author: EILEEN T. GALLAGHER, J.:

text:
    IN RE: J.F., et al., Minor Children
    [Appeal By Y.M., Mother]
    No. 105504
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 11, 2018
    Mark Stanton, Cuyahoga County Public Defender, BY: Erika B. Cunliffe, Morgan L. Pirc, Assistant Public Defenders, Courthouse Square, Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Anthony R. Beery, Assistant Prosecuting Attorney, CCDCFS, 4261 Fulton Parkway, Brooklyn, Ohio 44144, BY: Cheryl Rice, Assistant Prosecuting Attorney, CCDCFS, 3955 Euclid Avenue, 3rd Floor, Cleveland, Oho 44115, ATTORNEYS FOR APPELLEE, For CCDCFS
    Candace L. Brown, P.O. Box 286, Medina, Ohio 44258, For Father
    Richard D. Summers, McDonald Hopkins Co., L.P.A., 600 E. Superior Avenue, Suite 2100, Cleveland, Ohio 44114, Guardian Ad Litem for Children
    Gail A. Nanowsky, P.O. Box 26060, Fairview Park, Ohio 44126, Guardian Ad Litem for Y.M.
    Thomas Kozel, P.O. Box 534, North Olmsted, Ohio 44070, For P.K.
    BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Appellant-mother appeals from the juvenile court's decision awarding permanent custody of her three children to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). She raises the following assignment of error for our review:

The trial court's decision to deny legal custody of J.F., G.M., and C.M. to their maternal grandmother and terminate appellant's parental rights is not supported by the record, the applicable legal standard, or the weight of the evidence presented.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} On December 26, 2014, CCDCFS filed a complaint for temporary custody of J.F. (d.o.b. Sept. 22, 2010), alleging that he was a dependant child. J.F. had been in the legal custody of his paternal grandmother while his parents were undergoing inpatient drug treatment. However, J.F. was removed from his paternal grandmother's care after she overdosed and was hospitalized. The agency filed a motion for predispositional temporary custody, and a magistrate committed J.F. to the emergency custody of CCDCFS that day. On March 26, 2015, J.F. was adjudicated dependent and was committed to the temporary custody of CCDCFS on April 3, 2015. On November 20, 2015, CCDCFS filed a motion to modify temporary custody of J.F. to permanent custody. In the motion for permanent custody, CCDCFS social worker, Charlene Hill, averred that Mother, Father, and paternal grandmother each failed to comply with certain aspects of their respective case plans that were filed and approved by the court.

{¶ 4} While the motion for permanent custody of J.F. was pending, CCDCFS filed a complaint for temporary custody of G.M. (d.o.b. Mar. 27, 2013), alleging him to be neglected. On March 28, 2016, G.M. was committed to the emergency custody of CCDCFS. However, on May 13, 2016, the agency withdrew the complaint for temporary custody in favor of a complaint for permanent custody pursuant to R.C. 2151.353(A)(4). The complaint alleged that Mother and Father have substance abuse problems that prevent them from providing adequate care. The complaint further alleged that Mother is cognitively delayed and has a criminal history, including convictions for theft and drug possession. At the time the complaint for permanent custody was filed, Mother was incarcerated.

{¶ 5} On April 8, 2016, Mother gave birth to C.M. On April 25, 2016, CCDCFS filed a complaint for dependency and permanent custody of C.M. pursuant to R.C. 2151.353(A)(4). The complaint alleged that Mother used cocaine, marijuana, and opiates during her pregnancy and tested positive for opiates at the time of C.M.'s birth. C.M. suffered from withdrawal symptoms due to his exposure to drugs in utero and required further hospitalization. When C.M. was released from the hospital, he was placed in the emergency custody of CCDCFS.

{¶ 6} On April 29, 2016, the children's maternal grandmother filed a motion to intervene in J.F.'s case, which the trial court denied. On June 15, 2016, Mother filed motion for legal custody to maternal grandmother.

{¶ 7} Following an adjudicatory hearing held on June 29, 2016, the juvenile court issued separate journal entries finding G.M. and C.M. to be dependent children.

{¶ 8} On January 25, 2017, the juvenile court held a combined hearing on Mother's motion for legal custody to maternal grandmother, and CCDCFS's motion for permanent custody of J.F. and dispositional prayer of permanent custody on the complaints for G.M. and C.M. At the onset of the hearing, Father and paternal grandmother stipulated to the agency's motion for permanent custody. During the hearing, the trial court heard testimony from the children's foster parents, CCDCFS social worker, Charlene Hill, maternal grandmother, and the children's guardian ad litem ("GAL").

{¶ 9} J.F.'s foster parent, K.S., testified that J.F. has lived in her home since January 2015, except for a brief period of time when he attempted to live with his brothers and their foster family. When J.F. did not "attach" with his new foster family and expressed his desire to leave, K.S. accepted him back into her home. K.S. testified that J.F. has educational deficits and behavioral issues that have improved with therapy and a highly structured routine. K.S. testified that she intended to adopt J.F. if permanent custody was granted.

{¶ 10} K.S. testified that she has personally observed J.F.'s interactions with Mother. She noted that Mother "loves [J.F.] dearly," but that the visits "upset [J.F.] for days." K.S. explained that J.F. gets upset because "he thinks he is going back to his mom because she projects it to him, and he becomes nasty, really nasty." With respect to maternal grandmother, K.S. testified that maternal grandmother "is very interested in him and loves him, he loves her." However, K.S. opined that they do not have a proper bond based on a lack of discipline.

{¶ 11} L.N. is the foster parent of G.M. and C.M. L.N. was questioned at length about the children's special needs. L.N. testified that when G.M. came to live with her, he "displayed low self-control" and "had methods for getting his way that were pretty manipulative." L.N. stated that she has implemented a behavioral plan that has improved G.M.'s behavior. L.N. testified that G.M. has severe speech apraxia and is on an individualized education plan for a severe speech and language disorder. He requires weekly speech therapy at the Cleveland Hearing and Speech Center and attends a special needs preschool.

{¶ 12} L.N. began fostering C.M. directly from the hospital after he was born. She testified that C.M. was hospitalized for nearly a month after his birth due to his drug exposure while in utero. L.N. stated that C.M. has a heart murmur, acid reflux, reactive airway disease, and torticollis. In addition, C.M. has delayed motor skills and speech development. Due to these issues, C.M. regularly sees a developmental specialist and a physical therapist. L.N. estimated that she spends approximately four to eight hours a week taking the children to their various appointments. L.N. testified that she hopes to adopt G.M. and C.M. and would have taken all three of the children if placement had worked with J.F.

{¶ 13} L.N. acknowledged that Mother loves her children. However, L.N. testified that Mother does not always show up for her visits with the children, and when she does, the boys "revert back to some bad behaviors." She stated that after the visits, the children are emotionally upset and exhausted because they want to know why they cannot go home with Mother. Regarding maternal grandmother, L.N. testified that maternal grandmother clearly loves the children and interacts with them well during visits.

{¶ 14} CCDCFS social worker, Charlene Hill, was assigned to the children's case in January 2015. Hill summarized the agency's procedural involvement with the children. Hill testified that J.F. came into the agency's custody after his legal custodian, paternal grandmother, was hospitalized following an overdose.

{¶ 15} G.M. came into the custody of the agency in March 2016. Hill explained that G.M. had been under the care of maternal grandmother, but that CCDCFS later sought custody of G.M. once the agency learned that maternal grandmother was permitting G.M. to be in the unsupervised care of Mother and Father while maternal grandmother was at work.

{¶ 16} C.M. came into the agency's custody immediately following his birth. "Mother used cocaine, marijuana, and opiates during her pregnancy, testing positive in March 2016 and April 2017." She also tested positive for opiates at the time of C.M.'s birth, causing him to be "born drug exposed." Based on the circumstances of C.M.'s birth and Mother's failure to progress with her case plan, the agency sought permanent custody of G.M. and C.M. without the chance for reunification.

{¶ 17} Hill explained that the agency was seeking permanent custody of the children because of Mother's history of substance abuse, mental health issues, poor communication skills, inadequate parenting skills, and late appearances for family visitation. The agency developed a case plan for Mother, which Hill described as "unsuccessful." Hill stated that Mother failed to follow through with services, was inconsistent with the services, was inconsistent with visitation, and failed to cooperate with the agency.

{¶ 18} Regarding her substance abuse assessment, Hill testified that Mother completed a substance abuse assessment through the common pleas court following her 2014 conviction for drug possession. However, Mother failed to complete a second substance abuse assessment after she tested positive for drugs at the time of C.M.'s birth and violated her probation. Hill further testified that Mother is currently in jail on drug-related charges.

{¶ 19} In addition, Hill testified that Mother failed to comply with the mental health and parenting objectives of her case plan. Hill explained that Mother did not comply at all with her mental health services and that her in-home parenting service provider ended its services because "it was unable to work with [Mother]."

{¶ 20} With respect to visitation, Hill testified that Mother's attendance for her weekly visits with the children was "inconsistent." As a result, the agency reduced her scheduled visits from weekly to once a month. Hill testified that the visits "tend to be very chaotic." The children are "all over the place" and Mother frequently creates turmoil by "saying things that should not be said to the child[ren]." Finally, Hill testified that Mother does not have housing, is not employed, and is currently in jail.

{¶ 21} Based on Mother's failure to comply with her case plan objectives, Hill testified that she does not believe Mother has the ability to meet her children's needs and that permanent custody is in the children's best interests. Hill testified that

Due to the non-compliance of services, and the continued substance abuse, and in the continued concerns with mental health, I feel it's in the best interests for the children remain in the foster homes.

{¶ 22} She explained:

I feel that all of [the children's] basic needs and special needs are being met in the foster homes, that they are well cared for. They have made tremendous progress in the time that they've been in those homes. Their speech has improved, Their behavior has improved. Their mental health is being addressed, especially with [J.F.], which it is very difficult for him with mental health, and [K.S.] has gone above and beyond to make sure, those foster parents have, to make sure that their special needs are being met and they're cared for.

{¶ 23} Regarding maternal grandmother, Hill testified that the agency looked into her as an appropriate placement but was unable to approve her for placement based on her history with the agency. Hill stated that the agency conducted a home visit and found the home to be appropriate. However, the agency determined that maternal grandmother was not appropriate for placement because she "has an extensive history with the agency mostly for educational neglect." Hill opined that it would not be in the children's best interests to place them in the legal custody of maternal grandmother "because she has not shown in the past that she has been able to provide the special needs that they need to be taken care of with the speech therapy, the medical, the Help Me Grow, all of those things."

{¶ 24} Maternal grandmother testified that she is employed and lives in a three-bedroom home with her two teenage daughters. She stated that she has a "fantastic" relationship with the children and loves each of them. Maternal grandmother testified that she is willing and able to take care of the children and was committed to addressing their special needs by enrolling them into the necessary programs and schools. Maternal grandmother further testified that she would protect the children from their parents and would not allow Mother or Father to be around the children if they were under the influence of drugs.

{¶ 25} On November 23, 2016, maternal grandmother signed a statement of understanding for legal custody, expressing her intent to become the legal custodian of the children. Maternal grandmother maintained that the agency failed to get back to her about her application for legal custody despite her repeated requests for information from social worker Hill. Maternal grandmother testified that when G.M. was under her care, there was no agreement with the agency that she would keep the child away from Mother.

{¶ 26} The trial court also considered the recommendations of the GAL. On November 16, 2016, the GAL submitted a report in which he recommended that the trial court grant CCDCFS's request for permanent custody. The GAL report references Mother and Father's history of drug addiction, Mother's "numerous convictions for drug abuse," and the lack of a proper home to raise the children. Accordingly, the GAL opined that the "parents have still been unable to demonstrate an ability to work the case plan and an ability to care for the three children."

{¶ 27} At the hearing, the GAL reiterated his recommendation that permanent custody was in the children's best interests. The GAL stated that he had the opportunity to observe maternal grandmother's visits with the children. He stated that maternal grandmother appeared to have a bond with the children. However, he characterized the visits as "weird" and stated that the children acted "wild" while they were with maternal grandmother. When asked why he was recommending permanent custody as opposed to legal custody to maternal grandmother, the GAL responded:

Based on history. I know in talking to paternal grandmother, she felt that things were out of control over at maternal grandmother's house, and I tried to take that with a grain of salt, but I know the history of the matter, the fact that she allowed the children to continue-or allowed the parents to continue to see the children.
The kids are doing very well right now. They're making improvements on their learning deficiencies. But in no way-I
mean, maternal grandmother, I mean, there is no question that she loves the children and the children love her. I can't say that's not the case. It is.

Despite maternal grandmother's love for the children, however, the GAL stated that he did not believe legal custody to maternal grandmother was in the children's best interests.

{¶ 28} On February 3, 2017, the trial court issued separate journal entries terminating Mother's parental rights and ordering J.F., G.M., and C.M. to be placed in the permanent custody of CCDCFS. In addition, the trial court denied Mother's motion for legal custody to maternal grandmother. In the journal entry for J.F., the court noted that J.F. has been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period. In each journal entry, the court determined by clear and convincing evidence that "a grant of permanent custody is in the best interests of the child[ren] and the child[ren] cannot be placed with one of the child[ren]'s parents within a reasonable time or should not be placed with either parent."

{¶ 29} Mother now appeals from the trial court's judgment.

II. Law and Analysis

{¶ 30} In her sole assignment of error, Mother challenges the trial court's decision to award permanent custody to the agency. In addition, Mother contends that the trial court erred by denying her motion for legal custody to maternal grandmother.

{¶ 31} We take our responsibility in reviewing cases involving the termination of parental rights and the award of permanent custody very seriously. A parent has a " 'fundamental liberty interest' in the care, custody and management" of his or her child, In re Murray , 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the right to raise one's own child is " 'an essential and basic civil right,' " In re N.B. , 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, 2015 WL 406036, ¶ 67, quoting In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However, this right is not absolute. It is " 'always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.' " In re L.D. , 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29, quoting In re Cunningham , 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).

{¶ 32} Because termination of parental rights is " 'the family law equivalent of the death penalty in a criminal case,' " it is "an alternative [of] last resort." In re J.B. , 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, 2013 WL 1799849, ¶ 66, quoting In re Hoffman , 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14 ; In re Gill , 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, 2002 WL 1397156, ¶ 21. It is, however, "sanctioned when necessary for the welfare of a child." In re M.S. , 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, 2015 WL 1276469, ¶ 7, citing In re Wise , 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). All children have " 'the right, if possible, to parenting from either natural or adoptive parents which provides support, care, discipline, protection and motivation.' " In re J.B. at ¶ 66, quoting In re Hitchcock , 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are terminated, the goal is to create "a more stable life" for dependent children and to "facilitate adoption to foster permanency for children." In re N.B. at ¶ 67, citing In re Howard , 5th Dist. Tuscarawas No. 85 A10-077, 1986 WL 8644, at *2 (Aug. 1, 1986).

A. Motion for Legal Custody to Maternal Grandmother

{¶ 33} Before addressing the juvenile court's permanent custody determination, we find it necessary to address several preliminary arguments relating to the court's denial of the motion for legal custody to the children's maternal grandmother.

{¶ 34} Initially, Mother contends that the trial court failed to sufficiently consider Ohio Administrative Code, Section 5101 and its preference for placing children with grandparents in the event the children cannot remain in their home. Ohio Adm.Code 5101:2-42-05(E) and (F).

{¶ 35} Pursuant to the plain language of the Ohio Administrative Code, a children services agency is required to select a substitute care setting that is consistent with the best interests and special needs of the child. Ohio Adm.Code 5101:2-42-05(E). Under the rules, the substitute-care setting must be "the least restrictive, most family-like setting available to meet the child's emotional and physical needs," and must "provide a safe environment for the child." Ohio Adm.Code 5101:2-42-05(E)(1) and (5). In considering whether a relative can be approved as a minor child's caregiver, a children services agency is guided by the procedures set forth in Ohio Adm.Code 5101:2-42-18(B). Although the rules define the home of a suitable relative as the least restrictive setting for a substitute-care setting while an agency has temporary custody, a foster home is on the list of least restrictive placements if there is no suitable relative or nonrelative with whom to place the child. Ohio Adm.Code 5101:2-42-05(F).

{¶ 36} The relevant sections of the Ohio Administrative Code relied on by Mother relate to the procedural requirements a public children services agency must adhere to before approving the placement of a child with a substitute caregiver while the agency has temporary custody. Thus, Mother's argument addresses the obligations of the agency and its substitute-care placement determination rather than the trial court's permanent-custody determination.

{¶ 37} There is nothing in the Ohio Administrative Code to suggest that the trial court was required to consider the agency's procedural obligations when rendering its decision in this case. We nevertheless find nothing in the record to support Mother's position that the agency failed to consider maternal grandmother's "suitability" for placement under Ohio Adm.Code 5101:2-42-05, or otherwise failed to "[a]ssess [her] ability and willingness to provide care and supervision of the child and to provide a safe and appropriate placement for the child." Ohio Adm.Code 5101:2-42-18(B)(8).

{¶ 38} During the permanent custody hearing, Hill testified that after J.F. was removed from his paternal grandmother's custody and placed in the temporary custody of the agency, CCDCFS permitted G.M. to reside with maternal grandmother with the understanding that maternal grandmother would not leave G.M. unsupervised with his parents and would meet all of his needs. Despite this agreement, Hill testified that maternal grandmother admitted that she was allowing G.M. to be alone with Mother and Father while she was at work. Hill testified that she was also "receiving reports that there may possibly have been some physical and * * * mental abuse while [G.M.] was there." Based on this information, the agency determined that maternal grandmother did not have the ability to provide a safe and appropriate placement for G.M. See Ohio Adm.Code 5101:2-42-18(B)(8).

{¶ 39} Hill further testified that the agency considered maternal grandmother as an appropriate placement, but did not approve her "due to her history with the agency." Hill explained that maternal grandmother has not shown in the past that she can provide for the children's special needs.

{¶ 40} Under these circumstances, we find the record demonstrates that the agency complied with Ohio Adm.Code 5101:2-42-05(E)(1) by selecting a substitute care setting that "[i]s considered the least restrictive, most family-like setting available to meet the child[ren]'s emotional and physical needs." See In re A.J. , 148 Ohio St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733. The record reflects that at some point, the agency considered maternal grandmother a "suitable relative," but properly exercised its discretion to modify its assessment upon the discovery of new information.

{¶ 41} We recognize Mother's position that the trial court's decision "utterly lacks any determination with regard to maternal grandmother's 'suitability' under Ohio Adm.Code 5101:2:42:05(E) and (F)." However, we emphasize that the relevant Ohio Administrative Code sections relied on by Mother relate to the procedures the agency must follow when placing a child with substitute caregivers. They do not place burdens or requirements on a juvenile court in permanent custody proceedings, nor do they necessitate findings in the court's decision to terminate parental rights and grant permanent custody to the agency. While R.C. 2151.412(H)(2) provides that the trial court shall prioritize placing children in the legal custody of "a suitable member of the child's extended family" when developing case plans, there is no such requirement in custody determinations. See In re A.D. , 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, 2005 WL 2600638, ¶ 12 ("While a trial court must find by clear and convincing evidence that the parents are not suitable placement options, the court is not required to invoke the same standard with regard to a grandparent.") Accordingly, the juvenile court had no obligation to determine maternal grandmother's suitability in its permanent custody decision.

{¶ 42} Mother further contends that the trial court's judgment denying the motion for legal custody to maternal grandmother was not supported by clear and convincing evidence. However, " '[a] parent has no standing to assert that the court abused its discretion by failing to give the [grandparent] legal custody; rather, the challenge is limited to whether the court's decision to terminate parental rights was proper.' " In re L.W. , 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657, 2017 WL 712808, ¶ 23, quoting In re S.G. , 3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, 2016 WL 7626204, ¶ 52, citing In re Pittman , 9th Dist. Summit No. 20894, 2002-Ohio-2208, 2002 WL 987852, ¶ 70. As this court has stated, if permanent custody to the agency is in the children's best interests, legal custody to a relative necessarily is not. In re V.C. , 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, 2015 WL 7777606, ¶ 60, citing In re M.S. , 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, 2015 WL 1276469, ¶ 11. Thus, Mother's challenge to the trial court's judgment granting CCDCFS permanent custody is limited to whether the trial court improperly terminated her parental rights.

{¶ 43} With these principles in mind, we now review the trial court's judgment awarding CCDCFS permanent custody and terminating Mother's parental rights.

B. Standard for Terminating Parental Rights and Awarding Permanent Custody to CCDCFS

{¶ 44} An agency may obtain permanent custody of a child in two ways.

In re E.P. , 12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, 2010 WL 2415606, ¶ 22. An agency may first obtain temporary custody of the child and then file a motion for permanent custody under R.C. 2151.413, which it did for J.F. Or, an agency may request permanent custody as part of its original abuse, neglect, or dependency complaint under R.C. 2151.353(A)(4), which it did for G.M. and C.M.

{¶ 45} In this case, CCDCFS filed a motion for permanent custody of J.F. pursuant to R.C. 2151.413. When an agency files a permanent custody motion under R.C. 2151.413 after obtaining temporary custody, the guidelines and procedure set forth under R.C. 2151.414 apply. Division (B) of R.C. 2151.414 sets forth a two-prong analysis to be applied by a juvenile court. Pursuant to this division, before a trial court can terminate parental rights and grant permanent custody to a county agency, the court must find by clear and convincing evidence (1) the existence of any one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (e), and (2) that granting permanent custody to the agency is in the best interest of the child.

{¶ 46} Clear and convincing evidence is defined as

that measure or degree of proof which is more than a mere "preponderance of the evidence" but not to the extent of such certainty required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

In re Awkal , 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing Lansdowne v. Beacon Journal Publishing Co. , 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987).

{¶ 47} Where clear and convincing proof is required at trial, a reviewing court will examine the record to determine whether the trier of fact had sufficient evidence before it to satisfy the requisite degree of proof. In re T.S. , 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, 2009 WL 3321019, ¶ 24, citing State v. Schiebel , 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Judgments supported by competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. Id.

{¶ 48} With respect to G.M. and C.M., the agency requested permanent custody in the dependency complaint under R.C. 2151.353(A)(4). When proceeding on a complaint with an original dispositional request for permanent custody, the trial court must satisfy two statutory requirements before ordering a child to be placed in the permanent custody of a children's services agency. The trial court must find

in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child.

R.C. 2151.353(A)(4).

1. First Prong of R.C. 2151.353(A)(4) and R.C. 2151.414(B)(1)

{¶ 49} As stated, R.C. 2151.353(A)(4) first required the juvenile court to determine that G.M. and C.M. could not be placed with either parent within a reasonable time or should not be placed with either parent. R.C. 2151.414(E) lists factors for determining whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with his or her parents. If the court determines, by clear and convincing evidence, that one or more of the factors listed exist as to each of the child's parents, R.C. 2151.414(E) directs that "the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent."

{¶ 50} In its judgment entries awarding permanent custody to CCDCFS, the juvenile court found by clear and convincing evidence that each child could not be placed with their mother within a reasonable time or should not be placed with their mother. The court relied on the factors set forth under 2151.414(E)(1)-(4), (13) and (16), stating, in relevant part:

Upon due consideration of the evidence and testimony presented, as well as the report from the Guardian ad Litem, and the agreement of Father, the court finds by clear and convincing evidence that the child cannot be placed with his mother within a reasonable time or should not be placed with his mother for the following reasons:
* * *
Following the placement of the child outside the home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the mother and father have failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the home.
Mother has a chronic mental illness and chemical dependency that is so severe that it makes the parent unable to provide an adequate, permanent home for the child at the present time and, as anticipated, within one (1) year after the Court holds the hearing in this matter.
Mother has neglected the child between the date of the original complaint was filed and the date of the filing of this motion by the failure to regularly visit, communicate, and/or support the child.
Mother has demonstrated a lack of commitment towards the child by failing to regularly support, visit, communicate, and/or by her actions, has shown an unwillingness to provide an adequate, permanent home for the child.
Mother is repeatedly incarcerated and the repeated incarceration prevents the mother from providing care for the child.

{¶ 51} With respect to J.F., R.C. 2151.414(B) also considers whether a child "cannot be placed with either parent within a reasonable time or should not be placed with the child's parents." See R.C. 2151.414(B)(1)(a). However, R.C. 2151.414(B)(1)(a) only applies if the child is not abandoned or orphaned or has not been in the temporary custody of the agency for 12 months out of consecutive 22-month period. When a child has been in the custody of CCDCFS for 12 months out of a consecutive 22-month period, R.C. 2151.414(B)(1)(d) is controlling.

{¶ 52} In this case, the court found by clear and convincing evidence that J.F. was placed in the agency's custody on March 17, 2015 and, therefore, has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period. Under these circumstances, we find the court improperly applied R.C. 2151.414(B)(1)(a) to J.F.'s case. Nevertheless, we find no error because the court's decision reflects that the court considered R.C. 2151.414(B)(1)(a) in the alternative while also making its finding under R.C. 2151.414(B)(1)(d). See In re R.T. , 2016-Ohio-8490, 79 N.E.3d 138, ¶ 39.

{¶ 53} On appeal, Mother does not dispute the juvenile court's finding that J.F. has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period. See R.C. 2151.414(B)(1)(d). In addition, Mother does not challenge the trial court's R.C. 2151.414(E) findings and concedes that "she is not ready to assume full-time responsibility of her [children]." For these reasons, we find the first prongs of R.C. 2151.353(A)(4) and 2151.414(B) have been satisfied by clear and convincing evidence. Accordingly, the sole issue before this court is whether there was sufficient evidence to support the court's conclusion that permanent custody was in the children's best interests.

2. The Juvenile Court's Best Interests Determination

{¶ 54} In this case, Mother argues that the juvenile court's best interest determination is not supported by clear and convincing evidence and is against the manifest weight of the evidence.

{¶ 55} We review a trial court's determination of a child's best interest under R.C. 2151.414(D) for abuse of discretion. In re D.A. , 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, 2010 WL 4684918, ¶ 47. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). While a trial court's discretion in a custody proceeding is broad, it is not absolute. "A trial court's failure to base its decision on a consideration of the best interests of the child constitutes an abuse of discretion." In re N.B. , 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, 2015 WL 406036, ¶ 60, citing In re T.W. , 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446, 2005 WL 2600663, ¶ 27 ; In re Adoption of Ridenour , 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).

{¶ 56} In determining the best interest of a child at a hearing held pursuant to R.C. 2151.414(A)(1) or for the purposes of 2151.353(A)(4), the juvenile court must 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).

{¶ 57} Although a trial court is required to consider each relevant factor under R.C. 2151.414(D)(1) in making a determination regarding permanent custody, "there 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, 857 N.E.2d 532, ¶ 56. This court has stated that only one of these enumerated factors needs to be resolved in favor of the award of permanent custody. In re Moore , 8th Dist. Cuyahoga No. 76942, 2000 WL 1231467 (Aug. 31, 2000), citing In re Shaeffer Children , 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993).

{¶ 58} A child's best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. In re Adoption of Ridenour , 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991). Accordingly, the willingness of a relative to care for a child does not alter what the court must consider in determining permanent custody. In re A.D. , 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, 2005 WL 2600638, ¶ 12, citing In re Benavides , 8th Dist. Cuyahoga No. 78204, 2001 WL 470177 (May 3, 2001). "A court is not required to favor a relative if, after considering all the factors, it is in the child's best interest for the agency to be granted permanent custody." In re V.C. , 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, 2015 WL 7777606, ¶ 62, quoting In re M.S. , 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, 2015 WL 1276469, ¶ 11.

{¶ 59} In this case, the juvenile court's journal entries reflect that the court considered all of the relevant factors under R.C. 2151.414(D)(1) in determining that an award of permanent custody to the agency was in the children's best interests. The juvenile court explained its evaluation of these factors as follows:

Testimony revealed that the child suffers from severe, mental and physical delays to such a degree that both mother and maternal grandmother could not adequately meet the needs of the child. To extend temporary custody is not in the child's best interests due to mother's repeated incarceration and her failure to meet the case plan objectives. Further, to grant legal custody to maternal grandmother with the child's special needs would not be in the child's best interests.
Upon consideration of the interaction and interrelationship of the child with the child's parents, siblings, relatives, and foster parents; the wishes of the child; the custodial history of the child, including whether the child has been in temporary custody of a public children services agency or private child placing agency under one or more separate orders of deposition for twelve (12) or more months of a consecutive twenty-two (22) month period; 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; and the report of the Guardian ad Litem, the agreement of Father, the court finds by clear an convincing evidence that a grant of permanent custody is in the best interests of the child[ren] * * *.
The court finds that the child[ren]'s continued residence in or return to the home of Mother will be contrary to the child[ren]'s best interests.

{¶ 60} After careful consideration of the testimony presented at the permanent custody hearing, we find there is competent, credible evidence in the record to support the juvenile court's reliance on the factors set forth under R.C. 2151.414(D) and its conclusion that permanent custody to the agency is in children's best interests.

{¶ 61} First, with respect to the children's relationship with their relatives and foster parents, CCDCFS social worker Hill testified that Mother and maternal grandmother love the children very much and that the children love them. Hill testified, however, that Mother has a history of being late for visitation appointments and often missed appointments entirely. In addition, Hill described the children's visits with Mother and maternal grandmother as "chaotic." She explained that Mother often made inappropriate statements to the children that created "turmoil." Similarly, the GAL described the visits between the children and maternal grandmother as "wild-[the children] were kind of all over." Further, Hill testified that she does not believe Mother or maternal grandmother have the ability to meet the special needs of the children.

{¶ 62} In contrast, Hill testified that the children have made "tremendous progress" with the foster parents. The evidence demonstrated that the children have bonded with their foster parents and that the foster parents "have gone far and beyond" to meet the children's basic and special needs. At the hearing, the children's foster parents, K.S. and L.N., testified at length concerning each child's behavioral issues, medical conditions, and delayed development. K.S. and L.N. testified about the extensive actions they have taken in an effort to address the children's special needs. Hill testified that since the children have been placed with the foster parents, the children's mental health, speech, and behavior improved. Further, K.S. and L.N. each testified that they intended to adopt the children if the trial court granted permanent custody to CCDCFS.

{¶ 63} With respect to the wishes of the children, the GAL for the children testified that, although the children did not directly express their wishes to him given their age, he recommended that the court grant permanent custody of the children to CCDCFS. The GAL further opined that, based on his personal observations, he did not believe legal custody to maternal grandmother was in the children's best interests.

{¶ 64} Finally, as to whether the children's need for a legally secure permanent placement could be achieved without a grant of permanent custody, Mother argues that the award of legal custody to maternal grandmother is a legally secure placement that is both in the children's best interest and "less drastic" than the termination of parental rights. Mother contends that legal custody to maternal grandmother is preferable because it would allow the three children to stay together in one household.

{¶ 65} R.C. 2151.414(D), however, does not make the availability of a placement that would not require a termination of parenting rights an all-controlling factor, and does not even require the court to weigh that factor more heavily than other factors. In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. Furthermore, while family unity and blood relationship are vital factors to carefully and fully consider in all custody matters, biological relationship cannot be controlling in itself. In re J.B. , 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, 2013 WL 1799849, ¶ 111, citing In re T.W. , 8th Dist. Nos. 86084, 86109, and 86110, 2005-Ohio-6633, 2005 WL 3436341, ¶ 15. Nor is the existence of a positive relationship, in itself, controlling. Id. The paramount consideration remains the best interest of the child.

{¶ 66} In this case, the evidence demonstrated that, although the maternal grandmother has a genuine desire to have legal custody of her grandchildren, she was unable to meet their special needs. Hill testified that the agency considered maternal grandmother for placement, but determined that she could not provide the children with appropriate care given her history with the agency. Hill explained that when G.M. was being cared for by maternal grandmother, she permitted him to be alone with Mother despite Mother's ongoing substance abuse issues. Hill further referenced maternal grandmother's "extensive history with the agency mostly for educational neglect," and testified that maternal grandmother "has not shown in the past that she has been able to provide the special needs that [the children] need." Viewing this testimony in conjunction with all other best interest factors, we find the evidence reasonably supports the trial court's conclusion that maternal grandmother "could not adequately meet the needs of the children" and that permanent custody should be awarded to CCDCFS.

{¶ 67} On this record, we cannot say the trial court abused its discretion in determining, based on all the relevant factors, that permanent custody was in the children's best interests. Unquestionably, the children's physical, developmental, and emotional issues detailed in this case are directly related to circumstances that led to their removal from Mother's care. These young children need to be cared for and nurtured in a stable, secure, and structured environment. After careful consideration, we agree with the trial court that such an environment can only be ensured by granting permanent custody of the children to the agency. Because permanent custody to the agency is in the children's best interests, legal custody to a maternal grandmother necessarily is not.

{¶ 68} We overrule Mother's sole assignment of error and affirm the trial court's decisions awarding permanent custody of each child to CCDCFS and terminating Mother's parental rights.

{¶ 69} Judgment affirmed.

FRANK D. CELEBREZZE, JR., J., CONCURS;

MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION

MARY EILEEN KILBANE, P.J.

{¶ 70} I respectfully dissent. I would reverse the trial court's decision awarding permanent custody of J.F., G.M., and C.M. to CCDCFS. I do not find that separating J.F. from his siblings and separating the three siblings from their maternal grandmother is in their best interest.

{¶ 71} It is a well-known principle that the termination of parental rights is "the family law equivalent of the death penalty in a criminal case; therefore, parents must be afforded every procedural and substantive protection the law allows." (Citations omitted.) In re D.A. , 113 Ohio St.3d 88, 91, 2007-Ohio-1105, 862 N.E.2d 829. "The termination of parental rights should be an alternative of 'last resort.' " Id. , citing In re Cunningham , 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). Indeed, the goal of the case plan for the siblings in this case is reunification with the parents.

{¶ 72} When considering the best interest factors in R.C. 2151.414(D), the first factor involves the interaction and interrelationship of each child with the child's parents, siblings, and other relatives and significant people in the child's life. R.C. 2151.414(D)(1)(a). This best interest factor is "highly significant" and "focuses on a critical component of the permanent custody test: whether there is a family relationship that should be preserved." In re A.W. , 9th Dist. Lorain No. 09CA009631, 2010-Ohio-817, 2010 WL 761327, ¶ 14, citing In re C.M. , 9th Dist. Summit No. 21372, 2003-Ohio-5040, 2003 WL 22187268, ¶ 11.

{¶ 73} I would find that the evidence before the court on this factor weighs heavily in favor of preserving the family relationship, especially when the evidence in the record indicates that when J.F. was with L.N. and his siblings, she indicated to Hill that she wanted a change in his placement. The record is clear that the maternal grandmother has taken care of both J.F. and G.M. She was not able to take care of C.M. because he was taken into CCDCFS custody after birth. Maternal grandmother actively sought legal custody of all three children and has shown a bond with the three siblings. Indeed, the social worker, GAL, and both foster mothers could not deny maternal grandmother's bond with her grandchildren. Mother recognizes that she is not capable of caring for her children and asked the trial court for the next best thing-for her children to be with their maternal grandmother. If the children are with their maternal grandmother, the ties between mother and her children and the children and their relatives will remain.

{¶ 74} Here, the GAL for the child reported that J.F. was too young to indicate his wishes. While the GAL recommended for permanent custody, he did acknowledge that maternal grandmother had bonded with the children. Maternal grandmother testified that she would be able to provide for her grandchildren's needs. She sought legal custody, and testified that she is committed to enrolling the boys in the proper programs and schools. Maternal grandmother testified that she completed the required fingerprinting and drug screen; however, CCDCFS never got back to her about her application. The fact that there is a loving and committed placement with the maternal grandmother cannot be discounted.

{¶ 75} In light of the foregoing, I would find that the trial court abused its discretion when it determined that permanent custody was in the best interest of the children. I would reverse the trial court's decision granting permanent custody to CCDCFS.

      Division (B) provides:
      (1) Except as provided in division (B)(2) of this section, the 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, or 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, 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.
      (b) The child is abandoned.
      (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
      (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, 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 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
      (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
      For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

      R.C. 2151.414(E) provides, in relevant part:
      (E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
      (1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties;
      (2) Chronic mental illness, chronic emotional illness, intellectual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code ;
      (3) The parent committed any abuse as described in section 2151.031 of the Revised Code against the child, caused the child to suffer any neglect as described in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as described in section 2151.03 of the Revised Code between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody;
      (4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
      * * *
      (13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child;
      * * *
      (16) Any other factor the court considers relevant.

      It is important to note that maternal grandmother and Mother each filed a motion for legal custody to the maternal grandmother. Maternal grandmother's attempt to intervene and seek legal custody was denied by the trial court in September 2016. Mother moved for legal custody to maternal grandmother under R.C. 2151.42(A), which provides: "[a]t any hearing in which a court is asked to modify or terminate an order of disposition issued under [R.C. 2151.353, 2151.415, or 2151.417 ], the court, in determining whether to return the child to the child's parents, shall consider whether it is in the best interest of the child." Ultimately, Mother's motion was denied by the trial court when it granted permanent custody to CCDCFS in February 2017. The majority concludes that Mother does not have standing to assert any error with the trial court's failure to give legal custody to the grandparent. I disagree. I would find that Mother has standing to argue the trial court's denial of her motion for legal custody to maternal grandmother because (1) maternal grandmother was denied permission to become a party in the case; (2) Mother filed the motion on her mother's behalf; (3) the trial court denied Mother's motion in the same journal entry granting permanent custody to CCDCFS.


source: Caselaw Access Project

author: PIETRYKOWSKI, J.

license: Public Domain

text:
    MULTIBANK 2009-1CML-ADC VENTURE LLC (fka Columbian Bank & Trust Co.), Appellee v. SOUTH BASS ISLAND RESORT, LTD., et al., Appellants
    No. OT-17-005
    Court of Appeals of Ohio, Sixth District, Ottawa County.
    Decided: January 12, 2018
    F. Maximilian Czernin, Martha S. Sullivan, Cleveland, Stephanie E. Niehaus, and Eleanor M. Hagan, Cleveland, for appellee.
    D. Jeffery Rengel and Thomas R. Lucas, for appellants.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Ottawa County Court of Common Pleas, granting appellee's, Multibank 2009-1CML-ADC Venture LLC (fka Columbian Bank & Trust Co.), motion for summary judgment on its complaint in foreclosure against appellants, South Bass Island Resort, Ltd. ("SBIR"), Cecil Weatherspoon, Terry L. Ross, John C. Tomberlin, and 250 Centre, Ltd. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} This litigation stems from a 2006 loan agreement between appellee and appellants whereby appellee was to loan SBIR up to $8,600,000 for the development of real property. As a condition of the loan, and in addition to the mortgage on the property, Weatherspoon, Tomberlin, and 250 Centre, Ltd. executed separate cognovit unconditional guarantees of the loan. Weatherspoon also executed, as collateral, an assignment of an insurance policy. It is undisputed that appellants have not made any payments on the loan.

{¶ 3} On August 15, 2008, appellee filed its complaint in foreclosure against appellants in the present action. At the same time, appellee also filed a complaint for judgment on the note in a companion case in Erie County (the "Erie County case").

{¶ 4} On January 13, 2012, appellee moved for summary judgment in this foreclosure action. In support of its motion, appellee relied on the November 22, 2011 judgment in the Erie County case finding that appellee owned the note and that appellants defaulted on the note, and entering judgment against appellants in the amount of $7,849,093.30 plus interest, payment of taxes, assessments and insurance, and costs. In particular, appellee argued that the Erie County judgment collaterally estopped appellants from re-litigating the issue of liability under the note. Appellee further argued that it had satisfied all pertinent requirements, and was entitled to an order of foreclosure.

{¶ 5} In response, appellants argued that the Erie County judgment was not yet final because there remained an issue for trial regarding the validity of Tomberlin's guaranty, and because appellants intended to appeal the Erie County judgment. Thus, appellants claimed that appellee could not rely on the Erie County judgment to establish its right to foreclosure.

{¶ 6} On January 22, 2013, the trial court granted appellee's motion for summary judgment. That decision was appealed to this court, and in Multibank 2009-1 CML-ADC Venture, LLC v. South Bass Island Resort, Ltd. , 6th Dist. Ottawa No. OT-13-004, 2014-Ohio-4513, 2014 WL 5089095, we reversed. In our decision, we agreed with appellants that the Erie County judgment was not a final judgment entitled to preclusive effect. Id. at ¶ 33. Thus, we were required to determine whether summary judgment was properly granted solely upon consideration of the evidence submitted in support of appellee's motion. Upon such consideration, we held that the evidence was insufficient to support summary judgment in that the affidavit submitted by appellee failed to state that SBIR was in default or that appellee had complied with all conditions precedent for foreclosure. Id. at ¶ 45. Accordingly, we remanded the matter to the trial court for further proceedings.

{¶ 7} On November 20, 2015, appellee renewed its motion for summary judgment. In its renewed motion, appellee stated that the Erie County judgment had now become final, in that the remaining issue concerning Tomberlin's guaranty had been resolved by an April 21, 2014 judgment entry finding Tomberlin liable on the loan as a guarantor. Further, appellee submitted affidavits indicating that appellants were in default of the loan and mortgage, and that all conditions precedent to foreclosure had been satisfied. Therefore, appellee again requested summary judgment in its favor on its complaint in foreclosure.

{¶ 8} Appellants, in response, opposed appellee's renewed motion for summary judgment, and moved for summary judgment in their favor on appellee's claims. In particular, appellants argued that appellee failed to seek leave of court before filing its third motion for summary judgment, and thus the motion must be denied. Alternatively, appellants argued for the first time that appellee was prohibited by the doctrines of res judicata and merger and bar from prosecuting its foreclosure action because appellee had already chosen to litigate liability under the note in Erie County. Appellants asserted that because the breach of the loan agreement and foreclosure of the mortgage involved the same parties and the same transaction, the principles of res judicata required that appellee litigate its claims for liability under the note and for foreclosure at the same time.

{¶ 9} On January 12, 2017, the trial court entered its judgment granting appellee's motion for summary judgment, and denying appellants' cross-motion for summary judgment.

II. Assignments of Error

{¶ 10} Appellants have timely appealed the trial court's January 12, 2017 judgment, and now assert two assignments of error for our review:

I. The trial court erred when it granted appellee's third motion for summary judgment in violation of the doctrines of res judicata and merger and bar.
II. The trial court erred when it considered appellee's third motion for summary judgment filed without leave.

III. Analysis

{¶ 11} We review the grant of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989) ; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 12} In their first assignment of error, appellants argue that appellee is barred by res judicata from proceeding in the foreclosure action. Appellants assert that appellee's claims for breach of the loan agreement and breach of the mortgage agreement arose out of the same transaction, and they note that, in the foreclosure action, appellee was not seeking foreclosure based upon a judgment lien from another county, but rather upon breach of the loan agreement. Thus, appellants contend that because appellee elected to litigate its claims separately, in two different courts, appellee was bound by the decision of the first court to enter a final judgment, and is prevented from seeking additional relief or recovery in a second action based upon the same transaction involving the same parties.

{¶ 13} Appellee, in response, argues that a note and mortgage are legally distinct transactions, and thus claims related to each may be brought in separate actions. In support, appellee relies on First Fed. S. & L. Assn. of Newark v. Community Hous. Dev., Inc. , 5th Dist. Fairfield No. 10-CA-10, 2010-Ohio-4280, 2010 WL 3518223. In that case, the bank sought judgment in Franklin County on the cognovit note. Later, the bank filed a foreclosure action in Fairfield County. Similar to appellants, the debtor in First Fed. argued that res judicata barred the bank from proceeding in the foreclosure action. However, the Fifth District recognized that "an action on a cognovit note does not necessarily also involve or require a foreclosure action and an action on a note does not involve the property securing the note." Id. at ¶ 25. Therefore, the court held that because "a foreclosure action is a separate and distinct action from a complaint on a note, res judicata and/or collateral estoppel does not apply, and a plaintiff need not include both in a single complaint in order to preserve all issues." Id. at ¶ 28 ; see also Fifth Third Bank v. Hopkins , 177 Ohio App.3d 114, 2008-Ohio-2959, 894 N.E.2d 65, ¶ 17 (9th Dist.) ("Because a mortgage and an accompanying promissory note securing the mortgage constitute separate contracts, they give rise to legally distinct remedies that cannot be pursued in a single-count foreclosure suit. * * * [A] mortgage foreclosure expressly has been held not to bar a subsequent suit on a guaranty. * * * [A] judgment of foreclosure [does] not adjudicate the defendant's rights and liabilities under a guaranty contract, and, therefore, the doctrine of res judicata [does] not apply.").

{¶ 14} We find the reasoning of the Fifth District in First Fed. to be persuasive. Therefore, we hold that the doctrine of res judicata does not apply to bar appellee's complaint in foreclosure.

{¶ 15} Accordingly, appellants' first assignment of error is not well-taken.

{¶ 16} In their second assignment of error, appellants argue that appellee's motion for summary judgment should have been denied because it did not comply with Civ.R. 56(A), which provides, in pertinent part,

A party may move for summary judgment at any time after the expiration of the time permitted under these rules for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.

{¶ 17} Here, although disputed by appellee, we will presume for purposes of our analysis that appellee was required to, but did not, seek leave of court before filing its renewed motion for summary judgment.

{¶ 18} Notably, appellants raised this same argument in their first appeal in this matter, and our holding is the same now as it was then. In our view, the trial court impliedly granted appellee leave to file its renewed motion for summary judgment when it considered and ruled on the motion. See St. Paul Fire & Marine Ins. Co. v. Corwin , 6th Dist. Wood No. WD-00-058, 2001 WL 536877, *2-3 (May 18, 2001) ; Capital One Bank (USA) N.A. v. Ryan , 10th Dist. Franklin No. 14AP-102, 2014-Ohio-3932, 2014 WL 4460280, ¶ 31.

{¶ 19} Accordingly, appellants' second assignment of error is not well-taken.

IV. Conclusion

{¶ 20} For the foregoing reasons, we find that substantial justice has been done the parties complaining, and the judgment of the Ottawa County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Thomas J. Osowik, J.

Christine E. Mayle, P.J.

CONCUR.

      Appellee had previously moved for summary judgment on December 16, 2011, which the trial court summarily denied because the motion failed to comply with a local rule.


author: Zayas, Presiding Judge.

text:
    Patricia WRIGHT, and Glenn Wright, Plaintiffs-Appellants, v. Joseph HELLER, Tracy Heller, Huff-Drees Realty, d.b.a. Huff Realty, Thomas J. Singer, and Christopher Parchman, Defendants-Appellees, and Regal Field Services, LLC, et al., Defendants.
    NO. C-160897
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: January 17, 2018
    The Schneider Law Firm, LLC, and Louis C. Schneider, Cincinnati, for Plaintiffs-Appellants,
    Lindhorst & Dreidame, Christopher H. Hurlburt and James Brockman, Cincinnati, for Defendants-Appellees Joseph and Tracy Heller,
    Faulkner & Tepe, LLP, John C. Scott, Cincinnati, and Tracy E. Schwetschenau for Defendant-Appellee Huff-Drees Realty, Inc.,
    Arnzen, Molloy, Storm, & Turner, P.S.C., and Aaron A. Vanderlann for Defendant-Appellee Huff-Drees Realty, Inc.,
    Smith Rolfes & Skavdahl Company, L.P.A., and Carmen Sarge, Cincinnati, for Defendants-Appellees Thomas J. Singer and Christopher Parchman.
    OPINION.
   Zayas, Presiding Judge.

{¶ 1} Plaintiffs-appellants Glenn and Patricia Wright ("Wrights") appeal from the trial court's grant of summary judgment in favor of defendants-appellees Joseph and Tracy Heller ("Hellers"), Huff-Drees Realty, Inc., d.b.a. Huff Realty ("Huff"), Thomas Singer, Christopher Parchman, and Nationwide REO Brokers, Inc., ("Nationwide") in a case regarding the removal, disposal, and retention of the personal property that the Wrights failed to retrieve from their former home at 7329 Waterpoint Lane following a foreclosure. We affirm the judgment of the trial court because res judicata barred the Wrights from asserting these claims against the defendants.

The Factual Basis of the Federal Law Suit

{¶ 2} In February 2009, Bank of America ("BOA") foreclosed on a home owned by Glenn and Patricia Wright. The sheriff sold the property back to the bank in December 2009. The Wrights never removed their personal property from the home. After the sale, the bank informed the Wrights in writing numerous times that their property must be removed from the home, to no avail. On March 4, 2010, BOA posted a "Personal Property Notice" on the home informing the Wrights that any property that was not removed by April 8, 2010, would be disposed of without further notice. The notice was also mailed to and received by the Wrights.

{¶ 3} The Wrights, through broker Tim Atteberry, made two attempts to repurchase the home. Atteberry made offers in January and March 2010, but BOA never responded to the offers. On April 7, 2010, Atteberry spoke with Kate McCarthy, a paralegal who worked for Manley Deas Kolchalski, L.L.C., the law firm that represented BOA. Atteberry represented that he had a potential buyer for the property who was interested in purchasing the furniture with the home. Atteberry did not disclose to McCarthy that the Wrights were the potential buyers. After conferring with BOA, McCarthy sent an email confirming that the furniture would remain on the property and instructing Atteberry to conduct future negotiations with Tom Singer, the listing agent from Huff Realty.

{¶ 4} After April 7, 2010, the Wrights never followed up with BOA regarding their personal property. In the meantime, Atteberry contacted Singer who did not negotiate with Atteberry. BOA sold the property to the Hellers in July 2010. When the Wrights visited the home in August 2010, they learned it had been sold to the Hellers.

{¶ 5} Four months later, the Wrights filed suit against BOA in the United States District Court for the Southern District of Ohio asserting state-law claims for breach of contract, negligence, and fraud, claiming they were wrongfully deprived of their personal property because BOA had a lawful duty to protect the property until the Wrights chose to retrieve it, BOA failed to retain the property, and BOA conveyed the personal property to the Hellers.

The Federal Court Proceedings

{¶ 6} In the district court, the Wrights alleged that BOA had agreed to secure and maintain their personal property, BOA had breached the agreement by discarding the property and allowing it to be turned over to the Hellers, the Wrights' demands for recovery of the personal property had been refused, and the Wrights had been deprived of the ownership and benefit of their personal property. The Wrights further alleged that BOA "was negligent in fulfilling" its duty to maintain custody and control over the property, and that BOA had falsely misrepresented its intent to maintain and secure the property.

{¶ 7} After discovery, the district court granted BOA's motion for summary judgment finding that BOA did not enter into a contract with the Wrights to allow them to leave their property in the home, and that any alleged permission to maintain the personal property in the home was contingent solely on the successful repurchase of the home by Atteberry on behalf of the Wrights. The court further found that the Wrights were not in negotiations to purchase the property, and that they should have known well before July 2010 that BOA would not sell the property to Atteberry. Once the Wrights knew that they could not repurchase the home, they should have taken active steps to retrieve their belongings. Instead, the Wrights sat passively and did nothing to protect their interests. They made no attempt to contact BOA or retrieve their personal belongings after April 7, 2010, and BOA did not have a duty to protect or preserve their personal property.

{¶ 8} The Wrights appealed to the Sixth Circuit Court of Appeals, which affirmed the District Court's judgment. See Wright v. Bank of Amr. , 517 Fed.Appx. 304 (6th Cir.2013). In reaching its decision, the court concluded that

There is no evidence that BOA intended or attempted to keep Wrights' personal property; the record makes it clear that the Wrights could have retrieved their personal property at any time. In fact, the Wrights had over three months to retrieve the personal property-three months in addition to the original time frame of four months that BOA gave the Wrights to remove their personal property after the foreclosure.

Id. at 307.

The Factual Basis of the Second Lawsuit

{¶ 9} After the Wrights lost the suit in federal court, they filed a second suit based on the same underlying facts. Again they alleged that they had permission to leave the personal property in the house because they were in negotiations with BOA to repurchase the house, and that they were unlawfully deprived of their personal property. However, this time, they alleged claims of conversion against the Hellers, Huff Realty, Huff agents Thomas Singer and Christopher Parchman, Nationwide, and Regal Field Services and its owners Shane and Kathleen Klaber, and sought compensatory and punitive damages. The Wrights also alleged claims of replevin and unjust enrichment against the Hellers.

{¶ 10} The day after BOA purchased the home, JP Morgan Chase Bank ("Chase"), the servicing agent for BOA, assigned the marketing and sale of the home to Nationwide, an asset disposition company located in Braintree, Massachusettes. Nationwide assigned Huff Realty and Huff agents Singer and Parchman to market and sell the home. Huff had a contractual agreement to provide these services for properties handled by Nationwide as the agent for bank owned properties.

{¶ 11} After receiving the assignment, Huff agents inspected the home and informed Nationwide the house contained furniture and personal items. Nationwide notified counsel for BOA, and, in February 2010, BOA sent three letters requesting that the Wrights remove their personal property from the home. On March 4, 2010, counsel for BOA instructed Nationwide to post a "Personal Property Notice" on the home informing the Wrights that any property that was not removed by April 8, 2010, would be disposed of without further notice. Huff posted the notice at the request of Nationwide, and McCarthy provided the notice to the Wrights.

{¶ 12} On April 7, 2010, McCarthy sent an email to Nationwide instructing them that the home would be sold with the furniture because Atteberry had a buyer who wished to purchase the furniture with the home. Nationwide was instructed by McCarthy not to trash the furniture when the April 8, 2010 deadline had passed. Nationwide, Huff, Singer, and Parchman followed these instructions. BOA also instructed Nationwide to box up all the small, personal items that remained in the home and put them in the garage.

{¶ 13} After McCarthy told Atteberry the furniture would remain in the home, Atteberry spoke with Singer three or four times in April and early May. Singer informed Atteberry that he could not entertain any offers until he received authorization to list the property. Neither Atteberry or Wright contacted Singer after May 4, 2010. The Hellers purchased the property in July 2010.

{¶ 14} The Hellers' purchase contract reflected that Tom Singer and Huff Realty were acting as agents for BOA, and that BOA reserved the right to dispose of or leave any personal property at its discretion. Shortly before the closing, Parchman informed the Hellers that BOA may leave some of the property in the home instead of trashing it. On June 22, 2010, Field Asset Services removed the garbage from the garage. When the Hellers closed on the home on July 6, 2010, BOA exercised its contractual right to leave the personal property in the home. The Hellers moved into the property on July 24, 2010, and spent the next two weeks discarding all of the trash. They donated some of the remaining items to charity, and kept the rest.

{¶ 15} On August 14, 2010, the Wrights visited the home and learned that the house had been sold to the Hellers. Two and a half months later, the Wrights sent a letter to the Hellers asking them to call the Wrights if they did not want any of the property and wanted to give the Wrights an opportunity to recover it. The Hellers' counsel contacted the Wrights' attorney, who indicated that the Wrights did not want any of the personal property, and that the Wrights were going to sue BOA. The Wrights' attorney requested that the Hellers cooperate with the Wrights in their suit against BOA. When the Hellers were deposed in September 2011 for the BOA lawsuit, they gave the Wrights two boxes of family photos that they had salvaged.

The Proceedings in the Second Lawsuit

{¶ 16} All of the defendants filed answers and asserted, among other affirmative defenses, that res judicata and collateral estoppel barred the Wrights from raising these claims and issues again.

{¶ 17} After discovery, all of the defendants filed motions for summary judgment alleging that the claims were barred by res judicata, and more specifically, claim preclusion. The trial court granted the motions for summary judgment, finding that res judicata barred the plaintiffs' claims. The Wrights appealed, raising six assignments of error. However, the Wrights did not appeal the judgment granting summary judgment to Nationwide.

Standard of Review

{¶ 18} Under Civ.R. 56(C), summary judgment is appropriate when, looking at the evidence as a whole (1) there is no genuine issue as to any material fact, (2) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, and therefore, (3) the moving party is entitled to judgment as a matter of law. Civ.R. 56(C) ; Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 686-687, 653 N.E.2d 1196 (1995).

If any doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

Res Judicata

{¶ 19} In their first assignment of error, the Wrights argue that the trial court erred when granting summary judgment to all of the appellees based on res judicata because none of the appellees were parties to the federal case or in privity with the original party.

{¶ 20} Res judicata requires that a party to a lawsuit must present every ground for relief in that action or be forever barred from asserting any additional grounds. Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990). It is well established that "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." Rogers v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).

{¶ 21} Res judicata encompasses two related concepts: (1) claim preclusion, also known as res judicata or estoppel by judgment, which prevents a subsequent action by the same parties based upon any claim arising out of the transaction that was the subject of a previous action; and (2) issue preclusion, or collateral estoppel, which bars relitigation in a second action of an issue that has been actually and necessarily litigated and determined in a prior action that was based on a different cause of action. See O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6 ; State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 1210, ¶ 27.

{¶ 22} Claim preclusion requires proof of the following four elements: (1) there was a prior valid judgment on the merits; (2) the second action involved the same parties or their privies as the first action; (3) the present action raises claims that were or could have been litigated in the prior action; and (4) both actions arise out of the same transaction or occurrence.

{¶ 23} The Wrights do not dispute that there was a previous valid judgment, the present action raises claims that could have been litigated in the federal action, and that both actions arise from the same occurrence. The Wrights sole challenge is to the trial court's determination that all of the defendants were in privity with BOA. Therefore, we must determine whether each defendant in the second action is in privity with BOA.

{¶ 24} The Ohio Supreme Court has explained that "[w]hat constitutes privity in the context of res judicata is somewhat amorphous. A contractual or beneficiary relationship is not required [.]" Brown v. Dayton , 89 Ohio St.3d 245, 248, 730 N.E.2d 958 (2000). The court further explained that, "In certain situations * * * a broader definition of 'privity' is warranted. As a general matter, privity is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata." (Internal citations omitted.) Id.

{¶ 25} A party is in "privity" with another if "he succeeds to an estate or an interest formerly held by the other," City of Columbus v. Union Cemetery Assn. , 45 Ohio St.2d 47, 51, 341 N.E.2d 298 (1976), or where a party is so identified in interest with another that the party represents the same legal right. See Deaton v. Burney , 107 Ohio App.3d 407, 413, 669 N.E.2d 1 (2d Dist.1995). "[A] mutuality of interest, including an identity of desired result," may also create privity between parties. Brown at 248, 730 N.E.2d 958.

Privity of Huff Realty and Agents Tom Singer and Chris Parchman

{¶ 26} The Wrights first argue that Huff and its agents, Singer and Parchman, were not in privity with BOA because their contractual relationship was with BOA's loan servicing agent Chase, and BOA was not in privity with Chase. Courts have determined that privity exists between a loan servicing agent and a mortgage company. See Wicker v. Seterus, Inc. , W.D.Texas No. EP-15-CV-331-KC, 2016 WL 2622017, *5 (May 5, 2016) (concluding that "privity exists between preceding and succeeding owners of property," and "assignees and servicing agents of a loan are in privity with an original mortgage company"); Ernest v. CitiMortgage, Inc. , W.D.Texas No. SA:13-CV-802-DAE, 2014 WL 294544, *4 (Jan. 22, 2014). See also Shore v. Wilmington Trust, N.A. for MFRA Trust 2015-1 , S.D.Florida No. 16-25373-CIV-COHN/SHELTZER, 2017 WL 1494509, *4 (April 20, 2017) ; Taylor v. Sturgell , 553 U.S. 880, 894, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (explaining that "nonparty preclusion may be justified based on a variety of pre-existing 'substantive legal relationship[s]' between the person to be bound and a party to the judgment" such as preceding and succeeding owners of property). Accordingly, Chase is in privity with BOA.

{¶ 27} The record further demonstrates that Huff Realty, Singer, and Parchman were acting as agents for BOA, and it is well-settled law "that a principal-agent relationship satisfies the privity requirement of res judicata where the claims alleged are within the scope of the agency relationship." ABS Industries, Inc. v. Fifth Third Bank , 333 Fed.Appx. 994, 999 (6th Cir.2009), citing Cook v. Criminger, 9th Dist. Summit No. 22313, 2005-Ohio-1949, 2005 WL 957023, ¶ 20 (holding that res judicata precluded consideration of state claims against individual university employees based on the same conduct that formed the basis for prior federal claims resolved in favor of the state university because the state action concerned the employees' actions as agents of the university and hence established privity); Waddell v. Boldman, 4th Dist. Adams No. 01CA721, 2002-Ohio-4229, 2002 WL 1897320, ¶ 23 (holding that the defendant contractual employee was in privity with the plaintiff's former husband, through an agency relationship, and thus, a prior divorce action resolving issues regarding the timbering of land had res judicata effect against the plaintiff in her subsequent action alleging that the defendant cut timber on the land without authorization); Ferrara v. Vicchiarelli Funeral Servs., Inc. , 2016-Ohio-5144, 69 N.E.3d 171, ¶ 19 (8th Dist.) (concluding that privity was established between funeral home, employee, and independent contractor because all actions taken by employee and independent contractor were on behalf of the funeral home).

{¶ 28} Here, BOA specifically informed Atteberry and Glenn Wright that any further negotiations to purchase the property were to be done through Huff Realty and Tom Singer. Wright admitted that he received a notice that Huff and Singer were BOA's agents working on behalf of BOA. At all times, Huff, Singer, and Parchman followed BOA's instructions with respect to the personal property and acted within the scope of the agency relationship, and the contract for sale indicated that Huff and Singer were acting as agents for BOA. Additionally, Huff, Singer, and Parchman shared a mutuality of interest and common desired result with BOA with regard to the sale of the home. Therefore, for purposes of res judicata, Huff, Singer and Parchman are in privity with BOA.

Privity of Joseph and Tracy Heller

{¶ 29} Next, the Wrights argue that the trial court erred in concluding that the Hellers were in privity with BOA. Although the Wrights acknowledge that privity may be established by successors to property interests, they argue it is inapplicable here because they did not raise a conversion claim against BOA in the first action, and the personal property was not sold to the Hellers as the Wrights initially believed.

{¶ 30} However, res judicata operates to "extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action." Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998). Thus, an attempt to litigate the same claim using a new theory, grounds, evidence or form of relief will not circumvent res judicata if the Hellers are in privity with BOA.

{¶ 31} Nonparty preclusion may be justified based on a variety of preexisting "substantive legal relationship[s]" between the person to be bound and a party to the judgment, such as preceding and succeeding owners of property. Taylor , 553 U.S. at 894, 128 S.Ct. 2161, 171 L.Ed.2d 155. "[S]uccessive ownership interests in the same property are sufficient to sustain the flow of privity." Union Cemetery Assoc. , 45 Ohio St.2d at 51, 341 N.E.2d 298.

{¶ 32} In this case, privity between BOA and the Hellers is established because the Hellers are succeeding owners of the same property. At the time of the filing of the federal action, the Wrights were well aware that the Hellers had purchased the home from BOA, that their personal belongings had been left in the home, and that the Hellers retained the personal property. Raising several claims, the Wrights alleged that BOA unlawfully disposed of the personal property by allowing it to remain in the home after the Hellers had purchased the home. The Wrights, who could have included a conversion claim against BOA in the federal action, cannot circumvent res judicata by attempting to litigate this claim against the Hellers because they are in privity with BOA.

{¶ 33} Therefore, we must overrule this assignment of error. Accordingly, we do not reach the remaining five assignments of error because they are moot.

{¶ 34} The judgment of the trial court is affirmed.

Judgment affirmed.

Miller and Deters, JJ., concur.