In re A.L. , 2017 Ohio 7689 ( 2017 )

[Cite as In re A.L., 2017-Ohio-7689.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.L. C.A. No. 28400
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 14-10-0671
DECISION AND JOURNAL ENTRY
Dated: September 20, 2017
CARR, Judge.
{¶1} Appellant, Thomas A. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that placed his minor child in the legal custody of a
nonrelative. This Court affirms in part and reverses in part.
I.
{¶2} Father is the biological father of A.L., born September 25, 2009. The mother of
A.L. (“Mother”) has been incarcerated throughout these proceedings and did not appeal from the
trial court’s judgment. A.L. has two half-siblings, who were involved in the trial court
proceedings, but are not parties to this appeal.
{¶3} On October 16, 2014, Police responded to a report of domestic violence at the
home where A.L. lived with Mother, A.L.’s two half-siblings, and the father of the half-siblings.
While the three children were in bed, Mother had stabbed the father of the half-siblings, who
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later died. Mother was arrested and taken into custody. No relatives could be located at that
time to care for the children, so the police took them into custody pursuant to Juv.R. 6.
{¶4} A.L. was later adjudicated a dependent child and Summit County Children
Services Board (“CSB”) was awarded temporary custody of her. A.L. was placed with the half-
siblings in the home of Ms. H., an aunt of the half-siblings’ late father. All three siblings
continued to reside with Ms. H. throughout these proceedings.
{¶5} Because Mother remained incarcerated throughout these proceedings and was
eventually convicted of involuntary manslaughter, reunification under the case plan focused on
Father. When this case began, however, Father’s paternity had not been established and he had
not been the primary caretaker for A.L. Father also lacked stable housing and had a history of
drug use and convictions. Father was accepted into the juvenile court’s Family Reunification
through Recovery Court (FRRC), a specialized docket to provide him with intensive assistance
to address the substance abuse component of the case plan.
{¶6} Although Father missed a few scheduled court appearances and drug screens, he
otherwise complied with the requirements of the FRRC program and consistently tested negative
for drugs. Father progressed through the FRRC program and also complied with most other
aspects of the case plan.
{¶7} Approximately 10 months after A.L. and her half-siblings were placed in the
home of Ms. H, the guardian ad litem moved the trial court to amend the case plan to require that
the three children undergo a bonding assessment with a qualified mental health professional. He
asserted that, although A.L.’s counselor had recommended that a bonding assessment be
performed, CSB had not arranged for an assessment. The guardian ad litem opined that the
assessment would be “of extraordinary value” in determining the best interest of the children at
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the final dispositional hearing. He requested that CSB be ordered to arrange for a bonding
assessment through the agency where A.L. was already receiving counseling.
{¶8} CSB filed a brief in opposition to requiring a bonding assessment, asserting that it
was not necessary because all potential custodians understood that the children were bonded and
were committed to maintaining the sibling bond. The agency also asserted that it should not be
required to pay for the assessment. Without further explanation on the record, the trial court later
ordered that the three siblings undergo a bonding assessment, that CSB facilitate the assessment,
and that Ms. H. pay for the assessment.
{¶9} Father later moved for legal custody of A.L. and Ms. H. alternatively moved to
have A.L. and her two half-siblings placed in her legal custody. CSB supported Father’s motion
for legal custody, but also requested that A.L. be transitioned into Father’s home, with a period
of protective supervision by the agency. The guardian ad litem supported the motion of Ms. H.
because A.L. had been living in her home for nearly one year, was closely bonded to her half-
siblings and Ms. H., and Ms. H. had demonstrated the ability to meet the ongoing needs of all
three siblings.
{¶10} The matter proceeded to a final dispositional hearing before a magistrate. At the
commencement of the hearing, the parties agreed that the two half-siblings should be placed in
the legal custody of Ms. H., their paternal great-aunt. The hearing proceeded on the competing
motions for legal custody of A.L. The magistrate decided that A.L. should be placed in the legal
custody of Father under an order of protective supervision by CSB, reasoning that Father had
made substantial progress on the reunification goals of the case plan and “[t]here are no glaring
deficiencies that render this biological father unable [to] perform” his role as the child’s
permanent caregiver.
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{¶11} The guardian ad litem filed objections to the magistrate’s decision, arguing among
other things that the magistrate’s legal custody decision was against the weight of the evidence.
In essence, he asserted that the magistrate placed too much emphasis on the biological
relationship between A.L. and Father, but seemed to place no weight on the relationship and
significant bond that A.L. had with her half-siblings and Ms. H. The juvenile court sustained the
objection of the guardian ad litem and ordered that A.L. be placed in the legal custody of Ms. H.
Father appeals and raises five assignments of error.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT[’]S OMISSION OF A CHILD SUPPORT
CALCULATION, IN THE TRIAL COURT’S ENTRY CURRENTLY UNDER
APPEAL, APPEARS TO CONSTITUTE REVERSIBLE ERROR.
{¶12} This Court will address Father’s second assignment of error first because it is
potentially jurisdictional. Father’s second assignment of error is that the trial court erred by
failing to dispose of his child support obligation at the time it awarded legal custody to Ms. H.
In its judgment sustaining the objection to the magistrate’s decision and awarding legal custody
of A.L. to Ms. H., the trial court remanded the matter to the magistrate to determine child
support.
{¶13} We begin by addressing CSB’s argument that, because the trial court had not yet
ruled on Father’s child support obligation, the legal custody judgment appealed by Father is not
final and appealable. The agency relies on a decision from another appellate district that
involved an appeal from an order that had not issued a final decision on either custody or child
support. See B.W. v. D.B-B., 6th Dist. Lucas Nos. L-10-1017, L-10-1045, L-10-1055, 2010-
Ohio-1470.
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{¶14} This Court has addressed this finality issue in an appeal involving analogous
facts: a post-adjudication legal custody judgment under R.C. Chapter 2151, which explicitly left
unresolved the issue of child support and other residual parental rights and responsibilities. In re
B.C., 9th Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 11. This Court held that the legal
custody judgment itself was a partial final order under App.R. 4(B)(5). Id. at ¶ 12.
Consequently, CSB has failed to demonstrate that this Court lacks jurisdiction to hear this
appeal. Id.
{¶15} Turning to the merits of this assigned error, Father has failed to demonstrate any
error in the trial court’s failure to resolve all of his residual parental rights and responsibilities in
the legal custody judgment. Despite his suggestion to the contrary, the trial court did not neglect
or refuse to decide the issue of child support, but simply postposed that determination for a later
date. Father’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AND DENIED [FATHER] DUE PROCESS OF
LAW THROUGH ITS RULING ON THE OBJECTIONS TO [THE]
MAGISTRATE’S DECISION VACATING HIS AWARD OF LEGAL
CUSTODY TO HIS DAUGHTER, IN FAVOR OF A THIRD PARTY.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT[’]S REVERSAL OF THE AWARD OF [A.L.’S]
CUSTODY [TO FATHER] IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
ASSIGNMENT OF ERROR V
THE TRIAL COURT’S REVERSAL OF THE AWARD OF [A.L.’S] CUSTODY
[TO FATHER] IS BASED UPON INSUFFICIENT EVIDENCE.
{¶16} This Court will consolidate Father’s first, fourth, and fifth assignments of error
because they are intertwined. Father argues that the trial court’s judgment denied him due
process and that it was not supported by the evidence. First, he asserts that he was denied due
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process when the trial court considered the opinion of the psychologist who performed the
bonding assessment because she was “hand-picked” by Ms. H. and/or the guardian. To begin
with, Father raised no challenges to the introduction of the expert’s testimony or the bonding
assessment at the legal custody hearing.
{¶17} There is also nothing in the record to support Father’s argument that the
psychologist was “hand-picked” by Ms. H. or the guardian ad litem. Ms. H. paid for the
assessment because the trial court ordered her to do so and there is nothing in the record to
demonstrate that she chose the expert. In fact, the psychologist who performed the assessment, a
clinician and executive director of the agency where A.L. was already receiving counseling,
testified that it was CSB that first contacted her about performing the assessment. She had been
a licensed psychologist for 28 years. At the hearing, all parties stipulated to her competency to
testify as an expert in child psychology. There is nothing in the record to support Father’s
suggestion that this experienced mental health professional was biased for or against any of the
parties in this case.
{¶18} Another due process argument focuses on the fundamental right of a parent to
raise his child, grounds for permanent custody, and incorrectly equates the legal custody
judgment in this case to a termination of his parental rights. The juvenile court’s disposition of
legal custody to a nonparent is a less drastic disposition than permanent custody to a children
services agency. Significantly, legal custody does not terminate parental rights but instead
“leaves intact ‘residual parental rights, privileges, and responsibilities.’” In re Shepherd, 4th
Dist. Highland No. 00CA12, 2001 WL 802209, *7 (Mar. 26, 2001), quoting former R.C.
2151.011(B)(17). Ms. H. testified that she agreed to assume the role of legal custodian and
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understood that Father would remain A.L.’s parent and that she would facilitate an ongoing
relationship between the two.
{¶19} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” See In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-
1330, ¶ 12. “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 [regarding legal custody] on the best
interest of the child.” In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23, citing In re
Fulton, 12th Dist. Butler No. CA 2002-09-236, 2003-Ohio-5984, ¶ 11.
{¶20} Father also asserts that the trial court failed to consider that he had complied with
the case plan. Actually, the trial court’s judgment entry explicitly recognized Father’s significant
progress on the case plan. Although his compliance with the case plan may have been relevant
to the best interest of A.L., it was not dispositive. See, e.g., In re K.C., 9th Dist. Summit Nos.
26992, 26993, 2014-Ohio-372, ¶ 22, citing In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-
5003, ¶ 21. The primary focus of the trial court’s legal custody determination was the current
parenting ability of Father and Ms. H. and whether it was in the best interest of A.L. to be
permanently placed in the legal custody of either of them. In re K.C. at ¶ 20.
{¶21} Father’s remaining due process arguments will be addressed within the context of
whether the trial court’s best interest decision was supported by the evidence. “[T]his Court has
held that the best interest test set forth in R.C. 2151.414(D), although it relates to permanent
custody, ‘provide[s] guidance’ in legal custody determinations.” In re B.G. at ¶ 9, quoting In re
T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. When determining the children’s best
interest under R.C. 2151.414(D), the juvenile court must consider all relevant factors, including
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the interaction and interrelationships of the children, their wishes, their custodial history, and
their need for permanence in their lives. See In re R.G., 9th Dist. Summit Nos. 24834, 24850,
2009-Ohio-6284, ¶ 11.
{¶22} Although Father argues otherwise, the record reveals that the trial court
considered the bond and interrelationships between A.L. and all of the significant people in her
life, including Father, her two half-siblings, other relatives, and Ms. H. It was not disputed that
both Father and Ms. H. loved A.L. and were willing to provide her with a stable permanent
home. The trial court was in the position of choosing one legal custodian who would serve
A.L.’s best interest.
{¶23} Father also insinuates that, as the magistrate did, the trial court was required to
give Father preference as legal custodian because he is A.L.’s biological parent. Similarly, CSB
had supported Father’s motion because he had made exemplary progress on the case plan and he
is the child’s father.
{¶24} Courts have held that appropriate relatives should generally be given priority over
nonrelatives in legal custody decisions, but “blood relationship, in and of itself, does not control
the trial court’s best interest determination.” In re L.H., 9th Dist. Summit No. 28090, 2016-
Ohio-8284, ¶ 10, citing In re J.B.S., 4th Dist. Scioto No. 09CA3316, 2010-Ohio-1974, at ¶ 25.
The trial court’s best interest decision should focus on the child’s interaction and emotional bond
with any potential custodian, not simply a blood relative. In re L.H. at ¶ 10, citing In re J.B.S. at
¶ 25.Id. at ¶ 10. Moreover, the trial court was also required to weigh A.L.’s relationship and
bond with her biological half-siblings, who had been placed in the legal custody of Ms. H. In re
L.H. at ¶ 11.
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{¶25} When this case began, A.L. was residing with Mother, the half-siblings, and the
father of the half-siblings. Several witnesses testified that A.L. considered her half-siblings to be
her siblings and their father to be her father because she had lived with him for years and he
treated her as if she were his own child. A.L. referred to Father as her other dad.
{¶26} When Mother killed the father of the half-siblings, A.L. tragically lost both of her
parent figures. Although A.L. did not witness the killing, she understood that her half-siblings’
father was dead and that Mother was incarcerated for killing him. A.L. had no contact with
Mother throughout this case because her counselor opined that the child was not emotionally
prepared to communicate with her.
{¶27} Ms. H. immediately reached out to CSB and agreed to provide a stable home for
A.L. and her two half-siblings, preserving what remained of the family that A.L. had known for
most of her life. The expert who performed the bonding assessment described the ongoing
relationship between the three siblings as “very critical” because they had already experienced
serious trauma by losing both of their parent figures. A.L. had told her that the siblings “have
always been together.” The expert gave examples of how the siblings emotionally supported
each other and emphasized the importance of keeping the sibling group together. She opined
that A.L. would experience further loss and pain if she were not able to have daily contact with
her siblings. A.L.’s counselor also opined that A.L. would suffer another emotional loss if she
were removed from the home of Ms. H. and separated from her siblings.
{¶28} At the time of the hearing, A.L. had been living with Ms. H., her two half-
siblings, and Ms. H.’s immediate family for more than one year. No one disputed that all of her
needs were being met in that home. A.L. had become assimilated into the family and perceived
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Ms. H’s home as her own home. Ms. H. had assured that A.L. regularly attended school and
counseling and the child had made significant progress in her home.
{¶29} Father and Ms. H. had worked together to provide care for A.L. and to facilitate
her ongoing relationship with other family members. Father saw A.L. regularly and his visits
with her were expanded over time to long weekends. Apparently because Father’s girlfriend had
children in her home, A.L. and Father typically visited at the girlfriend’s home. Witnesses
expressed concern, however, that A.L. had not stayed at Father’s actual home, nor had she met
some of the people living in Father’s home.
{¶30} Moreover, Father had not demonstrated an ability to provide for A.L.’s daily care.
He saw her primarily on weekends and during many of those visits, A.L. actually spent her time
with relatives, Father’s girlfriend, or others in the home. Although Father’s weekend visits did
not require him to regularly get A.L. to school or counseling, Father had not made the effort to
attend any school activities or conferences, nor had he responded to encouragement to participate
in the bonding assessment and/or A.L.’s counseling.
{¶31} A.L.’s counselor testified that A.L. did not talk about Father during sessions or
include him in pictures of her family. Based on her ten years of experience counseling children,
she believed that A.L.’s failure to discuss Father reflected a lack of a strong bond between the
two. The counselor invited Father to attend counseling sessions to pursue the matter further and
encourage bonding between the two, but Father attended only two sessions. He agreed to
continue attending sessions once a month, but he did not. A.L. continually asked the counselor
when Father would return. Father asserts that he could not attend counseling sessions because of
his work schedule. The counselor testified, however, that she told Father that she was willing to
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reschedule appointments to accommodate his work schedule. She gave him her phone number
but he did not call her.
{¶32} A.L.’s wishes about where she wanted to reside were unclear. Father points to the
fact that A.L. had expressed a desire to live with Father. A.L.’s counselor testified, however,
that then 6-year-old A.L. did not understand what custody meant because she spent time with
several different relatives on a regular basis. Moreover, A.L. seemed to believe that if she were
to live with Father, her half-siblings would live there also.
{¶33} The guardian ad litem opined that legal custody to Ms. H. was in the best interest
of A.L. Although the caseworker had testified otherwise, this Court has repeatedly stressed that
it is the guardian ad litem, not the caseworker, who is authorized to provide an opinion about the
best interest of the child. See, e.g., In re L.P., 9th Dist. Summit No. 27792, 2015-Ohio-4164, ¶
23. Contrary to Father’s assertions, there is nothing in the record to demonstrate that the
guardian ad litem was biased; he simply disagreed with the caseworker about the child’s best
interest.
{¶34} The guardian ad litem testified that A.L. is strongly bonded to her half-siblings
and Ms. H. and that Ms. H’s home is a “warm and loving place.” He commended Ms. H. for
providing stability, safety, and ongoing emotional support for A.L. at a time when she needed it
most. He opined that legal custody to Ms. H. was in the best interest of A.L. because Ms. H. had
proven that she can consistently meet the child’s needs. While he recognized that Father and
A.L. love each other, he expressed concern that Father had never been the child’s primary
caretaker. Moreover, unlike Ms. H., Father had failed to demonstrate a commitment to meeting
the child’s daily needs.
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{¶35} A.L.’s custodial history during this case had included one year living in a
temporary placement. She had spent most of her life before this case in the custody of parent
figures who could no longer care for her. Her counselor testified that A.L. was in need of a
legally secure permanent placement and that a placement that would allow her to remain with
Ms. H. and her siblings would be optimal.
{¶36} Consequently, Father has failed to demonstrate that the trial court erred in
concluding that legal custody to Ms. H. was in the best interest of A.L. Father’s first, fourth, and
fifth assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT[’]S OMISSION OF A REASONABLE EFFORTS
DETERMINATION AND WRITTEN FINDINGS OF FACT STAT[ING] THE
REASONS SUPPORTING ITS “REASONABLE EFFORTS”
DETERMINATIONS, IN ITS ENTRY UNDER APPEAL[,] CONSTITUTES
PREJUDICIAL AND REVERSIBLE ERROR AS A MATTER OF LAW.
{¶37} Father’s third assignment of error is that the trial court’s judgment granting legal
custody to Ms. H. failed to comply with R.C. 2151.419. Specifically, because the trial court
continued the removal of A.L. from the custody of her parents, R.C. 2151.419(A)(1) required the
trial court to determine whether CSB had made reasonable efforts “to eliminate the continued
removal” of A.L. “or to make it possible for the child to return safely home.” R.C.
2151.419(B)(1) additionally provides that, when making those required reasonable efforts
findings, the court “shall issue written findings of fact setting forth the reasons supporting its
determination.” Specifically, it must “briefly describe in the findings of fact the relevant services
provided by the agency to the family of the child and why those services did not prevent the
removal of the child from the child’s home or enable the child to return safely home.” Id.13
{¶38} Father does not argue that CSB failed to make reasonable efforts to place A.L. in
his home, nor would the record support such an argument. Instead, Father confines his assigned
error to the trial court’s failure to make the requisite findings under R.C. 2151.419. Because the
trial court failed to make the requisite reasonable efforts finding under R.C. 2151.419, Father’s
third assignment of error is sustained. See In re J.G., 9th Dist. Wayne No. 12CA0037, 2013-
Ohio-417, ¶ 36.
III.
{¶39} Father’s third assignment of error is sustained. His remaining assignments of
error are overruled. The judgment of the trial court is reversed solely for the purpose of the trial
court making reasonable efforts findings under R.C. 2151.419. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed in part and reversed in part and
the cause remanded for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part, and
the cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
JOSEPH M. KERNAN, Guardian ad Litem.