In re K.Q.

[Cite as In re K.Q., 2018-Ohio-906.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION
K.Q., NEGLECTED CHILD.
:
CASE NO. 2017-A-0060
:
:
Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case
No. 16 JC 97.
Judgment: Affirmed.
April R. Grabman, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Appellant – Kristina Sanders).
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047; and Margaret A. Draper, Assistant Prosecutor ACCSB, 3914 C Court,
Ashtabula, OH 44004 (For Appellee – Ashtabula County Children Services Board).
Linda Silakoski, 8 North State Street, Suite 400, Painesville, OH 44077 (Guardian ad
litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Kristina Sanders, appeals from the judgment of the Ashtabula
County Court of Common Pleas, Juvenile Division, terminating temporary custody and
awarding legal custody of her daughter, K.Q., to a third party, Michelle Diemer. At issue
is whether the trial court abused its discretion when it entered the foregoing order. We
affirm.
{¶2} In April 2016, an abuse complaint was filed in Ashtabula County Juvenile
Court by Ashtabula County Children’s Services Board (“ACCSB”). A complaint for
temporary custody of K.Q. was subsequently filed, which was granted by the trial court.
On May 2, 2016, a motion for ex parte placement with a third party, Ms. Diemers, was
filed. The motion was granted on June 9, 2016. Prior to granting the motion, the court
held a hearing and found K.Q. to be a dependent child and ordered her to remain in the
custody of ACCSB. ACCSB later filed a motion to terminate temporary custody and
grant legal custody to Ms. Diemers. A hearing was held, at which the following facts
were adduced:
{¶3} K.Q., D.O.B. April 29, 2008, is the child of appellant and Ramone
Quinones. Appellant is the mother of five children, in total. None of the children are in
appellant’s care. K.Q. has certain developmental disabilities and is described as a low-
functioning, autistic child. Due to concerns regarding appellant’s ability to care for K.Q.,
she surrendered custody of the child to Roy Sanders, appellant’s husband from whom
she is separated.1 Mr. Sanders enrolled K.Q. in Happy Hearts School Program, a
facility that assists in the academic and occupational education of physically and
mentally disabled children, for the 2015-2016 school year. The facility is operated
through the Ashtabula County Board of Developmental Disabilities.
{¶4} K.Q. was eight years old at the beginning of the academic year and school
officials observed numerous concerns with K.Q.’s intellectual as well as physical
condition; to wit: she was non-verbal, had low weight, was unable to feed herself, she
drank from a bottle, and lacked toilet training. K.Q. was frequently absent in the fall of
2015 and stopped attending school in November 2015. She resumed school in March
1. The date appellant surrendered custody is not clear from the record.
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2015; even though the program provided transportation, K.Q. missed a total of 94 days
over the academic year. Due to the significant absences as well as the child’s physical,
occupational, and educational deficits, ACCSB opened a case file for K.Q. And, in April
2016, the abuse complaint was filed in the trial court along with a complaint for
temporary custody.2 On June 9, 2016, K.Q. was ultimately placed with Ms. Deimer, who
was her teacher at Happy Hearts.
{¶5} Jada Rosado, ongoing caseworker at ACCSB, commenced working with
the family in June 2016 and a case plan was developed for appellant. Pursuant to the
plan, appellant was to obtain mental health services, obtain and maintain housing, and
maintain an income. At the time of the hearing, appellant had neither obtained nor
maintained housing. She had applied and been accepted for housing through the
Ashtabula Metropolitan Housing Authority; because, however, appellant claimed she
required a three-bedroom home, she remained on a waiting list. Appellant was residing
with a family member during the pendency of the proceedings. Moreover, appellant was
not working and, while she had obtained a mental health evaluation and services, Ms.
Rosado noted her participation was sporadic.
{¶6} Ms. Diemer testified she first met K.Q. in November 2015, when the child
was enrolled at Happy Hearts. Ms. Diemer noted K.Q. was initially aggressive with
others; she would spit, scratch, head-butt, throw things, and destroy property. The
program’s director, Patrick Guliano, recommended K.Q. see a doctor concerning her
behavior. An appointment was ultimately made in March 2016. K.Q. did not attend
school between November 2015 and March 2016.
2. At the time the complaint was filed, K.Q. was residing with Mr. Sanders, along with nine other children,
including K.Q.’s four siblings, of whom Mr. Sanders had legal custody.
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{¶7} While in Ms. Diemer’s care, K.Q. developed a relationship with Ms.
Diemer’s two children. She learned to feed herself, gained weight, and used the toilet
independently. K.Q. additionally started speaking, learned to write her name,
acknowledge colors, numbers, and recognize various sight words. Ms. Diemer also
taught K.Q. to drink from a straw, take baths, and dress herself.
{¶8} Moreover, Ms. Diemer testified K.Q. is getting along with other students
and participating in school. According to Ms. Diemer, however, K.Q. does not deal well
with change. If an interruption in her routine occurs, she becomes withdrawn and
aggressive. And, Ms. Diemer testified, upon returning from visits with appellant, she is
visibly upset and does not listen.
{¶9} Mr. Guliano, Director of Happy Hearts, testified that, since K.Q. was
placed with Ms. Diemer, she has been absent only four times; moreover, she has
mastered her IEP goals. Before being under Ms. Diemer’s care, he testified, the
program was unable to place K.Q. on an IEP because her deficits were so profound she
was “un-scoreable” (i.e., she was incapable of participating in the evaluations necessary
to construct an IEP).
{¶10} At the time of the hearing, appellant was living in Conneaut, Ohio. She
testified the living arrangement was not permanent. She noted she did not have
custody of K.Q. when ACCSB became involved with the child. She recognized her case
plan goals and acknowledged she was approved for housing, but was on a waiting list;
moreover, she was receiving mental health services, but had transportation issues.
Appellant was in the process of purchasing a vehicle, but did not have a valid driver’s
license or insurance. Appellant asserted she was seeking employment, but was
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unemployed at the time of the hearing. Appellant conceded she was happy with the
progress K.Q. had made while in Ms. Diemer’s care.
{¶11} Linette Butts, appellant’s case manager, assisted appellant in her attempts
to find housing and employment. She provided transportation for appellant to visit her
children. According to Ms. Butts, appellant was diligently attempting to resolve her
housing and employment issues. Nevertheless, appellant had been seeking housing for
nearly a year and had only one part-time, seasonal job (with a tax company) since Ms.
Butts was assigned to her case. Ms. Butts also noted appellant had applied for Social
Security Disability, but was not yet receiving benefits.
{¶12} After hearing the evidence, the trial court granted legal custody of K.Q. to
Ms. Diemer, finding the placement was in the best interest of the child. Appellant now
appeals assigning the following error:
{¶13} “The trial court erred by awarding legal custody to a third-party non-
relative as such award of legal custody was not in the child’s best interest and not
based on a preponderance of the evidence and, therefore an abuse of discretion.”
{¶14} A juvenile court’s judgment granting legal custody is reviewed under an
abuse-of-discretion standard. In re C.R., 108 Ohio St. 3d 369, 2006-Ohio-1191, ¶25.
“Regarding this standard, we recall the term ‘abuse of discretion’ is one of art, connoting
judgment exercised by a court which neither comports with reason, nor the record.” In
re L.L.S., 11th Dist. Portage No. 2016-P-0068, 2017-Ohio-7450, ¶20.
{¶15} “When a child is adjudicated a dependent child, the juvenile court may, as
its dispositional order, place the child under the protective supervision or temporary
custody of a children services agency, or award legal custody of the child to a third
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party.” In re Yates, 11th Dist. Geauga No. 2008-G-2836, 2008-Ohio-6775, ¶29. “‘Legal
custody’ means 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). Although legal custody is
intended to be permanent in nature, R.C. 2151.42(B), it “is not as drastic a remedy as
permanent custody because a parent retains residual rights and has the opportunity to
request the return of the children.” In re Memic, 11th Dist. Lake Nos. 2006-L-049, 2006-
L-050, and 2006-L-051, 2006-Ohio-6346, ¶24 (citations omitted); In re C.R., supra, at
paragraph one of the syllabus.
{¶16} In considering a disposition of legal custody, R.C. 2151.353(A)(3) does not
list specific factors a court should consider in deciding what is in the child’s best interest.
In re B.P., 3rd Dist. Logan No. 8-15-07, 2015-Ohio-5445, ¶20, citing In re N.P., 9th Dist.
Summit No. 21707, 2004-Ohio-110, ¶23, citing In re Fulton, 12th Dist. Butler No.
CA2002-09-236, 2003-Ohio-5984, ¶11. This court has observed, however, “[w]hen a
court makes a custody determination under R.C. 2151.353, it must do so in accordance
with the best interest of the child standard as set forth in R.C. 3109.04.” Memic, supra,
at ¶26; see also Yates, supra, at ¶36. The trial court made detailed findings under the
best interest considerations set forth under R.C. 3109.04(F). We shall therefore
consider whether the court’s findings and conclusion are reasonable and consistent with
the record.
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{¶17} Appellant asserts the trial court abused its discretion in placing her in the
legal custody of Ms. Diemer because it was in K.Q.’s best interest to remain in the
temporary custody of ACCSB. She maintains she opposed the placement because she
is working on completing her case plan and, as such, the court should have extended
temporary custody towards the end of reunification. Appellant also contends the trial
court’s decision was unreasonable because it relied upon the guardian ad litem’s
recommendation that K.Q. be placed with Ms. Diemer. Appellant underscores,
however, that the guardian ad litem did not observe appellant and K.Q. interact.
Appellant further asserts the court did not give adequate weight to the bond K.Q. had
established with appellant as well as her four siblings. Appellant appears to claim that,
even though K.Q.’s siblings are in foster care, her best interest will be served if she
remains in the custody of ACCSB because there would be a possibility she could
actively interact with her full biological family during visits.
{¶18} We first point out appellant cites the best interest factors set forth under
R.C. 2151.414(D), which generally pertain to cases where the termination of parental
rights is the issue. While courts have noted these factors can be instructive, this court
has determined that subsection is inapplicable to legal custody placements under R.C.
2151.353(A)(3). In Yates, supra, this court observed:
{¶19} A plain reading of R.C. 2151.414(D) demonstrates that it does not
apply to the present situation[, i.e. an award of legal custody]. The
factors contained in R.C. 2151.414(D) become operative when the
“best interest” of the child is considered within the context of a
possible grant of “permanent custody” to a children services agency
or a “planned permanent living arrangement” with such an agency.
R.C. 2151.353(A)(4) and (5). Consistent with this reading of the
statute, the Ninth District * * * [in In re R.R, 9th Dist. Summit No.
23641, 2007-Ohio-4808,] merely characterized the factors
contained in R.C. 2151.414(D) as factors that “may provide
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guidance.” 2007-Ohio-4808, at ¶12. Nothing in the R.R. decision
suggests that consideration of these factors is mandatory.
{¶20} [Moreover,] prior decisions of this court * * * have held that “[w]hen
a court makes a custody determination under R.C. 2151.353, it
must do so in accordance with the best interest of the child
standard as set forth in R.C. 3109.04.” In re Ratliff, [171 Ohio
App.3d 55,] 2007–Ohio–1770, at ¶ 32 [(11th Dist.)], citing Memic,
2006–Ohio–6346, at ¶ 26 (citations omitted); In re Poling, 64 Ohio
St.3d 211, 1992-Ohio-144, at paragraph two of the syllabus
(“[w]hen a juvenile court makes a custody determination under R.C.
* * * 2151.353, it must do so in accordance with R.C. 3109.04”).
“Under this standard, there is no definitive test or set of criteria for
the court to apply, rather, a court ‘should consider the totality of the
circumstances, including, to the extent they are applicable, the best
interest factors set forth in R.C. 3109.04(F).” Memic, 2006–Ohio–
6346, at ¶ 26, citing In re Pryor (1993), 86 Ohio App. 3d 327, 336,
620 N.E.2d 973; In re Mitchell, 11th Dist. Nos.2002–L–078 and
2002–L–079, 2003–Ohio–4102, at ¶ 14 (“[i]n determining the best
interest of the child in a custody proceeding incident to a
dependency action, there does not appear to be any definitive test
or set of criteria to apply”).Yates, supra, at ¶35-36.
{¶21} Because appellant’s arguments are framed by reference to R.C.
2151.414(D), they do not directly attack the trial court’s analysis. Nevertheless, there is
some overlap between that subsection and R.C. 3109.04(F) and, as stated in Yates, a
court must consider the totality of the circumstances. Accordingly, appellant’s use of
the R.C. 2151.414(D) factors does not necessarily undermine the substantive points of
her arguments.
{¶22} We shall now address appellant’s arguments. With respect to appellant’s
compliance with her case plan, the trial court noted:
{¶23} Although mother’s case manager characterized mother’s efforts
towards her case plan goals as diligent, mother has failed to
adequately address these concerns as of the date of the hearing.
Mother has not obtained housing, and continued on a waiting list at
the time of the hearing despite being on a list for housing for at
least several months. Mother testified that she resides * * * in
Conneaut, Ohio, but that is not a permanent address. Mother lives
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in that residence with another family member who provides her with
some amount of support.
{¶24} Mother was not working but had sought employment. She has
worked seasonal jobs in the past. She testified that she supported
herself with disability income and food stamps, but subsequent
testimony clarified that her disability application remained pending
and mother had received no such benefits as of the date of the
hearing in this case.
{¶25} Mother has been addressing her need for transportation by making
plans for repairs for a recently purchased vehicle. Mother lacked a
valid driver’s license, and did not have insurance as of the hearing
date.
{¶26} Mother participated in a Signature Health evaluation but her
participation with recommended services, including therapy, was
sporadic. Mother had future appointments scheduled at the time of
the hearing. Mother had a case manager at that time as well, and
mother’s case manager testified favorably about mother’s
commitment and ability to parent.”
{¶27} The trial court thoroughly considered appellant’s efforts to meet her case
plan goals. Although appellant’s efforts do not directly bear on the child’s best interest,
they are certainly relevant to whether reunification is reasonably foreseeable and
plausibly possible. As the trial court identified, even though there was some evidence to
show appellant was making some effort, at the time of the hearing, none of the salient
issues had been fully addressed. In this respect, and even though mother vehemently
expressed her wish for temporary custody to persist, the trial court made the reasonable
determination that K.Q.’s best interest, especially in light of the child’s deficits and need
for consistency, would not be served by remaining in ACCSB’s temporary custody.
{¶28} In any event, the trial court fully considered the nuances of appellant’s
living situation and her ostensible ability and motivation to stabilize her life as required
by the case plan. Given appellant’s minimal actual progress, the court could reasonably
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conclude that keeping K.Q. in the temporary custody of ACCSB was, under the
circumstances, contrary to her best interest. In light of the significant advancements
K.Q. has experienced in the care of Ms. Diemer, the court did not abuse its discretion in
not giving appellant’s efforts greater weight.
{¶29} Next, appellant takes issue with the court’s reliance on the guardian ad
litem’s strong recommendation that Ms. Diemer be given legal custody. Appellant
asserts this reliance is misplaced because the guardian ad litem failed to observe her
interactions with K.Q. In considering the guardian ad litem’s recommendation, the court
noted K.Q.’s mental and physical condition when ACCSB became involved and K.Q’s
significant improvement since ACCSB and Ms. Diemer became involved. Even
assuming the guardian ad litem did not observe appellant’s interaction with K.Q., the
court was permitted to consider her recommendation and, in light of the remarkable
strides the child has made with Ms. Diemer, we fail to see how the recommendation
somehow lacked credibility or was otherwise problematic.
{¶30} Appellant finally asserts the trial court’s judgment was contrary to K.Q.’s
best interest because it “significantly hinders [her] relationship with her siblings.” Even
though K.Q. may have been raised with her siblings prior to ACCSB’s involvement,
there was no evidence presented that her interaction with the siblings was so
meaningful or important that her best interests would be undermined by granting Ms.
Diemer placement. Indeed, the quality and quantity of K.Q.’s interaction with her
immediate family was not explored in any great detail. Moreover, appellant
acknowledges that three of K.Q.’s siblings are currently in foster care. As such, even if
the agency retained temporary custody, it is unclear how appellant would, or even
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could, consistently coordinate interaction with all siblings. We therefore fail to see how
K.Q.’s previous interaction with appellant and her siblings militates against the trial
court’s determination.
{¶31} The trial court fully considered all relevant factors under R.C.
3109.04(F)(1). The court’s findings were supported by the evidence received at the
hearing and its legal conclusion was, under the totality of the circumstances, eminently
reasonable. We therefore hold the trial court did not abuse its discretion in in granting
legal custody to Ms. Diemer.
{¶32} Appellant’s assignment of error is without merit.
{¶33} For the reasons discussed in this opinion, the judgment of the Ashtabula
County Court of Common Pleas, Juvenile Division, is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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