[Cite as In re C.L.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE C.L., ET AL. : : No. 110363 Minor Children : : [Appeal by Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 28, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-18-907033 and AD-18-907034

Appearances:

Judith M. Kowalski, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michelle A. Meyers, Assistant Prosecuting Attorney, for appellee CCDCFS.

Cullen Sweeney, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellee A.A.

MICHELLE J. SHEEHAN, J.:

Appellant, C.L.L., the mother of two children, C.L. and E.L., appeals

the juvenile court’s grant of custody of the children to their father, A.A. Because the

juvenile court (1) did not err in precluding appellant’s testimony in this case, (2) did not abuse its discretion determining the children’s best interests were met by

awarding custody to A.A., and (3) ordered appropriate restrictions on appellant’s

visitation with the children, we affirm the judgment.

I. PROCEDURAL HISTORY AND FACTS

On June 1, 2018, the Cuyahoga County Division of Children and

Family Services (“CCDCFS or “the Agency”) filed a complaint alleging appellant’s

children C.L. and E.L. were dependent and requesting protective supervision. On

September 10, 2018, the children were found to be dependent after a hearing and

placed in protective supervision with the Agency. On September 27, 2018, the

Agency filed a motion for leave to amend the disposition from protective supervision

to temporary custody. A hearing was held on October 19, 2018, and the juvenile

court issued an order committing C.L. and E.L. to the temporary care and custody

of the Agency. On October 23, 2018, appellant objected to the decision, and on

November 29, 2018, the objections were overruled. On December 4, 2018, the order

granting temporary custody of the children to the Agency was approved.

On May 13, 2019, the Agency filed a motion to extend the order of

temporary custody that was granted on June 25, 2019, with the temporary custody

being extended to November 30, 2019. On October 9, 2019, the Agency filed a

second motion for extension of temporary custody that was granted on February 5,

2020, extending the Agency’s custody of the children until May 30, 2020.

On May 14, 2020, CCDCFS filed a motion to modify temporary

custody of the children to legal custody of their father, A.A., with protective supervision to the Agency. On September 28, 2020, the juvenile court began a

hearing on the motion. Social worker Shanara Leonard testified that she was

assigned the case in August 2020 and, at the time the Agency filed the complaint

alleging the children to be dependent, C.L. was four years of age and E.L. was two

years of age. The children had been removed from appellant’s care due to concerns

about her mental health and her inability to manage the children’s behavior. A case

plan was developed with the goal of reunification that included appellant receiving

mental health services, parenting classes, and assistance for housing.

Leonard further testified that in conjunction with the case plan,

appellant reported that she completed a mental health assessment and had a

therapist, but provided no specific information that the Agency could verify. In

2019, appellant was referred for a parenting program but did not complete the

program. Further, appellant refused to communicate with the social worker over

the phone, expressing that she did not want to be recorded, but did not attend any

meetings with the social worker. Appellant was also referred for assistance with

housing but did not follow through with the referral. At the time of the hearing in

September 2020, appellant was homeless and had been sleeping in her car or bus

stations and in hotels when she could.

After the children were initially removed, the children’s father, A.A.,

began having regular visits. The visits with A.A. were unsupervised by December

2019. In June 2020, the Agency placed the children with A.A., and they remained

with him. Leonard testified that she visited the home on multiple occasions and stated it was safe and that the children had all their basic needs met. The children

were further observed smiling and playing with their father. Leonard reported that

the children adjusted well to being with their father and that he demonstrated that

he can consistently meet their basic needs.

As to appellant’s relationship with her children, Leonard testified that

appellant had supervised visitation with the children at first, but that visitation

ceased in June 2020. In August 2020, appellant said she wanted visitation with her

children, but then said she did not want visitation, stating she did not want to be in

a public setting because she did not want others or the children to see her emotional.

Further, appellant declined to speak with the children over the phone when given

the opportunity.

After Leonard testified, the court granted appellant a continuance in

order to produce witnesses. On January 22, 2021, the hearing resumed and

appellant’s attorney noted appellant wished to testify, but he advised her not to,

stating there was another proceeding in juvenile court in which her testimony could

be used against her. The magistrate conducting the hearing asked appellant if she

understood that she had a right to remain silent. Appellant answered that “I know

I have the right, but I don’t agree today.” The juvenile court then explained to

appellant that she has a right to remain silent and that if she remains silent, nobody

can comment on her decision and asked if she understood. Appellant said, “No, I

don’t understand that.” Appellant’s attorney and the magistrate again attempted to explain

her rights to her. After each explanation, appellant wavered in her responses, from

stating that she did not understand her rights, to stating that she understood her

rights, to stating, “I don’t understand the right to remain silent part. I can’t

understand that one.” Appellant also stated that she didn’t “understand how I will

talk and people will question me, but I can’t question them.” After the court

procedure was explained, appellant stated that “I understand it, but I don’t agree

with it. I understand some of it.” The magistrate again asked appellant if she wanted

to waive her right and testify, she responded, “I don’t know about the Fifth

Amendment right * * * I mean, I don’t want to waive that right.” Her attorney then

asked if she wanted “to be silent and not testify?” Appellant responded “No.” Her

attorney then explained her right not to testify, and appellant responded that “[t]his

whole thing is (inaudible) confused. I don’t understand. I just don’t. I’m sorry.

Everything is all messed up. I don’t understand this,” and continued by stating “I

want to testify, but — I want people questioning me, but I want to have the

opportunity to ask other people questions.” When explained again that court

procedure would not allow her to ask questions, she stated “It’s wrong.” The

magistrate then explained that if appellant testified, she couldn’t ask any questions

and again asked appellant, “Do you want to waive your Fifth Amendment right to

remain silent and testify?” Appellant said “I’m sorry. I can’t answer the question. I

don’t want you to answer it for me either.” Appellant was again asked if she wished to waive her right not to testify. Appellant stated, “I’m sorry. I can’t decide on that

because I don’t think that’s the right move for this court case.”

After another discussion of court procedure, appellant indicated that

she wanted other people to testify. The following colloquy was then had between

the magistrate and appellant:

THE COURT: Thank you. [C.L.L.], you have a Fifth Amendment right to remain silent. You can waive that and testify here today. Do you want to waive your Fifth Amendment right and testify or do you want to invoke your Fifth Amendment right? Yes or no?

APPELLANT: I can’t answer it.

THE COURT: Based on the fact that mother has stated she cannot answer that question, mother has a Fifth Amendment right to remain silent. In order to protect mother’s rights, the Court cannot force mother to testify. She cannot give this Court an answer. She has indicated at least twice that she can’t answer that question. I cannot force her to testify. No one in this courtroom can. I can’t make any inferences, nor can anybody else on the fact that she’s not testifying.

The guardian ad litem (“GAL”) testified that he had visited with the

father and children on four occasions from August 11, 2020, to the date of the

hearing and recommended that the children’s best interests would be to grant legal

custody to their father and that the mother should have visitation.

On February 12, 2021, the juvenile court committed the children to

the custody of their father with an order of protective supervision to the Agency. The

juvenile court further ordered that the Agency continue to facilitate and supervise visits by appellant. On February 22, 2021, appellant objected to the order, and the

objections were overruled on March 15, 2021.

II. LAW AND ARGUMENT

A. THE TRIAL COURT ACTED WITHIN ITS DISCRETION BY NOT ALLOWING APPELLANT TO TESTIFY AT THE HEARING

Appellant’s first assignment of error reads:

The trial court erred to the prejudice of the appellant and against the best interests of the children by denying her the right to testify at trial.

Appellant argues that she was denied the right to testify and that such

denial was an abuse of discretion. The Agency and A.A. argue that because appellant

did not knowingly waive her rights, there was no abuse of discretion and appellant

suffered no prejudice from that decision.

In a juvenile court proceeding regarding custody, parents have a Fifth

Amendment right not to testify. In re Billman,

,

(8th Dist. 1993). “‘In a case where parental rights are permanently

terminated, it is of utmost importance that the parties fully understand their rights

and that any waiver is made with full knowledge of those rights and the

consequences which will follow.’” In re Rock Children, 5th Dist. Stark

No. 2004CA00358,

, quoting Elmer v. Lucas Cty. Children

Serv. Bd.,

,

(6th Dist. 1987); In re A.C., 8th

Dist. Cuyahoga No. 102351,

. Accordingly, it was incumbent

upon the juvenile court to ensure that appellant understand her right not to testify and ensure that any waiver was made with full understanding of the effects of her

decision to testify.

Further, a court has discretion to admit or exclude evidence.

Appellate courts review a decision to allow or disallow testimony under an abuse

of discretion standard. Buckmaster v. Buckmaster, 4th Dist. Highland

No. 13CA13,

; see also In re M/W Children, 1st Dist. Hamilton

No. C-180623,

(reviewing denial of mother’s request for

continuance in order to testify for an abuse of discretion). An abuse of discretion

is more than an error of law or judgment; it implies that a court has acted in a

manner that is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore,

,

(1983).

In this case, the record indicates appellant vacillated between stating

she understood the right to testify, stating that she wanted to testify and did not

want to testify, and indicated that she wanted to testify in order to ask questions

from the witness stand. After numerous attempts to determine whether or not

appellant understood her right not to testify, the court was unable to satisfy itself

that appellant understood her right or voluntarily waived that right. Given that the

juvenile court could not determine if appellant understood her right not to testify

and its effect and could not determine if appellant did in fact wish to voluntarily waive her rights, we cannot find that the juvenile court abused its discretion by

precluding her testimony.1

The first assignment of error is overruled.

B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THAT THE BEST INTERESTS OF THE CHILDREN WERE MET BY GRANTING CUSTODY TO THE CHILDREN’S FATHER

Appellant’s second assignment of error reads:

The trial court erred to the prejudice of the appellant and against the best interests of the minor children in awarding legal custody to father.

Appellant argues that the court erred in its determination that the

best interests of her children were served by awarding legal custody to A.A., their

father, because he had no relationship with the children prior to the Agency’s

involvement and the Agency did not do more to investigate A.A.’s care of the

children. The Agency and A.A. argue that the trial court properly considered the

necessary factors in awarding A.A. custody of his children.

Where a child is adjudicated to be dependent, R.C. 2151.353(A)(3)

provides that 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.” This court has found that:

1 We also note that Evid.R. 103(A) provides that “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” Evid.R. 103(A)(2) requires that where a ruling excluding evidence is made, “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” The record does not reflect a proffer of appellant’s testimony or indicate in any manner what appellant’s testimony would be. An award of legal custody is “significantly different” than the termination of parental rights. In re G.M., 8th Dist. Cuyahoga No. 95410,

. An award of legal custody is “not as drastic a remedy as permanent custody” because, despite losing legal custody of the child, the parent retains residual parental rights, privileges, and responsibilities and can petition the court for a custody modification in the future. In re L.D., 10th Dist. Franklin No. 12AP- 985,

, ¶ 7; In re H.A.I., 8th Dist. Cuyahoga No. 97771,

.

In re T.R., 8th Dist. Cuyahoga No. 102071,

. The juvenile

court’s award of custody is based upon determining the best interest of the child

“‘based upon a preponderance of the evidence.’” Id. at ¶ 44, quoting In re M.J.M.,

8th Dist. Cuyahoga No. 94130,

, ¶ 11. A 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,

.

“The decision whether to grant or deny a request for legal custody is within the

sound discretion of the juvenile court.” In re T.R., 8th Dist. Cuyahoga No. 102071,

.

When granting custody, the juvenile court is required under

R.C. 2151.414(D)(1) to consider “all relevant factors,” including, but not limited to,

the following: (1) the interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster parents, and out-of-home providers, and any other

person who may significantly affect the child; (2) the wishes of the child as expressed

directly by the child or through the child’s guardian ad litem, with due regard for the

maturity of the child; (3) the custodial history of the child; (4) the child’s need for a

legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody; and (5) whether any of the factors

set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). As the

Supreme Court of Ohio explained, “[R.C. 2151.414(D)] requires a weighing of all the

relevant factors * * * [and] requires the court to find the best option for the child

* * *.” In re Schaefer,

,

,

.

Regarding A.A.’s ability to care for his children, the juvenile court

found that A.A. had been engaged with the Agency and that his children had been

living with him and that he had suitable housing and employment, evidencing

means to provide for the basic needs of his children. The record further reflects

these findings were supported by the social worker’s testimony based upon several

visits to A.A.’s home. In contrast, the record reflects that the juvenile court had

evidence before it that appellant had stopped visitation with her children and had

no contact with them for several months before the custody hearing and that, at the

time of the hearing, appellant had unaddressed mental health issues, was homeless,

and did not have the means to provide basic needs for her children. The trial court

further could consider the wishes of the children. Testimony indicated that C.L. did

not wish to visit with appellant and E.L. was silent about her wishes. Additionally,

the GAL recommended A.A. be granted custody. The custodial history of the

children further supported the trial court’s determination that the best interests of

the children were met by granting custody to A.A. where the children had lived with

him for the past seven months prior to trial. The juvenile court’s decision to award custody to A.A. demonstrates

that it considered all the necessary factors and that its decision was supported by

competent, credible evidence. As such, we cannot say that the decision to grant

custody of C.L. and E.L. was an abuse of the juvenile court’s discretion.

The second assignment of error is overruled.

C. THE TRIAL COURT’S DETERMINATION THAT APPELLANT WOULD HAVE SUPERVISED VISITATION WAS NOT AN ABUSE OF DISCRETION

Appellant’s third assignment of error reads:

The trial court abused its discretion in granting mother such restrictive visitation that it amounts to a denial of visitation.

Appellant argues that the visitation granted by the court was so

limited that the visitation amounts to “no visitation” where it is supervised by the

Agency because appellant presumes that it will “be limited and brief.” The Agency

and A.A. argue the decision that visitation would be supervised was proper where

appellant had not seen the children in months and where the record demonstrated

she failed to address the issues that led to the intervention by the Agency.

“In ordering visitation, the juvenile court must consider the ‘totality

of the circumstances as they relate to the child’s best interest.’” In re K.D., 2017-

Ohio-4161,

(9th Dist.), citing In re M.E., 10th Dist. Franklin No.

12AP-684,

, ¶ 25, quoting In re C.J., 4th Dist. Vinton No. 10CA681,

. A court’s determination as to visitation is reviewed for an abuse of discretion. Id. at ¶ 26, citing In re G.S., 9th Dist. Summit No. 28050, 2016-

Ohio-7471, ¶ 32.

The record established through the pendency of the case that the

Agency conducted supervised visits between appellant and the children. At the time

of the custody hearing, there was no evidence that appellant had addressed the

issues of her mental health that led to the Agency involvement. Further, appellant

had not participated in any recommended services. Moreover, appellant had not

visited with her children in several months at the time of the dispositional hearing,

despite the social worker’s repeated attempts to meet and arrange a visitation

schedule. Appellant’s behaviors demonstrated that the court did not abuse its

discretion by ordering visits to be supervised by the Agency.

The third assignment of error is overruled.

III. CONCLUSION

In determining custody of the children, the juvenile court did not

abuse its discretion in precluding appellant’s testimony where appellant was unable

to make a knowing, intelligent, or voluntary waiver of her right not to testify. The

juvenile court further considered the necessary factors in determining that the

children’s best interests were met by awarding custody to A.A. and that

determination was not against the manifest weight of the evidence. Under the

totality of the circumstances, an order of supervised visitation for appellant and the

children was appropriate and not an abuse of discretion.

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

The court finds there were reasonable grounds for this appeal.

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

common pleas court, 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.

MICHELLE J. SHEEHAN, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and LISA B. FORBES, J., CONCUR