IN T HE SUPREME COURT OF OHIO
IN THE MATTER OF: ICN and
N.N
CASE NO. I ^ 1-
z z
On Appeal from the Hamilton
County Court of Appeals, First
Appellate District
COURT OF APPEALS NO. C1200111
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANTS TONY AND SONIA ALEXANDER
Charles H. Bartlett, Jr. (0017609)
917 Main Street, Suite 300
Cincinnati, Ohio 45202
(513) 977-4212 (513) 977-4218 Fax
erchbCa^aol.com
Email:law yAttorney for Defendants-Appellants
Tony and Sonia Alexander
Joseph T. Deters (0012084)
Hamilton County Prosecutor
Nanci Brocker (0069572)
Assistant Prosecuting Attorney
230 East Ninth Street, Suite 4000
Cincinnati, Ohio 45202
513-946-3000
Counsel for Appellee Hamilton County
Job and Family Services
Kim Helfrich (0068172)
111)9 0 2 ZC1Z
CLERK OF COURT
SUPRFME COURT OF OHIO
Hamilton County Public Defender's Office
GAL Division
800 Broadway, Third Floor Mezzanine
Cincinnati, Ohio 45202
Counsel for Appellee Guardian Ad Litem
TABLE OF CONTENTS
Page
IS A CASE OF PUBLIC OR
EXPLANATION OF WHY THIS CASE
GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL
....................................3
CONSTITUTIONAL QUESTION .
........................3
STATEMENT OF THE CASE AND FACTS . . . .
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . 7
FIRST PROPOSITION OF LAW:
WHERE CLEAR AND CONVINCING EVIDENCE HAS NOT BEEN PRESENTED IN SUPPORT OF TFIE
DENIAL OF A PETITION FOR CUSTODY BY THE MATERNAL GRANDPARENTS THEN THE BEST
INTEREST STANDARD WOULD DICTATE THAT PERMANENT CUSTODY TO THE DEPARTMENT OF
JOB AND FAMILY SERVICES BE DENIED, AS THERE IS AN APPROPRIATE RELATIVE PLACEMENT
AVAILABLE.
SECOND PROPOSITION OF LAW:
FOSTER PARENTS SHOULD BE HELD TO A HIGHER STANDARD OF PARENTING THAN TIiE
GENERAL PUBLIC BECAUSE CHILDREN WHO ARE TAKEN FROM THEIR BIOLOGICAL FAMII.IES IN
THE CASE OF DEPENDENCY ARE IN A FRAGILE EMOTIONAL STATE, AND WHEN FOSTER
PARENTS DEMONSTRATE A LACK OF MORAL COM[vIITMENT TO TELLING THE TRUTH AND
DEMONSTRATE A COMNIITMENT TO PHYSICAL PUNISHMENT IT IS NOT IN THE BEST INTEREST
OF MINOR CHILDREN TEMPORARILY COMIVIITTED TO AN AGENCY OF THE STATE OF OHIO TO
REMAIN IN THE CARE OF SUCH FOSTER PARENTS AND UPON THE MOTION OF ANY PARTY TO
CUSTODY PROCEEDINGS, THE JUVENILE COURT SHOULD REMOVE THE CHILDREN FROM TIJE
FOSTER PARENTS' HOME.
CONCLUSION ......... ...
................................ 10
PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
AppR.
Pa2e
APPENDIX
Judgement Entry of the Hamilton County Court of Appeals (May 18, 2012) .. 1
Page 2 of 11
EXPLANATION OF WHY TI3IS CASE IS A CASE OF
PUBLIC OR GREAT GENERAL INTEREST
In this case, the Hamilton County Juvenile Court chose to award two African-American
children, ages 7 and 6, to two Caucasian foster parents, who intended to adopt once permanent
custody was granted to the Hamilton County Job and Family Services. Job and Family Services
made their intentions very clear that the chosen Foster parents were on track to adopt these children.
In spite of the fact that the Maternal Grandparents regularly visited their grandchildren for nearly 7
years without fail and were bonded with the children, had an appropriate home, all the while they
were raising their own minor children and had disproved allegations of seven-year-old abuse and
neglect claims and in spite of the fact that the chosen adoptive parents were shown to be of
questionable moral character, the trial court elected to place these children for adoption.
It is a matter of public or great general interest that children not be separated from their
biological family on so flimsy an excuse. Particularly when these children are old enough to
identify with their African-American heritage and are thereafter to be held captive in a European
American family - one that admitted they will use corporal punishment as a means of discipline.
Rather than hold the grandparents up in comparison to the Foster parents, the Court should simply
have granted custody to the maternal grandparents, as they obviously could provide for the
children's needs and were known by the children as their grandparents. A child has a basic liberty
right under the Ohio and U.S. Constitutions to be a part of its biological family whenever possible.
Therefore, this case also involves a constitutional issue for children and their biological
families, particularly in the case of racial divide.
STATEMENT OF THE CASE AND FACTS
On November 4, 2005, the Hamilton County Department of Job and Family Services
(hereinafter "HCJFS") filed a Complaint requesting temporary custody of the within minor girls,
K.N. and N.N., ages 7`/z and 6`/^ respectively, (hereinafter "minor girls") and of two brothers, also
minor children of the natural mother, Shavonne Foster. In conjunction with the Complaint, HCJFS
also filed a motion for an interim order of temporary custody. The case was assigned to Magistrate
Paul Demott, who, at the initial hearing on November 7, 2005, granted the motion for an interim
order. Up until the time the Complaint was filed the oldest girl, K.N., and her brothers had been
Page 3 of 11
living with the maternal grandparents, Appellants Tony and Sonia Alexander (hereinafter
"Appellants"). The youngest girl, N.N., was an infant, having only been born on October 7, 2005.
The Court found that the "continued residence or return to the home would be contrary to
the children's best interest and welfare". Thereafter, on May 10, 2006, Magistrate Demott
adjudicated the minor girls to be neglected and committed the children to the temporary custody of
HCJFS.
Appellants, who are African-American, on that same date, filed a Petition for Custody,
requesting custody of the minor girls and their brothers. Elizabeth and John Eicher, Caucasian
Amricans and the paternal grandparents of the two older brothers ("Paternal Grandparents") filed
their Petition for Custody of the brothers on July 13, 2006. On December 4, 2006, HCJFS filed a
motion to terminate temporary custody of the two brothers and to award custody to the Paternal
Grandparents. This was done in snite of the fact that the Eichers had almost identical familv historv
of Domestic Violence and failed narentine as the Alexanders. The Trial Court subsequently did
award custody of the brothers to the Paternal Grandparents on August 22, 2007. HCJFS then filed a
motion to modify the temporary custody of the minor girls herein, namely K.N. and N.N., to
permanent custody. The competing custody petitions of the maternal and paternal grandparents and
the motions of HCJFS were heard on October 31, 2006, December 18, 2006, January 2, 2007,
February 12, 2007, May 22, 2007, and July 27, 2007.
On August 22, 2007, by Magistrate's Decision, Magistrate Paul Demott entered a Decision,
with findings of fact and conclusions of law, ordering that:
1. HCJFS's motion for permanent custody of K.N. and N.N. be granted as in the best
interest of the children; and
2. Maternal grandparents' motion for custody of the minor girls be denied based
upon a finding that such denial was in the best interest of the children.
With regard to K.N. and N.N., the magistrate further found that the minor children cannot
be placed with either parent within a reasonable time; the minor children should not be placed with
either parent; the minor girls continued residence in or return to the home would be contrary to their
best interest and welfare; and it is in the best interest of the minor children to be committed to the
permanent custody of HCJFS.
Appellants filed Objections to the Decision of the Magistrate. The Juvenile Court denied
the Objections as filed by Appellants, and a Notice of Appeal was timely filed under case No.
Page 4 of 11
C0800121 on February 12, 2008. This Appeal was consolidated with case No. C0800107. The
granting of permanent custody of the minor girls, K.N. and N.N. was reversed by the First District
Court for Hamilton County, Ohio and remanded for further proceedings on May 9, 2008. In
paragraph 22 of its Decision, this Court held: "But the trial court could not have concluded that it
was in the children's best interest to grant permanent custody to HCJFS, because the court did not
have all the evidence before it. The home study on the Alexanders was never completed because
HCJFS and the trial court believed that Tony Alexander's 1984 assault conviction prevented the
Alexanders from having custody." (See Decision of May 9, 2008, Case Nos. C080107 and
C080121, First District Court of Appeals, Hamilton County, Ohio.) This remand was in regards to
the case of the minor girls only.
Upon remand and in response to Appellants' oral Motion for Removal of Magistrate
Demott, Judge Karla Grady reassigned the case to Magistrate Karen Falter. Magistrate Falter
scheduled this matter for Trial, both on the Motion to Modify HCJFS' Temporary Custody to
Permanent Custody and for a hearing on the custody petition of Appellants, Tony and Sonia
Alexander.
The Trial of these issues took place over the course of three evidentiary hearings on April
22, 2009, May 12, 2009, and May 14, 2009. The Magistrate reached a decision adverse to
Appellants and favorable to HCJFS on June 12, 2009. That decision went up on objections to Judge
Karla Grady. The Magistrate's Decision was thereafter reversed and remanded with instructions to
permit Appellants the opportunity to more fully cross-examine Appellee HCJFS's Foster Parents,
who had taken the stand during the May 12, 2009 hearing on behalf of Appellee HCJFS. One
additional hearing was held on November 3, 2010. The Magistrate, after consideration of the
supplemental evidence, once again found it to be in the minor girls' best interest to grant permanent
custody of the girls, K.N. and N.N., to the Hamilton County Job and Family Services.
In the interim, Appellants filed a Motion to Remove the Children from the Home of the
Foster Parents. The basis for this motion was the admitted use of corporal punishment by the foster
parents against the minor girls and the foster parents' one-year-old adoptive child; the instability in
the foster parents' home resulting in the foreclosure of their home and the contradictory testimony
of the foster parents under oath as to whether or not the foster mother was using corporal
punishment. The Magistrate denied the motion to remove the children in a separate Decision issued
on March 24, 2011.
Page 5 of 11
Appellants filed Objections to both March 24 decisions. By Judicial Entry filed January 13,
2012, the objections filed by Appellants were denied. Thereafter, Appellants filed this Notice of
Appeal to the First District Court of Appeals for Hamilton County, Ohio. That appeal was denied
by Judgment Entry filed on May 18, 2012. From this Decision, Appellants herein have filed this
Appeal.
Testimonial evidence was taken from Ms. Deena Watts, home investigator for Hamilton
County Job and Family Services ("HCJFS") on Apri122, 2009. Ms Watts testified that she found
the Appellants' home to be suitable for the minor girls, and she had no concerns. The investigator
found that all safety issues turned out positive, and nothing in the physical condition of the home
was a concern. Appellants had two children living in the home, a son and daughter, neither one of
which appeared to be lacking anything. In the opinion of the investigator, she would have no reason
to believe that the prandchildren would not be similarly raised and cared for by Appellants.
Ms. Stacey Barton, the case worker for HCJFS also testified. She testified that the current
foster parents would adopt the minor girls, should permanent custody be granted to HCJFS.
Appellants objected to this testimony on the grounds of relevancy of the foster parents to the issue
of the children's best interest. The objection was overruled by the Court. Thereafter, the current
foster parents, identified as Amber and John, were allowed to testify regarding the appropriateness
of their home and their history of raising the minor girls. Amber testified that if the Court granted
custody to the Alexanders, she would be okay with it, stating, "Yeah. If that's what the Court
decides that's good for them then that's fine." She stated that the minor girls referred to the
Alexanders as Granny and Grandpa and agreed that the children had a good relationship with the
Alexanders. John agreed with his wife's characterization of their role as foster parents. Ms. Barton
testified that the girls have no special needs; that Appellants have consistently visited with the girls
and have had appropriate interaction with them; that K.N. has been in three foster homes to adopt,
that the prior set of foster parents chose not to adopt because they got divorced; that she could not
give an opinion as to the ability of the Alexanders to physically provide for their grandchildren; and
that she could not give an opinion whether Mr. Alexander, who suffers a disability, would be
prevented from parenting the children.
Upon remand, Amber and John were made available to Appellants for cross-examination.
Amber, the foster mother, acknowledged that, when she first became a foster parent, she was
provided with rules regarding discipline, and that one rule prohibited the use of spankings. Amber
Page 6 of 11
then denied under oath that she had ever spanked the children. To make her testimony perfectly
clear, Appellants' counsel then asked, "Okay. So you've not physical... used any form of physical
punisbment with regards to any of the three children?" to which she responded "No" [Note: the
third child was the foster parents' one-year-old adopted child.] John, on the other hand, testified as
follows: that he had spanked the children; that he spanked them in front of his wife, Amber; that he
continues to spank his then three-year-old adoptive daughter; that once he and his wife adopt the
minor girls, he intends to spank them again; that his wife has spanked K.N. and N.N. and their
adoptive daughter; and that he and his wife physically spanked the girls until they were told not to
do so. Ms Barton testified that the children reported being spanked by both foster parents. Upon
being confronted with this information, neither Amber nor John denied it. Based upon this
testimony and based upon further evidence of dishonesty on the part of the foster parents,
Appellants moved to have the children removed from the foster home.
ARGUMENTS IN SUPPORT OF PROPOSITION OF LAW
OF LAW: WHERE CLEAR AND CONVINCING EVIDENCE HAS NOT
FIRST PROPOSITION
BEEN PRESENTED IN SUPPORT OF TBE DENIAL OF A PETITION FOR CUSTODY BY THE MATERNAL
GRANDPARENTS TfEN TBE BEST INTEREST STANDARD WOULD DICTATE THAT PERMANENT
AS THERE IS AN
CUSTODY TO TBE DEPARTMENT OF JOB AND FAMILY SERVICES BE DENIED,
APPROPRIATE RELATIVE PLACEMENT AVAILABLE.
O.R.C. 2151.23(A) provides, in pertinent part, that: "(A) The juvenile court has exclusive
original jurisdiction under the Revised Code: ...(2) To determine the custody of any child not a
ward of another court of this state;". Upon a finding by the juvenile court that the natural parents of
(2002), 98 Ohio
a child are unsuitable, the court may award custody to a non-parent. In re Hockstok
St.3d 238, 2002-Ohio-7208; see also In re Perales (1977), 52 Ohio St.2d 89.
In the within case, the court found that HCJFS had proven that the minor girls were
neglected. Therefore, Appellant's petition for custody was appropriately before the court.
Moreover, O.R.C. 2151.353(A) provides in part:
"(A) If a child is adjudicated an abused, neglected, or dependent child, the
court may make any of the following orders of disposition:
(1) Place the child in protective supervision;
(2) Commit the child to the temporary custody of a public children
Page 7 of 11
residing within or outside the state, or a probation officer for placement in
a certified foster home, or in any other home approved by the court;
(3) Award legal custody of the child to either parent or to any other person
eeal
who, prior to the dispositional hearing, files a motion requestin legal
custody of the child or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings." [Emphasis added]
Appellants filed their Petition for Custody of the minor girls on the day of the
dispositional hearing, wherein the court granted temporary custody to HCJFS. Thereafter, the
court continued to entertain the Appellants' petition for custody as part of its continuing review
of the temporary custody order and the reunification plans with Shavonne Foster. When
reunification efforts failed, HCJFS moved to modify its temporary custody to permanent custody
as to the minor girls. HCJFS supported the custody by the Paternal Grandparents of the two
older brothers, which was granted by the Court.
O.R.C. 2151.414(B)(1) states that:
"(B)(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 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 ending on or after March 18, 1999, 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 ending on or after
March 18, 1999."
O.R.C. 2151.414(D) goes on to state that:
"(D) In determining the best interest of a child at a hearing held pursuant
to division (A) of this section or for the purposes of division (A)(4) or (5)
of section 2151.353 or division (C) of section 2151.415 of the Revised
Page 8 of 11
Code, the court shall consider all relevant factors, including, but not
limited to, the following:
(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(2) The wishes of the child, as expressed directly by the child or through
the child's guardian ad litem, with due regard for the maturity of the child;
(3) 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 ending on or after March 18, 1999;
(4) The child's need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child."
Throughout much of this case, the minor girls have been of a very tender age and unable
to understand their circumstances in having been placed in a foster home. They are now 7'h and
6'/^ years of age, and have been visiting with their grandparents weekly for over six years. They
have a loving and bonded relationship to the Appellants herein, who have been steadfast in their
resolve to gain custody of these children. The grandparents' home is found to be appropriate,
and their children are found to be well-provided for. They are both capable of permanently
providing for the care of their grandchildren. On the other hand, HCJFS has had a poor record
with providing any permanency for these minor girls. There have been multiple placements for
these children, which have failed for various reasons. The current foster parents lost their home
due to foreclosure. When given an opportunity to state honestly under oath that she had spanked
the children, including her own, the foster mom chose to deny the accusation. The Foster Father
lost emplovment because of dishonestv. This does not speak well for the character of the foster
parents, nor does it bode well for their prospects of being available as an adoptive family in the
future.
"Clear and convincing evidence is that measure or degree of proof which will produce in
the mind of the trier of facts as firm belief or conviction as to the allegations sought to be
established." Cross v. Ledford (1954), 161 Ohio St. 469, 477. A judgment must have some
competent credible evidence going to all the essential elements of the case before it will be
sustained against a weigh of the evidence claim. C. E. Morris Co. v. Foley Constr. Co. (1978), 54
Page 9 of 11
sustained against a weigh of the evidence claim. G.E. Morris Co. v. Foley Constr. Co. (1978), 54
Ohio St.2d 279. All competent and credible evidence in this case supports an award of custody
to Appellants of the minor girls.
SECOND PROPOSITION OF LAW: FOSTER PARENTS SHOULD BE HELD TO A HIGHER
STANDARD OF PARENTING THAN THE GENERAL PUBLIC BECAUSE CHILDREN WHO ARE
TAKEN FROM THEIR BIOLOGICAL FAMILIES IN THE CASE OF DEPENDENCY ARE IN A FRAGILE
EMOTIONAL STATE, AND WHEN FOSTER PARENTS DEMONSTRATE A LACK OF MORAL
COMMITMENT TO TELLING THE TRUTH AND DEMONSTRATE A COMMITMENT TO PHYSICAL
PUNISHMENT IT IS NOT IN THE BEST INTEREST OF MINOR CIULDREN TEMPORARILY
COMMITTED TO AN AGENCY OF THE STATE OF OHIO TO REMAIN IN THE CARE OF SUCH
FOSTER PARENTS AND UPON THE MOTION OF ANY PARTY TO CUSTODY PROCEEDINGS, THE
.RTVENILE COURT SHOULD REMOVE THE CHILDREN FROM THE FOSTER PARENTS' HOME.
O.R.C. 2151.353 (E)(2) reads in part "... any party... by filing a motion with the Court
may, at any time request the Court to modify or terminate any order or disposition issued
pursuant to division (A) of this section...".
In the case at hand, it is undenied that the minor girls at a tender age were regularly
spanked by their foster parents. When confronted with this on the stand, the foster mother chose
to lie while under oath. This is not the only instance of dishonesty. John, the Foster father, also
testified under oath that he lost his employment at Parkside Christian Church because of a change
in his "functionality" (Transcript 11/03/2010 T.p. 100-101). However, his supervisor testified
that he left that job over issues of his honesty. If this is the family to which HCJFS intends to
adopt these minor girls, then there is a real issue concerning the choices made by HCJFS.
Certainly, the Trial Court should have corrected the situation and ordered another placement for
these children.
CONCLUSION
For the reasons set above, this case involves issues of public and great general interest
involving the care of Ohio children whose parents are unable to provide for them. This naturally
involves liberty issues under the Ohio and U.S. Constitutions regarding the right of children to be
placesd with family members who are both appropriate and available to take custody, before such
Page 10 of 11
decent should not be automatically given to Caucasian foster parents for adoption without first
considering other family members.
Respectfully submitted,
CHARLES
[Ohio Supkmma-Co-urt No,,-OU 1,7609]
917 Main Street, Suite 3
Cincinnati, Ohio 45202
(513) 977-4212 (513) 977-4218 Fax
La w, rohbkaol.com
e
ATTORNEY FOR APPELLANTS
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon Ms. Nanci Holden Brocker,
Hamilton County Prosecutor for Camille Bell with HCJFS, Assistant Prosecuting Attorney,
Hamilton County Prosecutor's Office, 230 East Ninth Street, Suite 4000, Cincinnati, Ohio 45202
via hand-delivery, and Ms. Kim Helfrich with the Hamilton County Public Defender's Office,
GAL Division, 800 Broadway, Third Floor Mezzanine, Cincinnati, Ohio 45202 via regular mail
on this 2-1*1day of June, 2012.
CHARLES H. B
[Ohio Supreme Court No. 0
ATTORNEY FOR APPELLANTS
Page 11 of 11
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: K.N. and N.N.
APPEAL NO. C-12o111
TRIAL NO. Fo5-2692
JUDGMENT ENTRY.
This cause was heard upon the appeal, the record, the briefs, and arguments.
The judgment of the trial court is affirmed for the reasons set forth in the Opinion
filed this date.
Further, the court holds that there were reasonable grounds for this appeal, allows
no penalty and orders that costs are taxed under App. R. 24.
The Court further orders that i) a copy of this Judgment with a copy of the Opinion
attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution
under App. R. 27.
To the clerk:
Enter upon the journal of the court on May 18, 2oi2 per order of the court.
Presiding Judge
D97665767
IN THE COURT OF APPEALS
COURT 0 AP^PEA®
FIRST APPELLATE DISTRiCT OF OHIO
MAY 18 z01z
HAMILTON COUNTY, OHIO
TRACY WINKLER
HAM^ TON COUN^T15'
C
IN RE: K.N. and N.N.
APPEAL 140. C-12o111
TRiAL N0. Fo5-2692
OPINION.
PRESENTED TO THE CLERK
OF COURTS FOR FILING
11AY 12 2012
COURT OF APPEALS
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May i8, 2oi2
Charles H. Bartlett, Jr., for Appellants Tony Alexander and Soriia Alexander,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nanci. Brocker,
Assistant Prosecuting Attorney, for Appellee, Hamilton County Department of Job
and Family Services,
Kimberly A. HeoWch, Guardiari Ad Litem for K.N. and N.N.
,
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sr =::
O
Please note: This case has been removed from the accelerated calendar.z : >
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OHIO FIRST DISTRICT COURT OF APPEALS
HILDEERANDT,
Presiding Judge.
{11} Appellants Tony Alexander and Sonia Alexander appeal the judgment
of the Hamilton County Juvenile Court granting permanent custody of two minor
children, K.N. and N.N., to the Hamilton County Department of Job and Family
Services ("HCJFS").
The First Appeal and Proceedings After Remand
{¶2} , K.N. was born ;on August 3, 2004, and N.N. was born October 7,
2005. Sonia Alexander is the maternal grandmother of the children, and Tony
Alexander is their maternal step-grandfather. The Alexanders are also the maternal
grandparents of two other minor children, J.E. and J,E.
{13} K.N., J.E., and J.E. were voluntarily placed in the Alexanders' home
as a result of their parents' inability to care for them. N.N. was placed in foster care
soon after she was born. In. 2005, HCJFS received interim custody of all four
children. K.N., J.E., and J.E. remained with the Alexanders, while N.N. remained in
foster care.
(¶4) In November 2005, police were called to the Alexander home after a
report of domestic violence involving Sonia Alexander's daughter Sharonne. Because
K.N., J.E., and J.E. appeared to have been neglected, HCJFS removed them from the
home. K.N. was placed in the same foster home as N.N,
{1[5} In 2oo6, HCJFS filed a motion to award permane'nt custody of J.E.
and J.E. to their paternal grandparents and to award permanent custody of K.N. and
N.N. to HCJFS. Both of those motions were granted.
{¶6} The Alexanders appealed the grant of permanent custody of J.E. and
J,E. to the paternal grandparents and the grant of permanent custody of K.N. and
2
OHIO FII2ST DISTRICT COURT OF APPEALS
N.N. to HCJFS. This court affirmed the custody award with respect to J.F. and J.E.
See In re Needom, Ist Dist. Nos. C-o8o107 and C-o8o121, 2008-Ohio-2196, ¶ 27.
But we reversed the judgment as to K.N. and N.N. on the basis that HCJFS had failed
to complete a home study on the Alexanders based on the erroneous assumption that
Mr. Alexander's 1984 assault conviction prevented the Alexanders from obtaining
custody. Id. at ¶ 26. Accordingly, we remanded the cause for further proceedings,
including the completion of the home study. fd:
{17} Following remand, the home study was completed; and a hearing was
conducted before a magistrate.' HCJFS presented evidence that, while the Alexander
home was physically adequate to house K.N. and N.N., there remained concerns
about the Alexanders' ability, to 'provide a stable and safe environment for the
children. Specifically, HCJFS cited the history of domestic violence in the home and
the Alexanders' failure to properly care for the grandchildren when they had
previously been in their care.
{q8} By contrast, the evidence indicated that K.N. and N.N. had been
thriving in the foster home where they had both been placed since 2005. Tlie foster
parents had provided a stable, loving home, and the children regarded them as their .
mother and father. Although there was evidence that the foster parents had
previously administered corporal punishment in violation of their agreement with
HCJFS, there was also evidence that they had ceased doing so when informed of the
violation. And while the foster parents had experienced financial troubles as a result
of the foster father losing his job, there was evidence that the couple's finances had
stabilized. HCJFS indicated that its goal was for the foster parents.to adopt K.N. and
N.N., and the children's guardian ad litem supported that plan,
{19} The magistrate recommended that permanent custody of K.N. and
N.N. be awarded to HCJFS, and the juvenile court entered judgment in accordance
with that recommendation.
OHIO FIRST DISTRICT COURT OF APPEALS
Weight of the Evidence
{¶10} In their first assignment of error, the Alexanders argue that the trial
court erred by granting permanent custody of K.N. and N.N. "to HCJFS. They
contend that the judgment was based on insufficient evidence and was against the
manifest weight of the evidence.
{¶i 1} A court.may grant a motion for permanent custody,if it determines by
clear and convincing evidence that (i) permanent custody is in the .child's best
interest, and (2) the child cannot be placed with either of the child's parents within a
reasonable time or should not be placed with either parent. R.C. 2151.414(B)(i)(a).
Once there has been a determination that a child's parents are unable to provide a
suitable home, "the focus must shift from the rights of the parents to the rights of the
child" and to what piacement is in the child's best interest. In re Hockstok, 98 Ohio
St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 38. The juvenile court is not required
to consider placing a child with a relative before granting permanent custody to a
state agency. Needom at ¶ i4.,
{112} Clear and convincing evidence is that which will produce in the mind
of the trier of fact a firm belief or conviction as to the facts sought to be established.
In re Adoptioh of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985)• A
reviewing court will not reverse the judgment of a trial court as. being against the
manifest weight of the evidence if the record contains some competent, credible
evidence from which the court could have found that the essential statutory elements
for permanent custody had been established by clear and convincing evidence. In re
McCluskey, ist Dist, No. C-o5o702, 2oo6-Ohio-4o34, ¶ 14.
{113} In determining a child's best interest, a court must consider all
relevant factors, including (i) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster.caregivers, out-of-home providers, and
any other person who may significantly affect the child, (2) the child's wishes, 'as
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OHIO FIRST DISTRICT COURT OF APPEALS
expressed directly by the child or through the child's guardian ad litem, (3) the
custodial history of the child, including whether the child has been in the temporary
custody of children services agencies for 12 or more months, and (4) the child's need
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody. R.C. 2151.414(D)(i).
{1ff14} In the case at bar, the juvenile court's granting of permanent custody
was based on competent, credible evidence. As we noted in the previous appeal of
this matter, neither of the children's biological parents was capable of providing a
stable home. Needom at ¶ 21. Nothing that occurred following our remand of the
matter has affected that determination.
{¶15} Moreover, we find no error in the juvenile court's conclusion that
placement with the Alexanders would not be in the best interest of the children.
Although K.N. and N.N. maintained a positive relationship with the Alexanders, the
history of domestic violence and neglect supported the juvenile court's decision that
more appropriate placement options were available. And in light of the children's
relationship with their foster parents, the court was justified in concluding that
adoption by the foster family would be the best means of providing the children a
secure, permanent placement. . Accordingly, we overrule the first assignment of
error.
Continued Placement with the Foster Parents
{116} In their second and final assignment of error, the Alexanders contend
that the juvenile court erred in permitting K.N. and N.N. to remain placed ivith their
foster parents. Having held that the juvenile court properly considered the statutory
factors in determining that the proposed adoption was in the best interest of the
children, we find no merit in the Alexanders' argument. The second assignment of
error'is therefore overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶17} We affirm the judgment of the juveni]e court.
Judgment affirmed.
CUNBTIINGHAM and DIlVICEI.ACICIiR, JJ., concur,
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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