[Cite as In re T.H.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE T.H. : : No. 107947 A Minor Child : : [Appeal by Father] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 25, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-17-904898

Appearances:

Mark A. Stanton, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

KATHLEEN ANN KEOUGH, J.:

Appellant-Father (“father”), appeals the juvenile court’s decision

awarding permanent custody of his minor child to the Cuyahoga County

Department of Children and Family Services (“CCDCFS”). For the reasons that

follow, we affirm the juvenile court’s decision. On March 24, 2017, CCDCFS filed a complaint for dependency and

temporary custody following the child’s birth due to mother’s failure to provide

appropriate care for the child and father’s inability to establish paternity, and

provide basic needs due to his criminal history. CCDCFS received emergency

custody on April 17, 2017. On July 19, 2017, the child was adjudicated dependent

and the agency was subsequently granted temporary custody in September 2017.

After the child was placed in the custody of CCDCFS, father was

evasive with CCDCFS, preventing the agency from referring him for case planning

services. During that time, father did not seek visitation with the child. In fact,

CCDCFS had no contact with father until he was apprehended in December 2017

on an outstanding capias on a criminal matter. Father was subsequently sentenced

to three years in prison.

Although father was in prison, his sister expressed an interest in

visiting and caring for the child. However, because paternity had not been

established, father’s sister was not initially considered a relative for legal purposes.

Following the establishment of paternity and a background check, paternal aunt

was granted visitation with the child in June 2018. Between this time and the time

of trial, paternal aunt attended four of the eight scheduled visitations.

On October 13, 2017, the CCDCFS filed a motion to modify

temporary custody to permanent custody. On May 21, 2018, father moved to

terminate temporary custody and grant legal custody to his sister, the child’s paternal aunt. Hearings were held on the motions in July, August, and early

October 2018.

Testimony was given that the child’s mother has had no contact with

the minor child since the child’s removal and placement with CCDCFS. Evidence

established that mother had her parental rights terminated regarding another

child who was placed with, and adopted by, the foster family where the minor child

subject to this case was placed and currently lived.

Testimony was presented by both the child’s guardian ad litem

(“GAL”) and the foster mother, that the child has lived with the foster mother for

almost her entire life — at the time of the hearings, the child was two and one-half

years old. They testified that the child has a strong bond with her foster family,

which includes the child’s half-brother. According to the GAL, the child considers

her foster family as her family and the home as her home. In his written report,

the GAL noted that the child “appears to be thriving in her current environment.”

Foster mother testified that she wished to adopt the child.

Paternal aunt testified that she wanted legal custody of the child to

maintain the family relationship. The testimony and evidence revealed that she

was declined consideration for the child’s placement because of a situation

involving her daughter, who was convicted of disorderly conduct, domestic

violence, and assault. Additionally, paternal aunt admitted that she had a pending

criminal charge and was recently convicted for driving under suspension.

Testimony was presented, however, that the visitations between the child and paternal aunt were appropriate and that the child actively engaged with the

paternal aunt.

Although the GAL testified that the child’s bond with her foster

family was strong and that she was thriving in her current environment, he

recommended that the juvenile court deny CCDCFS’s petition for permanent

custody, but grant legal custody to foster mother and award paternal aunt

visitation. The GAL justified his recommendation based his perception that the

foster mother was “overstepping” her role as a foster parent and that it was in the

child’s best interest to protect the relationship she has with her biological family.

The GAL made this recommendation despite conducting a thorough investigation

and background check of the paternal aunt.

On October 29, 2018, the juvenile court granted CCDCFS’s motion

to place the child in the permanent custody of CCDCFS and denied father’s request

for legal custody to the paternal aunt.

Father now appeals, raising two assignments of error, which will be

addressed together.

In his first assignment of error, father contends that the juvenile

court abused its discretion when it determined that permanent custody to CCDCFS

was in the best interest of the child. Father raises as his second assignment of error

that the juvenile court abused its discretion when it denied his motion for legal

custody to a paternal aunt. Although R.C. 2151.412(H)(2) instructs the trial court to prioritize

placing a child in the legal custody of a “suitable member of the child’s extended

family” when developing case plans, there is no such requirement in permanent

custody determinations. In re Tr.T., 8th Dist. Cuyahoga No. 106107, 2018-Ohio-

2126, ¶ 17, citing In re J.F., 8th Dist. Cuyahoga No. 105504,

.

This court has stated, “[t]he willingness of a relative to care for a child does not alter

what a court considers in determining whether to grant permanent custody. * * * If

permanent custody to CCDCFS is in [the child’s] best interest, legal custody to [a

relative] necessarily is not.” In re V.C. 8th Dist. Cuyahoga Nos. 102903, 103061, and

103367,

, ¶ 60, citing In re M.S., 8th Dist. Cuyahoga Nos. 101693

and 101694,

, at ¶ 11.

In deciding what is in a child’s best interest in a permanent custody

proceeding, and contrary to father’s position on appeal, the trial court need not find

by clear and convincing evidence that termination of parental rights is the only

option or that no suitable relative is available for placement. In re V.C. at ¶ 61, citing

In re Schaefer,

,

,

. Rather,

R.C. 2151.414 requires the court to find the best option for the child upon a weighing

of all the relevant factors. Schaefer at ¶ 63. “The statute does not make the

availability of a placement that would not require a termination of parental rights

an all-controlling factor. The statute does not even require the court to weigh that

factor more heavily than other factors.” Id. Accordingly, father cannot challenge

on appeal the failure to award legal custody to a relative in this matter; rather, the challenge is limited to whether the trial court’s decision to terminate his parental

rights was proper. See, e.g., J.F. at ¶ 42 (parent has no standing to assert that the

court abused its discretion by failing to give a relative legal custody). His second

assignment of error is overruled.

Termination of parental rights is an alternative of last resort but is

sanctioned when necessary for the welfare of a child. M.S., 8th Dist. Cuyahoga

Nos. 101693 and 101694,

, ¶ 7. Under R.C. 2151.414, a trial court

may grant permanent custody of a child to an agency if, after a hearing, the court

determines by clear and convincing evidence that one of the factors enumerated in

R.C. 2151.414(B)(1)(a) through (e) applies, and that an award of permanent

custody is in the child’s best interest. “Clear and convincing evidence” is evidence

that “will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations sought to be established.” In re C.B., 8th Dist. Cuyahoga No. 92775,

, citing Cross v. Ledford,

, 477,

(1954). A juvenile court’s decision in a custody proceeding will not be reversed

absent a showing of an abuse of discretion. In re A.J.,

, 2016-

Ohio-8196,

.

In this case, the trial court found that the child is abandoned. Father

concedes that CCDCFS met this factor listed in R.C. 2151.414(B)(1)(b) to satisfy one

of the requirements the juvenile court must find before terminating parental rights.1 Accordingly, father only challenges the juvenile court’s determination that

the grant of permanent custody was in the child’s best interest.

When determining the best interest of a child, R.C. 2151.414(D)(1)

directs the court to consider all relevant factors, including, but not limited to: (a)

the interaction and interrelationship of the child with the child’s parents, siblings,

relatives, foster caregivers and out-of-home providers; (b) the wishes of the child,

as expressed directly by the child or through the child’s guardian ad litem; (c) the

custodial history of the child; (d) the child’s need for a legally secured permanent

placement and whether that type of placement can be achieved without a grant of

permanent custody to the agency; and (e) whether any of the factors set forth in

R.C. 2151.414(E)(7) through (11) apply. Although a trial court is required to

consider each of the R.C. 2151.414(D)(1) factors in making its permanent custody

determination, “[o]nly one of these factors needs to be resolved in favor of the

award of permanent custody.” In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-

Ohio-3818, ¶ 17.

In this case, father claims that permanent custody was not in the

child’s best interest because there was a legally secure placement of the child with

a paternal aunt who was willing to be the child’s legal custodian. He claims that

the trial court abused its discretion when it chose to permanently sever a family

relationship when a secure placement with the child’s paternal aunt was available.

1The juvenile court found that the child’s mother has failed to parent or financially support the child. This finding has not been challenged on appeal, and mother is not a party to the appeal. He contends that once visitations began between the paternal aunt and the child,

the interaction between them was appropriate and the child actively engaged with

the paternal aunt. Father supports his arguments based on the GAL’s

recommendation that legal custody be granted to the foster mother with visitation

to the paternal aunt.

As we have already addressed, 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,

. “‘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.’” V.C.,

8th Dist. Cuyahoga Nos. 102903, 103061, and 103367,

, ¶ 62,

quoting M.S., 8th Dist. Cuyahoga No. 101693 and 101694,

, ¶ 11.

Father’s challenge is only one factor that the court can consider

under R.C. 2151.414(D) — that a secure placement was possible without a grant of

permanent custody to the agency. Even assuming that paternal aunt could provide

a legal secure placement, the other factors weigh in favor of permanent custody.

Regarding the child’s interaction and relationships of the child, the

trial court found that the child is bonded with her biological sibling, foster mother,

and in the foster home — the only home that the child has really known. And despite

the GAL’s recommendation, foster mother did not seek legal custody; rather she

expressed a desire to adopt the child if permanent custody was granted to CCDCFS.

Finally, the GAL did not advocate that the paternal aunt be granted legal custody of the child. In fact, the GAL testified that he would not advocate that the child be

removed from placement with the foster mother. The GAL testified that the child

was “thriving.” Accordingly, the trial court’s consideration of this factor in finding

permanent custody to CCDCFS was in the child’s best interest was not an abuse of

discretion.

Regarding the custodial history, the record reveals that two weeks

after the child’s birth, CCDCFS placed the child with foster mother because she

previously adopted the child’s four-year-old half-brother after serving as his foster

mother for three years. The trial court’s finding that the child has been in temporary

custody since April 2017, approximately two weeks following her birth, is

uncontroverted. Accordingly, the trial court’s consideration of this factor in finding

permanent custody to CCDCFS was in the child’s best interest was not an abuse of

discretion.

The trial court also determined that although the child was too young

to meaningfully express her wishes, the GAL expressed that all the children in the

foster home were happy and well-adjusted. The testimony from both the GAL and

foster mother revealed that the child has bonded significantly with her half-brother

and foster family. Foster mother testified that the child and her half-brother are

emotionally attached and that they comfort each other when the other is sad.

Moreover, paternal aunt did not deny that the child is well-bonded with her current

foster family. Accordingly, the trial court’s consideration of this factor in finding permanent custody to CCDCFS was in the child’s best interest was not an abuse of

discretion.

The juvenile court did not discount the bond and relationship

between the child and paternal aunt. In fact, the court in its order found it be in

the child’s best interest that permanent custody be granted, but also that “paternal

aunt shall continue to have companionship time with the minor child.”

Accordingly, only the legal relationship between the minor child and paternal aunt

is severed; the entire relationship is not. Moreover, the child continues to have a

biological relationship through her current placement — with her half-brother.

Accordingly, despite paternal aunt’s willingness to assume legal

custody of the child, clear and convincing evidence supports the trial court’s

determination that permanent custody is in the best interest of the child. The trial

court’s opinion demonstrates that it considered the factors in R.C. 2151.414(D) and

found by clear and convincing evidence that an order of permanent custody is in

the best interest of the child. Accordingly, the trial court did not abuse its

discretion in granting permanent custody to CCDCFS.

Father’s first assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR