In re A.V.O.

[Cite as In re A.V.O., 2012-Ohio-4092.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: A.V.O. C.A. Nos. 11CA010115
N.H. 11CA010116
O.H. 11CA010117
A.H. 11CA010118
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE Nos. 10JC297659
10JC297660
10JC297661
10JC297662
DECISION AND JOURNAL ENTRY
Dated: September 10, 2012
BELFANCE, Judge.
{¶1} Appellant, Amber O. (“Mother”), appeals from a judgment of the Lorain County
Court of Common Pleas, Juvenile Division, that placed her oldest minor child in the legal
custody of the maternal grandmother and placed her three youngest children in the legal custody
of their paternal grandfather. For the reasons that follow, this Court affirms.
I.
{¶2} Mother is the natural mother of one daughter, A.O., born February 18, 2003. The
father of A.O. has never actively participated in these proceedings. Mother also has three sons,
N.H., born August 1, 2007; O.H., born February 13, 2009; and A.H., born January 13, 2010. The
boys’ father participated in the trial court proceedings but is not a party to the appeal.
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{¶3} On May 19, 2010, Lorain County Children Services (“LCCS”) filed complaints
alleging that A.O. and N.H. were abused, neglected and dependent and that O.H. and A.H. were
neglected and dependent children. The agency alleged that there was drug abuse and domestic
violence in the home, that Mother had untreated mental health problems and that she neglected
the children and physically abused the two oldest children.
{¶4} A.O. and N.H. were later adjudicated abused, neglected, and dependent children.
O.H. and A.H. were adjudicated neglected and dependent children. Although the children were
placed with various different relatives during the trial court proceedings, A.O. was ultimately
placed with her maternal grandmother and all three boys were placed with their paternal
grandfather. LCCS eventually moved the trial court to place A.O. in the legal custody of the
grandmother and to place the boys in the legal custody of their grandfather. Alternatively,
Mother moved the trial court to return all four children to her legal custody.
{¶5} Following hearing before a magistrate, the magistrate decided that it was in the
children’s best interests for the respective grandparents to be awarded legal custody. The trial
court adopted the magistrate’s decision and entered judgment. Mother filed an objection to the
magistrate’s decision, asserting that it was not supported by the weight of the evidence, which
the trial court later overruled. Mother appeals and raises two assignments of error.
I.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS
DISCRETION, WHEN IT ADOPTED THE DECISION OF THE
MAGISTRATE GRANTING LEGAL CUSTODY OF A.V.O. TO THE
MATERNAL GRANDMOTHER AND N.N.H., O.H., AND A.H. TO THE
PATERNAL GRANDFATHER, WHERE THE PROPOSED LEGAL
CUSTODIANS HAD FAILED TO EXECUTE A STATEMENT OF
UNDERSTANDING FOR LEGAL CUSTODY AS REQUIRED BY [R.C.]
2151.353(A)(3).
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{¶6} Mother contends that the trial court erred in granting legal custody to the maternal
grandmother and the paternal grandfather because the proposed legal custodians did not file a
statement of understanding with the court. R.C. 2151.353(A)(3) provides that the court should
award legal custody to a person identified by one of the parties as a proposed legal custodian
only if the person identified signs a statement of understanding that includes statements that the
proposed custodian intends to and is able to assume responsibility for the child; that the
custodian’s responsibility is intended to be permanent and continues until the child reaches the
age of majority, or longer if the child is still actively pursuing a high school diploma or
equivalent; that the child’s parents retain residual rights and what those rights include; and that
the proposed custodian must be present in court to affirm his or her intent and understanding of
this responsibility and “to answer any questions that the court or any parties to the case may
have.” R.C. 2151.353(A)(3)(a)-(d).
{¶7} LCCS first addresses this argument on the merits, arguing that the requirements of
R.C. 2151.353(A)(3) were inapplicable here because it filed its motions for legal custody to the
grandparents pursuant to R.C. 2151.415(3), which does not explicitly require a statement of
understanding. LCCS cites no case law to support its statutory interpretation. Moreover, this
Court has never addressed this legal issue, and there is a lack of consensus among the appellate
districts as to the interpretation of this aspect of R.C. 2151.353(A)(3). E.g., In re R.K., 5th Dist.
No. CT2012-006, 2012-Ohio-2739, ¶ 22-27; In re G.M., 8th Dist. No. 95410, 2011-Ohio-4090, ¶
10-12.
{¶8} This Court need not determine whether a statement of understanding was required
in this case, however, because Mother failed to preserve the issue for appellate review. Mother
did not raise an objection to the lack of a statement of understanding by the proposed legal
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custodians at a time when the alleged error could have been corrected. She failed to object to the
lack of a statement of understanding prior to the dispositional hearing, during the hearing, or
through her written objections to the magistrate’s decision. See Juv.R. 40(D)(3)(b)(iv). By
failing to raise a timely objection, Mother has forfeited all but plain error. Id.{¶9} To establish plain error, Mother must demonstrate that the trial court’s failure to
require the proposed legal custodian to submit a written statement of understanding affected “the
basic fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116(1997), syllabus. Mother has failed to show that the absence of written statements from the
proposed custodians affected the “basic fairness, integrity, or public reputation” of these
proceedings.
{¶10} Although neither the grandmother nor the grandfather filed a statement of
understanding as set forth in R.C. 2151.353(A)(3), they each appeared and testified at the legal
custody hearing and were subject to cross-examination by the parents and the guardian ad litem.
R.C. 2151.353(A)(3)(d). Each proposed custodian testified about their intentions to provide a
home for the respective children and their ability to do so. Mother and Father cross-examined
each grandparent. Nothing in the testimony of either grandparent suggests that they did not fully
understand the commitment that they were making to the children as legal custodians or that they
would be unable to perform that responsibility. In re B.J., 12th Dist. No. CA2011-10-192, 2012-
Ohio-3127, ¶ 35-36. Consequently, Mother has failed to demonstrate that the trial court’s failure
to require written statements of understanding from the proposed custodians, even if error, rose
to the level of a plain error. Mother’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN
OVER THE OBJECTIONS OF THE MOTHER, IT ADOPTED THE DECISION
OF THE MAGISTRATE GRANTING LEGAL CUSTODY OF A.V.O. TO THE
MATERNAL GRANDMOTHER, AND N.N.H, O.H., AND A.H. TO THE
PATERNAL GRANDFATHER, WHERE SUCH JUDGMENT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} Mother’s second assignment of error is that the trial court’s decision was not
supported by the evidence presented at the legal custody hearing. 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 non-parent is based solely on the best interest of the child. In re
D.R., 9th Dist. No. 21218, 2003-Ohio-2852, ¶ 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). “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, ¶
23, citing In re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, ¶ 11.
{¶12} Furthermore, 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, 4th Dist. No. 00CA12, 2001 WL 802209, *7 (Mar. 26, 2001),
quoting former 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 discretion.
In re M.S., 9th Dist. No. 22158, 2005-Ohio-10, ¶ 11. An abuse of discretion implies that the trial
court’s attitude is “unreasonable, arbitrary, or unconscionable.” (Internal quotations and citations
omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
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{¶13} Mother asserts that all of the children should have been placed in her legal
custody instead of with their respective grandparents. Because the children were placed in two
different homes, we will discuss the legal custody of the daughter, A.O., separately from the
legal custody of the sons, N.H., O.H. and A.H.
Legal Custody of A.O.
{¶14} Although Mother asserts that A.O. should have been returned to her home and
placed in her legal custody, the record fully supports the trial court’s conclusion that legal
custody to the maternal grandmother was in the best interest of the child. A.O., who was eight
years old at the time of the legal custody hearing, had been living outside Mother’s home for
almost one year, living with several different relatives. At the time of the hearing, A.O. had been
living with her maternal grandmother for approximately three months. According to the
caseworker, the grandmother was meeting all of the child’s needs. A.O. felt loved and secure in
her grandmother’s home and had expressed her desire to the caseworker and the guardian ad
litem to remain there. Although A.O. told them that she loved Mother, she did not want to return
to her home and was even reluctant to visit there overnight because she did not feel comfortable
and usually had nightmares.
{¶15} A.O. had been removed from Mother’s home because she had been abused and
neglected by Mother. After she was removed from Mother’s home, A.O. confided in her
grandmother, the caseworker, and the guardian ad litem that Mother had often physically abused
her, including choking her until she vomited, slamming her head, and hitting and bruising her.
{¶16} Although Mother had not been diagnosed with any mental illness, LCCS was
concerned that she had not been honest during her mental health assessment and that she had
undiagnosed problems that were not being addressed. Specifically, several witnesses testified
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about observing Mother’s mood swings, outbursts of uncontrolled anger and inappropriate
behavior around all four of her children. Mother often got angry and behaved inappropriately
with the children, the relatives who had temporary custody of them, and the father of the boys
during the visits.
{¶17} Mother also had a pattern of involving herself with violent and abusive men,
including the father of the boys, who resided with her at the time the children were removed.
Despite taking domestic violence classes and telling LCCS that she would stay away from
violent men, Mother told the caseworker several times throughout this case the father of the boys
continued to physically abuse her or threaten to hurt her. Although the caseworker tried to
encourage Mother to call the police or to get a court order to protect herself from further abuse,
she never did so. In the opinion of the caseworker and the guardian ad litem, Mother had made
no progress during the past year in improving her ability to protect herself and her children from
violence.
{¶18} Moreover, Mother and A.O. did not have a close relationship. Mother did not
visit A.O. on a regular basis, and A.O. had expressed a lack of desire to visit with Mother. When
Mother did visit with A.O., there was little interaction between them. Numerous witnesses
testified that they never saw any affection between Mother and A.O. Mother had shown no
interest in the fact that A.O. was struggling in school. She did not help A.O. with her school
work or attend school meetings. Although A.O. was at risk of being retained in the same grade,
with the help of tutoring by the grandmother and the guardian ad litem, she made enough
progress to be promoted to the next grade.
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Legal Custody of N.H., O.H., and A.H.
{¶19} Mother’s sons were placed in the legal custody of the paternal grandfather, who
lived in Cincinnati. They had been living in his home for approximately eight months at the time
of the hearing. The caseworker and guardian ad litem agreed that the grandfather was an
appropriate custodian and supported his request for legal custody. His home had bedrooms
established for the boys, a big yard where they could play, and they had assimilated into his
home where he lived with his own nine-year-old son.
{¶20} The grandfather also testified that Mother continued to exhibit anger and other
inappropriate behavior in the presence of her sons. The boys had seen her yelling at him or
others and threatening to harm him. He described the “kind of scary” experience when she drove
angrily behind him when he took the children to get something to eat, apparently because she
was angry about something that occurred during their exchange of the children.
{¶21} LCCS was further concerned that Mother showed a lack of dedication to her
young boys. At the time of their removal, the boys were very young, ranging in age from three
months to three years old. During the next year that they lived outside Mother’s home, however,
she had little ongoing contact with them. Due to the distance between Cincinnati and Lorain
County, the grandfather had agreed to drive the boys to visit in Lorain County with Mother and
A.O. twice a month. Although LCCS tried to encourage Mother to drive down to Cincinnati on
the alternate weekends, she refused to do so, even though she had transportation. Instead, she
tried to convince the grandfather to drive them to Lorain County more often, but LCCS would
not allow the young children to make such a long car trip more than twice a month.
Consequently, Mother chose to see them only twice a month.
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{¶22} When the grandfather brought the boys to Lorain County, they visited with
Mother and their sister, A.O. Witnesses who observed the visits testified that Mother did not
interact much with any of her children. Instead, she spoke to the adults present or talked or
texted on her cell phone. The guardian ad litem and family members expressed concern that
Mother did not seem to miss the children during the year that they were gone from her home, nor
did she express love for them or dedication to them. They all further opined that Mother did not
have the ability to parent any of the children and that their best interests would be served by
remaining in their current placements.
{¶23} Given all of the evidence before the trial court, it could reasonably conclude that
it was in the best interests of A.O. to be placed in the legal custody of her maternal grandmother
and for the boys to be placed in the legal custody of their paternal grandfather. Therefore, the
trial court did not abuse its discretion by granting the grandmother legal custody of A.O. and the
grandfather legal custody of N.H., O.H., and A.H. Mother’s second assignment of error is
overruled.
III.
{¶24} Mother’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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
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 to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR
APPEARANCES:
HOLLACE B. WEIZEL, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and AMY L. PRICE, Assistant Prosecuting Attorney,
for Appellee.