' demeanor and attitude that does not translate well to the record. Id. at 419, 674 N.E.2d 1159.

{¶ 12} The custody of a child is a "fundamental liberty interest" of a parent. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The right of a parent to rear his/her own child presents itself in custody proceedings between a parent and a non-parent, as opposed to a custody proceeding between two parents. In re Perales, 52 Ohio St.2d 89, 96, 369 N.E.2d 1047 (1977).

{¶ 13} The suitability test has a higher standard than the best interest test. We have previously explained:

Under the best interest test, the court looks for the best situation available to the child and places the child in that situation. The suitability test, on the other hand, requires a detriment to the child be shown before the court takes him/her away from an otherwise suitable parent. Under the suitability test, "[s]imply because one situation or environment is the 'better' situation does not mean the other is detrimental or harmful to the child."

(Internal citations omitted). In re DeLucia v. West , 7th Dist. No. 05-MA-5, 2005-Ohio-6933, 2005 WL 3536486, ¶ 16.

{¶ 14} Under the suitability test, a parent is unsuitable if the parent abandoned the child, the parent contractually relinquished custody of the child, the parent has become totally incapable of supporting or caring for the child, or an award of custody to the parent would be detrimental to the child. Perales at syllabus. The non-parent must prove unsuitability by a preponderance of the evidence. Id.

{¶ 15} In finding Appellant unsuitable, the trial court stated:

The Court further finds that no evidence was offered that the father is unfit, abusive or unsuitable to be an appropriate parent.
The Court further finds that the minor child has a dislike for his father, going as far as to wish him dead. The level of mistrust and outright animosity toward father is extreme. Even when father acts appropriately the son only perceives evil intentions. When son speaks badly of dad it is with little emotion.
The Court further finds that visits are continuing with mixed results. The counselors cannot give a definitive opinion about how to resolve this dilemma. Additional time with father could cause issues for the son, not dealing with the issues could have long term effects.
The Court further finds that a parent has a right to raise his/her child, unless the Court finds them to be unfit, unsuitable or that custody would put the child at risk of harm.
* * *
The Court must find that unsuitability exists before the best interest factors 3109.04 ever come into play. In this case there is no evidence that father is unfit in the usual sense. He wants to parent his son. He has never been convicted of domestic violence, child abuse or neglect. He lives with his girlfriend and her children. Based on reports of her children, they are all fond of him. He has, in the face of very limited visitation, continued to exercise that visitation. He has attended counseling with multiple counselors. He has endured his son's pointed and unremorseful acts. He makes his home and his new family available for visits.
* * *
The issue the Court must decide is does the child's feeling of ill will and hatred for the father constitute the father being an unsuitable parent.
The facts of this case are fairly straight forward. The minor child has developed a feeling of hatred for his father. The minor child had limited supervised visitation with his father for approximately four years. He had never visited his father's home or father's new family. The minor child's mother died of cancer and the child believes it is his father's fault. The minor child openly expresses his desire that his father die.
Whatever happened between father and mother, no criminal charges were ever filed, much less a conviction.
The child's extended family, while being well intended, have done little to change the child's beliefs.
Dad has a girlfriend with whom he lives. She has children and her children like dad and do not fear him.
The child's counselor has expressed possible serious ramification from the child being forced to live with dad. The same counselor expressed little hope for a change in the child's feelings and he offered no real option to achieve change.
The child is in effect losing one parent to death and one to misguided hatred.
The Court finds that the child's mental health, resulting in the total lack of a family bond with his father, renders his father incapable of adequately parenting his son.

1/30/17 J.E.

{¶ 16} These statements are a finding that Appellant is unsuitable per se, at this moment in time, with this specific child; he is unsuitable because it would be detrimental to the child for Appellant to be granted custody. This finding was based on the emotional and psychological effects, which sometimes become physical effects, a grant of custody to Appellant would have on the child.

{¶ 17} The phrase "detrimental to the child" is not defined by the Revised Code. However, Ohio courts have held that for an award of custody to a parent to be detrimental to the child, there must be serious problems with the unsuitable parent. In re C.V.M. , 8th Dist. No. 98340, 2012-Ohio-5514, 2012 WL 5987542, ¶ 12 ; In the Matter of R.J.E. , 11th Dist. No. 2016-P-0025, 2017-Ohio-886, 2017 WL 980374, ¶ 28. " '[D]etriment' to a child includes not only the physical and mental effects a custody award may have on a child, but also the emotional and psychological effects as well." In re M.B. , 9th Dist. No. 26004, 2012-Ohio-687, 2012 WL 555991, ¶ 12, quoting Ives v. Ives , 9th Dist. No. 02CA008176, 2003-Ohio-3505, 2003 WL 21508795, ¶ 19. However, obvious transitional issues of moving from one home to another (i.e., change of home, school, community, friends) are not the type of detriment contemplated by Perales that would make a parent unsuitable in the context of a custody dispute between a natural parent and a nonparent. In re C.V.M. , 2012-Ohio-5514, 2012 WL 5987542 at ¶ 13, citing In re Davis , 11th Dist. No. 02-CA-95, 2003-Ohio-809, 2003 WL 405540, ¶ 27-28.

{¶ 18} The issue before this court is whether the trial court abused its discretion in finding unsuitability because it would be detrimental to the child for custody to be granted to Appellant.

{¶ 19} The evidence established Appellant lives with his girlfriend, Crystal, and her two daughters, ages 12 and 15, in Summit County. 11/17/16 Tr. 183, 185. Crystal was a foster parent and her daughters were two of her foster children that she adopted. 11/17/16 Tr. 186-187. She has two adult sons and one grandson, who Appellant babysits. 11/17/16 Tr. 186, 190. Appellant gets along with all of her children. 11/17/16 Tr. 190-191. She owns the house and is a nurse for Akron Children's Hospital working at the Summit County Juvenile Detention Center Clinic. 11/17/16 Tr. 183, 193. Appellant does odd jobs and helps around the house. 11/17/16 Tr. 193, 204-205. The house has four bedrooms and one room is already decorated in Star Wars motif for the child. 11/17/16 Tr. 184-185. The house sits on three and half acres and they own a horse, two dogs, and multiple cats. 11/17/16 Tr. 184-185.

{¶ 20} As the trial court noted in the judgment entry, there were no domestic violence complaints filed against Appellant, allegations of child abuse against Appellant, or finding of wrong doing on the part of Appellant. The testimony established Appellant's relationship with his girlfriend's children is very good and is appropriate.

{¶ 21} That said, the child has memories of incidents between mother and Appellant. Prior to divorce and separation, the child witnessed verbal altercations between mother and Appellant. During one of the altercations, Appellant allegedly threw his phone and it hit the child on the forehead. The child also has a memory of Appellant and mother fighting at the top of a staircase and Appellant holding a broom handle against mother's neck. The child expressed concern that mother could have fallen down the steps and died. The child also had memories of him and mother being locked out of the house and of them locking themselves in a bedroom to protect themselves from Appellant.

{¶ 22} When the incidents were discussed in a joint counseling session with Mario Costello (child's individual counselor), Appellant denied the incidents happened in the manner the child described. 10/13/16 Tr. 46. Appellant indicated the child was not recalling the incident correctly and seemed to indicate mother was more of the aggressor. 10/13/16 Tr. 46. Appellant's version made the child very upset and agitated; the child called Appellant a liar. 10/13/16 Tr. 46-47. Appellant, however, apologized to the child for having witnessed those events, but did not apologize for the acts. 10/13/16 Tr. 48. The child was not accepting of the apology. 10/13/16 Tr. 49. Costello indicated the apology was very good. 10/13/16 Tr. 48. He indicated Appellant asked if it would be helpful if he lied to the child and said he did those things. 10/13/16 Tr. 49. Costello told Appellant not to lie. 10/13/16 Tr. 49.

{¶ 23} Costello testified there is no bond between Appellant and the child, and the child told the counselor he is afraid of his father; the child has "zero to very little trust" in Appellant. 10/13/16 Tr. 42, 49-50. The counselor opined, "[T]he child's resentment and avoidance associated with his father appears to be, in part, his way of protecting himself emotionally and physically and protesting the fact that he does not want to live with his father." 10/13/16 Tr. 45. In addition to his fear of Appellant and not wanting to live with Appellant, Costello indicated the child has not yet started to grieve the loss of his mother:

Thus, as [the child's] therapist my concern is, in part, that [the child] has not yet begun to grieve the loss of his mother due to the pending status of being placed with his father. [The child] has rarely spoken about his mother in prior sessions and appears to minimize her absence. [The child] reports trying not to think about his mother because he is too worried he may have to live with his father. Notably, [the child] has also reported that he fears if he has a better relationship with his father, then that will increase the likelihood that he will have to live with him. In other words, [the child's] relationship with his father may improve if he knows that he will not have to live with him.
* * *
If [the child] is placed with his father, someone who he does not feel safe with, [the child's] trauma-like symptoms could be exacerbated, further complicating his bereavement process. Furthermore, placing [the child] with his father at this point could have a negative impact on [the child's] psychological development, leaving him more vulnerable to more severe pathology in the future. Developmentally, [the child] is at a stage when security, trust, and developing a strong sense of self are crucial to him forming strong and healthy attachments in the future.

10/13/16 Tr. 50-51.

{¶ 24} During Costello's testimony it was brought to light that the child has been diagnosed with adjustment disorder with anxiety. The child also experienced bedwetting and soiling incidents a night or two before the scheduled visitation with Appellant. These incidents were attributed to the anxiety the child faces with the visitation. It is noted the child is 9 or 10; these type of incidents are not common to children of that age. Thus, it seems there is a physical manifestation of the anxiety the child feels when facing the process of bonding with Appellant.

{¶ 25} In reaching his recommendation, Costello noted Appellant has done everything asked by the counselor. 10/13/16 Tr. 42, 93. When asked if the child put forth the effort to repair his relationship with his father, Costello responded in the negative and opined the child could have put forth more effort. 10/13/16/ Tr. 82.

{¶ 26} That sentiment was echoed by one of the child's earlier counselors, Patricia Millsaps-Linger. Millsaps-Linger counseled the child and Appellant jointly after the divorce for about six months. The mother was still alive during these counseling sessions. Millsaps-Linger opined the child was encouraged to maintain negative memories, thoughts, and feelings and he was being given excuses for bad behavior; he was not encouraged to move beyond his negative thoughts about Appellant. 11/17/16 Tr. 122, 175. She also indicated the child had a fear of disappointing mother and Appellee by engaging in a positive manner with Appellant. Tr. 126. This created anxiety in the child. At counseling he was told to be open and to make a relationship, but at home he was told it was not a good thing. 11/17/16 Tr. 175. She stated mother and Appellee often made excuses for the rude behavior the child exhibited toward Appellant stating he deserved it or indicating the child should not have to visit with Appellant. 11/17/16 Tr. 120. Millsaps-Linger also testified the child frequently used language mother used in her correspondence to Millsaps-Linger or in court proceedings. 11/17/16 Tr. 121.

{¶ 27} However, she also testified the domestic relationship between mother and Appellant had caused the child trauma and he had developed a fear of his father. 11/17/16 Tr. 156. She indicated there was not a strong bond between the child and Appellant; the child "was very resistant to a bond." 11/17/16 Tr. 168. She indicated progress would be slow. 11/17/16 Tr. 174, 176.

{¶ 28} Testimony from both counselors indicated the child was disrespectful to Appellant. He said in front of both counselors he wished his father was dead and other hurtful statements. However, testimony established the child was respectful to everyone else. He is a bright child, has excelled at school, and has friends.

{¶ 29} Appellant argues when the trial court looked at all of the above and found him unsuitable, the trial court incorrectly focused on future harm that may occur if Appellant was awarded custody, the child's anger toward Appellant, and ultimately delegated the decision to the child.

{¶ 30} As to future harm and the child's anger towards Appellant, these were appropriate factors for the trial court to consider because of the effect they were having on the child. As stated above, detriment to the child includes physical, mental, emotional, and psychological effects a custody award may have on the child. In re M.B. , 2012-Ohio-687, 2012 WL 555991 at ¶ 12, quoting Ives , 2003-Ohio-3505, 2003 WL 21508795 at ¶ 19. Testimony indicated the child had physical reactions to the anxiety of living with the father which manifested in bedwetting and soiling himself. Counselor Costello indicated the child had not even begun to grieve the loss of his mother and he did not trust Appellant. At the child's age, the counsel opined placing the child with Appellant "could have a negative impact" on the child's psychological development because of the lack of a bond with Appellant. 10/13/16 Tr. 50-51. Testimony from the counselors overwhelmingly indicates there is not a strong bond with Appellant and this causes anxiety for the child. Both indicated the child was having a hard time moving beyond his perceptions (whether those perceptions were right or wrong) of past events.

{¶ 31} Any move from where a child was living to living with a different person in a different area is going to cause transitional issues. However, obvious transitional issues are not the type of detriment contemplated by Perales. In re C.V.M. , 2012-Ohio-5514, 2012 WL 5987542 at ¶ 13, citing In re Davis , 2003-Ohio-809, 2003 WL 405540 at ¶ 27-28. Here, if Appellant was granted custody then the child would be living with a parent with whom he has spent limited time and has little to no bond despite years of counseling.

{¶ 32} That said, from reading each of the counselors' statements, it does also appear the child is directing the process. Both counselors indicated Appellant was doing everything asked of him, but the child could have done more to establish a relationship. Also, Counselor Costello specifically stated the child told him that if he has a better relationship with his father, then he will have to live with the father. He fears living with his father. 10/13/16 Tr. 50-51. The child does not want to live with the father. Therefore, he has no incentive to attempt to create a bond with Appellant. Rather, it seems the child has an incentive not to create a bond. Counselor Millsaps-Linger also testified that in her opinion the child was conflicted; if his group counseling with Appellant went well and he enjoyed himself with Appellant, then mother and Appellee were disappointed. She indicated mother and Appellee reinforced negative perceptions about Appellant by condoning the child's bad behavior toward Appellant (by saying Appellant deserved it and the child should not have to visit with Appellant).

{¶ 33} Case law, on this topic, is very fact specific. We have found a parent unsuitable where the parent was unable or unwilling to care for the child for long periods of time because the parent was homeless and had been unemployed. In re A.S. , 7th Dist. No. 11 JE 29, 2012-Ohio-5468, 2012 WL 5928271, ¶ 12. The parent allowed the child to live in a home without electricity or heat and the living conditions were "filth." Id. The parent also permitted the child to witness confrontations with her abusive boyfriends. Id.

{¶ 34} We have also upheld an unsuitability finding and affirmed an award of custody to the adult brother of the children where the evidence showed the father was not a part of the children's lives and was verbally and physically abusive. In re Medure , 7th Dist. No. 01 CO 3, 2002-Ohio-5035, 2002 WL 31114919, ¶ 36-39 (Father used severe forms of discipline against the children, including beating them and hitting them with ropes. The adult child seeking custody of the children testified when he was younger, he was "scared to death" of father and his father "would beat me until, you know, I was black and blue and couldn't walk."). Testimony also established father did not keep adequate supplies of food in the house. Id. The minor children testified they were afraid of Appellant and did not want him to have custody. Id. A counselor opined father had anger management problems. Id.

{¶ 35} The Second Appellate District has upheld a trial court's conclusion that "it would be physically, mentally, and emotionally detrimental" for the child to be in the parent's custody where the house was unclean, the child was undernourished, meals were not provided regularly for the child, there was a failure to exercise parenting time, and there were allegations of physical and emotional abuse. Evans v. Evans , 2d. Dist. No. 2012 CA 41, 2013-Ohio-4238, 2013 WL 5436940, ¶ 35.

{¶ 36} The Ninth Appellate District has reversed a trial court's finding that the mother was not unsuitable where numerous witnesses testified the child had been exposed to a chaotic environment filled with fighting and arguing. In re M.B. , 2012-Ohio-687, 2012 WL 555991 at ¶ 25-29. As a result of that exposure, the child displayed regressive emotional behavior as a result of the traumatic events she experienced; the child suffered from physical and mental difficulties (headaches and stomachaches) as well as emotional and psychological difficulties (emotional regression and thumb sucking ) as a result of living with Mother. Id. Based on the record, the appellate court reversed the trial court's decision and awarded custody to the nonparents. Id.

{¶ 37} These cases illustrate when a court finds a parent unsuitable there were serious problems with the unsuitable parent. See also In re Adams , 9th Dist. No. 01 CA0026, 2001 WL 1338952 (parent was incarcerated for three months after child was born; parent was currently on probation in two counties; parent had disorderly conduct charges pending against him; parent had not paid child support for some time; parent had failed to use a car seat when transporting child; parent was unable to secure a stable home or lasting employment); Slivka v. Sealock , 5th Dist. No. 00-CA-13, 2001 WL 575181 (May 18, 2001) (parent had history of psychological and behavioral problems; parent's husband had domestic violence conviction).

{¶ 38} In other cases, appellate courts have reversed a trial court's unsuitability finding. The Second Appellate District, for instance, stated the record failed to demonstrate that if the mother retained custody then it would be detrimental to the child. Cantrell v. Trinkle , 197 Ohio App.3d 82, 2011-Ohio-5288, 966 N.E.2d 288, ¶ 42-43 (2nd Dist.). In that case, the mother was young, worked, and lived in subsidized housing. Id. The appellate court stated those factors did not establish a detrimental effect on the child. Id. The record indicated the mother had two aunts who helped watch the child while she was working and the grandparents, who were seeking custody, also demanded to watch the child when the mother was working. Id. at ¶ 43, 45. The appellate court also noted there was no evidence in the record showing an inability to care for the child. Id. at ¶ 42. In fact, when the health insurance for the child lapsed for one month, as soon as mother discovered the problem, she rectified it. Id. at ¶ 44. There was evidence in the record mother drank alcohol and used marijuana recreationally. Id. at ¶ 47. However, these were done outside the presence of the child. Id. Thus, the appellate court concluded that while it did not condone the use of marijuana, there was nothing in the record to suggest her use of the substance had been detrimental to the child. Id.

{¶ 39} Specifically as to the lack of bond between the child and the parent constituting or contributing to an unsuitability finding, case law is sparse. The Third Appellate District has upheld an unsuitability finding where the parent did not create a bond with the child. Liles v. Doyle , 3d Dist. No. 1-14-48, 2014-Ohio-1681, 2014 WL 1572268, ¶ 47-53. The court indicated there was a long and significant relationship with the nonparents, with whom she was living. Id. at ¶ 47. The parent lacked the basic understanding of what it meant to be a father, which required presence in his children's lives, not just siring them. Id. at ¶ 49. The parent lacked involvement with the child and his other twelve children, and lacked consistent visitation with the child. Id. at ¶ 47-49. The parent was not present during the first three years of the child's life and only became a parent-figure after the mother's death. Id. at ¶ 49. However, even then the parent would often drop the child off with other individuals rather than take the opportunity to build a relationship with the child. Id. at ¶ 50. The court specifically indicated the father "failed to demonstrate that he could offer K.J.D. a stable environment, which was important to K.J.D., especially considering the recent and tragic death of her mother." Id. at ¶ 50 (father also failed to provide appropriate monetary support for his children).

{¶ 40} However, in another case, the Appellate Court upheld a trial court's determination the parent was suitable. Scavio v. Ordway , 3d Dist. No. 17-09-07, 2010-Ohio-984, 2010 WL 893662, ¶ 27. There was testimony mom had not physically visited with the children for several years, was not familiar with the children's schooling, activities, or medical issues, and that she had disappointed the children by missing visitations on occasion. Id. The court concluded those facts did not indicate the trial court abused its discretion in finding mother a suitable parent. Id. In doing so, the court emphasized "the trial court, as the finder of fact, possesses sound discretion of the allocation of parental rights and responsibilities," and that wide latitude is granted to the trial court in its consideration of the evidence. Id. , citing Miller v. Miller , 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988) and Davis , 77 Ohio St.3d at 418, 674 N.E.2d 1159.

{¶ 41} These cases highlight the importance of a bond between the parent and the child and indicate when an unsuitability finding is not an abuse of discretion.

{¶ 42} The case before us is an extraordinarily hard case. There is no evidence the parent has a substance abuse issue, cannot provide for the child, does not demonstrate an interest in the child, or is abusive toward the child. Appellant has never been convicted of domestic violence, child abuse, or neglect. He has done everything the counselors have asked him to do. He exercised his visitation. Appellant has a great relationship with his girlfriend's children. Although it is apparent something happened between Appellant and mother, no criminal charges were ever filed and there was no criminal conviction. Appellant can provide a home for the child.

{¶ 43} However, as the trial court found, when the child's lack of a bond with Appellant and the child's mental health are taken into consideration, Appellant is unsuitable to parent this child, at this particular time. Child's counselor, Mario Costello, expressed serious ramifications for the child if he is forced to live with Appellant. Costello indicated there is little hope for a change in the child's feelings under those forced conditions. Appellant and the child's prior joint counselor also indicated it is going to be a long and slow process to change the child's feelings toward Appellant. No professional counselor suggested placement of the child with the Appellant. Therefore, the trial court did not abuse its discretion in determining it would be detrimental to the child for custody to be granted for Appellant.

{¶ 44} We do not enter this decision lightly. The record before us indicates the child's animosity toward Appellant was fostered by mother and may be unfounded. As the trial court aptly stated, "The child is in effect losing one parent to death and one to misguided hatred." 1/30/17 J.E. We recognize, as the trial court did, Appellant has done everything asked of him and has continued to fight for his relationship with the child. The emotional and psychological impact of granting custody to Appellant, at this point in time, cannot be overlooked. However, our ruling does not mean Appellant is foreclosed from ever obtaining custody of the child. If the counseling and extended visitation result in a stable healthy bond between the child and Appellant, such bond could qualify as a change of circumstance.

Conclusion

{¶ 45} The sole assignment of error lacks merit. The trial court did not abuse its discretion in awarding custody to Appellee. The trial court's decision is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs in judgment only.

      In the future, Appellant will have to employ change of circumstance test to seek custody of the child. Polhamus , 2017-Ohio-39, 80 N.E.3d 1142, at ¶ 26, citing In re Brayden James , 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467 ; Purvis v. Hazelbaker , 181 Ohio App.3d 167, 908 N.E.2d 489, 2009-Ohio-765, ¶ 10 (4th Dist.) ("[O]nce custody has been awarded to a nonparent, the court will not apply the Perales unfitness standard to a later request for custody modification. Instead, custody modification in that situation is determined under the R.C. 3109.04 change in circumstances/best-interest standard."); In re V.M.B. , 11th Dist. No. 2012-P-0112, 2013-Ohio-4298, 2013 WL 5444998, ¶ 53 (same).


source: Caselaw Access Project

author: PRESTON, P.J.

license: Public Domain

text:
    IN RE: J.E.,
    [Sasha Steele-Appellant]
    NO. 9-17-07
    Court of Appeals of Ohio, Third District, Marion County.
    Date of Decision: October 23, 2017
    Robert C. Nemo, Marion, for Appellant
    Justin J. Kahle for Appellee
   PRESTON, P.J.

{¶ 1} Appellant, Sasha Steele ("Steele"), appeals the March 8, 2017 judgment entry of the Marion County Court of Common Pleas, Family Division, granting permanent custody of her minor child, J.E., to appellee, the Marion County Children's Services Board ("the Agency"). For the reasons that follow, we affirm.

{¶ 2} J.E. is the minor child of Steele and Jordan Emmons ("Emmons") born in December of 2014. (Doc. No. 1). On January 6, 2015, the Agency filed a complaint alleging that J.E. was an abused and dependent child under R.C. 2151.031 and R.C. 2151.04, respectively. (Id. ). That same day, the Agency filed a "motion for ex parte/emergency orders with notice of hearing." (Doc. No. 3). Also on January 6, 2015, the trial court granted the Agency pre-dispositional interim custody of J.E. and also granted the Agency's "motion for ex parte/emergency orders with notice of hearing." (Doc. Nos. 4, 5).

{¶ 3} At multiple points in the case, the Agency submitted case plans to the trial court, which the trial court approved and incorporated into disposition entries. (Doc. Nos. 36, 63, 99). The Agency also filed semiannual administrative reviews. (Doc. Nos. 31, 38, 61, 83).

{¶ 4} On January 13, 2015, the trial court appointed a guardian ad litem ("GAL") for J.E. (Doc. No. 9). On January 23, 2015, the trial court appointed counsel for Steele. (Doc. No. 13). On March 30, 2016, the trial court appointed counsel for Emmons. (Doc. No. 45).

{¶ 5} After a shelter-care and pre-trial hearing on January 28, 2015, the trial court on February 11, 2015 issued an order that temporary custody of J.E. remain with the Agency and scheduled the matter for adjudication on March 13, 2015. (Doc. No. 17). That adjudication was continued on the trial court's motion because Steel was not transported to the hearing. (Doc. No. 21).

{¶ 6} On March 27, 2015, Steele stipulated that J.E. was a dependent child under R.C. 2151.04. (Doc. No. 27). The trial court found J.E. dependent and dismissed the abuse complaint. (Id. ). On April 15, 2015, the trial court ordered that temporary custody of J.E. remain with the Agency. (Doc. No. 28). At multiple points after adjudicating J.E. a dependent child and awarding temporary custody to the Agency, the trial court reviewed that disposition but did not alter it. (See Doc. Nos. 33, 35, 37, 47, 70, 72. 75).

{¶ 7} On April 26, 2016, the Agency filed a motion for permanent custody of J.E. (Doc. No. 48). The trial court scheduled the permanent custody hearing for July 18, 2016. (Doc. No. 49). On July 7, 2016, Steele filed a motion to continue that hearing. (Doc. No. 65). On July 12, 2016, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 66). The trial court granted the motion to continue on August 8, 2016 and rescheduled the permanent custody hearing for November 7, 2016. (Doc. No. 67). The permanent custody hearing set for November 7, 2016 was continued by agreement of the parties. (Doc. No. 97 at 4).

{¶ 8} On January 6, 2017, Steele filed a motion to continue the permanent custody hearing set for January 12, 2017. (Doc. No. 86). On January 10, 2017, the Agency filed a memorandum in opposition to the motion to continue. (Doc. No. 87). The trial court denied the motion to continue on January 11, 2017. (Doc. No. 88).

{¶ 9} The trial court held a permanent custody hearing on January 12, 2017. (Doc. No. 97). The guardian ad litem submitted his report and recommendation on January 30, 2017 and recommended that the trial court grant the Agency's motion for permanent custody. (Doc. No. 92). On March 8, 2017, the trial court filed its judgment entry granting the Agency permanent custody of J.E. (Doc. No. 97).

{¶ 10} On March 30, 2017, Steele filed her notice of appeal. (Doc. No. 101). She brings three assignments of error for our review.

Assignment of Error No. I

The Trial Court Abused Its Discretion When It Denied Appellant's Motion For [A] Continuance.

{¶ 11} In her first assignment of error, Steele argues that the trial court abused its discretion in denying her motion to continue the January 12, 2017 permanent custody hearing. Specifically, Steele argues that the trial court abused its discretion in denying her motion for a continuance because she planned to move into a sober living house, had a probation violation hearing scheduled for January 18, 2017, in Delaware County, and needed more time to complete programming and make herself better able to care for her daughter. Steele also argues that the trial court's one-sentence entry denying her motion to continue did not consider the factors that a court must consider in determining whether to grant a continuance. Steele further argues that the trial court abused its discretion in denying her motion to continue because there was "some haste" on the Agency's part when it filed its motion for permanent custody of J.E. (Appellant's Brief at 10).

{¶ 12} "Continuances shall be granted only when imperative to secure fair treatment for the parties." In re Distafano , 3d Dist. Seneca No. 13-06-14, 2006-Ohio-4430, 2006 WL 2466808, ¶ 11, quoting Juv.R. 23. "A decision by the trial court to deny a motion for continuance is within the sound discretion of the trial court and should not be reversed absent a showing of abuse of that discretion." Id. , quoting In re Miller , 3d Dist. Auglaize No. 2-04-02, 2004-Ohio-3023, 2004 WL 1302250, ¶ 7. The term "abuse of discretion" refers to a decision that is "arbitrary, unreasonable, or unconscionable." Sandusky Properties v. Aveni , 15 Ohio St.3d 273, 275, 473 N.E.2d 798 (1984), citing Dayton ex rel. Scandrick v. McGee , 67 Ohio St.2d 356, 359, 423 N.E.2d 1095 (1981) and State v. Adams , 62 Ohio St.2d 151,157, 404 N.E.2d 144 (1980).

{¶ 13} In considering a motion for a continuance, a court should consider (1) the length of the delay requested; (2) whether other continuances have been requested and granted; (3) any inconvenience to parties, witnesses, opposing counsel, and the court; (4) whether the requested delay is for a legitimate purpose or is instead dilatory, purposeful, or contrived; (5) whether the defendant contributed to the situation that gives rise to the motion for a continuance; and (6) other relevant factors, depending on the unique facts of a case. In re J.D. , 3d Dist. Hancock No. 5-10-34, 2011-Ohio-1458, 2011 WL 1107037, ¶ 45, citing In re T.C. , 140 Ohio App.3d 409, 417, 747 N.E.2d 881 (3d Dist.2000), citing State v. Unger , 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 (1981).

{¶ 14} When a litigant received prior continuances and requests an additional continuance of indeterminate length, the first two Unger factors weigh in favor of denying the continuance, especially in light of the fact that establishing permanency for children in temporary placement is paramount. In re J.C. , 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, 2011 WL 553173, ¶ 39-40. The propriety of denying a request for a continuance is further supported when a defendant requests a continuance for a legitimate reason but also contributed to the circumstances giving rise to the request. Id. at ¶ 41. When a defendant faces ongoing drug addiction and is without stable housing such that a continuance would not likely change the outcome of the case, a court does not abuse its discretion in denying the continuance. Id. at ¶ 45. The propriety of denying a continuance is further bolstered when the motion for permanent custody has been pending for more than 120 days. Id. at ¶ 46.

{¶ 15} In the instant case, the trial court granted Steele two prior continuances. Id. at ¶ 40 (noting that the second Unger factor supported the denial of a continuance when a prior continuance was granted). In addition, Steele's request for a continuance did not specify a date to which she wanted the hearing continued. Id. at ¶ 39 (holding that the first Unger factor weighs in favor of denying a continuance where the length of the continuance requested is indeterminate); In re J.D. at ¶ 46 (affirming the trial court's denial of a continuance where the request for a continuance did not state how long a continuance was necessary). Even where, as here, a defendant requests a continuance for the legitimate purpose of making progress in drug treatment, a court does not abuse its discretion in denying the request. In re B.G.W. , 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693, 2008 WL 2854532, ¶ 24 (construing the purpose-of-the-request factor against the defendant where the reason for the request was to allow the defendant to gather evidence of progress in drug treatment); In re Shanequa H. , 109 Ohio App.3d 142, 146, 671 N.E.2d 1113 (6th Dist.1996) (holding that a trial court did not abuse its discretion in denying a continuance requested so that the defendant could enter drug treatment). The inconvenience to the parties and the court would be substantial because the hearing was already rescheduled numerous times. It is undisputed here that Steele contributed to the circumstances that brought about the request for the continuance, as she both participated in the drug abuse that necessitated drug treatment and engaged in conduct giving rise to an alleged probation violation and the resulting hearing. In re J.C. at ¶ 41-42 (holding that the fifth Unger factor weighed in favor of denying the continuance where the defendant's unlawful conduct brought about the request for the continuance).

{¶ 16} We also consider, as a unique factor relevant to this case, that R.C. 2151.414(A)(2) provides that "[t]he court shall hold the hearing * * * not later than one hundred twenty days after the agency files the motion for permanent custody, except that, for good cause shown, the court may continue the hearing for a reasonable period of time beyond the one-hundred-twenty-day deadline." In re J.C. at ¶ 46, quoting R.C. 2151.414(A)(2). Here, the Agency filed its motion for permanent custody on April 26, 2016. (Doc. No. 48). Thus, the trial court had already significantly exceeded the deadline imposed by the statute by the time Steele filed the pertinent motion to continue; therefore, the court did not abuse its discretion by denying the motion. In re J.C. at ¶ 46.

{¶ 17} We further consider, as a unique factor relevant to this case, the fact that a continuance would likely not have changed the outcome of the case. In re J.C. , 10th Dist. Franklin No. 10AP-766, 2011-Ohio-715, 2011 WL 553173, ¶ 45. The trial court found that the parents' circumstances "fail to present any opportunity for [J.E.'s] return to either of them within a reasonable time[.]" (Doc. No. 97). The trial court further found little likelihood that Steele could complete drug treatment, procure gainful employment, and locate stable housing in the foreseeable future. (Id. ); In re J.C. at ¶ 45 (noting that a parent's inability to remedy drug addiction and secure a stable residence weighs in favor of finding that a trial court acted within its discretion in denying a continuance).

{¶ 18} We conclude that Steele's argument as to the brevity of the trial court's judgment entry denying her motion to continue is unpersuasive. In re J.D. , 3d Dist. Hancock No. 5-10-34, 2011-Ohio-1458, 2011 WL 1107037, ¶ 46-48. Though the Unger factors enumerated above are necessary for consideration, we do not require courts to explicitly undertake Unger 's six-factor analysis in every judgment entry ruling on a motion to continue. Id. (affirming the denial of a motion to continue where the judgment entry did not contain any explanation for the trial court's decision).

{¶ 19} We further conclude that Steele's argument as to the haste with which the motion for permanent custody was allegedly filed is unpersuasive. We note that the speed with which the Agency files its motion for permanent custody is not among the Unger factors. See State v. Unger , 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 (1981). Moreover, Steele had nine months between the Agency's filing of its motion for permanent custody and the permanent custody hearing in which to put herself in a position to advocate for her interests.

{¶ 20} Based on the reasoning above, we conclude that the trial court did not abuse its discretion in denying Steele's motion for a continuance. Steele's first assignment of error is overruled.

Assignment of Error No. II

Appellant Was Denied Her Right To Effective Assistance Of Counsel.

{¶ 21} In her second assignment of error, Steele argues that she was denied her right to effective assistance of trial counsel. Specifically, she argues that she was denied effective assistance of trial counsel because her trial counsel did not object to two instances of hearsay testimony pertaining to the availability of a kinship placement for J.E. at the permanent custody hearing.

{¶ 22} "In permanent custody proceedings, where parents face losing their children, we apply the same test as the test for ineffective assistance of counsel in criminal cases." In re E.C. , 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, 2015 WL 3544649, ¶ 40, citing In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998). In order to demonstrate ineffective assistance of trial counsel, one must first show that the trial counsel's performance fell below an objective standard of reasonableness. Id. at ¶ 41, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Bradley , 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989). One must next demonstrate that, but for trial counsel's errors, the result of the proceeding would have been different. Id. The appellant bears the burden of establishing ineffective assistance of trial counsel and, in order to do so, must overcome the strong presumption that licensed attorneys provided competent representation. Id. , citing State v. Calhoun , 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

{¶ 23} In the instant case, Steele has not established that the result of the proceeding would have been different but for the alleged errors of counsel as noted above. A trial court is not required to consider the availability of a kinship placement prior to granting permanent custody of a child to an agency. In re S.G. , 3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, 2016 WL 7626204, ¶ 82, citing In re P.S. , 5th Dist. Licking No. 16-CA-11, 2016-Ohio-3489, 2016 WL 3365762, ¶ 57. Therefore, the trial court could have come to the same conclusion if it excluded the evidence to which Steele refers. Id.

{¶ 24} Because we conclude that Steele has not demonstrated prejudice, we need not address whether Steele's trial counsel's performance fell below an objective standard of reasonableness, as any showing of ineffective assistance requires the defendant to satisfy both prongs of the applicable legal test. In re E.C. at ¶ 41.

{¶ 25} For the reasons explained above, Steele's second assignment of error is overruled.

Assignment of Error No. III

The Trial Court's Decision To Award Appellee Permanent Custody Was Against The Manifest Weight Of The Evidence And Contrary To Law.

{¶ 26} In her third assignment of error, Steele argues that the trial court's decision to award the Agency permanent custody of J.E. was against the manifest weight of the evidence and was contrary to law. Specifically, Steele argues that the trial court erred when it did not specifically enumerate which best-interest factors it found supported the granting of permanent custody to the Agency. Steele further argues that, even if the trial court properly considered the best-interest factors as the statute requires, the trial court erred when it found that it was in J.E.'s best interest to grant permanent custody to the agency.

{¶ 27} The right to raise one's child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). "Parents have a 'fundamental liberty interest' in the care, custody, and management of the child." Id., quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas , 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, 2003 WL 22474843, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck , 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and Nos. 5-02-54, 2003-Ohio-1269, 2003 WL 1205082, ¶ 6.

{¶ 28} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in R.C. 2151.414. See In re C.E. , 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, 2009 WL 3806294, ¶ 14. R.C. 2151.414(B)(1) provides, in relevant part, that a trial court

may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (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.
* * *
(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 * * *.

R.C. 2151.414(B)(1)(a), (d).

{¶ 29} "[T]he findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to use as a basis to grant the Agency's motion for permanent custody."

In re M.R. , 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, 2013 WL 1296280, ¶ 80.

{¶ 30} "If the trial court determines that any provision enumerated in R.C. 2151.414(B)(1) applies, the trial court must determine, by clear and convincing evidence, whether granting the agency permanent custody of the child is in the child's best interest." (Emphasis sic.) In re A.F. , 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, 2012 WL 938573, ¶ 55, citing In re D.M. , 3d Dist. Hancock Nos. 5-09-12, 5-09-13, and 5-09-14, 2009-Ohio-4112, 2009 WL 2489238, ¶ 33 and In re K.H. , 3d Dist. Hancock No. 5-10-06, 2010-Ohio-3801, 2010 WL 3210758, ¶ 30. In determining whether granting the agency permanent custody is in the best interest of the child, R.C. 2151.414(D)(1) provides:

[T]he court shall consider all relevant factors, including, but not limited to, the following:
(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 more months of a consecutive twenty-two-month period * * *;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

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

{¶ 31} "Clear and convincing evidence is more than a preponderance of the evidence but not as much evidence as required to establish guilt beyond a reasonable doubt as in a criminal case; rather, it is evidence which provides the trier of fact with a firm belief or conviction as to the facts sought to be established." In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, 2013 WL 5447791, ¶ 42, citing In re Meyer, 98 Ohio App.3d 189, 195, 648 N.E.2d 52 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122, 568 N.E.2d 1222 (1991). "Upon review, an appellate court 'must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.' " Id. at ¶ 43, quoting In re Meyer at 195, 648 N.E.2d 52, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). "A reviewing court will not reverse a trial court's determination unless it is not supported by clear and convincing evidence." Id., citing In re Meyer at 195, 648 N.E.2d 52, citing In re Adoption of Holcomb at 368, 481 N.E.2d 613 and In re Adoption of Lay, 25 Ohio St.3d 41, 42, 495 N.E.2d 9 (1986). See also In re A.E. , 3d Dist. Seneca Nos. 13-14-14 and 13-14-15, 2014-Ohio-4540, 2014 WL 5141555, ¶ 28 ("A court's decision to terminate parental rights will not be overturned as against the manifest weight of the evidence if the record contains competent, credible evidence by which a court can determine by clear and convincing evidence that the essential statutory elements for a termination of parental rights have been established."), citing In re B.G.W., 10th Dist. Franklin No. 08AP-081, 2008-Ohio-3693, 2008 WL 2854532 and In re Nevaeh J., 6th Dist. Lucas No. L-06-1093, 2006-Ohio-6628, 2006 WL 3691193, ¶ 17.

{¶ 32} In the instant case, the trial court found that J.E. cannot be placed with her parents within a reasonable period of time. (Doc. No. 97 at 7-8). Steele does not challenge any of the trial court's findings as to R.C. 2151.414(B)(1) ; rather, she claims that the trial court erred by not adequately considering and applying the best-interest factors enumerated in R.C. 2151.313(D)(1)(a)-(e). (Appellant's Brief at 14). This argument is unpersuasive because a trial court need not consider each best-interest factor separately in its judgment entry. In re A.M. , 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, 2015 WL 4072871, ¶ 18 (noting that a trial court must either consider the factors individually or "provide some affirmative indication in the record that [it] has considered the specific factors listed in R.C. 2151.414(D)"). This requirement is met when a trial court cites to the appropriate statute in making its best-interest finding. Id. , citing In re M.R. , 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, 2013 WL 1296280, ¶ 78.

{¶ 33} In this case, the trial court referenced the applicable statute in its entry. "In accordance with [R.C.] 2151.414(D), the Court finds that the grant of permanent custody [of] J.E. to [the Agency] is in the best interests of said child." (Doc. No. 97 at 9). See In re M.R. at ¶ 78 ("While it is far from the better practice, we find that the trial court's citation to the appropriate statute when making its best interest finding meets its obligation, albeit to the minimum extent possible, in demonstrating that the R.C. 2151.414(D) factors were considered."). Additionally, in its judgment entry, the trial court made findings relevant to the R.C. 2151.414(D) factors. (See Doc. No. 97 at 7-9). See In re M.R. at ¶ 78 ("Moreover, * * * there is clear and convincing evidence in the record to support the trial court's finding that it is in M.R.'s best interest to grant the Agency's motion for permanent custody.").

{¶ 34} The record supports the trial court's factual findings relevant to the R.C. 2151.414(D) factors. Regarding R.C. 2151.414(D)(1)(a), J.E. was born in December of 2014 and placed with a foster family shortly after her birth. (Jan. 12, 2017 Tr. at 6); (Doc. No. 97 at 3). Foster mother Gina Tighe ("Tighe") testified that she and her husband are bonded with J.E. and that J.E. refers to them as "mommy" and "daddy," respectively. (Jan. 12, 2017 Tr. at 10). Steele spent much of the time between J.E.'s birth and the permanent custody hearing incarcerated. (Id. at 45-48). Regarding R.C. 2151.414(D)(1)(b), the trial court seems to have duly regarded J.E.'s young age by noting that she was born in December of 2014, making her approximately 27 months old at the time of the trial court's decision. (See Doc. No. 97 at 1). Regarding R.C. 2151.414(D)(1)(c), the trial court noted that J.E. has been in the temporary custody of the agency and in the physical custody of the Tighe family since January of 2015. (Id. at 2). J.E. was in the temporary custody of the agency continuously for more than 12 months of a consecutive 22-month period. (Doc. No. 97 at 5, 8). Regarding R.C. 2151.414(D)(1)(d), the evidence demonstrated that Steele and Emmons are unable to provide a legally secure, permanent placement for J.E. (Id. at 8, 9); (Jan. 12, 2017 Tr. at 70, 75, 80).

{¶ 35} For the reasons above, we conclude that clear and convincing evidence supports the trial court's determinations under R.C. 2151.414 that it was required to make, and did make, in granting the Agency's motion for permanent custody. The trial court made the proper findings under 2151.414(B)(1) and properly found that it is in J.E.'s best interest to grant permanent custody to the Agency. The trial court's decision to grant the Agency's motion for permanent custody is not against the manifest weight of the evidence. The trial court did not err in granting the Agency's motion for permanent custody.

{¶ 36} Steele's third assignment of error is overruled.

{¶ 37} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

      The complaint describes Emmons as the "alleged father." (Doc. No. 1). He was determined to be the biological father of J.E. after the filing of the complaint. (Doc. No. 97 at 2).

      Because only Steele filed an appeal, we will not discuss any filings by Emmons.


text:
    IN RE M.T., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Malcolm T., Respondent-Appellant).
    Appeal No. 3-17-0009
    Appellate Court of Illinois, Third District.
    Opinion filed March 21, 2018
    James D. Bradshaw, of Pekin, for appellant.
    Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, David J. Robinson, and Stephanie L. Raymond, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Louise M. Natonek, of Peoria, guardian ad litem.
   JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 The State filed a juvenile petition against M.T.'s mother and respondent father claiming that M.T. was neglected. Respondent filed a motion to strike the allegations against him, and the State dismissed the allegations. Subsequently, the court adjudicated M.T. neglected, determining that the mother contributed to the injurious environment but respondent did not. At the dispositional hearing, the court determined that M.T.'s mother was unfit and that respondent was fit. However, the court adjudicated M.T. a ward of the court and appointed the Department of Children and Family Services (DCFS) as guardian with the right to place. Respondent appeals, arguing that the appointment was improper. We vacate the trial court's dispositional order and remand for a new dispositional hearing.

¶ 2 FACTS

¶ 3 In May 2016, the State filed a juvenile petition, alleging that the minor M.T., born May 16, 2016, was neglected and requesting that M.T. be adjudicated a ward of the court. The petition stated that M.T.'s mother Jimeka R. was previously found unfit and that Jimeka reported to DCFS that M.T.'s putative father, respondent Malcolm T., was partying all the time and using cannabis. A few days later, respondent filed a voluntary acknowledgment of paternity. The trial court accepted the paternity and held that respondent was M.T.'s legal father. The court also ordered temporary custody to DCFS and allowed DCFS to place M.T. with respondent if it found placement was appropriate.

¶ 4 In June, respondent filed an answer to the petition and moved to strike the allegations against him. The State dismissed the allegations against respondent but the allegations against Jimeka remained in the petition. In August 2016, an adjudication hearing was held in which the trial court found that M.T. was neglected as a result of her injurious environment but respondent did not contribute to it.

¶ 5 A subsequent dispositional hearing was held on the same day. At the hearing, Lauren Grunwald, a DCFS agent, testified that M.T. had been with her father since she was born. She visited respondent's home and believed that it was appropriate and that there were no safety concerns. M.T. appeared attached to respondent, and they had a strong bond. She believed that respondent was able to take care of M.T. and that respondent had family for help and support. However, she opined that DCFS should be granted guardianship of M.T. because respondent's drug test was positive.

¶ 6 Respondent testified that he previously smoked cannabis heavily and that he had last used it about a day before M.T. came home from the hospital but had since quit. Respondent was born with 6/4 vision, was deemed legally blind, and was receiving disability. He had broken his eyeglasses and was in the process of getting a new pair. He may need surgery on his eyes and was willing to invest in his eye care. If his vision gets better, he would qualify for a driver's license.

¶ 7 The State asked the court to make M.T. a ward of the court, to appoint DCFS as guardian, to find M.T.'s mother unfit, to find respondent was fit, and to place M.T. with respondent. The State urged that respondent have a "completely clean" drug test before regaining guardianship of M.T. Respondent argued that he should have guardianship of M.T. The guardian ad litem (GAL) opined that it was in the best interest of M.T. if she was made ward of the court and DCFS was appointed guardian. The GAL believed DCFS should be guardian because respondent had previously tested positive for marijuana and had been "lackadaisical" about improving his vision.

¶ 8 The trial court found that respondent was a fit parent but held M.T.'s mother was unfit. It further determined that it was in the best interest of M.T. to be ward of the court and appointed DCFS as guardian with the right to place, stating "We do have a father who's very new at it and does have a health issue that needs to be addressed. And then also, the Court needs some confidence that the marijuana smoking is conquered. So I think it's in the best interest that the guardian initially be DCFS." It ordered respondent to complete a service plan to "correct the conditions which caused the child to be in foster care." The court explained that the goal was "to make a transition of the child into [respondent's] care." The court further stated: "And given that you're a new parent, I want a period of time where I can have some confidence that there is no problem. It appears that that's the way it's going to be. So I fully expect that if everything goes well, the next court date we can close this case out and have you as the guardian." Respondent appealed.

¶ 9 In December, a permanency hearing was held. In the permanency report, Grunwald stated that M.T. was residing with respondent and that he was providing safe housing. A November 14, 2016, status report showed that M.T. had lived with respondent from May 2016 to November 2016.

¶ 10 ANALYSIS

¶ 11 Respondent argues that the trial court improperly appointed DCFS as guardian with the right to place despite its determination that respondent was a fit parent in accordance with section 2-27 of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/2-27 (West 2016) ). Respondent contends that awarding DCFS guardianship with the right to place commits the child to DCFS and that section 2-27(1) requires the court to make a finding of unfitness before such commitment occurs.

¶ 12 Section 2-27 governs placement of a minor after he has been adjudicated a ward of the court. In particular, section 2-27(1) states:

"(1) If the court determines and puts in writing the factual basis supporting the determination of whether the parents, guardian, or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents, guardian or custodian, the court may at this hearing and at any later point:
(a) place the minor in the custody of a suitable relative or other person as legal custodian or guardian;
(a-5) with the approval of the Department of Children and Family Services, place the minor in the subsidized guardianship of a suitable relative or other person as legal guardian; 'subsidized guardianship' means a private guardianship arrangement for children for whom the permanency goals of return home and adoption have been ruled out and who meet the qualifications for subsidized guardianship as defined by the Department of Children and Family Services in administrative rules;
(b) place the minor under the guardianship of a probation officer;
(c) commit the minor to an agency for care or placement, except an institution under the authority of the Department of Corrections or of the Department of Children and Family Services;
(d) on and after the effective date of this amendatory Act of the 98th General Assembly and before January 1, 2017,[ ]commit the minor to the Department of Children and Family Services for care and service *** ." (Emphasis added.) 705 ILCS 405/2-27(1) (West 2016).

¶ 13 Respondent cites In re M.M. , 2016 IL 119932, 410 Ill.Dec. 874, 72 N.E.3d 260, to support his argument that the court must find him unfit before it grants guardianship to DCFS pursuant to section 2-27(1). In M.M. , the trial court granted DCFS custody and guardianship of the minors at the end of a dispositional hearing although the court found respondent was a fit parent and it did not indicate that respondent was unable or unwilling to care for the minors. Id. ¶ 10. On appeal, respondent argued that the trial court erred when it granted DCFS custody and guardianship of the minors without a finding of unfitness, and this court agreed, reversing the trial court's decision and remanding the cause for explicit findings in accordance with section 2-27. Id. ¶ 11. Affirming this court's decision, our supreme court concluded that section 2-27(1) "does not authorize placing a ward of the court with a third party absent a finding of parental unfitness, inability, or unwillingness to care for the minor." Id. ¶ 31.

¶ 14 The State alleges that M.T. was not committed to DCFS. Rather, respondent retained custody of M.T. because M.T. continued to live with respondent after the dispositional hearing. The State claims that section 2-23(1)(a)(1) of the Act ( 705 ILCS 405/2-23(1)(a)(1) (West 2016) ) applies because DCFS never obtained custody of M.T., and therefore, the court was not required to make a finding of unfitness before awarding DCFS guardianship with the right to place.

¶ 15 Section 2-23 allows the court to order different types of dispositions when a minor is adjudicated a ward of the court. Section 2-23(1)(a)(1) states:

"(1) The following kinds of orders of disposition may be made in respect of wards of the court:
(a) A minor under 18 years of age found to be neglected or abused under Section 2-3 or dependent under Section 2-4 may be (1) continued in the custody of his or her parents, guardian or legal custodian ; (2) placed in accordance with Section 2-27; (3) restored to the custody of the parent, parents, guardian, or legal custodian, provided the court shall order the parent, parents, guardian, or legal custodian to cooperate with the Department of Children and Family Services and comply with the terms of an after-care plan or risk the loss of custody of the child and the possible termination of their parental rights; or (4) ordered partially or completely emancipated in accordance with the provisions of the Emancipation of Minors Act." (Emphasis added.) 705 ILCS 405/2-23(1)(a) (West 2016).

¶ 16 The State cites two decisions, In re E.L. , 353 Ill. App. 3d 894, 896, 289 Ill.Dec. 391, 819 N.E.2d 1191 (2004), and In re M.P. , 408 Ill. App. 3d 1070, 349 Ill.Dec. 45, 945 N.E.2d 1197 (2011), for the proposition that a trial court's appointment of guardianship to DCFS is proper under section 2-23(1)(a)(1) when custody is retained with the parent. In E.L. , the State filed a juvenile petition arguing that two minors were neglected. E.L. , 353 Ill. App. 3d at 895, 289 Ill.Dec. 391, 819 N.E.2d 1191. The trial court found that the minors were in an injurious environment and adjudicated them neglected. Id. at 896, 289 Ill.Dec. 391, 819 N.E.2d 1191. At the dispositional hearing, the court found respondent mother fit but reserved a ruling on unfitness. Id. It appointed DCFS as guardian but ordered that the children remain with the respondent. Id. The respondent appealed the decision, claiming that the trial court abused its discretion when it appointed DCFS as guardian without making a finding of unfitness in violation of section 2-27(1). Id. at 897, 289 Ill.Dec. 391, 819 N.E.2d 1191. This court noted that section 2-27 was not applicable to the case because the section requires a finding of unfitness before "a minor may be placed with DCFS for care and services" whereas the issue at hand involved the appointment of DCFS as guardian while the parent retained custody of the minors. (Emphasis in original.) Id. at 898, 289 Ill.Dec. 391, 819 N.E.2d 1191. We determined that section 2-23(1)(a)(1) was applicable because it addressed the issuance of dispositional orders continuing the minors in the custody of their parents. Id. Section 2-23(1)(a)(1) does not require a finding of unfitness; therefore, this court determined the trial court's ruling was not an abuse of discretion. Id.

¶ 17 In M.P. , the State filed a juvenile petition arguing the minors were neglected due to an injurious environment, and the court adjudicated the minors neglected. M.P. , 408 Ill. App. 3d at 1071-72, 349 Ill.Dec. 45, 945 N.E.2d 1197. At the dispositional hearing, the court found that respondent was fit and "allowed her to retain custody of the minors, but made the minors wards of the court and appointed DCFS as their guardian." Id. at 1073, 349 Ill.Dec. 45, 945 N.E.2d 1197. This court found that the trial court's decision to divide guardianship to DCFS and custody to respondent was proper under section 2-23(1)(a)(1). M.P. , 408 Ill. App. 3d at 1074, 349 Ill.Dec. 45, 945 N.E.2d 1197.

¶ 18 Under section 2-27(1) "both parents must be adjudged unfit, unable, or unwilling before placement with DFCS is authorized because biological parents have a superior right to custody." In re Ta. A. , 384 Ill. App. 3d 303, 307, 322 Ill.Dec. 743, 891 N.E.2d 1034 (2008). However, an unfitness determination is not required under section 2-23(1)(a)(1) because the parent retains custody of the minor. In all the cases provided above, the trial court made clear in its findings which party had custody and/or guardianship of the minors. Here, the record shows that the trial court found respondent fit but appointed DCFS guardianship with the right to place. The record also reveals that M.T. continued to reside with respondent throughout, and at least three months after, the court proceedings. Because DCFS was appointed guardian but defendant retained physical possession of M.T., we must determine who had custody of M.T. in order to apply the proper statutory law. " 'On review, the trial court's determination will be reversed only if the findings of fact are against the manifest weight of the evidence or if the trial court committed an abuse of discretion by selecting an inappropriate dispositional order.' " In re April C. , 326 Ill. App. 3d 245, 257, 260 Ill.Dec. 22, 760 N.E.2d 101 (2001) (quoting In re T.B. , 215 Ill. App. 3d 1059, 1062, 158 Ill.Dec. 780, 574 N.E.2d 893 (1991) ).

¶ 19 We believe section 2-27(1) applies in this case. Once again, the trial court granted DCFS guardianship with the right to place. There is no case law or statutory definition that addresses the meaning of "right to place." The Act defines "[g]uardianship of the person" as

"the duty and authority to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to:
* * *
(c) the rights and responsibilities of legal custody except where legal custody has been vested in another person or agency." (Emphases added.) 705 ILCS 405/1-3(8)(c) (West 2016).

Legal custody is vested by court order. See 705 ILCS 405/1-3(9) (West 2016) (" 'Legal custody' means the relationship created by an order of court in the best interests of the minor which imposes on the custodian the responsibility of physical possession of the minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any." (Emphasis added.) ).

¶ 20 Here, the trial court did not grant legal custody to either party, and therefore, DCFS had the rights and responsibilities of legal custody of M.T. Before respondent loses his superior right to custody, the trial court must show that respondent was unfit, unable, or unwilling to care for M.T. under section 2-27(1). Instead, the court found respondent fit and appointed DCFS as guardian and, essentially, custodian of M.T. We also note that the court never made a determination that respondent was unable or unwilling to care for M.T. We determine that the trial court abused its discretion when it appointed DCFS as guardian with the right to place. We vacate the trial court's dispositional order and remand this cause for a new dispositional hearing.

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, we vacate the trial court's dispositional order and remand this cause for further proceedings.

¶ 23 Order vacated; cause remanded.

Presiding Justice Carter and Justice Wright concurred in the judgment and opinion.

      The dispositional hearing in this case was held on August 10, 2016, which was after the January 1, 2015, effective date of the amendatory act of the 98th General Assembly and before January 1, 2017.