In re B.P. - Case Law

[Cite as In re B.P., 2013-Ohio-2711.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES:
: Hon. W. Scott Gwin, P.J.
B.P. : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
:
: Case No. 13-CA-12
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
2011-AB-0069

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 26, 2013

APPEARANCES:

For Appellant For Appellee

MICHELLE L. EDGAR JULIE S. BLAISDELL
414 East Main Street 239 West Main Street
Suite 200 Suite 101
Lancaster, OH 43130 Lancaster, OH 43130

For Christopher Oiler Guardian ad Litem

GILBERTO J. CHARRIEZ KRISTI McANAUL
P.O. Box 1091 660 Hill Road North
Lancaster, OH 43130 Pickerington, OH 43147

For Roberta Prevette For B.P.

ADRIENNE LARIMER JAMES DYE
118 West Chestnut Street P.O. Box 161
Lancaster, OH 43130 Pickerington, OH 43147
Fairfield County, Case No. 13-CA-12 2

Farmer, J.

{¶1} On May 3, 2011, B.P., born January 19, 2011, was found to be an abused

child and placed in the temporary custody of appellee, Fairfield County Child Protective

Services. Mother of the child is Roberta Prevette; father is Christopher Oiler. Sherry

Oiler is the child's paternal grandmother, appellant herein.

{¶2} On August 1, 2011, appellee filed a motion for permanent custody of the

child. On August 23, 2011, appellant filed a motion requesting legal custody of the

child. Hearings were held on August 21, and November 20, 2012. By entry filed

January 8, 2013, the trial court overruled appellant's motion and granted permanent

custody of the child to appellee. Findings of fact and conclusions of law were attached

to the entry.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE

BEST INTEREST OF B.P. FOR PERMANENT CUSTODY TO BE GRANTED TO

FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES INSTEAD OF GRANTING

LEGAL CUSTODY TO THE PATERNAL GRANDMOTHER, APPELLANT, SHERRY

OILER."

{¶5} Appellant claims the trial court erred in granting permanent custody of B.P.

to appellee as the evidence was not clear and convincing that legal custody with her

was not in B.P.'s best interests. We disagree.
Fairfield County, Case No. 13-CA-12 3

{¶6} R.C. 2151.414(B) enables a trial court to grant permanent custody of a

child if the court determines by clear and convincing evidence that it is in the best

interests of the child. Clear and convincing evidence is that evidence "which will provide

in the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof." Cross, at 477.

{¶7} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interests of a child:

(D)(1) 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 Code, the court shall consider all relevant factors, including, but

not limited to, the following:

(a) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or

through the child's guardian ad litem, with due regard for the maturity of

the child;
Fairfield County, Case No. 13-CA-12 4

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;

(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.

For the purposes of division (D)(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.

{¶8} While agreeing that B.P. has been in appellee's temporary custody for

twelve of the last consecutive twenty-two months, appellant argues appellee "basically

shut the door to the possibility of Mr. (sic) [Ms.] Oiler having placement of B.P. and

never looked back." Appellant's Brief at 11.
Fairfield County, Case No. 13-CA-12 5

{¶9} In its findings of fact filed January 8, 2013, the trial court found the

following:

[B.P.] suffered injuries when she was an infant and it has not been

determined how the injuries occurred or who is responsible for the injuries.

Sherry Oiler is one of the three people who may be responsible for injuries

to [B.P.] Christopher Oiler is not currently residing with Sherry Oiler, but

has lived with her for most of his life. Christopher Oiler has not been

honest about his relationship with Roberta Prevette, who is the third

person who may have been responsible for the injuries to [B.P.] If

Christopher Oiler were allowed unsupervised access to [B.P.], there is a

reasonable cause to believe that he would allow Roberta Prevette to have

access to the child. Sherry Oiler's ex-husband, with whom she had a

history of violence due to his alcohol use, has been to her home and

brought alcohol to her home. Placement of the half siblings of [B.P.] with

Sherry Oiler in the past did not prove to be a successful placement.

All of this information is relevant to the Court. It is imperative that

[B.P.] receive stability in her life. If she were to be placed in the legal

custody of Sherry Oiler, history indicates that she could be at risk for

physical harm, and at risk of contact with individuals who abuse drugs

and/or alcohol. Given these circumstances, the Court cannot find that it is

in the best interest of [B.P.] for her to be placed in the legal custody of

Sherry Oiler.
Fairfield County, Case No. 13-CA-12 6

{¶10} The guardian ad litem identified two issues mitigating against placement

with appellant. The first was the initial placement of B.P.'s half-siblings with appellant

which generated reports by those children related to their care. Day 2 T. at 178, 184-

185. The second was the extent of B.P.'s injuries which manifested while B.P. was in

appellant's home. Id.

{¶11} B.P. was born on January 19, 2011. On February 28, 2011, B.P. suffered

six fractured ribs and a fractured left wrist. At the time of the hearings, no criminal

charges had been filed related to the injuries. The guardian ad litem and the social

worker opined that appellant and/or her son, B.P.'s father, knew who cause the injuries

or caused the injuries themselves. Day 2 T. at 37, 71-72, 186.

{¶12} Appellant's home environment was in question. She was unable to handle

the placement of the half-siblings. Day 2 T. at 46-47, 178. Her ex-husband had

domestic violence issues and there was a concern about his presence in the home. Id.

at 44-45. The guardian ad litem and the social worker believed appellant could not

protect B.P. from her ex-husband and her son who continued contact with B.P.'s mother

who relinquished her parental rights by stipulation. Day 1 T. at 8; Day 2 T. at 43-45,

182, 186-187, 190-191, 195.

{¶13} Although faced with appellant's willingness and ability to care, the trial

court nevertheless balanced this willingness against the possibility of further injury to

B.P. Whoever the person was who caused the injuries to the one month old, the

injuries occurred while appellant and her son were in control. We find this overriding

element supports the trial court's conclusion.

{¶14} Upon review, we find the trial court did not err in overruling appellant's

motion for legal custody of B.P., and find the trial court had clear and convincing
Fairfield County, Case No. 13-CA-12 7

evidence to find the best interests of the child was best served by granting permanent

custody to appellee.

{¶15} The sole assignment of error is denied.

{¶16} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

_______________________________

JUDGES

SGF/sg 522
[Cite as In re B.P., 2013-Ohio-2711.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: :
:
B.P. : JUDGMENT ENTRY
:
:
:
: CASE NO. 13-CA-12

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division is

affirmed. Costs to appellant.

_______________________________

JUDGES