In re L.H.

2021 Ohio 3521

Opinion

[Cite as In re L.H., 2021-Ohio-3521.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

: : IN RE: L.H. : Appellate Case No. 29119 : : Trial Court Case No. 2017-4297 : : (Appeal from Common : Pleas Court – Juvenile Division) : :

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OPINION

Rendered on the 1st day of October, 2021.

MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218 Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee, MCCS

SARA M. BARRY, Atty. Reg. No. 0090909, 301 West First Street, Suite 270, Dayton, Ohio 45402 Attorney for Appellant, Mother

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HALL, J. -2-

{¶ 1} Mother appeals from the trial court’s judgment entry overruling her

objections to a magistrate’s decision and awarding appellee Montgomery County Children

Services (“MCCS”) permanent custody of Mother’s child, L.H.

{¶ 2} Mother advances four assignments of error. First, she contends awarding

MCCS permanent custody was against the weight of the evidence and not in the child’s

best interest. Second, she claims MCCS failed to make reasonable efforts to reunify her

with L.H. Third, she asserts that L.H.’s guardian ad litem did not adequately investigate

the child’s best interest. Fourth, she argues in the alternative that the trial court should

have awarded legal custody to L.H.’s maternal aunt.

{¶ 3} The record reflects that MCCS filed a dependency complaint in July 2017,

alleging that L.H. had engaged in sexual contact with a sibling in Mother’s home. At the

time of the complaint, Mother resided with and was the adoptive parent of several siblings

with developmental disabilities. They included L.H and the minor victim of the touching.

As a result of the sexual touching, MCCS obtained interim temporary custody and,

following a delinquency adjudication, the agency was awarded temporary custody.

{¶ 4} Upon being removed from Mother’s home, L.H. initially was placed in the

maternal aunt’s home. After spending several months there and undergoing an

assessment, L.H. was placed at the Hittle House, a residential sex-offender treatment

facility in Columbus. L.H. spent approximately two years at Hittle House, where he made

inconsistent progress with relapses that involved inappropriate conversations and

inappropriate touching of other residents and a dog. After failing to make sustained

progress, L.H. was transferred at Hittle House’s request. No other Ohio residential -3-

treatment facility would accept the child, so he was sent to the Piney Ridge treatment

center in Fayetteville, Arkansas. L.H. spent six months at Piney Ridge, where he again

made inconsistent progress and engaged in manipulative behavior and inappropriate

touching of peers. L.H. was removed from Piney Ridge after an investigation revealed

concerns about the facility’s use of restraints and sedation, poor supervision of residents,

cleanliness, and food quality. Upon leaving Piney Ridge, L.H. went to Perimeter of Forest

City, another Arkansas residential-treatment facility. At the time of the permanent custody

hearing below, L.H. had been at Perimeter of Forest City for less than two months. The

child seemed to be adjusting well there, and MCCS had not received any negative reports.

{¶ 5} Following two extensions of temporary custody, MCCS filed its permanent-

custody motion in May 2019. Mother responded with her own motion for legal custody.

Alternatively, she requested a disposition of legal custody to her sister, L.H.’s aunt, with

whom the child previously had resided. The matter proceeded to a March 3, 2020 hearing

before a magistrate. Witnesses at the hearing included a caseworker, Mother, L.H.’s aunt,

and the guardian ad litem. Based on the evidence presented, the magistrate filed an April

20, 2020 decision sustaining MCCS’s motion, awarding the agency permanent custody,

and terminating Mother’s parental rights. Mother filed objections and, after obtaining a

transcript, supplemental objections. Mother argued (1) the statutory best-interest factors

supported returning L.H. to her, (2) her due process rights were violated when the

guardian ad litem’s report was not filed or exchanged until half way through the custody

hearing, (3) the guardian ad litem’s investigation was deficient, (4) the magistrate erred

in excluding evidence and testimony about L.H.’s placement at Piney Ridge, and (5) the

magistrate should have awarded legal custody to L.H.’s aunt. The trial court overruled -4-

Mother’s objections in an April 28, 2021 ruling and found that awarding MCCS permanent

custody was in the child’s best interest. This appeal followed.

{¶ 6} In her first assignment of error, Mother contends awarding MCCS permanent

custody was against the weight of the evidence and not in L.H.’s best interest. She asserts

that returning legal custody to her was in the child’s best interest and that the relevant

statutory factors supported such a conclusion.

{¶ 7} “R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency.” In re S.J., 2d

Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14. “The statute requires the court to

find, by clear and convincing evidence, that: (1) granting permanent custody of the child

to the agency is in the best interest of the child; and (2) either the child (a) cannot be

placed with either parent within a reasonable period of time or should not be placed with

either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is abandoned;

(c) is orphaned and no relatives are able to take permanent custody of the child; or (d)

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

agencies for twelve or more months of a consecutive twenty-two month period. R.C.

2151.414(B)(1).” Id.

{¶ 8} In determining a child’s best interest, R.C. 2151.414(D) directs the trial court

to consider all relevant factors, including: “(1) the interaction and interrelationship of the

child with the child’s parents, relatives, foster parents and any other person who may

significantly affect the child; (2) the wishes 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 -5-

a consecutive twenty-two-month period; (4) the child’s need for a legally secure

permanent placement and whether that type of placement can be achieved without a

grant of permanent custody to the agency; and (5) whether any of the factors in R.C.

2151.414(E)(7) through (11) are applicable.” Id. at ¶ 15.

{¶ 9} We review a trial court’s permanent-custody determination for an abuse of

discretion. In re S.F., 2d Dist. Montgomery No. 28606, 2020-Ohio-693, ¶ 42. A

permanent-custody determination is unreasonable, and may be reversed as an abuse of

discretion, if the record lacks clear and convincing evidence “by which the court could

have formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established.” In re A.U., 2d Dist. Montgomery

No. 22264, 2008-Ohio-186, ¶ 15; see also In re S.F. at ¶ 43-45.

{¶ 10} With the forgoing standards in mind, we find a lack of clear and convincing

evidence to support the trial court’s determination that awarding MCCS permanent

custody was in L.H.’s best interest. As a threshold matter, we note that the agency’s initial

involvement had nothing to do with any inappropriate care or conduct by Mother. The

record reflects that Mother adopted L.H. and the child’s siblings when L.H. was six months

old. (Hearing Tr. at 62.) MCCS became involved and filed a dependency complaint after

Mother herself reported that L.H. had acted out sexually with a sibling in Mother’s home.

(Id. at 37.) A case worker admitted that Mother had been completely cooperative and had

done everything asked of her. In the caseworker’s opinion, there was not “anything else

Mother could do right now” to regain custody. (Id. at 36.)

{¶ 11} MCCS’s concern was that L.H. had shown inconsistent progress and had

continued to act out sexually while in his residential-treatment programs. (Id.) The -6-

caseworker noted that if L.H. were returned to Mother “[h]e would be in the home with his

victim, who is delayed, as well as two other individuals who are delayed and have limited

ability to protect themselves.” (Id. at 22.) The caseworker explained that if MCCS obtained

permanent custody L.H. would complete his current treatment at the Arkansas facility and

then be placed for adoption. (Id. at 25, 37-38.) MCCS believed that this disposition was

in L.H.’s best interest. (Id. at 25-26.) The guardian ad litem testified and agreed with the

caseworker’s assessment. While recognizing a bond between Mother and L.H., the

guardian ad litem opined that awarding MCCS permanent custody was in the child’s best

interest because “it’s gonna be a long term treatment, if he’s ever getting out of treatment.”

(Id. at 89-90.) At the time of the hearing, L.H. was 13 years old and had been out of

Mother’s home for roughly three years. (Id. at 37, 56-57.)

{¶ 12} For her part, Mother agreed to keep L.H. in the Arkansas residential-

treatment program if she regained custody. Upon his eventual return home, the child

would have “a whole end of the house” to himself, including his own bedroom apart from

his siblings, who were ages 42, 22, 20, and 16 at the time of the hearing. (Id. at 50-51,

60.) Mother planned to keep the siblings safe by installing surveillance cameras and other

equipment in her kitchen, living room, hallway, and near the victim’s bedroom. (Id. at 56,

61.) Mother also had taught the victim to “speak up” about any issues, and she planned

to have L.H. continue with counseling if he returned home. (Id. at 56-57.) As for the other

siblings, Mother stated that L.H. had not had any issues with them. Nevertheless, Mother

had “put up walls” and doors to ensure their safety. (Id. at 57.) Finally, Mother noted that

she lived one mile from her sister, the aunt with whom L.H. had resided for several months

before entering residential treatment. Mother testified that L.H.’s aunt could provide -7-

assistance with the child. (Id. at 51.)

{¶ 13} L.H.’s aunt also testified at the hearing. She confirmed her ability to help

Mother with the child. L.H. stated that she had enjoyed a relationship with L.H. since his

adoption at six months of age. (Id. at 70.) She explained that L.H. had lived with her,

without any negative incidents, for four months after being removed from Mother’s home

and before entering a residential-treatment facility. (Id. at 70-71.) Consistent with Mother’s

alternative request for an award of legal custody to her sister, L.H.’s aunt testified that

she was willing to accept custody. (Id. at 71.) She was divorced and living alone but

recently had become engaged to be married. (Id. at 72, 76.) With regard to the lack of a

home study, the aunt testified that she had contacted MCCS “several times” about

completing it. (Id. at 75.) Her most recent contact had been the previous week. (Id. at 24.)

At the time of the hearing, the aunt and the caseworker had not found a mutually

agreeable time for a home visit. (Id. at 24, 72.) The aunt noted, however, that an MCCS

representative previously had been inside her home when L.H. lived with her for four

months. (Id. at 75.)

{¶ 14} Because MCCS’s temporary custody already had been extended twice and

L.H. had been in the agency’s custody for more than two years, the trial court essentially

had three custody options.1 First, it could terminate parental rights and award MCCS

permanent custody. Second, it could return legal custody of L.H. to Mother. Or third, it

1 See R.C. 2151.415(D)(4) (“No court shall grant an agency more than two extensions of temporary custody pursuant to division (D) of this section and the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of this section.”). -8-

could grant Mother’s alternative request and award legal custody to L.H.’s aunt.

{¶ 15} In our view, the evidence did not clearly and convincingly support the first

option. The pertinent R.C. 2151.414(D) factors included: (1) L.H.’s interaction with others,

including Mother, his aunt, his siblings, and “any other person who may significantly affect

the child”; (2) L.H.’s wishes; (3) L.H.’s custodial history; and (4) L.H.’s need for a legally

secure placement and whether such a placement could be achieved without awarding

MCCS permanent custody.

{¶ 16} With regard to the first factor, the record indicates that L.H. enjoyed a loving

and bonded relationship with his Mother, his aunt, and his siblings. But L.H.’s interaction

with one of his siblings had involved inappropriate sexual touching approximately three

years earlier. Such inappropriate behavior had continued in treatment facilities while L.H.

was in the legal custody of MCCS.

{¶ 17} As for the second factor, L.H. had expressed a desire to be reunited with

Mother or, alternatively, to be placed with his aunt. Mother also had expressed a desire

to have legal custody returned to her.

{¶ 18} Concerning the third factor, L.H had been in MCCS’s temporary custody for

more than two years, and temporary custody could not be extended again. Although

MCCS expressed concern about his readiness to return home to Mother, no one

suggested that course of action at the time of the hearing. Mother and MCCS both

planned to keep L.H. in the residential-treatment program at Perimeter of Forest City in

Arkansas. And the guardian ad litem expressed an opinion that the child would need to

remain in a treatment facility for a long time or, perhaps, permanently. The issue was who

should have custody while he was there and whether Mother’s parental rights should be -9-

terminated, preventing him from returning to her home upon his eventual release.

{¶ 19} Finally, with regard to the fourth factor, L.H. undoubtedly needed a legally

secure placement. The issue was whether such a placement could be achieved without

awarding MCCS permanent custody. Upon L.H.’s completion of the program at Perimeter

of Forest City, MCCS planned to place him for adoption. But 13-year-old L.H. was a

developmentally disabled minority child with an IQ of approximately 62. (Id. at 29, 37-38.)

He had mental-health diagnoses, had a history of acting out sexually, and on two

occasions roughly 100 different placement facilities had refused to accept him. (Id.)

Despite the caseworker’s optimistic assurance that “every child is adoptable” (Id. at 38),

we question L.H.’s prospects for adoption. In the permanent custody of MCCS, he likely

would be relegated to a group home or foster care with strangers until reaching adulthood.

In either situation, MCCS’s concerns about L.H. re-engaging in inappropriate behavior

still could be realized.

{¶ 20} One possibility might be to place him in an adoptive or foster home with no

other children. Of course, this result could be achieved simply by awarding L.H.’s aunt

legal custody. The record persuades us that awarding legal custody to L.H.’s aunt, with

whom the child already had a bonded relationship, would serve his interest far better than

awarding MCCS permanent custody, terminating Mother’s parental rights, and

extinguishing forever the only lasting relationships the child ever has known. The problem

with awarding L.H.’s aunt legal custody is that a required home study had not been

completed at the time of the hearing, and MCCS’s temporary custody could not be

extended. The record suggests that the agency also may have needed to conduct a

background check on the aunt’s new fiancée. In light of these issues, we believe the -10-

evidence supported the only other option, returning L.H. to Mother’s legal custody.

{¶ 21} Mother raised the denial of her own motion for legal custody as her first

objection to the magistrate’s decision. When deciding whether to return a child to the legal

custody of a parent, courts typically look to the best-interest factors found in R.C.

3109.04(F)(1). In re T.L.W., 2d Dist. Montgomery No. 28363, 2019-Ohio-3118, ¶ 28.

Those factors are similar to the factors in R.C. 2151.414(D) that govern permanent

custody motions, and courts sometimes apply both provisions when considering legal

custody. In re A.K., 2d Dist. Montgomery No. 27575, 2017-Ohio-8100, ¶ 13-14, 17. 2

Unlike permanent-custody motions, an award of legal custody only needs to be supported

by the preponderance of the evidence. We apply abuse-of-discretion review to a trial

court’s decision on a motion for legal custody. In re J.T., 2d Dist. Montgomery No. 27343,

2017-Ohio-1303, ¶ 10-11.

{¶ 22} As noted above, Mother agreed to keep L.H. in the program at Perimeter of

Forest City until its completion. Returning L.H. to Mother’s legal custody while he

completed the program in Arkansas would not have endangered L.H.’s siblings, whereas

granting MCCS permanent custody while the child remained in the program unnecessarily

precluded the possibility of Mother reuniting with him.3 Upon L.H.’s eventual completion

of the Perimeter program, if Mother had legal custody she then could choose either to

2 Courts may consider any relevant factors when resolving a motion for legal custody, as the factors in R.C. 3109.04(F)(1) by their own terms are non-exclusive. See In re J.T., 2d Dist. Montgomery No. 27343, 2017-Ohio-1303, ¶ 13, fn. 2. 3 We recognize that L.H. may have completed the program at Perimeter of Forest City by now. The program typically lasts up to 12 months (Hearing Tr. at 15), and the appellate record does not reveal L.H.’s current whereabouts. For purposes of our analysis, we are confined to the record as it existed at the time of the hearing. -11-

supervise him in her home or, potentially, to allow him to reside with the aunt, who lived

one mile away and had no children. At the hearing, Mother identified precautions she had

taken to prevent a recurrence of the sexual touching. She also expressed her willingness

to install alarms and surveillance equipment to help prevent a recurrence. If these

precautions were to prove insufficient, Mother could allow L.H.’s aunt to obtain legal

custody, as the aunt testified that she was willing to do. We also see no reason why an

award of legal custody to Mother could not be accompanied by an order of protective

supervision to MCCS, thereby enabling the agency to monitor the situation and to

intervene again if necessary.

{¶ 23} With regard to the best-interest factors in R.C. 3109.04(F)(1), as relevant

here they include the wishes of Mother and L.H. as well as L.H.’s interaction and

relationship with others, including Mother, his siblings, and anyone else who significantly

may affect his best interest. These same issues were addressed above under R.C.

2151.414(D). Two other relevant considerations under R.C. 3109.04(F)(1) were L.H.’s

adjustment to his home, school, and community, and the mental and physical health of

everyone involved. L.H.’s home, school, and community consisted of the Perimeter of

Forest City. As noted above, he had been there a matter of weeks and seemed to be

doing fine. In any event, both Mother and MCCS planned to keep him there. Finally, the

record reveals no concerns about the physical or mental health of Mother or L.H.’s aunt.

As for L.H.’s mental health, his propensity to act out sexually was addressed and

considered above.

{¶ 24} Although the present case admittedly involves a difficult issue with no

simple solution, we do not find clear and convincing evidence to support terminating -12-

Mother’s parental rights and awarding permanent custody to MCCS. At the time of the

hearing, the only other potentially viable options included awarding legal custody to L.H.’s

aunt or returning the child to Mother’s legal custody. Because MCCS’s temporary custody

had expired and could not be extended and a required home study on the aunt had not

been completed, the best option available to the trial court was to return legal custody to

Mother, who had agreed to keep L.H. in the residential program at Perimeter of Forest

City. For the reasons set forth above, we find that the preponderance of the competent,

credible evidence supported that disposition and that the trial court’s contrary conclusion

was unreasonable. Mother’s first assignment of error is sustained.

{¶ 25} Having found that Mother is entitled to have legal custody returned to her,

we need not address her second, third, and fourth assignments of error. Our disposition

of the first assignment of error renders moot the other issues Mother raises. Accordingly,

we overrule the second, third, and fourth assignments of error as moot.

{¶ 26} The trial court’s judgment is reversed, and the case is remanded for the trial

court to journalize an entry awarding Mother legal custody of L.H. with a grant of protective

supervision to MCCS.

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. J. Joshua Rizzo Sara M. Barry Hon. Helen C. Wallace