In re So.P.

[Cite as In re So.P., 2022-Ohio-4015.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE SO.P., ET AL. :
Minor Children :
No. 111468
[Appeal by M.P., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Court Division
Case Nos. AD-19912540, AD-19912541, AD-19912542,
and AD-19912543
Appearances:
Edward F. Borkowski, Jr., for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
SEAN C. GALLAGHER, A.J.:
Appellant M.P. (“mother”) appeals the decisions of the Cuyahoga
County Court of Common Pleas, Juvenile Division, that awarded legal custody of her
four minor children, So.P., J.P., Sp.P., and C.P., to their paternal aunt and uncle.
Upon review, we affirm the judgment of the juvenile court in each child’s case.
I. Procedural and Factual Background
In October 2019, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “the agency”) filed a complaint that alleged the four
children, who were born between 2007 and 2015, were abused, neglected, and
dependent. The children were committed to the emergency custody of CCDCFS on
October 16, 2019. At the adjudicatory hearing held on December 9, 2019, mother
stipulated to an amended complaint that alleged in part that mother and the
children’s maternal grandmother had engaged in a physical altercation in the
presence of the children, mother has a substance-abuse issue related to alcohol,
mother relapsed after completing treatment, mother was then in residential
treatment and not able to care for the children, mother needed to address a mental-
health issue in order for her to provide for the children, mother was previously
convicted of disorderly conduct after engaging in domestic violence, and the
children’s father was incarcerated in Arizona for a manslaughter conviction. After
adjudicating the children abused, neglected, and dependent, the juvenile court
committed the children to the temporary custody of CCDCFS in judgment entries
dated between January 2 and 7, 2020.
The juvenile court ordered two extensions of temporary custody by
agreement of the parties. On August 10, 2021, mother filed a motion for legal
custody to herself. On December 2, 2021, CCDCFS filed a motion to amend an
earlier dispositional request for permanent custody to legal custody to the children’s
paternal aunt and uncle. A dispositional hearing was held before a magistrate on
February 28, 2022, at which time the children had been in the temporary custody of
CCDCFS for over two years.
The record reflects that at the time the children were removed from
mother’s custody, mother had an extensive history of alcohol abuse. In 2015,
mother and the children’s father, now her ex-husband, were involved in a car
accident resulting in another person’s death and the children’s father’s
incarceration. According to mother, “[her] entire family fell apart.” Mother
acknowledged she “was an emotional mess,” her behavior was “out of control,” and
her children had witnessed her “in some conditions * * * they shouldn’t have.”
The four children were initially placed with their maternal
grandparents in Ohio, but they were eventually placed with their paternal aunt and
uncle in Indiana and have remained there since February 2021. The children are
doing very well in their placement and are bonded with their paternal aunt and
uncle. Their basic needs are being met, they have appropriate housing, they attend
school, and they are engaged in counseling.
Mother’s case plan objectives included addressing her substance-
abuse issues and mental health. Mother was already involved in treatment when the
agency became involved. From October 2019 through February 2021, Mother
completed substance-abuse treatment programs, but she relapsed several times.
However, mother eventually made progress. At the time of the dispositional
hearing, mother had been sober for a year, she was involved in mental health
counseling, she was employed, she had appropriate housing, and she was involved
with Sober Living Homes, Ohio, where she had achieved enough sobriety to be
trusted as a house manager to drug test other residents.
The agency recognized mother’s progress, but it still had concern
because the children had been out of her custody for two years and there were “still
a lot of trust issues that [need] to be resolved” and there were concerns for the
children’s emotional well-being. It was observed that the children did not view
mother as an authority figure and did not really listen to her. The social worker of
record stated, “the children have witnessed mother physically fighting with their
grandmother and they have experienced a lot of yelling, a lot of screaming, a lot of
negative behavior.” So.P., who is the oldest child, “felt blamed for everything,
anything negative that happened was her fault. A lot of responsibility is put on her.”
A visitation schedule was in place, with weekly phone calls or
FaceTime and monthly in-person visits. Mother participated in all the visits. But
mother had not had visitation with or spoken to So.P. since late 2020/early 2021
because So.P. did not wish to have visitation with her mother. Mother was “trying
to just respect [So.P.’s] wishes * * * and giving [So.P.] time until she’s ready.”
Mother had some in-person visits with her other children, but the visitation was
supervised by the accompanying maternal grandmother. The social worker
indicated that the other children had shared wanting to be back in Ohio with their
grandmother, but with mom being there, and that “there’s still hesitation that mom
might not be able to take care of them * * *.” So.P. believed all the children should
remain together.
Mother’s testimony reflects that she engaged in treatment, was
receiving counseling, and had “learned a lot of good coping mechanisms and tools.”
She acknowledged that “it took [her] a while to get it right.” She recognized issues
that would need to be addressed if reunited with the children. Mother expressed
remorse for her prior behavior and stated she was “willing to do whatever anyone
deems necessary to build those relationships back and make [the children] trust
me.” She also indicated that she had the support of the maternal grandparents who
live close to her. Mother stated she would like So.P. to return to her, but also
recognized that So.P. wanted to be in the legal custody of the paternal aunt and
uncle. Mother indicated that she had no issues with the paternal aunt and uncle and
that if the children were committed to their legal custody, she would desire as much
access and visitation as possible.
The social worker believed it was in the best interest of the children
to remain in the paternal aunt and uncle’s home. Family counseling had not taken
place between mother and the children. The agency was concerned that the children
had not been in mother’s care for over two years and there were “a lot of trust issues
that [needed] to be resolved.” The social worker felt that it is important for the
children to have the opportunity to build a relationship back with their mother,
rather than just “throwing them back home without any opportunity for transition,
without any opportunity to rebuild the trust.”
The guardian ad litem (“GAL”) for the children recommended legal
custody to the paternal aunt and uncle and opined this would be in the children’s
best interest. The GAL recognized the progress mother has made, but she was
concerned that So.P. had not visited with mother in some time and mother only had
eight or nine in-person visits with the other children over the past year. The GAL
did not believe the children should be separated, and the GAL opined that returning
the children to Ohio would disrupt the progress they had made.
Counsel for the children indicated that So.P. did not want to be
reunified with mother and did not want any access or visitation with mother.
Counsel indicated the other children had each stated a desire to be reunified with
their mother.
The paternal aunt and uncle had executed a statement of
understanding for legal custody. They affirmed their intention to become the legal
custodians of the children and acknowledged their understanding of the effect of the
custodianship.
In timely judgment entries journalized March 25-28, 2022, the
juvenile court, upon independent review, adopted the magistrate’s decision and
granted legal custody of each child to the paternal aunt and uncle. The juvenile court
made findings that are supported by the record and found that each child’s current
placement was appropriate, that the child’s “return to the home of Mother, at this
time, will be contrary to the child’s best interest[,]” and that an award of legal
custody to the paternal aunt and uncle was “necessary to serve the best interests of
the child.” In the case of So.P., the juvenile court ordered “Mother shall have no
visitation with So.P. Supervised visitation may resume as agreed upon [by] the
parties, when the child wishes to engage in visitation with her mother.” In each of
the other children’s cases, the juvenile court ordered “reasonable parenting time” as
agreed by the parties. The juvenile court had informed mother at the dispositional
hearing that if the children were placed in the legal custody of the paternal aunt and
uncle, mother would have certain residual rights.
Mother has appealed the judgment of the juvenile court in each
child’s case.
II. Law and Analysis
Mother raises two assignments of error for our review. Under her
first assignment of error, mother claims that the juvenile court abused its discretion
by granting the agency’s motion for legal custody to relatives and that the decision
was against the manifest weight of the evidence. Under her second assignment of
error, mother claims the juvenile court abused its discretion by denying her motion
for legal custody.
Pursuant to R.C. 2151.353(A)(3), a juvenile court may award legal
custody of a child who has been adjudicated abused, neglected, or dependent “to
either parent or to any other person who, prior to the dispositional hearing, files a
motion requesting legal custody of the child or is identified as a proposed legal
custodian in a complaint or motion filed prior to the dispositional hearing by any
party to the proceedings.”
“Legal custody” is defined as
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).
Legal custody is significantly different than the termination of
parental rights. Unlike an award of permanent custody that divests the natural
parents of all parental rights, an award of legal custody vests in the custodian the
physical care and control of the child while the natural parents retain residual
parental rights, privileges, and responsibilities. In re E.M.B.T., 8th Dist. Cuyahoga
No. 109479, 2020-Ohio-4308, ¶ 24, citing R.C. 2151.011(B)(21), 2151.011(B)(31),
and 2151.353(A)(3)(c); see also In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843
N.E.2d 1188, ¶ 15, 17. Also, “‘[u]nlike permanent custody, granting legal custody
does not terminate the parent-child relationship.’” In re E.M.B.T. at ¶ 24, quoting
In re M.M., 12th Dist. Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7.
“A trial court must determine the appropriateness of legal custody in
accordance with the best interest of the child as supported by the preponderance of
the evidence.” In re J.W., 8th Dist. Cuyahoga No. 108139, 2019-Ohio-3666, ¶ 15,
citing In re G.W., 8th Dist. Cuyahoga No. 103706, 2016-Ohio-5242, ¶ 21.
“‘Preponderance of the evidence’ means ‘evidence that’s 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.
“[T]he best interests of the child are paramount in any custody case,”
and courts are to liberally interpret the statutes under R.C. Chapter 2151 “to provide
for the care and protection of the child * * *.” In re A.B., 110 Ohio St.3d 230, 2006-
Ohio-4359, 852 N.E.2d 1187, ¶ 32, citing R.C. 2151.01(A). The factors listed under
R.C. 2151.414(D) may be instructive when determining the child’s best interest in a
legal custody case. In re V.P., 8th Dist. Cuyahoga No. 109649, 2020-Ohio-5626,
¶ 32, citing In re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 16. Those
factors include the following: the interaction and interrelationship of the child with
the child’s parents, relatives, and caregivers; the wishes of the child; the custodial
history of the child; and the child’s need for a legally secure placement. R.C.
2151.414(D). In custody matters, a juvenile court has broad discretion in making
dispositional orders in the best interest of the child. See Reynolds v. Goll, 75 Ohio
St.3d 121, 124-125, 661 N.E.2d 1008 (1996). Ultimately, the natural rights of a
parent are always subject to the ultimate welfare of the child, which is the controlling
principle to be observed. In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21 N.E.3d
308, ¶ 20, citing In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
In this case, the record demonstrates that despite her initial relapses,
mother has made progress with her sobriety and mental health. However, concerns
remained for the emotional welfare of the children, who experienced a lot on account
of mother’s past behavior and have a father who is incarcerated. So.P. has not
wanted any contact with mother. Although the other children have had positive
interactions with mother and their counsel expressed their desire to be reunified
with her, the social worker observed that the children do not view mother as an
authority figure, they do not really listen to her, and they had hesitation that mom
might not be able to take care of them. Also, mother’s visitation with the children in
Indiana has been supervised by the maternal grandmother and family counseling
had not taken place. As expressed by the social worker, “the concern is the
relationship [between the children and mother] and without having that being
addressed, it’s highly likely that it will increase trouble for both the kids and for the
mother.” Mother acknowledged that she still needs to build trust with the children
and that there is still a need for family counseling. At the time of the dispositional
hearing, the children had not been in mother’s custody for two years. The children
have stability in the paternal aunt and uncle’s home, and the GAL believed returning
the children to Ohio would disrupt the progress they had made.
The juvenile court reviewed the testimony provided and included
factual findings in its decisions. The juvenile court recognized that mother has made
progress, has appropriate housing, is employed, and can meet the basic needs of the
children. However, the juvenile court also recognized that mother had not engaged
in family counseling with the children and that over the past year, So.P. refuses to
visit with mother, and mother has had limited, supervised visits with the other
children. The juvenile court further recognized that the children were placed
together with their paternal aunt and uncle, they are bonded with these relatives,
they are enrolled in school, they are receiving counseling, and they are doing well.
The juvenile court considered the expressed wishes of the children, as well as the
recommendation of the guardian ad litem, who recommended the children remain
together in the legal custody of their paternal aunt and uncle.
Despite mother’s progress, the focus must remain on the welfare of
the children. In each child’s case, the juvenile court independently reviewed the
matter, considered relevant best-interest factors, made findings that are supported
by the record, and concluded the child’s return to mother’s home, at this time, would
be contrary to the child’s best interest and that an award of legal custody to the
paternal aunt and uncle would serve the best interest of the child. Upon careful
review, we find that the juvenile court did not abuse its discretion and that the
judgment in each child’s case was supported by the preponderance of the evidence.
We are not persuaded by mother’s arguments otherwise.
We also recognize that the juvenile court ordered reasonable
parenting time with J.P., Sp.P., and C.P. and allowed supervised visitation to resume
with So.P. when the child so wishes. Because this is an award of legal custody,
mother retains residual parental rights, privileges, and responsibilities. We
commend mother for the positive steps she has taken and strongly encourage that
she engage in family counseling with the children. An award of legal custody does
not permanently foreclose a parent’s right to regain custody in accordance with the
law in the future. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188,
at ¶ 23, citing R.C. 2151.42.
The assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of 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.
__________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE OPINION
CORNELIUS J. O’SULLIVAN, JR., J., CONCURRING IN PART AND
DISSENTING IN PART:
Respectfully, I concur in part and dissent in part. I concur in part
with the majority’s judgment as it relates to So.P. — that legal custody of her should
be granted to the paternal aunt and uncle. I dissent as to the majority’s judgment
that legal custody of the other three children, J.P., Sp.P., and C.P., should be granted
to the aunt and uncle.
The juvenile court has exclusive jurisdiction to determine the custody
of any child not a ward of another court of this state. R.C. 2151.23(A)(2). “It is well
recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.”
In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), citing In re Murray,
52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). Thus, “the overriding principle in
custody cases between a parent and nonparent is that [biological] parents have a
fundamental liberty interest in the care, custody, and management of their
children.” In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971,
¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). “This interest is protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and by Section 16, Article I of the Ohio
Constitution.” In re Hockstok at id., citing Santosky at id., and In re Shaeffer
Children, 85 Ohio App.3d 683, 689-690, 621 N.E.2d 426 (3d Dist.1993). “Since
parents have constitutional custodial rights, any action by the state that affects this
parental right, such as granting custody of a child to a nonparent, must be conducted
pursuant to procedures that are fundamentally fair.” In re Hockstok at id., citing
Santosky at 754, and In re Adoption of Mays, 30 Ohio App.3d 195, 198, 507 N.E.2d
453 (1st Dist.1986).
The juvenile court found that appellant had made “some progress” on
her case plan, but that “progress has not been made in alleviating the cause for the
removal of the child[ren] from the home.” I disagree.
Mother’s underlying issue in this case was alcohol abuse that was
brought on by the trauma associated with her husband killing a person while driving
intoxicated and subsequently being imprisoned. Appellant acknowledged that her
life spiraled out of control in the aftermath of these events.
However, she did what was required of her to address her alcohol
abuse. The juvenile court noted that she “completed on her own inpatient and
outpatient treatment”1 and that, at the time of trial, she had been sober for over one
year. Further, she was employed, had appropriate housing, and was involved with
Sober Living Homes, Ohio. The owner of Sober Living Homes, Ohio testified that
appellant was singularly focused on getting sober so that she could regain custody
of her children. Appellant “excelled” in the program, and the owner made her
“house mother” because she was so effective on keeping the participants in the
program “on track.” The juvenile court also found that appellant was able to meet
the basic needs of the children.
Appellant testified that she learned coping skills and tools through
counseling and expressed remorse for her prior behavior. She testified that she is
“willing to do whatever anyone deems necessary to build * * * relationships back
[with her children]” and gain their trust. So.P. did not want to be reunified with
appellant, but the other children did.
Part of the juvenile court’s reasoning in denying appellant’s request
for legal custody was that she had not engaged in family counseling with the
children. The record demonstrates that appellant was willing to engage in family
1 The record demonstrates that CCDCFS did not refer appellant for substance
abuse services because at the time it became involved with her she had already been
engaged in services on her own accord.
counseling — indeed she repeatedly requested it — but CCDCFS never arranged it.
I believe a significant roadblock to arranging that was, and will be going forward,
the physical distance between appellant, who is in Ohio, and the children, who are
in Indiana.
The denial was also based on the court’s determination that the
children were bonded to their aunt and uncle and doing well in their placement at
their home. I believe that using that determination to deny appellant custody
amounts to the court using the initial award of custody against appellant. See In re
C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 29 (Pfeifer, J.,
dissenting) (“[T]he magistrate used the initial award of custody against [appellant
father] when he stated that [the child] ‘could face confusion and/or loss of security
and stability [if legal custody were taken from the [custodians] and awarded to
[father]].’”) In my opinion, that reasoning ignores appellant’s constitutional rights
to custody of her biological children and demonstrates that her rights have not been
appropriately considered at any stage of the proceedings.
The record demonstrates that the children were bonded with
appellant prior to the tragic set of circumstances at play here and the three younger
ones expressed their desire to be reunited with her. The agency’s failure to put a
“preferred” program in place should not work to keep the family apart.
For the reasons discussed above, I concur in part and I dissent in part.
I would affirm the juvenile court’s decision as it relates to So.P. and would overrule
it as it relates to J.P., Sp.P., and C.P.