[Cite as In re D.B., 2024-Ohio-1965.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: D.B. C.A. Nos. 30806 D.S. 30807
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 21 10 0874 DN 22 03 0241
DECISION AND JOURNAL ENTRY
Dated: May 22, 2024
HENSAL, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that placed her children in the legal custody of a third party. This Court
affirms.
I.
{¶2} Mother is the biological mother of D.B., born October 16, 2007; and D.S., born
November 29, 2011. D.B.’s father is incarcerated for life and did not participate in the proceedings
below or on appeal. D.S.’ father is unknown. D.B. was placed in the legal custody of her maternal
grandmother during a dependency case in 2011.
{¶3} In September 2021, Summit County Children Services Board (“CSB” or “the
agency”) received a referral asserting that Mother’s then-paramour inappropriately touched D.S.
While investigating the allegation of sexual abuse, the agency learned that Mother had been 2
charged with various felony and misdemeanor offenses, was in jail, and was expected to remain
incarcerated for some time; and that D.B.’s legal custodian was using crack cocaine and had a
pending warrant for her arrest. CSB filed complaints alleging that D.B. and D.S. were neglected
and dependent children. At a team decision meeting held by the agency, Mother and the maternal
grandmother agreed that the grandmother would vacate her home and the children would remain
there in the temporary custody of their maternal aunt who also resided there. The juvenile court
placed the children in their aunt’s emergency temporary custody under the protective supervision
of the agency.
{¶4} After a shelter care hearing, however, the juvenile court placed the children in the
emergency temporary custody of CSB because the aunt had admitted to using marijuana illegally.
Thereafter, in early November 2021, the agency placed both children in the home of D.B.’s
paternal grandmother (“Grandmother”). Grandmother is not related to D.S. by blood.
{¶5} After adjudicatory hearings1, the juvenile court found both children dependent and
dismissed the allegations of neglect. For their initial dispositions, D.B. and D.S. were placed in
the temporary custody of CSB which maintained them in Grandmother’s home. The juvenile court
adopted the agency’s case plan as its order. Mother’s case plan objectives included chemical
dependency, mental health, and basic needs components.
{¶6} Mother was convicted and sentenced to prison during the cases. As the sunset date
approached, Mother filed alternative motions for either temporary custody of both children to
Grandmother or a six-month extension of the agency’s temporary custody. Mother asserted that
1 Due to service issues in D.S.’ case regarding John Doe, the agency dismissed and refiled its complaint regarding D.S. Accordingly, the children’s adjudicatory and initial dispositional hearings occurred at different times. 3
she expected to be released from prison within two months and the extension of time would allow
her to work on her case plan objectives.
{¶7} D.B. and D.S. filed a motion requesting they be placed in the legal custody of
Grandmother. Prior to D.S.’ adjudication, CSB had moved for legal custody of D.B. to
Grandmother. The agency later joined in the children’s motion for legal custody of both to
Grandmother.
{¶8} After an evidentiary hearing, the magistrate granted the children’s and agency’s
motions for legal custody of both D.B. and D.S. to Grandmother. The magistrate denied Mother’s
alternative motions which would have extended the pendency of the cases. Mother timely objected
to the magistrate’s decision.
{¶9} The juvenile court overruled Mother’s objection. It denied Mother’s motions for
temporary custody to Grandmother or a six-month extension of the agency’s temporary custody.
The trial court granted CSB’s and the children’s motions for legal custody to Grandmother.
Mother filed a timely appeal in which she raises three assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED LEGAL CUSTODY OF THE MINOR CHILDREN TO [GRANDMOTHER] AS [CSB] FAILED TO DEMONSTRATE WITH CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE CHILDREN’S BEST INTEREST. THE TRIAL COURT’S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶10} Mother argues that the juvenile court’s judgment awarding legal custody of the
children to Grandmother is against the manifest weight of the evidence. This Court disagrees.
{¶11} As an initial matter, Mother argues that an award of legal custody must be based on
clear and convincing evidence. Mother cites an incorrect burden of proof, as it is well settled: 4
On appeal, an award of legal custody will not be reversed if the judgment is supported by a preponderance of the evidence. Preponderance of the evidence entails the greater weight of the evidence, evidence that is more probable, persuasive, and possesses greater probative value. In other words, when the best interest of the child is established by the greater weight of the evidence, the trial court does not have discretion to enter a judgment that is adverse to that interest. Thus, our standard of review is whether a legal custody decision is against the manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶12} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman,
132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always
be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶13} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or
set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal
custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-
7994, at ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard,
the juvenile court is guided by the best interest factors enunciated in Revised Code Section
2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-
5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those factors 5
include the interaction and interrelationships of the child, the child’s wishes, the custodial history
of the child, the child’s need for permanence, and whether any of the factors in Section
2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist.
Summit Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 16.
{¶14} In addition, the juvenile court may also look to the best interest factors in Section
3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860,
2017-Ohio-1, ¶ 17. While some factors overlap with those above, others include the child’s
adjustment to his or her environment; the mental and physical health of all persons involved; the
parents’ history of providing support and honoring companionship orders; certain indicia of
violence, abuse, or neglect in any household involved; and whether a parent plans to or has
established a residence outside of Ohio. R.C. 3109.04(F)(1).
{¶15} D.B. and D.S. were 14 and 9 years old, respectively, when CSB filed its complaints
below. D.S. had been in Mother’s legal custody until the agency removed him shortly before his
tenth birthday. D.B., however, had been removed from Mother’s home and placed in the legal
custody of her maternal grandmother when she was three or four years old.
{¶16} The children share a close sibling bond and wish to reside together. They had been
living in Grandmother’s home for about 16 months at the time of the hearing. They are
comfortable and well adjusted to that environment. D.B. is particularly close with Grandmother
with whom she shares a biological connection. D.S. initially felt like he was a burden on a
caregiver with whom he has no familial relationship, but he has come to recognize Grandmother
as someone willing to assume the role of his natural grandparent. He feels loved by Grandmother
and has acknowledged that she provides “excellent” care for him and his sister. 6
{¶17} Grandmother is committed to providing a permanent home for both children. She
ensures that D.B. maintains a relationship with her father who is serving a long-term prison
sentence. In addition, Grandmother facilitates visits and ongoing relationships for the children
with their maternal grandmother and aunt. She encourages the children to stay in touch with
Mother.
{¶18} Mother was in jail when these cases began but was transferred to prison after
convictions for various felony offenses. She has remained in regular contact with the children via
phone calls during her incarceration. Mother and the children share a bond.
{¶19} D.B. told the guardian ad litem that she wants to continue living in Grandmother’s
home because she is comfortable, familiar with the environment, and all her needs are met in that
home. The guardian ad litem testified that D.S. initially hoped to live with his maternal aunt, a
family member with whom he is comfortable and has a familial relationship. CSB did not approve
the aunt for placement due to her then-illegal use of marijuana. D.S. was clear that he wants to
live wherever his sister D.B. is residing. He reported that he likes living with Grandmother where
he has everything he needs. The guardian ad litem opined that legal custody to Grandmother
would meet the best interest of both children because her home is appropriate, meets all the
children’s needs, provides stability, and Grandmother facilitates the children’s relationships with
other family members.
{¶20} D.B. experienced a custodial disruption as a young child. Both children were in
CSB’s temporary custody for almost a year and a half during these cases and require permanency
and stability. Grandmother executed a statement of understanding for legal custody and testified
that she was willing and able to provide a home for both children until they reach the age of
majority. 7
{¶21} The caseworker and guardian ad litem testified that Grandmother’s home is safe,
stable, and appropriate. Grandmother supports D.S.’ participation in counseling services to
address his exposure to sexual abuse by Mother’s prior paramour and his ongoing adjustment
issues. Both children have done well in school throughout their placement with Grandmother.
{¶22} Mother was serving a prison term at the time of the February 2023 hearing, with an
anticipated release date near the end of that year. Although she testified she believed her attorney
in her criminal case had filed a motion for judicial release, there was no record of that motion
having been filed. Moreover, while Mother testified that the judge who presided over her criminal
case guaranteed her early release from prison, any judicial release, particularly with no motion
pending, was speculative. Accordingly, the evidence demonstrated that Mother was not available
to reassume legal custody within the near future. See In re A.M., 9th Dist. Summit No. 30858,
2024-Ohio-1152, ¶ 11 (noting that “speculative projections about early release from incarceration”
do not provide evidentiary support regarding a parent’s release from prison).
{¶23} Mother has argued that the juvenile court erred by granting legal custody of the
children to Grandmother because she made significant progress on her case plan objectives. While
relevant to the issue of best interest of the children, a parent’s case plan compliance is not
dispositive. In re M.B., 9th Dist. Summit No. 30383, 2023-Ohio-1804, ¶ 15.
{¶24} Mother’s case plan objectives addressed mental health, substance abuse, and basic
needs. She testified that she has been engaging in mental health counseling in prison. The only
drug screen CSB requested of her was negative for illegal substances. Mother is working four
days a week in prison, although there was no evidence of her earnings.
{¶25} Mother testified that she has secured housing for herself upon release from prison
in a domestic violence shelter in Columbus, more than two hours away from where the children 8
have lived in Summit County. She asserted that the children could stay with her in the shelter.
She testified that she also found employment upon her release, although she could not provide
many details except that the job was in Summit County. She did not explain how she would travel
between the shelter in Columbus and her job in Summit County every day, or what plans she had
for the children in her absence.
{¶26} The guardian ad litem opined that displacing the children from Grandmother’s
home, where they were well settled and comfortable, and moving them to a shelter environment
in an area unfamiliar to them would not be in their best interest. A shelter is necessarily a short-
term housing situation, so the children would expect to face further disruptions to their living
arrangements, schools, service providers, and established friendships.
{¶27} Based on a thorough review of the record, this Court concludes that this is not the
exceptional case in which the trier of fact clearly lost its way and created a manifest miscarriage
of justice by granting legal custody of D.B. and D.S. to Grandmother. The children are safe and
comfortable in Grandmother’s home where all their needs are met. Grandmother encourages and
facilitates the children’s relationships with family members, including Mother. D.B. and D.S.
want to reside together and are content to remain with Grandmother. The guardian ad litem opined
that legal custody to Grandmother is in the children’s best interest. The children had been in
custodial limbo for almost a year and a half and require permanency. Mother’s anticipated release
from prison would not occur for another seven months. Her plans for housing and employment
upon release were inconsistent and not well developed. Accordingly, the children and CSB
established by a preponderance of the evidence that legal custody to Grandmother was in the
children’s best interest. Under these circumstances, the juvenile court’s judgment is not against
the manifest weight of the evidence. Mother’s first assignment of error is overruled. 9
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION WHEN IT DENIED MOTHER[‘S] MOTION FOR FIRST SIX- MONTH EXTENSION.
{¶28} Mother argues that the juvenile court erred by denying her motion for a six-month
extension of temporary custody. This Court disagrees.
{¶29} As stated above, the juvenile court determines a motion for legal custody solely in
consideration of the best interest of the children. In re J.M., 9th Dist. Summit No. 30258, 2022-
Ohio-3638, ¶ 32, citing In re K.H., 2016-Ohio-1330, at ¶ 12. We have further repeatedly held that
“if legal custody to a nonparent is in the best interest of the child[ren], an extension of temporary
custody is not.” In re A.P., 9th Dist. Summit No. 30056, 2022-Ohio-276, ¶ 9, citing In re A.M.,
9th Dist. Lorain No. 16CA010995, 2017-Ohio-7653, ¶ 41.
{¶30} The juvenile court may only extend temporary custody for up to six months for the
first time if it finds, by clear and convincing evidence, all of the following: “the extension is in the
best interest of the child[ren], there has been significant progress on the case plan of the child, and
there is reasonable cause to believe that the child[ren] will be reunified with one of the parents or
otherwise permanently placed within the period of extension.” R.C. 2151.415(D)(1). Clear and
convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d
361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶31} Because an award of legal custody of the children to Grandmother is in the
children’s best interest, any extension of temporary custody necessarily is not. Moreover,
Mother’s release from prison was not scheduled until seven months after the date of the legal 10
custody hearing. She failed to prove that she had moved for judicial release and her prospects for
early release were speculative. Accordingly, there was no reasonable cause to believe that the
children could be reunified with Mother within the period of extension. Therefore, assuming
without deciding that Mother demonstrated significant progress on her case plan objectives, there
was no clear and convincing evidence to support the remaining two necessary requirements to
support an extension of temporary custody. Mother’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION WHEN IT GRANTED LEGAL CUSTODY TO [GRANDMOTHER] (A NON-RELATIVE OF MINOR CHILD D.S.) WHEN [CSB] DID NOT PROVIDE REASONABLE REUNIFICATION EFFORTS.
{¶32} Mother argues that CSB did not use reasonable efforts to attempt to reunify the
children with her. This Court disagrees.
{¶33} Parents have a substantial right under law to raise their children and are entitled to
all legally permissible procedural and substantive protections. In re K.J., 9th Dist. Summit No.
29915, 2021-Ohio-4413, ¶ 18. Those protections “include the child welfare agency’s obligation
to make reasonable efforts to reunify children with one or both parents.” Id. Section 2151.419(A)
places the burden on the agency to demonstrate it has made reasonable efforts to facilitate
reunification.
{¶34} Chapter 2151 of the Revised Code does not define “reasonable efforts.” Ohio
courts have come to construe that term as “[t]he state’s efforts to resolve the threat to the child
before removing the child or to permit the child to return home after the threat is removed[.]”
(Internal quotations omitted.) In re J.M., 9th Dist. Summit No. 30258, 2022-Ohio-3638, ¶ 35,
quoting In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, quoting Will L. Crossley, Defining
Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 11
12 B.U.Pub.Int.L.J. 259, 260 (2003). When making a reasonable efforts determination, “‘the issue
is not whether the agency could have done more, but whether it did enough to satisfy the
reasonableness standard under the statute.’” In re J.M. at ¶ 35, quoting In re C.M., 9th Dist.
Summit No. 24380, 2009-Ohio-943, ¶ 21. “In determining whether reasonable efforts were made,
the child’s health and safety shall be paramount.” R.C. 2151.419(A)(1).
{¶35} Section 2151.412(A) requires CSB to “prepare and maintain a case plan for any
child to whom the agency is providing services” under various circumstances, including when the
agency has temporary custody of the child. See also Ohio Adm.Code 5101:2-38-05(A). Parents
are necessary parties to the case plan. Id. at (C)(1). Moreover, this Court recognizes:
The case plan is the tool used by the agency to facilitate family reunification efforts. In re H.S., 9th Dist. Summit Nos. 28944 and 28948, 2018-Ohio-3360, ¶ 18. In fact, the overriding purpose of the case plan is to allow the agency to assist the parents in remedying the conditions underlying a child’s removal so that the child can be returned safely to one or both parents’ custody. In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 45.
In re K.J. at ¶ 18.
{¶36} CSB created a case plan for the children which included mental health, substance
abuse, and basic needs objectives for Mother. Mother argues that the agency failed to make
reasonable reunification efforts because the caseworker “did absolutely NOTHING” during the
last six months of the cases while Mother was in prison. She reasons that, because she
“substantially completed her case plan[,]” and the caseworker did not obtain her mental health
records from prison, the agency deprived her of reasonable reunification efforts.
{¶37} The caseworker testified that he obtained a release of information from Mother and
remained in ongoing communications with her various case managers in prison, requesting updates
on Mother’s status and what she was doing. He testified that each time Mother changed pods in
prison, she was assigned a new case manager and that it took each of those people time to 12
understand that there was an effective release of information on file. He admitted that Mother may
have been involved in mental health services in prison but that she did not inform him of her
involvement. The caseworker testified that Mother only recently informed him that the prison
required a release of information specific to mental health services before it would share such
information. The caseworker sent a release of mental health information to the prison but had not
yet received an update on Mother’s mental health services and progress because either Mother had
not yet signed the form, or the prison had not obtained her executed release.
{¶38} In addition to creating a case plan and maintaining contact with Mother’s case
managers in prison, the caseworker maintained contact with the parties, conducted home visits
where the children were placed, made referrals for services for the various parties, and assessed
family members for placement. Mother’s ongoing incarceration prevented her from establishing
and maintaining an appropriate home and obtaining employment or other financial resources to
allow her to provide for the children’s basic needs. It also delayed the caseworker’s ability to
obtain information relevant to Mother’s engagement in services, her progress, and any need to
modify objectives based on newly identified concerns.
{¶39} The evidence indicates that CSB used reasonable efforts throughout these cases
with the health and safety of the children in mind. See R.C. 2151.419(A)(1). Mother’s
unsubstantiated argument that the caseworker did “nothing” during the last six months of the cases,
coupled with her own incarceration which precluded her from achieving the important goal of
demonstrating her ability to meet the children’s basic needs, “do not impugn CSB’s reasonable
reunification efforts.” See In re J.E., 9th Dist. Summit No. 30174, 2022-Ohio-2403, ¶ 31.
Mother’s third assignment of error is overruled. 13
III.
{¶40} Mother’s three 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.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
CARR, P. J. FLAGG LANZINGER, J. CONCUR. 14
APPEARANCES:
STEPHEN M. GRACHANIN, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant Prosecuting Attorney, for Appellee.