In re E.S. , 2022 Ohio 2253 ( 2022 )

[Cite as In re E.S., 2022-Ohio-2253.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: E.S. C.A. No. 30151
K.S.
G.S.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 15-05-305
DN 15-05-306
DN 15-05-307
DECISION AND JOURNAL ENTRY
Dated: June 30, 2022
SUTTON, Judge.
{¶1} Appellant, J.S. (“Mother”), appeals from a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that placed her minor children in the legal custody of the
paternal grandfather and step-grandmother (“Grandparents”). This Court affirms.
I.
{¶2} Mother is the biological mother of E.S., born December 3, 2012; K.S., also born
December 3, 2012; and G.S., born May 11, 2015. The father of the children is deceased.
{¶3} During May 2015, Summit County Children Services Board (“CSB”) filed a
complaint, alleging that the three children were abused and dependent because Mother had
overdosed on heroin and had a long history of drug abuse and domestic violence in her relationship
with the children’s father. The children were later adjudicated abused and dependent children and
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were placed in the temporary custody of the maternal grandmother under the protective supervision
of CSB.
{¶4} Mother made progress on the reunification goals of the case plan during the first
year of the case, so temporary custody was extended for six months. On July 25, 2016, upon the
motion of CSB, the children were placed in Mother’s temporary custody under an order of
protective supervision.
{¶5} Mother later remedied the agency’s concerns about her parenting ability. Notably,
she had achieved a sustained period of sobriety and had developed a network of people to support
her in abstaining from substance abuse. On October 12, 2016, CSB moved to have the children
placed in Mother’s legal custody and to terminate the order of protective supervision. Shortly
afterward, the trial court placed the children in Mother’s legal custody, terminated the order of
protective supervision, and docketed the case as closed.
{¶6} On December 19, 2019, Grandparents moved for legal custody of E.S., K.S., and
G.S. They alleged that the police had removed the children from Mother’s home because Mother
had overdosed on heroin in the presence of the children, which had required numerous doses of
Narcan to revive her, and Mother was hospitalized afterward. Grandparents also alleged concerns
that, prior to the overdose, Mother had not been meeting the children’s basic needs. By a later
agreement of the parties, Grandparents were granted emergency custody of the children.
{¶7} At the first status hearing after the Grandparents received emergency custody of the
children, CSB appeared and reported to the court that it believed that the children were safe with
Grandparents and that the agency would no longer be involved in this case. Maternal grandmother
was later granted leave to intervene, and she also filed a motion for legal custody of the children.
Mother also sought return of the children to her legal custody. During December 2020 and January
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2021, an evidentiary hearing was held before a magistrate on the competing motions for legal
custody.
{¶8} Following the hearing, the magistrate issued a decision that placed the children in
Grandparents’ legal custody. The magistrate applied the test set forth in R.C. 2151.42(B) to
Grandparents’ motion for a change of legal custody, which applies to the modification or
termination of existing orders of legal custody following an adjudication of abuse, neglect, and/or
dependency. The magistrate decided that there had been the requisite change in circumstances of
Mother and the children and that legal custody to Grandparents was in the children’s best interest.
See R.C. 2151.42(B).
{¶9} Mother filed objections to the magistrate’s decision. She did not argue that the
magistrate had applied the wrong legal standard to Grandparents’ motion. Instead, she argued that
Grandparents had failed to prove the requisite change in circumstances under R.C. 2151.42(B) or
that legal custody to Grandparents was in the best interest of the children.
{¶10} On September 13, 2021, the trial court overruled the objections and placed E.S.,
K.S., and G.S. in the legal custody of Grandparents. Mother appeals and raises three assignments
of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN APPLYING AN IMPROPER AND
INCORRECT LEGAL STANDARD IN DETERMINING AND GRANTING
[GRANDPARENTS’] COMPLAINT FOR LEGAL CUSTODY BASED ON A
“BEST INTEREST” STANDARD WITHOUT THE ABSOLUTE
REQUIREMENT TO FIRST ESTABLISH [MOTHER’S] “UNSUITABILITY”
OR “UNFITNESS” PRIOR TO CONSIDERING WHETHER TO AWARD
LEGAL CUSTODY TO A NON-PARENT.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO NON-
PARENT THIRD PARTIES ABSENT THE REQUIREMENT THAT
[GRANDPARENTS] ESTABLISH “UNSUITABILITY” AS REQUIRED
UNDER [IN RE PERALES, 52 OHIO ST.2D 89 (1977)] AND THE
SUBSEQUENT CASE LAW DEVELOPED THEREAFTER. THE REFUSAL
TO ADHERE TO THE CORRECT LEGAL STANDARD WAS REPUGNANT
TO THE DUE PROCESS RIGHTS AFFORDED TO [MOTHER] UNDER THE
UNITED STATES AND STATE OF OHIO CONSTITUTIONS.
{¶11} This Court will consolidate Mother’s first two assignments of error because they
both challenge the legal standard the trial court applied to determine whether to terminate or
modify the prior award of legal custody to Mother. The trial court applied the standard set forth
in R.C. 2151.42(B), which provides, in relevant part:
A court shall not modify or terminate an order granting legal custody of a child
unless it finds, based on facts that have arisen since the order was issued or that
were unknown to the court at that time, that a change has occurred in the
circumstances of the child or the person who was granted legal custody, and that
modification or termination of the order is necessary to serve the best interest of the
child.
See also In re I.S., 9th Dist. Summit No. 24763, 2009-Ohio-6432, ¶ 8-18 (holding that the standard
set for in R.C. 2151.42(B) applied to analogous facts).
{¶12} To preserve this issue for appellate review, however, Mother was required to
comply with Juv.R. 40(D). Juv.R. 40(D)(3)(b)(iv) provides, in relevant part, that “[e]xcept for a
claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion * * * unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).”
{¶13} Mother raised an objection to the magistrate’s decision, but she did not assert that
the magistrate had applied the wrong legal standard. In fact, the only argument raised in her
objection was that the evidence presented at the hearing did not support the magistrate’s conclusion
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that Grandparents had established the R.C. 2151.42(B) standard in this case. Specifically, she
asserted that the evidence failed to demonstrate that there had been a requisite change in
circumstances or that legal custody to Grandparents was in the children’s best interest. Because
Mother has not argued or demonstrated on appeal that the trial court committed plain error by
utilizing the change of custody standard set forth in R.C. 2151.42(B), her first and second
assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT FOUND A CHANGE OF
CIRCUMSTANCES NECESSARY FOR CONSIDERATION OF
[GRANDPARENTS’] COMPLAINT FOR LEGAL CUSTODY SOLELY
BECAUSE THE CHILDREN AND [MOTHER] HAD TO BE PLACED
OUTSIDE THE HOME DUE TO MOTHER’S DRUG RELAPSE WHEN
MOTHER WAS KNOWN TO BE IN DRUG REHABILITATION AND
THERAPY AT THE TIME OF THE DISPOSITIONAL ORDER GRANTING
HER CUSTODY AND THE FOREGOING CIRCUMSTANCES WERE NOT
SUFFICIENT IN CHARACTER TO DENY [MOTHER’S] REQUEST FOR
RETURN OF THE CHILDREN TO HER LEGAL CUSTODY.
{¶14} Mother’s third assignment of error is that the trial court erred by finding that there
had been the requisite change in circumstances under R.C. 2151.42(B). The evidence before the
trial court demonstrated that shortly before Grandparents moved for legal custody of the children
in December 2019, Mother overdosed on heroin in front of the children, which required
hospitalization and several doses of Narcan to treat her.
{¶15} Mother’s relapse to heroin use constituted a change in the circumstances of Mother
and the children because Mother was no longer maintaining her sobriety. The children had been
removed from Mother’s custody during 2015 because of her addiction to heroin. It was only after
Mother worked a case plan for more than one year and achieved a sustained period of sobriety that
the juvenile court allowed the children to return to her custody. At the time of her December 2019
relapse, Mother claimed to have been sober for over four years.
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{¶16} Moreover, Mother’s heroin overdose in December 2019 was not a one-time relapse
from her extended period of sobriety. After her 2019 overdose, CSB was no longer involved in
this case and Mother was not required to work a case plan. Mother engaged in some sober support
services on her own but did not reengage in a drug treatment program until nine months later, after
she was ordered to do so by a criminal court in a case in which she was charged with criminal
trespass.
{¶17} Because Mother was not involved in drug treatment or drug testing during most of
this phase of the case, the primary evidence about her drug use came from her own admissions.
She admitted at the hearing that she relapsed again in late August 2020 and used heroin numerous
times over a four-day period. Although she had also testified that she had a developed a strong
network of sober support people, Mother did not reach out to any of them for support to help
prevent her second, multi-day relapse in August. Mother also failed to tell the guardian ad litem
about the August relapse until more than a month after it happened. She ultimately entered a drug
detoxification program and later began a medically assisted drug treatment program.
{¶18} The totality of the circumstances surrounding Mother’s repeated relapses, including
her failure to reengage in drug treatment in a timely manner or to reach out to her sober support
network, demonstrated that Mother’s drug addiction, which had been in sustained remission in
2015, was no longer under Mother’s control. Therefore, the trial court did not err in finding a
change in circumstances to justify terminating the prior order of legal custody under R.C.
2151.42(B). Mother’s third assignment of error is overruled.
III.
{¶19} Mother’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DAVID M. LOWRY, Attorney at Law, for Appellant.
BRENDON KOHRS, Attorney at Law, for Appellees.
CHRISTINE FINAN, Attorney at Law, for Appellee.