[Cite as In re X.H., 2020-Ohio-3907.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
In re X.H. Court of Appeals No. E-19-061
Trial Court No. 2017-JN-0003
DECISION AND JUDGMENT
Decided: July 31, 2020
*****
Anthony J. Richardson II, for appellant.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Betty J. Burley, Assistant Prosecuting Attorney, for appellee.
PIETRYKOWSKI, J.
{¶ 1} Appellant-father, M.H., appeals the October 8, 2019 judgment entry of the
Erie County Court of Common Pleas, Juvenile Division, which, reversed the magistrate’s
denial of appellee, Erie County Department of Job and Family Services’ (ECDJFS) and
grandmother, S.L.’s motions for legal custody, and awarded legal custody of his minor
child, X.H., to S.L. For the reasons that follow, we affirm. {¶ 2} The relevant facts are as follows. On January 3, 2017, ECDJFS filed a
complaint alleging that X.H., born in 2010, was a dependent and neglected child. The
facts alleged that on December 1, 2016, police responded to appellant’s home after a
report that he had fallen. Upon arrival, they observed X.H. outside with appellant and in
his underwear. Mother, H.L., was hospitalized at the time. Appellant appeared to be
under the influence; he admitted to drinking and smoking marijuana. Subsequent drug
testing was positive for marijuana and cocaine. A safety plan was implemented. The
plan was terminated on December 20, 2016, after the parents engaged in treatment and
had negative drug screens. Appellant’s December 27, 2016 drug screen was positive for
cocaine and the agency’s complaint requested protective supervision of X.H., who would
remain in mother’s care with restrictions on unsupervised visits with appellant. On
January 4, 2017, ECDJFS was awarded pre-dispositional emergency protective
supervision of X.H. The initial case plan was filed on January 31, 2017, and required
each parent complete a drug and alcohol assessment and a mental health assessment,
submit to random drug screens, maintain sobriety, and allow unannounced home visits.
{¶ 3} On March 23, 2017, ECDJFS filed a motion for emergency temporary
custody of X.H. The motion alleged that both parents had positive drug screens and
mother failed to show for two screens. The motion was granted and X.H. was placed
with his grandmother, S.L.
2. {¶ 4} On March 30, 2018, ECDJFS filed a motion for legal custody to be awarded
to S.L.; S.L. filed a motion for legal custody on March 8, 2019. A hearing on the motion
was held on March 19, 2019, and the following evidence was presented.
{¶ 5} The first witness was Janie Jurn, caseworker from Erie County Child
Support. Jurn testified as to the child support obligations of the parents and their
payment histories which were admitted into evidence. Jurn stated that appellant was
current with his child support obligation. As to H.L., she was in arrears and had not paid
since April 2018.
{¶ 6} ECDJFS caseworker Tevon Oehling testified that on December 1, 2016, the
agency became involved with the family following a late night incident where appellant
was intoxicated and X.H. was in his sole care because H.L. was hospitalized. A safety
plan was implemented which required that appellant and H.L. participate in drug and
alcohol treatment and test negative. Oehling noted that H.L. was on probation following
a drug possession charge. The safety plan was terminated at the end of December when
appellant had a positive drug screen. Oehling testified that in January 2017, ECDJFS
moved for and was granted protective supervision which left X.H. in H.L.’s care but
allowed appellant only supervised contact with the child.
{¶ 7} Oehling testified in in March 2017, the agency gained temporary custody of
X.H. following H.L.’s positive drug screen and failure to report to probation. X.H. was
placed with his maternal grandmother, S.L. A case plan was implemented which
required, in part, that the parents attend drug and alcohol counseling and submit to
3. random drug screens. Oehling testified that the parents struggled with sobriety through
the spring of 2017; they both were placed in residential programs, appellant’s through the
VA.
{¶ 8} Oehling testified that during her involvement there were no agency
restrictions on the parents seeing each other but that they needed to work on being sober
together. Oehling stated that H.L. completed Phase 1 but was then terminated from the
program due to her seeing appellant past curfew. H.L. then re-engaged in services.
Appellant completed his in-patient program and was provided veteran housing.
{¶ 9} Oehling testified that the parents began having positive drug screens in
February 2018. She stated that the parents have tended to use drugs together. H.L. went
into a three-month residential program. As to appellant, Oehling testified that in June
2018, he was still testing positive for cocaine and marijuana but that beginning in July he
was testing positive for just marijuana. Also in July, appellant was cited for an OVI for
alcohol. The parents’ drug screen results were admitted into evidence.
{¶ 10} Since October 2018, H.L. has been living in a sober living house and
visiting with X.H. there. Oehling stated that the home is like a condominium and that
women with children have their own room and share the unit with a roommate. Oehling
stated that H.L. has been in four different units since moving in and that there have been
concerns about some of her roommates.
{¶ 11} Oehling stated that the parties were making “good progress” on their case
plans. She noted that appellant was not testing clean but was attending treatment.
4. Oehling testified that the agency was recommending that S.L. be granted custody.
Oehling stated that as to H.L., though she has been attending treatment and testing clean,
she still has not made the necessary behavioral changes. Oehling also stated that H.L.
needed to become more financially stable.
{¶ 12} Oehling testified that X.H had an Individualized Education Program (IEP)
and behavioral plans in place; he had a severe speech delay for which he receives
therapy. She stated that X.H. is doing very well while in his grandmother’s care and that
she is keeping up with all appointments.
{¶ 13} As to visitation orders, Oehling stated that appellant should be permitted
only supervised visits until his drug screens remain clean. As to H.L., Oehling felt that
visits could be unsupervised.
{¶ 14} Oehling was questioned about appellant’s health and military service. She
stated that he is in his sixties, has heart issues, and walks with a cane. Appellant receives
SSI and VA disability benefits.
{¶ 15} Out of order and with permission of the court, H.L. called Michael Frank to
testify. Frank testified that he is Chief Probation Officer for the Erie County Probation
Department. Frank testified regarding a letter summarizing H.L.’s performance while on
probation in response to an inquiry surrounding her attempt to regain custody of X.H.
The summary was written by a probation officer supervised by Frank and Frank reviewed
and signed the letter. Frank stated that the letter indicated that although H.L. struggled at
the beginning, she has been compliant with her probation.
5. {¶ 16} Sue Prentice testified that she is secretary of the board at Genesis. She
testified that Genesis on the Lake is a residential facility for women working on sobriety.
The residents are also permitted to have children up to age 13 reside with them. Prentice
stated that Genesis does not provide treatment but has implemented random drug screens.
The screens generally take place when a resident returns from a weekend or overnight
pass or if the house manager suspects drug use. Prentice stated that H.L. was slightly
behind in her rent payments but had been consistently paying.
{¶ 17} Maternal grandmother, S.L., testified next. She stated that X.H. had been
living with her for two and one-half years. S.L. stated that appellant, her daughter, H.L.,
and X.H. had lived in her home during two different time frames. S.L. testified that the
parents would yell and threaten X.H. She stated that appellant threatened to hit X.H. with
a belt with a gold buckle; he hid behind her. S.L. stated that she never observed marks on
X.H.
{¶ 18} S.L. testified that when X.H. came to live with her he had developmental
delays and behavioral issues. S.L. stated that he had meltdowns or temper tantrums. She
stated that X.H. had been going to counseling but that it is not needed anymore. His
behavior is much better in school and the behavioral plan may be terminated. S.L.
indicated that X.H. does take medication for ADHD.
{¶ 19} S.L. testified that X.H. has a speech delay and has been evaluated at school
and privately. He is receiving speech therapy. S.L. stated that X.H. is not cognitively
delayed and is doing well in school. He is up-to-date on immunizations and dental care.
6. {¶ 20} S.L. testified that her relationship with her daughter is strained but that she
would like for it to improve. S.L. stated that H.L. is welcome in her home and she has no
hesitation as to the length of her visitation which does not need to be supervised. S.L.
stated that she is not comfortable with overnight visits at Genesis because of the transient
nature of the occupants. S.L. testified that she believes that appellant’s visitation needs to
be supervised. She stated that so long as appellant is clean and sober she is willing to
discuss the nature of the visitation.
{¶ 21} Court appointed special advocate (CASA), Patricia James, testified next.
She was cross-examined about the source of some of her information regarding appellant.
She admitted that the reports of cancelled visits, failure to call, and purported lack of
money came from grandmother. James further admitted that she did not ask appellant
whether the reports were true. James agreed that she has never been to appellant’s home
but had observed a few visitations between appellant and X.H. at the agency.
{¶ 22} James was questioned about the statement in her report that appellant’s
visitation should be supervised until he “provides proof of maintaining sobriety and
stability.” James acknowledged that appellant has maintained a household but needs to
maintain sobriety, continue with his treatment, and be a “law abiding citizen.”
{¶ 23} James agreed that since August 2018, she has had 16 contacts with
grandmother, S.L., and only three contacts with mom, H.L. James clarified that many of
the 16 contacts with S.L. were necessary to facilitate contact with X.H., who was in her
care.
7. {¶ 24} James testified that her recommendation that S.L. be awarded legal custody
of X.H. was based on the fact that she has cared for him for over two years and supports
his special educational and therapy needs. Regarding visitation, James testified that
appellant’s visitation should remain supervised and that S.L. be able to assess his
sobriety. As for H.L., James felt that continued unsupervised visits were appropriate, that
they could be “expanded,” and that at some point H.L. could regain custody of X.H.
{¶ 25} Appellant then testified. He stated that he is an army veteran who served in
operation Desert Storm where he sustained an injury to his leg and was honorably
discharged. Appellant stated that he has chronic knee and shoulder pain and has had two
heart attacks. He agreed that he self-medicates with marijuana.
{¶ 26} Appellant testified that he has six children and that he has never
“whooped” any of them. He stated that he has never spanked or threatened X.H. He
stated that he spent a lot of time with X.H., helping him with his schoolwork and his
speech issues.
{¶ 27} Regarding visitation, appellant testified that he missed four to five visits
due to his own medical appointments and the fact that he did not have any money to
spend on X.H. and he did not want to disappoint him. Appellant agreed that he was not
asking that he be awarded custody, but that H.L. should get custody because she is his
mother and has always had a job. Appellant stated that if H.L. did not regain custody, he
would agree to continuing supervised visits until he got “[him]self together”; thereafter,
he indicated that at least two days per week, unsupervised, leading to overnight visits.
8. Appellant stated that he would have no problem with S.L. supervising if she was awarded
custody.
{¶ 28} Aubrey Oliver-Calvert testified that she is the Assistant Executive Director
of Road to Hope which took over for Genesis on February 4, 2019. Oliver-Calvert
testified that she oversees all the housing and that she is familiar with H.L. She stated
that due to the length of H.L.’s sobriety, she is able to come and go as she pleases by
signing in and out. Oliver-Calvert stated that there have been no problems with H.L.’s
compliance with signing the sheets. She is also compliant with attending her 12-step
sobriety meetings. Oliver-Calvert also stated that H.L. is up-to-date on her rent
payments. Further, since Road to Hope began running the program all of H.L.’s drug
screens (four) have been negative.
{¶ 29} Oliver-Calvert stated that residents can stay at Road to Hope indefinitely so
long as they abide by the rules. If a resident’s child reaches the age limit of 12, they
assist the mother in finding suitable, alternate housing. Oliver-Calvert indicated that she
is aware that H.L. has a nine-year-old son.
{¶ 30} Chemical dependency and mental health counselor, Angela Harris, testified
that H.L. had been attending regular meetings, has taken responsibility for her addiction,
and is doing very well and is nearing the end of her involvement with the counseling
service. Similarly, H.L.’s Narcotics Anonymous sponsor, L.B., testified that she has seen
great changes in H.L. in that she is actively seeking recovery, attending and participating
9. in meetings, and has been clean for ten months. L.B. stated that H.L. is currently on step
one of the 12-step program which is admitting powerlessness in the face of addiction.
{¶ 31} H.L. testified that she has worked at McDonald’s since August 2018. She
stated that she gets to work on time, stays late, and picks up extra shifts when needed.
She stated that she is now eligible for a promotion to crew trainer.
{¶ 32} Prior to the events causing the removal of X.H. from the home, H.L. stated
that X.H. was in speech therapy and had an IEP at school. She stated that she felt her life
with X.H. was good. She provided for all his basic needs, did homework with him, and
took part in all his school functions as well as social events like birthday parties.
{¶ 33} H.L. testified that she began using drugs at age 24-25, when the person she
was dating introduced them to her. On the date of the hearing she was 39. H.L. admitted
that she was convicted of possession of crack cocaine and that she is currently on
probation. She stated that she has been in recovery for ten and one-half months, and had
attempted recovery in 2001, 2002, and 2017.
{¶ 34} H.L. testified that she has been in a relationship with appellant off and on
for 15 years. She admitted that the relationship was not “healthy” and that she currently
wants to be alone. She stated that she expects appellant to be a clean and sober parent to
X.H. H.L. stated that she voluntarily went into “detox” on May 15, 2017, and that on
August 23, 2017, she moved into Genesis. She has been clean since checking into detox.
{¶ 35} Regarding her mother, S.L., H.L. stated that they have had an unstable
relationship since she was 11 or 12, she does not feel welcome in S.L.’s home, and she
10. feels that S.L.is trying to usurp her role as X.H.’s mother. H.L. admitted to getting some
financial help from S.L. as late as 2016, but testified that she now pays all her own bills
including a car payment, rent, and phone bill.
{¶ 36} H.L. stated that if she regained custody of X.H. she could modify her work
hours to when he is in school or at his after school programs. She testified that she would
continue to take X.H. to speech therapy and continue him on his IEP. H.L. stated she
would leave him in his current school and the bus could pick him up at Genesis.
{¶ 37} During cross-examination, H.L. admitted that she has not paid child
support since beginning her job at McDonald’s, approximately seven months ago. H.L.
further testified that she is about a month behind on her car payment. H.L. admitted to
never contacting the school to see if she could get X.H.’s grades, not going to any school
functions, and not attending his IEP meeting although she received a copy of the
document after-the-fact. H.L. also admitted to walking out of some ECDJFS meetings.
{¶ 38} On May 17, 2019, the magistrate issued a decision denying the motions to
award legal custody to S.L. The magistrate noted that the determining factor was the best
interest of X.H. and proceeded to examine the factors under R.C. 3109.04(F). The
magistrate then expressed that the best interest analysis is not limited to who can provide
the best environment for the child which the magistrate acknowledged was clearly
grandmother, S.L.; rather, looking at the reunification goal of the case plan and the
general belief that children are better living with a parent and combined with the fact that
11. at the time or trial H.L. had “substantially complied” with the case plan, the magistrate
concluded that it was in X.H.’s best interest to be returned to the custody of H.L.
{¶ 39} Regarding visitation, the magistrate ordered that S.L. have visitation with
X.H. every other weekend and during the summer, Sunday through Friday. As to
appellant, visitation was ordered to be supervised and at least one time per week until he
had obtained sobriety. Supervision was to be provided by S.L. or a suitable third party.
{¶ 40} S.L. immediately filed objections to the decision and requested an
extension to supplement with specific arguments; the extension was granted but the brief
was not timely filed. ECDJFS similarly requested an extension then failed to timely file
its brief.
{¶ 41} On October 8, 2019, the trial court first dismissed the objections because
they were not supported by specific arguments. Further, in reviewing the magistrate’s
decision because the transcript was not provided to the court, it accepted and adopted the
magistrate’s findings of fact.
{¶ 42} The court then noted the magistrate’s apparent difficulty in reconciling
granting the legal custody motions when the mother had substantially completed the case
plan requirements. The court acknowledged that this fact is to be considered but is not
controlling in determining the best interests of the child. The court then reached a
“different conclusion than the Magistrate’s when considering the findings the Court ha[d]
adopted.” The court concluded that S.L. provided a more stable home for X.H. in terms
of educational and therapy support, and that H.L. had ongoing financial difficulties and
12. failed to participate in X.H.’s school services and other appointments. The court did note
that the ECDJFS should have amended the case plan to reflect the true nature of their
concerns and set forth more specific expectations.
{¶ 43} As to appellant, the court adopted the magistrate’s recommendation
regarding visitation. The court further ordered that:
[M.H.] be entitled to companionship with the child for such periods
of time and at such frequency as he and [S.L.] may agree. Father’s
companionship time shall supervised by [S.L.], Kinship or a suitable third
party, as [S.L.] may determine appropriate until such time as Father is able
to substantiate that he has obtained sobriety at which time they can become
unsupervised.
{¶ 44} This appeal followed with appellant raising two assignments of error for
our review:
(1) The trial court committed reversible error by unreasonably
limiting appellant’s visitation time with his son, X.H.
(2) The trial court committed reversible error by granting temporary
custody to the maternal grandmother against appellant’s wishes and
interest.
{¶ 45} As to appellant’s first assignment of error, we review a juvenile court’s
decision regarding visitation for an abuse of discretion. In re C.T., 6th Dist. Sandusky
No. S-19-001, 2019-Ohio-3403, ¶ 8, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541
13. N.E.2d 1028 (1989). A trial court abuses its discretion by issuing a judgment that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 46} Appellant argues that “severely limiting” his visitation solely due to his
addiction is an abuse of discretion and punitive where he has been going “long periods of
time sober from hard drugs,” where there is no evidence that his marijuana usage would
affect X.H., and where his addiction is a life-long condition. Reviewing the record in this
case with special attention to the evidence presented at trial, we disagree.
{¶ 47} During appellant’s testimony he agreed that he should not have custody of
X.H. and that he was going back into rehab because he did not feel like the last time was
long enough. When asked about his visitation preferences if grandmother were to get
legal custody he stated:
Well, until I get myself together, I would take what I got now, but
once I get myself together, I would like a little more time with him and I
would like on visit – I would get my – stay clean and prove that I’m stayin’
clean. I would like, you know, overnight visit and do things him * * * you
know, maybe at least two days a week or somethin’ like that. I mean, I’m
not asking for that much, but to take him to movies and do stuff with him
by myself, you know.
{¶ 48} Based on appellant’s long history of drug use including up to the date of
the hearing in this matter and his admission that he needed to get sober before being
14. awarded extended visitation, we cannot say that the court abused its discretion in
adopting the magistrate’s limited, supervised visitation order.
{¶ 49} Appellant next contends that the trial court’s October 8, 2019 judgment
regarding visitation is “inconsistent and confusing.” Specifically, appellant notes that the
court initially adopts the magistrate’s decision regarding visitation but then proceeds to
leave visitation to the discretion of S.L.
{¶ 50} Reviewing the magistrate’s and the trial court’s judgment, we find that they
can be read consistently. The magistrate ordered that appellant have supervised visitation
“at least once per week” until he is able to prove that he had attained sobriety. The
court’s judgment stated that it adopted the magistrate’s decision regarding visitation. The
court went on to provide that appellant’s visitation shall be for such periods of time and
frequency as he and S.L. shall agree and that upon demonstration of his sobriety, the
visits can become unsupervised. In our view, the judgment requires that appellant, at a
minimum, have visitation one time per week; the amount may be adjusted upon
agreement of the parties. During the hearing, appellant stated that he had no problem
with S.L. supervising visitation as she had done it previously.
{¶ 51} Based on the foregoing, we find that the trial court did not abuse its
discretion in the visitation awarded to appellant. Appellant’s first assignment of error is
not well-taken.
{¶ 52} In his second assignment of error, appellant argues that the trial court erred
by awarding legal custody to grandmother, S.L. We review a trial court's judgment
15. adopting or rejecting a magistrate’s decision to award legal custody of a minor child to a
relative or other interested person for an abuse of discretion. In re K.V., 6th Dist. Lucas
No. L-11-1087, 2012-Ohio-190, ¶ 19.
{¶ 53} ECDJFS argues that appellant lacks standing to appeal the court’s award of
custody to S.L. Standing to appeal a final order of the juvenile court is controlled by
R.C. 2501.02 and the common law principal that an appeal can be filed only by “‘a party
aggrieved by the final order appealed from. Appeals are not allowed for the purpose of
settling abstract questions, but only to correct errors injuriously affecting the appellant.’”
State ex rel. Winfree v. McDonald, 147 Ohio St.3d 428, 2016-Ohio-8098, 66 N.E.3d 739,
¶ 8, citing State ex rel. Gabriel v. Youngstown, 75 Ohio St.3d 618, 619, 665 N.E.2d 209
(1996), quoting Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm., 140 Ohio St.
160, 42 N.E.2d 758 (1942), syllabus.
{¶ 54} More specifically,
“a parent has standing to challenge the trial court’s failure to grant a
motion for legal custody filed by a non-parent because the court’s denial of
that motion led to a grant of permanent custody to the children services
agency, which impacted the residual rights of the parent. * * * The parent
has standing to challenge only how the court’s decision impacted the
parent’s rights, however, not the rights of the third party.”
In re R.V., 6th Dist. Lucas Nos. L-10-1278, L-10-1301, 2011-Ohio-1837, ¶ 15, quoting In
re J.J., 9th Dist. Summit No. 21226, 2002-Ohio-7330, ¶ 36.
16. {¶ 55} Thus, appellant’s standing is limited to how the court’s award of legal
custody to S.L. specifically impacted his parental rights. Under this limited scope,
appellant’s argument is that he would have received more visitation time with X.H. if
H.L. had been awarded legal custody.
{¶ 56} “Where a child has been adjudicated dependent, a trial court may award
legal custody to a nonparent where it finds, by a preponderance of the evidence, that legal
custody is in the child’s best interests.” In re A.D., 6th Dist. Erie Nos. E-16-059,
E-16-060, E-16-061, 2017-Ohio-6913, ¶ 31. In making such a determination, the
magistrate properly looked to the best interest factors of R.C. 3109.04(F)(1), and the
court adopted the findings.
{¶ 57} Upon review, we cannot say that the trial court abused its discretion when
it granted S.L.’s and ECDJFS’ motions for legal custody. Mother’s substantial
compliance with the case plan is not dispositive on the issue of reunification. See In re
E.Z.-S., 6th Dist. Fulton No. F-18-006, 2019-Ohio-1177, ¶ 33, citing In re D.T., 8th Dist.
Cuyahoga Nos. 100970, 100971, 2014-Ohio-4818, ¶ 23. The principal consideration is
the child’s best interest. Id. Accordingly, appellant’s second assignment of error is not
well-taken.
{¶ 58} On consideration whereof, we find that substantial justice was done the
party complaining and the judgment of the Erie County Court of Common Pleas, Juvenile
17. Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this
appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE
Gene A. Zmuda, P.J. _______________________________ CONCURS AND WRITES JUDE SEPARATELY.
ZMUDA, P.J., concurring.
{¶ 59} I agree with the majority’s conclusion that the trial court did not abuse its
discretion in awarding legal custody of X.H. to S.L. I write separately to note that I
would reject appellant’s inconsistency argument under his first assignment of error
18. outright, without determining whether the magistrate’s decision and the trial court’s
judgment are consistent with one another on the issue of visitation.
{¶ 60} Under Civ.R. 53, the trial court, in ruling on objections to a magistrate’s
decision, is required to conduct an independent examination of the record, after which it
may adopt, reject, or modify the magistrate’s decision. This rule does not require that the
trial court craft a judgment that is consistent with the magistrate’s decision. On the
contrary, the rule expressly provides the trial court with the authority to craft its own
decision, which then becomes the controlling, final judgment of the court, binding upon
the parties before it. For this reason, I would summarily reject appellant’s consistency
argument, and I would not attempt to read the trial court’s judgment in light of the
magistrate’s decision.
{¶ 61} The salient issue for this court is whether, under an abuse of discretion
standard, the trial court’s final judgment is consistent with the record before the court.
The record amply demonstrates that the court’s judgment is consistent with the record
without any superfluous analysis or reconciling of the trial court’s decision with the
magistrate’s recommendation.
{¶ 62} With this clarification in mind, I concur.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.