[Cite as In re C.C., 2011-Ohio-1624.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: : : Hon. William B. Hoffman, P.J. IN RE C.C. & N.C. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 2010 CA 0088 : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case Nos. C 2008-0937, C 2008-0938
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 31, 2011
APPEARANCES:
For Mother-Appellant: For LCDJFS-Appellee:
ERIC J. MCENANEY KENNETH W. OSWALT 21 W. Church St., Suite 201 LICKING COUNTY PROSECUTOR Newark, OH 43055 ALICE L. BOND Assistant Prosecuting Attorney 20 S. Second St., 4th Floor Newark, OH 43055 [Cite as In re C.C., 2011-Ohio-1624.]
Delaney, J.
{¶1} Mother-Appellant Susan Clouse appeals the July 9, 2010 judgment entry
of the Licking County Court of Common Pleas, Juvenile Division, granting legal custody
of C.C. and N.C. to Appellant’s sister, Lorie Massie.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the mother of C.C., born September 10, 2002, and N.C., born
September 8, 2004. Father of the children is Michael Clouse. He is currently
incarcerated for his conviction on two counts of Gross Sexual Imposition involving
Appellant’s older daughter.
{¶3} On October 9, 2008, a social worker and Appellant’s probation officer
discovered Appellant intoxicated in her home with N.C. in her care. Marijuana and pills
were found in the home. The children were temporarily placed with their grandparents.
{¶4} On December 4, 2008, the Licking County Department of Job and Family
Services (“LCDJFS”) filed a complaint with the Licking County Court of Common Pleas,
Juvenile Division, alleging that C.C. and N.C. were dependent children and asked for
temporary custody of the children. At the shelter care hearing, the trial court granted
Lorie Massie, Appellant’s sister, temporary custody of C.C. and N.C. Massie also had
custody of Appellant’s older daughter after Appellant’s husband was convicted of Gross
Sexual Imposition. It was alleged that Appellant did not believe her daughter’s
allegations and could not protect her from her husband. The trial court ordered
Appellant to complete a psychological evaluation, to attend a drug and alcohol
evaluation and counseling, and to submit to random drug and alcohol screening. Licking County, Case No. 2010 CA 0088 3
{¶5} An adjudicatory hearing was held on February 17, 2009. At that hearing,
C.C. and N.C. were found to be dependent children. The dispositional orders continued
temporary custody with Massie. A case plan submitted by LCDJFS was approved by
the trial court.
{¶6} During this time, Appellant was granted unsupervised visitation with the
children. Appellant and Massie resided in the same apartment complex. Massie
permitted the children to be with Appellant a majority of the time. Appellant’s social
worker, Angel Pound, was aware of this arrangement.
{¶7} On October 9, 2009, LCDJFS filed a motion to modify disposition to return
legal custody to Appellant. LCDJFS cited Appellant’s significant progress on her case
plan and that she was attending drug and alcohol counseling. However, on October 29,
2009, LCDJFS withdrew their motion to modify based on a domestic violence incident
involving Appellant on October 23, 2009. Appellant was charged with Domestic
Violence regarding an incident where Massie was the alleged victim. It was alleged that
the incident involved alcohol. LCDJFS also requested that Appellant’s visitation with the
children be supervised by the agency.
{¶8} After the domestic violence charge in October 2009, Appellant made no
further progress with her case plan. She moved from the area and resided with another
family in McConnelsville, Morgan County, Ohio.
{¶9} On January 13, 2010, LCDJFS filed a Motion to Modify Disposition to
grant legal custody of the children to Massie. The Guardian ad Litem recommended
that Massie be granted legal custody of the children. A hearing was held before the
Magistrate on March 19, 2010. Licking County, Case No. 2010 CA 0088 4
{¶10} At the hearing, Appellant, Pound, and Massie testified. Pound
recommended that legal custody be awarded to Massie. Massie testified that she was
bonded with the children. Her husband was employed at Wal-Mart and Massie worked
in the home. The children had their own bedroom. The children were doing well at
school while in Massie’s care. Massie testified that she had prior criminal convictions
for theft in 1988 and passing bad checks in 2004.
{¶11} The Magistrate’s Decision was filed on April 3, 2010 granting legal custody
of C.C. and N.C. to Massie. Appellant filed objections to the Magistrate’s Decision.
{¶12} On July 9, 2010, the trial court overruled Appellant’s objections and
adopted the Magistrate’s Decision granting legal custody of the children to Massie.
{¶13} It is from this decision Appellant now appeals.
ASSIGNMENT OF ERROR
{¶14} Appellant raises one Assignment of Error:
{¶15} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
DETERMINING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE PLACED
INTO THE LEGAL CUSTODY OF THE FOSTER PARENTS, AS SUCH A
DETERMINATION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶16} Appellant argues in her sole Assignment of Error that it was not in the
children’s best interests to be placed in the legal custody of Massie. We disagree.
{¶17} We first note this was a grant of legal custody, not permanent custody.
Legal custody does not divest parents of residual parental rights, privileges, and
responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, at Licking County, Case No. 2010 CA 0088 5
paragraph 17. This means Appellant may petition the court for a modification of custody
in the future. Id.
{¶18} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an
abused, neglected, or dependent child, the court may make any of the following orders
of disposition:
{¶19} “ * * *
{¶20} “(3) Award legal custody of the child to either parent or to any other person
who, prior to the dispositional hearing, files a motion requesting 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. * * *.”
{¶21} Despite the differences between a disposition of permanent custody and a
disposition of legal custody, some Ohio courts have recognized that “the statutory best
interest test designed for the permanent custody situation may provide some ‘guidance’
for trial courts making legal custody decisions.” In re A.F., Summit App. No. 24317,
2009-Ohio-333, ¶ 7, citing In re T.A., Summit App. No. 22954, 2006-Ohio-4468, ¶ 17.
{¶22} Furthermore, because custody issues are some of the most difficult and
agonizing decisions a trial judge must make, he or she must have wide latitude in
considering all the evidence and such a decision must not be reversed absent an abuse
of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159,
citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme
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[Cite as In re C.C., 2011-Ohio-1624.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: : : Hon. William B. Hoffman, P.J. IN RE C.C. & N.C. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 2010 CA 0088 : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case Nos. C 2008-0937, C 2008-0938
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 31, 2011
APPEARANCES:
For Mother-Appellant: For LCDJFS-Appellee:
ERIC J. MCENANEY KENNETH W. OSWALT 21 W. Church St., Suite 201 LICKING COUNTY PROSECUTOR Newark, OH 43055 ALICE L. BOND Assistant Prosecuting Attorney 20 S. Second St., 4th Floor Newark, OH 43055 [Cite as In re C.C., 2011-Ohio-1624.]
Delaney, J.
{¶1} Mother-Appellant Susan Clouse appeals the July 9, 2010 judgment entry
of the Licking County Court of Common Pleas, Juvenile Division, granting legal custody
of C.C. and N.C. to Appellant’s sister, Lorie Massie.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the mother of C.C., born September 10, 2002, and N.C., born
September 8, 2004. Father of the children is Michael Clouse. He is currently
incarcerated for his conviction on two counts of Gross Sexual Imposition involving
Appellant’s older daughter.
{¶3} On October 9, 2008, a social worker and Appellant’s probation officer
discovered Appellant intoxicated in her home with N.C. in her care. Marijuana and pills
were found in the home. The children were temporarily placed with their grandparents.
{¶4} On December 4, 2008, the Licking County Department of Job and Family
Services (“LCDJFS”) filed a complaint with the Licking County Court of Common Pleas,
Juvenile Division, alleging that C.C. and N.C. were dependent children and asked for
temporary custody of the children. At the shelter care hearing, the trial court granted
Lorie Massie, Appellant’s sister, temporary custody of C.C. and N.C. Massie also had
custody of Appellant’s older daughter after Appellant’s husband was convicted of Gross
Sexual Imposition. It was alleged that Appellant did not believe her daughter’s
allegations and could not protect her from her husband. The trial court ordered
Appellant to complete a psychological evaluation, to attend a drug and alcohol
evaluation and counseling, and to submit to random drug and alcohol screening. Licking County, Case No. 2010 CA 0088 3
{¶5} An adjudicatory hearing was held on February 17, 2009. At that hearing,
C.C. and N.C. were found to be dependent children. The dispositional orders continued
temporary custody with Massie. A case plan submitted by LCDJFS was approved by
the trial court.
{¶6} During this time, Appellant was granted unsupervised visitation with the
children. Appellant and Massie resided in the same apartment complex. Massie
permitted the children to be with Appellant a majority of the time. Appellant’s social
worker, Angel Pound, was aware of this arrangement.
{¶7} On October 9, 2009, LCDJFS filed a motion to modify disposition to return
legal custody to Appellant. LCDJFS cited Appellant’s significant progress on her case
plan and that she was attending drug and alcohol counseling. However, on October 29,
2009, LCDJFS withdrew their motion to modify based on a domestic violence incident
involving Appellant on October 23, 2009. Appellant was charged with Domestic
Violence regarding an incident where Massie was the alleged victim. It was alleged that
the incident involved alcohol. LCDJFS also requested that Appellant’s visitation with the
children be supervised by the agency.
{¶8} After the domestic violence charge in October 2009, Appellant made no
further progress with her case plan. She moved from the area and resided with another
family in McConnelsville, Morgan County, Ohio.
{¶9} On January 13, 2010, LCDJFS filed a Motion to Modify Disposition to
grant legal custody of the children to Massie. The Guardian ad Litem recommended
that Massie be granted legal custody of the children. A hearing was held before the
Magistrate on March 19, 2010. Licking County, Case No. 2010 CA 0088 4
{¶10} At the hearing, Appellant, Pound, and Massie testified. Pound
recommended that legal custody be awarded to Massie. Massie testified that she was
bonded with the children. Her husband was employed at Wal-Mart and Massie worked
in the home. The children had their own bedroom. The children were doing well at
school while in Massie’s care. Massie testified that she had prior criminal convictions
for theft in 1988 and passing bad checks in 2004.
{¶11} The Magistrate’s Decision was filed on April 3, 2010 granting legal custody
of C.C. and N.C. to Massie. Appellant filed objections to the Magistrate’s Decision.
{¶12} On July 9, 2010, the trial court overruled Appellant’s objections and
adopted the Magistrate’s Decision granting legal custody of the children to Massie.
{¶13} It is from this decision Appellant now appeals.
ASSIGNMENT OF ERROR
{¶14} Appellant raises one Assignment of Error:
{¶15} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
DETERMINING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE PLACED
INTO THE LEGAL CUSTODY OF THE FOSTER PARENTS, AS SUCH A
DETERMINATION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶16} Appellant argues in her sole Assignment of Error that it was not in the
children’s best interests to be placed in the legal custody of Massie. We disagree.
{¶17} We first note this was a grant of legal custody, not permanent custody.
Legal custody does not divest parents of residual parental rights, privileges, and
responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, at Licking County, Case No. 2010 CA 0088 5
paragraph 17. This means Appellant may petition the court for a modification of custody
in the future. Id.
{¶18} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an
abused, neglected, or dependent child, the court may make any of the following orders
of disposition:
{¶19} “ * * *
{¶20} “(3) Award legal custody of the child to either parent or to any other person
who, prior to the dispositional hearing, files a motion requesting 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. * * *.”
{¶21} Despite the differences between a disposition of permanent custody and a
disposition of legal custody, some Ohio courts have recognized that “the statutory best
interest test designed for the permanent custody situation may provide some ‘guidance’
for trial courts making legal custody decisions.” In re A.F., Summit App. No. 24317,
2009-Ohio-333, ¶ 7, citing In re T.A., Summit App. No. 22954, 2006-Ohio-4468, ¶ 17.
{¶22} Furthermore, because custody issues are some of the most difficult and
agonizing decisions a trial judge must make, he or she must have wide latitude in
considering all the evidence and such a decision must not be reversed absent an abuse
of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159,
citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme
Court has also explained: “A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a legitimate Licking County, Case No. 2010 CA 0088 6
ground for reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273.
Likewise, “[e]very reasonable presumption must be made in favor of the judgment and
the findings [of the juvenile court]. * * * If the evidence susceptible to more than one
construction, we must give it that interpretation which is consistent with the verdict and
judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.”
In re: MB, Summit App. No. 21812, 2004-Ohio-2666, citing Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the trial court, as
the fact finder, is free to believe all, part, or none of the testimony of each witness.
State v. Caldwell (1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, as an
appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.
Our role is to determine whether there is relevant, competent, and credible evidence
upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February
10, 1982), Stark App. No. CA-5758.
{¶1} In determining the best interest of the child in a permanent custody case,
R.C. 2151.414(D) mandates the trial court must 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 parents 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; 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. Licking County, Case No. 2010 CA 0088 7
{¶23} Under the facts of this case, we cannot say the trial court abused its
discretion in granting legal custody of C.C. and N.C. to Massie.
{¶24} The record shows that until October 2009, Appellant was successfully
working on her case plan to the stage that LCDJFS moved for modification of legal
custody of the children back to Appellant. In October 2009, however, Appellant was
involved in a domestic violence incident with Massie. At that time, Appellant admittedly
stopped working on her case plan that would help her reunify with her children.
Appellant testified that she did not want to work with Pound, her social worker, anymore
and she moved away from the area.
{¶25} The Guardian ad Litem and Pound reported that the children were doing
well with Massie. Massie provided the children with a stable living environment. While
Massie did let Appellant care for the children while the children were to be in Massie’s
custody, Pound was aware of the arrangement and did not intercede.
{¶26} Upon the facts presented, we find that the trial court did not abuse its
discretion in finding that it was in the children’s best interests to be placed in the legal
custody of Massie.
{¶27} Appellant’s sole Assignment of Error is overruled. Licking County, Case No. 2010 CA 0088 8
{¶28} The judgment of the Licking County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Delaney, J.
Hoffman, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER [Cite as In re C.C., 2011-Ohio-1624.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: : : IN RE C.C. & N.C. : : : JUDGMENT ENTRY : : : : Case No. 2010 CA 0088 :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed
to Appellant.
HON. SHEILA G. FARMER