[Cite as In re C.W.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

: : IN RE: C.W. : Appellate Case No. 28781 : : Trial Court Case No. 2017-3406 : : (Appeal from Common Pleas : Court – Juvenile Division) : :

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OPINION

Rendered on the 23rd day of December, 2020.

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MATHIAS H. HECK, JR. by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee, Montgomery County Children Services

KELLY M. SCHROEDER, Atty. Reg. No. 0080637, One South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Appellant, Mother

.............

HALL, J. -2-

{¶ 1} Mother appeals from the trial court’s judgment entry overruling

her objections to a magistrate's decision and awarding legal custody of her child, C.W.,

to a maternal cousin.

{¶ 2} In her sole assignment of error, Mother challenges the trial court's decision

to award legal custody to the maternal cousin.1 She argues that the trial court abused its

discretion and that the disposition was not in C.W.’s best interest.2

{¶ 3} The record reflects that appellee Montgomery County Children Services

(“MCCS”) filed a May 2017 neglect and dependency complaint concerning C.W., who

was then six years old. The complaint was filed after one of C.W.’s siblings went missing

from the home Mother shared with Father. The complaint alleged that police had been

called “multiple times over the years” due to children wandering out of the home and

lacking supervision. The complaint further included allegations that Mother had moved

out of the home after the foregoing incident and had refused to help care for C.W. or the

child’s siblings. Among other things, the complaint included allegations that Father had

reported being unable to care for the children, that Mother had obtained other housing

but had been uncooperative with MCCS, and that the children never had attended school

1 Despite the award of legal custody, we note that Mother retains certain residual rights, including visitation rights and the opportunity to request the return of her child. See In the Matter of P.S., 2d Dist. Montgomery No. 28812,

. 2 Mother’s appellate brief also mentions the trial court’s decision to grant appellee Montgomery County Children Services extensions of temporary custody with regard to two other children. The adjudication and disposition of those children occurred under different trial court case numbers. Those cases are not part of the present appeal, which was taken only from the trial court’s legal-custody determination regarding C.W. Therefore, we need not address the trial court’s extension of temporary custody with regard to C.W.’s siblings. -3-

or done school work at home and lacked adequate medical care.

{¶ 4} C.W. and two siblings were adjudicated dependent in July 2017. MCCS

obtained temporary custody of the children in August 2017. The trial court transferred

temporary custody of C.W. to the maternal cousin in February 2018. Thereafter, MCCS

moved for legal custody to the maternal cousin. Following a two-day hearing on August

9, 2018 and October 24, 2018, a magistrate filed a November 5, 2018 decision sustaining

the motion and awarding the maternal cousin legal custody of C.W. 3 Mother filed

objections and then supplemental objections to the magistrate's decision after obtaining

a hearing transcript. In a March 16, 2020 order, the trial court overruled Mother's

objections. In its lengthy ruling, the trial court summarized the testimony presented to the

magistrate and aligned it with the pertinent statutory best-interest factors. The trial court

then found, by a preponderance of the evidence, that awarding legal custody of C.W. to

the maternal cousin was in the child's best interest. This appeal followed.

{¶ 5} In her assignment of error, Mother challenges the trial court's best-interest

determination. She engages in her own analysis and weighing of the best-interest factors

found in R.C. 3109.04(F)(1), arguing that those factors supported returning custody to

her. Mother also asserts that she has satisfied or substantially completed her case-plan

objectives and that she is capable of caring for C.W. (Appellant's brief at 9-11.)

{¶ 6} The law governing the trial court's legal-custody determination and our

review of that decision is as follows:

R.C. 2151.353(A)(3) provides that if a child is adjudicated a

3 Although Father was present for part of the hearing, the record reflects that he had little interaction with MCCS regarding any of the children or his case-plan objectives. Father is not a party to this appeal challenging the trial court’s legal-custody determination. -4-

dependent child, the court may award 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[.]” An award of legal custody

“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)(19).

When a juvenile court makes a custody determination under R.C.

2151.353, it must do so in accordance with the “best interest of the child”

standard set forth in R.C. 3109.04(F)(1). See In re Poling,

,

,

, paragraph two of the syllabus, and

R.C. 2151.23(F)(1) (requiring a juvenile court to exercise its jurisdiction in

accordance with R.C. 3109.04 as well as other sections of the Ohio Revised

Code). The factors a court must consider in determining a child's best

interest include such things as the parents' wishes; the child's wishes, if the

court has interviewed the child; the child's interaction with parents, siblings,

and others who may significantly affect the child's best interes[t]; adjustment

of the child to home, school, and community; and the mental and physical

health of all involved persons. R.C. 3109.04(F)(1)(c). * * *

“[W]hen determining whether or not to grant an individual or couple

legal custody of a dependent child, a court can do so if it finds by a -5-

preponderance of the evidence that it is in the best interes[t] of the

concerned child. Preponderance of the evidence simply means ‘evidence

which is of a greater weight or more convincing than the evidence which is

offered in opposition to it.’ ” (Internal citations omitted.) In re A.W., 2d Dist.

Montgomery No. 21309,

, citing [In re K.S.], 2d Dist.

Darke No. 1646,

.

We review the trial court's judgment for an abuse of

discretion. See In re C.F.,

,

,

, ¶ 48 (applying abuse of discretion standard to trial court's

findings under R.C. 2151.414); In re A.M., 2d Dist. Greene No. 2009 CA 41,

, ¶ 9. Abuse of discretion implies that the court's attitude

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

In re D.S., 2d Dist. Clark No. 2013-CA-51,

.

{¶ 7} With the foregoing standards in mind, we see no abuse of discretion in the

trial court’s legal-custody determination. With regard to the statutory best-interest factors,

Mother notes that she desires custody of C.W. Mother cites evidence that she has been

working on rebuilding a bond with all of her children, that she established good attendance

at visitation for several months, that she completed parenting classes, and that her

children are bonded to one another. Mother acknowledges that C.W. is doing well in the

maternal cousin’s home. On the other hand, she claims the maternal cousin partially

caused a broken bond between Mother and C.W., did not participate in sibling visits, and

interfered with Mother’s ability to be reunited with C.W. Mother also notes that she -6-

underwent a mental-health assessment, which found no need for therapy. Mother

acknowledges that C.W. needs mental-health therapy, but she attributes this to “the

Agency’s involvement and other issues.” Mother then again notes that she recently

established consistent visitation, blames maternal cousin for causing or contributing to a

broken bond between Mother and C.W., and contends maternal cousin interfered with

reunification efforts. Finally, Mother claims she has substantially completed her case plan

and is able to care for her children.

{¶ 8} In her June 24, 2019 supplemental objections to the magistrate’s decision,

Mother did not specifically address the evidence as it relates to any of the statutory best-

interest factors. Her entire substantive argument was as follows:

From the testimony and evidence presented at trial, it is apparent

that Mother has essentially completed her case plan. The failure to

complete the remaining items [was] due to failures on the part of the Agency

to take action, according to their testimony. It is inequitable for the Court to

hold those failures against Mother. Instead of granting Legal Custody of

[C.W.] to [maternal cousin] * * * the Court should have returned custody of

the children to Mother with protective supervision if the Court had any

concerns. The magistrate’s decision was not in the best interest of the

children.

(June 24, 2019 Supplemental Objections at 4-5.)

{¶ 9} In its decision overruling Mother’s objections, the trial court addressed the

status of Mother’s case-plan progress as well as the statutory best-interest factors and

the evidence applicable to them. With regard to the case plan, Mother’s objectives were -7-

“to obtain, maintain, and verify stable housing sufficient for the family’s needs; participate,

complete and provide documentation of a mental health assessment and follow

recommendations; complete a parenting/psychological assessment and follow

recommendations; sign all releases of information; complete parenting classes; obtain,

maintain, and verify stable income sufficient to meet the family’s needs; visit with the

children regularly; and participate in regular, on-going home visits monthly.” (March 16,

2020 Decision at 8.)

{¶ 10} The trial court thoroughly reviewed the evidence as it pertained to each

case-plan objective. (Id. at 8-12.) Although parts of that evidence were favorable to

Mother, the evidence remained mixed. Shortly before the first day of the hearing, Mother

obtained a two-bedroom apartment that was clean and adequately supplied except for

the fact that it needed a third bed to accommodate all three of Mother’s children. Due to

Mother’s prior problems with housing, MCCS wanted to see longer-term stability on that

issue.

{¶ 11} With regard to a mental-health assessment, Mother refused to comply for a

lengthy period of time. She eventually underwent an assessment, and MCCS learned of

that fact less than a week before the hearing. MCCS had not been able to speak to the

therapist due to delays in Mother signing a release. Based on Mother’s self-reporting

during the assessment and the therapist’s observations, the therapist did not believe she

required ongoing treatment or medication.

{¶ 12} As for a parenting/psychological assessment, Mother refused for many

months to sign a release to begin the referral process. Mother ultimately signed the

required release about a week before the hearing started. The assessment was -8-

scheduled but then needed to be reset because an issue came up with the clinician. When

the hearing concluded, the parenting/psychological assessment had not been completed.

With regard to required parenting classes, however, Mother did complete them.

{¶ 13} The evidence regarding Mother’s income objective was mixed but largely

favorable to her. A case worker who worked Mother’s case for about one month testified

that Mother was employed and that her income was sufficient. A second case worker who

had been involved longer testified that Mother resisted providing information regarding

income or expenses. That case worker was able to determine, however, that Mother’s

after-tax income was approximately $1,400 per month. The case worker did not know

Mother’s expenses and, therefore, could not determine the sufficiency of Mother’s

income.

{¶ 14} As for visitation, Mother’s record for several months leading up to the first

day of the hearing in August 2018 was excellent. Throughout the entire case, Mother had

attended about half of her visits. Between the August 2018 and October 2018 hearing

dates, Mother did not visit regularly. In September 2018, a no-call, no-show was recorded

and, as a result, Mother was required to start arriving early for visits. Mother responded

by cancelling all visits, and she did not see C.W. or the other children after August 2018.

{¶ 15} Finally, the trial court characterized a case worker’s required visits to

Mother’s home as an ongoing objective because the visits only recently had started up

after 16 months of no visits. During the time of no visits, Mother experienced periods of

homelessness and refused to allow visits when she had housing.

{¶ 16} The trial court also addressed the statutory best-interest factors under R.C.

3109.04(F)(1), which, as relevant here, include: the wishes of the child's parents -9-

regarding the child's care; the child's interaction and interrelationship with the child's

parents, siblings, and any other person who may significantly affect the child's best

interest; the child's adjustment to home, school, and community; and the mental and

physical health of all persons involved in the situation.

{¶ 17} The trial court thoroughly examined the evidence relating to the foregoing

factors. (March 16, 2020 Decision at 3-7.) The trial court recognized Mother’s desire to

regain custody. The trial court also recognized evidence of a bond among the children

and at least a friendship with some bonding between Mother and C.W. Although Mother

did not act inappropriately during visits, there was evidence that she at times did not

display much affection or interaction. A guardian ad litem opined that Mother’s bond with

her children had become more broken over time. A case worker testified that C.W. loved

being with the maternal cousin and wanted to remain in that placement. The case worker

also stated that the maternal cousin did help facilitate interaction between C.W. and

Mother’s other children and that such interaction was expected to continue if maternal

cousin obtained legal custody. C.W. is doing well with the maternal cousin, who was

addressing the child’s basic and special needs. With regard to those special needs, the

trial court cited testimony about C.W. having significant mental-health needs and

diagnoses that required intervention. The child also had needs related to a learning

disability and a language-processing disorder. A guardian ad litem expressed concern

about Mother not recognizing C.W.’s special needs and not being compliant with

counseling and medication requirements, which Mother was not convinced were

necessary.

{¶ 18} In addition to the foregoing factors, the trial court also evaluated the -10-

evidence in the context of the best-interest factors under R.C. 2151.414(D), which apply

to permanent-custody cases.4 Although some factors under R.C. 2151.414(D) are the

same as those discussed above, additional factors addressed by the trial court included

C.W.'s custodial history and the child's need for a legally-secure placement. With regard

to custodial history, the trial court simply recited the case history set forth above. As for a

legally-secure placement, the trial court noted that the case had been opened around the

summer of 2017 and that Mother initially did not interact much with MCCS. The trial court

then addressed the case-plan objectives discussed above.

{¶ 19} Based on its review of the record, the trial court found, by a preponderance

of the evidence, that the statutory best-interest factors supported awarding legal custody

of C.W. to the maternal cousin. We see no abuse of discretion in this determination. The

trial court engaged in a thorough analysis and reached a conclusion that was entirely

reasonable. Although the trial court appropriately weighed and considered multiple

factors, we find particularly noteworthy C.W.’s special needs and testimony about

Mother’s inability or unwillingness to accept the existence of those needs, leading to

reasonable concerns about whether she would meet them. We find no support for

Mother’s suggestion that C.W. required mental-health therapy because of MCCS’s

involvement in the case. We note too that a guardian ad litem recommended legal custody

to maternal cousin. Finally, we note that Mother’s progress on her case-plan objectives

4 This court has recognized that considering the permanent-custody best-interest factors in a legal-custody case is not erroneous because R.C. 3109.04(F)(1) allows a trial court to consider “all relevant factors,” which might include the additional best-interest factors found in R.C. 2151.414(D). In re C.N., 2d Dist. Montgomery No. 27119,

. -11-

did not preclude awarding legal custody to the maternal cousin. Case-plan compliance is

not the only consideration in a legal-custody determination:

* * * A parent's case-plan compliance is relevant, of course, to the

best-interest determination, but it is not dispositive. In re T.S., 2017-Ohio-

482,

, ¶ 13 (2d Dist.). Satisfying case-plan objectives is a

means to an end, not an end unto itself. Id. at ¶ 12. The statutory best-

interest factors may justify an award of legal custody to someone other than

a parent, or even the termination of parental rights, despite a parent's

completion of all case-plan objectives. Id. This is so because the best-

interest factors encompass much more than the parent's case-plan

objectives, and they do so from the perspective of the child's particular

needs. In short, the focus of a best-interest analysis is on the child, not the

parent.

In re A.K, 2d Dist. Montgomery No. 27575,

.

{¶ 20} Here the trial court appropriately evaluated the evidence, including Mother’s

case-plan progress, and applied the best-interest factors. Finding no abuse of discretion

in the trial court’s best-interest determination, we overrule Mother’s assignment of error.

{¶ 21} The trial court’s judgment awarding legal custody of C.W. to the maternal

cousin is affirmed.

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TUCKER, P.J. and DONOVAN, J., concur. -12-

Copies sent to:

Mathias H. Heck, Jr. Sarah E. Hutnik Kelly M. Schroeder Phillip Reid C.B. D.B. Hon. Anthony Capizzi