In re M.J.M.
JUDGMENT: AFFIRMED
RELEASED: April 15, 2010
JOURNALIZED:
ATTORNEY FOR APPELLANT
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE, Cuyahoga County Department of Children and Family Services
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant Prosecuting Attorney
4261 Fulton Parkway
Cleveland, Ohio 44144
ALSO LISTED
M.J.M. (father) (pro se)
8001 Bancroft Avenue
Cleveland, Ohio 44105
N.B. This entry is an announcement of the court‘s decision. See
FRANK D. CELEBREZZE, JR., J.:
{¶ 2} Prior to March 7, 2009, M.J.M. primarily stayed with her mother, but had a continuing relationship with her father. She often stayed at her father‘s house and was looked after a great deal by her paternal grandmother. M.J.M. shared mother‘s house with mother‘s boyfriend, A.V., and her one-year-old half-brother, S.V.
{¶ 3} On March 7, 2009, S.V. was taken to the hospital suffering from severe, non-accidental injuries including irreparable brain damage, skull fractures, and blindness. S.V. had shaken baby syndrome and severe trauma. Appellant could offer no explanation as to how the injuries occurred while S.V. was in her and A.V.‘s custody, and both were indicted and charged with felonious assault and domestic violence.
{¶ 4} After this incident, the Cuyahoga County Department of Children and Family Services (“CCDCFS“) sought an emergency temporary сustody order of S.V. and M.J.M., which was granted by the magistrate on March 25, 2009. M.J.M., who had been staying with her father since the incident,
{¶ 5} An adjudicatory hеaring was held on June 11, 2009. Appellant admitted to an amended complaint, including that she had a history of domestic violence, which included violence and emotional abuse in front of M.J.M. Also, appellant could not offer an explanatiоn for S.V.‘s injuries. Testimony was presented on the extent of appellant‘s anger management problem. Theresa Almusaad, a social worker with CCDCFS, testified about appellant‘s extensive history of domestic disturbance reports. The court found M.J.M. to be a neglected and dependant child pursuant to
{¶ 6} At a dispositional hearing held on June 15, 2009, two CCDCFS social workers were called as witnesses. Ms. Almusaad and Thomas Mather both testified that M.J.M. had been residing with her father for more than three months, and they recommended that he be awarded legal custody. They discussed the father‘s ability to provide for M.J.M.‘s basic needs, including dеtails of his housing and employment. The guardian ad litem appointed for M.J.M. also testified and recommended that the father be granted legal custody. At the conclusion of the hearing, the magistrate
{¶ 7} Appellant assigns two errors for our review, claiming the juvenile court abused its discretion in overruling the magistrate‘s determination and that doing so was not in the best interest of the child.2
Rejection of the Magistrate‘s Decision
{¶ 8} The decision of the juvеnile court to accept or reject the determination of a magistrate is reviewed under an abuse of discretion standard. “An award of legal custody shall not be reversed on appeal absent an abuse of [that] discretion.” In re Nice, 141 Ohio App.3d 445, 2001-Ohio-3214, 455, 751 N.E.2d 552. To сonstitute an abuse of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. “‘The term discretion itself involves the idea of choice, of an exercise of the will, of a determination
{¶ 9} As an initial matter, the parties differ as to what standard the trial court must use in making its determination to award legal custody. Appellant claims that because parental rights are being terminated, the court must use a clear and сonvincing evidentiary standard. In re Wise (1994), 96 Ohio App.3d 619, 624, 645 N.E.2d 812. However, Wise dealt with an award of permanent custody, terminating all parental rights. The proper standard in the instant case is proof by a preponderance of the evidence, as argued by CCDCFS. Nice, supra, at 455, 751 N.E.2d 552. This lower standard of proof is applicable here because parental rights are not being permanently terminated. In re J.O., Cuyahoga App. No. 87626, 2007-Ohio-407, ¶11.
{¶ 10}
{¶ 11} It is clear that when a juvenile court awards legal custody, it does so by examining what would be in the best interest of the child based on a preрonderance of the evidence. This is because “an award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities.” In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶17. See, also,
{¶ 12} Here, the court adjudicated M.J.M. to be neglected and dependent. “A juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child‘s custodial and/or noncustodiаl parents. It does not, however, permanently foreclose the right of either parent to regain custody because it is not a termination of all residual parental rights, privileges, and responsibilities, and therefore a motion for a chаnge of
{¶ 13} The award of legal custody is authorized by statute once a child has been adjudicated neglected and dependent.
Best Interests of the Child
{¶ 14} Of paramount concern when making custody determinations is the best interest of the child. In re A.W.-G., Butler App. No. CA2003-04-099, 2004-Ohio-2298, ¶6. Appellant argues that the juvenile court erred when it determined thаt an award of legal custody was appropriate because she should have been given the opportunity to work through her case plan before such a determination was made. Appellant cites her lack of prior history with CCDCFS, as well as the lack of allegations of abuse involving M.J.M. While allowing appellant to work through her case plan may be in appellant‘s best interest, that is not a factor in the analysis of what is in the child‘s best interest.
{¶ 16}
{¶ 17} “(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
{¶ 18} “(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
{¶ 19} “(c) The custodial history of the child * * * ;
{¶ 21} Evidence exists in the record that demonstrates that M.J.M. interacted well with her half-sister in her father‘s home; was well cared for by her father, her father‘s fianceé, and her grandmother; and wished to bе placed in the legal custody of her father, as expressed through her guardian ad litem. Appellant stipulated that she had a history of domestic violence, that she subjected M.J.M. to displays of physical and mental abuse, and that M.J.M.‘s half-brother wаs severely injured while in appellant‘s care and custody. S.V. will likely require specialized care for the remainder of his life. Also, at the time of the dispositional hearing, appellant was in jail awaiting trial on charges related to S.V.‘s injuries. This unavаilability, along with all the other evidence adduced at the dispositional hearing, weighed in favor of awarding legal custody to a ready, willing, and able father.
Conclusion
{¶ 23} Contrary to appellant‘s claims, she remains free to visit M.J.M. and maintain their familial relationship. Her parental rights have not been terminated by the decision of the juvеnile court. In re C.R., supra, at ¶17.
{¶ 24} Here, the juvenile court reached the determination that it was in M.J.M.‘s best interest to be placed in the legal custody of her father. That determination is supported by a preponderance of the evidence and is not arbitrаry, unconscionable, or unreasonable; therefore, it will not be overturned by this court.
{¶ 25} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR