In re N.N.

[Cite as In re N.N., 2021-Ohio-3931.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE N.N. :
: No. 110443
A Minor Child :
:
[Appeal by R.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 4, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-19-913035
Appearances:
Valore & Gordillo, L.L.P., and Dean Valore, for appellant.
Anzelmo Law, and James A. Anzelmo, for appellee.
FRANK D. CELEBREZZE, JR., J.:
Appellant R.H. (“Mother”) appeals the judgment of the Cuyahoga
County Juvenile Court granting legal custody of her minor child, N.N., to the child’s
father, E.N. (“Father”). Mother argues that the decision of the juvenile court was
not in the best interests of the child. After a thorough review of the law and facts,
we affirm the judgment of the trial court.
I. Factual and Procedural History
The Cuyahoga County Department of Child and Family Services
(“CCDCFS” or “agency”) obtained temporary custody of Mother’s five minor
children, Oi.J., M.P., K.P., J.H., and N.N.,1 after M.P. was taken to the emergency
room with a head injury and bloody nose, which Mother did not immediately
address or explain. In its motion for temporary custody, the agency alleged that
Mother had failed to address certain behaviors of Oi.J., M.P., and K.P., which
presented a danger to themselves and to N.N. and J.H.
In addition, Mother had been involved in multiple violent relationships
resulting in violence witnessed by the children; and Mother had minimized the
effects of this. Mother also had untreated PTSD, anxiety, and mood disorder for
which she had been offered services yet declined to take advantage of them. The
children had been noted to be unwashed and poorly clothed. Mother also lacked
stable housing and was staying in a shelter. There were additional issues with the
respective fathers of the children, in that one was incarcerated and the other two,
one of which was Father, were involved in their children’s lives but failed to support
them financially.
The agency developed a case plan for Mother that included domestic
violence counseling, parenting classes, anger management classes, and a mental
health assessment. Mother was further required to obtain stable housing.
1 This appeal only relates to custody of N.N.
N.N. was three years old at the time the agency intervened and was
placed with Father. CCDCFS did not have any issues with Father and did not require
him to complete a case plan.
Father moved for legal custody of N.N. CCDCFS moved to terminate
its custody of N.N. and for legal custody of N.N. to be awarded to Mother. The
agency sought reunification of all of the children with Mother. With regard to N.N.,
CCDCFS requested shared parenting between Mother and Father with Mother as
the residential parent.
The court held a hearing on the motions. CCDCFS presented the
testimony of the social worker assigned to the case, Rayshawn Eberhardt. Ms.
Eberhardt testified as to the issues with Mother and the services recommended to
her, noting that she had completed all of them. She further testified that there had
been some visitation issues between Mother and Father, but that N.N. was spending
a lot of time with Mother while Father was working. At one point prior to the
hearing, N.N. stayed with Mother for an extended time because Father had tested
positive for COVID-19. N.N. had remained with Mother after Father recovered and
was still with Mother at the time of the hearing; Ms. Eberhardt stated that she did
not know the reason for this. Ms. Eberhardt did acknowledge, though, that Mother
and Father coparented N.N. and had “their own arrangements as far as how they
parent their daughter.”
Ms. Eberhardt further testified that there was some discomfort
between Father and the daycare that N.N. was attending, to the point where they did
not want to take N.N. anymore. Again, though, Ms. Eberhardt stated that she did
not know the reason for that.
With regard to Father, Ms. Eberhardt stated that the agency did not
have a case plan for him because they had “no concerns” with him. The only issue
with Father that Ms. Eberhardt mentioned was when Father withheld visitation
from Mother for several weeks, but Ms. Eberhardt did not know the specific reason
why — only that Father was angry about something.
Ms. Eberhardt also stated that there were no issues with N.N. being
with Father and that he has taken good care of her. She noted that the only issue
was that Father worked a lot, so N.N. was often with Mother or at daycare.
Regarding Mother, Ms. Eberhardt testified that the agency had no
issue with Mother obtaining custody of all five children and was not seeking
protective supervision.
The guardian ad litem for the children, Michael Murphy (“GAL”),
testified that he believed that it was in “[N.N.’s] best interest if the parties could
come up with a shared parenting plan with mom being custodial parent, even
though I understand the concerns that [Father’s counsel] has brought up regarding
putting too much on mom at once.” The GAL went on to note some of the issues
that the older children had been having, particularly with regard to school. The GAL
further stated that Mother has done everything that she needed to do under the case
plan. He emphasized that he would prefer to see Mother and Father work out shared
parenting of N.N.
At the conclusion of the hearing, the magistrate stated as follows:
I’m going to find that the Agency has made reasonable efforts towards
reunification, however, I see no reason — I’ve heard nothing to dispute
the fact that the child is doing well in father’s custody. She has been in
the father’s custody, and there were no concerns or issues with the
father from the outset of this case. And she’s doing well in father’s
home. I see no reason to disrupt that.
She can have visitation with her siblings and her mother on a
reasonable basis, but parents have an equal right to parent their child,
both a mother and a father. And if the father is doing well and the child
is doing well in father’s care, I see no reason to disrupt that and move
her.
I will say the parents are going to have to find a way to get along. She’s
three, I believe, so you have 15 years that you’re going to have to find a
way to get along with each and co-parent this child.
As to a shared parenting plan, that is a legal document that has to be
filed with the Court. This Court can’t order shared parenting on its
own. If a shared parenting agreement had been proffered to the Court,
that had been agreed upon by the parties, this Court would have gladly
accepted it and adopted it. No one did that.
So at this time, I’ll find the Agency has made reasonable efforts to
finalize the permanency plan of reunification, however, at this time, I
do believe it is in this child’s best interest to deny the Agency’s motion
to grant legal custody to the mother, and grant legal custody to the
father [E.N.]
And he has been maintaining that child with protective supervision
without an issue, so I’m not going to order protective supervision of
that child. It’s legal custody to the father.
Mother objected to the magistrate’s decision awarding legal custody of
N.N. to Father and denying the agency’s motion for legal custody to her. The trial
court overruled the objection and adopted the magistrate’s decision. Mother then
filed the instant appeal, raising one assignment of error for our review:
The trial court’s finding it was in the best interests of N.N. to award
legal custody of N.N. to E.N., father, is against the manifest weight of
the evidence.
II. Law and Analysis
In Mother’s sole assignment of error, she argues that the trial court
abused its discretion in awarding custody to Father when such an award was
unsupported by evidence presented at the trial and when Mother had completed her
case plan.
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.
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.
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.
Legal custody is significantly different than the termination of
parental rights in that, despite losing legal custody of a child, the parent of the child
retains 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, 751 N.E.2d 552 (7th Dist.2001). “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.
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, inter alia, 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).
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). A decision is unreasonable if there is “‘no sound
reasoning process that would support that decision.’” In re C.D.Y., 8th Dist.
Cuyahoga No. 108355, 2019-Ohio-4987, ¶ 8, quoting Baxter v. Thomas, 8th Dist.
Cuyahoga No. 101186, 2015-Ohio-2148, ¶ 21. A decision is arbitrary if it is made
“‘without consideration of or regard for facts [or] circumstances.’” In re C.D.Y. at
¶ 8, quoting Black’s Law Dictionary 125 (10th Ed.2014).
In the case at hand, Mother argues that the trial court’s decision was
an abuse of discretion because she had successfully completed her case plan. 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.
The successful completion of a case plan, “‘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.).
While Mother did complete her case plan, the GAL expressed other
concerns with awarding custody to Mother. Several of the other children have some
issues with regard to schooling that Mother had to address. While Mother has
completed the case plan, she has not had the opportunity to show that she was able
to care for all five children at once. The court recognized this and ordered protective
supervision with regard to the other four children.
Given the evidence presented at the hearing, we cannot say that the
trial court’s determination that it would be in the best interest of the child to be
placed in the legal custody of Father was arbitrary or unreasonable. The record
supports the trial court’s findings by a preponderance of the evidence. N.N. had
been in Father’s custody and by all accounts, Father was taking good care of her.
The agency had not had any concerns about Father during the entire pendency of
this case.
Moreover, Mother’s completion of her case plan was not dispositive of
the issue of reunification. The record reflects that there was still a question as to
whether Mother would be able to handle all five children at once, particularly given
some of the needs of the older children. Given that N.N. was doing well under
Father’s care, the trial court opted not to disrupt her situation. This decision was
not an abuse of discretion, and Mother’s sole assignment of error is overruled.
III. Conclusion
The trial court’s decision was supported by a preponderance of the
evidence and was not against the manifest weight of the evidence. We therefore find
that the trial court’s award of legal custody to Father was in the best interest of the
child and was not an abuse of discretion.
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 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.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR