IN THE SUPREME COURT OF OHIO

In the Matter of:

Z.N.

(T.C.,

Appellant.)

Case No. 2010-1360

On Appeal from the FranklinCounty Court of Appeals,Tenth Appellate District

Court of AppealsCase No. 10AP-85

MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEEFRANKLIN COUNTY CHILDREN SERVICES

Alison M. Skinner Peters (0075354) (Counsel of Record)Robert J. McClaren (0046657)1919 Frank RoadColumbus, Ohio 43223(614) 278-5902(614) 278-5896 (facsimile)Attorney for Appellee, Franklin County Children Services

Paul Giorgianni (0064806)Giorgianni Law, LLC1538 Arlington AvenueColumbus, Ohio 43212(614) 205-5550(614) 481-8242 (facsimile)Attorney for Appellant, Aunt T. C.

Alita C. Rucker (0079306)CASA of Franklin County373 South High Street, 15th FloorColumbus, Ohio 43215(614) 462-7450(614) 462-5070 (facsimile)Guardian ad litem for Z.N.

Roger Warner (0019941)Roger Warner Co., LPA171 E. Livingston AvenueColumbus, Ohio 43215(614) 221-3821(614) 221-6753 (facsimile)

AUG .3 U ZU1C^

CLERK OP COURTSUPREME Ct1UR`= O F OHIO

Attorney for Appellees, Foster Parents D. T. and T. T.TABLE OF CONTENTS

Paee

EXPLANATION OF WHY THIS CASE IS NOT OF PUBLIC ORGREAT GENERAL INTEREST AND DOES NOT INVOLVE ASUBSTANTIAL CONSTITUTIONAL QUESTION . . . . . . . . . . . . . . . . . .3

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT IN OPPOSITION TO APPELLANT'SPROPOSITION OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

I. The issues raised by Appellant were waived becausethey were not raised or litigated before the trial courtor the court of appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. The trial court was not required to consider placementwith Appellant prior to granting the agency's motionfor permanent custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. Appellant was not denied of due process of law ......... 12

CONCLUSION ...............................................14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2

EXPLANATION OF WHY THIS CASE IS NOT OF PUBLIC ORGREAT GENERAL INTEREST AND DOES NOT INVOLVE

A SUBSTANTIAL CONSTITUTIONAL OUESTION

This Court should not accept jurisdiction of this case because it is not of public or great

general interest and does not involve a substantial constitutional question. Although the denial

of Appellant's motion for legal custody is of great consequence to her, this is not a case of public

or great general interest. The legal analysis in this case is extremely fact specific, and the facts

are unique and unlikely to recur in the future. Therefore, if this Court were to accept jurisdiction

and render a decision in this case, it would not likely provide useful guidance to the Ohio bench

and bar in the future.

There is no constitutional question in this case as Appellant's due process rights were not

violated. Although the termination of parental rights implicates the Due Process Clause,

Appellant is not Z.N.'s parent. Relatives who are not parents are not entitled to the same

constitutional protections as parents in custody proceedings. Further, Appellant was given a

meaningful opportunity to present her case before the trial court.

Finally, Appellant's Proposition of Law is without merit for the reasons set forth fully

below.

3

STATEMENT OF THE CASE AND FACTS

In Case No. 07JU14332, Franklin County Children Services (hereinafter "FCCS" or "the

agency") received emergency custody of Z.N. on October 3, 2007. FCCS received a temporary

order of custody (hereinafter "TOC") on October 4, 2007. Case No. 07JU14332 expired by

operation of law and the complaint was re-filed in Case No. 07JU18316 on December 26, 2007.

On December 27, 2007, FCCS received a TOC in the new case. On February 5, 2008, temporary

court commitment (hereinafter "TCC") was granted to FCCS after Z.N. was adjudicated to be a

dependent and neglected child. FCCS requested and was granted a six-month extension of TCC

on September 30, 2008.

A motion for permanent court commitment ("PCC") was filed by FCCS on February 11,

2009. A trial was held on December 15 and 16, 2009. The evidence at trial showed FCCS first

became involved with this family in 2007. FCCS was initially involved on a voluntary basis due

to domestic violence issues between Z.N.'s parents. Trial Transcript I (hereinafter "TI") p. 39.

FCCS subsequently obtained custody of Z.N. because of allegations that Father had mental

health issues and substance abuse issues, Mother and Father were involved in additional

incidents of domestic violence, and suspicious bruises were found on Z.N.'s body. Complaint in

Case No. 07JU18316; TI p. 39. At the time of trial, Z.N. was two years and two months old. TI

p. 37. At the time of trial, she had been residing in Appellees D.T. and T.T.'s home for more

than two years. TI p. 40.

Neither parent appeared for trial. TI p. 4, 31. The evidence established Mother did not

complete her case plan objectives: she did not have stable housing; she did not attend counseling;

she did not engage in any assessments; she completed only two out of fifteen random urine

screens; she did not complete anger management classes; and she visited inconsistently with the

4

child (attending only about half of the twelve visits she was offered over a two-month period).

TI p. 56-62. Additionally, Mother abandoned the child (she last visited the child more than two

years before the trial (on December 14, 2007)) and last had contact with the caseworker on

January 7, 2008. TI p. 60-62. Father similarly did not complete his case plan objectives: he did

not complete alcohol and drug treatment; he completed only five out of fifty-five random urine

screens; he did not complete parenting classes; he did not complete domestic violence or anger

management classes; he did not have stable housing; he did not complete counseling; and he

visited inconsistently with the child (only ten times in 2009). TI p. 65-86. At the time of trial, it

had been almost ninety days since he visited with Z.N. TI p. 86.

Appellant T.C. is Z.N.'s patermal aunt. She filed motions for legal custody of Z.N. on

January 8, 2008, October 10, 2008, February 10, 2009, and May 20, 2009 (all in Case No.

07JU18316). The January 8, 2008 motion was declared "moot" in a judgment entry dated

February 7, 2008. The October 10, 2008 motion was denied in an entry dated November 18,

2008 because it was not in the best interest of the child. Additionally, Appellees D.T. and T.T.,

Z.N.'s foster parents, filed a motion for legal custody of Z.N. on March 17, 2009.

At trial, the evidence established FCCS considered Appellant for placement of Z.N., but

Appellant failed to provide complete and accurate information regarding her background. TI p.

43. Appellant did not disclose her criniinal history, her previous involvement with FCCS, or a

domestic violence incident involving her and Z.N.'s father (Appellant's brother) where the police

were called. TI p. 43. Additionally, Appellant's paramour had several active cases involving the

Ohio Department of Taxation and passing bad checks. TI p. 44. Appellant's criminal history

included passing bad checks and receiving stolen property. TI p. 43, 103. Appellant denied her

criminal history. TI p. 99. The domestic violence incident involved Appellant choking Z.N.'s

5

father and pinning him in a chair. TI p. 45. In the past, FCCS had court ordered protective

supervision of Appellant's son and he was placed at Bassett House for treatment of alcohol and

drug issues. TI p. 45. Appellant denied any prior involvement with FCCS despite FCCS records

showing otherwise. TI p. 105.

Ultimately, FCCS did not approve Appellee's home study because she failed to disclose

her criminal history, her previous involvement with FCCS, and the domestic violence incident

involving her and Z.N.'s father. TI p. 48. Throughout the case, Appellant had supervised

visitation with Z.N. at FCCS and at Appellant's home. TI p. 49. The FCCS caseworker

requested that Appellant complete services so the visits could be increased to unsupervised visits,

but Appellant failed to do so. TI p. 109.

A second home study occurred in June 2009. The FCCS caseworker requested additional

information from Appellant: vaccination records for her four dogs; tax information to address

concerns with Appellant and her paramour's financial history; and documentation to establish

her paramour's granddaughter (who lived with Appellant and her paramour in Ohio before going

to Florida) was not receiving Ohio benefits while living in Florida. TI p. 50. The second home

study was not approved because FCCS did not receive the requested information. TI p. 51.

Appellant consistently provided inaccurate or incomplete information to FCCS. TI p. 106. The

FCCS caseworker did not trust the information provided by Appellant. TI p. 56.

The FCCS caseworker observed some of the visits between Appellant and Z.N. and

testified there was a small bond between them, but there were times when Z.N. was not

comfortable with Appellant. TI p. 54. The caseworker testified he would not have

recommended placement with Appellant even if the home study was not an issue because of the

lack of time Appellant had spent with Z.N. TI p. 55. Appellant's own testimony established she

6

had spent less than one hundred hours (or four full days) with Z.N. over the child's entire life. TI

p. 241.

In contrast, Z.N. had a significant bond with her foster parents, Appellees. TI p. 154.

The guardian ad litem testified Z.N. was very bonded with her foster parents and recommended

the court grant the agency's motion for PCC. TI p. 184. She testified it would have been

harmful to the child to remove her from the only home she had ever known. TI p. 187.

PCC was granted to FCCS in a judgment entry dated January 21, 2010. Aunt T.C.

appealed to the Tenth District Court of Appeals and the trial court's judgment was affirmed on

June 25, 2010. Appellant filed a notice of appeal in this Court on August 3, 2010 and a

memorandum in support of jurisdiction on August 9, 2010.

7

ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITION OF LAW

1. The issues raised by Appellant were waived since they were not raised or litigated

before the trial court or the court of appeals.

Since Appellant failed to raise the issues in her proposition of law in the trial court and

the court of appeals, Appellant waived these issues and her appeal should be dismissed. The

"failure to raise at the trial court level the issue of the constitutionality of a statute or its

application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a

deviation from this state's orderly procedure, and therefore need not be heard for the first time on

appeal." State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus; Gibson v. Meadow

Gold Dairy (2000), 88 Ohio St.3d 201, 204 (holding that constitutional arguments not made

before the trial court are waived and need not be addressed by the Ohio Supreme Court).

Appellant points out that the waiver doctrine is discretionary. However, the discretionary

nature of the waiver doctrine only applies to constitutional challenges. Since the Appellant has

no constitutional rights implicated in this case, the waiver doctrine in this case would not be

discretionary.

Appellant raises the following issues in her proposition of law: when a public children

services agency files a motion for permanent custody and a child's non-parent relative files a

motion for legal custody, must the trial court litigate both motions fairly, simultaneously, and in

the best interest of the child? Further, can the trial court condition consideration of the relative's

motion for legal custody on the court first overruling the agency's PCC motion?

Appellant did not raise these issues in the trial court. At trial, counsel for Appellant

objected to the trial court's handling of Appellant's motion for legal custody and made a proffer

on the record. Transcript of Proceedings, December 16, 2009 ("T") p. 44. Appellant's counsel,

in her proffer, argued the following: the best evidence rule was violated because the home study

8

document itself was not introduced even though the caseworker testified about it; the caseworker

testified inconsistently about how Appellant lied (face to face to the caseworker versus in writing

on the home study application); whether the agency made a good faith effort to facilitate a

relative placement with Appellant; she should have been allowed to introduce extrinsic evidence

about Appellant's prior involvement with FCCS to show that Appellant cooperated with FCCS;

she should have been allowed to introduce extrinsic evidence about the domestic violence

incident between Appellant and Z.N.'s father to show Appellant was not the aggressor; and she

should have been allowed to introduce extrinsic evidence about Appellant's paramour not having

a criminal record in Franklin County. T p. 44-51. Appellant never argued that her due process

rights were being violated.

Further, Appellant did not raise these issues before the Tenth District Court of Appeals.

Appellant's sole assignment of error before the Court of Appeals was: "THE TRIAL COURT'S

DETERMINATION GRANTING PERMANENT CUSTODY OF THE CHILD TO CHILDREN

SERVICES AND DENYING [APPELLANT'S] MOTION FOR LEGAL CUSTODY WAS

CONTRARY TO LAW, WAS NOT BASED ON CLEAR AND CONVINCING EVIDENCE,

AND WAS NOT IN THE BEST INTEREST OF THE CHILD."

Since these issues were not raised in the lower courts, neither the court of appeals nor the

trial court had an opportunity to address them. The issues were waived and cannot be raised for

the first time in this Court. Since these issues were waived, the appeal should be dismissed.

Additionally, this Court has held that the Ohio Supreme Court will not review a

determination by a court of appeals that a finding was against the manifest weight of the

evidence. R.C. 2503.43 states in a civil case or proceeding, except when its jurisdiction is

original or as provided in R.C. 2309.59, the Supreme Court need not determine the weight of the

9

evidence. Further, this Court has held that since it is not required to weigh the evidence, the

Court will not review a determination that a finding of the court of appeals is against the weight

of the evidence. Brown & Sons v. Honabarger (1960), 171 Ohio St. 247, 168 N.E.2d 880.

Since Appellant is asking the Court to determine whether the evidence at trial supported

the trial court's grant of PCC and denial of Appellant's motion for legal custody, Appellant is

asking this Court to rule on the manifest weight of the evidence. The Court of Appeals already

ruled on the quantity of the evidence and ruled the trial court's determination was supported by

the evidence. This Court should deny jurisdiction because Appellant is asking for a review of

the manifest weight of the evidence.

II. The trial court was not required to consider placement with Appellant prior togranting the agency's motion for permanent custody.

The trial court was not required to consider placement with Appellant prior to granting

the agency's motion for permanent custody. A trial court hearing a motion for permanent

custody is statutorily required to determine what is in the child's best interest and that

requirement "does not include finding, by clear and convincing evidence, no suitable relative is

available for placement." In re Warren, 2007-Ohio-5703, at ¶30, citing In re Schaefer (2006),

111 Ohio St.3d 498, 2006-Ohio-5513. A trial court is not required to consider placement with a

relative prior to granting pennanent custody to a public children services agency. In re D.G.

(2009), 2009 Ohio App. LEXIS 5921, Nos. 08AP-667, 08AP-706, at ¶29, 30 (10`t` Dist. Ct. App.

March 5, 2009); In re Haller, 2009-Ohio-545, at ¶34 (3`d Dist. Ct. App.). A trial court need not

make a fmding that a relative is not a suitable placement option prior to granting a motion for

permanent custody. In re D. G. at ¶29, 30; In re Haller at ¶34.

In deciding whether to grant a non-parent relative's motion for legal custody, the standard

of proof is preponderance of the evidence, not clear and convincing evidence. In re Halstead,

10

2005-Ohio-403, at ¶43 (7`h Dist. Ct. App.). A trial court has the discretion to determine if a child

should be placed with a relative. In re D.G. at ¶34; In re Haller at ¶34. On appeal, a trial court's

determination whether to grant a non-parent relative's motion for legal custody should only be

disturbed if it was an abuse of discretion. In re Haller at ¶38; In re Halstead at ¶43. "Abuse of

discretion connotes more than an error of law or judgment; it implies that the trial court's

decision was unreasonable, arbitrary, or unconscionable." In re Halstead at ¶43.

A relative's willingness to care for a child does not alter the statutory factors to be

considered in ruling on a motion for pennanent custody. In re Schaefer at ¶56; In re A. V_, 2009-

Ohio-886, at ¶17 (0 Dist. Ct. App.). The best interest factors are set forth in R.C.

2151.414(D)(1)(a)-(e). A pending motion for legal custody by a relative in no way changes

those factors or the weight to be given to them. R.C. 2151.414(D)(1)(a) requires the trial court to

consider the child's interaction and interrelationship with relatives and foster parents, but there is

no requirement that this factor be given more weight than any of the other factors simply because

a relative has filed a motion for legal custody. In re Schaefer at ¶56, 63. In In re Schaefer, this

Court reversed the court of appeals and reinstated the judgment of the trial court, which had

granted permanent custody of the child to the agency despite the grandfather's interest in legal

custody, because the trial court had properly considered all the best interest factors and the child

was very bonded with his foster family. Id. at ¶57, 65.

In In re Halstead, the Seventh District Court of Appeals was faced with competing

motions for legal custody - one by a non-parent relative and one by the child's foster parents.

2005-Ohio-403. The relatives (an aunt and uncle) argued that children removed from their

parents should be placed with relatives whenever possible. Id. at ¶31. The relatives relied upon

R.C. 2151.314(B)(2) and R.C. 2151.412(G)(2). Id. The court found R.C. 2151.314(B)(2)

11

inapplicable because it "deals with the initial placement of a child in shelter care or with

relatives" and R.C. 2151.412 not to be controlling because, although it expresses a preference in

favor of placement with a suitable member of the child's extended family, "Ohio's courts have

consistently recognized that the language in R.C. 2151.412(G) is precatory, not mandatory." Id.

at ¶33, 34-39. The Seventh District affirmed the trial court's grant of legal custody to the foster

parents because it was not an abuse of discretion and stated "courts should not casually disregard

the relationship a very young child has established with a foster family in order to give a relative

legal custody." Id. at ¶52.

The trial court had the discretion to determine what placement option was in Z.N.'s best

interest. The child's best interests are served by the child being placed in a permanent situation

that fosters growth, stability, and security. Id., citing In re Adoption ofRidenour (1991), 61 Ohio

St.3d 319, 324. The trial court was not required to favor Appellant merely because she was a

relative if, after considering all the factors, it was in Z.N.'s best interest for the agency to be

granted permanent custody. In re A.V. at ¶17. It was in Z.N.'s best interest for the agency to be

granted permanent custody for numerous reasons: Z.N. was not very bonded with Appellant;

Z.N. was very bonded with Appellees (her foster parents); and Appellant failed to provide

accurate and complete information to the agency on multiple occasions.

III. Appellant was not denied of due process of law.

Appellant's right to due process was not violated by the trial court. The Due Process

Clause of the Fourteenth Amendment protects a parent's firndamental right to make decisions

regarding the care, custody, and control of his or her child. Troxel v. Granville (2000), 530 U.S.

57, 66. In Ohio, non-parent relatives do not have the same presumptive rights as parents. In re

D.G. at ¶36; In re Haller at ¶34. This Court held that grandparents do not have a constitutional

12

right of association with their grandchildren. In re Schmidt (1986), 25 Ohio St.3d 331, 336. The

Third District held similarly in 2009: the law does not provide a great grandparent with inherent

legal rights based simply on a familial relationship. In re Haller, 2009-Ohio-545, ¶34 (3a Dist.

Ct. App.). If grandparents and great grandparents do not have a constitutional right to rear their

grandchildren and great grandchildren, aunts do not have a constitutional right to rear their

nieces and nephews. Therefore, Appellant's assignment of error lacks merit.

Due process also includes the opportunity to be heard in a meaningfixl way. In re Beatry,

2006-Ohio-3698, ¶36 (5th Dist. Ct. App.). "Due process of law implies, in its most

comprehensive sense, the right of the person affected to be heard, by testimony or otherwise, and

to have the right of controverting, by proof, every material fact which bears on the question of

right in the matter involved." Id., quoting Williams v. Dollison (1980), 62 Ohio St.2d 297, 299.

Appellant was heard in a meaningful way: she cross examined all the agency's witnesses; she

called three witnesses on her own behalf, including herself; and she made opening and closing

arguments. Appellant was not denied due process of law.

13

CONCLUSION

For the reasons set forth above, Appellant's Proposition of Law lacks merit. This case

does not involve a question of public or great general interest or a substantial constitutional

question. Therefore, Appellee FCCS urges the Court to deny jurisdiction of this matter.

Respectfully submitted,

ison M. Skinner Peters (0075354)Robert J. McClaren (0046657)1919 Frank RoadColumbus, Ohio 43223(614) 278-5902(614) 278-5896 (facsimile)Attorney for Appellee,Franklin County Children Services

14

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of this Memorandum in Opposition toJurisdiction was sent by ordinary U.S. mail to the following attorneys on this 30th day of August,2010.

Paul Giorgianni (0064806)Giorgianni Law, LLC1538 Arlington Ave.Columbus, OH 43212-2710Attorney for Appellant T.C.

Alita C. Rucker (0079306)CASA of Franklin County373 S. High Street, 15`t` FloorColumbus, Ohio 43215Guardian ad Litem ofZ.N.

Roger Wa.rner(0019941)Roger Warner Co. LPA171 E. Livingston Ave.Columbus, Ohio 43215-5743Attorney for Appellees D.T. and T.T.

Attorney for FCCSson M. Skinner Peters

15