In re S.D.T.

2021 Ohio 2106

• Court: Ohio Court of Appeals
• Decided: June 24, 2021
• Docket: 109996
• Status: Published

Opinion

[Cite as In re S.D.T., 2021-Ohio-2106.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE S.D.T. : : No. 109996 A Minor Child : : [Appeal by S.S., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 24, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-19905673

Appearances:

The Law Office of R. Tadd Pinkston, L.L.C., and R. Tadd Pinkston, for appellant.

William Daugherty Law, L.L.C., and William Daugherty, for appellee D.T.

MARY EILEEN KILBANE, J.:

Appellant S.S. (“Mother”) appeals from the juvenile court’s decision

awarding legal custody of her minor child, S.D.T., to appellee D.T. (“Father”). For

the following reasons, we affirm the decision of the trial court. Factual and Procedural History

On May 9, 2019, the Cuyahoga County Division of Children and

Family Services (“CCDCFS” or “the agency”) filed a complaint alleging that minor

children S.D.T., then nine years old, and C.N., then 18 months, were abused and

neglected and seeking temporary custody of the children.1 The agency

simultaneously filed a motion for emergency predispositional custody of the

children. The complaint alleged that both children were observed with various

injuries and Mother was unable to provide an explanation for the injuries.

Specifically, the complaint alleged that S.D.T. had multiple lacerations to her face,

back, arms, neck, and head, and that at least two of these injuries should have been

treated with stitches but were not. Therefore, the complaint alleged that Mother

failed to meet S.D.T.’s medical needs by ensuring that her injuries were properly

treated. The complaint also alleged that Mother failed to meet S.D.T.’s educational

needs because S.D.T. missed an excessive amount of school and was ultimately

withdrawn from school. Additionally, the complaint alleged that Mother failed to

1Father D.T. is not the biological father of C.N. The trial court in this case granted the agency’s motion for an extension of temporary custody of C.N. and Mother did not appeal this decision. Father did not receive legal custody of C.N.; therefore, C.N. is not the subject of this appeal. consistently seek treatment for her depression and bipolar disorder, which seriously

impacted her ability to care for her children.

With respect to Father, the complaint alleged that he had failed to

support, visit, or communicate with S.D.T. consistently. At the time the complaint

was filed, Father had not seen S.D.T. in approximately seven years.

On May 8, 2019, the children were placed in temporary custody of the

agency. On July 9, 2019, Father filed a motion for legal custody of S.D.T. On July

17, 2019, the court adjudicated S.D.T. abused and neglected.

On July 22, 2019, the court held a hearing in which the agency stated

that it was “open-minded in regards to [Father],” but it was waiting for the results

of a pending out-of-town investigation (“OTI”) because Father lived in Atlanta,

Georgia. The social worker assigned to the case explained that Mother’s case plan

services related to substance abuse, mental health, and parenting. There were no

case plan goals or services for Father, and the social worker testified that should any

case plan goals be added for Father, it would be limited to continuing to foster a

relationship with S.D.T. The social worker testified that Father came to Cleveland

when the agency first initiated this case, and that was the first time that he had seen

or communicated with S.D.T. and Mother since they relocated to Ohio from Georgia

approximately seven years before. The record reflects that this lack of

communication was not due to Father’s lack of commitment. When Mother left

Georgia with S.D.T., Father did not know the child’s whereabouts and was not

allowed access to S.D.T. The social worker also testified that although Father lived in Georgia, he had regular phone contact with S.D.T. and had made multiple trips to

Cleveland to visit S.D.T. since the start of this case. At the time of the hearing, the

permanency plan was for both children to be reunited with Mother. Following the

hearing, the court awarded temporary custody of S.D.T. to the agency.

On March 19, 2020, the agency filed a motion for an extension of

temporary custody. On May 12, 2020, Mother filed a motion for legal custody of

both children. On May 19, 2020, the court had a hearing on these motions. At this

hearing, the child protection specialist newly assigned to the case testified that since

being assigned to this case in April 2020, she had been unable to review the case file

kept by the social worker previously assigned to the case, partly due to the COVID-

19 pandemic. This witness went on to testify that she understood that Mother had

completed her case plan services and had begun to have overnight visits with her

children. When Father’s counsel cross-examined this witness, she could not

respond to questions as to why S.D.T. could not be placed with Father and she

testified that she had not had any contact with Father since being assigned to this

case.

During one of the overnight visits between Mother and S.D.T., the

agency learned that Mother’s paramour was present in the home with the children,

despite Mother making inconsistent claims that the individual was a relative or a

coworker. According to the agency, this was alarming because the agency had

reason to believe that this individual was involved in S.D.T.’s injuries that prompted

the agency’s involvement with the family. This individual was listed on S.D.T.’s intake referral form at the hospital when she was ultimately treated for her injuries,

and according to the agency, this individual and Mother provided inconsistent

explanations as to how S.D.T. was injured. Further, although this individual may

have been living with Mother, because of inconsistent information received about

the individual’s relationship to Mother, the agency was unable to fully investigate

this individual. Ultimately, the agency believed that this individual might pose a

safety risk to the children.

The agency’s supervising social worker testified that following

Father’s out-of-town investigation, an Interstate Compact on the Placement of

Children (“ICPC”) was completed and denied in February 2020, due to concerns

relating to Father’s girlfriend, with whom he lived. This witness testified that

beyond these concerns regarding Father’s girlfriend, the agency did not have other

concerns regarding Father. Further, the witness testified that because the OTI was

denied based on an incident from seven years ago that appears to have been

resolved, it was unclear what, if anything, Father could do moving forward to

remedy the issue that caused the ICPC to be denied.

In the middle of the supervising social worker’s testimony, the court

interrupted the testimony as follows:

THE COURT: You know what, I’m going to interrupt here. And my apologies to everyone. I am very concerned about the fact that neither — from the agency, neither person seems to have the file or know what’s going on and I’m being asked to make a dispositive placement of one of these children and it would seem that with all due respect, to [the agency witnesses], neither one of them is well versed in this case. So I’m going to recess this hearing right now. And I would like at least one of the witnesses to review the file and the facts and the report because this is concerning. And I’ve sat and listened for over an hour and I’ve gotten “I don’t know,” “I’m not sure,” “to the best of my knowledge.” We’re talking about two very young children. Okay.

The court adjourned to allow the witnesses to review the case file and better prepare

for a subsequent dispositional hearing on May 28, 2020.

On May 21, 2020, Father filed a second motion for legal custody of

S.D.T. On May 28, 2020, the court held the subsequent dispositional hearing on all

of the pending motions. At this hearing, agency witnesses testified that Mother had

completed her substance abuse case plan services in January 2020, had completed

random drug screens that came back negative as recently as May 21, 2020, and had

completed her domestic violence case plan services in August 2019. With respect to

her mental health plan case services, the witnesses testified that Mother was initially

engaged with the recommended counseling services pursuant to her case plan, but

in recent months had stopped counseling but continued to be medication compliant.

The witnesses also testified regarding the ICPC denial and explained

that Father’s girlfriend had been involved with child protective services in Georgia

in 2013 due to testing positive for marijuana. They went on to testify that based on

the ICPC, they had no concerns that Father would be unable to provide for S.D.T.’s

basic needs or would otherwise be unsuitable. Father had undergone a drug screen

as part of the ICPC, and those results were negative. The witnesses testified that

S.D.T. was “very receptive” to seeing and visiting with Father, and that he had shown

continued commitment reestablishing a connection with her. The guardian ad litem recommended that legal custody of S.D.T. be

awarded to Father because he was “ready, willing, and able” to parent S.D.T. and the

agency had no outstanding concerns or case plan services for him to complete.

The magistrate denied Mother’s motion for legal custody and granted

Father’s motion for legal custody of S.D.T. Mother objected to the magistrate’s

decision, and the trial court overruled Mother’s objections and adopted the

magistrate’s decision. The court made the following findings:

The continued extension of temporary custody of the child is not in the child’s best interest.

The Court further finds that the Cuyahoga County Division of Children and Family Services has made reasonable efforts and continues to make reasonable efforts to make it possible for the child to safely return home through the provision of supportive services.

The Cuyahoga County Division of Children and Family Services has made reasonable efforts to finalize the permanency plan for the child. These efforts are mother was referred to Murtis Taylor to address her mental health. Mother is diagnosed with Bipolar and depression. Mother is medication compliant but needs to re-engage with counseling. Mother completed a substance abuse assessment through Key Solutions and random drugs screens have been negative. Mother completed domestic violence services at the Domestic Violence and Child Advocacy Center. Father has re-established a relationship with his child, maintaining phone/face time contact and driving up from Georgia to visit the child. Father cooperated with the out of [town] investigation of his home in Georgia. There were no identified services for father to complete in the case plan.

GAL recommends that the child be placed in the legal custody of the father [D.T.]. GAL cites to father’s demonstrated dedication and commitment to his child, always standing ready and being willing and able to care for her. GAL reports father drove through the night to get to Cleveland for the emergency hearing held at the inception of this case. GAL further advised the Court that father had a relationship with his child until the mother moved from Georgia to Cleveland. GAL does not view the 7 year old, resolved marijuana issue of father’s paramour as a barrier to placement with the father.

ICPC letter of denial dated February 6, 2020 is marked as Exhibit A and admitted without objection.

Review of Exhibit A reveals that father and paramour are both employed, their home is appropriate and they can meet the basic needs of their family. Further there has not been any children services involvement with father or his paramour since 2013.

Mother now appeals, presenting one assignment of error for our review.

Law and Analysis

In Mother’s sole assignment of error, she argues that the trial court’s

decision to affirm legal custody to father was against the manifest weight of the

evidence and an abuse of discretion. Specifically, Mother argues that the manifest

weight of the evidence did not support granting Father legal custody of S.D.T. and

that the trial court abused its discretion in overruling her objections and adopting

the magistrate’s decision.

R.C. 2151.353(A) provides that after a child has been adjudicated

abused, neglected, or dependent, the trial court may

[a]ward 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.

R.C. 2151.353(A)(3). Legal custody is

a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities.

R.C. 2151.011(B)(21).

Unlike an award of permanent custody, an award of legal custody

does not divest parents of residual parental rights and responsibilities, nor does an

award of legal custody permanently foreclose the right of either parent to regain

custody in accordance with the law. In re R.B., 2019-Ohio-1656, 136 N.E.3d 42, ¶

48 (8th Dist.), citing In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d

1188, ¶ 23; see also R.C. 2151.42.

Because legal custody, where parental rights are not terminated, is

not as drastic a remedy as permanent custody, the trial court’s standard of review in

a legal custody proceeding is not clear and convincing evidence, but “merely

preponderance of the evidence.” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-

Ohio-5514, ¶ 7, citing In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097,

¶ 52. The court must determine the appropriateness of legal custody in accordance

with the best interest of the child as supported by a preponderance of the evidence

presented at the dispositional hearing. In re R.B., 2019-Ohio-1656, 136 N.E.3d 42,

¶ 48 (8th Dist.), citing In re T.R., 8th Dist. Cuyahoga No. 102701, 2015-Ohio-4177,

¶ 44. A “preponderance of the evidence” is “evidence that’s more probable, more

persuasive, or of greater probative value.” In re D.P. at ¶ 52, quoting State v. Finkes,

10th Dist. Franklin No. 01AP-310, 2002 Ohio App. LEXIS 1422 (Mar. 28, 2002). Because the decision whether to grant or deny a request for legal

custody is within the sound discretion of the juvenile court, we apply an abuse of

discretion standard when reviewing a juvenile court’s ultimate decision on legal

custody. In re A.C., 8th Dist. Cuyahoga No. 108442, 2019-Ohio-5127, ¶ 16, citing In

re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 2, quoting In re G.M.,

8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14. We likewise review a trial

court’s decision to adopt a magistrate’s decision for abuse of discretion. Id., citing

In re D.G.B., 8th Dist. Cuyahoga No. 107921, 2019-Ohio-3571, ¶ 24. An abuse of

discretion connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Apart from the requirement that the child be previously adjudicated

as abused, neglected, or dependent — which no party disputes was satisfied in this

case — the court’s authority to award legal custody under R.C. 2151.353(A)(3) is

limited only by the best interests of the child. In re W.A.J., 8th Dist. Cuyahoga No.

99813, 2014-Ohio-604, ¶ 3. While there is “no ‘specific test or set of criteria’ that

must be applied or considered in determining what is in a child’s best interest in a

legal custody case[,]” the factors in R.C. 2151.414(D) are instructive. In re I.L., 8th

Dist. Cuyahoga No. 109034, 2020-Ohio-2946, ¶ 30; In re G.M., 8th Dist. Cuyahoga

No. 95410, 2011-Ohio-4090, ¶ 16. The statutory factors include (a) the interaction

and interrelationship of the child with their parents and other relatives or caregivers; (b) the child’s wishes; (c) the child’s custodial history; and (d) the child’s

need for a legally secure placement. R.C. 2151.414(D).

Here, the trial court reviewed the record, the magistrate’s decision,

and Mother’s objections to the magistrate’s decision and ultimately overruled the

objections and adopted the decision. Mother simultaneously argues that the

magistrate’s decision in this case is unsupported by the evidence and, while “broadly

correct,” omits several crucial facts. Specifically, Mother emphasizes that S.D.T. has

a strong bond with Mother, her half-brother, and other family in Ohio, and by

contrast, the “scattershot” nature of Father’s relationship with S.D.T. weighs against

uprooting S.D.T. from her life in Ohio.

The lower court heard evidence as to S.D.T.’s bond with her family in

Ohio, as well as testimony from agency witnesses that ideally, S.D.T. and her half-

sibling would not be separated. The court also heard evidence, though, as to S.D.T.’s

positive relationship with her Father. Further, while it is not explicitly clear from

the record, it appears that the “scattershot” nature of Father’s relationship with

S.D.T. for seven years is largely, if not exclusively, due to Mother’s decision to

relocate to Ohio and Father’s lack of information about their whereabouts. Indeed,

the record in this case demonstrates that as soon as Father was notified about the

initiation of these proceedings, and thus S.D.T.’s whereabouts, he drove from

Georgia to Ohio. From the inception of the case, Father made multiple trips to Ohio

to visit S.D.T., had regular phone and video contact with her, and has provided her

with clothing and satisfied other material needs even while she was in a foster care placement. Beyond this evidence demonstrating Father’s commitment to S.D.T., the

court also heard evidence that S.D.T. was receptive to Father and had a positive

relationship with him.

We acknowledge, as the lower court did, that Mother substantially

complied with her case plan and completed a domestic violence program in addition

to other case plan services. This substantial compliance, however, does not change

the fact that Mother had stopped engaging in mental health counseling, a required

action of her case plan. Further, our review of the record shows that at the time of

the trial in this case, there was an unresolved issue regarding Mother’s paramour.

The agency was unable to determine whether an individual who was present with

Mother during multiple overnight visits with the children was a suitable person to

interact with, and potentially supervise, the children. Moreover, Mother was not

cooperative with the agency or even straightforward in identifying this person, and

ultimately told an agency employee that she “knew she had made a mistake.” In

light of the connection Mother’s paramour had to the injuries sustained by S.D.T.,

and the suspected history of abuse, this unresolved issue weighed heavily against

granting Mother’s motion for legal custody and weighed in favor of granting Father’s

motion for legal custody.

Ultimately, Mother does not point to any findings that are

unsupported by evidence in the record, nor does Mother direct our attention to any

way in which the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Therefore, the decision to grant Father’s motion for legal custody of S.D.T. was supported by a preponderance of the evidence and was not an abuse

of discretion. Accordingly, we overrule Mother’s sole assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and LISA B. FORBES, J., CONCUR