In re B.H.

[Cite as In re B.H., 2011-Ohio-1967.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95794
IN RE: B.H.
A Minor Child
(Appeal by Mother)
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 08940290
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Anita Barthol Staley
7327 Center Street
Mentor, OH 44060
ATTORNEYS FOR APPELLEE
CUYAHOGA COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144
Also listed:
Guardian Ad Litem for Child
Brian Sharken
P.O. Box 770824
Lakewood, OH 44107
Guardian Ad Litem for Mother
Daniel B. Wolf
4186 Wilmington Road
South Euclid, OH 44121
For Father
M.H., pro se
2416 Park Place
Westlake, OH 44145
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant J.S. (“mother”) appeals the judgment of the Cuyahoga
County Court of Common Pleas, Juvenile Court Division, that awarded legal
custody of her child (B.H.) to the child’s maternal aunt and uncle.1 For the
reasons stated herein, we affirm the judgment of the trial court.
{¶ 2} B.H. was born in October 2008 and is mother’s child. At the time
of B.H.’s birth, mother had a long history of being homeless and unemployed,
as well as a history of significant, untreated mental health issues. She
previously had six other children removed from her care. B.H.’s father has
criminal convictions for rape and sexual imposition.
{¶ 3} On November 7, 2008, the Cuyahoga County Department of
Children and Family Services (“CCDCFS”) filed a complaint for dependency
and temporary custody of B.H., who was alleged to be a dependent child. On
January 29, 2009, the juvenile court adjudicated B.H. a dependent child and
committed B.H. to the temporary custody of CCDCFS.
{¶ 4} As part of the case plan, mother was to obtain stable housing and
employment and maintain her mental health stability. In the course of
proceedings, mother obtained housing, but was served with an eviction notice.
1
The parties are referred to herein by their initials or title in accordance
with this court’s established policy regarding non-disclosure of identities in juvenile
cases.
She initially obtained employment with Crestmont North Healthcare, but
purportedly was terminated due to a “no call, no show,” although mother
claims she resigned.
{¶ 5} CCDCFS filed two initial motions to modify temporary custody to
legal custody because mother was still without stable housing and
employment, and had not obtained mental health counseling. The initial
motions were denied.
{¶ 6} CCDCFS filed a third motion on April 20, 2010, after the child
had been in the custody of CCDCFS for over 14 months. At the time of the
hearing, mother had obtained housing and was employed at the Eliza
Jennings Nursing Home. She had not yet obtained mental health
counseling, although she had made efforts to do so. She also provided
evidence that she was not currently presenting as mentally ill. There was
evidence that mother consistently visits with B.H. and B.H. is bonded with
mother. Mother does have shared parenting over one of her other children,
over which no concern was expressed.
{¶ 7} B.H. has been residing in the home of her maternal aunt and
uncle since she was born and has been doing well in their care. CCDCFS
presented some evidence concerning allegations that the mother had used
laxatives on the child as a baby, gave the baby coffee and chicken wings, and
maintained a relationship with the father of B.H., despite a no-contact order.
CCDCFS further claimed that despite mother’s recent employment and
housing, she had not demonstrated stability and had yet to receive
psychological counseling services. The guardian ad litem recommended that
it was in B.H.’s best interest to grow up in a safe and stable environment and
that she remain in the care of her maternal aunt and uncle.
{¶ 8} Following the hearing, the juvenile court awarded legal custody of
B.H. to her maternal aunt and uncle. Mother timely filed this appeal. In
her sole assignment of error, mother challenges the decision of the trial court
to modify temporary custody to legal custody.
{¶ 9} After a child is adjudicated abused, neglected, or dependent, the
trial court may award legal custody to a non-parent upon finding, by a
preponderance of the evidence, that legal custody is in the child’s best
interest. In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d
552; R.C. 2151.353(A)(3); R.C. 2151.415(B). When an award of legal custody
is made, the parents of the child retain residual parental rights, privileges,
and responsibilities. R.C. 2151.353(A)(3)(c).
{¶ 10} An appellate court will not reverse an award of legal custody
absent a showing of an abuse of discretion. Id. To constitute an abuse of
discretion, the ruling must be unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 11} In this case, the juvenile court considered the history of
instability in mother’s housing and employment. Though mother had
obtained housing, she was evicted by a previous landlord earlier in the year.
There also was evidence that mother did not maintain her employment with
Crestmont North Healthcare. She had since found other employment, but
was not consistently working because of an injury sustained on the job. She
also had not engaged in any psychological counseling services. The hearing
was held approximately a year and a half after B.H. had been committed to
the temporary custody of CCDCFS. Additionally, the court recognized
father’s criminal history, his failure to complete parenting education, and his
failure to maintain consistent contact with the child.
{¶ 12} The court found that mother had not fully complied with all of the
objectives of the case plan. The court considered the guardian ad litem’s
recommendation that legal custody be awarded to the maternal aunt and
uncle. The court determined that legal custody would be in B.H.’s best
interest, whereas a return to her mother’s home would be contrary to the
child’s best interest and welfare. Although legal custody was awarded, the
court ordered that “mother shall be provided with reasonable visitation with
the child as agreed upon by the parties and as in the best interest of the
child.”
{¶ 13} Upon our review of the record, we find that the trial court’s
decision that an award of legal custody to B.H.’s maternal aunt and uncle is
in the child’s best interest is supported by the preponderance of the evidence.
We also believe that the child’s best interests are being served by placement
in a stable and secure environment. Accordingly, the trial court did not
abuse its discretion and we overrule appellant’s sole assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR