In re J.C. , 2020 Ohio 5540 ( 2020 )

[Cite as In re J.C., 2020-Ohio-5540.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
:
IN RE: J.C. & C.J.H. : Appellate Case No. 28847
:
: Trial Court Case Nos. 2018-1651
: 2018-1652
:
: (Appeal from Common Pleas
: Court – Juvenile Division)
:
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OPINION
Rendered on the 4th day of December, 2020.
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MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Appellee, MCCS
ANN RATCLIFF, Atty. Reg. No. 0009059, 919 Greatview Circle, Apt. D., Dayton, Ohio
45459
Attorney for Appellant, Mother
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FROELICH, J.
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{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which granted legal custody of her sons, J.C. and
C.J.H. to Maternal Grandfather and Step-Grandmother. For the following reasons, the
trial court’s judgment will be affirmed.
I. Procedural History
{¶ 2} Mother has two sons: C.J.H., born in January 2003, and J.C., born in August
2010. C.J.H.’s father has not expressed interest in parenting his son. J.C.’s father was
sentenced to prison in 2018 and is scheduled to be released in August 2021.
{¶ 3} According to the neglect and dependency complaints, the Montgomery
County Department of Job and Family Services - Children Services Division (“MCCS”)
received a referral about this family on November 16, 2017, alleging that Mother was not
sending her children to school. The children’s school withdrew the children from the
school on October 10, 2017, after they had 105 continuous hours of unexcused absences.
Mother told MCCS that C.J.H. has been suspended multiple times and had been
recommended for expulsion. Mother admitted to MCCS that neither child had been in
school since October 2017. Mother would not explain the children’s absences or
cooperate with MCCS. She had previously been convicted of failure to send a child to
school (twice) and of educational neglect.
{¶ 4} MCCS created a case plan for Mother in November 2017. On April 10,
2018, MCCS filed neglect and dependency complaints with the above allegations. The
complaints requested temporary custody to Maternal Grandfather and Step-
Grandmother. The trial court appointed a guardian ad litem for the children.
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{¶ 5} On May 18, 2018, the magistrate held a hearing on the complaint. The
same day, the court adjudicated C.J.H. and J.C. to be dependent and neglected and
granted legal custody of the children to Maternal Grandfather and his wife. The order
was effective until February 16, 2019.
{¶ 6} On January 18, 2019, MCCS moved for the court to grant legal custody of
the children to Maternal Grandfather and Step-Grandmother, with an accompanying
affidavit. The GAL also recommended legal custody to Maternal Grandfather. On
February 5, the parties appeared before the magistrate, and the court conducted a brief
annual review hearing. The court ordered that an attorney be appointed for the children,
and the hearing on MCCS’s motion was continued until March 26.
{¶ 7} On February 8, MCCS filed an amended motion, again seeking legal custody
to Maternal Grandfather and his wife or, alternatively, an extension of temporary custody
to those relatives. MCCS filed an updated affidavit to accompany the amended motion.
{¶ 8} On March 5, counsel for the children filed a motion for an in camera interview
with the children. The magistrate apparently conducted an in camera interview with
C.J.H., but not with J.C. The guardian ad litem provided an updated report, indicating
that C.J.H. wanted to return to Mother and he believed that J.C. also wanted to return.
J.C., who had been described as “painfully shy” and unwilling to engage verbally with
most people, would not speak with the GAL or his attorney to provide his views.
{¶ 9} On March 26, 2019, the magistrate conducted a hearing on the motion for
legal custody, during which Mother’s caseworker testified. The magistrate concluded
that granting legal custody to Maternal Grandfather and Step-Grandmother was in the
children’s best interest, and the magistrate granted legal custody to them. The
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magistrate granted Mother overnight visitation on one weekend per month.
{¶ 10} Mother objected to the magistrate’s decision, claiming that the magistrate’s
decision was against the weight of the evidence and was an abuse of discretion. In her
supplemental objections, Mother also raised that the magistrate should have considered
an extension of temporary custody and that the order of visitation, which reduced
visitation drastically, was an abuse of discretion.
{¶ 11} Upon reviewing the record, including the transcripts of the March 26, 2019
hearing on the motion for legal custody, the February 5, 2019 hearing, and the GAL report,
the trial court overruled Mother’s objections and awarded legal custody of C.J.H. and J.C.
to Maternal Grandfather and Step-Grandmother.
{¶ 12} Mother appeals from the trial court’s judgment. Her sole assignment of
error claims that the trial court’s grant of legal custody of the children to Maternal
Grandfather and Step-Grandmother was against the weight of the evidence and an abuse
of discretion.
II. Standard for Grant of Legal Custody
{¶ 13} An award of legal custody “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); see In re D.S., 2d Dist. Clark No.
2013-CA-51, 2014-Ohio-2444, ¶ 8. Unlike an award of permanent custody, however,
“[a]n award of legal custody of a child does not divest parents of their residual parental
rights, privileges, and responsibilities.” In re C.R., 108 Ohio St. 3d 369, 2006-Ohio-1191,
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843 N.E.2d 1188, paragraph one of the syllabus.
{¶ 14} R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent
child, the court may award legal custody of the child “to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting legal custody of
the child[.]” A juvenile court may award legal custody of a child to an individual if the
court finds, by a preponderance of the evidence, that legal custody is in the best interest
of the child. In re C.B., 2d Dist. Montgomery No. 28113, 2019-Ohio-890, ¶ 17, citing In re
M.O., 2d Dist. Montgomery No. 26457, 2015-Ohio-2430, ¶ 7.
{¶ 15} When making a legal custody determination under R.C. 2151.353, the
juvenile court must apply the “best interest of the child” standard set forth in R.C.
3109.04(F)(1). In re A.F., 2018-Ohio-310, 103 N.E.3d 1260, ¶ 52 (2d Dist.), citing In re
D.S. at ¶ 9; In re Poling, 64 Ohio St. 3d 211, 594 N.E.2d 589 (1992), paragraph two of the
syllabus; R.C. 2151.23(F)(1). The factors a court must consider in determining a child’s
best interest include such things as:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers * * *, the wishes and
concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents,
siblings, and any other person who may significantly affect the child’s best
interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
***
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(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or a
neglected child; whether either parent, in a case in which a child has been
adjudicated an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act that is the
basis of an adjudication; * * * and whether there is reason to believe that
either parent has acted in a manner resulting in a child being an abused
child or a neglected child;
***
{¶ 16} An appellate court will not reverse an award of legal custody absent an
abuse of discretion by the juvenile court. Id. The term “abuse of discretion” implies that
the juvenile court's decision is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
III. Evidence Presented
{¶ 17} Caseworker Ashley Stahl testified at the February 5, 2019 hearing;
Caseworker Beth Pfoutz testified at the March 26, 2019 hearing. The record indicates
that Stahl was the family’s caseworker from 2017 until December 2018, at which time
Pfoutz became the family’s caseworker. The record in this case established the
following facts.
{¶ 18} MCCS’s involvement with Mother began in November 2017 due to
allegations of educational neglect. MCCS created a case plan for Mother, which
included the requirements that Mother (1) obtain and maintain stable housing and income,
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(2) verify her income was sufficient to meet the needs of the children, (3) actively
participate in the children’s education, such as by attending school meetings and
parent/teacher conferences, contacting the school bi-weekly for updates, and
transporting her children to school, (4) complete a mental health assessment, (5) comply
with her probation on truancy charges, (6) maintain ongoing visitation with the children,
(7) cooperate with home visits and meetings with the caseworker, and (8) sign releases
of information.
{¶ 19} At the February 5, 2019 hearing, Stahl testified that Mother had been in the
same home throughout the pendency of the case. The home was a three-bedroom
ranch. Stahl did not express any concerns about Mother’s housing. At the March 26
hearing, Pfoutz testified that Mother used one bedroom, that Maternal Grandmother was
living in a second bedroom with a hospital bed, and that the third bedroom did not have
sufficient furniture for the two boys. Mother told Pfoutz that she had a mattress and box
spring in the garage, that C.J.H. could use her bedroom, and that she could sleep on a
couch in the living room. Pfoutz was aware, however, the Mother had issues with her
back, and Pfoutz had concerns that a child would sleep in the living room.
{¶ 20} Pfoutz testified that there had been times when Mother had met with MCCS
willingly and other times when scheduling and completing home visits had been “a little
struggle.” Pfoutz indicated that sometimes the caseworker was successful at meeting
Mother at the home and sometimes not. There were times when Mother had cancelled
the home visits, citing a job opportunity or illness.
{¶ 21} Mother told caseworkers that she worked by cleaning homes for individuals
and doing some subcontracting for a company, but she did not provide verification of
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sufficient income or details about the terms of her employment. Mother told Pfoutz that
she had a second job as a phlebotomist at a hospital, but Mother expressed discomfort
with the hospital’s being asked for verification of her employment.
{¶ 22} Mother completed a mental health assessment, and no recommendations
were made for Mother.
{¶ 23} The caseworkers testified they repeatedly emphasized to Mother that
Mother’s participation in the children’s education was the primary feature of the case plan.
When asked in February 2019 whether Mother had been following through or participating
in the children’s education, Stahl responded, “[O]nly recently has she really started to do
that within the past month.” Stahl stated that Mother had attended meetings with respect
to C.J.H., including an IEP meeting. MCCS recommended that Mother walk with J.C. to
school in the morning and home in the afternoons; Stahl reported that Mother did that a
couple times, but has not continued with that.
{¶ 24} Pfoutz testified in March 2019 that Mother had attended school meetings,
primarily for C.J.H. due to his having more academic struggles. Pfoutz indicated that in
late February 2019, the parties agreed to a schedule where Mother would transport J.C.
to and from school on a daily basis and transport C.J.H. to his tutoring twice per week.
The schedule also included regular weekly visitation on Fridays, Saturdays, and Sundays.
Pfoutz testified that Maternal Grandfather reported that Mother was not consistently
following this schedule. Pfoutz acknowledged that one or more times may have been
due to Mother’s or a child’s illness.
{¶ 25} Pfoutz further testified that Mother had expressed “a great deal of
frustration” about MCCS’s involvement. Mother had made several statements, including
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shortly before the March 2019 hearing, that she did not believe the family’s circumstances
warranted the boys’ removal from her home or the court’s involvement. Mother
compared herself to people who struggle with drug addiction, stating that they had been
given more opportunities to reunify with their children than she had. Pfoutz testified that
MCCS had concerns about whether Mother realized the significance and importance of
her sons’ education and the need for follow-through, and whether Mother would return to
her prior lifestyle that led to MCCS’s involvement. Pfoutz stated that Mother, at times,
said that she understood, but would also misdirect responsibility for the situation onto
other family members.
{¶ 26} Mother had consistently visited with the children. Both caseworkers noted,
however, that Maternal Grandfather had reported that Mother would schedule a time to
pick up the children, but she would not pick them up when she said (the time would be
“pushed back”) and she would not bring them back at the scheduled time. The
caseworkers indicated that communication between Mother and Maternal Grandfather
had been difficult.
{¶ 27} Stahl stated that she did not have concerns about the children being with
Mother overnight, provided that the visits did not disrupt the children’s education. Stahl
noted that, prior to MCCS’s involvement, the children stayed up all night, slept all day,
and missed school. However, MCCS did not require Mother to attend a parenting class,
and it did not refer Mother to one. Both caseworkers acknowledged that Mother and the
children were “very much bonded.” C.J.H. expressed that he wanted to reunite with
Mother and believed J.C. wanted to reunite as well.
{¶ 28} Stahl testified in February 2019 that Mother had not complied with the
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probation requirement in a criminal case that she obtain a substance abuse assessment.
Stahl repeatedly encouraged Mother to obtain the required assessment. Stahl indicated
that she did not believe that Mother used drugs.
{¶ 29} The caseworkers reported that the children were doing well with Maternal
Grandfather and Step-Grandmother. J.C. repeated second grade due to his absences
from school, but he was excelling academically and socially at the time of the hearing.
J.C. enjoyed school and was doing well. J.C. had become involved with gymnastics.
Pfoutz indicated that J.C. was mostly non-verbal, but “was very excited to give me a
thumbs up on the fact that he moved to the next level” at gymnastics.
{¶ 30} C.J.H. had struggled in school, and his grandparents had taken steps to
have him evaluated for special education. C.J.H. had an IEP for emotional disturbance.
When C.J.H. first returned to school, C.J.H. would walk out of class and disappear,
resulting in phone calls to Maternal Grandfather. For a time, C.J.H. was placed in a
partial hospitalization program, until the program stopped operating. In an effort to assist
C.J.H. in adjusting to the academic structure without overwhelming him, C.J.H. attended
school part-time in the morning and worked with a tutor in the afternoons. C.J.H. was
doing better in a public school setting. C.J.H. was also enrolled in credit recovery to
make up for lost credits. C.J.H. had been encouraged to select a specific extracurricular
activity, but he had not done so. C.J.H. spent a lot of time playing with his brother and
listening to music.
{¶ 31} Pfoutz testified that MCCS believed that Maternal Grandfather and his wife
could provide the consistency and routine that would allow the children to do well. MCCS
did not believe that Mother was able to provide this routine and schedule. Pfoutz testified
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that MCCS was requesting legal custody of the children to Maternal Grandfather and
Step-Grandmother, and that the agency believed that legal custody to those relatives was
in the boys’ best interest.
{¶ 32} The GAL filed a report with the trial court, in which he recommended that
legal custody of the boys be given to Maternal Grandfather and his wife. The GAL
repeated that recommendation at the conclusion of the March 26, 2019 hearing.
IV. Review of Trial Court’s Ruling
{¶ 33} The trial court found, by a preponderance of the evidence, that legal custody
of J.C. and C.J.H. to Maternal Grandfather and Step-Grandmother was in the children’s
best interest. The trial court reasoned:
The credible testimony established that Mother failed to meet several of her
case plan objectives. Perhaps most importantly, Mother has not made her
children’s education a priority. O.R.C. § 2151.03(A)(3) defines a neglected
child as any child “whose parents, guardian or custodian neglects the child
or refuses to provide proper or necessary subsistence, education, medical
or surgical care or treatment, or other care necessary for the child’s health,
morals, or well-being.” Consistent with this definition, Mother’s failure to
properly provide for her children’s education truly stems back to 2013 and
was most recently called into question in 2017; the time she last chose to
send her children to school. The Court recognizes and appreciates that a
mutual bond exists among Mother and her children however; the children
need strong reinforcement about the importance of education and attending
school. Despite having ample time, Mother has not demonstrated her
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ability to provide the requisite reinforcement to her children[.]
(Emphasis sic.)
{¶ 34} The trial court further found that the children “need to continue residing in a
safe and stable home environment and are in need of a legally secure and permanent
placement, which legal custody achieves.” The court noted that the children had made
progress in their placement with Maternal Grandfather and his wife and their needs were
being met with success. The court found by clear and convincing evidence that MCCS
had made reasonable efforts to prevent the removal of the children from their home, to
eliminate the continued removal of the children, or to make it possible for the children to
return home safely.
{¶ 35} The trial court recognized that R.C. 2151.415(D)(1) permitted MCCS to
request an extension of temporary custody and that MCCS made that request as an
alternate disposition. The court found, however, by clear and convincing evidence, that
an extension of temporary custody was not in the children’s best interest. The court
stated that Mother had made minimal progress on her case plan and, despite prior
involvement with the court regarding educational neglect, Mother “continuously lacks an
understanding of the importance of her children’s education.”
{¶ 36} After reviewing the factors in R.C. 3109.051(D), the trial court granted
parenting time consisting of overnight visits one weekend per month from Friday 6:00
p.m. until Sunday 6:00 p.m.
{¶ 37} Upon review of the record, the trial court’s ruling was neither against the
weight of the evidence nor an abuse of discretion. MCCS became involved with the
family in 2017 based on Mother’s alleged failure to meet the educational needs of her
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children; she had previously been convicted three times of offenses related to educational
neglect.
{¶ 38} At the March 26, 2019 hearing, Mother’s caseworker testified that Mother
continued to express frustration that the court system was involved and did not believe
that the circumstances had warranted the removal of her children from her home.
Mother had complied in certain respects with the educational aspect of the case plan, but
only approximately one month prior to the legal custody hearing did the parties reach an
agreement whereby Mother would be extensively involved in taking her children to and
from school and tutoring. The trial court reasonably concluded that Mother “continuously
lacks an understanding of the importance of her children’s education,” which was the
primary concern for this family.
{¶ 39} In addition, the trial court reasonably concluded that Mother had not
adequately progressed on her case plan. Mother did not provide documentation of her
employment and income. Although her three-bedroom home was sufficient for the
family, she did not have adequate bedroom furniture for the children. Mother had not
complied with a condition of her probation in a criminal case that she obtain a substance
abuse assessment.
{¶ 40} It is apparent from the record that Mother loved her children and her children
were bonded to her. Mother claims on appeal that the trial court failed to consider the
children’s wishes. Contrary to Mother’s assertion, the trial court noted the bond between
Mother and her sons. The court further recognized that C.J.H. expressed his desire to
reunify with Mother and, despite J.C.’s unwillingness to communicate directly with the
caseworkers, that J.C. also wanted to reunify with Mother.
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{¶ 41} The record further shows that the children were well cared for in Maternal
Grandfather’s home, and they were doing well there. J.C. was excelling academically
and enjoying gymnastics. C.J.H. had struggled more educationally, but Maternal
Grandfather had worked to find ways to integrate C.J.H. back into school, and C.J.H. was
doing better with his school schedule. Both children benefitted from the routine and
consistency that Maternal Grandfather and his wife provided, and MCCS questioned
whether Mother could provide that routine and consistency. The GAL recommended that
legal custody be given to Maternal Grandfather and his wife. The trial court did not abuse
its discretion in concluding that legal custody to Maternal Grandfather and his wife was in
C.J.H.’s and J.C.’s best interest and in granting legal custody of the children to them.
{¶ 42} In her appellate brief, Mother repeatedly raises that the only witnesses to
testify at the February 5 and March 26, 2019 hearings were the caseworkers. We must
review the trial court’s decision based on the evidence before us, and we cannot
speculate what additional information would have been provided had Mother, Maternal
Grandfather, Mother’s probation officer, and others testified. Moreover, pursuant to
Juv.R. 34(B)(2), hearsay testimony is permitted at dispositional hearings, with the
exception of hearings for permanent custody. See, e.g., In re A.E., 9th Dist. Lorain No.
17CA011192, 2018-Ohio-2349, ¶ 12. With the evidence before us, the trial court’s
decision was not an abuse of discretion.
{¶ 43} Mother argues that the trial court should have extended temporary custody
rather than granting legal custody to Maternal Grandfather and his wife. At the March
26, 2019 hearing, counsel for Mother elicited testimony that Mother had made additional
strides to assist in the education of her children since the parties reached an agreement
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in late February 2019 regarding visitation and transportation. However, Mother’s case
plan had been in effect since November 2017, and Mother continued to minimize the
import of her conduct leading to MCCS’s involvement, even in 2019. We cannot
conclude that the trial court erred in determining that an extension of temporary custody
was not in the children’s best interest.
{¶ 44} Finally, Mother argues that the trial court abused its discretion in decreasing
the amount of visitation to one overnight weekend visit per month. Pursuant to the
parties’ agreement in late February 2019, when the goal was reunification of the family,
Mother saw the children multiple times during the week as she participated in transporting
them to and from school and tutoring, and Mother had weekly visitation on weekends.
Mother asks that we modify the visitation order to provide more opportunities for her to
maintain her relationship with her children and to have positive interactions with them.
{¶ 45} The trial court applied the factors in R.C. 3109.051(D) and determined that
“it is in the best interest of the children to grant Mother parenting time.” The court did not
specifically explain how it determined the amount of parenting time that Mother received.
It noted that MCCS did not have concerns about Mother’s receiving parenting time, except
to the extent that it might interfere with the children’s ability to attend school on a regular
basis. The trial court could have reasonably concluded that visitation throughout the
week would interfere with the children’s school routine and that overnight visitation (which
Mother had not previously had) for a weekend a month would allow Mother and her sons
to have meaningful contact without disrupting the boys’ routines. We note that nothing
in this opinion precludes Mother from requesting a modification of parenting time.
{¶ 46} Mother’s assignment of error is overruled.
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V. Conclusion
{¶ 47} The trial court’s judgment will be affirmed.
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TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Ann Ratcliff
Jivanto Vanhemert, GAL
J.H & L.H.
J.C.
L.C.
Hon. Anthony Capizzi