In re A.B.

2021 Ohio 4613

Opinion

[Cite as In re A.B., 2021-Ohio-4613.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE A.B., ET AL. : : No. 110145 Minor Children : : [Appeal by S.B., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 30, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19901829, AD-19901830, and AD-19901831

Appearances:

Rachel A. Kopec, for appellant.

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

EMANUELLA D. GROVES, J.:

Appellant-mother (“Mother”), S.B., appeals from the judgment of the

Cuyahoga County Court of Common Pleas, Juvenile Division (“juvenile court”), that

granted legal custody of her children A.B. (d.o.b. 1/31/2012), X.B. (d.o.b.

2/3/2015), and P.B. (d.o.b. 7/17/2016) to appellee-father (“Father”), L.A. For the

reasons set forth below, we affirm the award of legal custody to Father. Procedural History

On February 1, 2019, city of Cleveland firefighters responded to

Mother’s address on a report of a fire. On arrival, firefighters found Mother; another

adult; Mother’s three youngest children, A.B., X.B., and P.B.; and Mother’s two

oldest children, I.B. (d.o.b. 3/20/2008) and K.B. (d.o.b. 8/20/2009).1

Mother admitted that she left her five children in the care of a 12-year-

old family friend. Investigators learned that one of the younger children was playing

with a lighter and accidently set fire to a pile of clothes. None of the children were

injured during the fire.

Mother had previously been involved with the Cuyahoga County

Division of Children and Family Services (the “agency” or “CCDCFS”) and had an

open case when the fire occurred. The children had previously been removed from

Mother’s custody in 2015 but had been returned to her in 2018 with protective

supervision. Protective supervision was terminated in August 2018; however, the

case remained open to ensure family stability. While typically agency involvement

ceases after 90 days, the agency remained involved with the family due to the

children’s’ multiple absences from school. I.M. had missed 23 days, K.B. had missed

27 days, and A.B. had missed 69 days.

On February 5, 2019, the agency held a “staffing.” As a result, a safety

plan was developed where Mother’s sister, S.F., would spend time in the home to

1 Father is the father of A.B., X.B., and P.B. Siblings I.B. and K.B. are not the subject of this appeal, and their status will only be referenced as needed. support Mother. On February 13, 2019, the agency learned that S.F. was not

providing the support as anticipated. On February 14, 2019, the agency filed a

complaint alleging neglect, dependency, and abuse and a motion requesting

predispositional temporary custody of Mother’s five children.

On February 14, 2019, the juvenile court held a hearing on the agency’s

motion for predispositional temporary custody. The juvenile court granted the

motion. A.B., X.B., and P.B. were placed in a certified approved relative placement

with Father’s mother, the children’s paternal grandmother, A.A.2 On March 4, 2019,

the agency amended its complaint from a request for temporary custody to a request

for permanent custody of the children.

On July 3, 2019, Father filed a motion for legal custody of A.B., X.B.,

and P.B. He argued that he had stable housing and was in a position to take legal

custody.

On July 16, 2019, CCDCFS removed A.B. from paternal grandmother’s

home due to severe behaviors. A.B. was assaultive towards his siblings and agency

staff during visits. He was placed in a residential facility deemed more capable of

dealing with his issues.

On July 25, 2019, Father filed a motion for predispositional temporary

custody of A.B., arguing that the restrictions placed on A.B. in the residential facility

were causing A.B. immediate psychological harm.

2 I.B. and K.B. were placed in foster care. On August 6, 2019, Mother filed a motion for termination of

temporary custody and placement of the children with her.

On September 6, 2019, the juvenile court held an adjudicatory

hearing. The parties agreed to an amended complaint and to a finding that the

children were neglected. A.B., X.B., and P.B. were removed from paternal

grandmother’s custody and placed in the predispositional temporary custody of

Father. At that time, Father was residing in a six-bedroom home with the children’s

paternal great-grandmother and paternal great-uncle.

On November 1, 2019, the agency filed a motion to amend its

dispositional prayer from permanent custody to the agency to temporary custody to

the agency. The agency acknowledged that Father had temporary custody but noted

that he had recently been charged with a drug offense. The agency asked for

temporary custody to allow Father to deal with his ongoing criminal issues. On

November 8, 2019, the juvenile court held a hearing and determined that

predispositional temporary custody would remain with Father for the time being.

On January 9, 2020, Mother filed a motion for legal custody of the

children. On March 4, 2020, the agency filed to amend its dispositional request

from temporary custody to the agency, to temporary custody to Father for A.B., X.B.,

and P.B. On March 15, 2020, the agency filed for first extension of temporary

custody of the children to Father.

On March 17, 2020, the juvenile court held a dispositional hearing.

The juvenile court granted the agency’s motion giving temporary custody of A.B., X.B., and P.B. to Father. Furthermore, the juvenile court granted the agency’s

motion for first extension of temporary custody to Father until August 14, 2020. The

juvenile court indicated it would review the parties’ respective motions for custody

in six months.

Mother’s case plan called for her to 1) obtain a drug and alcohol

assessment and follow any recommendations; 2) complete a psychological

evaluation and follow any treatment recommendations; 3) complete recommended

parenting education; 4) provide a stable, safe, structured home for the children; 5)

engage in family preservation services; and 6) complete a domestic violence

assessment and follow any recommendations.

Father’s case plan called for him to 1) obtain a drug and alcohol

assessment and follow any recommendations; and 2) provide a stable, safe,

structured home for the children.

On July 21, 2020, the agency filed a motion to modify temporary

custody of A.B., X.B., and P.B. to legal custody to Father. On July 22, 2020, the

juvenile court held a telephone conference to review the parents’ progress. At that

time, Nakia Burks-Cothran (“Burks-Cothran”), the social worker assigned to the

case, testified. Father was not present for the call, but Burks-Cothran spoke to him

prior to the hearing. Burks-Cothran reported that A.B., X.B., and P.B. were doing

well in Father’s home.

Burks-Cothran further reported that Mother was progressing on her

case plan. Mother had been terminated from parenting education due to issues with her phone and inconsistent attendance. The agency addressed the issue by referring

her to parenting education a second time. Mother completed the alcohol and drug

assessment that had no further recommendations. Mother also completed the

psychological evaluation that recommended medication and counseling. Mother

had a two-bedroom apartment but indicated she was eligible for a larger space

should she regain custody of the children.

Mother disagreed with the agency’s request for legal custody to Father

for A.B., X.B., and P.B., stating he was a hard man to deal with. She described him

as aggressive. Mother further noted that he sold drugs and never worked and that

she did not want her children in that environment. She also alleged that Father

frequently left the children in the care of their 97-year-old great grandmother.

Mother believed she was a more stable placement. The juvenile court continued the

case for further review.

On October 22, 2020, the juvenile court held a dispositional hearing

on the motions for legal custody of the children. Burks-Cothran testified that Father

had custody of A.B., X.B., and P.B. since September 2019 and they were doing well

in his care. Father had completed his case plan objectives by completing an alcohol

and drug assessment. He had completed recommended out-patient treatment as

well. The agency did not have concerns about substance abuse. Father also

maintained stable housing.

Burks-Cothran testified that Mother had completed the alcohol and

drug portion of her case plan. Burks-Cothran testified that Mother reported she was doing ongoing work with her mental health by engaging in medication management

and doing individual counseling. However, Burks-Cothran was unable to verify

Mother’s progress because Mother refused to sign a release of information.

Burks-Cothran testified that Mother was participating in parent

education with an anticipated completion date of December 2020. Mother had not

completed the family counseling aspect of the case plan, but that condition was

dependent on Mother regaining custody. Mother reported in July that she had new

housing; however, Mother refused to allow a home visit when Burks-Cothran

requested one. Burks-Cothran testified that Mother indicated she completed the

domestic violence assessment and recommendations; however, Mother did not

provide documentation to support that contention. Further, Mother had open visits

with the children and could see them whenever she wished.

Burks-Cothran recommended that custody remain with Father as the

children had been with him over a year with no issues. She noted that Father had

completed his case plan objectives and that the children were well bonded with him.

Burks-Cothran also spoke to A.B. and X.B. about their preferences. A.B. was

adamant about staying with Father and did not wish to return to Mother’s care. X.B.

also wished to remain with Father.

Pamela Hawkins, the guardian ad litem for the children (“Hawkins”

or “GAL”), gave an oral report. She supported legal custody to Father. Hawkins

spoke to the children, and they all wished to remain with Father. The juvenile court granted the agency’s motion and gave legal custody

of A.B., X.B., and P.B. to Father.

Mother appeals and assigns the following error for our review:

Assignment of Error The trial court abused its discretion when committing the minor children to the legal custody of Father when it was in their best interest to be reunified with their Mother.

In her sole assignment of error, Mother argues that the juvenile court

abused its discretion in finding that custody to Father was in the children’s best

interest.

Because “‘custody issues are some of the most difficult and agonizing

decisions a trial judge must make,’” a juvenile court is entitled to broad discretion in

custody proceedings. In re E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193,

¶ 10, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

Therefore, when reviewing a juvenile court’s grant of legal custody, we will not

disturb that decision unless we find an abuse of discretion. Id., citing Miller v.

Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). “An abuse of discretion

connotes a decision that is unreasonable, arbitrary, or unconscionable.” Cleveland

v. Cornely, 8th Dist. Cuyahoga No. 109556, 2021-Ohio-689, ¶ 17, citing State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

“Parents have a constitutionally protected interest in raising their

children.” In re N.N., 8th Dist. Cuyahoga No. 110443, 2021-Ohio-3931, ¶ 16, citing

In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15. However, this “interest * * * is ‘“always subject to the ultimate welfare of the child.”’” Id., quoting

In re M.J.M., quoting In re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-Ohio-

1151, ¶ 7. As in permanent custody cases, the most important consideration is what

is in the best interest of the child when determining custody. Id. at ¶ 17 , citing In re

M.J.M. at ¶ 14.

Legal custody is different from the termination of parental rights

because “despite losing legal custody of a child, the parent of the child retains

residual parental rights, privileges and responsibilities.” In re N.N. at ¶ 19, citing In

re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14. A parent also retains

the right to regain custody of their children. Id. at ¶ 19, citing In re M.J.M. at ¶ 12.

Consequently, when determining whether to grant legal custody, the juvenile court

makes its decision based on the preponderance of the evidence standard. Id., at

¶ 19, citing In re M.J.M. at ¶ 9. “‘“Preponderance of the evidence’” means “‘evidence

that’s more probable, more persuasive, or of greater probative value.”’” In re C.V.M.,

8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7, quoting In re D.P., 10th Dist.

Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52, quoting State v. Finkes, 10th Dist.

Franklin No. 01AP-310, 2002-Ohio-1439.

However, unlike when the agency seeks permanent custody, the legal

custody statute “R.C. 2151.353 (A)(3) does not provide factors the court should

consider in determining the child’s best interest.” In re N.N. at ¶ 20, citing In re

G.M. at ¶ 15. This court has previously found that “in the absence of best interest

factors in a legal custody case, ‘the legislature did not intend to require the consideration of certain factors as a predicate for granting legal custody.’” Id.,

quoting In re G.M. at ¶ 16.3 However, the best interest factors under R.C.

2151.414(D) are instructive in determining what is in the best interest of the child.

Id., citing In re E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, at ¶ 13.

R.C. 2151.414(D) includes, but is not limited to, the following factors

in determining the best interest of the child: 1) the interaction and interrelationship

of the child with the child's parents, siblings, relatives, and other people who may

significantly affect the child; 2) the child’s wishes for placement; 3) the child’s

custodial history; and 4) the child’s need for a legally secure permanent placement.

In the case at hand, Mother argues that the trial court erred in

awarding legal custody to Father due to her history of being the primary caregiver

for the children, her substantial completion of case plan objectives, and because

Father is not supportive of Mother’s involvement with the children.

While Mother had made significant progress on her case plan, as of

the dispositional hearing over a year after Father took custody, Mother had not

completed case plan objectives. Additionally, Mother actively blocked the social

worker’s attempts to ascertain her completion of goals. Furthermore, Hawkins, the

GAL, was in favor of the three youngest children remaining with Father. Moreover,

the children expressed a desire to remain with Father.

3See also R.C. 4151.42(A): “At any hearing in which a court is asked to modify or terminate an order of disposition issued under section 2151.353, 2151.415, or 2151.417 of the Revised Code, the court, in determining whether to return the child to the child’s parents, shall consider whether it is in the best interest of the child.” With regard to Mother’s argument that Father was not supportive of

Mother’s involvement, conflicting testimony was presented on that issue. On the

one hand, Mother argued that Father did not allow her to visit the children; on the

other hand, she argued that Father allowed her to have the children for a couple of

weeks at a time. Furthermore, there was an alleged outburst outside of the

courtroom between Mother and Father, in which Mother’s lawyer claimed that

Father said he would not allow her to see the children ever. However, no testimony

was taken regarding this incident. A review of the record fails to support Mother’s

argument that Father did not support her involvement with the children. Mother

has not presented any evidence that placement with Father was detrimental to the

children or against their best interest.

The trial court’s decision was supported by a preponderance of the

evidence and was not against the manifest weight of the evidence. Therefore, we

find that the trial court’s award of legal custody to Father was in the best interest of

the children and was not an abuse of discretion.

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.

EMANUELLA D. GROVES, JUDGE

MARY J. BOYLE, A.J., and SEAN C. GALLAGHER, J., CONCUR