In re A.S.

2025 Ohio 1349

Opinion

[Cite as In re A.S., 2025-Ohio-1349.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: A.S. C.A. No. 31183

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-17-09-000754

DECISION AND JOURNAL ENTRY

Dated: April 16, 2025

CARR, Judge.

{¶1} Appellant, C.S. (“Mother”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that terminated a prior order of legal custody to both parents

and placed her minor child in the legal custody of the child’s paternal grandparents

(“Grandparents”). This Court affirms.

I.

{¶2} Mother is the biological mother of A.S., born December 20, 2012. The child’s

father (“Father”) is now deceased. The trial court proceedings originally involved Mother’s three

other minor children, but they are not parties to this appeal. Summit County Children Services

Board (“CSB”) was also involved in the original dependency case, but did not participate in the

post-judgment proceedings at issue on appeal.

{¶3} CSB filed a complaint to commence this case in September 2017. At that time,

Mother and Father were not living together and Father had a limited role in the life of A.S. The 2

complaint alleged that A.S. was a dependent child because of Mother’s lengthy history of

substance abuse, including while pregnant with a newborn sibling of A.S., and her inability to

provide suitable care for A.S. and her other children. The juvenile court later adjudicated A.S.

dependent, placed her in the temporary custody of Grandparents under an order of protective

supervision by CSB, and adopted the case plan as an order of the court.

{¶4} The case plan goals for Mother focused primarily on her obtaining and maintaining

sobriety. The juvenile court also ordered Mother to complete its Family Reunification through

Recovery Court program (“FRRC”). Mother’s visits with A.S. remained supervised or monitored

while she engaged in substance abuse treatment. Mother actively engaged in the FRRC program

and otherwise complied with the requirements of the case plan.

{¶5} CSB had no concerns about drug use or other instability in Father’s life. Father’s

case plan objectives were to develop a closer relationship with A.S. and engage in counseling and

a parenting education program. Father complied with the case plan and his visits with A.S. were

gradually expanded to unsupervised overnight and weekend visits in his home. Because both

parents made substantial progress on the case plan, the trial court granted CSB’s request for a first

six-month extension of temporary custody to Grandparents.

{¶6} On December 11, 2018, the juvenile court placed A.S. in the temporary custody of

Father under an order of protective supervision by CSB. Shortly afterward, Mother graduated

from the FRRC program. On March 22, 2019, by agreement of the parties, the juvenile court

placed A.S. in the shared legal custody of the parents. The court designated Father as the

residential parent for school purposes, with the child residing with him throughout the week. The

trial court closed the case, subject to its continuing jurisdiction under R.C. 2151.353(F)(1). CSB’s

involvement in this case ended at that time. 3

{¶7} More than two years later, Father filed an emergency motion to modify the 2019

shared parenting plan because he had been diagnosed with “an extremely serious medical condition

and [was] no longer able to care for the minor child[.]” Both parents agreed to a modification of

the 2019 order. On August 19, 2021, the trial court continued A.S. in the legal custody of both

parents, but named Mother as the residential parent for school purposes and granted Father

parenting time “as can be agreed and arranged with Mother.”

{¶8} Less than three weeks later, Grandmother filed a motion for modification of legal

custody under R.C. 2151.42. The motion was originally filed by Grandmother only, although she

was married to and living with Grandfather. The trial court later permitted both Grandmother and

Grandfather to intervene in this case and join in the motion; and the trial court ultimately placed

A.S. in the legal custody of Grandparents. Consequently, this Court will refer to the motion

throughout as Grandparents’ legal custody motion.

{¶9} Grandparents’ motion alleged that Father was terminally ill, that Mother was again

using drugs and was residing with a convicted sex offender, and that Grandparents were prepared

to provide A.S. with a stable, permanent home. While a hearing on the motion to modify legal

custody was pending, Grandmother (prior to Grandfather’s involvement on the record) requested

temporary custody of A.S. because, although Mother was supposed to be the child’s residential

parent for school purposes because of Father’s declining health, A.S. was again living with Father

and he was too sick to care for the child daily. The motion further alleged that Mother was living

with a convicted sex offender, who posed an immediate threat to the safety of young A.S. The

trial court set the motion for temporary custody for a hearing before a magistrate.

{¶10} Prior to the temporary custody hearing, Mother informed the court that she would

not appear for the hearing; and she did not attend in person, remotely, or through counsel. At the 4

hearing, Grandmother presented evidence that Father was caring for A.S. and driving her to school

every day but was too ill to continue doing so. She also presented evidence that Mother had

recently married a convicted sex offender, who was living in Mother’s public housing apartment

in violation of the terms of her lease. Father and the guardian ad litem expressed their agreement

that A.S. be placed in the temporary custody of Grandmother. Pursuant to a magistrate’s order,

the trial court placed A.S. in the temporary custody of Grandmother on November 9, 2023. Mother

did not file a motion to set aside that order and does not challenge that order on appeal.

{¶11} A hearing on Grandparents’ motion for legal custody of A.S. commenced on

December 18, 2023, and concluded on March 22, 2024. Father testified on the first day of the

hearing. He explained that he had been the primary caregiver for A.S. for the past few years but

that, due to his terminal cancer and declining health, he was no longer able to care for her on a

day-to-day basis. He fully supported Grandparents receiving legal custody of his child.

Unfortunately, Father passed away the following month.

{¶12} Following the hearing, the magistrate decided that Grandparents should be awarded

legal custody because, under R.C. 2151.42(B), there had been a requisite change in the

circumstances of the parents and A.S. and legal custody to Grandparents was in the best interest

of A.S. Although the magistrate found that Grandparents had failed to prove that Mother was

again abusing drugs, he found the requisite change in circumstances based on the recent death of

Father and the specific circumstances involving Mother’s marriage to a man with an extensive

criminal history.

{¶13} Mother filed objections to the magistrate’s decision, which were overruled by the

trial court. The trial court terminated the 2021 order of shared legal custody to Mother and Father 5

and placed A.S. in the legal custody of Grandparents. Mother appeals and raises two assignments

of error, which will be addressed together to facilitate discussion.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN MODIFYING [MOTHER’S] LEGAL CUSTODY WITHOUT FIRST FINDING THAT [MOTHER] WAS UNSUITABLE.

ASSIGNMENT OF ERROR II

IN THE ALTERNATIVE, THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT’S CHANGE-OF-CIRCUMSTANCES FINDING.

{¶14} Mother’s first assignment of error is that the trial court erred in applying the legal

standard set forth in R.C. 2151.42(B) to Grandparents’ motion. She asserts that, before addressing

the best interest of the child, rather than requiring Grandparents to prove a change in circumstances

under the statute, the trial court instead should have required them to prove Mother’s

“unsuitability” under the common law standard set forth in In re Hockstok, 2002-Ohio-7208,

syllabus. In her second assignment of error, Mother argues that, even if the court applied the

correct legal standard, Grandparents failed to demonstrate the requisite change in circumstances.

{¶15} We begin by quoting the legal standard applied by the trial court. As requested in

Grandparents’ motion, the trial court applied the legal standard set forth in R.C. 2151.42(B), which

provides, in relevant part:

A court shall not modify or terminate an order granting legal custody of a child unless it finds, based on facts that have arisen since the order was issued or that were unknown to the court at that time, that a change has occurred in the circumstances of the child or the person who was granted legal custody, and that modification or termination of the order is necessary to serve the best interest of the child. 6

{¶16} Mother asserts that, because the juvenile court returned A.S. to the custody of her

parents at the end of the prior dependency case, the court implicitly found them to be fit parents,

despite the prior adjudication of her child. Therefore, she argues that Grandparents should have

been required to prove that Mother was an unsuitable parent before the trial court had authority to

place A.S. in the legal custody of a non-parent. See Hockstock, at syllabus. Although Mother’s

argument makes sense on its face, it is not supported by Ohio law. See In re I.S., 2009-Ohio-6432,

¶ 20 (9th Dist.) (Carr, J., concurring).

{¶17} In In re I.S., this Court addressed a similar situation in which the juvenile court had

previously adjudicated the mother’s children abused, neglected, and/or dependent; Mother

complied with the requirements of the case plan; and the juvenile court ultimately returned the

children to her custody and closed the case. 2009-Ohio-6432, at ¶ 3-5. Two years later, in the

same juvenile court case, the non-parents who had previously been temporary caregivers for the

children and were again concerned about the children’s well-being, filed motions for a change of

legal custody. Id. at ¶ 4. In ruling on the non-parents’ motion, the trial court applied the parental

“unsuitability” and best interest test, as explained above from Hockstock and more clearly set forth

in In re Perales, 52 Ohio St.2d 89 (1977). Id. at ¶ 9.

{¶18} On appeal, this Court concluded that the trial court had applied the wrong legal

standard to the motion for change of legal custody. Id. at ¶ 8. This Court emphasized that the

juvenile court’s authority in dependency, neglect, and abuse cases is governed by a “fairly

comprehensive statutory scheme[,]” and that, under former R.C. 2151.353(E)(1) [current R.C.

2151.353(F)(1)], the court retains continuing jurisdiction over adjudicated children. Id. at ¶ 10, ¶

14. This Court concluded that the juvenile court’s authority to modify a prior order of legal custody

is also delineated by statute, in R.C. 2151.42(B). Id. at ¶ 16. 7

{¶19} Moreover, although not emphasized in In re I.S., the language of R.C. 2151.42(B)

explicitly refers to an order that granted legal custody and whether there has been a change in

circumstances of the child or “person” who was granted legal custody. The Ohio General

Assembly could have, but did not, include language in the statute to distinguish between legal

custody orders that return a child to the legal custody of her parents from ones that place the child

in the legal custody of non-parents.

{¶20} Mother does not attempt to distinguish the facts of this case from those of In re I.S.,

as they are not legally distinguishable. Consequently, the trial court was required to comply with

the requirements of R.C. 2151.42(B). Mother’s first assignment of error is overruled.

{¶21} Mother’s second assignment of error is that, under the standard set forth in R.C.

2151.42(B), the trial court erred in finding that there had been a requisite change in circumstances

to authorize the court to modify the prior order of joint legal custody to the parents. She does not

challenge the trial court’s best interest determination, so this Court will focus its review on whether

the trial court properly found that there had been a change in circumstances of A.S. or the parents

(the persons granted shared legal custody) as required by R.C. 2151.42(B).

{¶22} In a case such as this, in which the facts pertaining to the trial court’s finding of a

change in circumstances are primarily undisputed, this Court reviews the trial court’s finding of a

requisite change for an abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415 (1997),

paragraph one of the syllabus. Although Davis involved a change in circumstances under R.C.

3109.04(E), rather than R.C. 2151.42(B), the Ohio Supreme Court has emphasized that “the

[change in circumstances] analysis under either statute would be similar.” In re Brayden James,

2007-Ohio-2335, ¶ 26. 8

{¶23} As quoted above, R.C. 2151.42(B) required evidence that there had been change in

circumstances of A.S. or the parents “based on facts that have arisen since the order was issued or

that were unknown to the court at that time[.]” The modification of legal custody at issue in this

appeal involved Grandparents’ motion to the juvenile court to designate them as the legal

custodians of A.S. rather than both parents, as most recently set forth in the order filed August 19,

2021. In that order, by agreement of the parties, the juvenile court continued A.S. in the shared

legal custody of both parents, but designated Mother as the residential parent because Father was

undergoing cancer treatment, his health was declining, and he was having difficulty meeting the

child’s daily needs.

{¶24} In addressing Grandparents’ motion to modify the parents’ shared legal custody of

A.S., the trial court found the requisite change in circumstances under R.C. 2151.42(B) based on

two changes regarding the parents and A.S. since the child was most recently placed in the shared

legal custody of her parents in August 2021: Father had died, and Mother had married a man who

potentially posed a threat to the safety and well-being of A.S. As will be explained below, the trial

court did not abuse its discretion by concluding that these two changes, particularly when

considered together, constituted the requisite changes in circumstances.

{¶25} The January 2024 death of Father was a significant change for both the parents and

A.S. Mother’s only argument about why Father’s death did not constitute a sufficient change in

circumstances is that the parties knew at the time of the 2021 order that Father was terminally ill,

so his death was anticipated at that time. In other words, Mother asserts, without any legal

authority and in contravention of the plain language of the statute, that the requisite change in

circumstances must involve circumstances that arose after the prior order and were not known or

anticipated at the time of the prior order. In fact, the plain language of R.C. 2151.42(B) requires 9

that the change in circumstances involve circumstances that were either unknown at the time of

the prior order or arose after the prior order, but not both. See Kenney v. Carroll, 2017-Ohio-354,

¶ 11 (9th Dist.). Although the parties knew at the time of the 2021 legal custody order that Father

was terminally ill, Father had not yet died.

{¶26} The facts are not disputed that Father, one of the joint legal custodians of A.S., had

died since the 2021 order most recently placed A.S. in the shared legal custody of both parents.

The record further reveals that Father had been primarily responsible for the daily care of A.S. for

nearly five years when the legal custody hearing was held. By court order, Father had been named

the child’s primary caretaker from December 11, 2018, when she was placed in his temporary

custody, until August 19, 2021, after he sought an emergency change because of his declining

health.

{¶27} Even after the trial court designated Mother as the child’s residential parent for

school purposes in August 2021, A.S. lived with Mother for approximately two months. While

A.S. lived with Mother, she often missed school or would fall asleep in class, her grades were

poor, and she was facing truancy proceedings. After A.S. returned to live with Father, Father

ensured that the child attended school and was proactive in obtaining a diagnosis and treating the

child’s attention deficit hyperactivity disorder.

{¶28} Although Mother disputed the reason that A.S. returned to live with Father, she did

not dispute the fact that the child had, in fact, returned to live with Father shortly after Mother was

designated as the child’s residential parent. Father further testified that, while A.S. lived with him,

Mother did not have regular contact with the child or provide much assistance in raising her.

Mother did not dispute any of Father’s testimony. Given that Father had been the primary

caregiver of A.S. for the vast majority of the time that the parents had shared legal custody, his 10

death was clearly a significant change in the circumstances of A.S. and her legal custodians (Father

and Mother).

{¶29} The facts are also not disputed that, since the 2021 order, Mother married a man

named Mr. D. Mother asserts that her marriage to another man, in and of itself, does not constitute

a change in circumstances, citing Wyss v. Wyss, 3 Ohio App.3d 412, 416 (10th Dist. 1982). In this

case, however, Mother’s marriage to Mr. D. involved circumstances that posed a threat to the

safety and well-being of A.S. Unlike in Wyss, there was evidence before the trial court to

demonstrate that Mr. D.’s presence in Mother’s home involved “changed conditions” that were

“substantiated, continuing, and [would] have a materially adverse effect upon the child.” Id.

{¶30} Mr. D. has a lengthy history of criminal convictions including a conviction of gross

sexual imposition against a female victim under the age of 13, several drug convictions, and

convictions for domestic violence, assault, and theft offenses. At the time of the hearing, Mr. D.

was out on bond while facing another, unspecified criminal charge.

{¶31} Regarding the sex offense conviction, A.S., a female, was then about the same age

as Mr. D.’s victim. A.S. had informed her former counselor and the guardian ad litem that she did

not feel safe around Mr. D. Nevertheless, Mother testified that she was not concerned about Mr.

D. being around A.S. without supervision because the conviction was many years ago and Mr. D.

did not look or act like a sex offender.

{¶32} In her brief on appeal, Mother suggests that CSB investigated whether Mr. D. posed

a threat to A.S. in Mother’s home and concluded that he did not, but that assertion is not supported

by the record. Mother presented the testimony of a CSB intake caseworker who had investigated

a referral in October 2023, about Mr. D. living in her home. At that time, A.S. was not living in

Mother’s home, so the agency’s investigation did not involve A.S., but only Mother’s other 11

children. The caseworker briefly testified that, after her investigation, she did not believe that Mr.

D. posed an imminent risk to the safety of Mother’s three sons, so CSB did not open a case. The

caseworker’s investigation and testimony had no bearing on whether Mr. D. living in a home with

A.S., a female child close to the age of his prior victim, would pose a risk to the child.

{¶33} Moreover, because Mr. D. was a convicted sex offender, he was not permitted to

live in Mother’s public housing apartment, under the explicit terms of her lease. The property

manager from the apartment complex testified that she repeatedly warned Mother that Mr. D. could

not be on the premises, but he continued living there. Consequently, she notified Mother that she

would be evicted from the apartment. Shortly before the hearing, Mother relocated to another

home before the eviction proceedings began. A.S. had never been to that home and no evidence

was presented about its suitability, except Mother’s testimony that it had three bedrooms.

{¶34} In addition to Mr. D.’s prior conviction of a sex offense against a young female

victim, he had numerous other criminal convictions including felony domestic violence, assault,

and drug offenses, all of which potentially posed further threats to the well-being of A.S. There

was no evidence about current violent acts by Mr. D., but there was evidence about recent drug

use. Mr. D. was facing more recent criminal charges for an unspecified offense. Mother testified

that Mr. D. was on pretrial release and was required to submit to drug testing. She admitted that

he had recently tested positive for cocaine, which did not seem to concern her. Mother testified

that she had not used drugs for several years, but she had worked for nearly two years to obtain

and maintain sobriety in the dependency case involving A.S. The trial court reasonably noted its

concern about Mr. D.’s recent drug use, as his drug use not only posed a threat to A.S. but also

threatened Mother’s ongoing sobriety. 12

{¶35} The undisputed evidence before the trial court demonstrated that A.S. had suffered

the loss of Father, who had been her primary caretaker for several years; Mother had not taken an

active role in caring for A.S. to demonstrate that she could provide appropriate care for the child

without Father’s help; and Mother had recently married a man who posed a threat to the safety and

well-being of A.S. for several reasons. Consequently, the trial court did not abuse its discretion

by finding that there had been a sufficient change in circumstances of the parents and A.S. under

R.C. 2151.42(B). Mother’s second assignment of error is overruled.

III.

{¶36} Mother’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30. 13

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

FLAGG LANZINGER, P. J. STEVENSON, J. CONCUR.

APPEARANCES:

JOSEPH SHELL, Attorney at Law, for Appellant.

RONALD T. GATTS, Attorney at Law, for Appellees.