In re T.K.M.

       [Cite as In re T.K.M., 

.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



IN RE: T.K.M.                                    :   APPEAL NO. C-190020
                                                     TRIAL NO. F15-2118x
                                                 :

                                                 :     O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 11, 2019




Charles H. Bartlett, Jr., for Appellant Father,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and R. Michael Waddle,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Elizabeth Stringer,
Assistant Public Defender, Guardian ad Litem for T.K.M.
                    OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.
       {¶1}   Appellant father appeals the decision of the Hamilton County Juvenile

Court granting custody of his daughter T.K.M. to J.C., the child’s step-aunt. We find

no merit in his sole assignment of error, and we affirm the juvenile court’s judgment.

                                Factual Background

       {¶2}   The record shows that father became involved with the child’s mother

and mother became pregnant while father was separated from his wife and living in

Cincinnati.   Before the child’s birth, father moved from Cincinnati to Seattle,

Washington, to reconcile with his wife.

       {¶3}   T.K.M. was born in June 2014. Mother had a history of substance

abuse, and both mother and child tested positive for methadone. T.K.M. spent 27

days in in the neonatal intensive care unit receiving treatment. Nevertheless, T.K.M.

remained in her mother’s custody for the first year of her life. During that year,

T.K.M. spent significant time at the home of father’s mother, the child’s paternal

grandmother, who was helping mother. Father had little contact with the child

during that time.

       {¶4}   In August 2015, mother gave birth to another child, who tested

positive for opiates, which prompted the Hamilton County Department of Job and

Family Services (“HCJFS”) to file a complaint alleging that T.K.M. was dependent,

neglected, and abused, and a motion for interim custody.          She was placed in

grandmother’s home.

       {¶5}   Father appeared at a pretrial hearing on November 13, 2015.          He

stipulated that he was T.K.M.’s father and that he financially supported the child.

Subsequently, grandmother filed a petition for custody of T.K.M., which stated that

father “lives in Seattle, WA and wants baby to have contact with mother and has


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asked * * * his mother[,] [the child’s] grandmother[,] to take custody and keep them

in contact.” A case plan filed on January 19, 2016, stated that father was aware of

T.K.M.’s living situation, and that he was “not interested in caring for” T.K.M.

       {¶6}   On February 25, 2016, T.K.M. was found to be dependent and abused.

The juvenile court granted temporary custody to HCJFS and continued placement

with grandmother. The case plan’s goal at that time was reunification with mother,

who was required to maintain sobriety and complete drug treatment.

       {¶7}   T.K.M. lived in grandmother’s home from September 4, 2015, until

February of 2017, when she was about two and one-half years old. During that time,

father visited the child several times and talked with her by phone. T.K.M. bonded

with father’s older daughter, who also lived with grandmother.

       {¶8}   During that time, grandmother reported significant concerns

regarding T.K.M.’s adjustment. She stated that T.K.M. did not sleep and would

frequently be up all night and that she was aggressive toward her half-sister who also

lived with grandmother for a time. Grandmother further reported that the child

suffered from eating disorders to a degree that grandmother had sought treatment

for her from the feeding team at Children’s Hospital Medical Center.

       {¶9}   During a home study of grandmother’s home, HCJFS discovered a

substantiated allegation of sexual abuse against grandmother’s husband, which had

not been revealed in previous background checks. When caseworkers confronted

grandmother’s husband, he admitted to sexually abusing his former stepdaughter

and to still having the same types of urges.

       {¶10} T.K.M.’s guardian ad litem filed a motion to terminate temporary

custody to HCJFS and to award custody to J.C. Additionally, HCJFS filed a case plan

proposing that T.K.M. and her half-sister be removed from grandmother’s home and



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                     OHIO FIRST DISTRICT COURT OF APPEALS



placed with J.C. and her husband. J.C. is mother’s stepsister and T.K.M.’s step-aunt,

and she already had a significant relationship with T.K.M.’s older half-sister.

       {¶11} Grandmother had had no knowledge of the sexual-abuse allegations

against her husband, and moved out of their home and into her daughter’s home.

While grandmother intended to remain in her daughter’s home, she had no plans to

file for separation or divorce from her husband. HCJFS remained concerned that

T.K.M. was still at risk to be exposed to grandmother’s husband and that

grandmother could not “give her the permanency she needs.”

       {¶12} On October 17, 2016, the magistrate issued a decision placing T.K.M.

in the care of J.C. and granting custody to J.C. J.C. had already been granted custody

of T.K.M.’s older half-sister. Although mother and grandmother filed objections to

the magistrate’s decision, father did not. The juvenile court affirmed the magistrate’s

decision regarding placement in J.C.’s home, but vacated the award of custody

because the parties had only agreed to address the issue of placement at the hearing.

The court set the case for trial on the motion to terminate HCJFS’s temporary

custody and award custody to J.C.

       {¶13} T.K.M. adjusted quickly to J.C.’s home. A caseworker observed that

after about a week in J.C.’s home, T.K.M. was “a different child.” She talked much

more than she had previously, and she was running around the home, laughing and

playing.   J.C. saw no evidence of the eating and sleeping problems or of the

aggressive behavior grandmother had reported. T.K.M. quickly became attached to

J.C., and she developed a strong bond with her half-sister.

       {¶14} Eventually, mother supported J.C.’s petition for custody. Mother was

not in a position to have custody of T.K.M., but she visited her regularly. Although

J.C. lived four hours away, mother was still able to visit twice a month. T.K.M. was

always excited to see her mother.

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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶15} After T.K.M. was placed with J.C, father filed a motion for custody.

Because he lived in Seattle, he was not able to visit T.K.M. often. He visited her twice

after she was placed with J.C.       Those visits coincided with court hearings in

Cincinnati. At both visits, T.K.M. was nervous when she first saw him, and clung to

J.C. But she eventually warmed up to father, and both visits lasted several hours.

J.C. stated that she was willing to allow father to visit whenever he comes to Ohio

and to allow the child to travel to see him once she is old enough. Father had limited

telephone contact with the child while she lived with J.C. even though J.C. had not

restricted his ability to call.

        {¶16} Because father lived in Seattle, HCJFS requested an interstate home

study from the state of Washington, which declined to approve him as a legal

custodian for T.K.M. The report stated that father had “no relationship or a minimal

relationship with his daughter” and had admitted to not having a relationship with

her.    The report also expressed concern that father and his wife had not

“therapeutically explored the circumstances” of the child’s birth, which was the result

of father having a relationship with the child’s mother while being married. Finally,

the report indicated that a home study would not be approved unless (1) father

established a relationship with the child and participated in a parenting assessment

and (2) father and his wife participated in therapy to address their feelings toward

the child and how those feelings would impact their relationship and their ability to

raise the child.

        {¶17} Father disputed that he had had limited contact with the child. He and

his wife both had stable employment. They lived in an apartment that was suitable

for T.K.M., although they planned to move to a larger condominium if father was

granted custody of T.K.M. Additionally, father’s adult son and daughter lived with

him or nearby.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} Although at the time of the custody hearing father’s adult children

lived in Seattle, they had spent a substantial amount of their childhoods living with

grandmother. Grandmother still had a pending petition for custody of T.K.M. She

remained married to her husband. Although she claimed to have been separated

from him, the evidence showed that after T.K.M. was placed with J.C., grandmother

moved back in with her husband, and they lived together in a home that they both

had purchased.

       {¶19} After hearing the evidence, the magistrate recommended that legal

custody of T.K.M. be awarded to J.C.       He also recommended that father’s and

grandmother’s petitions for custody be denied. Father objected to the magistrate’s

decision. The juvenile court overruled his objections and adopted the magistrate’s

decision. This appeal followed.

       {¶20}     In his sole assignment of error, appellant father contends that the

juvenile court erred in failing to award custody of his daughter to him, instead

awarding custody to a nonrelative. He argues that as a parent, he has the paramount

right to raise his daughter, and that the court had to determine he was unfit before it

could deny his petition for custody. This assignment of error is not well taken.

                      No Finding of Unsuitability was Required

       {¶21} Father relies on In re Hockstock, 

, 

,

, and In re Perales, 

, 

 (1977), for the

proposition that because parents have a fundamental interest in the care, custody

and management of their children, a finding of parental unsuitability is a necessary

first step in child-custody proceedings between a natural parent and a nonparent.

But both of those cases involved private custody disputes, as opposed to cases




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                     OHIO FIRST DISTRICT COURT OF APPEALS



involving an abused, neglected, or dependent child. See In re C.R., 

, 

, 

, ¶ 18-19.

       {¶22} When a child has been adjudicated abused, neglected, or dependent,

the juvenile court has a number of dispositional alternatives available to it, including

granting legal custody to a relative or any other person who has filed a petition for

legal custody. R.C. 2151.353(A); In re A.W., 1st Dist. Hamilton No. C-140142, 2015-

Ohio-489, ¶ 8.    The Ohio Supreme Court has held that when a juvenile court

adjudicates a child abused, neglected or dependent, it has no duty to make a separate

finding at the dispositional hearing that a noncustodial parent is unsuitable before

awarding legal custody to a nonparent. See In re C.R. at paragraph three of the

syllabus; In re A.C., 1st Dist. Hamilton No. C-140273, 

.

       {¶23} The court noted that no statute requires a finding of parental unfitness

as a prerequisite to an award of legal custody in cases where a child is adjudged

abused, neglected or dependent. In re C.R. at ¶ 20, citing In re Cunningham, 

, 

 (1979). That determination does not violate

the parents’ fundamental interests because an award of legal custody does not divest

the parents of their residual parental rights, privileges, and responsibilities. In re

C.R. at ¶ 17.

       {¶24} Father contends that only mother was found to be unsuitable and

there was no determination that he was unsuitable. The Ohio Supreme Court has

rejected father’s argument stating, “A juvenile court adjudication of abuse, neglect,

or dependency is a determination about the care and condition of a child and

implicitly involves a determination of unsuitability of the child’s custodial and/or

noncustodial parents.” In re C.R. at paragraph two of the syllabus. The status of the

child is the focus, not the fitness of the parents. Additionally, this court has stated

that when a parent files a petition for custody, which is in reality a motion to modify

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                    OHIO FIRST DISTRICT COURT OF APPEALS



a prior order of custody granted at a dispositional hearing, there is no requirement

that the juvenile court first determine that the parent was unfit, as the court has

already determined that the child is abused, dependent, or neglected. In re Allah, 1st

Dist. Hamilton No. C-040239, 

.

       {¶25} Father never objected to the court’s initial determination that T.K.M.

was dependent and abused. Further, an adjudication by a juvenile court that a child

is dependent, neglected or abused followed by a dispositional order awarding

temporary custody to a public children services agency is a final order and is

appealable to the court of appeals. In re Murray, 

, 

(1990), syllabus; Allah at ¶ 3. Once the time for the filing of an appeal had passed,

the issue was res judicata and father could not challenge the court’s finding that the

child was dependent and abused. See In re H.F., 

, 2008-Ohio-

6810, 

; In re J.D., 2d Dist. Montgomery No. 26588, 2015-

Ohio-4114, ¶ 66; In re Harris, 1st Dist. Hamilton No. C-020512, 

, ¶ 7-

12.

       {¶26} Further, father never objected to the court’s initial decision to place

the child with J.C. Therefore, he forfeited all but plain error. See In re W.W., 1st

Dist. Hamilton Nos. C-110363 and C-110402, 

; In re Jones, 1st

Dist. Hamilton Nos. C-090497, C-090498 and C-090499, 

, ¶ 32-33.

He had not yet filed his petition for custody, and he had no standing to assert

grandmother’s interest. See In re K.C., 

, 

 (1st

Dist.); In re T.W., 1st Dist. Hamilton No. C-130080, 

.

       {¶27} The fact of the matter is that father did not want custody after the

adjudication. The guardian ad litem specifically told him early in the proceedings

that he could file for custody and he declined to do so. He was content to let

grandmother raise the child.      It was only after the child was removed from

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                     OHIO FIRST DISTRICT COURT OF APPEALS



grandmother’s home and placed with mother’s stepsister and her husband that

father filed his own motion. At that time, it was too late to contest the court’s

determination that T.K.M. was an abused and dependent child. The court was then

required to determine what disposition was in the child’s best interest.

                               Best Interest of the Child

       {¶28} When deciding the disposition of an abused, neglected, or dependent

child, the court should base its determination on the best interest of the child. In re

A.W., 1st Dist. Hamilton No. C-140142, 

, at ¶ 8; In re A.C., 1st Dist.

Hamilton No. C-140273, 

. The statutory scheme provides no

specific set of criteria when determining the best interest of the child in a legal-

custody proceeding.     But this court has held that the factors set forth in R.C.

2151.414(D) and 3109.04(F) are instructive. See In re F.B.D., 1st Dist. Hamilton No.

C-180356, 

; In re M., R., & H. Children, 1st Dist. Hamilton No.

C-170008, 

; In re A.W. at ¶ 8.

       {¶29} The juvenile court has discretion to determine what placement is in

the child’s best interest, and an appellate court will not reverse that decision absent

an abuse of discretion. In re M., R., & H. Children at ¶ 30; In re A.W. at ¶ 10. An

abuse of discretion exists if the court’s decision is not supported by competent,

credible evidence. In re M., R., & H. Children at ¶ 30; In re A.W. at ¶ 10.

       {¶30} The evidence showed that the child thrived in J.C.’s home in a way that

she had not while in grandmother’s home. She bonded with J.C. and her husband,

their biological children, and her half-sister, who was already in J.C.’s custody and

who was also thriving. Though mother could not have custody, she was able to visit

regularly and had established a positive relationship with the child. J.C. also testified




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                    OHIO FIRST DISTRICT COURT OF APPEALS



that she would continue to foster a relationship between father and the child if she

were granted legal custody.

       {¶31} Father had no contact with the child during the first year of her life.

After that, he had only intermittent contact with the child, even when she lived with

grandmother. Even after the child was placed with J.C., he only called the child

sporadically, four or five times between the placement and the custody hearings. He

only visited the child twice, and he had no real bond with her. He claimed to have

spent substantial amounts of time with the child when she lived with grandmother,

but the juvenile court did not find that testimony to be credible. Matters as to the

credibility of evidence were for the trier of fact to decide. Davis v. Flickinger, 

, 

 (1997); In re Z.H., 1st Dist. Hamilton Nos. C-

150305 and C-150301, 

.

       {¶32} Competent, credible evidence supported the juvenile court’s decision

to grant custody to J.C. Consequently, we cannot reverse that decision as being an

abuse of discretion. In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008,

.

                      ICPC Precludes Placement with Father

       {¶33} Additionally, the Interstate Compact for the Placement of Children

(“ICPC”), as adopted by R.C. 5103.20, precludes placement with father.         Under

Article VI, Section B, when an Ohio agency requests that another state, the receiving

state, perform a local assessment or home study, and the receiving state does not

approve the placement, “the child shall not be placed.” There is no right to judicial

review in Ohio, the sending state. In the Matter of B.L., 

, 

 (12th Dist.). But any “interested party” has a right to seek judicial review




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                      OHIO FIRST DISTRICT COURT OF APPEALS



through procedures in the receiving state. ICPC, Article VI, Section C; In re B.L. at ¶

21.

       {¶34} The state of Washington did not approve the placement primarily

because of father’s lack of a relationship with his daughter. Father argued below that

Washington’s determination was based only on the word of caseworkers from

HCJFS. But he never appealed the denial in the state of Washington, and the Ohio

court had no jurisdiction to review it.

       {¶35} Father also relied on an exception set forth in ICPC, Article III, Section

(B)(4), which states that the “provisions of this compact shall not apply to * * * [t]he

placement of a child with a non-custodial parent” provided that (1) the noncustodial

parent proves to the satisfaction of a court in the sending state a substantial

relationship with the child; (2) the court in the sending state makes a written finding

that placement with the noncustodial parent in in the best interests of the child; and

(3) the court in the sending state dismisses its jurisdiction in the child’s case.

       {¶36} None of these conditions apply in this case.             Father specifically

admitted that he did not have a substantial relationship with the child. The court did

not find it was in the child’s best interest to place the child with father, and it did not

dismiss jurisdiction. Consequently, the juvenile court was precluded from placing

the child with father. We, therefore, overrule father’s assignment of error and affirm

the juvenile court’s judgment.

                                                                     Judgment affirmed.



MYERS and BERGERON, JJ., concur.

Please note:
       The court has recorded its own entry this date.




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