In re J.C.

2021 Ohio 1133

• Court: Ohio Court of Appeals
• Decided: April 5, 2021
• Docket: 15-20-05 15-20-06
• Status: Published

Opinion

[Cite as In re J.C., 2021-Ohio-1133.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

IN RE: CASE NO. 15-20-05

J.C.,

ADJUDICATED DEPENDENT CHILD. OPINION [ALICIA C. - APPELLANT]

IN RE: CASE NO. 15-20-06

T.C.,

Appeal from Van Wert County Common Pleas Court Juvenile Division Trial Court Nos. 21910013 and 21920014

Judgment Affirmed

Date of Decision: April 5, 2021

APPEARANCES:

Gregory W. Unterbrink for Appellant

Matthew A. Miller for Appellee Case Nos. 15-20-05 and 15-20-06

WILLAMOWSKI, P.J.

{¶1} Respondent-appellant Alicia C. (“Alicia”) brings this appeal from the

judgments of the Court of Common Pleas of Van Wert County, Juvenile Division

granting legal custody of the children to a maternal aunt, Tina C. (“Tina”). Alicia

claims on appeal that the trial court’s judgments were based upon a “pre-judgment”

by the Van Wert County Department of Job and Family Services (“the Agency”)

and that the Agency was acting too swiftly to close the case. For the reasons set

forth below, the judgments are affirmed.

{¶2} In March of 2019, Alicia gave birth to twin boys, J.C. and T.C.

(collectively known as “the children”). Doc. 1. While still at the hospital, the

Agency filed a complaint alleging that the children were dependent and neglected

and requesting temporary custody of them. Doc. 1. The motion alleged that Alicia

had extensive mental health issues that had caused the prior removal of her older

twins. Doc. 1. A shelter care hearing was held on April 3, 2019. Doc. 10. At that

time, the trial court awarded temporary custody of the children to the Agency. Doc.

10. A case plan was put into place which required Alicia to 1) address her mental

health issues to allow her to parent in a safe manner, 2) maintain stable housing, and

3) utilize services to address her cognitive delays. Doc. 21.

{¶3} On April 18, 2019, an adjudicatory hearing was held. Doc. 36. The

Agency withdrew the claim that the children were neglected. Doc. 36. Following

the hearing, the trial court determined that the children were dependent and

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continued temporary custody with the Agency. Doc. 36. The trial court noted at

the disposition hearing that the Agency was requesting that temporary legal custody

be granted to either Tina or to the Agency. Doc. 74. The Guardian Ad Litem

(“GAL”) recommended that temporary legal custody be granted to Tina. Doc. 74.

Alicia requested that temporary legal custody be granted to either Bonnie H.

(“Bonnie”), Alicia’s mother and the guardian of her older twins, or to Tina. Doc.

74. Bonnie, as the guardian of Alicia and the older siblings, requested that the

children be placed with her or, in the alternative, Tina. Doc. 74. The trial court

ordered that temporary legal custody of the children be granted to Tina under the

protective supervision of the Agency. Doc. 74.

{¶4} The Agency conducted a review of the case plan on September 24,

2019. Doc. 96. The Agency noted that Alicia had made some progress in her

parenting by learning to recognize medical issues with the children and seeking

appropriate medical aid. Doc. 96. However, the Agency also noted that Alicia’s

progress was insufficient as to her adherence to her mental health treatment and

housing. Doc. 96. The Agency recommended that temporary legal custody

continue with Tina. Doc. 96.

{¶5} On February 24, 2020, the Agency filed a motion to modify the

temporary custody of the children to an order of legal custody to Tina. Doc. 152.

The basis for the motion was the continued concern the Agency had regarding

Alicia’s cognitive ability to care for the children long term. Doc. 152. While this

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motion was pending, the Agency completed another administrative review of the

case plan. Doc. 157. The review shows that Alicia continued to make some

progress in addressing her mental health issues and her parenting issues. Doc. 157.

The review also indicated that Alicia was making some progress in maintaining

housing and engaging services, but that she needed to comply with the

recommendations of the various service providers. Doc. 157. Following the review,

the trial court granted a six month extension of the Agency’s temporary custody.

Doc. 168. On May 4, 2020, Tina filed her statement of understanding as to what it

would mean if she was named the legal custodian of the children. Doc. 178. A

hearing on the motion was held on May 4 and May 29, 2020. Doc. 183. The trial

court noted that Alicia and Bonnie opposed the motion, but no one else filed a

motion seeking legal custody of the children. Doc. 183. The trial court also noted

that the GAL recommended that the motion be granted. Doc. 183. After

considering the best interest of the children, the trial court granted the motion to

award legal custody of the children to Tina and to terminate the protective

supervision of the Agency. Doc. 183. Alicia appeals from this judgment and raises

the following assignments of error.

First Assignment of Error

Whether [Alicia] was denied her right to be reunified with her children by reason of a pre-judgment of her condition and circumstances by [the Agency], amounting to bad faith, despite her efforts to comply with the family service plan.

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Second Assignment of Error

The trial court erred in not determining whether [the Agency] was proceeding too swiftly in light of [Alicia’s] successes in the “Help Me Grow” program.

Both assignments of error argue that the trial court erred in granting the Agency’s

motion to award legal custody of the children to Tina. Thus, we will address them

together.

Legal Standard

{¶6} At the outset, this court notes that this is not a case involving the

granting of permanent custody to the Agency, but is instead a grant of legal custody

to a third party. Where permanent custody would legally terminate all parental

rights, legal custody does not. R.C. 2151.011. “‘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). In other words, legal custody does

not divest parents of all their rights and either parent may petition the court in the

future for a modification of custody. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-

1191, ¶ 17, 843 N.E.2d 1188. Because the parent’s right to regain custody is not

permanently foreclosed, the standard used by the trial court in making a decision in

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a legal custody proceeding is merely preponderance of the evidence. In re B.P., 3d

Dist. Logan Nos. 8-15-07, 8-15-08, 2015-Ohio-5445, ¶ 19.

Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it outweighs in your mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value.

2 CR Ohio Jury Instruction 207.21. “In a dispositional hearing involving legal

custody, the focus is on the best interest of the child.” In re B.P, supra at ¶ 19.

{¶7} R.C. 2151.353 provides that one disposition a trial court may make for

a child that has been adjudicated as dependent is to award legal custody of the child

to any person who was identified as a proposed legal custodian and who completes

the appropriate statement. R.C. 2151.353(A)(3). The statute does not set forth

specific factors to be considered in making the determination of best interest of the

child. In re B.P., supra. However, the factors set forth in R.C. 2151.414(D) for

determining whether a grant of permanent custody is in the best interest of the child

have been held to be “instructive.” Id. These factors include the interaction of the

child with the various parties, the wishes of the child as told by the child or the GAL,

the custodial history of the child, and the child’s need for a legally secure placement.

R.C. 2151.414(D). A decision reached by a trial court concerning a motion for legal

custody is within the sound discretion of the trial court and will not be reversed

absent an abuse of that discretion. In re B.P., supra at ¶ 21.

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Evidence Presented

{¶8} A review of the record in this case shows that the following testimony

was presented at the hearing. The Agency presented the following witnesses.

{¶9} Courtney Duer (“Duer”) testified that she is a case worker for the

Agency. Tr. 4. Duer indicated that the children were born in March of 2019, and

were placed in the temporary legal custody of Tina in July of 2019. Tr. 5. The

children were doing well with Tina and all of their needs were met by her. Tr. 5.

In her opinion, the continued placement with Tina would be appropriate. Tr. 6.

Duer testified that Alicia had completed the mental health assessment, but had not

followed up with the recommended treatment. Tr. 7. Alicia had completed the

initial portion of the parenting assessment. Tr. 7. Alicia was also in the process of

completing a new assessment with the Board of Developmental Disabilities to

determine what services they can provide for her. Tr. 7. Duer indicated that Alicia

was working with Help Me Grow during her visits with the boys to improve her

parenting skills. Tr. 8. Alicia’s bills were consistently being paid and Bonnie was

listed as a payee on Alicia’s accounts to assist her. Tr. 8. Duer testified that in her

opinion, the children could not be placed with Alicia at that time or in the near

future. Tr. 9. This opinion was based upon her history with the Agency, her

cognitive delays, her historical issues with anger, and her failure to comply with the

medicines prescribed. Tr. 9. Alicia at that time was living in a small one bedroom

apartment and had no beds or room for the children. Tr. 9. Duer also noted that

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Alicia had expressed concern about the ability to maintain and heat the apartment.

Tr. 9. Duer testified that she believed it would be in the best interest of the children

to be placed in the legal custody of Tina and that the Agency’s protective

supervision be terminated.

{¶10} On cross-examination, Duer testified that her opinions are partially

based upon her observations of how Alicia parents during visits that she has

witnessed and from what Tina has told her about her observations. Tr. 17. Duer

indicated that she did not think Alicia was not paying attention to the children, but

that her cognitive limitations interfered with her ability to parent twin toddlers on

her own. Tr. 18.

{¶11} Tina testified that she resides in a two bedroom apartment with the

children. Tr. 32. Tina indicated that she would like for the children to be placed

with her as she would know they would be safe and their needs would be met. Tr.

33. She also testified that it would not be a hardship on her. Tr. 33. According to

Tina, the children were doing well, were happy, and were progressing well. Tr. 34.

Tina testified that she tries to update Alicia daily as to what the children are doing

that day. Tr. 35. When questioned if she would facilitate visits with Alicia, Tina

indicated she absolutely would do so. Tr. 36. Tina also indicated that she takes the

children to visit their older siblings at Bonnie’s home. Tr. 40. Tina’s concern with

Alicia is that she did not always see to the children’s needs when they arose. Tr.

37. Tina testified that on one occasion, J.C. needed a breathing treatment and half

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way through it, Alicia got “irritated” and did not want to complete it. Tr. 49. In her

opinon, Alicia does not understand the responsibility necessary to care for the

children. Tr. 49.

{¶12} After those witnesses for the Agency, Alicia presented the testimony

of Samantha Ball (“Ball”). Ball testified that she works for Help Me Grow and is

working with Alicia to help her get the children returned. Tr. 56. Alicia was

working on learning developmental information about the children, stress

management, anger management, and setting goals for herself and the children. Tr.

56-57. According to Ball, Alicia was an active participant in the sessions and was

very interactive with the children during the visits. Tr. 57. In Ball’s opinion, Alicia

was able to parent the children and she had no concerns. Tr. 57.

{¶13} On cross-examination Ball testified that Bonnie and the older siblings

were present at some of the visits. Tr. 59. She did not see any inappropriate

behavior by the older siblings towards the younger children. Tr. 59. The behavior

she observed was “normal” for five year old children and they just needed reminded

how little the babies were. Tr. 59. Ball admitted that she had not seen Alicia in a

setting where she was caring for the children with no one else present to assist her

if needed. Tr. 66.

{¶14} Bonnie testified that she is Alicia’s mother and that she has

guardianship of both Alicia’s person and estate. Tr. 76. Bonnie also has legal

custody of Alicia’s older children. Tr. 76. Bonnie testified that actual physical

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contact between Alicia and the children has not occurred in months because of

COVID, so they were restricted to video visits with one year old children. Tr. 85.

According to Bonnie, the children should have been placed with her so that Alicia

could visit whenever she wanted. Tr. 86.

{¶15} On cross-examination, Bonnie admitted that Alicia was not capable of

parenting the children on a full-time basis. Tr. 88. She did testify that Alicia was

learning from her classes and indicated that she had completed a parenting class

from the Van Wert Heath Department. Tr. 89. Bonnie admitted that Tina is meeting

the needs of the children. Tr. 99.

{¶16} In this matter, the trial court determined that it would be in the best

interests of the children to be placed in the legal custody of Tina. The trial court, in

reaching this conclusion, discussed the various facts in this case. The trial court also

specifically noted that the only motion seeking legal custody was the one filed on

behalf of Tina. All of the findings of the trial court are supported by competent,

credible evidence in the record. Thus, this Court does not find that the trial court

abused its discretion in granting legal custody to Tina.

{¶17} The assignments of error also allege that the trial court erred by

moving too swiftly in terminating the case and granting legal custody to Tina instead

of extending the case to give Alicia more time to complete the case plan. Alicia

also alleges that the Agency acted in bad faith by prejudging her case. A temporary

custody order terminates one year after the date the child was first placed into shelter

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care unless a motion is filed ot extend it. R.C. 2151.353(G). Additionally, a party

can file a motion to terminate the order of temporary custody. R.C. 2151.353(H).

Although the case can be extended for an additional time, there is no requirement

that the extension must occur and the determination as to whether the extension or

termination is in the best interest of the child is left to the trial court’s discretion.

Matter of C.K., 5th Dist. Muskingum No. CT2020-0027, 2020-Ohio-5437, ¶ 21.

Thus, the decision will only be reversed if the decision is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

“An abuse of discretion exists if the court’s decision regarding the best interests is

not supported by competent credible evidence.” In re D.M., 1st Dist. Hamilton No.

C-140648, 2015-Ohio-3853.

{¶18} Here, the children were placed in shelter care on April 3, 2019. Thus,

a party needed to file a motion to extend temporary care before the one-year mark.

The only motion filed before that time was Tina’s motion for legal custody and to

have protective supervision terminated. The trial court did grant a six-month

extension of the temporary custody in order to have time to address the motion for

legal custody on April 2, 2020. Doc. 168. A review of the record shows that neither

Alicia nor Bonnie filed any motion for Bonnie to have legal custody. Although the

trial court could have extended the time for Alicia to continue to work the case plan,

the trial court was under no obligation to do so. Pursuant to R.C. 2151.353, the trial

court could have awarded legal custody of the children and closed the case as soon

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as the initial disposition following adjudication if all the required papers had been

filed. Additionally, although the statute does not specifically set forth factors, the

custodial history of the children and that of older siblings would be a reasonable

factor for the trial court to consider when determining the best interests of the

children. Thus the trial court could reasonably consider Alicia’s past history with

the Agency regarding the older siblings when determining the best interests of the

younger children. Considering all of the evidence before the trial court, this court

does not find that the trial court’s determination that the best interests of the children

would be served by granting Tina’s motion for legal custody was an abuse of

discretion. The assignments of error are overruled.

{¶19} Having found no error prejudicial to the Appellant in the particulars

assigned and argued, the judgments of the Court of Common Pleas of Van Wert

County, Juvenile Division, are affirmed.

Judgments Affirmed

MILLER and SHAW, J.J., concur.

/hls

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