[Cite as In re C.H., 2019-Ohio-4316.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION C.H., DEPENDENT CHILD : CASE NO. 2018-A-0061 :
Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 2017 JC 00024.
Judgment: Affirmed.
Nicholas A. Iarooci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For Appellee).
Christopher J. Boeman, P.O. Box 583, Willoughby, Ohio 44096 (For Appellant).
Anita B. Staley, P.O. Box 571, Mentor, Ohio 44061; Judith Kowalski, 333 Babbitt Road, Suite 323, Euclid, Ohio 44123 (Guardians ad litem).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Kimberly Malkin, appeals the trial court’s judgment granting legal
custody of her son, C.H., to a paternal great aunt and uncle. She asserts procedural
errors and that the ruling is not in C.H.’s best interest. We affirm.
{¶2} C.H. was born in January 2009. The birth certificate lists Matthew Hines as
his father. During C.H.’s first eight years, he lived with appellant’s father, and appellant
also lived with them most of the time. Shortly before February 2017, C.H. was involved
in an altercation on a school bus. Ultimately, appellant refused to allow the police further access to C.H. Close in time, appellant overdosed on illegal drugs. Her father was home
when the overdose occurred, but he did not witness it. Hines and C.H., however, did.
{¶3} Prior to this overdose, appellee, Ashtabula County Children Services Board
(“the board”), was aware of another incident where appellant overdosed on illegal drugs.
Upon learning of her second overdose, the board filed a complaint for temporary custody
of C.H. alleging that he is a dependent child due to appellant’s drug abuse and that
Matthew Hines is C.H.’s biological father.
{¶4} The day of filing, the trial court issued a pre-disposition judgment awarding
temporary custody of C.H. to the board and found probable cause that placement in
shelter care was needed to prevent potential physical or emotional harm. Approximately
one month later, after an adjudicatory hearing, the trial court found C.H. to be a dependent
child and ordered that he remain in the board’s temporary custody.
{¶5} Within days of taking temporary custody, the board placed C.H. with his
paternal great aunt and uncle, Kristine Hines-Loveland and Chris Loveland. The
Lovelands were chosen in part because they reside in the same county as appellant and
Hines, completed a home study, provided criminal background checks, and would allow
appellant and Hines visitation. C.H. lived with the Lovelands throughout the pendency of
the proceedings.
{¶6} On April 6, 2017, the trial court adopted a reunification case plan for both
appellant and Hines. Appellant’s requirements were to (1) undergo mental health
evaluation and follow all recommendations; (2) undergo drug and alcohol evaluation and
follow all recommendations; and (3) obtain a steady source of income to provide safe
housing for C.H. Similar requirements were imposed on Hines.
2 {¶7} A magistrate conducted a semi-annual review hearing on August 1, 2017
and found neither appellant nor Hines were following the case plan. Although appellant
completed a mental health evaluation, she was not following any recommendations.
Moreover, appellant had recently tested positive for illegal drugs and did not have a job
or separate housing. C.H.’s placement with the Lovelands was therefore continued.
Furthermore, given appellant’s belligerent behavior at the hearing, the magistrate
appointed a guardian ad litem for her.
{¶8} Three months later, appellant filed two pro se pleadings: a complaint for a
writ of habeas corpus and a motion for review. In both pleadings, she maintained that
C.H.’s removal from her custody was improper because there was no evidence that she
placed him in imminent danger or abused or neglected him. A hearing on those issues
was scheduled but did not occur due to failure of service.
{¶9} The trial court held an annual review hearing on February 8, 2018. The
court found appellant’s most recent drug test was positive for methamphetamines and
THC. The trial court also found that neither appellant nor Matthew Hines had made any
progress on the case plan objectives and that C.H. was doing well with the Lovelands.
The board’s temporary custody was continued.
{¶10} On the day of the annual review hearing, appellee moved for an order
terminating its temporary custody and granting legal custody of C.H. to the Lovelands. In
an affidavit accompanying the motion, a caseworker averred that if the requested relief
were granted, both appellant and Hines would have more time to comply with the case
plan objectives.
{¶11} An evidentiary hearing on the motion to terminate was scheduled for June
3 19, 2018. Six days before the hearing, appellee amended its motion to terminate, noting
that Matthew Hines had not established paternity. The amended motion therefore alleges
“John Doe” as C.H.’s unknown father. In an accompanying affidavit, the same
caseworker averred that John Doe’s identity could not be ascertained and therefore,
requested an order for service by publication.
{¶12} The trial court granted the service request, but publication did not appear in
the Ashtabula County newspaper until June 20, 2018, one day after the termination
hearing.
{¶13} Appellant did not appear at the termination hearing and her pro se habeas
corpus petition and motion for review were dismissed. Appellant’s counsel, however,
participated and cross-examined appellee’s witnesses. At the outset of the proceeding,
appellee submitted a Statement of Understanding signed by the Lovelands. The trial
court asked each of them if they were prepared to assume full responsibility for C.H. and
act as his parents. Both answered affirmatively and stated that they would willingly accept
custody of C.H.
{¶14} In granting appellee’s motion to terminate, the trial court found appellant
had not satisfied any of the major objectives of her case plan, including the need to
maintain stable employment and housing. The court further found that C.H. had bonded
with the Lovelands and was doing well in their home. The trial court awarded legal
custody to the Lovelands and terminated appellee’s involvement.
{¶15} Appellant asserts four assignments of error for review:
{¶16} “[1.] The trial court abused its discretion when it proceeded with the hearing
when it was clear that a necessary party, John Doe, had not been properly served.
4 {¶17} “[2.] The trial court abused its discretion by awarding legal custody of C.H.
to the Lovelands without first either appointing C.H. an attorney or ascertaining C.H.’s
wishes.
{¶18} “[3.] The trial court abused its discretion in awarding legal custody to the
Lovelands when there was insufficient evidence to demonstrate that doing so was in
C.H.’s best interest.
{¶19} “[4.] Mother was denied due process by the cumulative effect of the
irregularities that were evident at the hearing.”
{¶20} Under her first assignment, appellant argues that the judgment awarding
legal custody to the Lovelands is void due to invalid service and lack of jurisdiction over
“John Doe.”
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[Cite as In re C.H., 2019-Ohio-4316.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION C.H., DEPENDENT CHILD : CASE NO. 2018-A-0061 :
Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 2017 JC 00024.
Judgment: Affirmed.
Nicholas A. Iarooci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For Appellee).
Christopher J. Boeman, P.O. Box 583, Willoughby, Ohio 44096 (For Appellant).
Anita B. Staley, P.O. Box 571, Mentor, Ohio 44061; Judith Kowalski, 333 Babbitt Road, Suite 323, Euclid, Ohio 44123 (Guardians ad litem).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Kimberly Malkin, appeals the trial court’s judgment granting legal
custody of her son, C.H., to a paternal great aunt and uncle. She asserts procedural
errors and that the ruling is not in C.H.’s best interest. We affirm.
{¶2} C.H. was born in January 2009. The birth certificate lists Matthew Hines as
his father. During C.H.’s first eight years, he lived with appellant’s father, and appellant
also lived with them most of the time. Shortly before February 2017, C.H. was involved
in an altercation on a school bus. Ultimately, appellant refused to allow the police further access to C.H. Close in time, appellant overdosed on illegal drugs. Her father was home
when the overdose occurred, but he did not witness it. Hines and C.H., however, did.
{¶3} Prior to this overdose, appellee, Ashtabula County Children Services Board
(“the board”), was aware of another incident where appellant overdosed on illegal drugs.
Upon learning of her second overdose, the board filed a complaint for temporary custody
of C.H. alleging that he is a dependent child due to appellant’s drug abuse and that
Matthew Hines is C.H.’s biological father.
{¶4} The day of filing, the trial court issued a pre-disposition judgment awarding
temporary custody of C.H. to the board and found probable cause that placement in
shelter care was needed to prevent potential physical or emotional harm. Approximately
one month later, after an adjudicatory hearing, the trial court found C.H. to be a dependent
child and ordered that he remain in the board’s temporary custody.
{¶5} Within days of taking temporary custody, the board placed C.H. with his
paternal great aunt and uncle, Kristine Hines-Loveland and Chris Loveland. The
Lovelands were chosen in part because they reside in the same county as appellant and
Hines, completed a home study, provided criminal background checks, and would allow
appellant and Hines visitation. C.H. lived with the Lovelands throughout the pendency of
the proceedings.
{¶6} On April 6, 2017, the trial court adopted a reunification case plan for both
appellant and Hines. Appellant’s requirements were to (1) undergo mental health
evaluation and follow all recommendations; (2) undergo drug and alcohol evaluation and
follow all recommendations; and (3) obtain a steady source of income to provide safe
housing for C.H. Similar requirements were imposed on Hines.
2 {¶7} A magistrate conducted a semi-annual review hearing on August 1, 2017
and found neither appellant nor Hines were following the case plan. Although appellant
completed a mental health evaluation, she was not following any recommendations.
Moreover, appellant had recently tested positive for illegal drugs and did not have a job
or separate housing. C.H.’s placement with the Lovelands was therefore continued.
Furthermore, given appellant’s belligerent behavior at the hearing, the magistrate
appointed a guardian ad litem for her.
{¶8} Three months later, appellant filed two pro se pleadings: a complaint for a
writ of habeas corpus and a motion for review. In both pleadings, she maintained that
C.H.’s removal from her custody was improper because there was no evidence that she
placed him in imminent danger or abused or neglected him. A hearing on those issues
was scheduled but did not occur due to failure of service.
{¶9} The trial court held an annual review hearing on February 8, 2018. The
court found appellant’s most recent drug test was positive for methamphetamines and
THC. The trial court also found that neither appellant nor Matthew Hines had made any
progress on the case plan objectives and that C.H. was doing well with the Lovelands.
The board’s temporary custody was continued.
{¶10} On the day of the annual review hearing, appellee moved for an order
terminating its temporary custody and granting legal custody of C.H. to the Lovelands. In
an affidavit accompanying the motion, a caseworker averred that if the requested relief
were granted, both appellant and Hines would have more time to comply with the case
plan objectives.
{¶11} An evidentiary hearing on the motion to terminate was scheduled for June
3 19, 2018. Six days before the hearing, appellee amended its motion to terminate, noting
that Matthew Hines had not established paternity. The amended motion therefore alleges
“John Doe” as C.H.’s unknown father. In an accompanying affidavit, the same
caseworker averred that John Doe’s identity could not be ascertained and therefore,
requested an order for service by publication.
{¶12} The trial court granted the service request, but publication did not appear in
the Ashtabula County newspaper until June 20, 2018, one day after the termination
hearing.
{¶13} Appellant did not appear at the termination hearing and her pro se habeas
corpus petition and motion for review were dismissed. Appellant’s counsel, however,
participated and cross-examined appellee’s witnesses. At the outset of the proceeding,
appellee submitted a Statement of Understanding signed by the Lovelands. The trial
court asked each of them if they were prepared to assume full responsibility for C.H. and
act as his parents. Both answered affirmatively and stated that they would willingly accept
custody of C.H.
{¶14} In granting appellee’s motion to terminate, the trial court found appellant
had not satisfied any of the major objectives of her case plan, including the need to
maintain stable employment and housing. The court further found that C.H. had bonded
with the Lovelands and was doing well in their home. The trial court awarded legal
custody to the Lovelands and terminated appellee’s involvement.
{¶15} Appellant asserts four assignments of error for review:
{¶16} “[1.] The trial court abused its discretion when it proceeded with the hearing
when it was clear that a necessary party, John Doe, had not been properly served.
4 {¶17} “[2.] The trial court abused its discretion by awarding legal custody of C.H.
to the Lovelands without first either appointing C.H. an attorney or ascertaining C.H.’s
wishes.
{¶18} “[3.] The trial court abused its discretion in awarding legal custody to the
Lovelands when there was insufficient evidence to demonstrate that doing so was in
C.H.’s best interest.
{¶19} “[4.] Mother was denied due process by the cumulative effect of the
irregularities that were evident at the hearing.”
{¶20} Under her first assignment, appellant argues that the judgment awarding
legal custody to the Lovelands is void due to invalid service and lack of jurisdiction over
“John Doe.”
{¶21} Appellant, however, lacks standing to raise the issue. A mother cannot
challenge the lack of proper notice to the non-appealing father unless she can
demonstrate prejudice. In re Michaels, 11th Dist. Lake No. 2001-L-029, 2001 WL 705564,
*2 (June 22, 2001); In re I.J., 6th Dist. Lucas No. L-12-1306, 2013-Ohio-1083; In re
Cook, 3d Dist. Hancock No. 5-98-16, 1998 WL 719524 (Oct. 8, 1998); In re Kincaid, 4th
Dist. Lawrence No. 00CA3, 2000 WL 1683456 (Oct. 27, 2000); In re Jordan, 9th Dist.
Summit Nos. 20773, 20786, 2002 WL 121211 (Jan. 30, 2002); Iden v. Zumbro, 5th Dist.
Licking No. 18-CA-56, 2019-Ohio-1051, ¶ 9-11.
{¶22} Appellant does not argue, much less demonstrate, prejudice to her.
Appellant’s first assignment is without merit.
{¶23} Under her next assignment, appellant contends that the trial court erred in
not determining whether C.H.’s wishes conflicted with the recommendation of the
5 guardian ad litem and, depending on his preference, potentially appoint C.H. legal
counsel.
{¶24} Appellant did not, however, object on this basis or request that the trial court
inquire of C.H.’s wishes and examine the potential need for appointment of counsel.
Accordingly, she is limited to arguing plain error. To constitute plain error the alleged
error must have substantially affected the outcome such that but for the error, the outcome
would have been otherwise. State v. Beech, 9th Dist. Summit No. 29036, 2019-Ohio-
120, ¶ 17.
{¶25} Appellant has failed, however, to demonstrate that C.H.’s wishes conflict
with the recommendation of the guardian ad litem and we cannot speculate. In Re: N.G.,
9th Dist. Lorain No. 12CA010143, 2012-Ohio-2825, ¶ 18. Having failed to demonstrate
plain error, this assignment lacks merit.
{¶26} The third assignment asserts that there is insufficient evidence to support
the judgment granting custody to the Lovelands. “‘“When a defendant argues that
judgment in a civil case is supported by insufficient evidence, we must determine whether,
viewing the evidence in the light most favorable to the plaintiff, a reasonable trier of fact
could find in favor of plaintiff.’” Lubanovich v. McGlockin, 9th Dist. Medina No. 12CA0090-
M, 2014-Ohio-2459, 2014 WL 2567995, ¶ 8.’ Baaron, Inc. v. Davidson, 2015-Ohio-4217,
44 N.E.3d 1062, ¶ 13 (9th Dist.).” Estie Investment Co. v. Braff, 11th Dist. Lake No. 2017-
L-172, 2018-Ohio-4378, ¶ 32.
{¶27} “‘When a child is adjudicated a dependent child, the juvenile court may as
its dispositional order, place the child under the protective supervision or temporary
custody of a children services agency, or award legal custody of the child to a third party.’
6 In re Yates, 11th Dist. Geauga No. 2008-G-2836, 2008-Ohio-6775, ¶ 29. ‘“Legal custody”
means a legal status that vests in the custodian the right to have physical care and control
of the child and to determine where and with whom the child shall live, and the right and
duty to protect, train, and discipline the child and to provide the child with food, shelter,
education, and medical care, all subject to any residual parental rights, privileges, and
responsibilities.’ R.C. 2151.011(B)(21). Although legal custody is intended to be
permanent in nature, R.C. 2151.42(B), it ‘is not as drastic a remedy as permanent custody
because a parent retains residual rights and has the opportunity to request the return of
the children.’ In re Memic, 11th Dist. Lake Nos. 2006-L-049, 2006-L-050, and 2006-L-
051, 2006-Ohio-6346, ¶ 24 (citations omitted) * * *.” In re K.Q., 11th Dist. Ashtabula No.
2017-A-0060, 2018-Ohio-906, ¶ 15.
{¶28} An award of legal custody to a third party is one of five dispositional orders
a juvenile court may impose after the initial dependency determination has been made.
R.C. 2151.353(A). In rendering any dispositional order, the focus of the juvenile court’s
analysis is not whether the child’s natural parents are unfit to maintain custody; instead,
the court’s paramount consideration is the child’s best interest and welfare. In re L.L.S.,
11th Dist. Portage No. 2016-P-0068, 2017-Ohio-7450, ¶ 21, quoting In re J.F., 11th Dist.
Trumbull No. 2010-T-0029, 2011-Ohio-3295, ¶ 39-40. In deciding whether to grant legal
custody to a third party under R.C. 2151.353(A)(3), a juvenile court must apply the “best
interest” standard delineated in R.C. 3109.04. In re K.Q., at ¶ 16.
{¶29} Unlike termination of parental rights, which requires a finding by clear and
convincing evidence, an award of legal custody to a third party requires a finding by a
preponderance of the evidence. In re S.A., 11th Dist. Trumbull Nos. 2011-T-0098, 2011-
7 T-0099, and 2011-T-0100, 2012-Ohio-2006, ¶ 25. Appellate courts review legal custody
determinations under an abuse of discretion standard. In re L.L.S., at ¶ 20. “* * * ‘[A]buse
of discretion’ is [a term] of art, connoting judgment exercised by a court which neither
comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678
(1925). An abuse of discretion may be found when the trial court ‘applies the wrong legal
standard, misapplies the correct legal standard, or relies on clearly erroneous findings of
fact.’ Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15 (8th Dist.).” Id.
{¶30} In In re S.A., this court found the following sufficient to support an award of
legal custody to the third parties, the Hogans:
{¶31} “4. TCCS conducted a home evaluation of the Hogans and they were
approved. Furthermore, caseworker, Cathi Beck, stated that she supported the grant of
legal custody to the Hogans and had no concerns about the girls’ welfare in the Hogans’
home. The girls have been attending school, participating in extracurricular activities, and
are generally thriving.
{¶32} “5. Mrs. Hogan expressed her and her husband’s continued interest in
caring for the girls. They did not want to see the girls split up. She made clear she did
not oppose the girls’ visitation with Ms. Frazier, or L.M.’s with Mr. Marshall. She indicated
a willingness to take the girls to see their mother as often as possible.” Id. at ¶ 30-31.
{¶33} Similar evidence was presented in this case. The guardian ad litem testified
to the following. She visited the Loveland home multiple times and always found it to be
in appropriate condition. The Lovelands care for C.H., and he appears to care for them.
C.H. is comfortable with the Lovelands; and C.H. appears to be thriving in his present
environment. The guardian ad litem further believed the Lovelands would willingly allow
8 the maternal grandfather to visit C.H. Moreover, the guardian recommended granting
legal custody to the Lovelands finding it in C.H.’s best interest. A caseworker for the
board testified that she had no concerns about the Lovelands’ ability to provide a safe
home for C.H.
{¶34} In presenting their Statement of Understanding, the Lovelands
acknowledged that by accepting legal custody, they were assuming the same
responsibilities as a natural parent. Both also acknowledged that their obligation to C.H.
could continue until he became an adult. The evidence therefore is sufficient to establish
that the ruling is in C.H.’s best interest.
{¶35} Appellant alternatively asserts that the Lovelands are ineligible for legal
custody because there are issues as to whether Matthew Hines is C.H.’s natural father.
Appellant appears to argue that the Lovelands must be related to C.H. before they can
be granted legal custody. There is no requirement, however, that a person must be
related to a child in order to obtain legal custody. Legal custody can be granted to a
parent “or to any other person.” R.C. 2151.353(A)(3).
{¶36} Appellant has failed to establish that the trial court did not follow the correct
legal standard, misapplied the correct legal standard, or based its decision on a clearly
erroneous factual finding. The trial court did not abuse its discretion in granting legal
custody of C.H. to the Lovelands. The third assignment lacks merit.
{¶37} Under her final assignment, appellant seeks reversal arguing cumulative
error during the termination hearing. In addition to restating the arguments in her first
three assignments, she asserts two additional arguments. First, she claims that she was
denied a fair hearing because the trial court repeatedly allowed appellee to present
9 hearsay testimony.
{¶38} There were a number of occasions where appellee’s witnesses attempted
to recite what they heard from others. Several times, the trial court granted appellant’s
counsel’s hearsay objection. More importantly, when there was no objection, or the
hearsay was admitted over objection, it pertains to whether appellant was progressing on
the objectives of her case plan, not C.H.’s best interests. While some inadmissible
hearsay was admitted, appellee presented a substantial amount of admissible evidence
demonstrating that appellant has failed to comply with the vast majority of the objectives.
The admission, therefore, was not prejudicial.
{¶39} Second, appellant maintains that she was not afforded a fair hearing
because the guardian ad litem did not submit her final report seven days before the
dispositional hearing, as required by Sup.R. 49(F)(1)(c). The Rules of Superintendence
are viewed as internal housekeeping rules which do not have the force or effect of
procedural rules or statutes; accordingly, violations do not warrant reversal of a decision.
Allen v. Allen, 11th Dist. Trumbull No. 2009-T-0070, 2010-Ohio-475, ¶ 31.
{¶40} Appellant’s fourth assignment is not well taken.
{¶41} The judgment of the Ashtabula County Court of Common Pleas, Juvenile
Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.