In re E.G.

[Cite as In re E.G., 2017-Ohio-2584.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: E.G. C.A. No. 16CA0075-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2015 07 NE 0032
DECISION AND JOURNAL ENTRY
Dated: May 1, 2017
SCHAFER, Presiding Judge.
{¶1} Appellant M.G. (“Mother”) appeals the judgment of the Medina County Court of
Common Pleas, Juvenile Division, that granted legal custody of the child E.G. to the paternal
grandparents (“Grandparents”). This Court affirms.
I.
{¶2} Mother and the child’s father (“Father”) were married for a brief period of time
and had three children together. E.G. (d.o.b. 2/23/08) was their firstborn child. One of their
three children died at the age of five months from an undetermined cause. After the parents
divorced, Father received custody of E.G. and the third child. Mother moved to New York with
her son by another man. Thereafter, the parents’ third child also died from an undetermined
cause. Instead of reporting the child’s death and properly addressing the situation, Father left the
child’s body in a crib and told E.G. and Grandparents that the other child was at daycare. The
deceased child’s body was found by a utility worker who reported it to the police. Father was
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arrested, and Medina County Job and Family Services (“JFS”) took E.G. into care. The family
had a prior history with the public child welfare agencies in Cuyahoga County and New York
state, and E.G. had been removed from the family home twice before.
{¶3} JFS filed a complaint alleging that E.G. was neglected and dependent on multiple
bases. After a hearing, the agency obtained predispositional custody and placed the child with
Grandparents, with whom she had resided when she was previously removed from the home. At
the adjudicatory hearing, JFS dismissed some of the allegations. The juvenile court subsequently
adjudicated E.G. neglected as to Father and dependent as to both Father and Mother.
{¶4} After being granted leave to intervene, Grandparents filed a motion for legal
custody. At the initial dispositional hearing, the parties agreed to an award of temporary custody
to the agency, and the court held the motion for legal custody in abeyance. The juvenile court
adopted the case plan submitted by JFS.
{¶5} At the next two review hearings, the juvenile court continued E.G. in the
temporary custody of JFS, and the child remained in her placement with Grandparents. Eleven
months after filing its complaint, JFS also filed a motion for legal custody to Grandparents.
Mother filed a motion to extend temporary custody for six months, which Grandparents opposed.
The matter came before the juvenile court for final dispositional hearing, after which the court
granted legal custody to Grandparents and denied Mother’s motion for a six-month extension of
temporary custody. Mother filed a timely appeal in which she raises two assignments of error
for review.
II.
Assignment of Error I
The trial court erred in granting [legal] custody to paternal grandparents as
it was against the manifest weight of the evidence[.]
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{¶6} Mother argues that the juvenile court’s award of legal custody of E.G. to
Grandparents was against the manifest weight of the evidence. This Court disagrees.
{¶7} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶8} “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.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-
1330, ¶ 12. The statutory scheme regarding an award of legal custody does not include a specific
test or set of criteria, but Ohio courts agree that the juvenile court must base its decision to award
legal custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880,
2016-Ohio-7994, ¶ 18, citing In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In
that regard, the juvenile court is guided by the best interest factors enunciated in R.C.
2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-
Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those
factors include the interaction and interrelationships of the child, the child’s wishes, the custodial
history of the child, the child’s need for permanence, and whether any of the factors in R.C.
2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist.
4
Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 16. In addition, the juvenile court may also look
to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos.
15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. While some factors overlap with those above,
others include the child’s adjustment to her environment; the mental and physical health of all
persons involved; the parents’ history of providing support and honoring companionship orders;
certain indicia of violence, abuse, or neglect in any household involved; and whether a parent
plans to or has established a residence outside of Ohio. R.C. 3109.04(F)(1).
{¶9} Mother and Father had an on again/off again relationship for ten years. E.G. was
born several years before her parents got married in 2012. In addition, Mother had a son by
another man prior to her marriage to Father. Mother has a history of drug abuse, and her son was
born with cocaine in his system. Although the record is unclear as to the exact reason, there was
evidence that both E.G. and her brother were removed from either Mother’s or both parents’ care
and placed in foster care while they were living in New York. Mother and Father subsequently
relocated to Cuyahoga County, Ohio. Mother gave birth to a daughter in October 2012. Based
on prior referrals to the agency, Cuyahoga County Children and Family Services (“CCCFS”)
worked with the family after the birth of Mother’s third child.1 That child died at the age of five
months for indeterminable reasons. Mother was subsequently hospitalized for homicidal
thoughts against Father, although she claimed that she entered the hospital for psychiatric care
simply because she “needed a break.” She was diagnosed with bipolar disorder. She declined to
take her prescribed medications, however, because she did not want the stigma of a mental
illness diagnosis.
1
From 2012 through 2015, CCCFS received ten or eleven referrals regarding the parents’
children.
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{¶10} In March 2014, shortly after Mother and Father had their third daughter, CCCFS
removed E.G. from the home based on referrals that there was drug abuse in the home by both
parents, and that E.G. had missed a lot of school. Grandparents were in Florida at the time and
unable to accept immediate placement. They informed the agency, however, that they were
willing to accept placement of the child in a few months at the end of the school year, because
they did not want to disrupt E.G. from yet another school. At the time of her removal, she had
already been in two schools and was attending a third while with the foster family. E.G. spent
approximately nine months in Grandparents’ home during the pendency of the CCCFS case.
{¶11} Mother and Father were divorced in early December 2014. E.G. was not a subject
of the divorce decree, because she was a subject of the pending juvenile
dependency/neglect/abuse2 case. E.G.’s sister, however, was not subject to the jurisdiction of the
juvenile court. Mother read a portion of the parties’ divorce decree into the record. The
provision indicated her agreement that, because she was not compliant with case plan objectives
in the juvenile case, she posed a potential threat to her daughter’s (E.G.’s sister) health, safety,
and welfare. And because Father was compliant, she agreed that he would receive custody of
that child. Mother admitted that she signed the agreement included in the divorce decree, but
denied having ever read it. Mother was aware, however, that Father obtained custody of that
child from the divorce. He further regained legal custody of E.G. through the CCCFS case based
on his successful completion of case plan objectives and Mother’s failure to comply with hers.
Father moved to Medina County with the girls. Mother relocated to New York with her son in
January 2015. It is unclear from the record exactly how much contact Mother had with E.G.
2
We use this phrase generically, because the record does not contain the child’s precise
adjudication.
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from January through July 2015, when JFS filed the instant complaint; but it appears to have
been quite limited.
{¶12} In July 2015, E.G. was removed from a parent’s custody for a third time by a
child welfare agency. Her removal was based on the discovery of her sister’s corpse in Father’s
apartment and the unknown whereabouts of Mother. E.G. was immediately placed with
Grandparents, where she remained during the 12-month pendency of this case.
{¶13} Grandparents facilitate and supervise telephone visitations between Mother and
the child. They were agreeable when Mother requested adding a third weekly telephone call.
Those visits generally go well, although Mother has had to be reminded several times not to
discuss certain matters beyond the boundaries established by JFS and the child’s counselor.
Those matters involved discussions regarding times Mother expected to visit the child or obtain
reunification. The child has a good relationship with both her younger brother and Mother,
whom she sees approximately once a month.
{¶14} By all accounts, E.G. has thrived in Grandparents’ care. The caseworker,
guardian ad litem, child’s prior counselor, and school teacher all testified regarding the apparent
close bond between the child and Grandparents. The child’s needs are well met; she attends
school regularly and excels academically; she is involved in age-appropriate extracurricular
activities; she has adapted socially and is well-liked by her peers; and she has developed the
skills necessary to cope with the stressors, disruptions, and chaos in her short life. Despite three
removals from her parents’ custody, multiple relocations during her life, the death of two sisters,
her mother’s relocation out of state, and her father’s incarceration, E.G. has adjusted well to her
environment in Grandparents’ care.
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{¶15} In the meantime, Mother has failed to demonstrate that she can provide the
needed stability for E.G. Although the caseworker testified that Mother has generally complied
with her case plan objectives, this Court has repeatedly recognized that, while relevant to the
juvenile court’s best interest determination, case plan compliance is not dispositive of the issue.
See In re T.W., 9th Dist. Summit No. 27477, 2016-Ohio-92, ¶ 17; see also 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. In this case, Mother’s case plan objectives included (1) cooperate
and actively participate in services; follow all recommendations; execute any necessary releases
for information; update the agency regarding any changes in address, contact information,
employment, and household members; and allow monthly visits to her home; (2) complete a
parenting evaluation and follow all recommendations; (3) complete a diagnostic evaluation to
identify any undiagnosed mental health or substance abuse issues; participate in any
recommended treatment programs; and follow all recommendations; and (4) provide proof of
income and her lease agreement.
{¶16} As part of the first case plan objective, Mother submitted to the home study
requested by the agency. The JFS case worker testified that Mother’s out of state residence
necessitated a home study pursuant to the interstate compact placement of children system. The
Chautauqua County (New York) Department of Health and Human Services conducted the home
study and submitted a report.
{¶17} The New York caseworker reported that, although the physical aspects of the
home were adequate, she did not recommend placement with Mother based on multiple
concerns. The caseworker found Mother to be “overwhelmed” by the trauma in her life, and
focused primarily on the death of her daughter. She opined that “a considerable amount of
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therapeutic intervention” was necessary before Mother would be able to rebuild a safe and
healthy relationship with E.G. The caseworker was further particularly concerned about
Mother’s relationship with her current fiancé with whom she lived. The fiancé was not
forthcoming about his criminal history, and he became verbally aggressive with both Mother and
the caseworker regarding the home study. A partial records check indicated that the fiancé had
multiple criminal charges between 1992 and 2003. A records request from the local sheriff’s
office had not been fulfilled by the time of the hearing. In addition, the caseworker noted that
Mother had reported to her mental health treatment provider incidents of violence and arguing
with her fiancé. Based on these concerns, the New York caseworker opined that it would not be
in E.G.’s best interest to be placed in Mother’s care. As the New York agency could not approve
Mother’s home based on its home study, the JFS caseworker explained that his agency was
precluded from placing the child in Mother’s home. Moreover, the New York agency would not
conduct another home study until six months had elapsed after a prior study indicated the home
was not a viable placement. The original home study took approximately three months to
complete.
{¶18} In compliance with her second case plan objective, Mother completed a parenting
evaluation with Robin Tener, Ph.D. at Northeast Ohio Behavioral Health. Dr. Tener submitted a
report dated approximately two months before the dispositional hearing. She concurred in
Mother’s previous diagnosis of bipolar disorder, and opined that Mother additionally likely
suffers from histrionic personality disorder, narcissistic personality disorder, borderline
personality disorder, and a mood disorder. These disorders manifest in deficient cognition,
affectivity, interpersonal functioning, and impulse control. In addition, Mother exhibits self-
dramatization, grandiosity, a sense of entitlement, and instability in personal relationships.
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Indeed, Mother’s self-reported history seems incredible and paints a concerning picture of how
she has functioned throughout her life. Dr. Tener further recognized an historic pattern of
substance abuse by Mother, including during pregnancy. In conclusion, based on her extensive
testing and interviews with Mother, Dr. Tener suggested that the juvenile court “exercise
caution” in determining which custodial and companionship arrangements would be in the best
interest of the child.
{¶19} Pursuant to her third case plan objective, Mother was to submit to a diagnostic
evaluation to determine undiagnosed mental health or substance abuse issues. JFS accepted an
evaluation Mother had done in April 2015, prior to the agency’s involvement with E.G. It was
recommended that Mother participate in psychiatric services and individual counseling to
address bipolar disorder, cocaine abuse, and post-traumatic stress disorder (“PTSD”). That final
diagnosis was based on Mother’s reports of having been sexually abused from the ages of 11
until 17, and also having been a victim in one of the New York City towers on 9/11. Dr. Tener
did not later concur in Mother’s PTSD diagnosis, given discrepancies in the history Mother
reported to her. Mother engaged in counseling and psychiatric services, but missed several
sessions. Her counselor sent two letters to JFS, updating the agency on Mother’s progress.
Despite the recommendation that Mother address her bipolar disorder during sessions, the
counselor reported that she instead could only address the immediate crisis situations Mother
was experiencing. Accordingly, the counselor wrote that Mother has yet to begin addressing her
underlying bipolar issues.
{¶20} Mother complied with her fourth case plan objective by providing proof of her
receipt of social security disability payments for herself and her autistic son. She receives $750
per month for each of them. She had also been receiving a like amount for E.G. based on her
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assertions to the social security administration that return of the child to her care was imminent.
Those payments were discontinued when the child was not placed with Mother during the
pendency of the case.
{¶21} Besides Mother’s mental health and substance abuse issues, there was no
evidence that she suffered from other health concerns that would hinder her ability to care for
E.G. She has family in the area where she lives, although there was some evidence that she was
estranged from many family members, including both biological siblings and foster siblings.
The evidence established that Grandparents are in good health, and that their daughter lives
nearby and spends a lot of time with them and E.G.
{¶22} E.G. has been removed from her parents’ homes three times during her eight-year
life. She has spent approximately 22 months out of the past 26 months with Grandparents. The
caseworker, guardian ad litem, and Grandfather all testified that E.G. requires the stability in her
life that Grandparents can and are willing to provide. They all agreed that Mother is not in a
position to provide the necessary stability to the child, due in large part to concerns about her
mental health and historic drug abuse issues. Even Mother agreed that there were “serious
concerns” about her ability to provide a stable environment for E.G. The child’s counselor
declined to make any recommendation regarding custody or parenting time with Mother and
E.G., but she testified that she would hesitate to change anything that might affect the child’s
emotional state.
{¶23} Based on a review of the evidence, this is not the exceptional case where the
finder of fact clearly lost its way and created a manifest miscarriage of justice in awarding legal
custody of E.G. to Grandparents. The critical inquiry before awarding legal custody is to
consider the current parenting abilities of each potential custodian and to determine whether it is
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in the best interest of the child to be placed in the legal custody of any of them. See In re K.C.,
2014-Ohio-372, at ¶ 20. The evidence in this case established that E.G. had experienced chaos
and instability in her life due, in significant part, to Mother’s mental health and substance abuse
issues. Mother admitted that she was still experiencing problems impacting her ability to parent
effectively when Father obtained custody of E.G. and her sister. Mother left the state with her
son, and had limited contact with E.G. Grandparents, however, have been a dependable source
of stability for the child. They have twice happily accepted placement, and E.G. thrives in their
care. All of the child’s needs are being met, and Grandparents facilitate and encourage an
ongoing relationship and contact with Mother. Under the circumstances, the juvenile court’s
finding that an award of legal custody to Grandparents was in the child’s best interest was not
against the manifest weight of the evidence. Mother’s first assignment of error is overruled.
Assignment of Error II
The trial court abused its discretion in failing to grant a six-month extension
on [Mother’s] case plan.
{¶24} Mother argues that the juvenile court erred by denying her motion for a six-month
extension of temporary custody. This Court disagrees.
{¶25} The decision to grant or deny a six-month extension of temporary custody lies
within the discretion of the juvenile court and will not be reversed absent an abuse of discretion.
In re S.N., 9th Dist. Summit No. 23571, 2007-Ohio-2196, ¶ 16. An abuse of discretion is more
than an error of judgment; it means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). When
applying the abuse of discretion standard, this Court may not substitute its judgment for that of
the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
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{¶26} In support of her argument, Mother cites In re C.S., 9th Dist. Summit No. 27783,
2015-Ohio-5244, ¶ 8, for the following proposition:
A trial court may grant an extension of temporary custody if it determines, by
clear and convincing evidence, that: (1) the extension is in the best interest of the
child; (2) there has been significant progress on the case plan of the child; and (3)
there is reasonable cause to believe that the child will be reunified with one of the
parents or otherwise permanently placed within the period of extension.
She then asserts that “[t]here is no reason to believe that extending the case plan six months
wasn’t in the best interest of E.G. Further, there was significant progress made on the case plan
and E.G. could have been reunified with Mother within that time period.” She presents no
factual support for her assertions other than to write that “[t]here was ample testimony that E.G.
and Mother had an extremely positive relationship.”
{¶27} Rather than supporting her argument with citations to authority and portions of
the record substantiating her claims, as required by App.R. 16(A)(7)/(D) and Loc.R. 7(F),
Mother offers mere conclusory statements parroting the legal test. Conclusions without an
evidentiary basis fail to provide this Court with a valid basis on which to disturb the judgment of
the trial court. As we have repeatedly written, it is not the duty of this Court to scour the record
for evidence and construct an argument on an appellant’s behalf. See e.g., In re D.G. 9th Dist.
Wayne No. 08-CA-0062, 2009-Ohio-2080, ¶ 34; see also, Berthelot v. Berthelot, 154 Ohio
App.3d 101, 2003-Ohio-4519, ¶ 31 (9th Dist.), citing Gest v. Gest, 9th Dist. Lorain No.
96CA006580, 1998 WL 208872, *1 (Apr. 19, 1998). Accordingly, we may disregard Mother’s
second assignment of error. In re D.G. at ¶ 34, citing Loc.R. 7(F).
{¶28} Moreover, this Court has held that “‘[w]here the trial court finds that it is in the
best interest of a child to be placed in legal custody as a permanent disposition, the trial court
must necessarily deny an extension of temporary custody.’” In re B.C., 2014-Ohio-2748, at ¶ 22,
13
quoting In re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-943, ¶ 24. Because we upheld the
juvenile court’s finding that an award of legal custody to Grandparents was in the child’s best
interest, we further conclude that the juvenile court did not abuse its discretion by denying
Mother’s motion for a six-month extension of temporary custody. Mother’s second assignment
of error is overruled.
III.
{¶29} Mother’s assignments of error are overruled. The judgment of the Medina
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 Medina, 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.
JULIE A. SCHAFER
FOR THE COURT
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TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
WILLIAM HANEK, Attorney at Law, for Appellant.
STEVEN WOLKIN, Attorney at Law, for Appellee.
JENNIFER MOORE, Attorney at Law, for Appellee.
MICHAEL O’SHEA, Attorney at Law, for Appellee.
DEREK CEK, Guardian ad Litem.