In re R.S.

2017 Ohio 2835

• Court: Ohio Court of Appeals
• Decided: May 17, 2017
• Docket: 27857, 28073
• Status: Published

Opinion

[Cite as In re R.S., 2017-Ohio-2835.]

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

IN RE: R.S. C.A. Nos. 27857 28073

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 13-10-644

DECISION AND JOURNAL ENTRY

Dated: May 17, 2017

CALLAHAN, Judge.

{¶1} Appellant, Linda S. (“Mother”), appeals from two judgments of the Summit

County Court of Common Pleas, Juvenile Division: one that placed her minor child in the legal

custody of a maternal aunt, and a later judgment that decreased her weekly parenting time with

the child from two to three unsupervised, overnight visits to two supervised visits of no more

than four hours. This Court affirms.

I.

{¶2} Mother is the biological mother of R.S., born September 7, 2011, the only child at

issue in this appeal. The child’s father did not appeal from the trial court’s judgments. Mother

has older children who were removed from her custody many years ago because Mother had

serious mental health problems and abused some of her children. Mother was convicted of

felony child endangering and served a seven-year term of incarceration. Although Mother would

later describe her acts of abuse as extreme physical discipline, CSB described the acts as torture, 2

explaining that Mother had repeatedly inflicted pain on her children by beating and burning

them, forcing them to eat their own vomit, and withholding medical treatment.

{¶3} Mother has suffered from serious mental health problems since childhood and has

received treatment only intermittently over the years. On October 2, 2013, R.S. was removed

from Mother’s custody pursuant to Juv.R. 6 because Mother was admitted to a hospital

psychiatric ward and CSB was unable to find a relative to care for the child at that time. Mother

was not taking her prescribed psychiatric medications and was exhibiting symptoms of

delusional thinking. Mother remained in treatment for 90 days pursuant to an involuntary

commitment order of the probate court.

{¶4} Mother later agreed that R.S. should be adjudicated a dependent child and be

placed in the temporary custody of CSB. Mother’s visits with R.S. were initially supervised

because her irrational thinking posed a threat to the child. After Mother appeared to have

stabilized her mental health through counseling and medication, the trial court expanded

Mother’s visits with R.S. to unsupervised, overnight visits in Mother’s home.

{¶5} CSB eventually moved to place R.S. in the legal custody of a maternal aunt

(“Aunt”), with whom he had been living for the past year. Mother alternatively moved for legal

custody of R.S. Prior to the final dispositional hearing, CSB moved for an order to relieve it

from making reasonable efforts to reunify R.S. with Mother because Mother had been convicted

of felony child endangering with respect to the child’s older siblings. See R.C.

2151.419(A)(2)(a). The trial court issued a reasonable efforts bypass order two days later.

{¶6} The matter proceeded to a hearing before a magistrate on the competing motions

for legal custody. Evidence at the hearing revealed that, although Mother was taking psychiatric

medication, she was no longer in counseling and CSB, mental health experts, and the guardian ad 3

litem continued to have concerns about the ongoing stability of her mental health. The

magistrate decided that legal custody to Aunt was in the best interest of R.S. Mother filed timely

objections to the magistrate’s decision. The trial court later overruled her objections and placed

R.S. in the legal custody of Aunt. The trial court also ordered, among other things, that Mother

pay no child support, that she have two overnight visits with R.S. each week, and that Aunt had

the discretion to schedule a third overnight visit depending on “her assessment of Mother’s

stability.”

{¶7} One month later, without notifying Aunt or CSB, Mother contacted Akron

Children’s Hospital and R.S.’s counselor to report that R.S. had disclosed numerous acts of

abuse by Aunt. An investigation failed to reveal any abuse. Instead, CSB became concerned

that Mother was exhibiting symptoms of distorted thinking, as her allegations were incredible

and tended to reflect her own acts or thoughts about abuse of children.

{¶8} CSB moved to restrict Mother’s visits with R.S. and requested an immediate

hearing on the motion. The agency requested that Mother’s visits with R.S. be supervised

because it was concerned about Mother’s mental health and believed that she posed a risk to R.S.

if unsupervised visits were to continue. That same day, the trial court issued a temporary order

that Mother’s visits with R.S. be supervised, pending a hearing and further order of the court.

Following a hearing before a magistrate and, after overruling Mother’s objections to the

magistrate’s decision, the trial court ordered that Mother’s visits be supervised and that they be

reduced to two visits of “up to four hours.”

{¶9} Mother appealed from each judgment and her appeals were later consolidated.

She raises four assignments of error to the trial court’s legal custody judgment (Appeal Number

27857) and two assignments of error to its modification of her parenting time with R.S. (Appeal 4

Number 28073). This Court will address each appeal separately and will consolidate some of the

assigned errors for ease of review.

II.

Appeal Number 27857

ASSIGNMENT OF ERROR NUMBER ONE

THE JUVENILE COURT[’S] AWARD OF LEGAL CUSTODY TO [AUNT] IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶10} Mother’s first assignment of error briefly argues that R.S. should have been

placed with her rather than in the legal custody of Aunt. “Following an adjudication of neglect,

dependency, or abuse, the juvenile court’s determination of whether to place a child in the legal

custody of a parent or a relative is based solely on the best interest of the child.” See In re K.H.,

9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. “Although there is no specific test or set of

criteria set forth in the statutory scheme, courts agree that the trial court must base its decision

[regarding legal custody] on the best interest of the child.” In re N.P., 9th Dist. Summit No.

21707, 2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. Butler No. CA2002-09-236, 2003-

Ohio-5984, ¶ 11.

{¶11} Mother does not make an argument about the best interest of R.S. but instead

argues that “there is no reason why” she should not have received legal custody of him because

she had made progress on the reunification requirements of the case plan. Although Mother’s

progress on the case plan may have been relevant to the best interest of R.S., it was not

dispositive. See, e.g., In re K.C., 9th Dist. Summit Nos. 26992, 26993, 2014-Ohio-372, ¶ 22,

citing In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 21.

{¶12} Moreover, the record reveals that Mother had not fully complied with the mental

health component of the case plan. R.S. was removed from Mother’s custody because she has 5

serious and long-standing mental health problems and was not engaged in any treatment when

this case began. Mother had reported mental health problems dating back to her childhood, but

she tended to minimize her mental illness and her need for ongoing treatment.

{¶13} Several mental health providers testified at the hearing about Mother’s mental

illness. Mother was diagnosed with delusional disorder, persecutory type, which is characterized

by distorted thinking, including false beliefs, unjustified suspicions of others, and intense

emotions. Mother required psychiatric medication to control her delusions. Mother was also

diagnosed with a personality disorder, which is characterized by a lack of insight and judgment

and an inability to accept responsibility for her actions. Mother exhibited “maladaptive

personality traits” that included a history of instability and irresponsibility. Mother’s diagnoses

are pervasive and require long-term treatment through counseling and medication. At the time of

the hearing, Mother was taking medication but was not involved in any counseling.

{¶14} Mother’s pervasive mental health diagnoses were linked to her past abuse of her

older children, yet Mother did not understand how her abuse of her older children was related to

her current ability to provide a safe home for R.S. Mother failed to accept any responsibility for

the severe abuse that she imposed on her older children and she was not willing and/or able to

discuss the details of that abuse, except that she burned one of the children. Mother’s own

testimony demonstrated a lack of insight into the relevance of her past abusive acts. She

suggested that she posed no threat to R.S. because she is now older, no longer abuses drugs or

alcohol, and does not use physical discipline.

{¶15} Although Mother’s observed interaction with R.S. had been appropriate,

witnesses expressed concern that Mother has engaged in mental health treatment only

intermittently during her life and has not always sought treatment voluntarily. At the beginning 6

of this case, Mother did not seek treatment until she was ordered by the probate court, and then

the juvenile court, to do so. Several witnesses, including one of Mother’s former counselors,

expressed their belief that Mother may again stop mental health treatment if the juvenile court

were no longer involved in her life.

{¶16} On the other hand, there was undisputed evidence that R.S. had settled into a

loving and stable environment in Aunt’s home, where all of his needs were being met. Aunt has

no mental health or substance abuse problems, has stable income and housing, and CSB and the

guardian ad litem supported her having legal custody of R.S. Because Mother has failed to

demonstrate that legal custody to Aunt was not in the best interest of R.S., her first assignment of

error is overruled.

ASSIGNMENT OF ERROR NUMBER TWO

THE JUVENILE COURT COMMITTED REVERSIBLE AND PLAIN ERROR WITH ITS LACK OF REASONABLE EFFORTS FINDINGS PROMOTING REUNIFICATION WITH THE FAMILY.

{¶17} Mother’s second assignment of error pertaining to the legal custody judgment is

that the trial court erred by failing to make findings that CSB had made reasonable efforts to

reunify R.S. with Mother. R.C. 2151.419(A)(1) requires a trial court to make a reasonable

efforts finding at a legal custody hearing “[e]xcept as provided in division (A)(2) of this

section[.]” R.C. 2151.419(A)(2)(a)(iii) provides that, if the parent from whom the child was

removed has been convicted of felony child endangering under R.C. 2919.22(B), “the court shall

make a determination that the agency is not required to make reasonable efforts” to prevent the

continued removal of the child from the home.

{¶18} Prior to the final dispositional hearing in this case, CSB moved for a reasonable

efforts bypass based on Mother’s prior felony child endangering convictions of R.S.’s siblings 7

under R.C. 2919.22(B) and the trial court in this case excused CSB from making reasonable

reunification efforts. Consequently, the trial court was not required to make reasonable efforts

findings at the final dispositional stage of the proceedings and did not err in failing to do so.

Mother’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER THREE

THE JUVENILE COURT COMMITTED REVERSIBLE AND PLAIN ERROR WITH ITS CHILD SUPPORT ORDERS.

ASSIGNMENT OF ERROR NUMBER FOUR

APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

{¶19} Mother’s third and fourth assignments of error pertaining to the legal custody

judgment will be consolidated because they are closely related. Through her third assignment of

error, Mother argues that the trial court erred in its calculation of child support. Through her

fourth assignment of error, Mother argues, in part, that her trial counsel was ineffective for

failing to challenge the child support calculation. Although she assigns error to the manner in

which the trial court calculated child support, the court ordered her to pay zero dollars in child

support.

{¶20} “‘An appeal lies only on behalf of the party who is aggrieved by the judgment.’

The sole purpose of an appeal is to provide the appellant an opportunity to seek relief in the form

of a correction of errors of the lower court that injuriously affected [her].” (Internal citations

omitted.) BFG Fed. Credit Union v. CU Lease, Inc., 9th Dist. Summit No. 22590, 2006-Ohio-

1034, ¶ 36. “The burden is on the appellant to establish that [she] is an aggrieved party whose

rights have been adversely affected by the trial court’s judgment.” State v. Senz, 9th Dist. Wayne

No. 02CA0016, 2002–Ohio–6464, ¶ 5. Because Mother has not argued or demonstrated that she 8

was aggrieved by the trial court’s child support calculations, this Court will not reach the merits

of those arguments.

{¶21} Mother also argues through her fourth assignment of error that her trial counsel

was ineffective for not immediately moving the trial court to order CSB to comply with the pre-

hearing order that expanded her visitation with R.S. Before this problem was ultimately resolved

upon a motion filed by Mother’s trial counsel, the record suggests that CSB did not fully comply

with the expanded visitation schedule for approximately two to three months. By the time of the

final dispositional hearing, all parties were complying with the expanded visitation schedule.

Mother’s challenge on appeal is that her trial counsel was ineffective for not resolving the

problem sooner and, as a result, she missed two to three months of expanded visits with her

child.

{¶22} Even if trial counsel erred by failing to seek an earlier correction of the parties’

failure to comply with the expanded visitation order, this Court cannot provide Mother with any

effective relief. The duty of this Court on appeal “is to decide actual controversies * * * [and

not] to declare principles or rules of law which cannot affect the matter in issue in the case before

it.” State ex rel. Eliza Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 74 (1990). This Court will not

decide an issue if it is “impossible for this court, if it should decide the case in favor of the

[appellant], to grant [her] any effectual relief whatever[.]” Id.

{¶23} Although Mother was prejudiced by the parties’ failure to comply with the

expanded visitation schedule for two to three months, that time period has passed and there is

nothing that this Court can do to enforce a temporary visitation order that has already expired.

See, e.g., Stemock v. Stemock, 11th Dist. Trumbull No. 2007-T-0072, 2008-Ohio-1131, ¶ 23-24.

Because this Court cannot afford Mother any effective relief, we are unable to address the merits 9

of her second argument under her fourth assignment of error. Because she fails to raise any

justiciable controversies, this Court will not reach the merits of Mother’s third and fourth

assignments of error.

Appeal Number 28073

{¶24} Mother also timely appealed from the trial court’s post-judgment order that

decreased her weekly visitation time with R.S. from three unsupervised, overnight visits in her

home to two supervised visits of up to four hours. Although CSB argues that the order

decreasing Mother’s visitation time is not a final, appealable order, this Court is not persuaded

by that argument. CSB does not dispute that Mother has a substantial right to spend time with

her child or that the trial court affected that right by seriously decreasing the time that she can

spend with her child each week and by imposing a requirement that the visits be supervised

rather than unsupervised.1 Instead, CSB suggests that Mother will have the opportunity to

challenge this order at some time in the future. We disagree.

{¶25} CSB relies on In re Boehmke, 44 Ohio App.3d 125 (8th Dist.1988) and In re T.G.,

12th Dist. Butler No. 2008-01-026, 2008-Ohio-4165, both of which involved appeals from

temporary visitation orders entered by the juvenile court prior to its final disposition of the child.

The appeal in this case is from a trial court’s post-judgment modification of the visitation

schedule. Consequently, this Court will address the merits of Mother’s two consolidated

THE TRIAL COURT’S DECISION TO OVERRULE MOTHER’S OBJECTIONS TO THE MAGISTRATE’S DECISION WAS AN ABUSE OF DISCRETION.

1 This Court need not address the issue of whether a minor modification of post-judgment visitation time would constitute a final, appealable order. 10

THE TRIAL COURT’S FACTUAL FINDINGS THAT MOTHER “HELD HERSELF OUT AS THE LEGAL CUSTODIAN” OF THE MINOR CHILD, AND THAT “SHE DOES NOT BELIEVE THE ALLEGATIONS” OF SEXUAL ABUSE BY THE MINOR CHILD, WERE NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.

{¶26} Mother’s assignments of error pertaining to the modification of her parenting time

with R.S. challenge some of the trial court’s factual findings. During the hearing, CSB presented

evidence about Mother calling Akron Children’s Hospital and then taking R.S. there because,

according to her, R.S. had reported incidents of abuse by Aunt. The focus of these post-

judgment proceedings, however, was on Mother’s behavior and the state of her mental health.

{¶27} The evidence presented at the hearing included that Mother did not contact CSB

or Aunt about any of this, but that she called Akron Children’s Hospital on June 29, 2015 to

report that R.S. had told her about Aunt sexually abusing him. Four days later, Mother took R.S.

to the emergency room at Akron Children’s Hospital. At that time, according to the social

worker who spoke to her, Mother had no recollection of calling the hospital before, but instead

said that CSB had told her to come. Mother told the social worker that R.S. had told her about

several incidents of abuse by Aunt, including that she made him put his penis in her butt and got

poop on his penis, that she burned his leg with a lighter as a form of punishment, and that she

locked him in his room and left him alone in the home at night. The social worker, who was

trained to interview children about abuse, spoke to R.S., who did not corroborate anything that

Mother had told her.

{¶28} Mother also shared similar allegations with the counselor for R.S. The counselor

spoke to R.S., but R.S. did not substantiate any of the abuse allegations. In fact, he told his 11

counselor that it was Mother who had locked him in his room and that he had become very upset

about it.

{¶29} Aunt explained to the caseworker that R.S. had a bowel movement in his training

pants, which had gotten on his penis, and that she had to clean him. Aunt believed that Mother

must have misunderstood what R.S. told her about the incident. CSB’s investigation ruled out

any abuse by Aunt. Instead, its investigation gave rise to renewed concerns that Mother’s

thinking had become distorted and that she posed a threat to R.S. if their visits were not

supervised. Despite repeated requests that she allow CSB or the guardian ad litem to speak to

her mental health providers to assess the status of her treatment, Mother refused to do so.

{¶30} Mother’s only challenge on appeal is that the trial court made unsupported factual

findings that she did not believe that R.S. had been sexually abused and that she held herself out

as the child’s legal custodian when she took him to the hospital. Those factual findings, even if

incorrect, had no bearing on the trial court’s concern about the stability of Mother’s mental

health. The evidence at the hearing emphasized Mother’s extensive and unsubstantiated

allegations about Aunt, which implied that her thinking had again become distorted. Mother’s

strange behavior, coupled with her refusal to allow the agency or guardian ad litem to

communicate with her mental health providers, were the focus of the trial court’s decision to

restrict Mother’s visits with R.S. Because Mother has failed to demonstrate any prejudicial error

in the trial court’s decision, her assignments of error are overruled.

III.

{¶31} Mother’s first and second assignments of error in appeal number 27857 are

overruled. Her third and fourth assignments of error in that appeal were not addressed because

they did not raise justiciable challenges. Mother’s assignments of error in appeal number 28073 12

are overruled. The judgments of the Summit County Court of Common Pleas, Juvenile Division,

are affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

LYNNE S. CALLAHAN FOR THE COURT

HENSAL, P. J. CARR, J. CONCUR. 13

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SUSAN J. LAX, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.