[Cite as In re A.S.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 100530 and 100531

IN RE: A.S. AND C.S. Minor Children

[Appeal by K.C., Mother]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 12904790 and AD 09921174

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: July 10, 2014 ATTORNEY FOR APPELLANT

Gregory T. Stralka 6509 Brecksville Road P.O. Box 31776 Independence, OH 44131

ATTORNEYS FOR APPELLEE

For C.C.D.C.F.S.

Timothy J. McGinty Cuyahoga County Prosecutor

By: Joseph M. Cordiano Assistant County Prosecutor 3955 Euclid Avenue Cleveland, OH 44115

For Father

Patrick S. Lavelle Van Sweringen Arcade 123 West Prospect Avenue Suite 250 Cleveland, OH 44115

Guardian Ad Litem for Children

Amy K. Habinksi Habinski Law Offices L.L.C. 11470 Euclid Avenue Suite 342 Cleveland, OH 44106 Guardian Ad Litem for Mother

Daniel J. Bartos Bartos & Bartos L.P.A. 20220 Center Ridge Road Suite 320 Rocky River, OH 44116 TIM McCORMACK, J.:

{¶1} Appellant, K.C. (“Mother”), appeals the judgment of the Cuyahoga County

Court of Common Pleas, Juvenile Division, that granted legal custody of her minor

children, C.S. and A.S., to the children’s maternal grandmother, A.C. (“Grandmother”).

After a careful review of the record, we affirm the juvenile court’s determination.

Background

{¶2} This matter originated in November 2009, when the Cuyahoga County

Department of Children and Family Services (“CCDCFS” or “the agency”) filed a

complaint alleging neglect and a motion for temporary custody of C.S., who was born in

August 2009. The complaint alleged acts of domestic violence by Mother and Father

and lack of parenting skills of Mother. The court held an adjudicatory hearing in January

2010 and found C.S. to be dependent. Following a dispositional hearing in February

2010, the court granted temporary custody of C.S. to the agency. In July 2010, the

agency filed a motion to modify temporary custody to legal custody to Grandmother. On

August 10, 2011, the trial court denied the agency’s motion and terminated temporary

custody, and C.S. was returned to Mother’s custody, with protective supervision.

{¶3} Less than two weeks later, on August 22, 2011, the agency filed a motion to

modify protective supervision of C.S. to, once again, temporary custody and a motion for

pre-dispositional temporary custody. The motions were based on the agency’s belief that

C.S. was in immediate danger due to alleged contact with Father in violation of a prior court order. That same day, the court ordered C.S. into the temporary care and custody

of CCDCFS, and the child was placed in Grandmother’s care. In December 2011,

following a dispositional hearing, the trial court found that there had been “some

compliance” with Mother’s case plan and progress had been made in allowing the child to

remain in the home. After reminding Mother to abide by the court’s order of no contact

with Father, the court denied the agency’s motion for temporary custody. The agency

filed objections to the court’s order, which were overruled on April 13, 2012. C.S. was

returned to Mother’s legal custody with protective supervision.

{¶4} Prior to C.S.’s return to protective supervision with Mother, in March 2012,

A.S. was born. Approximately two weeks later, the agency filed a complaint for

dependency and temporary custody of A.S. The complaint alleged continued acts of

domestic violence, Father’s anger management issues, the dependency adjudication of

another child, and the parents’ failure to remedy the conditions that caused the other child

to be removed from the home. Following an adjudicatory hearing, A.S. was adjudicated

dependent and ordered into the agency’s temporary custody on August 30, 2012. In the

meantime, the agency filed a motion to modify the protective supervision of C.S. to

temporary custody on August 13, 2012. Mother filed a motion for legal custody of both

children on August 22, 2012. On October 4, 2012, the trial court held a hearing, during

which time it continued its prior order for protective supervision and allowed the agency

additional time in which to file alternative dispositional motions. {¶5} On October 19, 2012, CCDCFS filed two motions: (1) a motion to modify

legal custody of C.S. to Mother with protective supervision to legal custody of C.S. to

Grandmother; and (2) a motion to modify temporary custody of A.S. to the agency to

legal custody of A.S. to Grandmother. Mother filed another motion for legal custody of

both children on February 15, 2013, and a motion for increased visitation on March 12,

2013.

{¶6} On September 6, 2013, the court held a dispositional hearing on the

agency’s motions. Present for the hearing were CCDCFS social worker, Susan Frate;

GAL for the children, Amy Habinski; and Mother, with GAL Daniel Bartos. Also

present were Mother’s attorney, the prosecuting attorney, and Father’s attorney.

{¶7} Following the hearing, the court granted the agency’s motions and awarded

legal custody of C.S. and A.S. to Grandmother. The magistrate found that substantial

progress on the case plan by Mother and Father had not been made and progress had not

been made in alleviating the cause for removal of the children from the home. In finding

the continued wardship of the children not in the children’s best interest, the magistrate

committed the children to the care and custody of Grandmother. The magistrate further

found that the agency had made reasonable efforts to make it possible for the children to

return to Mother. The magistrate stated, however, that both parents were referred for

parenting, mental health services, and domestic violence/anger management classes, but

the services were not effective. On September 24, 2013, the trial court approved and adopted the magistrate’s decision and awarded legal custody of the children to

Grandmother, who filed a statement of understanding and indicated that she was willing

to assume legal custody. Mother appeals from this decision.

Substantive Facts

{¶8} CCDCFS filed its original complaint alleging the neglect of C.S. based

upon concerns of domestic violence and the lack of proper parenting. The second

complaint was filed after the birth of A.S., alleging the same concerns. Susan Frate,

CCDCFS social worker, testified that the agency has maintained an open and active case

with Mother since 2010, beginning with C.S. and then continuing with A.S., due to a

“lengthy ongoing toxic relationship between [M]other and [F]ather,” and “frequent police

intervention.”

{¶9} Frate testified that there were approximately 80 to 100 occasions

concerning a domestic violence dispute between Mother and Father that involved police

intervention. Two of the calls made to the police department were placed within one

month of the trial held in September. According to Frate, over the course of the three

years of the agency’s involvement, the complaints included Father’s physical violence,

such as spitting in Mother’s face, shoving her into a dresser, and twisting her arm, as well

as Father verbally threatening to kill Mother and to “bash her head into a steering wheel.”

{¶10} Tanya Sirl, police sergeant with the Parma Heights Police Department,

testified concerning her personal knowledge of Mother and Father’s lengthy history with the police department. Sergeant Sirl testified that she has known Mother for

approximately 15 years and, through her employment, has personal knowledge of the

violent relationship between Mother and Father since 2008 or 2009. She stated that their

relationship is very volatile and she often received calls to the department concerning

their harassment of each other and their screaming arguments, including a time when

Mother was pregnant with C.S. and a time after C.S.’s birth, when Mother was holding

the child in her arms. Sergeant Sirl testified that Mother exhibited the classic signs of a

victim of domestic violence, refusing to leave her abuser and declining to prosecute

Father for any alleged violence against her.

{¶11} Grandmother also observed the violent relationship between Mother and

Father. She testified that the violence escalated after C.S. was born.

{¶12} Due to the agency’s concerns with the domestic violence and Mother’s

parenting in the home, the children were placed in the care of Grandmother, where they

essentially lived for more than two years. A.S. has never lived with Mother. The

agency developed a case plan in order to facilitate reunification with Mother. The case

plan consisted of three objectives: domestic violence services, parenting services, and

mental health services.

{¶13} Mental health services were offered for both parents. Father had been

diagnosed with Intermittent Explosive Disorder, and Mother is bipolar. Frate testified

that mental health services were offered because of the agency’s concerns regarding the parents’ volatile behavior, Mother’s erratic mood swings and tantrums, and frequent calls

to the police department that led to several domestic violence charges on both parents.

{¶14} Father was referred to Centers for Families and Children and The Free

Clinic for a psychological evaluation. Because Father was a previous client, the center

recommended he continue with the medication he had previously been prescribed. Frate

indicated that while it appeared that Father was taking his medication for a period of time,

he did not maintain compliance with his medication or counseling. She testified that

Father’s behavior continued to be explosive and volatile, adding that “[h]e’s not a

pleasant person to be around.” Although Father visited with the children on occasion, he

did not visit consistently in a structured manner.

{¶15} Mother was already involved with the center when Frate became involved.

Frate testified that Mother was seeing a mental health counselor and receiving medication

from the center.

{¶16} Mother was referred to the Family Guidance Center and the YWCA for

domestic violence counseling on four occasions. Frate testified that Mother has failed to

benefit from the services because she continues to engage in a relationship with her

abuser, Father, and she allows him to live in her home, thus failing to demonstrate the

ability to protect herself or her children. Frate testified that Mother failed to complete

the program successfully at the center, stating that she did not complete the individual

counseling at the Domestic Violence Center, she did not complete her homework, and she denied help with her homework when offered by Frate and the domestic violence service

provider.

{¶17} With respect to parenting services, Mother was referred to a parenting class

that she successfully completed. However, the agency referred Mother to the Early

Intervention Program that provided one-on-one in-home services because C.S. had

exhibited behavioral problems that Mother had difficulty controlling. Frate testified that

although Mother has done well in the class and has participated, she does not believe

Mother can handle parenting full time. Frate stated that Mother becomes very frustrated,

does not take the initiative in visiting with her children, and when she does visit, it is

sporadic. According to Frate, despite the fact that Mother lives across the hall from

Grandmother’s home, in the same apartment complex where the children reside, Mother

“[visits] when she feels like it and does what she wants to do,” and she doesn’t visit

unless she’s asked to visit with her children.

{¶18} Frate testified that the children are doing well in Grandmother’s care. Their

health is good, and they are progressing well. In addition, Grandmother is able to

provide a safe and stable environment for the children. Grandmother has been part of the

court-ordered safety plan, providing a safe environment for the children during domestic

violence incidents between Mother and Father. Grandmother indicated that she

understands Mother’s rights concerning visitation with the children and she understands

her own responsibilities in caring for the children. Grandmother is willing to become legal custodian of the children, and she believes it is in the best interest of the children to

remove them from the violence in Mother’s home.

{¶19} The children’s guardian ad litem, Amy Habinski, testified that in her

opinion, raising the children and providing them with a safe and stable environment is not

a priority for either parent. She stated that “there is no reservation [in her mind] that

legal custody to [Grandmother] is in the best interest of these children.”

Assignment of Error

The lower court erred when it granted legal custody of A.S. and C.S. under

the terms of [R.C. 2151.353].

Legal Custody

{¶20} In her sole assignment of error, Mother argues that the trial court erred when

it granted legal custody of her minor children to Grandmother. She claims that the trial

court’s decision was an abuse of discretion because the evidence showed that Mother had

completed her case plan services.

{¶21} Parents have a constitutionally protected interest in raising their children.

In re M.J.M., 8th Dist. Cuyahoga No. 94130,

, ¶ 15, citing Santosky v.

Kramer,

,

,

(1982). That interest,

however, is “‘always subject to the ultimate welfare of the child.”

quoting In re B.L.,

10th Dist. Franklin No. 04AP-1108,

. {¶22} Under R.C. 2151.353(A)(3), the court may award legal custody of a child

who has been adjudicated abused, neglected, or dependent, to any person who filed a

motion requesting legal custody of the child prior to the dispositional hearing. Assuming

the person seeking legal custody has complied with any statutory requirements, the

court’s authority to award legal custody under this statute “is limited only by the best

interest of the child.” Id.; In re W.A.J., 8th Dist. Cuyahoga No. 99813,

. The best interest of the child is “of paramount concern” when making custody

determinations. In re M.J.M. at ¶ 14.

{¶23} Legal custody is defined as follows:

[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); In re E.A., 8th Dist. Cuyahoga No. 99065,

.

{¶24} Legal custody is significantly different than the termination of parental

rights in that, despite losing legal custody of a child, the parents of the child retain

residual parental rights, privileges, and responsibilities. In re G.M., 8th Dist. Cuyahoga

No. 95410,

, citing R.C. 2151.353(A)(3)(c). In such a case, a

parent’s right to regain custody is not permanently foreclosed. In re M.J.M., 8th Dist. Cuyahoga No. 94130,

, at ¶ 12. For this reason, the standard the trial

court uses in making its determination is the less restrictive “preponderance of the

evidence.” Id. at ¶ 9, citing In re Nice,

,

,

(7th Dist.). “Preponderance of the evidence” means evidence that is more

probable, more persuasive, or of greater probative value. In re C.V.M., 8th Dist.

Cuyahoga No. 98340,

.

{¶25} Unlike permanent custody cases in which the trial court is guided by the

factors outlined in R.C. 2151.414(D) before terminating parental rights and granting

permanent custody, R.C. 2151.353(A)(3) does not provide factors the court should

consider in determining the child’s best interest in a motion for legal custody. In re

G.M. at ¶ 15. We must presume that, in the absence of best interest factors in a legal

custody case, “the legislature did not intend to require the consideration of certain factors

as a predicate for granting legal custody.” Id. at ¶ 16. Such factors, however, are

instructive when making a determination as to the child’s best interest. In re E.A. at ¶ 13.

The best interest factors include, for example, the interaction of the child with the child’s

parents, relatives, and caregivers, the custodial history of the child, the child’s need for a

legally secure permanent placement, and whether a parent has continuously and

repeatedly failed to substantially remedy the conditions causing the child to be placed

outside the child’s home. R.C. 2151.414(D). {¶26} Because custody determinations “‘are some of the most difficult and

agonizing decisions a trial judge must make,’” a trial judge must have broad discretion in

considering all of the evidence. In re E.A., 8th Dist. Cuyahoga No. 99065,

, quoting Davis v. Flickinger,

,

(1997). We therefore review a trial court’s determination of legal custody

for an abuse of discretion. Miller v. Miller,

,

(1988). An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶27} In this case, the record shows that while Mother was attempting to make

progress toward her case plan, including seeing a mental health counselor and taking her

medication, she failed to successfully complete the requirements of the domestic violence

services. She did not complete the individual counseling at the Domestic Violence

Center, she did not complete her homework, and she denied help with her homework

when offered by the social worker and the domestic violence service provider.

{¶28} More significantly, Mother failed to remedy the domestic violence concerns

that caused the initial removal of the children from her home. She maintained a

relationship with Father, who did not maintain compliance with his medication or mental

health counseling and continued to be explosive and volatile. The evidence showed that

this ongoing relationship between Mother and Father resulted in approximately 80 to 100 police interventions, two of which occurred within one month of the trial. The fact that

Mother still allowed Father to live with her, despite Father’s continued violence and the

agency’s three-year involvement, demonstrates that any domestic violence services she

had been receiving were clearly not effective. As a result, Mother failed to demonstrate

the ability to protect herself or her children.

{¶29} Further, the social worker testified that she does not believe Mother can

handle parenting full time. She stated that Mother becomes very frustrated with her

children, does not take the initiative in visiting with her children, and when she does visit,

it is sporadic. The children’s GAL supported the social worker’s testimony in reporting

that Mother’s behavior demonstrated that raising her children and providing a safe

environment for them is not a priority.

{¶30} Mother argues that the evidence showed she was “doing well” with

parenting skills, satisfied the mental health portion of the case plan, and attended some of

the domestic violence classes. The successful completion of a case plan, however, “‘is

not dispositive on the issue of reunification.’” In re W.A.J., 8th Dist. Cuyahoga No.

99813,

, quoting In re C.C.,

,

,

(8th Dist.). “A parent can successfully complete

the terms of a case plan yet not substantially remedy the conditions that caused the

children to be removed — the case plan is simply a means to a goal, but not the goal

itself.”

{¶31} Therefore, even if Mother had shown that she completed her case plan,

substantially or otherwise, the evidence demonstrated that Mother had not remedied the

condition that initially caused the children to be removed from her home.

{¶32} Moreover, we are mindful that in making custody determinations, the trial

court’s principal concern is the children’s best interest. While completing her case plan

may be in Mother’s best interest, this is not a factor in determining what is in the

children’s best interest. In re M.J.M., 8th Dist. Cuyahoga No. 94130,

,

at ¶ 14.

{¶33} Given the evidence presented at trial, we cannot say that the trial court’s

determination that it would be in the best interest of the children to be placed in the legal

custody of Grandmother was arbitrary or unreasonable. The evidence shows that Mother

has failed to provide a safe and stable home for herself or her children. She continued to

maintain a volatile relationship with Father, allowing him to live with her, despite

repeated incidents of violence and police intervention, some of which occurred in the

presence of C.S., and continued involvement of CCDCFS. Such violence throughout the

agency’s involvement included physical attacks as well as verbal threats to kill Mother

and “bash her head.” The violence escalated with the birth of C.S. and continued after

the birth of A.S.

{¶34} While Mother expressed an interest in custody of her children, the evidence

shows that her relationship with her children was not a priority. She became frustrated with her children and did not initiate visits with them, despite the children’s accessibility

across the hall from her own apartment. Mother’s visits were sporadic and occurred only

when asked to visit.

{¶35} Furthermore, in contrast, the evidence shows that Grandmother has provided

a safe and stable home for C.S. and A.S. The children have lived with Grandmother for

more than two years (A.S.’s entire life), and Grandmother has been part of the

court-ordered safety plan, protecting the children from domestic violence incidents

between Mother and Father. The evidence also shows that the children are doing well

under Grandmother’s care and she has provided for their basic needs. Finally, although

Mother would lose legal custody of the children, she would continue to have access to

them because Grandmother lives directly across the hall from Mother and Grandmother

supports Mother’s visitation of the children.

{¶36} In light of the above, we find that the trial court’s decision was supported by

a preponderance of the evidence and was in the best interest of the children. We

therefore find that the court’s award of legal custody to Grandmother was not an abuse of

discretion.

{¶37} Mother’s sole assignment of error is overruled.

{¶38} Judgment affirmed.

It is ordered that appellee recover of 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, juvenile division, 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.

__________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR