[Cite as In re R.A., 2020-Ohio-4846.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: R.A. : : : Appellate Case No. 28806 : : Trial Court Case No. 2018-5339 : : (Appeal from Common Pleas Court- : Juvenile Division) : :
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OPINION
Rendered on the 9th day of October, 2020.
MATHIAS H. HECK, JR., by JAMIE J. 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, Montgomery County Children Services
CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Kettering, Ohio 45419 Attorney for Appellant, Mother
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DONOVAN, J. -2-
{¶ 1} Mother appeals from the juvenile court’s judgment granting legal custody of
her child, R.A., to his paternal grandmother (“Grandmother”). We hereby affirm the
judgment of the juvenile court.
{¶ 2} On October 26, 2018, Montgomery County Children’s Services (“MCCS”)
filed a neglect and dependency complaint with respect to R.A, who was born in 2004.
The complaint alleged that MCCS received a referral on August 17, 2018 regarding
Mother, who was arrested for failure to appear for driving under a suspended license and
not having a license plate; R.A.’s whereabouts were unknown at the time of Mother’s
arrest, and he was subsequently located at the home of a friend. The complaint further
stated that the police discovered that Mother’s home did not have running water. Mother
agreed to place R.A. with her neighbors, R.H. and J.H., on a safety plan. The complaint
stated that MCCS received reports of domestic violence between Mother and her
boyfriend, J.W., and that the couple had an “extensive history with substance abuse
issues.” Although Mother and J.W. reported that they were engaging in substance abuse
treatment, they had not provided verification of this treatment to MCCS. MCCS further
alleged that, on September 13, 2018, Mother refused a drug screen because she claimed
it would be positive, stating that her “drug of choice” was methamphetamines.
According to the complaint, Mother reported that she had been prescribed methadone.
{¶ 3} Additionally, the complaint provided that Mother was not employed and had
a ninth grade education. The complaint stated that R.A. did not have a close relationship
with his father (“Father”), but that Father had visited regularly while R.A. was on the safety
plan; “both recognize[d] that they need more time to become more acquainted.” Finally,
the complaint stated that R.A. was on a truancy plan at his school due to numerous -3-
absences.
{¶ 4} The trial court conducted a hearing and, on November 7, 2018, the
magistrate issued an interim order that R.A. remain on the safety plan. The magistrate
scheduled an adjudication on November 28, 2018. After the adjudication, a magistrate
granted temporary custody of R.A. to Mother’s neighbors, R.H. and J.H.
{¶ 5} On May 30, 2019, MCCS filed a motion to transfer temporary custody from
the non-relative neighbors to Grandmother, or for legal custody to Grandmother, or for
temporary custody to MCCS. The attached affidavit of Emily Thompson, a caseworker
at MCCS, stated that the neighbors were no longer willing to care for R.A. and that there
were safety concerns due to the proximity of the neighbors’ home to the home of Mother
and J.W. The affidavit asserted that Mother and J.W. threatened the neighbors, that
Mother’s case plan objectives were not complete, that Mother continued to struggle to
maintain sobriety, and that she was referred for domestic violence services but did not
follow through. Thompson averred that there was concern for Mother “as her mental
health appear[ed] to be deteriorating,” and MCCS observed Mother “present as paranoid
and confused.” MCCS believed that it was in R.A.’s best interest to request that
additional contact between Mother and child be suspended until Mother had a negative
drug screen. Thompson’s affidavit stated that Mother’s boyfriend was not an appropriate
caretaker for R.A. Thompson averred that Father had not been in contact with R.A. since
November 7, 2018, that it was reported to the agency that he “was recently shot multiple
times,” requiring hospitalization, and that Father did not have housing or verifiable
income.
{¶ 6} On June 26, 2019, the magistrate granted interim temporary custody of R.A. -4-
to Grandmother after a hearing. At the hearing, Mother indicated that she was in
agreement with the transfer of custody to Grandmother Thompson testified that Mother
and J.W.’s backyard backed up to R.H. and J.H.’s back yard, and that there had been a
lot of arguing between the households. She stated that R.H. and J.H. had agreed to
keep R.A. until the end of the school year and then requested that MCCS find an
alternative placement. Thompson testified that R.A. had been with Grandmother since
the end of May and that he was the happiest Thompson had seen him since he had been
there. Grandmother provided “a safe, stable home, and a good environment that’s kind
of away from the neighborhood that he’s been in, which caused conflict.” Thompson
stated that substance abuse, lack of utilities, and domestic violence were the primary
concerns that caused R.A.’s removal, and that there had not really been any progress on
those issues. She also stated that Mother got a daily dose of methadone at Dayton
Treatment Services, but that her counselor there reported to Thompson that, in “well over
a year,” Mother had “not had a negative drug screen the entire time,” testing positive for
“methamphetamines, fentanyl, and heroin, or any combination of these three, every time
she’s been screened.” Thompson stated that J.W. had been “negatively discharged from
the program and trespassed from their property after he was observed by staff slashing
someone’s tires in the parking lot.” Thompson had spoken to Mother multiple times
about completing a mental health assessment and addressing domestic violence
concerns, but had not been done. Thompson also stated that Mother and J.W.’s utilities
had been “turned back on and off at least three times” and the water had been turned off;
when she was at the home in May before the hearing, the gas was still turned off, but they
did have electricity. -5-
{¶ 7} Thompson had not had any contact with Father since the first court hearing,
Father had not had any contact with R.A., and Thompson was unable to locate Father.
Thompson stated that, after a visitation, both Mother and J.W. were “verbally assaultive”
to Grandmother when she picked up R.A., and that Grandmother did not feel safe in the
course of the encounter. Thompson stated that future visitation should be supervised
and occur only after Mother demonstrated sobriety. She stated that R.A. reported that,
during his visits, he often “doesn’t even speak to his mom, and if he does, usually she’s
* * * not very kind to him.” Thompson continued to provide Mother with names for
services and a resource directory with names of places she could go for a mental health
assessment. According to Thompson, Mother often did not recall their meeting from
week to week; “I just don’t think she’s cognitively or mentally stable right now.”
Thompson stated that Mother’s treatment at Dayton Treatment Services was not
sufficient; Mother was required to meet with her counselor weekly one-on-one, but the
counselor reported that Mother only met with her if the counselor “flagged” Mother, which
meant Mother could not “get dosed that day” unless she met with the counselor.
Thompson stated that Mother needed consistent individual therapy and group outpatient
therapy, and “probably inpatient therapy,” since she had not been able to abstain from
substances the entire time she had been in treatment. Thompson stated that Mother
had not made any progress in addressing MCCS’s concerns, and that the agency had
provided case management, services referral, home studies and bus passes.
{¶ 8} On cross-examination, Thompson indicated that the counselor she spoke to
at Dayton Treatment Services was “Bridget,” and Mother informed the court that Bridget
no longer worked there. Mother stated that Thompson had not offered her any kind of -6-
referrals. Mother acknowledged that she had a resource guide but denied that
Thompson gave it to her. The following exchange occurred:
THE COURT: Ms. Thompson isn’t going to call Nova House to
schedule an appointment for you. The resource guide is the guide.
[MOTHER]: No one said anything about Nova House.
THE COURT: * * * I just want to make sure we’re clear about how
this works. The * * * Agency’s position is the Dayton Treatment Center is
not a sufficient treatment program. So you need to utilize that resource
guide and contact another treatment provider to get an assessment.
[MOTHER]: Okay.
THE COURT: Along with a mental health assessment, as well.
[MOTHER]: Yes, ma’am.
THE COURT: So those things you need to take steps to get those
appointments scheduled.
{¶ 9} At the conclusion of the hearing, the magistrate terminated R.H. and J.H.’s
custody and transferred interim custody to Grandmother. The court scheduled another
hearing for September 11, 2019.
{¶ 10} On September 10, 2019, at 3:02 p.m., Mother’s attorney filed a motion to
withdraw, asserting that the attorney-client relationship had “broken down” to the point
that it was impossible for counsel to effectively represent Mother.
{¶ 11} Mother did not attend the hearing on September 11, 2019. The prosecutor
represented to the court that Mother was served with the May 30, 2019 motion at her -7-
residence, and that she was present at the June 26, 2019 hearing when the September
hearing was scheduled. Mother’s attorney stated that, the previous day, Mother had
indicated that she wished to fire him at that time and to get new representation before
going forward. The attorney also requested a continuance of the hearing based on
Mother’s absence. MCCS opposed the motion to continue, noting that Mother had
sufficient notice of the hearing, sufficient opportunity to work with her current assigned
counsel or to obtain new counsel prior to the hearing date, and also had had opportunity
to work with MCCS, but failed to do so. MCCS also expressed that it was in the child’s
best interest to proceed.
{¶ 12} The court denied the request for a continuance and for new counsel. The
court found that Mother had not shown good cause to terminate her attorney’s
representation in the custody matter, which had continued effectively over “a substantial
period of time.” Mother had not previously raised any issues or concerns about her
counsel, who had been diligent in representing her, and the court did not find that there
was sufficient evidence of such a breakdown in communication that counsel could not
represent Mother adequately.
{¶ 13} Grandmother testified at the hearing that she did not know that R.A. had
been in “foster care” or she would have started proceedings to gain custody earlier.
Grandmother stated that R.A. came into her care in May 2019; before that, Mother
repeatedly told her that R.A. was not her grandson. According to Grandmother, R.A.
was in eighth grade, he and she were bonded, and he was doing “great.” She stated
that her ex-husband also was involved in R.A.’s life and “takes him places,” and that her
daughters were involved as well. When asked if she was willing to continue providing -8-
care for R.A. as his legal custodian, Grandmother responded, “Most definitely.” She
stated that she had signed a statement of understanding of legal custody.
{¶ 14} MCCS caseworker Thompson testified that, when MCCS became involved
with R.A. in August 2018, there were concerns regarding the condition of the home,
including numerous holes in the walls, a lack of working utilities, domestic violence
between J.W. and Mother, and drug use in the home by both Mother and J.W. She
described the conflict between Mother and J.W. and the neighbors who took custody of
R.A. Thompson had contacted the paternal grandfather to ask if he knew of any relatives
on R.A.’s father’s side of the family who might take custody of the child, because Mother
wouldn’t provide her with any information. The grandfather got in touch with his ex-wife,
Grandmother, who immediately contacted Thompson and requested a home study.
According to Thompson, R.A. reported that he loved Mother and J.W., but that he knew
that was “not a good environment for him,” and he had a good bond with Grandmother;
“that’s home for him now.”
{¶ 15} Thompson testified that R.A. attended middle school and was doing “pretty
well.” His new school was in a smaller town, but he was adjusting, making friends, and
doing well academically for the most part. R.A. was not on an IEP and was not interested
in obtaining counseling; Grandmother was aware of where to get services and was willing
to do so, if R.A. should need them in the future.
{¶ 16} Thompson further testified that she was last in Mother’s home on May 14,
2019; they had gotten a new puppy, and Thompson recounted that there was a strong
chemical smell in the home, “as well as like a urine smell.” She did not believe the home
had gas or water, and she was not allowed to walk through the entire home. Thompson -9-
testified that she called DP&L the morning before the hearing and confirmed that Mother’s
home had electricity, but it did not have gas through Vectren and did not have running
water.
{¶ 17} Thompson testified that J.W.’s family owned the home in which he and
Mother lived; J.W., who was a mechanic, recently appeared in court for zoning issues,
namely “auto parts and things all over the yard.” Thompson stated that she asked
Mother and J.W. to “engage in services” before MCCS would pay for their utilities to be
turned back on. In November or December 2018, J.W.’s mother or grandmother paid
the water bill and got the water turned back on. Thompson stated that she also
discussed with and offered to help Mother obtain employment so that she would be able
to pay the utility bills in the home, and gave her resources for the Job Center. J.W.
reported that he was self-employed, had plenty of income, and did not need assistance.
In May 2019, Mother reported to Thompson that she believed J.W. was “collecting some
type of income for her.” Mother also believed J.W. was getting SSI, but neither she nor
Thompson had been able to verify that. According to Thompson, Mother “was a bit
delusional at the time that I was talking to her, really paranoid about [her belief] that he
was collecting some sort of income for her.”
{¶ 18} According to Thompson, Mother reported ongoing domestic violence and
that J.W. was “controlling,” recorded all of her phone calls, and recorded “everybody that
came in and out of the house.” Thompson testified that she gave Mother information
about Artemis and offered to call with Mother to arrange safe housing, but Mother declined
any services.
{¶ 19} Thompson stated that Mother was in substance abuse treatment at Dayton -10-
Treatment Services (also known as Pinnacle); Mother had never completed the mental
health assessment, but she had continued ongoing drug and alcohol services. To
Thompson’s knowledge, however, “all she’s doing there is going daily to get her
methadone. She’s not participating in groups, or anything like that.” Thompson stated
that Mother continued to test positive for drugs; out of 39 drug screens from June 2018
through September 9, 2019, Mother tested positive for methamphetamines 39 times and
positive for fentanyl 31 times, and “numerous other drugs” also appeared throughout that
time.
Thompson testified that Mother always reported to her that she was not using
drugs and signed releases for her test results, but then Mother would tell Pinnacle only to
release her attendance records to Thompson, not her drug screens. Mother also
claimed she was attending treatment and was sober, so there was no need for Thompson
to refer her elsewhere. Thompson gave Mother the resource guide numerous times,
highlighted where she could go, and told her she could get a walk-in mental health
assessment at Samaritan Behavioral. At the previous court hearing, Mother and
Thompson talked about getting a mental health assessment done before the next court
hearing, but Mother never followed through.
{¶ 20} Thompson stated that Mother had not visited R.A. since Grandmother
received custody, but that she had had phone contact with him. Thompson reported that
Grandmother did not feel safe bringing R.A. to visit Mother snd J.W. due to their violent
and aggressive behavior. Thompson stated that Mother’s case plan was not complete.
{¶ 21} Thompson testified that Father was arrested for felonious assault the month
before the hearing and in July for a drug charge; R.A. had not seen his father since he -11-
visited Father in the hospital after Father was shot in March or April 2019.
{¶ 22} Thompson stated that granting custody to Grandmother was in R.A.’s best
interest, because the conditions in Mother’s home were worse at the time of the hearing
than they had been at the time of R.A.’s removal, and R.A. had “expressed a desire to
have closure and finality to his situation.”
{¶ 23} On cross-examination, when Thompson was asked if she had been in the
home since May 2019, Thompson responded, “No, they wouldn’t let me in last night.”
Thompson stated that the zoning issues were limited to the outside of the home.
Thompson testified that she asked Mother the night before the hearing if she had
completed the mental health assessment, and Mother stated that she had not.
Regarding J.W.’s recordings of Mother, Thompson testified that she had seen the camera
J.W. used to record everything and that there were “cameras throughout the home and
the outside of the home.” Thompson also testified that, inside the home, there “were
holes that looked like they were either kicked or punched in the walls.” Thompson
testified that, when she talked with Mother the day before the hearing, Mother did not ask
her about R.A. Mother and J.W. were leaving the home as Thompson arrived;
Thompson told them she was stopping by to remind them of the court date and asked
them “to come inside and * * * get an update. And they said no, that they were on their
way out.” Thompson testified that Mother “went on” about how she had fired her
attorney, was getting a continuance of the hearing, and still did not understand why R.A.
was taken away; Mother also denied having a positive drug screen.
{¶ 24} In response to a question by the court, Thompson stated that in May 2019
when she visited the home, Mother invited her in and they talked “for a good hour plus”; -12-
Mother stated that “ she normally can’t talk much because [J.W.’s] there and he monitors
everything that she does. But she was also getting ready to go pick him up and bail him
out of jail.” Thompson testified that Mother never specifically disclosed any physical
violence but talked a lot about J.W.’s controlling behavior. According to Thompson,
when talking with Mother, “it was hard to tell what was reality and what was delusional,”
or if Mother was under the influence of drugs, “but she was going in lots of circles talking
about how she thinks she had brain tumors, that she thinks [J.W.] * * * knows what’s
wrong with her medically and hides it from her; that she thought he was collecting
income.” Thompson suggested that Mother go to the ER if she felt ill, but that even
though they talked and Thompson gave Mother information, Mother “was still convinced
she was going to get [J.W.] out of jail and she wasn’t going to try to go to the shelter.”
{¶ 25} At the hearing, the guardian ad litem (GAL) recommended custody to
Grandmother, and her report was admitted.
{¶ 26} The magistrate found that MCCS had made reasonable efforts at
reunification and permanency. Based upon the testimony at the hearing, the magistrate
found that reunification was not possible because Mother had failed to address the
concerns that led to the child’s removal and his continued removal from her care. The
magistrate further found at the hearing:
As Ms. Thompson credibly testified, the conditions have actually
worsened since that removal. The home conditions remain in very poor
conditions, and mother has not * * * made any effort to make those
differences in that home. They apparently * * * do not have water and gas;
electricity issues have been an ongoing issue regarding this family, -13-
regarding those utilities.
Mother doesn’t have income for herself, and * * * the relationship with
* * * her boyfriend * * * is very poor. It’s a toxic, unhealthy relationship, and
that was an ongoing concern at the initial removal, as well.
Moreover, mother has not addressed substance abuse concerns.
That’s one of the primary issues of this case. She is engaged with
Pinnacle, but continues to test positive for multiple substances * * *.
And finally, there are issues with her relationship with [R.A.], and she
hasn’t demonstrated an ability to provide a safe and permanent home for
him. [R.A.] has done great with his grandmother. He has expressed that
that’s a safe and pleasant place for him to be. By all accounts, he is doing
well. A home study was approved. He is bonded * * * to her, and they
have a positive relationship. That’s the report from the CASA, as well as
from the caseworker. And she is clearly in the best position to provide for
his safety, health, welfare and overall well-being.
And after considering the pertinent best interest factors, the Court
finds that granting legal custody to [Grandmother] is in [R.A.’s] best interest.
{¶ 27} The magistrate’s order was consistent with these oral pronouncements,
stating that, after considering the best interest factors in R.C. 2151.414(D)(1) and R.C.
3109.04(F), the magistrate concluded that granting legal custody to Grandmother was in
R.A.’s best interest. The magistrate also concluded that counsel’s request to withdraw
was untimely and would cause unnecessary delay in the case.
{¶ 28} Mother filed objections to the magistrate’s conclusions on September 17, -14-
2019. MCCS filed a reply on September 26, 2019. Mother supplemented her
objections on January 9, 2020. In her supplemental objections, Mother asserted that the
magistrate’s decision was not supported by sufficient evidence and was against the
manifest weight of the evidence, that the magistrate erred in finding that there were
domestic violence issues in Mother’s home that had not been addressed, and that Mother
had not cured her housing issues or engaged in substance abuse treatment. Mother
acknowledged that she had not completed all of her case plan objectives, she argued that
she was at least in the process of completing them, and there would be “no harm in giving
her additional time to complete those objectives.” Mother also argued that a longer
transition period should have been explored, involving Mother, Grandmother, and R.A.;
“[t]his transition time would have allow[ed] Mother to complete her case plan objectives
and compel the entire family to be in family counseling which would bring these families
together instead of testing the relationship between [R.A.] and paternal grandmother – a
relationship that was in its infancy – by granting paternal grandmother legal custody.”
{¶ 29} MCCS filed a reply to Mother’s supplemental objections on January 30,
2020.
{¶ 30} On May 8, 2020, the juvenile court filed a judgment entry that overruled
Mother’s objections, adopted the magistrate’s findings, and granted legal custody to
Grandmother. The court reviewed the best interest factors set forth in R.C.
3109.04(F)(1) and in R.C. 2151.414(D). The court found:
* * * [L]egal custody of the child to [Grandmother] is in his best
interest. Neither Mother nor Father are able to adequately care for the
child. Mother has not completed her case plan objectives and has made -15-
little, if any, progress toward doing so. Father has not been in contact with
MCCS. The child needs to continue residing in a safe and stable home
environment and is in need of a legally secure and permanent placement,
which legal custody achieves. Further, the child has made progress in his
placement with his paternal grandmother where all his basic needs are
being met. Paternal grandmother is a relative who is willing and able to
care for the child and who has been meeting the child’s basic needs with
success. Based upon the testimony presented, the Court has serious
concerns about Mother’s ability to appropriately address the child’s needs.
{¶ 31} Mother appeals from the trial court’s judgment, raising three assignments
of error. Her first assignment of error states:
THE COURT ERRED IN REFUSING TO GRANT A REASONABLE
CONTINUANCE IN THIS MATTER.
{¶ 32} Mother argues that her motion for a continuance should have been granted
because the length of delay would have been minimal and it should not have taken new
counsel too long to review the file and prepare for the hearing. She also argues that,
because she had “legitimate reasons” for a continuance, she was under the impression
that the hearing would be continued and was not there to present her own account of the
events that had transpired or to speak concerning her son’s best interests.” She asserts
that she could have clarified whether the house had utilities, how and when holes came
to be in the wall of her home, and whether domestic violence had actually occurred if she
had been there. Mother also argues that she had no opportunity to express why she
was dissatisfied with her attorney’s representation in this matter, and therefore “the -16-
potential existed that the best interests of [R.A.] and her own constitutional interest in
raising her son were jeopardized through ineffective assistance of counsel.”
{¶ 33} MCCS responds that, because Mother’s motion “came at the eleventh
hour,” Mother herself was “the sole reason for both the motion itself and its last-minute
filing,” and a continuance would have unreasonably inconvenienced everyone else
involved, the juvenile court acted within its discretion in denying Mother’s motion.
{¶ 34} As this Court has noted:
The standard of review of a trial court's decision on a motion for
continuance of a trial is an abuse of discretion. State v. Unger (1981), 67
Ohio St.2d 65, 67, 21 O.O.3d 41, 423 N.E.2d 1078. “ ‘Abuse of discretion’
has been defined as an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83,
87, 19 OBR 123, 482 N.E.2d 1248. It is to be expected that most instances
of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.
“A decision is unreasonable if there is no sound reasoning process
that would support that decision. It is not enough that the reviewing court,
were it deciding the issue de novo, would not have found that reasoning
process to be persuasive, perhaps in view of countervailing reasoning
processes that would support a contrary result.” AAAA Ents., Inc. v. River
Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161, 553
N.E.2d 597.
“In evaluating a motion for a continuance, a court should note, inter -17-
alia: the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived; whether
the defendant contributed to the circumstance which gives rise to the
request for a continuance; and other relevant factors, depending on the
unique facts of each case.” Unger, 67 Ohio St.2d at 67-68, 21 O.O.3d 41,
423 N.E.2d 1078.
Hoening v. Frick, 187 Ohio App.3d 139, 2010-Ohio-1788, 931 N.E.2d 211, ¶10-12.
{¶ 35} We see no abuse of discretion in the juvenile court’s denial of Mother’s
request for a continuance. It is unclear how long any delay would have been to allow
Mother to obtain new counsel, and Mother had not previously requested any
continuances. She further did not express any dissatisfaction with counsel’s
representation at the June 26, 2019 hearing, and the magistrate found that counsel
“effectively represented mother for a substantial period of time.” We conclude that a
continuance would have been inconvenient for Grandmother and especially for R.A.
R.A. had been residing with Grandmother since the end of May, and at the time of the
June 26, 2019 hearing, Mother had not had a negative drug screen in over a year, and
she was using methamphetamines, fentanyl, and heroin. The trial court reasonably
concluded that Mother’s request for a continuance was not for a legitimate reason but
was contrived and dilatory. At the start of the June hearing, Mother indicated that she
was in favor of Grandmother obtaining custody, and she did not file a motion seeking the
return of his custody before the September hearing. Mother was aware of the date and -18-
time of the September hearing and simply did not appear. Her assertion that “the
potential existed” that R.A.’s best interests and her own interest in raising her son were
jeopardized is speculative. For the foregoing reasons, Mother’s first assignment of error
is overruled.
{¶ 36} We will consider Mother’s second and third assignments of error together.
They are as follows:
THE COURT ERRED IN FINDING THAT THE AGENCY HAD MADE
REASONABLE EFFORTS FOR PURPOSES OF REUNIFICATION AND
PERMANENCY.
THE COURT ERRED IN FINDING THAT REUNIFICATION IS NOT
POSSIBLE AND THAT GRANTING LEGAL CUSTODY OF THE CHILD TO
HIS GRANDMOTHER IS IN HIS BEST INTERESTS.
{¶ 37} Mother asserts in the second assigned error that the caseworker seems to
have done very little to assist Mother with reunification efforts other give Mother a
brochure. According to Mother, these efforts were insufficient, and the court erred in
finding that MCCS made reasonable efforts toward “reunification and permanency.”
{¶ 38} In her third assignment of error, Mother argues that, despite MCCS’s
concerns about whether her home had “working utilities, domestic violence and drug use,”
caseworker Thompson had not been inside Mother’s home since May 2019, months
before the September 11, 2019 hearing. Therefore, she asserts that the court’s
conclusion that the conditions had worsened since R.A.’s removal was unwarranted.
Mother also argues that Thompson “provided unverified hearsay, without objection,”
about whether the house had gas and running water. Mother was unable to rebut these -19-
claims because she “was under the impression that the hearing had been continued, and
was not present to shed light on this issue.”
{¶ 39} Mother further asserts that, while Thompson indicated that she directed
Mother to the Job Center, J.W. had plenty of income, and it did not appear that the couple
needed assistance. Regarding domestic violence, Mother asserts that Thompson did
not know how the holes in the walls were made and that, according that Thompson,
Mother had “never disclosed the existence of physical violence – just that her paramour
was controlling.” Finally, Mother asserts that she was attending drug treatment and
reported she was sober, she wanted custody of R.A., and she did not understand why he
was removed from her home.
{¶ 40} As this Court has previously noted, a “court may award legal custody of a
dependent child to a parent or to any other person who asks for legal custody or is
proposed as a legal custodian.” R.C. 2151.353(A)(3); In re R.H.B., L.M.B., and L.M.B.,
2d Dist. Clark Nos. 2015-CA-12, 2015-CA-14, 2016-Ohio-729, ¶ 7. Further,
When a juvenile court makes a custody determination under R.C.
2151.353, it must do so in accordance with the “best interest of the child”
standard set forth in R.C. 3109.04(F)(1). See In re Poling, 64 Ohio St.3d
211, 594 N.E.2d 589, 1992-Ohio-144, paragraph two of the syllabus, and
R.C. 2151.23(F)(1) (requiring a juvenile court to exercise its jurisdiction in
accordance with R.C. 3109.04 as well as other sections of the Ohio Revised
Code). The factors a court must consider in determining a child's best
interest include such things as the parents' wishes; the child's wishes, if the
court has interviewed the child; the child's interaction with parents, siblings, -20-
and others who may significantly affect the child's best interests; adjustment
of the child to home, school, and community; and the mental and physical
health of all involved persons. * * *
In re D.S., 2d Dist. Clark No. 2013 CA 51, 2014-Ohio-2444, ¶ 9.
{¶ 41} As this Court has further noted:
In a legal custody dispute, as opposed to a more drastic termination
of parental rights, a court must find by a preponderance of the evidence that
its decision is in the child's best interest. In re A.W., 2d Dist. Montgomery
No. 21309, 2006-Ohio-2103, ¶ 6. “Preponderance of the evidence simply
means ‘evidence which is of a greater weight or more convincing than the
evidence which is offered in opposition to it.’ ” In re Starks, 2d Dist. Darke
No. 1646, 2005-Ohio-1912,, ¶ 15, quoting Black's Law Dictionary 1182 (6th
Ed. 1998). * * * “A finding of an error in law is a legitimate ground for
reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 81, 461
N.E.2d 1273 (1984).
In re R.H.B., L.M.B., and L.M.B. at ¶ 19.
{¶ 42} We will not reverse the trial court's award of legal custody absent an abuse
of discretion. In re M.O., 2d Dist. Montgomery No. 26457, 2015-Ohio-2430, ¶ 7; In re J.T.,
2d Dist. Montgomery No. 27343, 2017-Ohio-1303, ¶ 10.
{¶ 43} As noted by the Ohio Supreme Court:
The discretion which a trial court enjoys in custody matters should
be accorded the utmost respect, given the nature of the proceeding and the -21-
impact the court's determination will have on the lives of the parties
concerned. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to
a reviewing court by a printed record. Trickey v. Trickey, (1952), 158 Ohio
St. 9, 13, 47 O.O. 481, 483, 106 N.E.2d 772, 774. In this regard, the
reviewing court in such proceedings should be guided by the presumption
that the trial court's findings were indeed correct. See Seasons Coal Co. v.
Cleveland, (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d
1273, 1276.
Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶ 44} R.C. 2151.419(A)(1) provides:
Except as provided in division (A)(2) of this section, at any hearing
held pursuant to section 2151.28, division (E) of section 2151.31, or section
2151.314, 2151.33. or 2151.353 of the Revised Code at which the court
removes a child from the child's home or continues the removal of a child
from the child's home, the court shall determine whether the public children
services agency or private child placing agency that filed the complaint in
the case, removed the child from home, has custody of the child, or will be
given custody of the child has 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. The agency shall have the burden of proving
that it has made those reasonable efforts. * * * In determining whether -22-
reasonable efforts were made, the child's health and safety shall be
paramount.
{¶ 45} Regarding Mother’s second assignment of error, the record reflects that
MCCS developed a case plan for Mother as required by R.C. 2151.412. MCCS also
provided information and referrals, conducted home visits and home studies, provided
case management services and transportation assistance. Mother was given a
highlighted resource directory for services (and directly advised by the magistrate that it
was her responsibility to follow through). Mother did not complete her case plan. The
juvenile court reasonably concluded that MCCS established that it made reasonable
efforts to reunify Mother and R.A. Mother’s second assignment of error is overruled.
{¶ 46} Finally, the juvenile court reasonably concluded that reunification was not
possible within a reasonable time and that granting legal custody to Grandmother was in
R.A.’s best interest. As noted above, Mother agreed to the interim order granting
custody to Grandmother, she did not seek a return of custody from the court, and she
failed to attend the final hearing. Grandmother and R.A. were bonded, and R.A. was
bonded to other family members of Grandmother. R.A. had been in the home since May
2019. Thompson testified that R.A. was the happiest she had ever seen him and that
R.A. considered Grandmother’s home his own. She testified that Grandmother’s home
was safe, stable, and away from the conflict that characterized his placement with R.H
and J.H. Thompson testified that R.A. relayed that he often did not speak with Mother,
that she was not very kind to him during visitation, and that Mother did not ask her about
R.A. before the September hearing. She also testified that R.A. was adjusting, making
some new friends, and doing well academically. She testified that Grandmother would -23-
obtain counseling for R.A. if the need arose.
{¶ 47} Regarding Mother’s mental health, the evidence revealed that she failed to
make progress with her serious substance abuse issues, repeatedly testing positive for
methamphetamines, fentanyl, and heroin. Mother failed to pass 39 out of 39 drug
screens. Thompson did not believe Mother was cognitively or mentally stable, and
Mother repeatedly refused to complete the mental health assessment.
{¶ 48} The trial court reasonably concluded that R.A. needed a legally secure
permanent placement. Thompson testified that he wanted closure and finality. In
addition to her serious substance abuse issues, Mother still lacked suitable housing due
to issues with utilities, and she had no income of her own. Despite her assertion that
J.W. had sufficient income, his income had not been verified, and the couple struggled to
maintain their utilities. Regarding Mother’s assertion about the condition of her home,
we note that at the time of the complaint, the home was without water, and at the time of
Thompson’s last visit in May 2019, there was no gas or water, and the home smelled of
chemicals and urine. The juvenile court reasonably concluded that the conditions in the
home had worsened.
{¶ 49} Mother had previously reported incidents of domestic violence to
Thompson. The GAL’s report stated that R.A. had reported witnessing J.W. “physically
and emotionally abusing Mother,” and that Mother had admitted to the GAL that she was
a victim of domestic violence and wished to leave J.W. Mother and J.W. had been
verbally assaultive to Grandmother when she arrived to pick up R.A., causing her to feel
unsafe. The juvenile reasonably determined that, based on to the best interest factors
in R.C. 3109.04(F)(1) and R.C. 2151.414(D), legal custody of R.A. to Grandmother was -24-
in the child’s best interest by a preponderance of the evidence. There being no abuse
of discretion, Mother’s third assignment of error is overruled.
{¶ 50} The judgment of the juvenile court is affirmed.
FROELICH, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Jamie J. Rizzo Charles W. Slicer, III Father Grandmother Hon. Anthony Capizzi