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Date: 12-04-2017

Case Style:

In Re: K.C. and A.G.

Case Number: 17CA011135

Judge: Jennifer Hensal

Court: Ohio Court of Appeals on appeal from the Court of Common Pleas, Lorain County

Plaintiff's Attorney: Dennis P. Will

Defendant's Attorney: Robert Cabrera

Description: {¶1} Appellant Mother appeals the judgment of the Lorain County Court of Common
Pleas, Juvenile Division, that granted legal custody of her children K.C. and A.G. to Paternal
Great Aunt and Uncle (“Aunt” and “Uncle”). For the following reasons, this Court affirms.
I.
{¶2} Mother is the biological mother of K.C. (d.o.b. 12/15/11) and A.G. (d.o.b.
8/22/15). Father is the biological father of A.G. Paternity was never established as to K.C.; and
that child’s alleged father did not participate in any proceedings, despite proper service. Aunt is
the biological paternal great aunt of A.G. and an interested third party relevant to K.C. Uncle is
an interested third party as to both children.
{¶3} In October 2015, Lorain County Children Services (“LCCS”) received a referral
alleging that the children were witnesses to domestic violence in the home between Mother and
Father, that Mother was using heroin and other drugs, that a drug deal in the parents’ home had
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resulted in a hostage situation involving the children, that Mother was experiencing mental
health issues, that the parents were recently evicted, and that Father had been incarcerated for
failing to register as a sex offender. LCCS initiated a safety plan for the family wherein the
children and Mother moved in with a paternal relative. A month later, LCCS filed a complaint
alleging that the children were neglected and dependent. A few days later, Mother agreed to
participate in the Lorain County Family Drug Court and participate in treatment at Lorain
County Alcohol and Drug Abuse Services, Inc. (“LCADA”) in an effort to address her substance
abuse issues. Unfortunately, Mother terminated her services at LCADA, leaving her ineligible
for further participation in the drug court.
{¶4} After contested hearings, K.C. and A.G. were adjudicated neglected and
dependent and placed in the temporary custody of Aunt with an order of protective supervision
to LCCS. The juvenile court adopted the agency’s case plan as the order of the court. Mother’s
case plan objectives included significant substance abuse, domestic violence, and mental health
components. In addition, Mother was required to obtain adequate and appropriate housing,
demonstrate the ability to meet the children’s basic needs, regularly visit with the children, and
cooperate with the caseworker.
{¶5} Five months after the initial disposition, LCCS filed a final dispositive motion for
legal custody to Aunt and Uncle and a termination of the agency’s protective supervision. Aunt
and Uncle both signed the requisite statement of understanding relevant to a third party’s
assumption of legal custody. A contested custody hearing took place before the magistrate
almost a year after the agency filed its complaints in this case, and approximately six weeks after
Mother relocated to Tennessee. During closing arguments, Mother requested a six-month
extension of temporary custody. In her decision, the magistrate found that LCCS had used
3
reasonable efforts to prevent the continued removal of the children from their home. She
awarded legal custody to Aunt and Uncle and terminated the agency’s order of protective
supervision. The juvenile court adopted the magistrate’s decision and ordered that the children
be placed in the legal custody of Aunt and Uncle and that the agency’s protective supervision be
terminated.
{¶6} Mother filed a timely objection, asserting only that the evidence did not support
the magistrate’s decision. She supplemented her argument with citations to the record after the
transcript of the hearing was filed. LCCS responded in opposition to Mother’s objection. After
hearing oral arguments, the juvenile court overruled Mother’s objection and adhered to its prior
order awarding legal custody and terminating protective supervision. Mother filed a timely
appeal in which she raises two assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S GRANT OF LEGAL CUSTODY TO [ ] AUNT AND
UNCLE, WHICH ENCOMPASSED A FINDING THAT LEGAL CUSTODY
WAS IN THE “BEST INTERESTS” OF THE CHILDREN AND THAT THE
AGENCY EXPENDED “REASONABLE EFFORTS” TO REUNIFY THE
CHILDREN WITH MOTHER, AND ITS CORRESPONDING DENIAL OF
MOTHER’S REQUEST FOR A SIX-MONTH EXTENSION, CONSTITUTED
AN ABUSE OF DISCRETION AND WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶7} Mother argues that the juvenile court’s findings that LCCS used reasonable
efforts to reunify the children with Mother and that an award of legal custody of K.C. and A.G.
to Aunt and Uncle was in the best interest of the children were against the manifest weight of the
evidence.
On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
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persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
court does not have discretion to enter a judgment that is adverse to that interest.
Thus, our standard of review is whether a legal custody decision is against the
manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶8} 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.
{¶9} “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, quoting 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 Revised Code
Section 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.
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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
Section 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th
Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 16. In addition, the juvenile court may
also look to the best interest factors in Section 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 his or 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).
{¶10} K.C. and A.G. have adjusted well in their home with Aunt and Uncle. Initially,
the then-4-year old K.C. was very angry when he was placed with his relatives. He threw
tantrums and toys. He hit and kicked Aunt, and punched another child in the home. However,
after counseling to address his violent behaviors, K.C. is no longer angry and has acclimated
peacefully to his current home. The children share a close bond with each other, as well as with
Aunt, Uncle, and an 8-year old cousin living in the home. K.C. has also adjusted well in school.
He interacts appropriately with classmates, appears happy, and volunteers. He is on target with
kindergarten readiness skills. Aunt and Uncle have addressed the child’s chronic ear infections
requiring removal of his adenoids, and his significant dental issues requiring eight root canals
and a filling. A.G. has been assessed by Help Me Grow and is developmentally on target as
well. She has no health issues.
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{¶11} While Mother behaves appropriately during visitations with the children, and the
three clearly love each other, Mother has attended fewer than half of the visitations to which she
was entitled. After relocating to Tennessee, Mother engaged in video chats with the children at
least weekly, although it is unclear how meaningful such visitation would have been to the one
year old A.G.
{¶12} K.C. was not quite four years old, and A.G. was almost three months old, when
they were removed from Mother’s home. By the time of the hearing, the children had spent
almost eleven months in Aunt’s and Uncle’s care. Given the young ages of the children, they
were not competent to articulate a custodial preference. The guardian ad litem reported that it
was in the best interest of the children to be placed in the legal custody of Aunt and Uncle based
on her concerns, and Mother’s admission to her, that Mother could not provide a home and
support for the children.
{¶13} Although Mother argues that her case plan compliance indicates that she would be
able to provide a safe and stable permanent environment for the children in the near future, a
preponderance of the evidence demonstrates otherwise. Her case plan objectives included
substance abuse, domestic violence, mental health, and basic needs components.
{¶14} Mother has a significant substance abuse history. She is a recovering heroin
addict. Although she had not used heroin in five years, she had recently used other illegal
substances despite participation in multiple substance abuse treatment programs. After leaving
the program at LCADA, and thereby being terminated from Family Drug Court, Mother engaged
in and successfully completed a drug treatment program at Psych and Psych in April 2016.
Nevertheless, Mother tested positive for marijuana use in June 2016, and positive for both
marijuana and cocaine use in both July and August 2016. She blamed her relapse on stressors in
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her life and the fact that she is a recovering addict. Specifically, although she identified Father
as a negative influence on her and a catalyst for her drug use, Mother explained that she used
marijuana and cocaine even after she broke up with Father because the break up resulted in her
having to leave the home the two shared, thereby leaving her homeless.
{¶15} When Mother moved to Tennessee, she entered an inpatient treatment facility, but
left the six-month program after only ten days. Mother explained that she did not believe the
program was helpful, because it was solely faith-based and would not allow her to communicate
with anyone outside of “remedial family.” Mother claimed to have then enrolled in an outpatient
drug treatment program within days of leaving the inpatient facility. Mother testified that she
last used illegal drugs a little over a month before the hearing. Accordingly, Mother either used
drugs at the inpatient facility or in the short period of time between leaving the inpatient facility
and enrolling in outpatient treatment. After many years of substance abuse, Mother had attained
sobriety for just over a month at the time of the hearing. Although Mother’s grandmother, with
whom she lives in Tennessee, supports Mother’s efforts for rehabilitation, the grandmother
testified that she calls Mother’s boss every day to verify that Mother actually went to work
instead of someplace else to use drugs.
{¶16} The caseworker referred Mother to Genesis House for a domestic violence
assessment. After submitting to the assessment, Mother began a 12-week domestic violence
group treatment program. She attended two sessions and quit. Although the caseworker
encouraged Mother to obtain a reassessment and return to treatment, Mother failed to do so.
Mother blamed her domestic violence issues on Father’s infidelity and their “toxic” relationship.
Mother admitted punching Father in the face in the summer of 2016, but “[m]ore or less in like
self-defense.” At the time of the hearing, there was a domestic violence charge pending against
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Mother arising out of another incident when she ran over Father’s foot with her car in the fall of
2016.
{¶17} As for mental health services, Mother engaged sporadically in treatment with
various providers, always leaving without successfully completing any programs. She engaged
in couples’ counseling with Father for two sessions, but stopped when she decided to leave
Father. Although she claimed to have ceased all contact with Father, he testified that Mother
continues to call him and just recently notified him that she was in town.
{¶18} Mother also participated in mental health treatment at Charak Center, where she
was diagnosed with bipolar disorder and put on medication. Reasoning that because she had no
need for medication before meeting Father, Mother stopped taking her prescribed medication and
declared, “I don’t have a mental health problem.”
{¶19} Given the ongoing concerns for Mother’s substance abuse, domestic violence, and
mental health issues, LCCS focused less attention on Mother’s ability to provide for the basic
needs of the children. However, the caseworker noted that Mother lost her housing in Ohio,
when she had to vacate the trailer she and Father had purchased together, after Father reported an
incident of domestic violence to the police. At the time of the hearing, Mother was living in her
aunt’s four-bedroom home in Tennessee with at least five other people. Her grandmother
testified that she planned to give Mother her home in Tennessee after a black mold problem in
two bedrooms was eradicated. That home had been in the process of rehabilitation for six
months, and Mother’s grandmother estimated it would take at least another six months due to
cost issues. Notwithstanding her grandmother’s assertion that she would give Mother a
mortgage-free home in Tennessee, Mother’s future residency remains unclear. Mother testified
9
that she plans to finish her treatment in Tennessee and then reengage with her counselor at Psych
and Psych, indicating an intention to return to Ohio. However, Mother had no housing in Ohio.
{¶20} Nor did Mother have any definitive employment prospects in Ohio. On the other
hand, Mother found temporary part-time employment in Tennessee mowing grass. She recently
obtained alternative part-time employment at a fast food restaurant. Based on the evidence, it
remains unclear whether Mother intends to remain in Tennessee or return to Ohio.
{¶21} 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 K.C. and A.G. to Aunt and Uncle. The evidence established that Mother had not
addressed the issues, namely substance abuse, domestic violence, and mental health, that
jeopardized the safety and stability of the children. Despite moving from one treatment program
to another, Mother continued to use drugs, including marijuana and cocaine. She had only been
sober for about a month at the time of the hearing. Moreover, Mother demeaned the seriousness
of her issues. She blames others, in particular Father, for her relapses into substance abuse and
her acts of domestic violence. In addition, she denies having any mental health issues, despite
being diagnosed with bipolar disorder. Mother admitted that she was not ready to assume
responsibility for the two children, and her lack of substantial progress on her case plan
objectives indicates that she would not likely have resolved her issues within the term of a sixmonth
extension of temporary custody.
{¶22} On the other hand, the children are thriving in Aunt’s and Uncle’s home, where
all of their needs are being met. Aunt and Uncle have shown a dedication to the long term
safety, care, and support of the children. They are agreeable to facilitating a relationship
between the children and Mother and Father. Under the circumstances, the juvenile court’s
10
finding that an award of legal custody to Aunt and Uncle was in the best interest of the children
was not against the manifest weight of the evidence.
{¶23} Mother further argues that the juvenile court’s finding that LCCS used reasonable
efforts to facilitate reunification of the children with her was against the manifest weight of the
evidence.
{¶24} Section 2151.419(A)(1) requires the agency to prove that it has made “reasonable
efforts to prevent the removal of the child from the child’s home, to eliminate the continued
removal of the child from the child’s home, or to make it possible for the child to return safely
home.” Moreover, “[i]n determining whether reasonable efforts were made, the child’s health
and safety shall be paramount.” Id. Although Chapter 2151 does not define “reasonable
efforts,” courts construe the term to mean “‘[t]he state’s efforts to resolve the threat to the child
before removing the child or to permit the child to return home after the threat is removed[.]’” In
re T.B.-W., 9th Dist. Summit No. 27544, 2015-Ohio-992, ¶ 15, quoting In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, ¶ 28, quoting Will L. Crossley, Defining Reasonable Efforts:
Demystifying the State’s Burden Under Federal Child Protection Legislation, 12
B.U.Pub.Int.L.J. 259, 260 (2003). “In a reasonable efforts determination, the issue is not
whether the agency could have done more, but whether it did enough to satisfy the
reasonableness standard under the statute.” In re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-
943, ¶ 21, citing In re Myers, 4th Dist. Athens No. 02CA50, 2003-Ohio-2776, ¶ 18.
{¶25} Mother challenges the agency’s use of reasonable efforts to reunify her with the
children solely on the basis of the agency’s failure to discuss Mother’s treatment or prognosis
with service providers since her move to Tennessee six weeks before the hearing. However,
Mother decided without consultation with the caseworker to move to Tennessee to be with
11
family. The caseworker only learned a few weeks before the hearing after calling Mother for
information that Mother had started outpatient substance abuse treatment services in Tennessee.
Because Mother had only participated in outpatient treatment for three weeks of a twelve-week
program at the time of the hearing, it is unclear how the caseworker’s discussion with that
treatment provider so early into treatment would have revealed any additional relevant
information in this case. Moreover, as Mother had only remained in inpatient treatment after
shortly arriving in Tennessee for 10 days (of a six-month program) before leaving that facility
because she did not think the program was helpful, that service provider would have had no
information relevant to the issue of the likelihood of reunification.
{¶26} On the other hand, the caseworker testified that throughout this case he (1)
implemented multiple safety plans for the family prior to adjudication and disposition, (2)
referred Mother to drug court, (3) referred Mother for various substance abuse programs, (4)
referred Mother for mental health services, (5) facilitated and attended multiple family team
meetings to discuss and implement case planning with the parties, and (6) conducted multiple
home visits to observe the parents, the caregivers, and the children. The record indicates that
Mother’s lack of insight into her accountability and her failure to consistently take advantage of
services, rather than a lack of reasonable efforts by the agency, prevented Mother’s reunification
with the children. Based on our review, we cannot conclude that the juvenile court’s finding that
LCCS made reasonable efforts to facilitate reunification of the children with Mother was against
the manifest weight of the evidence. Mother’s first assignment of error is overruled.
12
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN CONSIDERING THE GAL REPORT IN
MAKING ITS DETERMINATION REGARDING THE BEST INTERESTS OF
THE CHILDREN, AS THE GAL DID NOT COMPLY WITH HER DUTY
UNDER THE LAW TO CONDUCT AN ADEQUATE INVESTIGATION
PRIOR TO GIVING HER RECOMMENDATION TO THE COURT.
{¶27} Mother argues that the juvenile court erred in considering the report of the
guardian ad litem in rendering its judgment, because the guardian did not conduct a dutiful
investigation. Mother failed to preserve this issue for appeal by failing to object below.
Although she filed an objection to the magistrate’s decision, Mother limited her objections to
challenging the weight of the evidence on the issues of reasonable efforts and the best interest of
the children. She never moved to strike the guardian’s report or otherwise objected to its
consideration by the juvenile court.
{¶28} Juvenile Rule 40(D)(3)(b)(iv) provides:
Except for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Juv.R.
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).
Therefore, “[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s
decision, it may not be raised for the first time on appeal.” Varner v. Varner, 9th Dist. Wayne
No. 06CA0024, 2007-Ohio-675, ¶ 22. As Mother failed to challenge the performance of the
guardian ad litem in her objection, she has forfeited the issue on appeal, except for a claim of
plain error. See Juv.R. 40(D)(3)(b)(iv). Accordingly, Mother must demonstrate that it was plain
error for the juvenile court to have considered the report of the guardian ad litem in determining
the best interest of the children.
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{¶29} To date, this Court has declined to determine whether the criminal or civil plain
error standard is applicable to dependency, neglect, and abuse cases. In re S.G., 9th Dist.
Summit No. 27428, 2015-Ohio-2503, ¶ 11, citing In re D.S., 9th Dist. Summit No. 24619, 2009-
Ohio-3167, ¶ 10. Nor need we do so in this case, as Mother failed to show under either standard
that the juvenile court committed plain error in considering the guardian’s report.
In the criminal context, plain error does not exist unless it can be said that but for
the error, the outcome of the trial would have been different and that reversal is
necessary to prevent a manifest miscarriage of justice. State v. White, 142 Ohio
St.3d 277, 2015-Ohio-492, ¶ 57. The civil plain error standard may be applied
only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79
Ohio St.3d 116 (1997), syllabus.
(Internal quotations omitted.) In re S.G. at ¶ 11.
{¶30} The guardian ad litem visited the children at least monthly. She observed
Mother’s interaction with the children during visits, as well as the children’s acclimation in the
caregivers’ home. She spoke with all parties, as well as the caseworker, to gather information.
She testified that she focused her investigation on the children, rather than on the parents. In
addition, the guardian ad litem explained that she had not had contact with Mother since she
moved to Tennessee, because Mother never contacted her. Mother testified that she changed her
phone number after moving to Tennessee to avoid calls from Father.
{¶31} As discussed above, the juvenile court heard evidence from multiple witnesses,
including Mother herself, indicating concerns about Mother’s ability to provide the children with
a safe and stable environment. The LCCS caseworker expressed serious concerns about
Mother’s failure to address her long term substance abuse, mental health, and domestic violence
issues, all of which would negatively affect her ability to provide necessary care for the children.
14
Mother admitted that, even though she completed a substance abuse treatment program at Psych
and Psych, she continued to use illegal substances, including marijuana and cocaine as recently
as a month before the hearing. Mother also admitted that she punched Father in the face and that
there was a recent domestic violence charge pending against her for another incident with Father.
She further dismissed her recent mental health diagnosis for bipolar disorder and refused to take
her prescribed medication. Regarding all of these issues, Mother refused to accept any
responsibility and blamed her substance abuse relapse, violent behavior, and alleged erroneous
mental health diagnosis on Father and the stress and influence he brought into her life.
{¶32} As this Court concluded in an analogous case, “[e]ven if [Mother] could
demonstrate that the investigation of the guardian ad litem was insufficient in this case, it was
[Mother’s] own behavior, not the opinion of the guardian ad litem, that convinced the trial court
that [Mother] could not provide a suitable permanent placement for the children.” See In re K.T.,
9th Dist. Summit Nos. 28411, 28424, and 28440, 2017-Ohio-2638, ¶ 42. Here, Mother has
failed to demonstrate that the juvenile court’s consideration of the report of the guardian ad litem
was plain error. Mother’s second assignment of error is overruled.
III.
{¶33} Mother’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
15
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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.

Outcome: Affirmed

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