In re S.D.T. , 2021 Ohio 2106 ( 2021 )

[Cite as In re S.D.T., 2021-Ohio-2106.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE S.D.T. :
: No. 109996
A Minor Child :
:
[Appeal by S.S., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 24, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-19905673
Appearances:
The Law Office of R. Tadd Pinkston, L.L.C., and R. Tadd
Pinkston, for appellant.
William Daugherty Law, L.L.C., and William Daugherty,
for appellee D.T.
MARY EILEEN KILBANE, J.:
Appellant S.S. (“Mother”) appeals from the juvenile court’s decision
awarding legal custody of her minor child, S.D.T., to appellee D.T. (“Father”). For
the following reasons, we affirm the decision of the trial court.
Factual and Procedural History
On May 9, 2019, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “the agency”) filed a complaint alleging that minor
children S.D.T., then nine years old, and C.N., then 18 months, were abused and
neglected and seeking temporary custody of the children.1 The agency
simultaneously filed a motion for emergency predispositional custody of the
children. The complaint alleged that both children were observed with various
injuries and Mother was unable to provide an explanation for the injuries.
Specifically, the complaint alleged that S.D.T. had multiple lacerations to her face,
back, arms, neck, and head, and that at least two of these injuries should have been
treated with stitches but were not. Therefore, the complaint alleged that Mother
failed to meet S.D.T.’s medical needs by ensuring that her injuries were properly
treated. The complaint also alleged that Mother failed to meet S.D.T.’s educational
needs because S.D.T. missed an excessive amount of school and was ultimately
withdrawn from school. Additionally, the complaint alleged that Mother failed to
1Father D.T. is not the biological father of C.N. The trial court in this case granted
the agency’s motion for an extension of temporary custody of C.N. and Mother did not
appeal this decision. Father did not receive legal custody of C.N.; therefore, C.N. is not
the subject of this appeal.
consistently seek treatment for her depression and bipolar disorder, which seriously
impacted her ability to care for her children.
With respect to Father, the complaint alleged that he had failed to
support, visit, or communicate with S.D.T. consistently. At the time the complaint
was filed, Father had not seen S.D.T. in approximately seven years.
On May 8, 2019, the children were placed in temporary custody of the
agency. On July 9, 2019, Father filed a motion for legal custody of S.D.T. On July
17, 2019, the court adjudicated S.D.T. abused and neglected.
On July 22, 2019, the court held a hearing in which the agency stated
that it was “open-minded in regards to [Father],” but it was waiting for the results
of a pending out-of-town investigation (“OTI”) because Father lived in Atlanta,
Georgia. The social worker assigned to the case explained that Mother’s case plan
services related to substance abuse, mental health, and parenting. There were no
case plan goals or services for Father, and the social worker testified that should any
case plan goals be added for Father, it would be limited to continuing to foster a
relationship with S.D.T. The social worker testified that Father came to Cleveland
when the agency first initiated this case, and that was the first time that he had seen
or communicated with S.D.T. and Mother since they relocated to Ohio from Georgia
approximately seven years before. The record reflects that this lack of
communication was not due to Father’s lack of commitment. When Mother left
Georgia with S.D.T., Father did not know the child’s whereabouts and was not
allowed access to S.D.T. The social worker also testified that although Father lived
in Georgia, he had regular phone contact with S.D.T. and had made multiple trips to
Cleveland to visit S.D.T. since the start of this case. At the time of the hearing, the
permanency plan was for both children to be reunited with Mother. Following the
hearing, the court awarded temporary custody of S.D.T. to the agency.
On March 19, 2020, the agency filed a motion for an extension of
temporary custody. On May 12, 2020, Mother filed a motion for legal custody of
both children. On May 19, 2020, the court had a hearing on these motions. At this
hearing, the child protection specialist newly assigned to the case testified that since
being assigned to this case in April 2020, she had been unable to review the case file
kept by the social worker previously assigned to the case, partly due to the COVID-
19 pandemic. This witness went on to testify that she understood that Mother had
completed her case plan services and had begun to have overnight visits with her
children. When Father’s counsel cross-examined this witness, she could not
respond to questions as to why S.D.T. could not be placed with Father and she
testified that she had not had any contact with Father since being assigned to this
case.
During one of the overnight visits between Mother and S.D.T., the
agency learned that Mother’s paramour was present in the home with the children,
despite Mother making inconsistent claims that the individual was a relative or a
coworker. According to the agency, this was alarming because the agency had
reason to believe that this individual was involved in S.D.T.’s injuries that prompted
the agency’s involvement with the family. This individual was listed on S.D.T.’s
intake referral form at the hospital when she was ultimately treated for her injuries,
and according to the agency, this individual and Mother provided inconsistent
explanations as to how S.D.T. was injured. Further, although this individual may
have been living with Mother, because of inconsistent information received about
the individual’s relationship to Mother, the agency was unable to fully investigate
this individual. Ultimately, the agency believed that this individual might pose a
safety risk to the children.
The agency’s supervising social worker testified that following
Father’s out-of-town investigation, an Interstate Compact on the Placement of
Children (“ICPC”) was completed and denied in February 2020, due to concerns
relating to Father’s girlfriend, with whom he lived. This witness testified that
beyond these concerns regarding Father’s girlfriend, the agency did not have other
concerns regarding Father. Further, the witness testified that because the OTI was
denied based on an incident from seven years ago that appears to have been
resolved, it was unclear what, if anything, Father could do moving forward to
remedy the issue that caused the ICPC to be denied.
In the middle of the supervising social worker’s testimony, the court
interrupted the testimony as follows:
THE COURT: You know what, I’m going to interrupt here. And my
apologies to everyone. I am very concerned about the fact that neither
— from the agency, neither person seems to have the file or know what’s
going on and I’m being asked to make a dispositive placement of one of
these children and it would seem that with all due respect, to [the
agency witnesses], neither one of them is well versed in this case.
So I’m going to recess this hearing right now. And I would like at least
one of the witnesses to review the file and the facts and the report
because this is concerning. And I’ve sat and listened for over an hour
and I’ve gotten “I don’t know,” “I’m not sure,” “to the best of my
knowledge.” We’re talking about two very young children. Okay.
The court adjourned to allow the witnesses to review the case file and better prepare
for a subsequent dispositional hearing on May 28, 2020.
On May 21, 2020, Father filed a second motion for legal custody of
S.D.T. On May 28, 2020, the court held the subsequent dispositional hearing on all
of the pending motions. At this hearing, agency witnesses testified that Mother had
completed her substance abuse case plan services in January 2020, had completed
random drug screens that came back negative as recently as May 21, 2020, and had
completed her domestic violence case plan services in August 2019. With respect to
her mental health plan case services, the witnesses testified that Mother was initially
engaged with the recommended counseling services pursuant to her case plan, but
in recent months had stopped counseling but continued to be medication compliant.
The witnesses also testified regarding the ICPC denial and explained
that Father’s girlfriend had been involved with child protective services in Georgia
in 2013 due to testing positive for marijuana. They went on to testify that based on
the ICPC, they had no concerns that Father would be unable to provide for S.D.T.’s
basic needs or would otherwise be unsuitable. Father had undergone a drug screen
as part of the ICPC, and those results were negative. The witnesses testified that
S.D.T. was “very receptive” to seeing and visiting with Father, and that he had shown
continued commitment reestablishing a connection with her.
The guardian ad litem recommended that legal custody of S.D.T. be
awarded to Father because he was “ready, willing, and able” to parent S.D.T. and the
agency had no outstanding concerns or case plan services for him to complete.
The magistrate denied Mother’s motion for legal custody and granted
Father’s motion for legal custody of S.D.T. Mother objected to the magistrate’s
decision, and the trial court overruled Mother’s objections and adopted the
magistrate’s decision. The court made the following findings:
The continued extension of temporary custody of the child is not in the
child’s best interest.
The Court further finds that the Cuyahoga County Division of Children
and Family Services has made reasonable efforts and continues to
make reasonable efforts to make it possible for the child to safely return
home through the provision of supportive services.
The Cuyahoga County Division of Children and Family Services has
made reasonable efforts to finalize the permanency plan for the child.
These efforts are mother was referred to Murtis Taylor to address her
mental health. Mother is diagnosed with Bipolar and depression.
Mother is medication compliant but needs to re-engage with
counseling. Mother completed a substance abuse assessment through
Key Solutions and random drugs screens have been negative. Mother
completed domestic violence services at the Domestic Violence and
Child Advocacy Center. Father has re-established a relationship with
his child, maintaining phone/face time contact and driving up from
Georgia to visit the child. Father cooperated with the out of [town]
investigation of his home in Georgia. There were no identified services
for father to complete in the case plan.
GAL recommends that the child be placed in the legal custody of the
father [D.T.]. GAL cites to father’s demonstrated dedication and
commitment to his child, always standing ready and being willing and
able to care for her. GAL reports father drove through the night to get
to Cleveland for the emergency hearing held at the inception of this
case. GAL further advised the Court that father had a relationship with
his child until the mother moved from Georgia to Cleveland. GAL does
not view the 7 year old, resolved marijuana issue of father’s paramour
as a barrier to placement with the father.
ICPC letter of denial dated February 6, 2020 is marked as Exhibit A
and admitted without objection.
Review of Exhibit A reveals that father and paramour are both
employed, their home is appropriate and they can meet the basic needs
of their family. Further there has not been any children services
involvement with father or his paramour since 2013.
Mother now appeals, presenting one assignment of error for our review.
Law and Analysis
In Mother’s sole assignment of error, she argues that the trial court’s
decision to affirm legal custody to father was against the manifest weight of the
evidence and an abuse of discretion. Specifically, Mother argues that the manifest
weight of the evidence did not support granting Father legal custody of S.D.T. and
that the trial court abused its discretion in overruling her objections and adopting
the magistrate’s decision.
R.C. 2151.353(A) provides that after a child has been adjudicated
abused, neglected, or dependent, the trial court may
[a]ward 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 or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any
party to the proceedings.
R.C. 2151.353(A)(3). Legal custody is
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).
Unlike an award of permanent custody, an award of legal custody
does not divest parents of residual parental rights and responsibilities, nor does an
award of legal custody permanently foreclose the right of either parent to regain
custody in accordance with the law. In re R.B., 2019-Ohio-1656, 136 N.E.3d 42, ¶
48 (8th Dist.), citing In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d
1188, ¶ 23; see also R.C. 2151.42.
Because legal custody, where parental rights are not terminated, is
not as drastic a remedy as permanent custody, the trial court’s standard of review in
a legal custody proceeding is not clear and convincing evidence, but “merely
preponderance of the evidence.” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-
Ohio-5514, ¶ 7, citing In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097,
¶ 52. The court must determine the appropriateness of legal custody in accordance
with the best interest of the child as supported by a preponderance of the evidence
presented at the dispositional hearing. In re R.B., 2019-Ohio-1656, 136 N.E.3d 42,
¶ 48 (8th Dist.), citing In re T.R., 8th Dist. Cuyahoga No. 102701, 2015-Ohio-4177,
¶ 44. A “preponderance of the evidence” is “evidence that’s more probable, more
persuasive, or of greater probative value.” In re D.P. at ¶ 52, quoting State v. Finkes,
10th Dist. Franklin No. 01AP-310, 2002 Ohio App. LEXIS 1422 (Mar. 28, 2002).
Because the decision whether to grant or deny a request for legal
custody is within the sound discretion of the juvenile court, we apply an abuse of
discretion standard when reviewing a juvenile court’s ultimate decision on legal
custody. In re A.C., 8th Dist. Cuyahoga No. 108442, 2019-Ohio-5127, ¶ 16, citing In
re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 2, quoting In re G.M.,
8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14. We likewise review a trial
court’s decision to adopt a magistrate’s decision for abuse of discretion. Id., citing
In re D.G.B., 8th Dist. Cuyahoga No. 107921, 2019-Ohio-3571, ¶ 24. An abuse of
discretion connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Apart from the requirement that the child be previously adjudicated
as abused, neglected, or dependent — which no party disputes was satisfied in this
case — the court’s authority to award legal custody under R.C. 2151.353(A)(3) is
limited only by the best interests of the child. In re W.A.J., 8th Dist. Cuyahoga No.
99813, 2014-Ohio-604, ¶ 3. While there is “no ‘specific test or set of criteria’ that
must be applied or considered in determining what is in a child’s best interest in a
legal custody case[,]” the factors in R.C. 2151.414(D) are instructive. In re I.L., 8th
Dist. Cuyahoga No. 109034, 2020-Ohio-2946, ¶ 30; In re G.M., 8th Dist. Cuyahoga
No. 95410, 2011-Ohio-4090, ¶ 16. The statutory factors include (a) the interaction
and interrelationship of the child with their parents and other relatives or
caregivers; (b) the child’s wishes; (c) the child’s custodial history; and (d) the child’s
need for a legally secure placement. R.C. 2151.414(D).
Here, the trial court reviewed the record, the magistrate’s decision,
and Mother’s objections to the magistrate’s decision and ultimately overruled the
objections and adopted the decision. Mother simultaneously argues that the
magistrate’s decision in this case is unsupported by the evidence and, while “broadly
correct,” omits several crucial facts. Specifically, Mother emphasizes that S.D.T. has
a strong bond with Mother, her half-brother, and other family in Ohio, and by
contrast, the “scattershot” nature of Father’s relationship with S.D.T. weighs against
uprooting S.D.T. from her life in Ohio.
The lower court heard evidence as to S.D.T.’s bond with her family in
Ohio, as well as testimony from agency witnesses that ideally, S.D.T. and her half-
sibling would not be separated. The court also heard evidence, though, as to S.D.T.’s
positive relationship with her Father. Further, while it is not explicitly clear from
the record, it appears that the “scattershot” nature of Father’s relationship with
S.D.T. for seven years is largely, if not exclusively, due to Mother’s decision to
relocate to Ohio and Father’s lack of information about their whereabouts. Indeed,
the record in this case demonstrates that as soon as Father was notified about the
initiation of these proceedings, and thus S.D.T.’s whereabouts, he drove from
Georgia to Ohio. From the inception of the case, Father made multiple trips to Ohio
to visit S.D.T., had regular phone and video contact with her, and has provided her
with clothing and satisfied other material needs even while she was in a foster care
placement. Beyond this evidence demonstrating Father’s commitment to S.D.T., the
court also heard evidence that S.D.T. was receptive to Father and had a positive
relationship with him.
We acknowledge, as the lower court did, that Mother substantially
complied with her case plan and completed a domestic violence program in addition
to other case plan services. This substantial compliance, however, does not change
the fact that Mother had stopped engaging in mental health counseling, a required
action of her case plan. Further, our review of the record shows that at the time of
the trial in this case, there was an unresolved issue regarding Mother’s paramour.
The agency was unable to determine whether an individual who was present with
Mother during multiple overnight visits with the children was a suitable person to
interact with, and potentially supervise, the children. Moreover, Mother was not
cooperative with the agency or even straightforward in identifying this person, and
ultimately told an agency employee that she “knew she had made a mistake.” In
light of the connection Mother’s paramour had to the injuries sustained by S.D.T.,
and the suspected history of abuse, this unresolved issue weighed heavily against
granting Mother’s motion for legal custody and weighed in favor of granting Father’s
motion for legal custody.
Ultimately, Mother does not point to any findings that are
unsupported by evidence in the record, nor does Mother direct our attention to any
way in which the trial court’s decision was unreasonable, arbitrary, or
unconscionable. Therefore, the decision to grant Father’s motion for legal custody
of S.D.T. was supported by a preponderance of the evidence and was not an abuse
of discretion. Accordingly, we overrule Mother’s sole assignment of error.
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 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.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and
LISA B. FORBES, J., CONCUR