In re J.C. , 2011 Ohio 4933 ( 2011 )

[Cite as In re J.C., 2011-Ohio-4933.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.C. AND J.C. C.A. No. 25793
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN08-11-0940
DN08-11-0941
DECISION AND JOURNAL ENTRY
Dated: September 28, 2011
WHITMORE, Presiding Judge.
{¶1} Appellant, Amber C. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that placed her two minor children in the legal
custody of their foster parents. This Court affirms.
I
{¶2} Mother is the natural mother of J.C., born February 18, 2006, and J.C., born
February 8, 2007. On November 21, 2008, Summit County Children Services Board (“CSB”)
filed complaints alleging that J.C. and J.C. were dependent children because Mother had violated
a no contact order by allowing them to have unsupervised contact with their father, who had a
history of domestic violence against Mother. The father of the children later relinquished his
parental rights and is no longer involved in this case.
{¶3} The children were adjudicated dependent and placed in the temporary custody of
CSB. Less than two months later, CSB moved for permanent custody of both children, alleging
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that they had been in its temporary custody for at least 12 of the prior 22 months, based primarily
on the time they spent in its temporary custody in a prior dependency case. Following a hearing,
the trial court terminated Mother’s parental rights and placed the children in the permanent
custody of CSB. This Court reversed that decision on appeal, however, because the record failed
to demonstrate that the children had been in CSB’s temporary custody for the requisite 12-month
period at the time CSB filed its permanent custody motion. See In re J.C., 9th Dist. No. 25006,
2010-Ohio-637, at ¶12-14.
{¶4} On remand, CSB filed a new motion for permanent custody. Following a hearing
on that motion, the trial court denied CSB’s request for permanent custody and instead extended
temporary custody because Mother had substantially complied with the requirements of the case
plan. During the next several months, Mother began intensive parent-child therapy with the
children and eventually was given overnight visitation with them at her home. Mother worked
with the therapist to learn appropriate ways to handle her children’s behavioral problems.
{¶5} Mother eventually filed a motion for legal custody of J.C. and J.C. Although
Mother’s ability to care for the children had improved, CSB and the guardian ad litem did not
believe that she had the necessary tools to provide a home for them on a full-time basis.
Therefore, CSB filed an alternative dispositional motion, requesting that J.C. and J.C. be placed
in the legal custody of their foster parents. Following a hearing on the competing motions, the
trial court placed the children in the legal custody of the foster parents and granted Mother
standard visitation rights. Mother appeals and raises one assignment of error.
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II
Assignment of Error
“THE DECISION OF THE TRIAL COURT TO GRANT LEGAL CUSTODY
OF THE CHILDREN TO A NON-PARENT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶6} Mother argues that the trial court erred in placing her two children in the legal
custody of the foster parents rather than in her legal custody. We disagree.
{¶7} Mother’s argument focuses primarily on whether CSB developed an adequate
plan to reunify her with her children. We will not reach that issue, however, because Mother did
not assign error to the agency’s reunification efforts, nor did she raise that challenge in the trial
court. Instead, her challenge is limited to whether the trial court properly granted the foster
parents’ motion for legal custody.
{¶8} Emphasizing her constitutional rights as a parent, Mother implies that the trial
court was required to give her motion for legal custody preference over the motion of the foster
parents. Following an adjudication of neglect, dependency, or abuse, however, the juvenile
court’s determination of whether to place a child in the legal custody of a parent or a non-parent
is based solely on the best interest of the child. See In re D.R., 9th Dist. No. 21218, 2003-Ohio-
2852, at ¶17; In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, paragraph two of the syllabus
(holding that an adjudication of abuse, dependency, or neglect is an implicit determination of the
parent’s unsuitability). Because Mother’s parental rights were not terminated, this inquiry did
not focus on Mother’s rights as a parent, but instead centered on how best to provide her children
with a safe, stable, and secure home. See In re C.R. at paragraph one of the syllabus.
{¶9} “Although there is no specific test or set of criteria set forth in the statutory
scheme, courts agree that the trial court must base its decision on the best interest of the child.”
In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶23, citing In re Fulton, 12th Dist. No.
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CA2002-09-236, 2003-Ohio-5984, at ¶11. The juvenile court’s disposition of legal custody to a
relative is a less drastic disposition than permanent custody to a children services agency because
it does not terminate parental rights but instead “leaves intact ‘residual parental rights, privileges,
and responsibilities.’” In re Shepherd (Mar. 26, 2001), 4th Dist. No. 00CA12, at *7, quoting
R.C. 2151.011(B)(19). The trial court’s decision to grant or deny a motion for legal custody is
within its sound discretion and will not be reversed absent an abuse of that discretion. In re M.S.,
9th Dist. No. 22158, 2005-Ohio-10, at ¶11. An abuse of discretion implies that the trial court’s
attitude is “unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219.
{¶10} J.C. and J.C. were almost four and five years old at the time of the legal custody
hearing and had spent most of their lives outside Mother’s custody. Each child had been
diagnosed with adjustment disorder and oppositional defiant disorder and each also suffered
from developmental delays. Each child’s adjustment disorder stemmed from repeatedly moving
in and out of Mother’s custody because of domestic violence and unstable living conditions.
Each child was removed from Mother’s custody at the age of approximately three months old,
and was later returned to her care only to be removed again. The older J.C. had been in and out
of Mother’s custody three different times during his short life and, consequently, harbored a
significant amount of anger toward Mother.
{¶11} The caseworker and one of the counselors described the children as “high-
maintenance” because they require significant patience and energy from their caregivers. They
do not take direction very well, tend to be very demanding and defiant, and often act on their
anger and aggression. The counselors explained that J.C. and J.C. need an environment that
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provides consistent structure, firm boundaries, and caregivers that offer nurturing support and
model appropriate behavior.
{¶12} Mother had made gradual progress on the case plan during the two years that the
current case was pending. She ended her violent relationship with the children’s father, obtained
stable employment and housing, and participated in anger management classes, parenting
classes, and counseling. At the time of the hearing, Mother was attending individual counseling
and had recently begun intensive parent-child therapy with the children. She was attending her
joint sessions with the children regularly, but her attendance rate at individual counseling was
estimated at fifty percent.
{¶13} Although the evidence demonstrated that Mother was making progress with the
children, she was still an inexperienced parent and was not yet demonstrating that she could
consistently implement the parenting skills that she had learned in counseling and parenting
classes. In joint therapy, Mother was learning how to provide boundaries and appropriate means
of discipline for the children. Mother admitted that she sometimes spanked the children when
they misbehaved, so the counselor was working with her to use alternate forms of discipline.
She explained that physical discipline was not appropriate or effective for children with anger
issues because it only reinforces their anger. The counselor further testified that Mother listened
to her suggestions and was making progress in their sessions, but Mother had met with her only a
few times and would need continued counseling. The counselor also expressed concern that
Mother did not have the necessary support system in place to provide ongoing care for the
children.
{¶14} The caseworker and guardian ad litem did not believe that Mother had the ability
to provide day-to-day care for the children at that time. Each testified that Mother sometimes
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seemed overwhelmed by the children’s inappropriate behavior and would either resort to
physical discipline or give in to their demands, rather than standing firm in her parental role and
providing appropriate discipline. They further noted concern about Mother’s desire to end the
children’s relationship with the foster parents and emphasized that Mother seemed motivated by
her own feelings of jealousy toward the foster parents, rather than what was best for her children.
{¶15} On the other hand, several witnesses testified that the foster parents were
providing J.C. and J.C. with a consistent and structured environment and were giving them the
nurturing support that they needed. The children had lived with the same foster family each time
they were removed from Mother’s custody and had spent the majority of their lives there. By the
time of the hearing, the older J.C. had lived with the foster family for a total of 47 months of his
58-month life and the younger J.C. had lived with them for 37 months of her 46-month life. The
children were attached to the entire family and considered it to be their only home.
{¶16} The foster parents had demonstrated the ability to provide a stable environment
for J.C. and J.C. on a daily basis. The children were enrolled in counseling and an integrated
preschool and were making improvements with both their behavioral problems and their
developmental delays. Numerous witnesses testified about how well the children were doing in
the foster home. In sharp contrast to their observations about Mother becoming flustered and
responding inappropriately to the children’s misbehavior, the caseworker and guardian ad litem
gave examples of how calm the foster mother was with both children and how effectively she
redirected their inappropriate behavior.
{¶17} The children had told others that they want to stay with the foster family. They
like to visit with Mother, but look forward to returning to the foster home. The foster parents
had been facilitating visitation between Mother and the children and would continue to do so.
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The guardian ad litem recommended that the foster parents receive legal custody of the children
and that Mother continue to have unsupervised visitation with them, provided that she remains
involved in counseling. She emphasized that such a placement would allow Mother’s
relationship with the children to continue to grow, yet the children would not be uprooted from
the environment that they clearly regard as their primary home.
{¶18} Given the evidence presented at the hearing, the trial court reasonably concluded
that legal custody to the foster parents was in the best interests of J.C. and J.C. The assignment
of error is overruled.
III
{¶19} Mother’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
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(E). 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.
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Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
CONCURS
MOORE, J.
CONCURS, SAYING:
{¶20} I concur with the majority, but write separately to emphasize that this case did not
turn on the fact that Mother occasionally spanked her children. There is no evidence in the
record that Mother’s use of corporal punishment had been excessive or caused harm to her
children. Although CSB and its experts are of the opinion that alternate means of discipline
would have been more appropriate, “Ohio law has long recognized that a parent has the right to
administer reasonable and appropriate corporal punishment.” In re Jandrew (Dec. 29, 1997), 4th
Dist. No. 97 CA 4, at *6. The state is warranted in intervening only when the punishment
exceeds the bounds of moderation. Id.; see, also, State v. Suchomski (1991), 58 Ohio St.3d 74,
75 (emphasizing that a child has no “legally protected interest which is invaded by proper and
reasonable parental discipline” and holding that a parent does not violate R.C. 2919.25 unless the
discipline causes physical harm).
{¶21} Notwithstanding Mother’s right to discipline her children, however, the standard
that applied to the competing legal custody motions in this case was the best interests of the
children. On balance, because the record supports the trial court’s finding that the best interests
of the children are served by legal custody with the foster parents, I concur.
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APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.