In re J.C. ( 2021 )

[Cite as In re J.C., 2021-Ohio-1453.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
IN RE: CASE NO. 7-20-10
J.C.,
A DEPENDENT CHILD.
OPINION
[MICAILA C. - APPELLANT]
Appeal from Henry County Common Pleas Court
Juvenile Division
Trial Court No. 20193013
Judgment Affirmed
Date of Decision: April 26, 2021
APPEARANCES:
Autumn D. Adams for Appellant
Katie L. Nelson for Appellee, Henry County Job and Family Services
Case No. 7-20-10
WILLAMOWSKI, P.J.
{¶1} Respondent-appellant Micaila C. (“Micaila”) brings this appeal from
the judgment of the Court of Common Pleas of Henry County, Juvenile Division,
granting legal custody of J.C. to the paternal aunt, Jennifer N. (“Jennifer”). On
appeal, Micaila claims that the trial court erred by failing to extend the temporary
custody of the child when the failure was against the manifest weight of the
evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} J.C. was born to Micaila in July 2018. Doc. 1. On July 30, 2019, the
Henry County Department of Job and Family Services (“the Agency”) filed a
complaint alleging that J.C. was a dependent child and requesting temporary
custody of J.C. Doc. 1. The basis for this claim was that J.C. was homeless and that
Micaila allegedly suffered from mental health issues. Doc. 1. An adjudication
hearing was held, at which Micaila admitted that J.C. was a dependent child. Doc.
13. At the disposition hearing, the trial court awarded temporary custody of J.C. to
the Agency. Doc. 14. The Agency subsequently placed J.C. with Jennifer.
November 18, 2019, Case Plan. The Agency also set forth a case plan requiring
Micaila to 1) receive a psychological evaluation and comply with any
recommendations; 2) submit to random drug and alcohol screens; 3) seek and obtain
housing; and 4) maintain stable employment. October 16, 2019, Case Plan.
{¶3} On March 4, 2020, Jennifer filed a motion for legal custody of J.C. Doc.
30. The Agency filed a motion in support of Jennifer’s motion on August 27, 2020.
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Doc. 46. A hearing was held on the motion on September 25, 2020. Doc. 58.
Following the hearing, the trial court granted Jennifer’s motion and awarded legal
custody of J.C. to her. Doc. 58. Micaila filed a timely notice of appeal from this
judgment and on appeal raises the following assignments of error.
First Assignment of Error
The trial court abused its discretion by not extending the period
of temporary custody to [the Agency] when [Micaila] made
significant progress on case plan services.
Second Assignment of Error
The trial court’s failure to extend the case for six (6) months was
against the manifest weight of the evidence.
Both assignments of error argue that the trial court erred in granting the Agency’s
motion to award legal custody of the children to Jennifer instead of continuing the
temporary custody. Thus, we will address them together.
Legal Standard
{¶4} At the outset, this court notes that this is not a case involving the
granting of permanent custody to the Agency, but is instead a grant of legal custody
to a third party. Where permanent custody would legally terminate all parental
rights, legal custody does not. R.C. 2151.011. “‘Legal custody’ means 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,
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education, and medical care, all subject to any residual parental rights, privileges,
and responsibilities.” R.C. 2151.011(B)(21). In other words, legal custody does
not divest parents of all their rights and either parent may petition the court in the
future for a modification of custody. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-
1191, ¶ 17, 843 N.E.2d 1188. Because the parent’s right to regain custody is not
permanently foreclosed, the standard used by the trial court in making a decision in
a legal custody proceeding is merely preponderance of the evidence. In re B.P., 3d
Dist. Logan Nos. 8-15-07, 8-15-08, 2015-Ohio-5445, ¶ 19.
Preponderance of the evidence is the greater weight of
the evidence; that is, evidence that you believe because it
outweighs in your mind the evidence opposed to it.
A preponderance means evidence that is more probable, more
persuasive, or of greater probative value.
2 CR Ohio Jury Instruction 207.21. “In a dispositional hearing involving legal
custody, the focus is on the best interest of the child.” In re B.P, supra at ¶ 19.
{¶5} R.C. 2151.353 provides that one disposition a trial court may make for
a child that has been adjudicated as dependent is to award legal custody of the child
to any person who is identified as a proposed legal custodian and who completes
the appropriate statement. R.C. 2151.353(A)(3). The statute does not set forth
specific factors to be considered in making the determination of best interest of the
child. In re B.P., supra. However, the factors set forth in R.C. 2151.414(D) for
determining whether a grant of permanent custody is in the best interest of the child
have been held to be “instructive” as to an award of legal custody. Id. These factors
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include the interaction of the child with the various parties, the wishes of the child
as told by the child or the GAL, the custodial history of the child, and the child’s
need for a legally secure placement. R.C. 2151.414(D). A decision reached by a
trial court concerning a motion for legal custody is within the sound discretion of
the trial court and will not be reversed absent an abuse of that discretion. In re B.P.,
supra at ¶ 21.
Evidence Presented
{¶6} A review of the record in this case shows that the following testimony
was presented at the hearing. Jennifer testified that the Agency had placed J.C. with
her in October of 2019. Tr. 18. Before then Jennifer babysat for J.C. many times
at the request of Micaila. Tr. 19-21. Jennifer indicated that J.C. has thrived in her
care. Tr. 23. When J.C. first came, he had no regular schedule and appeared to be
afraid of men. Tr. 23. J.C. was put on a regular schedule and is no longer afraid of
people. Tr. 23. Jennifer also indicated that Micaila had missed many visits with
J.C. and she brought strangers with her to J.C.’s birthday party in August. Tr. 24.
According to Jennifer, Micaila has a history of making things up and fails to take
responsibility for her actions. Tr. 25-26. Jennifer testified that Micaila refuses to
have contact with her, including refusing to visit J.C. at their home rather than at the
Agency. Tr. 26-27. Micaila has refused to give her a phone number or address and
had blocked Jennifer on Facebook, so Jennifer has no way of sharing J.C.’s
accomplishments with her. Tr. 27-28. Jennifer testified that she was willingly
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accepting the responsibility for J.C. and would work with Micaila to insure visits
occurred. Tr. 28-29.
{¶7} On cross-examination, Jennifer admitted that she had never asked
Micaila for her address. Tr. 31. Jennifer also admitted that J.C. had been in other
placements before coming to her home, so the lack of schedule may have been a
result of that rather than being with Micaila. Tr. 34. The contact that did come from
Micaila was addressed to Jennifer’s fiance. Tr. 36.
{¶8} Randy T. (“Randy”) testified that he is engaged to Jennifer and lives in
the same home with her and J.C. Tr. 39. According to Randy, J.C. is doing well
but he feels bad restricting Micaila to visits at the Agency only, so he and Jennifer
arranged some visits at the park. Tr. 41. Micaila was invited to J.C.’s birthday
party, but she brought some additional people who she claimed were his
grandparents even though they were not. Tr. 41-42. When Randy and Jennifer
brought J.C. to their home, Randy had a good relationship with Micaila and he was
hoping J.C. could be returned. Tr. 42. Over time though, Micaila started sending
him threatening text messages. Tr. 43-44. The messages started with her accusing
Randy and Jennifer of trying to steal J.C. Tr. 44. In Randy’s opinion, J.C.’s best
interests would be served by leaving J.C. with Randy and Jennifer. Tr. 48. Up until
a week before the hearing, Micaila was able to contact Randy whenever she wanted,
but when her messages became harassing and threatening, he blocked her. Tr. 48-
49.
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{¶9} Thomas Knox (“Knox”) testified that he rented a house to a third party,
who moved in with her son and his girlfriend. Tr. 53. When the rent was not paid
for several months, he evicted the people living there. Tr. 53. Instead of moving
out, they moved into the in-law suite above the garage. Tr. 53. One of the people
who was evicted was known to Knox as Maria, but was identified by him as Micaila.
Tr. 54-55. Micaila, under the name Maria, was included in the eviction. Tr. 55.
Eventually, Micaila, along with the others, were removed from the property all
together. Tr. 55. According to Knox, Micaila had not lived at the property since
before August 4, 2020. Tr. 67.
{¶10} Bayli Geiser (“Geiser”) is an ongoing caseworker at the Agency. Tr.
74. She took over J.C.’s case in September of 2019. Tr. 74. According to Geiser,
the Agency had temporary custody of J.C. since July of 2019. Tr. 75. Originally,
J.C. was placed with his grandparents, but was moved to Jennifer’s home when his
grandfather started having health issues. Tr. 76. A few days before the hearing,
Geiser conducted a home visit at Jennifer’s home and found J.C. to be doing “great”.
Tr. 76-77. The home was appropriately baby-proofed. Tr. 77. Geiser testified that
Micaila would cancel a few visits, then attend really well for a while, but she
generally attended visits. Tr. 78. One issue with Micaila is that she can be nice
sometimes, but generally is harassing and threatening. Tr. 79-80. Geiser also
testified that Micaila has issues with maintaining employment. Tr. 84-86. At the
time of the hearing, Geiser did not know where Micaila was living or if she was
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employed. Tr. 86. Micaila had served a 30 day jail term for telecommunication
harassment and driving under suspension. Tr. 86. According to Geiser, Micaila’s
mood changes easily and she struggles with depression and anxiety. Tr. 88. The
mental health assessment recommended that Micaila have “consistent, individual
mental health therapy” before being allowed unsupervised visitation. Tr. 88.
Although Micaila attended counseling consistently starting around January of 2020,
she stopped attending regularly in June of 2020. Tr. 89. Geiser did not know if
Micaila was continuing her counseling at the time of the hearing. Tr. 90. In Geiser’s
opinion, J.C.’s best interests would be served by granting legal custody to Jennifer.
Tr. 90.
{¶11} On cross-examination, Geiser testified that Micaila did ask for
additional visitation, but the Agency did not have the resources to fulfill the request.
Tr. 92-94. Then in-person visits were stopped for a couple of months due to COVID
restrictions. Geiser admitted that from her observations during visits, she had no
concerns about how Micaila treated J.C. and that she acted appropriately with him.
Tr. 95-96. Geiser noted that Micaila clearly loved J.C. Tr. 96. Geiser also admitted
that Micaila is able to obtain employment, but stated that she does not seem to be
able to maintain employment. Tr. 98.
{¶12} Michelle Snyder (“Snyder”) testified that she was the CASA volunteer
appointed to this case. Tr. 103. Snyder indicated that she had been having monthly
home visits with Jennifer and Randy regarding J.C. via zoom due to COVID. Tr.
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104. According to Snyder, J.C. was thriving under the care of Jennifer and Randy
and their home was very suitable. Tr. 104. At the beginning of the case, Micaila
worked with Snyder, but later she became hostile. Tr. 105. Although Micaila would
obtain employment and housing, she would eventually lose them. Tr. 105. Snyder
did not know where Micaila was living at the time of the hearing. Tr. 107. Sndyer
also testified that Micaila, when asked a question, would go into tangential rants
about how the Agency and everyone was trying to steal her child. Tr. 111.
According to Snyder, Micaila often would lie to her. Tr. 112. Although Snyder was
not concerned with how Micaila treated J.C. during visits, she recommended that
custody be placed with Jennifer and Randy. Tr. 113.
{¶13} John B. (“John”) testified that he is J.C.’s father. Tr. 120. At the time
of the hearing, he was an inmate at Richland Correctional Facility. Tr. 120. In
John’s opinion, J.C. was in a “fantastic home” where his needs were met. Tr. 120.
John indicated that neither he nor Micaila could provide a suitable home at that time,
so he thought it was in J.C.’s best interest to remain with Jennifer. Tr. 121.
{¶14} Micaila testified that she had lived in her car with J.C. for two days
which caused this case to be started. Tr. 124-25. When she needed help, she asked
Jennifer to take J.C. for a short time and Jennifer agreed to do so. Tr. 125. At the
time of the hearing, Micaila testified that she was employed full-time at “Genacross
Lutheran Home”. Tr. 126-27. Micaila also testified that she had been living at her
current address for close to two months. Tr. 128. She is living with her boyfriend,
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his father, and his step-mother. Tr. 129. Micaila asked Geiser to conduct a home
visit, but it was denied due to COVID. Micaila then cancelled a visitation because
if COVID was so bad as to prevent the home visit, it should also cancel the visit
rather than risk J.C.’s health. Tr. 129. Micaila indicated that the home where they
were living was a three bedroom trailer, so J.C. would be able to have his own room.
Tr. 130. Micaila and her boyfriend were discussing purchasing the trailer at the end
of the year. Tr. 131. Micaila admitted that she had just completed 30 days in jail
for driving under suspension, but claimed she only did it to get to orientation for her
job. Tr. 132. She claims that all she needs to do to get her license back is to pay
the fines for the suspension she received in Texas. Tr. 132. Micaila denied that she
was staying at Knox’s home without permission. Tr. 135. Micaila also testified
that in the time the case was active, she had many different residences and many
different jobs. Tr. 136-45. Specifically, she admitted that she had four different
residences and five different jobs. Tr. 215. When asked about counseling, Micaila
indicated that she was consistent with seeing her counselor unless she was sick or
had to work. Tr. 146. Micaila admitted that she had not had a session since July of
2020. Tr. 147. In her opinion, Micaila did not think she really needed therapy. Tr.
220. Micaila also admitted that she had not seen J.C. since his last birthday party.
Tr. 153. When she asked for visits to resume, Geiser told Micaila that Jennifer and
Randy did not want to conduct video visits to allow Micaila to see J.C. Tr. 156.
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Micaila was concerned that if Jennifer and Randy were given custody, they would
not allow her to visit with J.C. Tr. 176.
{¶15} Christa Sweeney (“Sweeney”) testified that Micaila was dating her
stepson for approximately a year. Tr. 228. Micaila moved in with Sweeney in July
of 2020. Tr. 229. Sweeney testified that she and her husband were planning on
selling the home to her stepson and Micaila once Sweeney and her husband move
to a new home. Tr. 230. Sweeney saw no reasons Micaila could not parent J.C. and
that the home was suitable for him. Tr. 231. The home is a three bedroom, two
bathroom one with one of the bedrooms being available for J.C. Tr. 231. J.C. would
be welcome in the home. Tr. 233.
{¶16} Once the trial was completed, the trial court issued its opinion and
noted the following case history and testimony. J.C. had been placed in the
temporary custody of the Agency on July 31, 2019. Doc. 58 at 2. Pursuant to the
case plan, Micaila was required to maintain employment and housing. Doc. 58 at
3. Micaila was also to obtain a psychological evaluation and follow the
recommendations. Doc. 58 at 3. The GAL and the psychologist both filed reports
indicating they had concerns with Micaila’s mental health, her failure to maintain
housing and employment, and both recommended that Micaila’s visits with J.C.
continue to be supervised. Doc. 58 at 3-4. At a dispositional review hearing in
November 2019, Micaila was ordered to re-enroll in counseling and obtain an
evaluation to determine the need for medication. Doc. 58 at 4. Another
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dispositional review was held on December 20, 2019, and the trial court had ordered
Micaila to comploy with the case plan, including maintaining contact with the GAL
and the caseworker. Doc. 58 at 5. During the administrative review dated January
21, 2020, the Agency noted that Micaila had missed several counseling
appointments and was unsuccessfully discharged from services due to
noncompliance. Doc. 58 at 5. It was also noted that she was continuing to struggle
with maintaining housing and employment and was being charged with
telecommunication harassment against the Agency which resulted in a no contact
order that interfered with her ability to attend supervised visitations at the Agency.
Doc. 58 at 5. Jennifer was then supervising the visits, which Micaila refused to
attend due to her distrust of Jennifer. Doc. 58 at 5. After the February 11, 2020
dispositional review, the trial court noted that Micaila was not compliant with
counseling and was still having issues maintaining employment. Doc. 58 at 5. The
May 5, 2020 review showed that Micaila was making some progress as she had
maintained employment and housing for a couple months and had been consistent
with counseling for a few months. Doc. 58 at 6. In July of 2020, the Agency
indicated that it was not requesting an extension because Micaila was losing her
housing, had lost her employment, and was non-compliant with counseling. Doc.
58 at 6. The semi-annual review filed on July 24, 2020 indicated that Micaila had
made insufficient progress for all of the reasons set forth above. Doc. 58 at 6.
Micaila had repeatedly refused to have parenting time with J.C. supervised by
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Jennifer at the park since June. Doc. 58 at 8. Due to threatening comments made
by Micaila to Jennifer and Randy, they were hesitant to allow parenting time at their
home and wanted it to be facilitated by the Agency. Doc. 58 at 8. Throughout the
case, Micaila had no problem obtaining employment, but she had issues maintaining
it for more than a couple of months. Doc. 58 at 12. Micaila has not updated the
GAL on where she is living, working, or whether she is attending counseling despite
having the phone number of the GAL. Doc. 58 at 12. The GAL also noted that
Micaila has lied to her on several occasions about housing and employment. Doc.
58 at 12. The trial court noted that Micaila had admitted to being fired from multiple
jobs in the past year. Doc. 58 at 15. Micaila had also admitted not engaging in
counseling sessions since July 2020. Doc.58 at 15. Additionally, Micaila’s record
of phone calls showed seven calls ranging from 36 seconds to almost 10 minutes.
Doc. 58 at 15. The trial court determined that these were not likely productive
counseling sessions since they averaged less than 4 minutes. Doc. 58 at 15. Despite
Micaila’s complaints that Jennifer did not update her about J.C. enough, Micaila
admitted that she had blocked Jennifer since July and Jennifer had no way to contact
her. Doc. 58 at 17. The trial court was also concerned that Micaila’s current
boyfriend that she was living with and planning on buying a home with was only 17
at that time and Micaila was 24. Doc. 58 at 17.
{¶17} Based upon this testimony, the trial court made the following findings
of fact. During the approximately 14 month pendency of the case, Micaila had six
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different residential situations. Doc. 58 at 19. Micaila also had six different jobs
during that time, being fired from four, laid off due to COVID from one, and the
last being her current employment. Doc. 58 at 19. Micaila continues to have legal
issues with suspended or stayed days in jail still active along with over $2,675 owed
in fines and court costs. Doc. 58 at 19. Micaila failed to maintain necessary contact
with the GAL, the caseworker and Jennifer. Doc. 58 at 20. Micaila did well while
attending counseling, but she has not been consistent with attendance and has not
obtained the evaluation for the purpose of determining whether medication is
recommended as ordered by the trial court. Doc. 58 at 20. Although Micaila loves
J.C. and wants him to be with her, “she has not made sufficient progress to do what
is necessary to stabilize her life to have an appropriate home for [J.C.], or to undergo
the counseling necessary for her mental health.” Doc. 58 at 21. The trial court noted
that it had considered the factors set forth in R.C. 3109.04(F) in determining the best
interest of J.C. and set forth its findings as to the factors. Doc. 58 at 22-23. Based
upon these findings, the trial court granted legal custody of J.C. to Jennifer.
Analysis
{¶18} In both assignments of error, Micaila argues that the trial court should
have granted a six month extension of the case rather than granting legal custody to
Jennifer. A temporary custody order terminates one year after the date the child was
first placed into shelter care, except if a motion is filed to extend it. R.C.
2151.353(G). Additionally, a party can file a motion to terminate the order of
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temporary custody. R.C. 2151.353(H). Although the case can be extended for an
additional time, there is no requirement that the extension must occur and the
determination as to whether the extension or termination is in the best interest of the
child is left to the trial court’s discretion. Matter of C.K., 5th Dist. Muskingum No.
CT2020-0027, 2020-Ohio-5437 ¶ 21. Thus, the decision will only be reversed if
the decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “An abuse of discretion exists if
the court’s decision regarding the child’s best interests is not supported by
competent, credible evidence.” In re D.M., 1st Dist. Hamilton No. C-140648, 2015-
Ohio-3853.
{¶19} Initially, this Court notes that no written motion to extend temporary
custody of J.C. was filed by either the Agency or Micaila. Micaila’s testimony
showed that she wanted the trial court to terminate the case, but return J.C. to her
custody. A review of the record shows that the findings of fact and conclusions of
law made by the trial court are supported by competent, credible evidence. The trial
court specifically pointed to specific testimony to support its findings and
conclusions. Additionally, the trial court considered various factors in determining
what was in the best interest of the child. Given the record before this court, we do
not find that the trial court erred by failing to deny Jenifer’s motion for legal custody,
supported by the Agency, and the Agency’s motion to terminate the case.
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{¶20} This leads to the question of whether the trial court’s decision was
against the manifest weight of the evidence. As noted above, the trial court’s
decision to grant legal custody to Jennifer was supported by a substantial amount of
competent, credible evidence. Micaila repeatedly stopped cooperating with the case
plan whenever she disagreed with Geiser. She showed the same attitude towards
Jennifer and Randy. She would rather give up a visitation with J.C. than adjust her
behavior to comply with the requests made. This same attitude is what led to
numerous job losses. Although Micaila claims she has stable housing, her own
testimony shows that does not appear to be the case as she has no legal right to her
housing at this time and is just there at the good will of others. Likewise, she had
only been at her current employment for approximately one month. Given the
evidence before it, this Court does not find that the trial court lost its way or that a
manifest injustice occurred.1 The assignments of error are each overruled.
{¶21} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Henry County, Juvenile
Division is affirmed.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/hls
1
Notably, the trial court even took additional steps to insure that Micaila had a path to receiving unsupervised
visitations with J.C. if she took the required steps to control her mental health issues.
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