In re J.B. , 2024 Ohio 680 ( 2024 )

[Cite as In re J.B., 2024-Ohio-680.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: J.B. and X.B. :
:
: C.A. No. 29921
:
: Trial Court Case Nos. G-2015-006026-
: 0Z; G-2018-005753-0Q
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
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OPINION
Rendered on February 23, 2024
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DAVID J. FIERST, Attorney for Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee MCCS
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LEWIS, J.
{¶ 1} Appellant-Mother appeals from judgments of the Montgomery County Court
of Common Pleas, Juvenile Division, granting sole legal custody of her children, J.B. and
X.B., to their maternal grandmother (“Grandmother”). For the reasons outlined below, we
will affirm the judgments of the trial court.
I. Facts and Procedural History
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{¶ 2} On September 29, 2015, Montgomery County Department of Job and Family
Services Children Services Division (“MCCS”) filed an abuse and dependency complaint
as to J.B.1 On January 5, 2016, J.B. was adjudicated dependent and was placed in the
temporary custody of the maternal grandparents; later, J.B. was temporarily reunified with
Mother.
{¶ 3} On November 21, 2018, MCCS filed a dependency complaint as to X.B. and
requested that both J.B. and X.B. be placed in the temporary custody of the maternal
grandparents. The maternal grandparents were granted interim temporary custody. On
January 25, 2019, X.B. was adjudicated dependent and, on April 30, 2019, the maternal
grandparents were granted legal custody of both children. Mother did not appeal from
the order granting legal custody to the maternal grandparents.
{¶ 4} In early 2020, the maternal grandparents separated, and they divorced in
2021. In November 2020, Mother filed a motion for change of custody, which she later
withdrew, and she then filed another motion for change of custody in May 2021.
Grandmother filed her own motion for change of custody and a motion to amend Mother’s
parenting time. Grandmother, who already shared legal custody of the children with the
maternal grandfather, sought to be named sole legal custodian of the children, as she
and maternal grandfather had divorced but she remained the primary caregiver and
financial supporter of the children.
{¶ 5} On November 3, 2022, a hearing was held on the pending motions. During
the hearing, Mother testified that J.B. had lived with her from birth to eight months of age
1 We will refer to Mother’s children by their initials.
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and then again from age three to four, and X.B. had lived with her from birth to eight
months. Mother also claimed that both children resided with her from March 2020 to
March 2021, until her visitation was withheld when she told the maternal grandparents
that she was filing for custody and reporting them for fraud.
{¶ 6} Grandmother testified that in early 2020, when she and maternal grandfather
separated, he was no longer available to help with the children. The children had primarily
resided with her since then and had visited maternal grandfather every other weekend.
Grandmother is a teacher and was working remotely during the COVID-19 pandemic.
Mother offered to watch the children during the school day while Grandmother worked
remotely, and Grandmother agreed. Grandmother still provided financial support for the
children’s care but allowed Mother to have “open” visitation during that time because she
was displaying improved stability. Grandmother testified that the children stayed overnight
with Mother during the school week, but that Grandmother picked the children up to take
them to school each morning and then dropped them back off to Mother each day after
school. Grandmother also stated that the children spent weekends with her during that
time. Grandmother believed that she and Mother were working together to raise the
children, but Mother apparently thought that Grandmother was returning the children to
her permanently.
{¶ 7} In early 2021, Mother took her children to the hospital and alleged that
Grandmother had abandoned and abused them and had not seen them in a year. The
hospital notified Grandmother, as she was the children’s legal custodian, and
Grandmother retrieved the children from the hospital. Also, around that time, J.B.’s
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teacher at school notified Grandmother that J.B. appeared distressed and tired during
class. According to Grandmother, Mother’s stability had deteriorated, and she was
frequently texting “abusive” texts to Grandmother. At that point, Grandmother, maternal
grandfather, and the children’s father were concerned about the children’s safety, and
Grandmother decided that Mother needed a break from having the children in her care;
as a result, Grandmother took the children back to her house and away from Mother
around March 2021.
{¶ 8} Kimiria Screws was initially assigned as a caseworker at MCCS to investigate
Mother’s allegations of abuse of the children while in Grandmother’s care. At the hearing,
Screws testified that she met with Mother, who reported that she believed the children
were not safe in Grandmother’s house and were being physically and sexually abused.
Screws testified that Mother alluded to various individuals who came into Grandmother’s
home but was unable to provide any details or timeframes of any incidents. Screws also
testified that Mother stated that she planned to continue calling and filing abuse claims
until she got her children back. Screws did not believe that the maternal grandparents’
divorce had been detrimental to the children and believed that the children should remain
in Grandmother’s custody.
{¶ 9} Regina Howell was assigned as the caseworker to investigate Mother’s
abuse allegations after Screws left MCCS. At the hearing, Howell expressed concerns
about Mother’s live-in boyfriend, because he was a substantiated perpetrator in a physical
abuse case involving his own infant child and had only supervised parenting time with his
own children. Howell asserted that, because Mother’s children were not the boyfriend’s
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children, there was an increased risk for abuse. Howell had also visited the children
while they were in Grandmother’s care and did not have any concerns regarding their
care or hygiene. Howell stated that MCCS’s position was that the children should remain
in the legal custody of Grandmother and that Mother should have supervised visitation.
{¶ 10} J.B. participated in a forensic interview following Mother’s abuse
allegations. J.B. reported that she was told by someone that there had been an incident
of a man touching her between the ages of zero and five but that she was unable to
remember any details of the incident or who told her that it had occurred.
{¶ 11} As of the date of the hearing, Mother’s allegations of abuse against
Grandmother had not been substantiated. Following Grandmother’s removal of the
children from Mother’s care in 2021, she had not allowed Mother to have “open” visitation
because of Mother’s hostility and accusations of abuse. Grandmother had allowed Mother
to have supervised visitation one day per week for two hours; however, Mother claimed
that she had also had unsupervised overnight visits with the children facilitated by
maternal grandfather.
{¶ 12} On December 5, 2022, the magistrate granted Grandmother’s motion and
denied Mother’s motions. Grandmother was named the sole legal custodian of the
children, Mother was granted supervised parenting time at a designated location, and
maternal grandfather was granted visitation as determined by Grandmother.
{¶ 13} Mother filed initial and supplemental objections to the magistrate’s decision.
Mother objected to the following findings of fact: that the children had been primarily living
with Grandmother since they were removed from Mother’s care in September 2018; that
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Grandmother had been the primary caregiver during the relevant time periods; that
Grandmother had worked with Mother to expand her parenting time since 2019; that
maternal grandparents and Mother had been essentially co-parenting while maternal
grandparents provided financial support for the children; that Mother’s allegations against
maternal grandparents had been investigated by law enforcement and MCCS; that
Mother’s untreated mental health remained a substantial barrier for effective parenting;
and that returning the children to Mother’s care would place them at significant risk of
harm.
{¶ 14} On August 21, 2023, the trial court overruled Mother’s objections and
granted sole legal custody of the children to Grandmother. After consideration of the
relevant factors and of Grandmother’s and Mother’s respective requests to be named the
sole legal custodian of the children, the trial court found that there had been a change in
circumstances, namely that the maternal grandparents who had been sharing legal
custody of the children had divorced. The trial court found that the children’s needs were
met in Grandmother’s home, that Mother lacked mental and emotional stability, and that
Mother had ceased undergoing mental health treatment and taking medication for her
mental disorders. The court concluded that, notwithstanding the change in circumstances,
Mother had not demonstrated that she was able to provide a safe, stable, and permanent
home for the children; thus, granting legal custody to Grandmother was in the children’s
best interest. The trial court further found that Mother’s parenting time should take place
in a supervised setting based on the recommendations of MCCS representatives and the
guardian ad litem and the children’s best interest.
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{¶ 15} Mother timely appealed.
II. Assignments of Error
{¶ 16} Mother’s two assignments of error are interrelated; therefore, we will
consider them together. Her assignments of error state:
THE GRANTING OF LEGAL CUSTODY SOLELY TO MATERNAL
GRANDMOTHER WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
THE COURT ERRED IN NOT DETERMINING THERE WAS A
CHANGE IN CIRCUMSTANCES REGARDING MATERNAL
GRANDMOTHER AND MATERNAL GRANDFATHER’S DIVORCE.
{¶ 17} “R.C. 2151.353(F)(1) and (2) and R.C. 2151.42(A) and (B) govern the
modification or termination of dispositional orders involving abused, neglected, or
dependent children.” (Citations omitted.) In re I.E., 2d Dist. Montgomery No. 28646,
2020-Ohio-3477, ¶ 10. “R.C. 2151.353(F)(1) grants the juvenile court continuing
jurisdiction over any child for whom the court had entered an order of disposition, and
R.C. 2151.353(F)(2) allows any party (other than a parent whose parental rights have
been terminated) to ‘request the court to modify or terminate any order of disposition.’ ”
Id.{¶ 18} “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.” (Emphasis
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added.) R.C. 2151.42(B). “[I]n determining whether to return the child to the child’s
parent, the court must consider the best interest of the child.” In re I.E. at ¶ 11, citing R.C.
2151.42(A).
{¶ 19} Neither R.C. 2151.42, which governs the modification or termination of a
dispositional order, nor R.C. 3109.04(E), which addresses the modification of a prior
decree allocating parental rights, defines the meaning of “change in circumstances.”
With respect to R.C. 3109.04(B), “Ohio courts have held the phrase pertains to ‘an event,
occurrence, or situation which has a material and adverse effect upon the child.’ ” In re
A.P., 2d Dist. Montgomery No. 28023, 2019-Ohio-139, ¶ 23, quoting Pierson v. Gorrell,
12th Dist. Butler No. CA 2011-11-216, 2012-Ohio-3878, ¶ 13. “In order to warrant the
abrupt disruption of the child’s home life, the change in circumstances must be one ‘of
substance, not a slight or inconsequential change.’ ” Pierson at ¶ 13, quoting Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶ 20} “R.C. 2151.42(A) does not identify particular factors that a court should
consider in determining whether to terminate or modify a dispositional order. However,
courts have been guided by the best-interest factors in R.C. 2151.414(D)(1), which are
applicable to a motion for permanent custody.” In re I.E. at ¶ 27, citing In re C.D.Y., 8th
Dist. Cuyahoga No. 108355, 2019-Ohio-4987, ¶ 11. The factors in R.C. 2151.414(D)(1)
include:
(a) The interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
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(b) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child * * * ;
(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
{¶ 21} “Courts have also looked to the best-interest factors in R.C. 3109.04(F)(1),
which is applicable to the allocation of parental rights in domestic relations matters.” In
re I.E. at ¶ 28, citing In re C.D.Y. at ¶ 12. That section provides the following non-
exhaustive list of factors to consider: (a) the wishes of the child's parents; (b) the wishes
and concerns of the child; (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; (f) the parent more
likely to honor and facilitate court-approved parenting time rights or visitation; (g) whether
either parent has failed to make all child support payments; (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; (i) whether the residential parent or one of the parents
subject to a shared parenting decree has continuously and willfully denied the other
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parent's right to parenting time in accordance with an order of the court; and (j) whether
either parent has established a residence, or is planning to establish a residence, outside
this state.
{¶ 22} We review a trial court’s determination regarding a change of circumstances
for an abuse of discretion. In re A.S., 2d Dist. Montgomery No. 27156, 2016-Ohio-7622,
¶ 12. We also apply an abuse of discretion standard “when reviewing a trial court’s
decision on a motion for legal custody.”2 In re Z.C., 2d Dist. Montgomery No. 29616,
2023-Ohio-963, ¶ 35, citing In re L.H., 2d Dist. Montgomery No. 29119, 2021-Ohio-3521,
¶ 21. To find an abuse of discretion, we must find that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 23} Mother argues that there was no expert testimony indicating that Mother
was incapable of properly caring for her children because of her mental health, and thus
the trial court’s grant of legal custody to Grandmother based on Mother’s mental health
2 Notably, the Supreme Court of Ohio recently addressed the proper standard to be
applied to review of permanent custody decisions. In re Z.C., Ohio Slip Opinion No.
2023-Ohio-4703, __ N.E.3d __, ¶ 1. (The Supreme Court case is unrelated to the cited
Second District case, In re Z.C., 2d Dist. Montgomery No. 29616, 2023-Ohio-963.) The
Supreme Court held that “the sufficiency-of-the-evidence and/or manifest-weight-of-the-
evidence standards of review are the proper appellate standards of review of a juvenile
court's permanent-custody determination, as appropriate depending on the nature of the
arguments that are presented by the parties.” Id. at ¶ 11. Most cases subsequently
citing In re Z.C. have involved permanent custody. E.g., In re E.C., 6th Dist. Lucas No.
L-23-1217, 2024-Ohio-281, ¶ 71. However, in the one case that did not, the Eleventh
District Court of Appeals referenced In re Z.C. in a footnote but applied an abuse of
discretion standard for purposes of reviewing a grant of legal custody. Matter of I.G.C.,
11th Dist. Portage No. 2023-P-0026, 2024-Ohio-145, ¶ 15 and fn. 2. In light of the lower
burden of proof in such cases, i.e., a preponderance of the evidence, this was appropriate.
Accordingly, in situations like the present, where legal custody rather than permanent
custody is at issue, we will continue to apply an abuse of discretion standard.
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status was not supported by sufficient evidence. In support of her argument, Mother cites
In re K.K., 2d Dist. Darke No. 2023-CA-2, 2023-Ohio-2083, in which the trial court’s
judgment at the adjudicatory stage was reversed because we agreed with the father that
the dependency adjudications had not been supported by sufficient evidence.
{¶ 24} However, we note that this appeal did not arise from the adjudicatory stage
of this case. Here, the children had been previously adjudicated dependent, and maternal
grandparents had been granted legal custody in April 2019. Any errors based on the
sufficiency of the evidence that Mother might have appealed as a result of the trial court’s
original award of legal custody to the maternal grandparents are not before us in this
appeal. Indeed, “[t]he purpose of requiring a finding of a change in circumstances is to
prevent a constant relitigation of issues that have already been determined by the trial
court. * * * Therefore, the modification must be based upon some fact that has arisen
since the prior order or was unknown at the time of the prior order.” Brammer v.
Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453, ¶ 17 (3d Dist.), citing
R.C. 3109.04(E)(1)(a).
{¶ 25} Mother also argues that the trial court erred in determining that the maternal
grandparents’ divorce was not a change in circumstances. Specifically, Mother contends
that the maternal grandparents’ divorce created a change in circumstances for the
children that warranted the return of legal custody to her. Mother further asserts that the
trial court failed to inquire as to the effect of the grandparents’ divorce on the children,
constituting an abuse of discretion. We disagree.
{¶ 26} In order to modify custody where legal custody has already been granted,
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the trial court must determine that there was a substantial change in circumstances with
regard to the children or the person with legal custody and must do so in accordance with
the best interest factors. In this case, the trial court found that there had, in fact, been a
change in circumstances, because of the maternal grandparents’ divorce, but it concluded
that granting sole legal custody to Grandmother was still in the children’s best interest. In
granting sole legal custody to Grandmother, the trial court explained that Mother had a
history of various mental health disorders dating back to her childhood, she no longer
engaged in mental health therapy, and she had stopped taking medication at her own
discretion. The trial court pointed out that the MCCS caseworkers had expressed
concerns regarding Mother’s emotional stability and mental health, and they supported
having the children remain with Grandmother. Further, the MCCS caseworkers were
concerned about Mother’s boyfriend, who resided with her, as he had been the
perpetrator of a substantiated physical abuse allegation against his own infant child. The
trial court noted that the guardian ad litem additionally recommended that Grandmother
be designated as the children's sole legal custodian. The trial court concluded that Mother
had historically lacked mental and emotional stability and had not demonstrated that she
was able to provide a safe, stable, and permanent home for the children, and, thus,
granting sole legal custody to Grandmother was in the children’s best interest.
{¶ 27} While Mother argues that there was no expert testimony demonstrating that
she was incapable of properly caring for her children because of her mental health
conditions, no expert testimony was required. Moreover, Mother could have presented
expert testimony herself but did not do so, and the trial court was free to consider the
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evidence presented. The trial court considered relevant factors in determining the best
interest of the children, including: the interaction and interrelationship of the children with
Mother and Grandmother; the custodial history of the children; the wishes of Mother and
Grandmother regarding the children’s care; the mental and physical health of all persons
involved in the situation; and the substantiated claim of physical abuse perpetrated by
Mother’s live-in boyfriend against his own infant child. Under the circumstances
presented, we cannot say that the trial court abused its discretion in granting legal custody
to Grandmother and finding that, although there had been a change in circumstances, it
was still in the children’s best interest that Grandmother be granted sole legal custody.
{¶ 28} Mother’s first and second assignments of error are overruled.
III. Conclusion
{¶ 29} Having overruled Mother’s assignments of error, the judgments of the trial
court will be affirmed.
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WELBAUM, J. and TUCKER, J., concur.