[Cite as In re W.W., 2024-Ohio-807.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: W.W. C.A. No. 30815
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 21 08 0693
DECISION AND JOURNAL ENTRY
Dated: March 6, 2024
HENSAL, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that placed her child in the legal custody of the child’s maternal great
uncle and aunt (“Uncle” and “Aunt”). This Court affirms.
I.
{¶2} Mother is the biological mother of W.W., born March 1, 2021. The child’s father
is serving two life sentences for multiple counts of rape and gross sexual imposition of three
unrelated children. Although he was represented by counsel, he did not pursue reunification in the
case below and has not appealed.
{¶3} Summit County Children Services Board (“CSB” or “the agency”) began
investigating the child’s circumstances around her birth due to Mother’s history of mental health
issues and housing instability. The agency discovered that Mother had difficulty understanding
the child’s basic needs. Home visits indicated a cluttered, unsanitary, and unsafe environment, 2
with food, clothing, and trash piled on the floor; soiled diapers strewn about, dog feces and urine
throughout the home, and an infestation of roaches. Most problematic, however, was that W.W.
was not gaining weight. At CSB’s suggestion, Mother brought the child to the hospital where
medical professionals diagnosed her with a failure to thrive. Mother agreed to voluntarily work
with the agency to remedy the home conditions and abide by a feeding schedule for the child.
{¶4} Despite the agency’s intervention, W.W. continued to lose weight. At four months
old, her eyes had sunken dramatically and she weighed only nine pounds. Mother was unable to
maintain an appropriate feeding schedule for the child to facilitate her growth. Coupled with
ongoing concerns regarding the unsanitary home conditions; Mother’s mental health issues; and
Mother’s unwavering insistence that Father was innocent of any sex offenses against children,
would be exonerated, and would be an appropriate caregiver for the child; CSB removed W.W.
from Mother’s home and filed a complaint alleging the child’s neglect and dependency.
{¶5} After an adjudicatory hearing, the magistrate found the child dependent and
dismissed the allegations of neglect. The magistrate further found that Mother did not recognize
that her home conditions or the child’s low weight were problematic. Mother did not file an
objection to the magistrate’s decision.
{¶6} After the initial dispositional hearing, the juvenile court placed W.W. in CSB’s
temporary custody and adopted the agency’s case plan as an order. Mother’s case plan objectives
included a basic needs component, emphasizing the need to remedy the unsanitary conditions in
the home; a mental health component, including the requirement to follow through on
recommendations for intensive treatment and a parenting assessment; and an objective requiring
Mother to educate herself regarding the behaviors of sexual offenders, their grooming techniques,
and the risks of sexual abuse to children. 3
{¶7} After investigation and approval, CSB placed W.W. in the home of nonblood kin,
whom Mother had identified. The juvenile court ordered that Mother would initially have weekly
two-hour supervised visits with the child, but that she would graduate quickly to unsupervised,
overnight, and then weekend visits to ensure that she was able to independently meet the child’s
needs. Within a couple of weeks, however, the agency moved to modify that order and limit
Mother to supervised visits because she had not completed her parenting assessment and was not
focusing on the child during visits. The trial court restricted Mother’s visitation accordingly.
{¶8} After a review hearing two months later, the juvenile court again implemented a
graduated plan to expand Mother’s visitation. A month later, CSB again moved to limit Mother
to supervised visits based on the recommendations of the assessor who conducted her parenting
evaluation, as well as some concerning behaviors by Mother during visitation. The guardian ad
litem agreed with restricting Mother to supervised visits for the time being. The juvenile court
again rescinded its order for expanded visitation.
{¶9} Mother moved for legal custody, or alternatively, a six-month extension of
temporary custody. CSB moved for legal custody to a third party, Ms. R., the nonblood kin with
whom it had placed the child. At the sunset hearing, Mother withdrew her motions, waived her
right to a contested hearing, and agreed to an award of legal custody of the child to Ms. R. Thirteen
months into the case, the juvenile court granted legal custody to Ms. R. and closed the case.
{¶10} Three weeks later, CSB sought an emergency order of temporary custody and
moved to modify Ms. R.’s legal custody of W.W. to temporary custody to the agency. In the three
weeks since obtaining legal custody, Ms. R. had been diagnosed with a medical condition requiring
extensive treatment that prevented her from continuing to provide care for the child. After a shelter 4
care hearing, the magistrate granted emergency temporary custody to CSB which placed the child
with Uncle and Aunt, whom Mother had identified as potential caregivers.
{¶11} CSB filed an amended case plan, reiterating Mother’s prior case plan objectives.
The juvenile court adopted the amended case plan as an order. Thereafter, CSB moved for legal
custody of the child to Uncle and Aunt. Mother moved for legal custody, or alternatively, a six-
month extension of temporary custody. Five months after the agency invoked the juvenile court’s
continuing jurisdiction over W.W., the magistrate held a hearing on the parties’ dispositional
motions. The magistrate issued a decision denying Mother’s motions, granting CSB’s motion, and
placing the child in the legal custody of Uncle and Aunt. Mother timely objected to the
magistrate’s decision. Both the agency and guardian ad litem responded in opposition.
{¶12} The juvenile court overruled Mother’s objection. It denied Mother’s motion for a
six-month extension of temporary custody upon finding that Mother had not made significant
progress on her case plan objectives and that an extension was not in the best interest of the child.
The trial court granted CSB’s motion for legal custody to Uncle and Aunt, leaving visitation as the
parties might agree. Mother appealed, raising two assignments of error for review. As she
consolidated her assignments of error for discussion, we do likewise to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DENYING MOTHER’S MOTION FOR LEGAL CUSTODY AND MOTION FOR SIX-MONTH EXTENSION OF TEMPORARY CUSTODY AND FINDING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE PLACED IN THE LEGAL CUSTODY OF RELATIVES.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR IN GRANTING LEGAL CUSTODY OF W.W. TO RELATIVES AS 5
THE COURT’S DECISION WAS NOT SUPPORTED BY PREPONDERANCE OF THE EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} Mother argues that the juvenile court erred by denying her alternative motions for
legal custody or a six-month extension of temporary custody, and by granting CSB’s motion for
legal custody to Uncle and Aunt. This Court disagrees.
{¶14} Our standard of review for such challenges is well settled:
On appeal, an award of legal custody will not be reversed if the judgment is supported by a preponderance of the evidence. Preponderance of the evidence entails the greater weight of the evidence, evidence that is more probable, persuasive, and possesses greater probative value. In other words, when the best interest of the child is established by the greater weight of the evidence, the trial court does not have discretion to enter a judgment that is adverse to that interest.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶15} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal citations and quotations omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,
this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶16} “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.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or
set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal 6
custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-
7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard,
the juvenile court is guided by the best interest factors enumerated in Revised Code Section
2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-
5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17.
{¶17} The best interest factors include the interaction and interrelationships of the child,
the child’s wishes, the custodial history of the child, the child’s need for permanence, and whether
any of the factors in Section 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see
also In re B.C., 9th Dist. Summit Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 16. In addition, the
juvenile court may also look to the best interest factors in Section 3109.04(F)(1) for guidance. In
re K.A., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860, 2017-Ohio-1, ¶ 17. While some
factors overlap with those above, others include the child’s adjustment to his or her environment;
the mental and physical health of all persons involved; the parents’ history of providing support
and honoring companionship orders; certain indicia of violence, abuse, or neglect in any household
involved; and whether a parent plans to or has established a residence outside of Ohio. R.C.
3109.04(F)(1).
{¶18} W.W. was in Mother’s legal custody briefly before CSB removed her when the
infant was five months old. After spending more than a year in the agency’s temporary custody,
the child was placed in the legal custody Ms. R. for mere weeks before that custodial disposition
disrupted. CSB resumed temporary custody of the child for over five additional months until the
contested legal custody hearing. By that time, W.W. had spent three quarters of her life in custodial
limbo and deserved stability and permanence. 7
{¶19} Mother struggled with issues that prevented her from being able to provide a safe,
secure, and stable environment for the child. Her mental health diagnoses of depression, bipolar
disorder, post-traumatic stress disorder, and borderline personality disorder made her quick to
anger and impacted her ability to interact appropriately with others and make sound parenting
decisions. Despite her involvement with both Coleman and Ever Well Community Health, Mother
demonstrated no improvements in insight or practical skills. She continued to express her belief
that Father was innocent of the sex crimes for which he was convicted and that he would be an
appropriate caregiver for the child. Mother also maintained a limited understanding regarding the
child’s needs and development. For example, she failed to cut the child’s food into appropriately
sized pieces and once gave W.W. hard candy which caused her to choke, requiring intervention by
Aunt when Mother failed to take appropriate action.
{¶20} Aunt testified that other behaviors by Mother with the child caused her concern for
W.W.’s safety. For example, during a visit at a store, Mother put the child down so Mother could
look at something that caught her attention. When Aunt asked Mother where W.W. was, Mother
did not know. On other occasions during visits, Mother would frequently spend time looking at
her phone or talking with the adults who were supervising the visits instead of focusing on the
child. While Uncle and Aunt expressed concern that Mother was easily distracted during visits,
Mother testified that she thought the two-year-old child did not need constant oversight because
that would allow the child to learn boundaries and develop independence.
{¶21} Mother made limited improvements in maintaining a safe and clean home. She had
very few furnishings. While the dog who had urinated and defecated throughout the home had
died, Mother replaced him with four cats. Because she had only one litterbox for the cats, Mother’s 8
home continued to smell of pet waste. In addition, the guardian ad litem was concerned that
Mother left the litterbox in an area accessible to the child.
{¶22} Throughout most of the case, Mother was engaged in services at Ever Well where
a team of five people helped manage her care. A therapeutic behavioral specialist coordinated
Mother’s team and monitored her progress. A psychosocial rehabilitation specialist worked
directly with Mother to help her develop interpersonal skills and manage daily activities. Together,
they addressed issues like budgeting, setting goals, finding employment, and choosing appropriate
activities for the child. Mother’s community resource treatment specialist helped her access
resources for food, clothing, furniture, hygiene products, and cleaning supplies, reaching out to
Mother twice each month. Mother frequently contacted that specialist beyond those times for
additional assistance. Mother’s therapist provided counseling services, while her parenting
instructor focused on information regarding child development and protection.
{¶23} Mother took advantage of Ever Well services necessary to meet her immediate
basic needs. For example, Mother frequently ran out of money between paychecks for food and
other necessities. While she was employed at the time of the hearing, she had only recently begun
working for her current employer. Mother’s employment history was sporadic. She moved from
job to job and spent periods of time with no income. She did not have a car but reported that she
planned to buy one with funds from her expected tax refund. After receiving that money, however,
Mother took a trip in North Carolina instead.
{¶24} As for services geared towards stability and long-term needs, Mother’s focus
waned. She did not engage in counseling services on a regular basis. Her failure to meet regularly
with her therapist hindered her ability to work through the trauma she endured throughout her
childhood and gain insight into how to protect the child from predators. Mother further had only 9
recently begun attending parenting classes which would include lessons regarding how to identify
sexual predators, grooming behaviors, and ways to keep a child safe from people who posed a
threat. While she testified that she had researched the warning signs and dangers of predators,
Mother refused to acknowledge the threat Father posed to W.W. Instead of recognizing the
significance of Father’s rape and gross sexual imposition convictions involving children, Mother
testified that she could not say that Father was guilty because she was not there when the incidents
occurred.
{¶25} While Mother and W.W. share a bond, Mother failed to take advantage of many of
her opportunities for visitation. She missed nearly all her weekly Thursday visits and attended
only 70 percent of her scheduled Saturday visits. Mother frequently did not notify Uncle and Aunt
when she could not attend a visit. When she did notify them, she said she was busy or did not
have transportation, despite Aunt’s testimony that she offered to pick Mother up from the bus
station nearby.
{¶26} The child is too young to express her desires regarding custody, so the guardian ad
litem spoke on her behalf. The guardian ad litem recommended legal custody to Uncle and Aunt,
given the child’s comfort and familiarity in their home where all her basic needs were being met.
Both the caseworker and guardian ad litem were concerned that Mother’s lack of progress on her
case plan objectives left her unable to provide a safe and stable home for the child then or within
a reasonable time.
{¶27} Based on a thorough review of the record, this is not the exceptional case where the
trier of fact clearly lost its way and created a manifest miscarriage of justice by awarding legal
custody to Uncle and Aunt. The child was flourishing in their home. They facilitated opportunities
for Mother to visit with W.W. during twice-weekly scheduled visits, as well as during frequent 10
family get-togethers and church events. W.W. was safe and secure in the home of Uncle and Aunt
who met all her basic needs. Mother, on the other hand, struggled with meeting even her own
basic needs, frequently running out of food and failing to maintain a sanitary home. She refused
to recognize that Father was the type of person who posed a threat to the child’s well-being. Under
these circumstances, the juvenile court’s finding that an award of legal custody to Uncle and Aunt
was in the child’s best interest is not against the manifest weight of the evidence.
{¶28} To the extent that Mother argues that the juvenile court erred by failing to grant her
motion for a six-month extension of temporary custody, this Court disagrees.
{¶29} As stated above, the juvenile court must resolve a motion for legal custody solely
in consideration of the best interest of the child. In re K.H., 2016-Ohio-1330, at ¶ 12. It is well
settled that “‘[w]here the trial court finds that it is in the best interest of the child to be placed in
legal custody as a permanent disposition, the trial court must necessarily deny any extension of
temporary custody.’” In re B.C., 2014-Ohio-2748, at ¶ 22, quoting In re C.M., 9th Dist. Summit
No. 24380, 2009-Ohio-943, ¶ 24. See also In re A.P., 9th Dist. Summit No. 30056, 2022-Ohio-
276, ¶9 (“[I]f legal custody to a nonparent is in the best interest of the child, an extension of
temporary custody is not.”).
{¶30} In addition, the juvenile court would have only had authority to grant a first six-
month extension of temporary custody if it also found, by clear and convincing evidence, that
“there has been significant progress on the case plan of the child, and there is reasonable cause to
believe that the child will be reunified with one of the parents * * * within the period of extension.”
R.C. 2151.415(D)(1). As explained above, Mother failed to make significant progress on her case
plan objectives. She had not addressed her mental health issues stemming from the trauma she
experienced from long-term abuse and neglect as a child. She failed to demonstrate an 11
understanding of the child’s developmental needs and abilities. She continued to deny that Father
posed a threat to the child notwithstanding his convictions for multiple sexual crimes against
minors. Mother was employed sporadically and struggled to meet her own basic needs, frequently
running out of food. She failed to maintain her home in a safe and sanitary condition. Mother
frequently missed visits with W.W. and did not prioritize interactions with the child when she did
appear for visitation.
{¶31} Moreover, there was not reasonable cause to believe that W.W. would have been
reunified with Mother within the period of extension. For more than 18 months, Mother was aware
of the concerns underlying the child’s removal from her home. Although she had access to
multiple service providers who might have helped her address those concerns, she either failed to
take advantage of those services or gained limited insight into remedying the concerns, instead
merely addressing an immediate need that reoccurred with continuing frequency. Mother never
demonstrated sufficient progress to move beyond the need for supervised visits. Accordingly, she
failed to present clear and convincing evidence that reunification was reasonably likely to occur
within another six months.
{¶32} For the above reasons, this Court concludes that the juvenile court did not err by
denying Mother’s motion for a six-month extension of temporary custody and granting CSB’s
motion for legal custody to Uncle and Aunt. Accordingly, Mother’s first and second assignments
of error are overruled.
III.
{¶33} Mother’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed. 12
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.
JENNIFER HENSAL FOR THE COURT
STEVENSON, P. J. SUTTON, J. CONCUR. 13
APPEARANCES:
SHUBHRA AGARWAL, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
EDWARD SMITH, Attorney at Law, for Appellee.
PAUL GRANT, Attorney at Law, for Appellee.
LAURIE M. BOVEINGTON, Guardian ad Litem.