In re A.S.

[Cite as In re A.S., 2014-Ohio-3035.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100530 and 100531
IN RE: A.S. AND C.S.
Minor Children
[Appeal by K.C., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 12904790 and AD 09921174
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: July 10, 2014
ATTORNEY FOR APPELLANT
Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, OH 44131
ATTORNEYS FOR APPELLEE
For C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph M. Cordiano
Assistant County Prosecutor
3955 Euclid Avenue
Cleveland, OH 44115
For Father
Patrick S. Lavelle
Van Sweringen Arcade
123 West Prospect Avenue
Suite 250
Cleveland, OH 44115
Guardian Ad Litem for Children
Amy K. Habinksi
Habinski Law Offices L.L.C.
11470 Euclid Avenue
Suite 342
Cleveland, OH 44106
Guardian Ad Litem for Mother
Daniel J. Bartos
Bartos & Bartos L.P.A.
20220 Center Ridge Road
Suite 320
Rocky River, OH 44116
TIM McCORMACK, J.:
{¶1} Appellant, K.C. (“Mother”), appeals the judgment of the Cuyahoga County
Court of Common Pleas, Juvenile Division, that granted legal custody of her minor
children, C.S. and A.S., to the children’s maternal grandmother, A.C. (“Grandmother”).
After a careful review of the record, we affirm the juvenile court’s determination.
Background
{¶2} This matter originated in November 2009, when the Cuyahoga County
Department of Children and Family Services (“CCDCFS” or “the agency”) filed a
complaint alleging neglect and a motion for temporary custody of C.S., who was born in
August 2009. The complaint alleged acts of domestic violence by Mother and Father
and lack of parenting skills of Mother. The court held an adjudicatory hearing in January
2010 and found C.S. to be dependent. Following a dispositional hearing in February
2010, the court granted temporary custody of C.S. to the agency. In July 2010, the
agency filed a motion to modify temporary custody to legal custody to Grandmother. On
August 10, 2011, the trial court denied the agency’s motion and terminated temporary
custody, and C.S. was returned to Mother’s custody, with protective supervision.
{¶3} Less than two weeks later, on August 22, 2011, the agency filed a motion to
modify protective supervision of C.S. to, once again, temporary custody and a motion for
pre-dispositional temporary custody. The motions were based on the agency’s belief that
C.S. was in immediate danger due to alleged contact with Father in violation of a prior
court order. That same day, the court ordered C.S. into the temporary care and custody
of CCDCFS, and the child was placed in Grandmother’s care. In December 2011,
following a dispositional hearing, the trial court found that there had been “some
compliance” with Mother’s case plan and progress had been made in allowing the child to
remain in the home. After reminding Mother to abide by the court’s order of no contact
with Father, the court denied the agency’s motion for temporary custody. The agency
filed objections to the court’s order, which were overruled on April 13, 2012. C.S. was
returned to Mother’s legal custody with protective supervision.
{¶4} Prior to C.S.’s return to protective supervision with Mother, in March 2012,
A.S. was born. Approximately two weeks later, the agency filed a complaint for
dependency and temporary custody of A.S. The complaint alleged continued acts of
domestic violence, Father’s anger management issues, the dependency adjudication of
another child, and the parents’ failure to remedy the conditions that caused the other child
to be removed from the home. Following an adjudicatory hearing, A.S. was adjudicated
dependent and ordered into the agency’s temporary custody on August 30, 2012. In the
meantime, the agency filed a motion to modify the protective supervision of C.S. to
temporary custody on August 13, 2012. Mother filed a motion for legal custody of both
children on August 22, 2012. On October 4, 2012, the trial court held a hearing, during
which time it continued its prior order for protective supervision and allowed the agency
additional time in which to file alternative dispositional motions.
{¶5} On October 19, 2012, CCDCFS filed two motions: (1) a motion to modify
legal custody of C.S. to Mother with protective supervision to legal custody of C.S. to
Grandmother; and (2) a motion to modify temporary custody of A.S. to the agency to
legal custody of A.S. to Grandmother. Mother filed another motion for legal custody of
both children on February 15, 2013, and a motion for increased visitation on March 12,
2013.
{¶6} On September 6, 2013, the court held a dispositional hearing on the
agency’s motions. Present for the hearing were CCDCFS social worker, Susan Frate;
GAL for the children, Amy Habinski; and Mother, with GAL Daniel Bartos. Also
present were Mother’s attorney, the prosecuting attorney, and Father’s attorney.
{¶7} Following the hearing, the court granted the agency’s motions and awarded
legal custody of C.S. and A.S. to Grandmother. The magistrate found that substantial
progress on the case plan by Mother and Father had not been made and progress had not
been made in alleviating the cause for removal of the children from the home. In finding
the continued wardship of the children not in the children’s best interest, the magistrate
committed the children to the care and custody of Grandmother. The magistrate further
found that the agency had made reasonable efforts to make it possible for the children to
return to Mother. The magistrate stated, however, that both parents were referred for
parenting, mental health services, and domestic violence/anger management classes, but
the services were not effective. On September 24, 2013, the trial court approved and
adopted the magistrate’s decision and awarded legal custody of the children to
Grandmother, who filed a statement of understanding and indicated that she was willing
to assume legal custody. Mother appeals from this decision.
Substantive Facts
{¶8} CCDCFS filed its original complaint alleging the neglect of C.S. based
upon concerns of domestic violence and the lack of proper parenting. The second
complaint was filed after the birth of A.S., alleging the same concerns. Susan Frate,
CCDCFS social worker, testified that the agency has maintained an open and active case
with Mother since 2010, beginning with C.S. and then continuing with A.S., due to a
“lengthy ongoing toxic relationship between [M]other and [F]ather,” and “frequent police
intervention.”
{¶9} Frate testified that there were approximately 80 to 100 occasions
concerning a domestic violence dispute between Mother and Father that involved police
intervention. Two of the calls made to the police department were placed within one
month of the trial held in September. According to Frate, over the course of the three
years of the agency’s involvement, the complaints included Father’s physical violence,
such as spitting in Mother’s face, shoving her into a dresser, and twisting her arm, as well
as Father verbally threatening to kill Mother and to “bash her head into a steering wheel.”
{¶10} Tanya Sirl, police sergeant with the Parma Heights Police Department,
testified concerning her personal knowledge of Mother and Father’s lengthy history with
the police department. Sergeant Sirl testified that she has known Mother for
approximately 15 years and, through her employment, has personal knowledge of the
violent relationship between Mother and Father since 2008 or 2009. She stated that their
relationship is very volatile and she often received calls to the department concerning
their harassment of each other and their screaming arguments, including a time when
Mother was pregnant with C.S. and a time after C.S.’s birth, when Mother was holding
the child in her arms. Sergeant Sirl testified that Mother exhibited the classic signs of a
victim of domestic violence, refusing to leave her abuser and declining to prosecute
Father for any alleged violence against her.
{¶11} Grandmother also observed the violent relationship between Mother and
Father. She testified that the violence escalated after C.S. was born.
{¶12} Due to the agency’s concerns with the domestic violence and Mother’s
parenting in the home, the children were placed in the care of Grandmother, where they
essentially lived for more than two years. A.S. has never lived with Mother. The
agency developed a case plan in order to facilitate reunification with Mother. The case
plan consisted of three objectives: domestic violence services, parenting services, and
mental health services.
{¶13} Mental health services were offered for both parents. Father had been
diagnosed with Intermittent Explosive Disorder, and Mother is bipolar. Frate testified
that mental health services were offered because of the agency’s concerns regarding the
parents’ volatile behavior, Mother’s erratic mood swings and tantrums, and frequent calls
to the police department that led to several domestic violence charges on both parents.
{¶14} Father was referred to Centers for Families and Children and The Free
Clinic for a psychological evaluation. Because Father was a previous client, the center
recommended he continue with the medication he had previously been prescribed. Frate
indicated that while it appeared that Father was taking his medication for a period of time,
he did not maintain compliance with his medication or counseling. She testified that
Father’s behavior continued to be explosive and volatile, adding that “[h]e’s not a
pleasant person to be around.” Although Father visited with the children on occasion, he
did not visit consistently in a structured manner.
{¶15} Mother was already involved with the center when Frate became involved.
Frate testified that Mother was seeing a mental health counselor and receiving medication
from the center.
{¶16} Mother was referred to the Family Guidance Center and the YWCA for
domestic violence counseling on four occasions. Frate testified that Mother has failed to
benefit from the services because she continues to engage in a relationship with her
abuser, Father, and she allows him to live in her home, thus failing to demonstrate the
ability to protect herself or her children. Frate testified that Mother failed to complete
the program successfully at the center, stating that she did not complete the individual
counseling at the Domestic Violence Center, she did not complete her homework, and she
denied help with her homework when offered by Frate and the domestic violence service
provider.
{¶17} With respect to parenting services, Mother was referred to a parenting class
that she successfully completed. However, the agency referred Mother to the Early
Intervention Program that provided one-on-one in-home services because C.S. had
exhibited behavioral problems that Mother had difficulty controlling. Frate testified that
although Mother has done well in the class and has participated, she does not believe
Mother can handle parenting full time. Frate stated that Mother becomes very frustrated,
does not take the initiative in visiting with her children, and when she does visit, it is
sporadic. According to Frate, despite the fact that Mother lives across the hall from
Grandmother’s home, in the same apartment complex where the children reside, Mother
“[visits] when she feels like it and does what she wants to do,” and she doesn’t visit
unless she’s asked to visit with her children.
{¶18} Frate testified that the children are doing well in Grandmother’s care. Their
health is good, and they are progressing well. In addition, Grandmother is able to
provide a safe and stable environment for the children. Grandmother has been part of the
court-ordered safety plan, providing a safe environment for the children during domestic
violence incidents between Mother and Father. Grandmother indicated that she
understands Mother’s rights concerning visitation with the children and she understands
her own responsibilities in caring for the children. Grandmother is willing to become
legal custodian of the children, and she believes it is in the best interest of the children to
remove them from the violence in Mother’s home.
{¶19} The children’s guardian ad litem, Amy Habinski, testified that in her
opinion, raising the children and providing them with a safe and stable environment is not
a priority for either parent. She stated that “there is no reservation [in her mind] that
legal custody to [Grandmother] is in the best interest of these children.”
Assignment of Error
The lower court erred when it granted legal custody of A.S. and C.S. under
the terms of [R.C. 2151.353].
Legal Custody
{¶20} In her sole assignment of error, Mother argues that the trial court erred when
it granted legal custody of her minor children to Grandmother. She claims that the trial
court’s decision was an abuse of discretion because the evidence showed that Mother had
completed her case plan services.
{¶21} Parents have a constitutionally protected interest in raising their children.
In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15, citing Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That interest,
however, is “‘always subject to the ultimate welfare of the child.” Id., quoting In re B.L.,
10th Dist. Franklin No. 04AP-1108, 2005-Ohio-1151, ¶ 7.
{¶22} Under R.C. 2151.353(A)(3), the court may award legal custody of a child
who has been adjudicated abused, neglected, or dependent, to any person who filed a
motion requesting legal custody of the child prior to the dispositional hearing. Assuming
the person seeking legal custody has complied with any statutory requirements, the
court’s authority to award legal custody under this statute “is limited only by the best
interest of the child.” Id.; In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶
3. The best interest of the child is “of paramount concern” when making custody
determinations. In re M.J.M. at ¶ 14.
{¶23} Legal custody is defined as follows:
[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); In re E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 11.
{¶24} Legal custody is significantly different than the termination of parental
rights in that, despite losing legal custody of a child, the parents of the child retain
residual parental rights, privileges, and responsibilities. In re G.M., 8th Dist. Cuyahoga
No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C. 2151.353(A)(3)(c). In such a case, a
parent’s right to regain custody is not permanently foreclosed. In re M.J.M., 8th Dist.
Cuyahoga No. 94130, 2010-Ohio-1674, at ¶ 12. For this reason, the standard the trial
court uses in making its determination is the less restrictive “preponderance of the
evidence.” Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751
N.E.2d 552 (7th Dist.). “Preponderance of the evidence” means evidence that is more
probable, more persuasive, or of greater probative value. In re C.V.M., 8th Dist.
Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
{¶25} Unlike permanent custody cases in which the trial court is guided by the
factors outlined in R.C. 2151.414(D) before terminating parental rights and granting
permanent custody, R.C. 2151.353(A)(3) does not provide factors the court should
consider in determining the child’s best interest in a motion for legal custody. In re
G.M. at ¶ 15. We must presume that, in the absence of best interest factors in a legal
custody case, “the legislature did not intend to require the consideration of certain factors
as a predicate for granting legal custody.” Id. at ¶ 16. Such factors, however, are
instructive when making a determination as to the child’s best interest. In re E.A. at ¶ 13.
The best interest factors include, for example, the interaction of the child with the child’s
parents, relatives, and caregivers, the custodial history of the child, the child’s need for a
legally secure permanent placement, and whether a parent has continuously and
repeatedly failed to substantially remedy the conditions causing the child to be placed
outside the child’s home. R.C. 2151.414(D).
{¶26} Because custody determinations “‘are some of the most difficult and
agonizing decisions a trial judge must make,’” a trial judge must have broad discretion in
considering all of the evidence. In re E.A., 8th Dist. Cuyahoga No. 99065,
2013-Ohio-1193, at ¶ 10, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674
N.E.2d 1159 (1997). We therefore review a trial court’s determination of legal custody
for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846(1988). An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶27} In this case, the record shows that while Mother was attempting to make
progress toward her case plan, including seeing a mental health counselor and taking her
medication, she failed to successfully complete the requirements of the domestic violence
services. She did not complete the individual counseling at the Domestic Violence
Center, she did not complete her homework, and she denied help with her homework
when offered by the social worker and the domestic violence service provider.
{¶28} More significantly, Mother failed to remedy the domestic violence concerns
that caused the initial removal of the children from her home. She maintained a
relationship with Father, who did not maintain compliance with his medication or mental
health counseling and continued to be explosive and volatile. The evidence showed that
this ongoing relationship between Mother and Father resulted in approximately 80 to 100
police interventions, two of which occurred within one month of the trial. The fact that
Mother still allowed Father to live with her, despite Father’s continued violence and the
agency’s three-year involvement, demonstrates that any domestic violence services she
had been receiving were clearly not effective. As a result, Mother failed to demonstrate
the ability to protect herself or her children.
{¶29} Further, the social worker testified that she does not believe Mother can
handle parenting full time. She stated that Mother becomes very frustrated with her
children, does not take the initiative in visiting with her children, and when she does visit,
it is sporadic. The children’s GAL supported the social worker’s testimony in reporting
that Mother’s behavior demonstrated that raising her children and providing a safe
environment for them is not a priority.
{¶30} Mother argues that the evidence showed she was “doing well” with
parenting skills, satisfied the mental health portion of the case plan, and attended some of
the domestic violence classes. The successful completion of a case plan, however, “‘is
not dispositive on the issue of reunification.’” In re W.A.J., 8th Dist. Cuyahoga No.
99813, 2014-Ohio-604, at ¶ 19, quoting In re C.C., 187 Ohio App.3d 365,
2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.). “A parent can successfully complete
the terms of a case plan yet not substantially remedy the conditions that caused the
children to be removed — the case plan is simply a means to a goal, but not the goal
itself.” Id.{¶31} Therefore, even if Mother had shown that she completed her case plan,
substantially or otherwise, the evidence demonstrated that Mother had not remedied the
condition that initially caused the children to be removed from her home.
{¶32} Moreover, we are mindful that in making custody determinations, the trial
court’s principal concern is the children’s best interest. While completing her case plan
may be in Mother’s best interest, this is not a factor in determining what is in the
children’s best interest. In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674,
at ¶ 14.
{¶33} Given the evidence presented at trial, we cannot say that the trial court’s
determination that it would be in the best interest of the children to be placed in the legal
custody of Grandmother was arbitrary or unreasonable. The evidence shows that Mother
has failed to provide a safe and stable home for herself or her children. She continued to
maintain a volatile relationship with Father, allowing him to live with her, despite
repeated incidents of violence and police intervention, some of which occurred in the
presence of C.S., and continued involvement of CCDCFS. Such violence throughout the
agency’s involvement included physical attacks as well as verbal threats to kill Mother
and “bash her head.” The violence escalated with the birth of C.S. and continued after
the birth of A.S.
{¶34} While Mother expressed an interest in custody of her children, the evidence
shows that her relationship with her children was not a priority. She became frustrated
with her children and did not initiate visits with them, despite the children’s accessibility
across the hall from her own apartment. Mother’s visits were sporadic and occurred only
when asked to visit.
{¶35} Furthermore, in contrast, the evidence shows that Grandmother has provided
a safe and stable home for C.S. and A.S. The children have lived with Grandmother for
more than two years (A.S.’s entire life), and Grandmother has been part of the
court-ordered safety plan, protecting the children from domestic violence incidents
between Mother and Father. The evidence also shows that the children are doing well
under Grandmother’s care and she has provided for their basic needs. Finally, although
Mother would lose legal custody of the children, she would continue to have access to
them because Grandmother lives directly across the hall from Mother and Grandmother
supports Mother’s visitation of the children.
{¶36} In light of the above, we find that the trial court’s decision was supported by
a preponderance of the evidence and was in the best interest of the children. We
therefore find that the court’s award of legal custody to Grandmother was not an abuse of
discretion.
{¶37} Mother’s sole assignment of error is overruled.
{¶38} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR