In re J.T. , 2022 Ohio 4747 ( 2022 )

[Cite as In re J.T., 2022-Ohio-4747.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.T. :
: No. 111642
A Minor Child :
:
[Appeal by J.H.T., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 29, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-21900593
Appearances:
Valore & Gordillo LLP and Dean M. Valore, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, J.:
Appellant-father, J.H.T. (“Father”), appeals from the juvenile court’s
order awarding legal custody of the minor child, J.T., to the child’s maternal
grandmother, H.A.W. (“Maternal Grandmother”). Father raises the following
assignment of error for review:
The trial court’s findings that it was in the best interests of the child to
be placed in the legal custody of a relative is against the manifest weight
of the evidence.
After careful review of the record and relevant case law, we affirm the
juvenile court’s judgment.
Procedural and Factual History
Father and S.A. (“Mother”)1 are the biological parents of the minor
child, J.T., born June 29, 2012.
On January 25, 2021, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or the “agency”) filed a complaint alleging that J.T. was
a dependent child as defined under R.C. 2151.04(B) and (C). The complaint set forth
the following particulars:
1. Father is displaying aggressive, erratic, and delusional behaviors.
Father’s untreated mental health issues prevent him from providing a
safe home for the child.
2. The child has been residing with [Maternal Grandmother] for
approximately one week. When the parents attempted to remove him
from [Maternal Grandmother], the child began experiencing
significant behavior issues and refused to return to the home. The child
has displayed significant fear of returning to the care of the parents.
3. Mother has failed to ensure the child’s safety. Mother has continued
to reside with Father and allowed him continual access to the child
despite knowing Father’s mental-health issues.
4. Mother and Father have repeatedly engaged in physical altercations
in the presences of the child.
1 Mother is not a party to this appeal.
5. An investigation is currently pending regarding sexual-abuse
allegations of the child [against] Father. Father was previously
convicted of attempted unlawful sexual conduct with a minor.
On the same day, the juvenile court granted CCDCFS predispositional
temporary custody and committed the child to the emergency care and custody of
the agency. The child’s placement with Maternal Grandmother was ordered to
continue.
On February 19, 2021, CCDCFS developed a case plan to assist Mother
and Father in addressing the issues that led to the child’s removal from their care.
Father’s case plan required him to complete a mental-health assessment and
“actively participate and complete any treatment recommendation.” In addition,
Father and Mother were each required to participate in counseling and successfully
complete domestic violence and parenting-education programs.
On April 6, 2021, the agency amended its original complaint to remove
the allegation that a sexual-abuse investigation was pending against Father.
On May 3, 2021, the juvenile court determined that the first, second,
and fifth allegations of the amended complaint were proven by clear and convincing
evidence. The court further found:
The child lacks adequate parental care by reason of the mental or
physical condition of the child’s parents, guardian or custodian; the
child’s condition or environment is such as to warrant the state, in the
interest of the child, in assuming the child’s guardianship because of
the existence of the following dangers or underlying family problems:
The Father has displayed erratic and delusional behavior. The child
has developed significant fear of returning to the care of the parents.
Accordingly, the child was adjudicated dependent, and the court’s predispositional
temporary custody order was continued in effect.
A dispositional hearing was held on May 10, 2021. On June 15, 2021,
the juvenile court issued a judgment entry awarding CCDCFS temporary custody of
J.T., stating, in relevant part,
Upon due consideration, it is ordered that the previous order of this
court committing the child to the predispositional temporary custody
of [CCDCFS] pursuant to Juvenile Rule 13 is terminated. The child is
committed to the temporary custody of [CCDCFS].
On August 25, 2021, Mother filed a motion for legal custody, arguing
that “the best interest of the child would be served by awarding her legal custody.”
In support of her motion, Mother maintained that she (1) “complied with her case
plan services,” (2) “has a stable home and is able to care for the child,” and (3) “has
faithfully visited with [J.T.] and strongly desires time with her child on a permanent,
day-to-day basis.”
On November 29, 2021, the agency filed a motion to modify temporary
custody to legal custody to Maternal Grandmother pursuant to R.C. 2151.353(F)(2)
and 2151.415. In the motion, CCDCFS argued that it was in the child’s best interests
to award Maternal Grandmother legal custody of the child, stating,
Legal custody is an appropriate disposition for the child because, prior
to filing this motion, CCDCFS developed a case plan to facilitate
reunification, however, the mother and father have failed to complete
the objectives of the case plan so as to reduce the risk so the child can
return home. Specifically, CCDCFS referred mother and father to
parenting classes and father to a mental health assessment. Mother
and father completed a parenting class and father completed a mental
health assessment but was not truthful regarding the reason he was
referred. Mother and father have not demonstrated a benefit from the
services offered and remain unable to provide a safe and permanent
home for the child. [Maternal Grandmother] is able to provide for the
needs of the child on a daily basis and is willing to provide a permanent
home for the child.
On March 25, 2022, Father filed his own motion for legal custody,
arguing that he was “ready, willing, and able to provide for and take care of the
child.”
A hearing was held before a magistrate on April 5, 2022, to resolve the
pending motions for legal custody. On behalf of CCDCFS, Rachael McLaughlin
(“McLaughlin”), a psychiatric-nurse practitioner at Signature Health, Inc., testified
that she completed a mental-health evaluation of Father in February 2022.
McLaughlin described Father as manic, with grandiose and paranoid ideations.
Given her limited time with Father, however, McLaughlin was unable to render a
complete diagnostic conclusion, stating:
So at the end of [the evaluation], the impression was unclear with an
hour appointment, [I was] still trying to distinguish between bipolar
disorder versus the delusional disorder. We did go ahead and make a
recommendation to try a medication to maybe help with [Father’s]
racing thoughts, disorganized thoughts that were difficult for myself to
follow, although [Father] did not seem very disrupted by these
symptoms.
He was hesitant at first, but he was willing to try a medication to see if
it helped him communicate with others. * * * But it wasn’t specifically
prescribed to him for a diagnosis of psychosis or a diagnosis of [a] mood
disorder.
(Tr. 17). McLaughlin later clarified that Father was prescribed the drug Abilify to
address any impairments in communication, rapid speech, and mood.
During Father’s follow-up appointment with McLaughlin, he
indicated that he was no longer taking his prescribed medication due to its side
effects. McLaughlin testified that Father continued to show signs of “significant
distress, again mostly related to his current case with [CCDCFS].” (Tr. 21.)
However, McLaughlin determined that it was unnecessary to make further
recommendations because Father did not fully meet the criteria for bipolar disorder.
On cross-examination, McLaughlin confirmed that she did not
observe Father with J.T. and, therefore, could not speak to Father’s ability to care
for the child. McLaughlin further testified that she did not believe Father’s
delusional thoughts impaired his relationship with J.T. Finally, McLaughlin
testified that there were no indications that Father posed a threat of harm or danger
to the child.
Extended Service Worker, Kenni Tolliver (“Tolliver”), testified that
she was assigned to the child’s case in August 2021. She explained the scope of the
parents’ case plans for reunification, including Father’s obligation to address
concerns relating to parenting, domestic violence, and mental health. With respect
to the parenting component of the case plans, Tolliver explained that the agency had
concerns with the parents’ means of discipline, including reports that J.T. “was
locked in a room for longer than appropriate periods of time.” (Tr. 40.) Tolliver
confirmed that Father and Mother each completed a parenting course through
Beech Brook. Additionally, Tolliver confirmed that Father completed a mental-
health assessment through Signature Health, Inc.
Despite the parents’ efforts, however, the agency continued to have
concerns regarding Father and Mother’s failure to “understand accountability” or
fully acknowledge and address the issues that caused J.T.’s removal from their care.
(Tr. 73.) In this regard, Tolliver provided extensive testimony concerning the
parents’ relationship and interactions with the child.
Between August 2021 and December 2021, Father and Mother were
required to visit the child separately. Tolliver testified that Mother’s supervised
visits with J.T. were appropriate and that she did appear to have benefitted from the
parenting course. Tolliver explained that “[Mother] would do arts and crafts with
[J.T.]. They would play games. They would laugh and joke during the visit.” (Tr.
42.) Tolliver testified, however, that the visitations frequently shifted focus once
Father called Mother and was placed on speaker phone. According to Tolliver:
When we had the visits and [Father] would be on speaker, the visitation
would then change to what the agency was doing wrong, what’s going
on in [Maternal Grandmother]’s home, and it would change to why
[J.T.] is treating the parents the way he is. There was no longer a
playing, interacting visit between [Mother] and [J.T.].
(Tr. 43.)
Tolliver testified that Father’s supervised visits with the child were
also “primarily focused on what the agency was doing wrong, trying to pinpoint
things that was going on in the caregiver’s home[.]” (Tr. 45.) Tolliver conceded that
there were “moments where [J.T. would] interact with [Father] appropriately.” (Tr.
57.) However, she emphasized that there had “never been a visit where [Father’s
focus] wasn’t directed toward the agency or the grandmother.” (Tr. 57.) On one
occasion, Father’s erratic and disruptive behavior caused the agency to end his visit
with J.T. prematurely.
Father and Mother also had weekly phone conversations with J.T.
According to Tolliver, J.T. frequently ended these phone conversations “whenever
they begin to yell or [Father] goes on a rant.” (Tr. 56.) Tolliver testified that Father’s
conduct during the phone conversations was similar to his conduct during the
supervised visits. Father would bring up the case plan or discuss other agency-
related issues that J.T. was not comfortable discussing.
In December 2021, Father and Mother were granted permission to
have joint visits with the child. During these joint visits, Father continued to focus
his attention on the agency and his concerns with J.T.’s placement. Ultimately,
Father’s conduct during a supervised visit caused Tolliver to terminate her
involvement in the case based on “safety concerns.” (Tr. 50.) Tolliver explained the
incident as follows:
At the visit on February 14th I also had a co-worker Aleesha Anderson
sit in with me to supervise the visit. [Father] went on to show her that
— he was explaining that he’s a prophet, he knows things before they
happen, and he knows, you know, what’s gonna happen before it does
happen.
Then he continued to show her that he made a song prior to me being
involved with the family at all, and then he played the song and the song
went on to say I’ll kill Kenny. And he was like, how would I know I’ll
kill Kenny if I didn’t know you prior when I wrote this song?
(Tr. 50.) Tolliver, whose first name is Kenni, testified that Father’s statement caused
her to feel unsafe. Accordingly, Tolliver notified her supervisor of Father’s conduct
and declined to participate in the case moving forward. Thereafter, a police report
was filed against Father after he raised similar threats with Tolliver’s colleague
during a visit in March 2022.
As of the date of trial, Father and Mother had yet to engage in family
counseling, albeit through no fault of their own. Tolliver testified that a referral for
family counseling was made, but that a communication error resulted in unexpected
delays. Tolliver conceded that the parents have expressed their intentions to
participate in family counseling. Nevertheless, Tolliver testified that the agency is
concerned that the parents would not benefit from the counseling at this time.
Tolliver explained the agency’s position as follows:
[Mother and Father] want to do family counseling so they can get it
over with so that they can move [on.]. They have sent emails stating
that [J.T.] is the issue, [J.T.] is the liar, they have not done anything to
[J.T.].
So the concern is still even if they go through family counseling, will
there be a benefit if they don’t believe that there’s ever an issue from
the beginning?
(Tr. 73.)
Regarding the child’s current placement, Tolliver testified that J.T.
was doing well under Maternal Grandmother’s care. J.T. made the honor roll in
school and is actively participating in occupational therapy through the Cleveland
Clinic. Tolliver testified that Maternal Grandmother’s home is appropriate and that
she shares a strong bond with J.T. She described their relationship as follows:
[J.T.] confides in [Maternal Grandmother]. [J.T.] does not have any
concerns. [Maternal Grandmother] is pretty much his safe haven, his
safety net, and pretty much his person. The relationship was
appropriate. There’s no concern between [J.T.] and [Maternal
Grandmother].
(Tr. 61.) When asked why CCDCFS was seeking legal custody in favor of Maternal
Grandmother, Tolliver stated:
At this time the agency is asking for legal custody to [Maternal
Grandmother] because the parents are not understanding the concerns
that’s taking place right now between interactions and [J.T.]. The
parents have basically said that they have nothing, like no issues. It’s
all about [J.T.]. That they’re being blackmailed and the concern is
[J.T.]’s safety and his overall well-being and mental health as well.
(Tr. 61-62.)
On cross-examination, Tolliver acknowledged the parents’ commit-
ment towards visitation, the suitability of their home, and their completion of
various components of their respective case plans. However, Tolliver continued to
express concerns with the appropriateness of Father’s interactions with the child
and the parents’ collective failure to acknowledge the role they played in the child’s
removal from their care. Tolliver opined that granting legal custody in favor of
Mother would not ease the agency’s concerns because Mother and Father are still
together, and Mother does not intervene when Father’s behavior becomes
inappropriate. Tolliver further noted that the parents made no effort to address the
case-plan objectives for domestic-violence counseling because they refused to
participate in referred programs and denied all allegations of domestic abuse.
Mendi Carrington (“Carrington”), a trauma counselor employed by
FrontLine Service, testified that she provided counseling to J.T. from July 9, 2021,
through February 8, 2022. Carrington explained that J.T. was referred for
individual counseling due to his “high levels of anxiety when he would visit his
parents.” (Tr. 95.) Carrington testified that she never spoke with Mother or Father,
and therefore, had no opinion regarding whether family counseling would be
beneficial to J.T. Carrington confirmed, however, that J.T. expressed that he “did
not want to live with his parents” because “he did not want to be locked in his room.”
(Tr. 95-96.)
Mother testified on behalf of her motion for legal custody. Mother
outlined the efforts she had taken to complete the objectives set forth in her case
plan and the skills she learned from the parenting program. Mother testified that
she never missed a scheduled visit with J.T. and actively participated in phone calls
with J.T. during the pendency of this case. Mother further described the
appropriateness of the parents’ housing and their ability to provide for J.T.’s basic
needs. Finally, Mother testified that there were rules J.T. was expected to follow in
her home and that he would lose certain privileges if he did not follow directions,
respect his parents, or complete his chores and schoolwork. Mother clarified,
however, that her rules are not “strict” and that she would never lock J.T. in his room
as a form of discipline. (Tr. 111.)
On cross-examination, Mother reiterated that it is important for J.T.
to follow the rules of her home. In particular, Mother testified that she expected
J.T., who was nine-years old at the time of trial, to follow directions and “respect
[Mother and Father’s] space when we’re required of it.” (Tr. 113.) For instance,
Mother explained that it was important that J.T. give Father space when he “wants
to be by himself and [does] not want to be bothered with anything that’s going on
around the house.” (Tr. 113.) Similarly, Mother believed that it was important that
J.T. “give her time to recoup from getting off of work” before she “can deal with his
concerns and whatever his needs may be at the time.” (Tr. 113.)
At the conclusion of Mother’s testimony, the magistrate attempted to
clarify several pertinent issues. When questioned why J.T. would report not wanting
to live with his parents, Mother stated that she believed J.T. wished to live with
Maternal Grandmother because “he gets to play video games all day at his
grandmother’s house.” (Tr. 118.) Mother further expressed her frustration with the
agency’s failure to “recognize[] the major issue with [J.T.],” which according to
Mother is that “[he] has behavioral issues, and nobody has addressed this.” (Tr. 120-
121.) Finally, Mother denied ever refusing to participate in domestic-violence
programing and was under the impression that this component of her case plan was
removed by CCDCFS “because there wasn’t a concern with domestic violence after
they [saw] how we interact with each other.” (Tr. 125.)
At the close trial, the magistrate heard from the child’s guardian ad
litem, James H. Schulz, Jr., Esq., (the “GAL”). Consistent with his written report,
the GAL recommended that legal custody be granted in favor of Maternal
Grandmother, stating, in relevant part:
My concern first of all is the child’s fear of the father. I think that’s
reflected in the counselor’s testimony, the social worker’s testimony,
my own interactions with the child.
***
There is no recognition [by Father and Mother] of these issues that the
parents have in interacting with the child from my perspective, despite
the fact that they’ve taken parenting classes, * * * despite all the issues
that they’ve had with him their attitude is you do what we say and that’s
it.
That’s what their attitude is, and they don’t take into account his
feelings and I’ve heard the testimony of the social worker, I’ve heard
what the social worker’s telling me the issues that have been present
with dad, the father and the in-person visits and the telephone visits.
* * * Their attitude is this is all [J.T.’s] fault. It was all his behavior,
and if he just (inaudible) everything would be fine. I don’t find that to
be the case, and my problem is at this point is a year’s gone by and
nothing has changed. The attitude of the parents has not changed one
little bit. That’s my problem with the case, and that’s why I recommend
legal custody now.
***
If these parents were gonna get it, they would have got it in the last year.
They haven’t gotten it. They continue to say it’s [J.T.’s] fault.
Meanwhile, [J.T.’s] happy with his grandmother. He’s doing well in
school. He wants to be there obviously. He does not want to go home.
I cannot see recommending sending him home, and frankly, I don’t
think any more time is gonna help the situation.
So it is my recommendation at this time the court grant legal custody
to the grandmother.
(Tr. 135-139.)
Finally, the magistrate addressed Maternal Grandmother on the
record and confirmed that she voluntarily signed a Statement of Understanding for
legal custody of the child. Maternal Grandmother stated that she wished to be J.T.’s
legal custodian and understood that she would be responsible for the care and
maintenance of the child until he reaches the age of majority. Maternal
Grandmother further confirmed that she understood that Father and Mother would
continue to have certain parental rights with J.T., such as visitation rights and a
communication schedule.
On April 6, 2022, a magistrate issued a decision committing the child
to the legal custody of Maternal Grandmother. The magistrate found, in pertinent
part:
There has been progress on the case plan by the mother and by the
father, however, progress has not been made in alleviating the cause for
the removal of the child from the home.
[CCDCFS] has complied with all of the rules and regulations pertaining
to the removal of the child from the home, changes in placement and/or
determinations affecting parental visitation rights.
The court finds that the continued residence in or return to the home
of [Mother] and [Father] will be contrary to the child’s best interest.
The placement of the child is appropriate.
The continued temporary custody of the child is not necessary and not
in the child’s best interest.
The custody plan for the child is legal custody to [Maternal
Grandmother].
Mother and Father filed joint objections to the magistrate’s decision,
arguing the juvenile court’s findings were against the manifest weight of the
evidence adduced at trial.
In separate judgment entries, dated June 5, 2022, and June 7, 2022,
the juvenile court overruled the parents’ objections and adopted the magistrate’s
decision awarding Maternal Grandmother legal custody of J.T. The court further
specified that Mother and Father were entitled to visitation “by agreement of the
parties.”
Father now appeals from the juvenile court’s judgment.
II. Law and Analysis
In his sole assignment of error, Father argues the juvenile court’s
judgment denying his motion for legal custody while simultaneously awarding
Maternal Grandmother legal custody of the child is against the manifest weight of
the evidence. Father contends “the evidence in the record fails to support the notion
that [he] and J.T. could not have been reunified within a reasonable period of time.”
Legal custody is governed by R.C. 2151.353(A)(3). Under the statute,
a juvenile court may award legal custody of a child who has been adjudicated abused,
neglected, or dependent “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.” “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). “[L]egal custody is significantly different than the termination
of parental rights.” In re So.P., 8th Dist. Cuyahoga No. 111468, 2022-Ohio-4015,
¶ 19. Unlike a case in which parental rights are terminated, when a parent loses legal
custody of his or her child, the parent “retains residual parental rights, privileges
and responsibilities and is not permanently foreclosed from regaining custody.” In
re M.S., 8th Dist. Cuyahoga No. 108567, 2019-Ohio-5128, ¶ 32, citing In re T.R., 8th
Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 32, In re G.M., 8th Dist. Cuyahoga
No. 95410, 2011-Ohio-4090, ¶ 14, and R.C. 2151.353(A)(3)(c).
When a juvenile court considers an award of legal custody following
an adjudication of abuse, neglect, or dependency, “‘it does so by examining what
would be in the best interest of the child based on a preponderance of the evidence.’”
In re T.R. at ¶ 44, quoting In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-
1674, ¶ 11, 14. Thus, we apply the “preponderance of the evidence” standard of
appellate review to the court’s factual findings on a request for legal custody. In re
W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 2. A “preponderance of
the evidence” means evidence that is “‘more probable, more persuasive, or of greater
value.’” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7, quoting
In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52.
However, the decision whether to grant or deny a request for legal
custody is within the sound discretion of the juvenile court. When reviewing a
juvenile court’s “‘ultimate decision on whether the facts as determined would make
it in the child’s best interests to be placed in legal custody,’” we apply an abuse of
discretion standard. In re W.A.J. at ¶ 2, quoting In re G.M. at ¶ 14. An abuse of
discretion occurs when a court exercises its judgment in an unwarranted way
regarding a matter over which it has discretionary authority. Johnson v. Abdullah,
166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Such an abuse “‘“implies
that the court’s attitude is unreasonable, arbitrary or unconscionable.”’” State v.
Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135, quoting Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
There is no “specific test or set of criteria” that must be applied or
considered when determining what is in a child’s best interest on a motion for legal
custody. In re T.R., 2015-Ohio-4177, at ¶ 48. Unlike permanent custody cases in
which the juvenile court must consider the factors outlined in R.C. 2151.414(D), R.C.
2151.353(A)(3) does not independently specify the factors to be considered in
determining what is in a child’s best interest on a request for legal custody. In re
G.M., 2011-Ohio-4090, at ¶ 15. Nevertheless, this court has held that the R.C.
2151.414(D) best interest factors may be “instructive” in making that determination.
See, e.g., In re V.P., 8th Dist. Cuyahoga No. 109649, 2020-Ohio-5626, ¶ 32; In re
D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-4818, ¶ 20, citing In
re E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13. Those factors include:
(1) the interaction of the child with the child’s parents, relatives, caregivers 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; (3) the
custodial history of the child and (4) the child’s need for a legally secure permanent
placement. R.C. 2151.414(D).
Courts have also looked to the best interest factors set forth in R.C.
3109.04(F) as a potential guide in determining what is in a child’s best interest for
purpose of a motion for legal custody. See, e.g., In re J.O., 8th Dist. Cuyahoga No.
87626, 2007-Ohio-407, ¶ 11; In re K.S., 12th Dist. Warren Nos. CA2019-01-009 and
CA2019-02-015, 2019-Ohio-2384, ¶ 37 (“As the paramount concern is the best
interest of the child, the court ‘should consider the totality of the circumstances
affecting the best interest of the child.’” * * * A court may therefore consider the
relevant best interest factors set forth in either R.C. 3109.04(F) or R.C. 2151.414(D)
in determining the best interest of the child.”), quoting In re S.L., 12th Dist. Butler
Nos. CA2012-07-137 through CA2012-07-142 and CA2012-07-147 through CA2012-
07-149, 2013-Ohio-781, ¶ 54. Such factors include, but are not limited to (1) the
wishes of the child’s parents regarding the child’s care; (2) the child’s interaction and
interrelationships with the child’s parents, siblings and any other person who may
significantly affect the child’s best interest; (3) the child’s adjustment to home,
school and community; (4) the mental and physical health of all persons involved in
the situation; and (5) the extent to which court-approved visitation and
companionship rights are likely to be honored and facilitated. R.C. 3109.04(F).
In this case, the juvenile court found the child’s best interests would
be served by placing him in the legal custody of Maternal Grandmother. In support
of its best interest’s determination, the juvenile court found (1) Mother and Father
failed to alleviate the causes for the child’s removal from their home, (2) it would be
contrary to the child’s best interests to return him to the parents’ home, and (3)
placement with Maternal Grandmother was appropriate. The court further
explained its judgment as follows:
[CCDCFS] has made reasonable efforts to finalize the permanency plan
for the child. These efforts are parenting education classes, mental
health services, psychological evaluation, and family counseling. The
Father was prescribed medication, however, the Father discontinued
due to side effects. The Mother and the Father had been having
supervised visitations. The Father exhibited erratic and angry
outbursts during two of the visits resulting in him being asked to leave.
Additionally, the Father has made veiled threats against the social
worker through a song. The parents continue to blame the child for the
issues that gave rise to the complaint and the issues that still exist
today. The Agency does not believe that the parents have benefitted
from services. The Mother feels that the child has behavior issues and
that he gets his way at the Maternal Grandmother’s home. The child
does not wish to return to the parent’s home as he is afraid of being
locked in his room for discipline purposes.
On appeal, Father argues the evidence adduced at trial failed to
establish that the legal custody in favor of Maternal Grandmother was in the child’s
best interests. He contends that the agency was unable to substantiate a number of
allegations supporting the removal of J.T. from the parents’ care, including prior
reports of domestic violence, sexual abuse, and malnutrition. According to Father,
Of all CCDCFS’s allegations against Father, only two apparently
survived investigation: (1) his irrational, and as they perceived it,
threatening comments, which gave rise to concerns about his mental
health, and (2) that he may have locked J.T. in his room for an
unspecified period of time on an unspecified number of occasions.
After careful consideration, we find the record supports the juvenile
court’s findings by a preponderance of the evidence. The record shows that at the
time of trial, Maternal Grandmother had provided J.T. a safe and stable home
environment for approximately 14 months. Tolliver testified that J.T. has adjusted
well to Maternal Grandmother’s home and is having his needs fully met. Maternal
Grandmother shares a strong and loving bond with J.T., and J.T. has articulated that
he feels safe with her. In addition, Tolliver explained that J.T. has not displayed any
significant behavioral issues, has excelled at school, and is actively participating in
occupational therapy under Maternal Grandmother’s supervision and care.
With respect to Mother and Father, there is no dispute that the
parents love J.T. and wish to have him returned to their home. At trial, Tolliver
conceded that Mother and Father completed various portions of their respective
case plans, were consistent in their visitation, and often interacted with J.T.
appropriately. Nevertheless, Tolliver testified that the parents failed to alleviate the
agency’s concerns for the child due to their tendency to deflect blame and their
reluctance to acknowledge the issues that caused the child to be removed from their
care. As noted by Tolliver and the GAL, the parents refuse to accept responsibility
for their conduct and continue to believe their involvement with the agency is the
product of J.T.’s “behavioral issues.” (Tr. 61-62, 73, 87, 120-121, 138.) The GAL and
Tolliver similarly expressed that Father continues to display erratic and delusional
behaviors in the child’s presence. For instance, Tolliver explained that Father
consistently failed to focus his attention on J.T. during supervised visitation and
routinely used the visits as an opportunity to disparage the agency and the child’s
caregiver. Such behavior included angry and erratic outbursts that caused a
visitation to be prematurely ended and a veiled threat against Tolliver that caused
her to terminate her role in the case out of fear for her personal safety. Father was
prescribed medication to address these behavior concerns following a mental-health
consultation, but voluntarily decided to stop taking the medication due to the
medications’ alleged side effects. Under these circumstances, the GAL expressed
ongoing concerns with Father’s mental health, stating:
And I have reviewed the entire [mental-health] evaluation from
Signature Health, not just the first six pages, the last ten, okay, which
apparently there was no testimony about. But I reviewed that, and
father’s recommendation to get a full psychiatric evaluation. That
hasn’t happened.
The report says even more things that don’t make sense on their face[.]
* * * [Signature Health] could not come up with a concrete diagnosis
because, as [McLaughlin] testified to, she couldn’t verify whether the
facts are true or not.
But to say there’s not an issue with dad’s mental health is ignoring the
facts from my perspective.
(Tr. 137-138.)
Finally, the record reflects that J.T. has consistently expressed a desire
to remain in the custody and care of Maternal Grandmother. Here, Tolliver testified
that J.T. has continuously stated “that he would rather stay where he is.” (Tr. 86.)
Similarly, the GAL whose sole responsibility is to advocate for the child’s best
interests, testified that J.T. genuinely fears his father and does not wish to return to
the parents’ home.
Collectively, we find the foregoing evidence demonstrates that J.T.
needed a legally secure placement that could not be achieved by an extension of
temporary custody or an award of legal custody in favor of Mother or Father. While
the record establishes that J.T. is currently placed in a situation that fosters growth,
stability, and security, both Mother and Father have failed to acknowledge the
agency’s concerns or take the necessary steps to substantially remedy the issues that
cause J.T. to be removed from their care. Under these circumstances, we cannot
say, based on the record before us, that the juvenile court abused its discretion in
finding that an award of legal custody of J.T. to Maternal Grandmother was in the
child’s best interests. The juvenile court’s decision was well reasoned, was not
arbitrary or unconscionable, and the court’s findings are supported by ample,
competent, and credible evidence in the record.
Father’s sole assignment of error is overruled.
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.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR