In re D.H.

2021 Ohio 192

• Court: Ohio Court of Appeals
• Decided: January 27, 2021
• Docket: CT2020-0040
• Status: Published

Opinion

[Cite as In re D.H., 2021-Ohio-192.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. Craig R. Baldwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

D.H. Case No. CT2020-0040

OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 21930014

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 27, 2021

APPEARANCES:

For Appellant-Mother For Appellee Children Services

ROSE M. FOX D. MICHAEL HADDOX FOX LAW OFFICE PROSECUTING ATTORNEY 233 Main Street JOHN CONNOR DEVER Zanesville, Ohio 43701 ASSISTANT PROSECUTOR 27 North 5th Street Zanesville, Ohio 43701 Muskingum County, Case No. CT2020-0040 2

Wise, J.

{¶ 1} Appellant-Mother D.B. appeals from the judgment entered in Muskingum

County Court of Common Pleas, Juvenile Court Division, which granted legal custody of

the minor child D.H. to Scott and Carrie Bunting.

STATEMENT OF THE FACTS AND CASE

{¶ 2} This appeal pertains to the award of legal custody of the minor child D.H.

(DOB 08/06/2014) of Appellant-Mother D.B. The child’s father is listed as unknown.

{¶ 3} Muskingum County Adult and Child Protective Services ("MCCS") filed a

complaint for the removal of D.H. from Appellant D.B. because MCCS received reports

of Appellant-Mother experiencing domestic violence, using drugs, and failing to provide

medical care to D.H. and his two other siblings.

{¶ 4} The trial court adjudicated D.H. along with his two siblings neglected and

dependent under R.C. Chapter 2151, and during the subsequent dispositional hearing

granted temporary custody to Scott and Carrie Bunting under the protective supervision

of MCCS.

{¶ 5} After the dispositional hearing, MCCS provided services specified under a

case plan to Appellant-Mother with the goal of attempting reunification with her child D.H.

{¶ 6} In February, 2020, MCCS filed a motion for legal custody to be granted to

Scott and Carrie Bunting with protective supervision terminated. The basis of the motion

was Appellant-Mother’s failure to make meaningful, substantial progress on her case plan

by failing to have completed the specified services despite a year passing and the fact

that D.H. was doing well in the temporary custody of Scott and Carrie Bunting. Muskingum County, Case No. CT2020-0040 3

{¶ 7} In May, 2020, the trial court held a hearing upon that motion and found that

it was not in the best interest of D.H. to be returned to Appellant-Mother, that MCCS made

reasonable efforts in preventing the removal, and that granting legal custody to Scott and

Carrie Bunting with protective supervision terminated was in the best interest of D.H.

{¶ 8} At the hearing, the trial court heard testimony from Caseworker Wendy

Swartz, Scott Bunting, Carrie Bunting, the Guardian ad Litem, and Appellant-Mother.

{¶ 9} Caseworker Swartz testified that the child D.H. was placed in the Temporary

Custody of Scott and Carrie Bunting on April 18, 2019, where he has remained since.

{¶ 10} She testified that MCCS developed a case plan for Appellant-Mother which

addressed her issues with substance abuse, domestic violence, job and housing stability,

mental health, and parenting. MCCS provided services to her under the case plan such

as domestic violence, mental health, and substance abuse counseling; random drug

screens; and help to improve parenting, which she initially started working through. (T. at

6).

{¶ 11} Caseworker Swartz testified that Appellant-Mother completed a hair follicle

test on February 2, 2019 which was positive for amphetamine and methamphetamine.

{¶ 12} On March 7, 2019, Appellant-Mother completed an assessment at

Muskingum Behavioral Health ("MBH"), at which time MCCS agreed to Appellant-Mother

receiving substance abuse treatment, mental health counseling and domestic violence

counseling combined, and that the same counselor (Gail Shultice) could provide all of the

combined services at MBH as Mother had requested.

{¶ 13} Ms. Swartz stated that any progress Appellant-Mother made on her case

plan was short-lived and that in October, 2019, she stopped showing up to her service Muskingum County, Case No. CT2020-0040 4

provider MBH, which resulted in MBH discharging her for non-participation on November

22, 2019. (T. at 7). Appellant-Mother’s explanation for failing to show up to MBH was that

she started a new job in October. (T. at 39). However, in early January, 2020, she was

laid off and never tried to re-establish services. Id.

{¶ 14} At the time of the legal custody hearing in May, 2020, Appellant-Mother had

failed to complete any of the services for substance abuse, mental health, parenting, or

domestic violence. (T. at 7-8, 49-51). Appellant-Mother claimed that she completed

parenting classes at Muskingum Behavioral Health; however she could not provide a

certificate of completion. (T. at 49).

{¶ 15} Ms. Swartz further testified that on April 10, 2019, Appellant-Mother signed

the drug screening card for MCCS in which she agreed to randomly drug screen for

MCCS, and that despite having twenty-one (21) negative screens from April 9, 2019,

through August 26, 2019, Appellant-Mother tested positive for amphetamine and

methamphetamine on September 3, 2019. Appellant-Mother has not completed a drug

screen for MCCS since September 23, 2019, and has no-called/no-showed twenty-five

(25) times, which are considered positive tests by MCCS. Further, Caseworker Swartz

further testified that there were several reports that Appellant-Mother was altering her

drug screens by using different substances in her mouth, such as peroxide and mouth

strips.

{¶ 16} Ms. Swartz further testified that the Temporary Custodians Scott and Carrie

Bunting held a birthday party for the child in June, 2019, and that the Buntings surprised

the child with a visit from Appellant-Mother at that party. However, both Ms. Swartz and Muskingum County, Case No. CT2020-0040 5

the Buntings testified that several people at the party observed that Appellant-Mother

appeared to be intoxicated. (T. at 7).

{¶ 17} Caseworker Wendy Swartz testified that although Appellant-Mother owned

her own home, the home was condemned, then un-condemned, then condemned again

and was officially foreclosed on in January, 2020. (T. at 8). She stated that Appellant-

Mother is currently living with friends, who are reported to be drug users. (T. at 9).

{¶ 18} Ms. Swartz further testified that she had requested numerous times that

Mother provide proof of employment, such as copies of pay stubs, after Appellant- Mother

reported have full time employment, but that she failed to provide such.

{¶ 19} Both Ms. Swartz and Appellant-Mother testified that Mother had stopped

treatment at MBH in October, 2019, and that Mother testified that she stopped treatment

due to her work schedule at Fanatics, although the pay stubs submitted by Appellant-

Mother provide that Mother did not begin her job at Fanatics until the end of November

2019, and that she was laid off from that job in mid-January 2020. Appellant-Mother has

provided no proof of employment income since mid-January 2020;

{¶ 20} Caseworker Swartz again emphasized her concerns that during the fifteen

or sixteen months, Appellant-Mother had not made any progress on her case plan, and

that she is not engaged in any services at this point in time. (T. at 10).

{¶ 21} Ms. Swartz testified that visitation had been held at the Agency until

February, 2020, and that face-to-face visitation had been suspended since March, 2020,

due to the Covid-19.

{¶ 22} Ms. Swartz also testified that Appellant-Mother has a history of being

involved in domestic violence incidents, in which she at times has been the victim and at Muskingum County, Case No. CT2020-0040 6

times has been the aggressor, and on July 9, 2019, (during the pendency of this case)

Appellant-Mother was charged with Domestic Violence after an altercation with her adult

son and his girlfriend.

{¶ 23} Appellant-Mother claimed that she did complete parenting services,

however she was unable to provide the court with a certificate of completion. (T. at 38,

49). However, she did not dispute that she failed to make substantial progress on the rest

of her case plan. (T. at 49-52). Rather, she promised on the stand that she would start

drug testing and resume other services. Id.

{¶ 24} During her testimony, Appellant-Mother admitted that she missed drug

screens at the Agency but stated that it was due to her employment at Fanatics where

she worked November 22, 2019, through January 17, 2020. (T. at 39). When asked by

the State if she re-established services at MBH in January after she was laid off from her

job, Appellant-Mother testified that she did not. (T. at 40).

{¶ 25} Both Scott and Carrie Bunting testified that they took D.H. to see Dr.

Courtney Huffman due to the child's behaviors upon his returning from any visitation(s)

with Appellant-Mother. The Buntings testified that Appellant-Mother would make false

promises to the child, and when those promises were not kept, the child would act out.

Ms. Huffman's recommendation was to stop visitation with Appellant-Mother. The

Buntings further testified that they only want what is best for the child, and that he is a five

year old little boy that has gone through a lot.

{¶ 26} Carrie Bunting testified that she is usually the one reaching out to Appellant-

Mother to set up visits, and that when she realized that the visits were triggering the child's

recent bad behavior, she had to do what she felt appropriate to protect the child. Muskingum County, Case No. CT2020-0040 7

{¶ 27} Both Scott and Carrie Bunting acknowledged at the legal custody hearing

that they were willing to respect Appellant-Mother’s right to reasonable visitation and the

other residual parenting rights entitled to her. (T.at 19, 28).

{¶ 28} The Guardian ad Litem Michael Connick also gave his recommendation that

legal custody of D.H. be granted to Scott and Carrie Bunting. (T. at 59). He expressed

concerns about Appellant-Mother’s drug use and mental health and urged that any

visitation with D.H. be supervised. Id.

{¶ 29} By Judgment Entry filed June 2, 2020, the trial court found that reasonable

efforts had been made by MCCS to prevent the need for placement and removal of D.H.

from the home, and that it was in the best interest of the child for legal custody to be

granted to Scott and Carrie Bunting and protective supervision to be terminated.

{¶ 30} Appellant-Mother now appeals, raising the following assignment of error:

ASSIGNMENT OF ERROR

{¶ 31} "I. THE TRIAL COURT ERRED WHEN IT AWARDED LEGAL CUSTODY

AND TERMINATING [SIC] PROTECTIVE SUPERVISION.”

I.

{¶ 32} In her sole assignment of error, Appellant-Mother argues the trial court erred

in awarding legal custody of the minor child to Scott and Carrie Bunting. We disagree.

STANDARD OF APPELLATE REVIEW

{¶ 33} Importantly, the award of temporary custody is “not as drastic a remedy as

permanent custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7. See also

In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the award

of temporary custody does not divest parents of their residual parental rights, privileges, Muskingum County, Case No. CT2020-0040 8

and responsibilities. In re C.R. at ¶ 17. Therefore, since the granting of temporary custody

does not divest a parent of his or her fundamental parental rights, the parent can petition

the court for a custody modification in the future. In re L.D. at ¶ 7.

{¶ 34} “A trial court has broad discretion in proceedings involving the care and

custody of children.” In re Mullen, 129 Ohio St.3d 417, 2011–Ohio–3361, ¶ 14. We review

the award of legal custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th

Dist. No. 03AP–445, 2003–Ohio–6309, ¶ 13; In re N.F., 10th Dist. No. 08AP–1038, 2009–

Ohio–2986, ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455 (7th Dist.). Abuse of

discretion connotes more than an error of law or judgment; rather, it implies that the trial

court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

{¶ 35} Unlike in a permanent custody proceeding where a juvenile court's standard

of review is by clear and convincing evidence, the standard of review in legal custody

proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.

2013CA0081, 2013CA0082, 2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006–

12–105, 2007–Ohio–3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552

(7th Dist.2001).

{¶ 36} R.C. §2151.011(B)(21) defines “legal custody” as “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...” In

addition, R.C. §2151.011(B)(55) defines “temporary custody” as “legal custody of a child Muskingum County, Case No. CT2020-0040 9

who is removed from the child's home, which custody may be terminated at any time at

the discretion of the court * * *.”

{¶ 37} In this type of dispositional hearing, the focus is on the best interest of the

child. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re P.S., 5th

Dist. No.2012CA00007, 2012–Ohio–3431. Despite the differences between a disposition

of permanent custody and legal custody, some Ohio courts have recognized “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., 9th Dist. No. 24317,

2009–Ohio–333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17; In

re S.D. 5th Dist. Stark Nos. 2013CA0081, 2013CA0082, 2013-Ohio-5752, ¶ 33 .

{¶ 38} R.C. §2151.414(D) sets forth factors to be considered in making a

determination regarding the best interest of the child. These factors include, but are not

limited to, the following:

(1) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster caregivers, 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, including whether the child has

been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two month period ending on or after March 18, 1999; Muskingum County, Case No. CT2020-0040 10

(4) The child's need for a legally secure placement and whether that

type of placement can be achieved without a grant of permanent custody to

the agency;

(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

{¶ 39} In the case at bar, the trial court found, based on the testimony and evidence

presented at the June 2, 2020, hearing, that Appellant-Mother failed to substantially

remedy the condition which caused the child to be placed outside the home; that the child

was placed in the temporary custody of Scott and Carrie Bunting on April 18, 2019, where

he has remained since, that “the child is now in a safe and loving home and that all of

basic and extra ordinary needs are being met by Scott and Carrie Bunting and that

continuation in this home is in the best interest of the minor child.” (JE at 3).

{¶ 40} In support of its decision, the trial court found that Appellant-Mother failed

to complete parenting classes, failed to complete substance abuse treatment, failed to

complete mental health treatment, and failed to complete domestic violence counseling.

(JE at 2-3). The court further found that Appellant-Mother tested positive for amphetamine

and methamphetamine on September 3, 2019, and failed to show for twenty-five (25)

drug screenings. (JE at 2). The court found that Appellant-Mother has a history of

domestic violence and was charged with same during the pendency of this case. Id.

Additionally, the court found that Appellant-Mother does not have her own housing and

has failed to prove that she is employed. Id.

{¶ 41} Upon thoroughly reviewing the record, we find that there was competent,

credible evidence supporting the trial court's determination that not returning D.H. to the Muskingum County, Case No. CT2020-0040 11

custody of Appellant-Mother was in the best interest of the child. In light of the trial court's

broad discretion in custody determinations, we cannot say that the trial court abused its

discretion in granting legal custody of D.H. to Scott and Carrie Bunting.

{¶ 42} The judgment of the Court of Common Pleas, Juvenile Division, Muskingum

County, Ohio, is affirmed.

By: Wise, J.

Baldwin, P. J., and

Delaney, J., concur.

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