In re T.R.

[Cite as In re T.R., 2015-Ohio-4177.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102071
IN RE: T.R.
Minor Child
[Appeal By: L.C., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 14906290
BEFORE: E.A. Gallagher, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEY FOR APPELLANT MOTHER, L.C.
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Cheryl Rice
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115
GUARDIAN AD LITEM FOR T.R.
Suzanne H. Adrain-Piccorelli
255 Falmouth
Rocky River, Ohio 44116
ATTORNEY FOR FATHER, D.R.
Patricia Bunce
1849 Prospect, Suite 222
Cleveland, Ohio 44115
GUARDIAN AD LITEM FOR MOTHER
Pinkie Clark
75 Public Square, 8th Floor
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant L.C. appeals from an order of the Cuyahoga County
Court of Common Pleas, Juvenile Division, granting legal custody of her minor son, T.R.,
to his father, D.R. L.C. contends that her due process rights were violated because the
trial court proceeded with the adjudicatory and dispositional hearings when she was not
present and that the trial court’s decision committing T.R. to the legal custody of his
father was against the manifest weight of the evidence. For the reasons that follow, we
affirm.
Factual and Procedural Background
{¶2} On May 16, 2014, T.R. was placed into protective custody following an ex
parte telephonic hearing. On May 19, 2014, the Cuyahoga County Division of Children
and Family Services (“CCDCFS”) filed a complaint and motion for predispositional
temporary custody, alleging that T.R. was an abused, neglected and dependent child and
requesting that he be placed in the custody of his father. The complaint centered around
two incidents in January 2014 and May 2014 in which L.C. allegedly struck T.R. with an
extension cord and a broom handle when disciplining him. The complaint further
alleged that L.C. had refused to participate in safety planning or to make an appropriate
alternate plan of care for T.R., that L.C. had failed to comply with services to address the
parent-teen conflict in the home and that L.C. had a substance abuse problem that had
previously resulted in the removal of T.R. and several of his siblings from the home.
{¶3} A hearing on the motion for predispositional temporary custody was held that
same day. Although the magistrate found that reasonable efforts had been made to notify
both of T.R.’s parents of the hearing, only his father was present for the hearing.
{¶4} The CCDCFS social worker assigned to the case, Susan Garcia, testified at
the hearing. She indicated that in January 2014, CCDCFS received a referral regarding
L.C.’s methods of disciplining T.R. The referral arose from an incident in which L.C.
had allegedly hit T.R. with an extension cord, leaving marks on his arm. Garcia testified
that a second incident of “aggressive * * * disciplining methods” allegedly occurred on
May 6, 2014 when L.C. had T.R. stand facing the wall and hit him repeatedly with a
broomstick. Garcia reported that after the incident, T.R. left his mother’s home and, with
his mother’s consent, went to stay with his maternal grandmother. However, a short time
later, T.R. chose to leave his grandmother’s home because it was “just like being at
home” and his mother had “complete access to him.” A paternal relative brought T.R. to
the agency on May 16, 2014.
{¶5} Garcia testified that the agency had attempted to work with L.C. but that she
had refused to agree to a safety plan and was not compliant with the in-home Tapestry
Community Care services that had been implemented beginning in February 2014 to help
L.C. and T.R. work through the issues they were having. Garcia testified that T.R.
refused to return to his mother’s home and that, when the agency inquired about
alternative relative placements, the only alternative care arrangement L.C. offered was to
have T.R. stay with his maternal grandmother. Garcia testified that when T.R. learned
that placement with his maternal grandmother might be an option, he began crying
because, as he explained to Garcia, “that’s just like being at his own home.” Garcia
testified that T.R.’s father was available as a placement for T.R. and that she had
investigated the father’s ability to care for T.R. and had no concerns.
{¶6} With respect to whether the agency had any concerns relating to L.C. beyond
her “aggressive form of discipline,” Garcia testified that T.R. had disclosed that his
mother smoked marijuana and had issues with substance abuse and that a paternal relative
had indicated that L.C. had mental health issues she was not addressing. Although L.C.
was not present at the hearing, Garcia testified that she and her supervisor had attempted
to notify both parents of the hearing by telephone and voicemail message.
{¶7} The magistrate found probable cause existed to remove T.R. from his
mother’s home and that it was not in T.R.’s best interests for him to return to the home.
The magistrate granted the agency’s motion for predispositional temporary custody and
ordered that T.R. be placed in the temporary custody of his father.
{¶8} After the emergency hearing, service of the summons, complaint and related
documents was attempted on L.C. via certified mail at her residential address but was
returned with an endorsement that it had been “refused.” The documents were re-sent to
L.C. at the same address via ordinary mail. There is nothing in the record that suggests
that L.C. did not receive the documents with which she was served by ordinary mail.
{¶9} A preliminary hearing was scheduled for June 17, 2014. L.C. appeared for
the hearing. At or shortly before the preliminary hearing, counsel and a guardian ad
litem were appointed for L.C. Appointed counsel appeared at the hearing but indicated
that he had not had an opportunity to review the complaint with L.C. When the
magistrate stated that she would read the complaint aloud, L.C. indicated that she was
“not comfortable with this proceeding at all” and requested a continuance so that she
could retain her own counsel. The magistrate granted L.C.’s request but advised her that
due to “statutory time constraints that must be met,” L.C. needed to “have counsel and * *
* [be] here ready to go one week from now.” L.C. agreed, and the preliminary hearing
was continued until June 24, 2014. In its journal entry memorializing the hearing, the
trial court stated:
This matter shall be continued because Mother does not want a court
appointed attorney and has stated she will hire her own attorney by the next
court date. Mother advised that the next hearing will not be continued.
It is ordered that: This matter is continued to June 24, 2014 at 8:45 a.m. for
a preliminary hearing.
A copy of the journal entry was mailed to L.C. L.C. also signed a notice of hearing
indicating that she had received notice of the June 24, 2014 hearing.
{¶10} Neither parent appeared for the June 24, 2014 hearing. Because the parents
failed to appear and the CCDCFS social worker failed to file the case plan, the magistrate
once again continued the matter, setting the matter for a final pretrial on July 29, 2014,
trial on August 5, 2014 and a dispositional hearing on August 7, 2014. A copy of the
journal entry setting these dates was sent to L.C. via ordinary mail.
{¶11} CCDCFS thereafter filed an amended case plan that included L.C. and
T.R.’s active participation in Tapestry services and L.C.’s completion of a random urine
screen and mental health assessment and compliance with any related recommendations.
{¶12} Neither L.C. nor D.R. appeared for the July 29, 2014 hearing.1 The trial
court continued the matter for an adjudicatory hearing on August 5, 2014 and a
dispositional hearing on August 7, 2014. A copy of the journal entry from the July 29,
2014 hearing was sent to L.C. via ordinary mail. There is nothing in the record that
suggests that any of the documents or notices sent to L.C. via ordinary mail were returned
to the court or were otherwise not received by L.C.
{¶13} L.C. did not appear on August 5, 2014,2 and the matter was again continued
to August 7, 2014 “for parties to be present.” On August 7, 2014, after indicating that
“service [had been] issued to the mother” notifying her of the proceeding and waiting 25
minutes for L.C. to appear or contact the court, the magistrate proceeded with the
adjudicatory hearing. L.C. never appeared. She did not request a continuance and did
not otherwise communicate with the court regarding her failure to appear. The assistant
Counsel for D.R., however, did appear.
1
2
The assistant prosecuting attorney for CCDCFS, D.R., D.R.’s counsel and the guardian ad
litem for T.R. were present on August 5, 2014. L.C. and the guardian ad litem for L.C. were not
present.
prosecuting attorney for CCDCFS, D.R., D.R.’s counsel and the guardians ad litem for
T.R. and L.C. were present for the adjudicatory and dispositional hearings.
{¶14} The CCDCFS social worker, Garcia, testified at the adjudicatory hearing.
Similar to her testimony at the hearing on the predispositional motion, Garcia testified
that CCDCFS became involved in the case in January 2014 following an incident in
which L.C. had allegedly “whipped” T.R. with an extension cord. Garcia indicated that
CCDCFS investigated the allegations and developed a safety plan with T.R.’s maternal
grandmother and that the matter was then transferred for ongoing services and
monitoring. Garcia testified that L.C. initiated in-home Tapestry services and that
CCDCFS had referred her to the West Side Community House for neighborhood
collaborative services but that “her follow-through with the services [was] not good at
all.” Garcia explained that L.C. met with the Tapestry worker only twice after the initial
referral and would not keep appointments. Garcia testified that CCDCFS learned of a
second incident in May 2014 when T.R. was brought to the agency by a paternal relative
after he ran away from home. Garcia testified that T.R. told her he ran away because his
mother made him stand facing the wall while she beat him with a broomstick. A
CCDCFS staff worker spoke with L.C. regarding the incident. L.C. denied the
allegations.
{¶15} This was not the first time CCDCFS had been involved with the family. In
2000 or 2001, CCDCFS became involved with the family after L.C. tested positive for
marijuana when T.R. was born. Garcia explained that at that time, T.R. and four siblings
were adjudicated neglected and were removed from L.C.’s care.
{¶16} Garcia testified that in response to the new allegations relating to the May
2014 incident, CCDCFS held an emergency “staffing” meeting to discuss what should be
done. Although L.C. was invited to participate in the meeting, she did not attend and
would not answer her telephone. L.C. sent her 17-year-old daughter to pick T.R. up from
the meeting.
{¶17} Garcia stated that in addition to her concerns regarding L.C.’s disciplinary
methods, she had concerns about whether L.C. was smoking marijuana. She testified
that she had attempted to discuss the issue with L.C. but was unable to do so because each
time Garcia went to the home, L.C. was not there. Garcia, therefore, sent a letter to L.C.
along with a copy of an amended case plan adding services related to the allegation of
marijuana use. CCDCFS also believed that L.C.’s “behaviors” warranted a mental health
assessment.
{¶18} Garcia testified that D.R. is employed and made arrangements for T.R. to
stay with other family members while he is at work. She testified that since T.R. has
been in his father’s care, all of his needs have been met, that T.R. has been participating
in summer activities and that “[i]t seems to be going very well.”
{¶19} Based on the evidence presented, the magistrate determined that there was
clear and convincing evidence that T.R. was an abused, neglected and dependent child.
With the agreement of the parties present, the matter proceeded immediately to
disposition.
{¶20} CCDCFS requested that Garcia’s testimony from the adjudicatory hearing
be incorporated into the disposition proceeding. The magistrate granted the request, then
heard further testimony from Garcia. The guardian ad litem also spoke regarding her
report and recommendation.
{¶21} Garcia testified that she did not believe T.R. should be returned to his
mother’s care and custody and recommended that legal custody be granted to T.R.’s
father because “right now [T.R.] is doing way better with his father.” She explained that
there had been “a lot of parent and teen conflict” between T.R. and his mother that
“resulted in a lot of his behaviors that [L.C.] felt were an issue” but that she believed D.R.
had been dealing with those behaviors appropriately.
{¶22} With respect to L.C.’s home, Garcia testified that L.C. had refused to permit
Garcia to go inside the home but that from what she was able to observe from outside the
home, she had “no major concerns.” With respect to the services CCDCFS offered to
prevent removal, Garcia testified that L.C. had initiated services through Tapestry and
that CCDCFS had made a referral to the West Side Community House but that L.C. did
not follow through with these services. Garcia testified that CCDCFS had also assisted
L.C. in obtaining beds for her children and that the amended case plan included services
for substance abuse and a mental health assessment but that the agency “really wasn’t
able to offer her anything else” because every time Garcia went to the home, L.C.
informed her that she “was out of jurisdiction and was not allowed at her home.”
CCDCFS performed an assessment to determine whether D.R. required any services and
it was determined that he needed no services.
{¶23} T.R.’s guardian ad litem likewise recommended that legal custody be
granted to D.R. She stated that D.R. was “doing a great job with his son” and that she
found T.R. to be “extremely polite and well mannered” and “[v]ery respectful of his
father.” She stated that T.R. was enjoying football and was “enthusiastic about starting
school in the fall.” She stated that T.R. was “very reluctant” to return to his mother’s
home “because he did not want to be beaten by an extension cord or broomstick” and was
“frustrated” because his mother “didn’t really give Tapestry a chance.”
{¶24} The magistrate determined that CCDCFS had made reasonable efforts to
return T.R. to his mother’s home and that it was in T.R.’s best interests that legal custody
be granted to his father. Accordingly, the magistrate ordered that T.R. be committed to
the legal custody of D.R.3
3
In determining that it would be in T.R.’s best interest to be committed to the legal custody of
his father, the magistrate made the following factual findings:
The Court finds that [CCDCFS] has made reasonable efforts to prevent the removal of
the child, to eliminate the continued removal of the child from his home, or to make it
possible for the child to return home. Services offered to Mother were Tapestry
services at her request and then failed to participate in those services. CCDCFS
offered a mental health assessment, substance abuse assessment and assistance with
basic needs. Mother is not compliant and refuses to cooperate with Agency. There
were no recommendations for Father and no services are needed. Child is doing very
well with Father. Child wishes to remain in the father’s custody.
{¶25} On August 20, 2014, L.C., pro se, filed objections to the magistrate’s
decision. On September 11, 2014, the trial court overruled the objections and affirmed,
approved and adopted the magistrate’s decision granting legal custody of T.R. to D.R.
{¶26} L.C. appealed the trial court’s decision, assigning the following two
assignments of error for review:
Assignment of Error I: The trial court denied the appellant due process of
law when it proceeded without her at the adjudication and dispositional
hearing.
Assignment of Error II: The trial court erred in accepting the magistrate’s
decision committing the child to the legal custody of D.R. as it was against
the manifest weight of the evidence.
Law and Analysis
Proceeding with the Adjudicatory and Dispositional Hearings
{¶27} In her first assignment of error, appellant contends that her due process
rights were violated because the trial court proceeded with the adjudicatory and
dispositional hearings when she was not present. She argues that the case should have
been continued as it was on the prior occasions on which she had failed to appear.
{¶28} Parents have a constitutionally protected interest in the care, custody, and
management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982). “‘The right to parent one’s children is a fundamental right’ * * *
protected by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution and Section 16, Article I of the Ohio Constitution.” In re B.W., 8th Dist.
Cuyahoga No. 102475, 2015-Ohio-2768, ¶ 21, quoting In re C.F., 113 Ohio St. 3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. “A fundamental requirement of due process is
the ‘opportunity to be heard’ at a ‘meaningful time and in a meaningful manner.’” In re
B.W. at ¶ 21, quoting In re L.F., 9th Dist. Summit Nos. 27218 and 27228,
2014-Ohio-3800, ¶ 39.
{¶29} With respect to the continuance of juvenile court hearings, Juv.R. 23
provides that “[c]ontinuances shall be granted only when imperative to secure fair
treatment for the parties.” Loc.R. 49(C) of the Cuyahoga County Court of Common
Pleas, Juvenile Division, further provides:
No case will be continued on the day of trial or hearing except for good
cause shown, which cause was not known to the party or counsel prior to
the date of trial or hearing, and provided that the party and/or counsel have
used diligence to be ready for trial and have notified or made diligent
efforts to notify the opposing party or counsel as soon as he/she became
aware of the necessity to request a postponement. This rule may not be
waived by consent of counsel.
{¶30} The decision whether to grant a continuance is within the “broad, sound
discretion” of the trial court and will not be reversed absent an abuse of discretion. In re
S.C., 8th Dist. Cuyahoga No.102350, 2015-Ohio-2410, ¶ 23; In re L.S., 8th Dist.
Cuyahoga No. 95809, 2011-Ohio-3836, ¶ 21. An abuse of discretion occurs where the
trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶31} In support of her claim that the trial court should have granted a
continuance, L.C. cites to case law that recognizes that where a parent facing the
termination of parental rights has communicated with the trial court or with counsel to
explain a problem with attending a scheduled hearing, the failure of the trial court to take
“extra care” to ensure the parent could be present is an abuse of discretion. See In re
Trevor W., 6th Dist. Lucas No. L-01-1371, 2001 Ohio App. LEXIS 5307, *8 (Nov. 30,
2001), citing In the Matter of: Veronica [D.], 11th Dist. Ashtabula No. 98-A-0054, 2000
Ohio App. LEXIS 1400 (Mar. 31, 2000), and In the Matter of: Lena [D.], 11th Dist.
Geauga No. 96-G-2020, 1997 Ohio App. LEXIS 5561 (Dec. 12, 1997). However, these
cases are distinguishable.
{¶32} First, this is not a case involving the termination of parental rights. This is
a legal custody case. An award of legal custody is “significantly different” than the
termination of parental rights. In re G.M., 8th Dist. Cuyahoga No. 95410,
2011-Ohio-4090, ¶ 14. An award of legal custody is “not as drastic a remedy as
permanent custody” because, despite losing legal custody of the child, the parent retains
residual parental rights, privileges, and responsibilities and can petition the court for a
custody modification in the future. In re L.D., 10th Dist. Franklin No. 12AP-985,
2013-Ohio-3214, ¶ 7; In re H.A.I., 8th Dist. Cuyahoga No. 97771, 2012-Ohio-3816, ¶
36-37. Second, this is not a case in which a parent communicated with the trial court or
counsel, explained a problem with attending a scheduled hearing and the trial court
thereafter failed to take steps to ensure the matter would be heard when the parent could
be present.
{¶33} “[A] parent’s right to be present at a custody hearing is not absolute.” In re
C.G., 9th Dist. Summit No. 26506, 2012-Ohio-5999, ¶ 19, citing In re J.S., 9th Dist.
Lorain No. 10CA009908, 2011-Ohio-985, ¶ 17; see also In re Pedro R., 6th Dist. Lucas
No. L-04-1017, 2005-Ohio-539, ¶ 9 (“A transfer of legal custody does not divest a parent
of his fundamental parental rights; and such a parent remains free to petition the courts
for a custody modification at any time. * * * Accordingly, due process does not mandate
that a parent be present at a hearing to change legal custody of a child.”), citing In the
matter of Holewinski, 6th Dist. Lucas No. L-92-216, 1993 Ohio App. LEXIS 2452 (May
14, 1993). Even when termination of parental rights is at stake, parents “must exhibit
cooperation and must communicate with counsel and with the court in order to have
standing to argue that due process was not followed” if the court proceeds with a hearing
in their absence. In re Q.G., 170 Ohio App. 3d 609, 2007-Ohio-1312, 868 N.E.2d 713, ¶
12 (8th Dist.); In re C.G. at ¶ 19.
{¶34} In State v. Unger, 67 Ohio St. 2d 65, 423 N.E.2d 1078 (1981), the Ohio
Supreme Court identified certain factors to be considered in determining whether a
continuance is appropriate. These factors include:
the length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons
or whether it is dilatory, purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the request for a
continuance; and other relevant factors, depending on the unique facts of
each case
Id. at 67-68.
Not every failure to grant a continuance violates due process “‘even if the party fails to
offer evidence or is compelled to defend without counsel.’” In re C.G. at ¶ 9, quoting
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964).
{¶35} In this case, the court scheduled five hearings: on May 19, 2014, June 17,
2014, July 29, 2014, August 5, 2014 and August 7, 2014. The record reflects that despite
having notice of each of the hearings, L.C. attended only the hearing on June 17, 2014.
L.C. does not challenge the trial court’s finding that she was properly served with notice
of the adjudicatory and dispositional hearings and does not claim that she did not receive
timely notice of the hearings. L.C. never contacted the court to request a continuance or
otherwise advised the court or counsel that she could not attend the adjudicatory and
dispositional hearings. Indeed, L.C. has never explained why she did not appear for the
August 7, 2014 hearings (or any of the other hearings she failed to attend).
{¶36} L.C. argues in her brief that she “may have been having a difficult time
retaining counsel.” However, there is nothing in the record that supports this contention.
L.C. never contacted the court to request more time in which to secure counsel. She
merely failed to appear at the hearings of which she had received notice.
{¶37} L.C. also claims that the trial court failed to “properly inform [her] of the
great importance of [retaining counsel] in a timely fashion” or that “a failure to appear in
a timely fashion would result in the termination of her parental rights of T.R.” This
argument is also meritless.
{¶38} As noted above, at issue was CCDCFS’s request to have T.R. committed to
the legal custody of his father; no request had been made to terminate L.C.’s parental
rights. Accordingly, a failure to timely appear could not have resulted in the termination
of L.C.’s parental rights and the trial court did not err in failing to advise L.C. of that fact.
{¶39} Likewise, there is no support for L.C.’s claim that the trial court’s judgment
should be reversed because it failed to advise L.C. of the “great importance” of retaining
counsel “in a timely fashion.” The record reflects that L.C. was initially appointed
counsel to represent her at the June 17, 2014 hearing but that L.C. informed the court that
she was not comfortable with the proceedings and wanted to retain her own counsel.
The record further reflects that when L.C. requested a continuance to retain her own
counsel, the magistrate engaged in a dialogue with her, explaining that she needed to have
counsel and be ready to proceed by the following week due to “statutory time
constraints.” L.C. indicated that she understood and agreed that she would retain counsel
and be in court “ready to go” on June 24, 2014. Accordingly, the record reflects that the
magistrate did, in fact, discuss the importance of timely retaining counsel with L.C. The
trial court was under no obligation to further explain to L.C. the “great importance” of
timely retaining counsel.
{¶40} In this case it was not the trial court’s failure to take steps to ensure that the
hearings would be held when L.C. could be present but L.C.’s own actions — i.e., her
failure to timely retain counsel after choosing not to proceed with appointed counsel, her
unexplained failure to appear at the hearings and her failure to communicate with the
court to explain her absence and request a further continuance if needed — that prevented
her from being heard.
{¶41} The trial court’s decision to proceed with the adjudicatory and dispositional
hearings without L.C. was not arbitrary, unreasonable or unconscionable. Accordingly,
we find no abuse of discretion by the trial court in not continuing the adjudicatory and
dispositional hearings and we find no violation of L.C.’s right to due process.
Manifest Weight of the Evidence
{¶42} In her second assignment of error, L.C. argues that the trial court’s decision
granting legal custody of T.R. to D.R. was against the manifest weight of the evidence.
L.C. argues that “the record lacks competent, credible evidence to support a finding that
such placement was in the best interests of the child” and that the trial court, therefore,
abused its discretion in adopting the magistrate’s decision granting legal custody of T.R.
to D.R.
{¶43} In this case, T.R. was adjudicated an abused, neglected and dependent child.
L.C. does not challenge this determination. Pursuant to R.C. 2151.353(A)(3), once a
child is adjudicated abused, neglected or dependent, a juvenile court may award legal
custody of the child to any parent or person who files a motion requesting legal custody.
“Legal custody” is
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).
{¶44} When a juvenile court awards legal custody following an adjudication of
abuse, neglect or dependency, “it does so by examining what would be in the best interest
of the child based on a preponderance of the evidence.” In re M.J.M., 8th Dist.
Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 11, 14 (best interest of the child is “of
paramount concern” when making custody determinations); In re D.T., 8th Dist.
Cuyahoga Nos. 100970 and 100971, 2014-Ohio-4818, ¶ 17 (“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.’”), quoting In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 3; see
also In re W.A.J. at ¶ 2 (preponderance of the evidence standard applies to trial court’s
factual findings when determining legal custody). “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, quoting In re D.P.,
10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52.
{¶45} The decision whether to grant or deny a request for legal custody is within
the sound discretion of the juvenile court. In re R.R., 9th Dist. Summit No. 23641,
2007-Ohio-4808, ¶ 11, citing In re M.S., 9th Dist. Summit No. 22158, 2005-Ohio-10, ¶
11. Accordingly, when reviewing the trial court’s “‘ultimate decision on whether the
facts as determined would make it in the child’s best interests to be placed in legal
custody,’” we apply an abuse of discretion standard. In re W.A.J. at ¶ 2, quoting In re
G.M., 2011-Ohio-4090, at ¶ 14. We likewise review the trial court’s decision to accept
or reject the magistrate’s decision for abuse of discretion. In re S.E., 8th Dist. Cuyahoga
No. 96031, 2011-Ohio-2042, ¶ 13.
{¶46} Where a custody determination is supported by “competent, credible
evidence” it will not be reversed as being against the manifest weight of the evidence. In
re S.D., 8th Dist. Cuyahoga Nos. 99410, 99411, and 99412, 2013-Ohio-3535, ¶ 13, citing
In re B.M., 8th Dist. Cuyahoga No. 96214, 2011-Ohio-5176, ¶ 32. Based on the record
before us, we cannot say that the trial court’s decision granting legal custody of T.R. to
D.R. is against the manifest weight of the evidence.
{¶47} Unlike permanent custody cases in which the trial court is guided by the
factors specified in R.C. 2151.414(D) in determining what is in a child’s best interest,
R.C. 2151.353(A)(3) does not list specific factors a court should consider in deciding
what is in the child’s best interest in determining legal custody. In re G.M.,
2011-Ohio-4090, at ¶ 15. As this court has previously stated, “[w]e 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.’” In re D.T., 2014-Ohio-4818, at ¶ 20, citing In re G.M. at ¶ 16.
{¶48} Although there is no “specific test or set of criteria” that must be followed in
determining what is in a child’s best interest in a legal custody case, this court has held
that the R.C. 2151.414(D) factors may be “instructive.” In re D.T. at ¶ 20, citing In re
E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13. These factors include: the
interaction of the child with the child’s parents, relatives and caregivers; the wishes of the
child, as expressed directly by the child or through the child’s guardian ad litem; the
custodial history of the child; and the child’s need for a legally secure permanent
placement. R.C. 2151.414(D).
{¶49} L.C. argues that the trial court abused its discretion in awarding legal
custody of T.R. to D.R. because the trial court “did not consider all of the best interest
factors when it made its disposition determination.” L.C. asserts that she alone had been
providing for T.R. until he was removed from her care in May 2014 and that “[t]here was
no testimony to suggest” that D.R. was active in T.R.’s life prior to that time. L.C.’s
assertions are not supported by the record. Rather, the record reflects that D.R. had been
paying child support because, after the magistrate ordered that T.R. be committed to the
legal custody of D.R., she told D.R. what he could do to stop his child support payments.
{¶50} L.C. also contends that the trial court’s legal custody determination should
be overturned because Garcia testified that she had visited L.C.’s home and had “no
concerns.” L.C., however, misstates Garcia’s testimony. Although Garcia testified that,
from what she was able to observe, she had “no major concerns” related to L.C.’s home,
she also indicated that L.C. had refused to allow Garcia to go inside the home. Garcia
detailed her concerns related to L.C.’s disciplinary methods, possible substance abuse and
mental health issues.
{¶51} L.C. further argues that the trial court relied on improper “hearsay
testimony” when making its legal custody determination. L.C. asserts that T.R. was
“certainly old enough” to testify “regarding his wishes for placement” and claims that
because T.R. did not testify and no photographs of his injuries were introduced into
evidence at the hearing, there was insufficient evidence to prove the allegations that L.C.
had beaten T.R. with a broom handle or smoked marijuana. However, L.C. did not
object to this testimony below and did not raise the issue in her objections to the
magistrate’s decision. Thus, she has waived all but plain error. In re S.E.,
2011-Ohio-2042, at ¶ 17; In re T.J., 8th Dist. Cuyahoga Nos. 99877 and 99878,
2013-Ohio-5434, ¶ 8.
{¶52} We find no plain error in this case. In a dispositional hearing on a motion
for legal custody, the juvenile court is permitted to “admit evidence that is material and
relevant, including, but not limited to, hearsay, opinion, and documentary evidence.”
Juv.R. 34(B)(2); R.C. 2151.35(B)(2)(b); In re T.J. at ¶ 9; see also In re J. T., 3d Dist.
Wyandot No. 16-10-12, 2011-Ohio-3435, ¶ 29-33. There is no dispute that Garcia’s
testimony regarding T.R.’s allegations that L.C. had beaten him with a broom handle and
smoked marijuana was both relevant and material in determining whether granting legal
custody to D.R. was in T.R.’s best interest. Further, L.C. has not challenged the trial
court’s finding, based on these allegations, that T.R. was an abused and neglected child.
With respect to T.R.’s wishes regarding placement, R.C. 2151.414(D)(1)(b) provides that
a child’s wishes may be expressed by the child directly or through the child’s guardian ad
litem. Accordingly, the trial court did not abuse its discretion in admitting this testimony
for purposes of its dispositional determination.
{¶53} Finally, L.C. argues that from May 16, 2014 (when T.R. was removed from
her care) until August 7, 2014 (when the dispositional hearing was held) was “not an
adequate period of time” for the trial court to find that she was not compliant with the
services offered to her by the agency. However, the record reflects that L.C. repeatedly
refused to cooperate with the agency’s efforts to engage her in services. Although
Tapestry services were put in place in February 2014 after CCDCFS referred the first
report of “aggressive discipline” by L.C., L.C. met with the Tapestry services worker
only twice after the initial referral. She failed to attend meetings or keep appointments
and refused to even speak with Garcia regarding the allegations of her substance abuse.
There is nothing in the record to suggest that had she been given more time, L.C. would
have complied with the case plan.
{¶54} The record reflects that T.R. and his mother had a conflicted relationship,
resulting in two incidents in which L.C. beat T.R. first with an extension cord and then
with a broom handle after which T.R. ran away from home. The record further reflects
that T.R. informed both the CCDCFS social worker and his guardian ad litem that he did
not want to return to his mother’s care because he was afraid of being beaten. Although
L.C. initiated Tapestry services in an attempt to address her parent-teen conflict with
T.R., she failed to follow through with the case plan services offered her to help her
regain custody of her son and refused to cooperate with CCDCFS.
{¶55} On the other hand, the record reflects that T.R. had a good relationship with
his father. Garcia testified that T.R. had been thriving since D.R. obtained
predispositional custody of T.R., that D.R. had been dealing with T.R.’s teen behaviors
appropriately, that D.R. was employed and able to meet T.R.’s needs and that CCDCFS
had no concerns regarding D.R. caring for T.R.
{¶56} Based upon a careful review of the record, we find no abuse of discretion by
the juvenile court in adopting the magistrate’s decision and entering an order of legal
custody. Competent, credible evidence supports the juvenile court’s determination that a
grant of legal custody to D.R. was in T.R.’s best interest. L.C.’s second assignment of
error is overruled.
{¶57} Judgment affirmed.
It is ordered that appellee recover from appellant the 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.
__________________________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR