In re D.L.

2024 Ohio 809

• Court: Ohio Court of Appeals
• Decided: March 6, 2024
• Docket: 30854
• Status: Published

Opinion

[Cite as In re D.L., 2024-Ohio-809.]

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

IN RE: D.L. C.A. No. 30854

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 22 04 0382

DECISION AND JOURNAL ENTRY

Dated: March 6, 2024

SUTTON, Judge.

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

of Common Pleas, Juvenile Division, that placed her minor child in the legal custody of the child’s

maternal grandmother (“Grandmother”). This Court affirms.

I.

{¶2} Mother is the biological mother of D.L., born May 15, 2015. The child’s father

(“Father”) did not appeal from the trial court’s judgment.

{¶3} On April 14, 2022, Summit County Children Services Board (“CSB”), filed a

complaint to allege that D.L. was an abused, neglected, and dependent child because of a history

of substance abuse and domestic violence in the home. At that time, the two adults living in the

home were Mother and her long-time partner, T.A.; and the alleged domestic violence was

perpetrated by T.A. against Mother. The complaint further alleged that D.L. had been injured

physically and emotionally during the ongoing incidents of domestic violence. 2

{¶4} With Mother’s agreement, the juvenile court later adjudicated D.L. a dependent

child. Following a dispositional hearing, the trial court placed D.L. in the temporary custody of

CSB and adopted the case plan as an order of the court. Throughout this case, D.L. resided in the

home of Grandmother and engaged in trauma therapy to address her past exposure to domestic

violence. D.L. adjusted well to living in Grandmother’s home.

{¶5} The case plan goals for Mother focused on her addressing her mental health,

domestic violence, and substance abuse problems. Mother obtained a combined psychological

and substance abuse assessment. The evaluator diagnosed Mother with post-traumatic stress

disorder and cannabis use disorder, and further noted that Mother exhibited symptoms of bipolar

disorder. Mother’s assessment required her to complete a psychiatric evaluation, to further explore

her symptoms of bipolar disorder, and to engage in intensive outpatient counseling to address her

substance abuse and anger management problems. Mother did not obtain a psychiatric assessment

and did not follow through with consistent counseling. She attended a few counseling sessions

but was ultimately terminated from the agency for noncompliance. According to Mother’s

counselor, Mother made no progress toward achieving her counseling goals.

{¶6} Mother was also required to submit to random drug screens three to four times per

month. During the following year, Mother submitted only four samples for drug testing, three of

which tested positive for marijuana and either cocaine or fentanyl. Mother also failed to maintain

contact with the caseworker.

{¶7} CSB eventually moved for D.L. to be placed in the legal custody of Grandmother.

Mother had previously filed her own motion for legal custody or, alternately, a six-month

extension of temporary custody. Following a hearing on the alternative dispositional motions, the

magistrate decided that D.L. would be placed in the legal custody of Grandmother. The trial court 3

adopted the decision the same day, pending the filing of timely objections. Mother filed objections

to the magistrate’s decision, raising the same challenges that she now raises on appeal. The trial

court overruled her objections and placed D.L. in the legal custody of Grandmother. Mother

appeals and raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE PLACED IN THE LEGAL CUSTODY OF [GRANDMOTHER] AS THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶8} The first assignment of error is that the trial court erred in placing D.L. in the legal

custody of Grandmother. Mother implicitly argues that the trial court should have instead returned

the child to her legal custody. Although she asserts that CSB failed to present clear and convincing

evidence to support its motion, that is not the appropriate evidentiary standard. 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. Moreover, as a party moving for the child to be returned to her legal custody,

Mother had her own burden of proving by a preponderance of the evidence that placement of the

child in her legal custody was in the child’s best interest. In re A.W., 9th Dist. Lorain No. 4

20CA011671, 2021-Ohio-2975, ¶ 17, citing In re T.R., 9th Dist. Summit Nos. 25179 and 25213,

2010-Ohio-2431, ¶ 27.

{¶9} 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.

{¶10} “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. No specific test or set of criteria is set forth by statute regarding an award of legal custody,

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, ¶ 18,

quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23.

{¶11} “[T]he primary focus at the legal custody hearing was on the current parenting

ability of each potential custodian and whether it was in the best interest of the child[] to be

permanently placed in the legal custody of [either] of them.” In re K.C., 9th Dist. Summit Nos.

26992 and 26993, 2014-Ohio-372, ¶ 20. The juvenile court is guided by the best interest factors

enumerated in R.C. 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 include the interaction and interrelationships of the child, the child’s wishes, the 5

custodial history of the child, and the child’s need for permanence. R.C. 2151.414(D)(1)(a)-(d);

see also In re B.C., 9th Dist. Summit Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 16. R.C.

2151.414(D)(1)(e) also requires the trial court to consider whether any of the factors set forth in

R.C. 2151.414(E)(7)-(11) apply to this case, but those factors are not relevant here.

{¶12} The juvenile court may also apply the best interest factors in R.C. 3109.04(F)(1).

In re K.A., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860, 2017-Ohio-1, ¶ 17. While many

factors overlap with those set forth in R.C. 2151.414(D)(1), separate factors that are relevant in

this case are the child’s adjustment to their “home, school, and community[]” and the proposed

custodian’s likelihood to honor and facilitate visitation or parenting time. R.C.

3109.04(F)(1)(d),(f).

{¶13} Beginning with the child’s interaction with each potential caregiver and her

expressed wishes, Mother emphasizes evidence that D.L. interacted well with her during visits and

that D.L. wanted to maintain a relationship with Mother. This Court recognizes that Mother’s

fundamental parental rights are at issue in this case, but must emphasize that the trial court’s

judgment granting legal custody to Grandmother was not akin to a termination of Mother’s

parental rights, as it does preserve the family relationship between Mother and D.L. In re L.S., 9th

Dist. Lorain No. 21CA011770, 2022-Ohio-3281, ¶ 10. The juvenile court’s disposition of legal

custody “is a less drastic disposition than permanent custody” because Mother retains her “residual

parental rights, privileges, and responsibilities.” Id.; R.C. 2151.011(B)(21). Those rights include,

“but [are] not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the

privilege to determine the child’s religious affiliation, and the responsibility for support.” R.C.

2151.011(B)(50). 6

{¶14} Mother’s burden on appeal is to demonstrate that these two best interest factors (the

interaction between Mother and D.L. and the child’s wishes) supported returning D.L. to her legal

custody rather than placing the child in the legal custody of Grandmother. At the hearing, the trial

court heard substantial evidence that, although Mother and D.L. got along well in a supervised

setting, Mother was never permitted to have more frequent or unsupervised visits with D.L.

because she had not complied with the reunification requirements of the case plan.

{¶15} Moreover, although D.L. had expressed a desire to continue to see Mother, she had

informed the caseworker that she wanted to stay in Grandmother’s home because she felt safe

there. The guardian ad litem testified that D.L. was comfortable in Grandmother’s home and that

it was in her best interest to remain there.

{¶16} D.L. had been living in a temporary placement for one year and needed a legally

secure permanent placement. Grandmother was fully prepared to provide her with a permanent

home. Both the caseworker and the guardian ad litem agreed that Grandmother’s home was

appropriate for D.L., the child was doing well there, and they supported placing the child in

Grandmother’s legal custody.

{¶17} Mother points to a few facts mentioned at the hearing to support her argument that

Grandmother did not provide D.L. with an appropriate home: Grandmother supplements her

disability income with part-time employment; Grandmother sometimes takes D.L. to work with

her; and Grandmother has a boyfriend who has not been investigated by CSB. These facts were

not developed in any detail at the hearing and Mother has failed to demonstrate that this evidence

undermined the trial court’s determination that Grandmother was providing D.L. with an

appropriate home. 7

{¶18} Grandmother had been driving occasional delivery runs for Door Dash to

supplement her income. In response to one question, Grandmother admitted that she sometimes

took seven-year-old D.L. in the car with her when she made deliveries. No further questions about

D.L. riding with her were asked. Notably, there was no evidence presented about how often

Grandmother did this or that D.L. riding with Grandmother disrupted her sleep, school, and/or

homework schedules or that it otherwise posed any risk to her safety or wellbeing.

{¶19} Similarly, the trial court heard minimal testimony about Grandmother’s boyfriend

at the hearing. Although Mother asserts in her appellate brief that the boyfriend was “a prevalent

participant” in D.L.’s life, no such evidence was presented at the hearing. To support her assertion

that Grandmother’s boyfriend had frequent contact with D.L., Mother relies solely on the

caseworker’s answer to the magistrate’s question, “What about a boyfriend of [Grandmother]?”

The caseworker responded only that Grandmother had “mentioned” a boyfriend, he did not live in

Grandmother’s home, the caseworker had never met him, and CSB had not investigated him

because no one, including the child and Mother, had expressed any concerns about him.

{¶20} The caseworker further testified that she had no concerns that Grandmother “would

allow someone that’s unsafe to be around [D.L.]” Mother’s trial counsel could have further

questioned the caseworker about Grandmother’s boyfriend but did not. Moreover, when

Grandmother testified at the hearing, no one questioned her about her boyfriend. There is nothing

in the record to explain how long Grandmother had known this man; how often she saw him; or

how much time, if any, that D.L. had spent with the man.

{¶21} The record does not support Mother’s assertions that these undeveloped facts

undermined Grandmother’s ability to provide appropriate care for D.L. The caseworker and the

guardian ad litem both testified that they had no concerns about D.L.’s safety and wellbeing in 8

Grandmother’s care and that they believed that placing D.L. in Grandmother’s legal custody was

in the child’s best interest.

{¶22} On the other hand, Mother supported her legal custody motion only with her own

testimony at the hearing. Several months earlier, she had waived her right to a contested hearing

and agreed to the adjudication of D.L. as a dependent child. At the final hearing, however, Mother

blamed the removal of D.L. from her custody on CSB “harassing” her and punishing her when she

had done nothing wrong. Regarding her progress toward reunification, Mother testified that she

had secured housing and was trying to comply with the requirements of the case plan. She admitted

that, nearly one year after the case plan was adopted, she had not yet engaged in consistent

substance abuse or mental health counseling. Mother explained that she had scheduled an

appointment at a different mental health agency and planned to start engaging in counseling there.

She testified that she wanted an extension of temporary custody and a new caseworker so she could

“start off fresh and really do the case plan[.]” Through her own testimony, Mother essentially

conceded that she had not made substantial progress on the case plan and was not prepared to

provide D.L. with a stable home at that time.

{¶23} Finally, Mother emphasizes that she and Grandmother have a contentious

relationship and suggests that Grandmother will not facilitate an ongoing relationship between

Mother and D.L. Grandmother admitted at the hearing that she and Mother have a poor

relationship, which was why she had requested during this case that Mother’s visits with D.L. be

supervised by someone else. Grandmother testified that she wanted D.L. and Mother to maintain

a positive relationship and would respect Mother’s ongoing residual parental rights, as she had

done throughout this case. Both the caseworker and the guardian ad litem opined that Grandmother 9

would continue to facilitate Mother’s right to regularly visit with D.L. Grandmother testified that

she was willing to help pay for the visits to be supervised at a private agency.

{¶24} Given the evidence presented at the hearing, Mother has failed to demonstrate that

the trial court lost its way by concluding that legal custody of D.L. to Grandmother was in the

child’s best interest. See Eastley at ¶ 20. Mother’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED [ITS] DISCRETION WHEN IT DENIED MOTHER’S MOTION FOR [A] FIRST SIX-MONTH EXTENSION.

{¶25} Mother’s second assignment of error is that the trial court abused its discretion by

failing to grant a first six-month extension of temporary custody. R.C. 2151.415(D)(1) authorizes

the trial court to grant a first extension of temporary custody if it finds, by clear and convincing

evidence, that:

the extension is in the best interest of the child, there has been significant progress on the case plan of the child, and there is reasonable cause to believe that the child will be reunified with one of the parents or otherwise permanently placed within the period of extension.

{¶26} Through the disposition of Mother’s first assignment of error, this Court overruled

her challenge to the evidence supporting the trial court’s determination about D.L.’s best interest.

Because the trial court found that a permanent disposition of legal custody to Grandmother was in

the best interest of D.L., an extension of temporary custody was not. See In re J.M., 9th Dist.

Summit No. 30258, 2022-Ohio-3638, ¶ 32.

{¶27} Moreover, there was not clear and convincing evidence presented at the hearing

that Mother had made “significant progress on the case plan of the child.” In fact, as explained

above, the evidence was not disputed that Mother had not begun to consistently address her mental

health or substance abuse problems, which were primary reunification requirements of the case 10

plan. For that reason, the trial court concluded that Mother had not made significant case plan

progress, which was required for 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 FAILED TO FIND THAT THE AGENCY DID NOT PROVIDE REASONABLE REUNIFICATION EFFORTS.

{¶28} Finally, Mother challenges the trial court’s finding that CSB proved that it “made

reasonable efforts to prevent the removal of the child from the child’s home, to eliminate the

continued removal of the child from the child’s home, or to make it possible for the child to return

safely home.” R.C. 2151.419(A)(1). Mother does not dispute that CSB made referrals to service

providers for Mother and even scheduled some appointments for her. Mother, however, failed to

follow through with those services on a consistent basis. On the day of the hearing, Mother

testified that she had scheduled an appointment with a different mental health service provider and

planned to start engaging in services there. The evidence before the trial court demonstrated that

Mother’s failure to make progress on the case plan was the result of her own inaction, not a lack

of reasonable efforts by CSB. See In re Z.K., 9th Dist. Summit Nos. 30478, 30479, and 30480,

2023-Ohio-2150, ¶ 31.

{¶29} The only lack of reunification efforts that Mother alleges on appeal is that the

caseworker failed to maintain contact with her to keep her informed about the wellbeing of D.L.

Mother points to one isolated statement made during the caseworker’s testimony that she had not

been in contact with Mother for the past several months. This Court must consider the

caseworker’s statement within the context of her full testimony. The caseworker further testified

that she attempted to contact Mother numerous times during that period but had been unable to 11

reach her. The caseworker explained that Mother did not respond to her email messages, did not

appear for their scheduled appointments or home visits, and she kept changing phone numbers and

did not keep the caseworker apprised of her current number. This evidence fails to demonstrate

a lack of reasonable reunification efforts by CSB. Mother’s third assignment of error is overruled.

III.

{¶30} 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.

Costs taxed to Appellant.

BETTY SUTTON FOR THE COURT 12

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

APPEARANCES:

JASON D. WALLACE, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant Prosecuting Attorney, for Appellee.

JAMES K. REED, Attorney at Law, for Appellee.

BETH BLACKMORE, Attorney at Law, for Appellee.

SALLY PRENTICE, Guardian ad Litem.