[Cite as In re L.W., 2022-Ohio-3696.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
IN RE: CASE NO. 16-22-03 L.W.,
ADJUDICATED DEPENDENT CHILD. OPINION [LACEY W. - APPELLANT]
Appeal from Wyandot County Common Pleas Court Juvenile Division Trial Court No. C2202013
Judgment Affirmed
Date of Decision: October 17, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Eric J. Figlewicz for Appellee, Wyandot Co . DJFS
John M. Kahler, II for Appellee, Dawn S. Case No. 16-22-03
SHAW, J.
{¶1} Mother-appellant, Lacey W. (“Lacey”), brings this appeal from the
February 10, 2022 judgment of the Wyandot County Common Pleas Court, Juvenile
Division, granting legal custody of L.W. to the child’s paternal grandmother, Dawn
S. (“Dawn”). On appeal, Lacey argues that the legal custody order was void due to
a purported “lack of a statement of understanding” pursuant to R.C. 2151.353(A)(3),
and that the trial court abused its discretion by granting Dawn custody of L.W. even
though Lacey had significantly remedied the conditions that led to the institution of
the dependency case.
Background
{¶2} Lacey is the mother of three children: L.W., born in January of 2013,
U.S., born in March of 2014, and J.S. born in September of 2016. Greg W. (“Greg”)
is the natural father of L.W. (the girl who is the subject of this case), and Kyle S.
(“Kyle”) is the natural father of U.S. and J.S.
{¶3} At the inception of this case, Lacey was in a long-term relationship with
Kyle. The couple lived together with the two children they shared, U.S. and J.S., in
addition to Lacey’s daughter L.W., and Kyle’s daughter, K.S., who was born in
September of 2009.
{¶4} On March 27, 2020, a complaint was filed alleging that L.W. was an
abused and dependent child pursuant to R.C. 2151.031(B) and R.C. 2151.04(C)
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respectively.1 Allegations included that marijuana was being grown, used, and dealt
in the home, that Kyle would smoke marijuana with friends who came to the home,
and that Kyle would smoke marijuana in the vehicle with the windows up while the
children were inside it. There were numerous allegations that the residence was
“filthy,” and surrounded by dead animal carcasses.
{¶5} There were also allegations that the children were given jello shots on
New Year’s Eve infused with vodka and marijuana; that Kyle once put L.W. in a
locker and blew smoke into it forcing L.W. to inhale it; and that Kyle gave the two
youngest children pop or soda if they smoked from Kyle’s pipe. During the time
that many of these events were allegedly occurring, Lacey was in Cleveland
working at a hotel, leaving the children in Kyle’s care.
{¶6} Caseworkers from children’s services (“the agency”) attempted to make
a home visit on January 8, 2020. When the caseworkers made contact with Kyle, he
became aggressive and denied access to the residence and the children. The
caseworkers asked to speak to the visibly shaking children privately, but Kyle would
not allow it. Kyle told the caseworkers to get off of his property or he would “get
something to get agency workers off his property.” (Doc. No. 1). Law enforcement
was contacted and assisted with the matter while Kyle continued to yell at
1 The record indicates that complaints were filed regarding the other children in the household as well; however, our record is confined to the filings related to L.W.
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caseworkers. Eventually Kyle sent the children to a neighbor’s home and
caseworkers made contact with the upset and crying children.
{¶7} The children confirmed some of the reported allegations, describing a
red gummy bear mold used to make the jello and describing how the jello made
them feel dizzy, lightheaded, and tired. The older children described drug
paraphernalia in the residence such as glass pipes. They also described marijuana
they had observed, including the odor and small “hairs” on the plant material.
{¶8} The young child U.S. told caseworkers that it burned inside of him and
made him cough when he smoked Kyle’s pipe. Caseworkers asked the children what
they would change if they could change anything at home and they said “no more
weed” and “no more hitting.” (Id.)
{¶9} Following the home visit, Kyle tested positive for THC and Lacey was
negative for all substances. Kyle acknowledged that he used marijuana, claiming
that he used it for back pain. Lacey was aware of Kyle’s drug use but stated that he
did not use marijuana around the children. Notably, L.W.’s natural father, Greg, was
incarcerated during these alleged incidents.
{¶10} After being removed from Kyle and Lacey’s care, the children were
initially placed with Kyle’s parents, Richard and Bette. However, for numerous
reasons, the children’s placement with Richard and Bette was unsuccessful. While
with Richard and Bette, the children were failing in school, they were dirty and
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unkempt, and Kyle and Lacey had unfettered access to the children, which
conflicted with the case plan in place.
{¶11} The children were eventually removed from Richard and Bette’s care
in a dramatic incident wherein Richard was arrested for obstructing official
business. In addition, while caseworkers and law enforcement officers were
attempting to remove the children from Richard and Bette’s home, Kyle was on the
phone with K.S. telling the children to resist and to make agency workers and
officers hurt the children in order to form the basis of a lawsuit. The children were
eventually removed from the home and were placed in foster care.
{¶12} On April 17, 2020, Dawn, paternal grandmother of L.W., filed a
motion to intervene pursuant to R.C. 3109.051(B), Civ.R. 24, and Juv.R. 2(Y).
Dawn was subsequently permitted to intervene and she filed a motion for legal
custody of L.W. Attached to the motion was an affidavit in compliance with R.C.
2151.353, also known as a “statement of understanding.”
{¶13} The case proceeded to an adjudication hearing on August 10-11, 2020.
After hearing the testimony presented, the trial court filed a lengthy judgment entry
indicating that while there was perhaps evidence of some abuse to the children, by
the time the adjudication hearing was held, L.W. and K.S. had recanted most of their
initial claims and they indicated that they could not remember talking with agency
caseworkers or telling caseworkers anything about their home situation.
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{¶14} Given the changes in the children’s stories, the trial court noted that it
was significantly concerned that the children were being “coached” by Lacey and
Kyle, particularly because the children used the same words as Lacey and Kyle to
describe certain events. This was noted by the CASA as well. Further, the children
also changed their story to claim that another grandparent (not Dawn) told them to
make up the allegations that they had initially disclosed.
{¶15} The trial court found that L.W.’s and K.S.’s recantations were not
credible at the adjudication hearing because the children
seemed self[-]satisfied with certain answers to questions as if they had passed a test. [L.W.] would start answering a question before the question was finished. [K.S.] paused a great deal to seemingly insure that she gave the right response. Each child could be observed glancing over at Lacey and/or Kyle for confirmation that each was saying what was expected for approval of their testimony.
(Doc. No. 102).
{¶16} Further, the trial court found that the children’s initial disclosures were
the more credible statements because when the children disclosed to caseworkers
the children “cried and shook and gulped for air.” (Id.) The trial court found the idea
that the children were lying in that moment was not credible because the children
would have needed “acting lessons” as well.
{¶17} Nevertheless, despite the trial court’s analysis, and its concerns with
potential abuse from the children’s initial disclosures, the trial court determined that
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it did not receive clear and convincing evidence of abuse as defined in R.C. 2919.22.
The trial court felt that the children recanting their statements and the agency’s
failure to test of any of the children for potentially ingesting marijuana led to a
deficiency in the burden of proof. Further, the trial court noted that while individuals
who often spoke of the children detailed the children’s dirty and unkempt condition,
none of the individuals seemed to find any suspicious marks or abrasions on the
children except for one bruise on L.W. that L.W. later claimed came from a bicycle
accident.
{¶18} However, although the trial court did not find clear and convincing
evidence of abuse, the trial court did find clear and convincing evidence that the
children were dependent. In making this finding, the trial court reasoned as follows:
The evidence revealed the children had most recently been in the primary care of Kyle [S]. It did not appear Kyle was employed. Lacey W[.] was working out of town and was often absent from the home. Lacey took a position that required her to travel a good distance to work and probably explains why she did not come home, sometimes days at a time. What was not explained was why would the mother of three of the children chose to work in a position that would remove her from her young children? If the position was lucrative it did not translate in the children living a better quality of life and if the position was not lucrative, why did Lacey not take such a position closer to home.
***
Kyle is an admitted marijuana user. He claims he uses it to ease back pain. Kyle brought no documentation from a medical provider that he does have an injury to his back causing pain. * * * When [a caseworker] talked with Kyle about seeking
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alternatives to marijuana for his pain, Kyle would walk out of the room. During the course of the case, Kyle always tested positive for marijuana.
At the hearing when questioned about alternatives to marijuana for his pain, Kyle became angry and said he did not have “an extra $400.00 to take out of his kids mouth.” However, Kyle does have the money to travel to Michigan each month to purchase a sufficient quantity of marijuana to have some to smoke every morning and evening, often when he is the sole caregiver for his children and often three other related children.
***
Kyle, and by default Lacey, have seemingly given no consideration to the effect some of their decisions have on their children. On one occasion the children came to their Aunt’s house who lived next door, complaining that no one was home with them. Lacey was in Cleveland and Kyle was nowhere to be found. The Aunt * * * had the children for five hours before she transferred their care to another relative so she could go to work. [She] also fed the children because they were hungry. Apparently, Kyle found something more important to do than care for the children and meet their needs.
***
[Testimony also indicated that] [t]he family’s yard was full of trash spewed about all around the trailer and on the porch. Witnesses testified about dead chickens and other fowl lying on the porch for days at a time. This is a disgusting environment but the children eat meals outside in this filthy place when it was too hot to stay in the trailer to eat.
***
Grandmother, Rebecca W[.], testified that the children sometimes had an “animal” odor about them and their bodies and clothes would be dirty. [L.W.] was so bad on an occasion she showered [L.W.] and gave her clean clothes. Grandmother, Dawn [] would
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receive [L.W.] in a dirty condition and would bathe her and provide her with clean clothes. She ignored this filth as she was just grateful to have her grandchild. [Dawn] also knew the other kids were dirty and [L.W.] smelled of animal feces.
***
The most unbiased testimony concerning the condition of the children was related by the school personnel[.]
The School nurse testified of frequent lice checks on [K.S.] and [L.W.]. [K.S.] had thirteen positive head checks for lice in October 2019, alone. * * * There was testimony that on one occasion fifty nits were picked off of [K.S.’s] head and [L.W]. would have fifteen, twenty, to thirty nits picked off at a time. In January, the lice problem was still being addressed. As the school nurse opined, this is an exorbitantly long time for someone to have head lice with its accompanying discomfort.
***
Neither Kyle nor Lacey attended parent teacher conferences nor orientation programs. While e-mails and folders were sent to the parents, there would be little to no response to them.
***
[K.S.], as was noted by her teacher, came to school with dirty hair and clothes, two to three times a week. On one occasion [K.S.]’s odor, what was thought to be marijuana, was so repugnant that her classmates were talking about it. Her teacher sent the child to the school counselor to remove her from the situation.
Kyle, who had responsibilities for seven children, permitted a friend with a drug problem and domestic violence conviction to stay at his residence. * * * Kyle’s and Lacey’s parenting style may best be described as indifferent. Their children’s education is not important to them. It is evident these parents do not care if the children are dirty, smelly, or suffering from bugs – all of which will subject them to ridicule by some of their peers, eventually. *
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* * These parents are indifferent to their children’s appearance, their education, their health, safety, and welfare.
(Doc. No. 102). Based on its analysis, the trial court concluded that all the children
were dependent. No appeal was taken from the trial court’s determination that L.W.
was a dependent child.2
{¶19} The case eventually proceeded to a disposition hearing, which was
held over multiple dates, concluding May 11, 2021. As part of the disposition
hearing, an in camera interview was conducted with L.W. During the interview,
L.W. expressed her desire to live with her grandmother Dawn. She also spoke about
some of her prior life living with Lacey and Kyle, stating that marijuana was being
grown by Kyle, and that Lacey and Kyle smoked cigarettes. L.W. actually stated
that her siblings smoked cigarettes because they could get a pop afterward. L.W.
indicated that she herself had smoked a “vape” once or twice with her mom sitting
right next to her.
{¶20} As to the disposition hearing itself, testimony established that Kyle
continued to use marijuana, though he claimed that he was using a legal version that
lab tests could not differentiate from the illegal version. Agency testimony disputed
this claim. Nevertheless, Lacey emphasized that Kyle was using a “legal” version
2 Because no appeal was taken from adjudication, we quoted from the trial court’s findings at length.
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of marijuana, stating that she bought it for him weekly. For her part, Lacey had
primarily been complying with, and fulfilling, the case plan.
{¶21} There was extensive testimony at the disposition hearing regarding the
incident wherein the children were removed from their initial placement with Kyle’s
parents. When caseworkers arrived to remove the children, Kyle’s father would not
let the children go and law enforcement had to get involved. Kyle’s father ended up
being arrested for obstructing official business.
{¶22} Meanwhile, K.S. was on the phone with Kyle, and Kyle was telling
her to resist, to make the officers and caseworkers hurt her and leave bruises so that
Kyle and Lacey could sue. K.S. refused to leave the house for a long time and
ultimately had to be taken to the hospital. However, once the children were removed
from Kyle’s parents’ care, they were placed in foster care and by all indications they
were doing well in their foster placements.
{¶23} On June 4, 2021, after hearing the testimony at the disposition hearing,
the trial court filed a lengthy judgment entry ordering the children to remain in the
temporary custody of the agency.3 As part of the order, Kyle and Lacey’s visitation
with the children was increased and changed to unsupervised visitation because their
supervised visitations with the children had been going well.
3 L.W.’s father was in prison by the time the disposition hearing concluded. He had been released from incarceration for a time while this case was pending and he was in contact with L.W., but he was incarcerated again before disposition was completed.
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{¶24} On August 6, 2021, the agency filed a motion requesting that Dawn be
granted temporary custody of L.W. At the time of filing, L.W. was spending every
other week with Dawn. A few days later Dawn filed her own motion requesting
temporary custody. L.W.’s attorney then also filed a motion requesting that L.W. be
placed in Dawn’s temporary custody. After reviewing the motions filed, the trial
court placed L.W. with Dawn.
{¶25} On September 21, 2021, the agency filed a motion for extension of
temporary custody and review hearing.
{¶26} On November 3, 2021, Dawn S. filed another motion for legal custody
of L.W.
{¶27} On January 11, 2022, a hearing was held on the agency’s pending
motion for extension of temporary custody and on Dawn’s motion for legal custody.
As part of that hearing, L.W. was again interviewed in camera. L.W. indicated that
she was primarily staying with Dawn, though Lacey had L.W. on the weekends.
L.W. indicated that she loved school, that she had lots of friends, and that she got
good grades.
{¶28} L.W. stated that she saw her mother on weekends but she wanted to
see her mother more. L.W. claimed that she did not remember anything about living
with Kyle and Lacey before the case started.
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{¶29} Testimony at the hearing indicated that Lacey had primarily met her
case goals and that she had been cooperative with the agency. Although Lacey had
completed the majority of her goals, she still was living with, and engaged to, Kyle,
who was a major source of the problems in this case. The agency caseworker
indicated that this was particularly concerning because Lacey had never
acknowledged Kyle’s actions as being detrimental to the children. Testimony
indicated that the agency’s primary concern keeping the children out of the home
was Kyle not maintaining sobriety and his failure to complete anger management
classes.
{¶30} By all accounts, testimony established that L.W.’s needs were being
met at Dawn’s residence. L.W. was bonded with her paternal grandparents and the
cousins that she visited with while there. L.W. was doing well in school and she had
good grades.
{¶31} L.W.’s CASA testified and recommended that Dawn be granted legal
custody, feeling that it was in L.W.’s best interest. In the alternative, the CASA did
not oppose continuing temporary custody with the agency.
{¶32} Lacey testified at the hearing that she wanted custody of L.W. She
provided an overview of her housing situation, including the fact that the home had
numerous animals—one of the animals being a caged raccoon in the home.
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{¶33} After the hearing was complete, the trial court permitted the parties to
file written closing arguments.4
{¶34} On February 18, 2022, the trial court filed a lengthy judgment entry
granting Dawn’s motion for legal custody of L.W. In granting Dawn’s motion, the
trial court first indicated that it had to determine “whether keeping L.W. in her
current situation where she is flourishing, should be disrupted in order to fulfill her
recently stated desire to live with her Mother.” (Doc. No. 204).
{¶35} In analyzing this issue, the trial court noted that L.W. had previously
vacillated between wanting to live with Lacey and wanting to live with Dawn.
However, the trial court felt that L.W.’s recent desire to live with Lacey could have
been the product of “undue influence.” (Id.)
{¶36} The trial court noted that during her in camera interview L.W.
expressed her desire to be a veterinarian and L.W. indicated that she loved animals.
Lacey and Kyle had accumulated a “menagerie” of animals at their house, including
an “illegally” caged raccoon, perhaps as an enticement to L.W. (Id.) In fact, L.W.
specifically expressed to the trial court that one of the reasons she wanted to be with
Lacey was to spend more time with the animals.
{¶37} Aside from the raccoon, the trial court felt that there were other issues
with the animal situation in Lacey and Kyle’s home. L.W. had witnessed a neglected
4 Dawn attached another written statement of understanding to her closing argument.
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guinea pig that had to gnaw off its own leg because it was caught in its cage. The
trial court felt that the guinea pig incident and the treatment of animals in general
(such as the caged wild animal) was reminiscent of the treatment Lacey and Kyle
gave animals in their care prior to the children’s removal.
{¶38} In addition to the “menagerie” of animals, the trial court reasoned that
there were other incidents of potential “bribery” performed by Lacey and Kyle. For
example, L.W. had been given Christmas gifts by Lacey but L.W. was told there
was no space to transport the gifts to Dawn’s residence in Lacey’s crowded vehicle
even though one gift was a ring and another was a microphone. The trial court found
this reasoning specious, noting that Lacey seemed to be making it so L.W. could
only have these gifts while with her. Given all of the circumstances, the trial court
determined that there was no doubt that Lacey loved her child, but the trial court
reasoned that L.W.’s expressed desire to live with her mother might not have been
free from manipulation.
{¶39} Moreover,
[t]he Court finds unbelievable L.W.’s claim that she cannot remember anything about her life with Mother and Kyle before her removal from their care (with an obvious exception). The Court also finds fantastic L.W.’s claim that her best friend lives in the school district affiliated with Mother’s residence, but she cannot even remember her best friend’s name. These statements do not make sense, which means they are probably not true. Therefore, the Court may not put much stock in the wishes of L.W.
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Further, there is concern that L.W. may have been coached about what to say. The one incident L.W. allegedly remembers from her past life with Mother and Kyle is telling. Initially, L.W. reported that she was locked in a box or a trunk and Kyle blew marijuana smoke in it. L.W. was understandably terrified.
At the most recent in camera interview, L.W. spontaneously recanted the dark version of this event and explained that it was a game and it was fun. Dawn [] also testified that L.W. recently came home from a visitation with her Mother and blurted out that the incident with the box was a game and all fun. However, even Mother contradicts her child’s characterization of the event. Pursuant to Mother’s testimony, L.W. was in a box/trunk that fell over and L.W. could not get out. If true, this would be a frightening experience for a young child and not a game. The fact that L.W., without prompting, brings up the subject and then dismisses the incident as a fun exercise, shows L.W. has a very poor memory or she is being dishonest. As L.W. has been characterized as a bright child, the Court in considering L.W.’s demeanor when recounting the event and manner in which she remembers it, suggest she is being dishonest and such dishonesty may well have been coached. These children have been coached before. Further, the seeming urgency accompanying L.W.’s telling of the incident, coupled with the spontaneity in bringing up this matter, made it seem as if L.W. had this event on her list of things to do. L.W. seemed very satisfied with herself in relaying this version of events to the Court. Once L.W. made this revelation, she proceeded to talk about other unrelated matters. However, the Court believes the child’s first version of the event, as it was the version related closest in time to the actual incident and before it became a part of this case.
(Doc. No. 204).
{¶40} The trial court thus discounted L.W.’s expressed desire to live with
her mother, and shifted to analyzing the ongoing deficiencies of Lacey and her
chosen fiancé. In doing so, the trial court emphasized that Kyle possessed a poor
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temper and an aggressive nature. Further, the trial court was concerned that Lacey
would be a poor candidate to act as L.W.’s protector in the face of Kyle’s wrath.
“Mother makes excuses for Kyle’s bad behavior and rarely intervenes to correct him
or object to it. Mother, throughout these proceedings has been rather passive, even
though having her children returned to her is at stake.” (Id.)
{¶41} The trial court also emphasized Kyle’s failure to complete his case
plan. During the pendency of the case Kyle had to get a second substance abuse
assessment because he lied to the test administrator and claimed he had not used
marijuana despite all his positive tests to the contrary. Kyle had not maintained his
sobriety for a significant length of time and he had not completed his anger
management classes.
{¶42} The court determined, “Neither Mother nor Kyle have accepted any
responsibility for their current circumstances.” The court noted, “Mother wants
L.W. returned to her, but she also stands with Kyle even though she must realize he
is an obstacle to having L.W. returned.”
Mother is, as stated, allowed to choose her mate, but his presence must be considered by the Court in deciding what is in L.W.’s best interest. Kyle and perhaps Mother were blinded with anger when they told L.W. and her half siblings to resist law enforcement and “let them hurt you” when the group was being removed and taken to foster care. * * * This is but one example of why Kyle needs anger management and why it is disconcerting that Kyle is resistant to receiving it.
(Doc. No. 204).
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{¶43} The trial court concluded its analysis by emphasizing that L.W. needed
stability and that the ongoing waiting pattern did not contribute to stability. The trial
court found that the evidence established that in Dawn’s home L.W. received love,
guidance, attention, and structure, whereas Lacey’s home was “chaotic,” even if
now clean compared to what it once was. (Id.)
{¶44} Moreover, the trial court determined that by all accounts Dawn would
continue to facilitate interaction between L.W. and her natural parents. After
determining that it would be “unconscionable” to leave L.W. in “the ongoing no
man’s land of this case without a named permanent custodian,” the trial court
determined it was in L.W.’s best interest that Dawn be granted legal custody of L.W.
(Id.) It is from this judgment that Lacey now appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1 Where the trial court awards legal custody [to] a non-parent of a minor child in an abused, neglect or dependency case, such order is void when the trial court fails to have them execute the statement of understanding for legal custody as specified, at minimum, in Ohio Revised Code §2151.353(A)(3).
Assignment of Error No. 2 When the parent has complied with the obligations of the Children Services case plan and significantly remedied the conditions leading to the institution of the case, it is abuse of the discretion for the court to not award the parent custody of their child.
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First Assignment of Error
{¶45} In her first assignment of error, Lacey argues that the trial court erred
by awarding Dawn custody of L.W. without having a properly filed “statement of
understanding.”
Controlling Statute
{¶46} Lacey contends that Dawn S. was not in compliance with R.C.
2151.353(A)(3) before she was awarded legal custody of L.W. Revised Code
2151.353(A)(3) reads as follows:
(A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition:
***
(3) Award legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings. A person identified in a complaint or motion filed by a party to the proceedings as a proposed legal custodian shall be awarded legal custody of the child only if the person identified signs a statement of understanding for legal custody that contains at least the following provisions:
(a) That it is the intent of the person to become the legal custodian of the child and the person is able to assume legal responsibility for the care and supervision of the child;
(b) That the person understands that legal custody of the child in question is intended to be permanent in nature and that the person will be responsible as the custodian for the child until the
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child reaches the age of majority. Responsibility as custodian for the child shall continue beyond the age of majority if, at the time the child reaches the age of majority, the child is pursuing a diploma granted by the board of education or other governing authority, successful completion of the curriculum of any high school, successful completion of an individualized education program developed for the student by any high school, or an age and schooling certificate. Responsibility beyond the age of majority shall terminate when the child ceases to continuously pursue such an education, completes such an education, or is excused from such an education under standards adopted by the state board of education, whichever occurs first.
(c) That the parents of the child have residual parental rights, privileges, and responsibilities, including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support;
(d) That the person understands that the person must be present in court for the dispositional hearing in order to affirm the person's intention to become legal custodian, to affirm that the person understands the effect of the custodianship before the court, and to answer any questions that the court or any parties to the case may have.
Analysis
{¶47} Although Lacey argues that Dawn did not file an appropriate statement
of understanding prior to being granted legal custody of L.W., Lacey acknowledges
in her brief that Dawn attached an “attempt” at a proper statement of understanding
to her initial motion for legal custody in this case. However, Lacey contends that
the initial “attempt” was insufficient.
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{¶48} Further, Lacey acknowledges that Dawn attached another “attempted”
statement of understanding to her written closing argument, but she contends that
this attachment was also insufficient, as exhibited by the trial court’s determination
that the attachment was insufficient to satisfy R.C. 2151.353(A)(3) in the trial
court’s judgment entry.5 According to Lacey’s interpretation of the record, Dawn
did not execute a sufficient “statement of understanding,” thus the trial court’s
award of legal custody to Dawn was erroneous.
{¶49} Lacey does acknowledge that there is case authority to suggest that in
the absence of a proper written statement of understanding, testimony from the
proposed legal custodian could satisfy R.C. 2151.353(A)(3). In re E.Z.-S., 6th Dist.
Fulton No. F-18-006, 2019-Ohio-1177, ¶ 26. However, again, Lacey contends that
Dawn’s testimony at the final hearing did not meet the standards set forth in R.C.
2151.353(A)(3).
{¶50} In our own review of the matter, we note that Lacey did not
specifically make any objections regarding the statement of understanding at the
trial court level, thus she has waived all but plain error. In re E.Z.-S. at ¶ 26.
Notwithstanding Lacey’s lack of objection to any issues regarding the statement of
understanding, the trial court did find that the second statement of understanding
was deficient that was attached to Dawn’s closing argument. However, no
5 The trial court did not mention the originally filed statement of understanding in its judgment entry.
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objections or arguments were made regarding the first statement of understanding
filed in the record.
{¶51} The record establishes that when Dawn originally filed a motion for
legal custody, the motion contained an attached “Affidavit in compliance with
O.R.C. § 2151.353” that reads as follows:
Dawn Stacy, having been duly sworn, says:
1. It is her intent to become the legal custodian of the child, [L.W.] and she is able to assume legal responsibility for the care and supervision of the child;
2. That she understands the following
2.1 that legal custody of the child is intended to be permanent in nature and that she will be responsible as the custodian for the child until the child reaches the age of majority;
2.2 that responsibility as custodian for the child shall continue beyond the age of majority if, at the time the child reaches the age of majority, the child is pursuing a diploma granted by the board of education or other governing authority, successful completion of the curriculum of any high school, successful completion of an individualized education program developed for the student by any high school, or any age and schooling certificate; and
2.3 that responsibility beyond the age of majority shall terminate when the child ceases to continuously pursue such an education, completes such an education, or is excused from such an education under standards adopted by the state board of education, whichever occurs first.
3. That she understands that both parents of the child have residual parental rights, privileges, and responsibilities, including but not limited to, the privilege of reasonable
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visitation, consent to adoption, the privilege to determine the child’s religious affiliation, and the responsibility for support;
4. That she understands that she must be present in court for the dispositional hearing in order to affirm the person’s intention to become legal custodian, to affirm that she understands the effect of the custodianship before the court, and to answer any questions that the court or any parties to the case may have.
(Doc. No. 21).
{¶52} A careful reading of this originally filed statement of understanding
shows that it is in direct compliance with R.C. 2151.353(A)(3), mirroring the
language required in the statute. For this reason alone we could overrule Lacey’s
assignment of error.
{¶53} However, we emphasize that in addition to the existence of this early-
filed statement of understanding, Dawn testified at the final hearing that she had
again read a statement of understanding prior to testifying, that she understood it,
that she was willing and capable of being L.W.’s legal custodian, and that she
believed it was in L.W.’s best interest. Dawn testified that she understood L.W.’s
parents would have residual rights, particularly visitation, and Dawn indicated that
she was ready to facilitate that visitation.
{¶54} “[T]he legislative purpose of the signed statement of understanding
under R.C. 2151.353(A) is to help insure that prospective legal custodians are
apprised of the significant responsibilities they will undertake.” In re W.A., 5th Dist.
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Muskingum No. CT2013–0002, 2013–Ohio–3444, ¶ 16. The record before us shows
that Dawn understood the responsibility she was undertaking. Under these
circumstances we do not find any error, let alone plain error.
{¶55} We note that any confusion that exists regarding the statement[s] of
understanding in this case appears to be because Dawn attached a second statement
of understanding to her written closing argument in this matter. In its judgment
entry, the trial court stated that this second statement of understanding was deficient
without mentioning the originally filed statement of understanding. However, the
later-filed statement is simply superfluous given the clear compliance with the
statute contained in our record.
{¶56} In sum, the record contains a properly filed statement of understanding
from Dawn. Any argument to the contrary by Lacey is not well-taken, and to the
extent that the trial court determined that the later-filed, superfluous statement of
understanding was deficient, that is irrelevant. For these reasons, Lacey’s first
assignment of error is overruled.
Second Assignment of Error
{¶57} In her second assignment of error, Lacey argues that the trial court
erred by granting legal custody of L.W. to Dawn in this matter because Lacey had
fulfilled her obligations under the case plan and she had remedied the conditions
leading to the institution of this case.
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Standard of Review
{¶58} We review the grant or denial of a motion for legal custody under an
abuse-of-discretion standard. In re C.S., 3d Dist. Paulding No. 11-21-07, 2022-
Ohio-2451, ¶ 15. An abuse of discretion implies that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
Relevant Authority
{¶59} Legal custody is defined 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. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.
R.C. 2151.011(A)(21).
{¶60} Importantly, “the award of legal custody is ‘not as drastic a remedy as
permanent custody.’” In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-2670, ¶ 32,
quoting In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214, ¶ 7. Unlike
granting permanent custody, the award of legal custody does not divest parents of
their residual parental rights, privileges, and responsibilities. In re C.R., 108 Ohio
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St.3d 369, 2006-Ohio-1191, ¶ 17. Significantly, the parent can generally petition the
court for a custody modification in the future. In re L.D. at ¶ 7. Thus, “a parent’s
right to regain custody is not permanently foreclosed.” In re B.P., 3d Dist. Logan
No. 8-15-07, 2015-Ohio-5445, ¶ 19, citing In re M.J.M., 8th Dist. Cuyahoga No.
94130, 2010-Ohio-1674, ¶ 12.
{¶61} The standard a juvenile court uses in making its determination in a
legal-custody proceeding, by “preponderance of the evidence,” is less restrictive
than a permanent-custody proceeding, which requires proof by “clear and
convincing evidence.” In re C.S., 3d Dist. Paulding No. 11-21-07, 2022-Ohio-2451,
¶ 19. “‘Preponderance of the evidence’ means evidence that is more probable, more
persuasive, or of greater probative value.” In re M.G., 3d Dist. Allen No. 1-18-54,
2019-Ohio-906, ¶ 7, quoting In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-
2670, ¶ 33.
{¶62} Importantly, at a dispositional hearing involving a request for legal
custody, the focus is on the best interest of the child. In re P.S., 5th Dist. Stark No.
2012CA00007, 2012-Ohio-3431, ¶ 31, citing In re C.R. at ¶ 10; In re B.P. at ¶ 19.
Revised Code 2151.353(A)(3) does not list specific factors a court should consider
in deciding what is in the child’s best interest pursuant to the requested disposition
of legal custody. In re B.P. at ¶ 20, citing In re N.P., 9th Dist. Summit No. 21707,
2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. Butler No. CA2002-09-236,
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2003-Ohio-5984, ¶ 11. However, although, no specific factors must be followed in
a case involving the dispositional alternative of legal custody, we have previously
concluded that juvenile courts may be guided by the factors listed in R.C.
2151.414(D)(1) (the permanent-custody factors) or R.C. 3109.04(F)(1) (factors
employed in private-custody disputes) since they are both purely instructive. See In
re L.P., 3d Dist. Seneca Nos. 13-12-60 and 13-12-61, 2013-Ohio-2607, ¶ 22.
{¶63} In addition to the foregoing factors, the juvenile court must also
liberally interpret and construe R.C. Chapter 2151 so as to effectuate the General
Assembly’s express purpose when considering which situation will best promote
the child’s “care, protection, and mental and physical development,” understanding
that the child should only be separated from his or her parents “when necessary for
the child’s welfare or in the interests of public safety.” In re C.W., 3d Dist. Wyandot
No. 16-09-26, 2010-Ohio-2157, ¶ 11, citing R.C. 2151.01(A).
Analysis
{¶64} Lacey argues that the trial court erred by awarding Dawn legal custody
of the children even though she had completed her portion of the case plan. She
contends that she had cooperated with the agency throughout the pendency of the
case and she contends that Kyle had also made progress on the case plan. Lacey
argues that even according to the agency caseworkers and the CASA, Lacey had
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acquired clean, stable housing, that L.W. had expressed her desire to live with
Lacey, and that L.W. was bonded with her siblings.
{¶65} Lacey also emphasizes that although Kyle had not been drug-free for
long, he did have multiple clean drug screens. She also claims that Kyle had
attempted to take anger management classes but he had internet difficulty with the
remote classes and he was attempting to register for a new class. Given all of these
improvements, Lacey argues that the trial court erroneously awarded legal custody
of the children to Dawn.
{¶66} In reviewing the matter, we stress the fact that each and every
argument and improvement cited by Lacey was carefully considered by the trial
court in its lengthy judgment entry awarding legal custody of L.W. to Dawn. The
trial court weighed the improvements made by Lacey, and the minimal
improvements made by Kyle, against numerous factors.
{¶67} For example, the trial court was concerned with Lacey’s ongoing
enabling of Kyle’s behavior, Lacey and Kyle’s apparent coaching of L.W., and
Lacey and Kyle’s choice to cage a wild animal in the house. The trial court
established that it was particularly concerned with Lacey’s enabling of Kyle’s
behavior during the incident when the children were removed from Kyle’s parents’
home. During that incident Kyle encouraged the children to fight back and get hurt
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to promote his own agenda, which showed terrible judgment. The record does not
show any acknowledgment by Lacey that this was improper.
{¶68} Furthermore, multiple witnesses testified to how well L.W. was doing
in Dawn’s care. Her grades had improved to the point that she was on the honor roll.
She was consistently clean and cared for, and provided with plenty of attention.
Given that L.W. was doing poorly in school in Lacey and Kyle’s care, and given
that she was often dirty and unkempt in their care, which included the substantial
lice issues, L.W. was undoubtedly flourishing with Dawn, which spoke favorably
toward Dawn being granted legal custody of L.W. See In re P.S., 5th Dist. Stark No.
2012CA00007, 2012-Ohio-3431, ¶ 31 (holding that the focus in legal custody
circumstances is on the child’s best interests).
{¶69} It is also important to note that Dawn was ready and willing to
facilitate interactions between L.W. and her mother. Dawn maintained a suitable
residence and was providing a stable, structured environment. The CASA, who had
been involved in this case for a significant period of time, felt Dawn should be
granted legal custody and the agency was also not opposed to that option.
{¶70} In sum, the trial court dealt with these parties for nearly two years. The
trial court interviewed L.W. in camera multiple times and sat through numerous
lengthy hearings with the parties. The trial court was concerned of the detrimental
impact that could occur by leaving L.W. in limbo without a permanent legal
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custodian and making her switch schools again. We do not find under these facts
and circumstances that the trial court abused its discretion by awarding Dawn legal
custody of L.W., particularly where Lacey retains residual rights. In re C.R., 108
Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. For all of these reasons, Lacey’s second
assignment of error is overruled.
Conclusion
{¶71} For the foregoing reasons Lacey’s assignments of error are overruled
and the judgment of the Wyandot County Common Pleas Court, Juvenile Division,
is affirmed.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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