In re M.S.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 12, 2019
Civil Aрpeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-17909379
Appearances:
Wargo Law, L.L.C. and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael F. Kulcsar, Assistant Prosecuting Attorney, for appellee Cuyahoga County Division of Children and Family Services.
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant-mother L.H. (“Mother”) appeals the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”) granting legal custody of her son, M.S., to his father. For the reasons that follow, we affirm the juvenile court’s decision.
{¶ 2} On June 15, 2017, appellee Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the agency”) filed a complaint, alleging that M.S. (born February 24, 2007) and his half-brother J.H. (born June 18, 2009)1 were neglected and dependent and requested that M.S. be placed in the temporary custody of his father, appellee W.S. (“Father”), and that J.H. be placed in the temporary custody of his father, B.M. Specifically, the complaint alleged that (1) Mother had failed to enroll the children in school for the 2016-2017 school year, (2) the children had not attended school since April or May 2016, (3) Mother was living in a homeless shelter and did not have safe and stаble independent housing and (4) Mother had a substance abuse problem, specifically PCP and marijuana, and had been diagnosed with bipolar disorder and depression, which prevented her from providing adequate care for the children. On July 5, 2017, M.S. was committed to the predispositional temporary custody of Father, and J.H. was committed to the predispositional temporary custody of B.M.
{¶ 3} On August 15, 2017, Mother stipulated to the allegations of an amended complaint2 and the juvenile court thereafter adjudicated M.S. to be
{¶ 4} CCDCFS filed a case plan that required Mother to (1) participate in a domestic violence program or counseling to address anger management and other issues associated with being a victim of domestic violence, (2) participate in mental health services, (3) obtain and maintain safe, stable and appropriate housing, (4) ensure that her children have all of their basic needs met, including food, clоthing, shelter, medical care and education and (5) comply with any drug treatment recommendations, maintain a drug-free lifestyle and submit to random drug screens. The permanency goal was reunification of the children with Mother. The juvenile court approved the case plan.
{¶ 5} On October 23, 2018, the guardian ad litem (“GAL”) submitted a report and recommendation. With respect to Mother, the GAL reported that Mother had secured a two-bedroom apartment, that Mother was receiving mental health services and taking medication for bipolar disorder, PTSD and depression and that
{¶ 6} With respect to Father, the GAL reported that Father lived in an apartment with his mother and M.S. and that he had a job oрportunity in Atlanta, Georgia but had postponed moving to Atlanta until he was granted full custody of M.S. The GAL stated that M.S. had been “doing well” while in Father’s care, had benefited from the “structure and consistency” of Father’s home and that his grades had improved with improved school attendance. The GAL indicated that M.S. had “mixed feelings” about remaining with Father and moving to Atlanta because he loves both his parents and wants to spend time with both parents and J.H. The GAL recommended that legal custody be granted to Father and that Mother be granted an out-of-state pаrenting schedule once Father moved to Atlanta.
{¶ 7} On October 30, 2018, CCDCFS filed a motion to terminate temporary custody and grant legal custody to Mother with protective supervision. The agency asserted that it was in the best interest of M.S. to be returned to Mother’s care and custody because she had “substantially complied with the case plan and ha[d] reduced the risk that initially caused the children to be removed.” Specifically, the agency noted, Mother had completed a substance abuse assessment, was engaged in
{¶ 8} On November 30, 2018, Father filed a motion for legal custody of M.S. Father argued that it would be in M.S.’s best interest for him to be granted legal custody of M.S. because (1) M.S. had been living with Father “without any problems” for over a year, (2) Father had been “consistently meeting M.S.’s basic needs and providing him with a nurturing home” without the need for any ongoing services or supervision, (3) M.S. had “settled comfortably into Father’s family,” bonding with his other half-siblings and excelling in school and (4) protective supervision would be necessary to ensure M.S.’s safety and well-being in Mother’s care.
{¶ 9} On December 18, 2018 and January 22, 2019, Mother tested positive for PCP. Mother denied using PCP. According to CCDCFS, Mother attributed the positive drug screens to her “mistaken” use of old cigarettes laced with PCP.
{¶ 10} In February 2019, the magistrate appointed counsel for M.S. due to a conflict between M.S.’s wishes and the recommendation of the GAL. Based on “new concerns * * * regarding Mother’s ability to maintain her sobriety,” CCDCFS filed (1) a motion to withdraw its prior motion to terminate temporary custody and award legal custody with protective supervision to Mother and (2) a motion to modify temporary custody to legal custody to Father.
{¶ 11} On February 19, 2019, the GAL submitted an updated report and recommendation in which the GAL again recommended that legal custody of M.S.
{¶ 12} With respect to Father, the GAL reported that Father continued to рrovide appropriate care for M.S., ensuring that he receives a “solid education” and that CCDCFS had investigated an allegation related to marijuana use by Father’s older children. The GAL stated that M.S. was “very clear” that he loves both of his parents but that he would prefer to live with Mother and visit Father. The GAL stated that this was “partly due” to Father’s plan to move to Atlanta after the custody issue was resolved, which “complicates things even further.”
{¶ 13} On March 4, 2019, the magistrate held a hearing on the pending motions. M.S. was then 12 years old. Rhonda Parmer, one оf the CCDCFS social workers who handled M.S.’s case, testified at the hearing.
{¶ 14} Parmer testified that, prior to CCDCFS’s involvement, Mother was the primary caregiver of M.S. She indicated that the agency became involved when
{¶ 15} Parmer stated that when she was assigned to the case in December 2017, a case plan was in place, with the goal of reunifying M.S. and J.H. with Mother. The plan required Mother to secure and maintain appropriate housing, take domestic violence classes and participate in mental health and substance abuse services. Parmer testified that Mother completed a drug and alcohol assessment in January 2018, that there were no recommendations for drug treatment at that time and that a random drug screen to which Mother submitted in April 2018 was negative. Parmer stated that by June 2018, Mother had obtained appropriate housing, had completed domestic violence classes and had consistently complied with the mental health aspects of her сase plan, including engaging in recommended behavioral therapy and taking prescribed medications. Parmer indicated that Mother appeared to benefit from the services she had received and that Mother had also voluntarily taken parenting classes, which had not been required as part of her case plan.
{¶ 16} Parmer testified that in June 2018, based on Mother’s progress with her case plan objectives, she recommended that Mother be granted legal custody of M.S. That changed, however, after Mother tested positive for PCP in December 2018 and January 2019.
{¶ 17} Parmer testified that after the agency received the results of Mother’s first positive drug screen, she discussed them with Mother. She stated that Mother
{¶ 18} After her positive drug screens, Mother cоmpleted another substance abuse assessment, resulting in a recommendation that Mother participate in an intensive outpatient drug treatment program (“IOP”). In mid-February 2019, Mother began a 90-day IOP treatment program. As of the date of the hearing, Mother had completed 2-3 weeks of IOP treatment. Parmer indicated that Mother was drug tested twice a week while in treatment and that she had not had any positive drug screens since starting IOP treatment. Parmer stated that CCDCFS was not comfortable with reunifying M.S. with Mother at that time “just due to the substance abuse piece” and that the agency “would need to see more” from Mother, i.e., that she was “maintaining her sobriety and following through,” before the agency would be comfortable reunifying M.S. with Mother.
{¶ 19} Parmer testified that although CCDCFS was not comfortable returning M.S. to Mother’s care, it was comfortable with Mother retaining custody of his younger brother, J.H., who had been reunified with Mother before the agency received the results of Mother’s positive drug screens. Parmer indicated that by the time the agency learned of Mother’s positive drug screens, in-home family preservation services had already been engaged, J.H. was “active and enrolled” in
{¶ 20} With respect to Father, Parmer testified that Father had been an “involved father” prior to the agency’s involvement. Parmer stated that the agency had no concerns regarding hоw Father was parenting M.S., that Father had never been referred for any services, that M.S.’s basic needs were being met while living with Father and that there had been no issues with school attendance while M.S. was in Father’s care. Parmer acknowledged that an incident had occurred in the parking lot outside Father’s home in November or December 2018 in which one of Father’s other children, who was up from Atlanta visiting Father, had offered M.S. marijuana. She indicated that the incident was investigated, that there was no indication that M.S. had used marijuana and that there werе no signs of neglect by Father, i.e., that “anything that happened * * * as far as discipline of the other children or them using marijuana,” Father handled the situation “appropriately.” Parmer stated that the incident did not impact her opinion that Father could be an appropriate caregiver for M.S. She indicated that Father had stated that he was willing and able to care for M.S. and that CCDCFS had no reason to believe otherwise.
{¶ 22} Counsel for M.S. indicated that M.S. had stated “very clearly that he misses his mother and prefers to be with his mother.”
{¶ 23} Mother’s attorney argued that Mother should be granted legal custody of M.S. with protective supervision, just as she had for J.H. He indicated that despite the fact Mother tested positive for PCP, J.H. was still in her care and custody. He asserted that J.H. had been attending school regularly, that Mother had been meeting his basic needs and that there was no evidence that Mоther would not be able to meet the basic needs of M.S. as she had been doing for J.H. Mother’s counsel noted that, aside from the IOP she had recently been asked to complete and in which she was actively participating, Mother had completed all of the case plan services to which she had been referred.
{¶ 25} At the conclusion of the hearing, the magistrate issued her decision, terminating temporary custody and granting legal custody of M.S. to Father. The magistrate determined that a continuation of temporary custody was “not necessary” and that it would be in M.S.’s best interest to grant legal custody to Father. The magistrate found that Mother had made progress on her case plan but that “progress ha[d] not been made in alleviating the cause for removal of the child from the home.” The magistrate further found that the agency had “complied with the rules and regulations pertaining to removal of the child from the home, changes in placement, and/or determinations affecting parental visitations rights” and that the agency had made reasonable efforts to make it possible for M.S. to safely return to Mother’s home. The magistrate indicated that Mother was to have visitation on alternating weekends and otherwise as agreed by the parties.
{¶ 26} After setting forth her findings, the magistrate explained her decision at the hearing as follows:
Mother, I want to commend you on what you have donе on your case plan. You do need to understand that, first of all, the child has two parents. And this is a wonderful thing. A lot of times children do not even have the luxury of being able to reside with another parent.
This father has been caring for this child properly for almost two years, at least a year and a half. And to my understanding, you have been having visitation with this child. The Court has certainly given you the opportunity to do what you needed to do on the case plan so that the child could be returned to you.
However, the Court is not going to just continue to just keep giving you more and more time if there is a father who is here and ready, willing, and able to continue to provide care for the child.
Especially, this is a boy child, and I think it’s wonderful that he’s able to have his father in his life.
So I do, again, want to commend you and I want to encourage you to continue to work your case plan as it relates to the other child.
But as this — as far as this child is concerned, I do believe it’s in his best interest for him to be in the custody of his father. You need to continue to work on whatever issues you have.
And I do consider it to be a little problematiс that if your explanation to a social worker was that you had a regular cigarette and it just happened to be laced with PCP, that’s a problem. And if that’s the case, I don’t even know how you’re around anywhere where your cigarette would be laced with PCP. * * * So at any rate, that is my decision.
{¶ 27} In her written magistrate’s decision, the magistrate further explained her decision, setting forth additional findings, as follows:
The Cuyahoga County Division of Children and Family Services has made reasonable efforts to finalize the permanency plan for the child. These efforts are substance abuse assessment and treatment as recommended, mental health services, and assistance in finding adequate housing. The Mother completed domestic violence counseling and has been consistent with mental health services. The Mother has stable and appropriate housing. The Mother completed a substance abuse assessment which did not recommend treatment. The Mother was required to submit to random drug screens. The Mother tested positive drug screen on 12/18/18. The Mother has now been recommended to сomplete IOP. There were no required case plan services for the father. The child has been residing with the Father
since 9/2017. The Father is willing and able to provide for the basic needs of the child.
{¶ 28} Mother filed objections to the magistrate’s decision, arguing that “the weight of the evidence produced at the motion hearing” supports a finding that granting legal custody of M.S. to Father is not in his best interest because: (1) Mother had substantially complied with her case plan services, alleviating the conditions that caused the removal of M.S.; (2) Mother had maintained stable, safe and appropriate housing since June 2018; (3) Mother was complying with the IOP treatment recommended following her updated substance abuse assessment; (4) Mother had legal custody with protective supervision of her younger son, J.H., and was providing appropriate care for him; (5) prior to CCDCFS involvement, Mother was the primary caregiver for M.S. and (6) M.S. wished to live with Mother and J.H.
{¶ 29} On April 24, 2019, the juvenile court overruled Mother’s objections and approved and adopted the magistrate’s findings and decision, with minor amendments. The juvenile court’s jоurnal entry adopting the magistrate’s decision added a prohibition stating that M.S. “shall not be permanently removed from the jurisdiction of the court” and requiring each parent to file a notice of intent to relocate prior to moving from the jurisdiction of the court.
{¶ 30} Mother appealed the juvenile court’s decision, raising a single assignment of error for review:
The trial court’s judgment granting CCDCFS’s motion for legal custody to the father and its determination that legal custody was in M.S.’s best interest are against the manifest weight of the evidence.
{¶ 31} “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.
{¶ 32} An award of legal custody is “significantly different” than the termination of parental rights. Unlike a case in which parental rights are terminated, where a parent loses legal custody of his or her child, the parent retаins residual parental rights, privileges and responsibilities and is not permanently foreclosed from regaining custody. In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 32; In re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14; see also
{¶ 34} An abuse of discretion occurs where a juvenile court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is unreasonable if there is “‘no sound reasoning process thаt would support that decision.”’ In re C.D.Y., 8th Dist. Cuyahoga No. 108355, 2019-Ohio-4262, ¶ 8, quoting Baxter v. Thomas, 8th Dist. Cuyahoga No. 101186, 2015-Ohio-2148, ¶ 21. A decision is arbitrary if it is made ‘“without consideration of or regard for facts [or] circumstances.’” In re C.D.Y. at ¶ 8, quoting Black’s Law Dictionary 125 (10th Ed.2014).
{¶ 35} There is no “specific test or set of criteria” that must be applied or considered in determining what is in a child’s best interest in a legal custody case. In re T.R., 2015-Ohio-4177, at ¶ 48. In contrast to permanent custody cases in which the juvenile court must consider the factors outlined in
{¶ 36} Where a decision regarding legal custody is supported by relevant, competent, credible evidence, it will not be reversed as being against the manifest weight of the evidence. In re T.R. at ¶ 46; In re S.D., 8th Dist. Cuyahoga Nos. 99410, 99411, and 99412, 2013-Ohio-3535, ¶ 13.
{¶ 37} Mother contends that the juvenile court’s decision to award legal custody to Father was against the manifest weight of the evidence because the evidence presented at the hearing showed that: (1) prior to CCDCFS’s involvement, she was M.S.’s primary caregiver and his primary source of support; (2) M.S. has stated that he loves Mother and wants to return home to Mother and J.H.; (3) Mother substantially complied with her case plan prior to the failed drug screens
{¶ 38} Although Mother was the primary caregiver of M.S. prior to the agency’s involvement, the record reflects that Father was also an “involved” parent with an active role in M.S.’s life. It is undisputed that M.S. has good relationships with both Mother and Father and loves both of his parents and J.H. very much. Although M.S. had indicated that he preferred to live with Mother and J.H. and to visit Father, this preference appeared to be based, at least in part, due to the fact that Father had been considering moving to Atlanta. According to the GAL, M.S. was concerned that if he continued to live with Father, he would have to move away from his home and Mother, J.H. and other family members who lived in Cleveland. However, no evidence was presented at the hearing that Father still planned to move to Atlanta. Further, the juvenile court placed restrictions in its judgment entry precluding the “permanent[] remov[al]” of M.S. “from the jurisdiction of the court” and requiring each parent to file a notice of intent to relocate before moving from the jurisdiction of the court.
{¶ 39} The record shows that M.S. was removed from Mother’s care and custody placed in Father’s care in July 2017. As such, M.S. had been living with
{¶ 40} It was undisputed that M.S. was thriving while in Father’s care and custody. While living with Father, M.S. was regularly attending school and his grades were improving. Although the juvenile court granted legal custody to Father, it granted Mother visitation every other weekend and otherwise as agreed by the parties. The evidence shоws that Father promoted M.S.’s relationship with Mother and encouraged regular visitation between M.S. and Mother.
{¶ 41} Based on a thorough review of the record before us, we find that the juvenile court’s determination that it was in M.S.’s best interest to be placed in the legal custody of Father was supported by a preponderance of competent, credible evidence and was not arbitrary, unconscionable or unreasonable. Accordingly, the
{¶ 42} Mother’s assignment of error is overruled.
{¶ 43} Judgment affirmed.
It is ordered that aрpellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga County 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.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
Notes
- Mother failed to enroll the children into school for the 2016-2017 school year. The children have not attended school since April/May of 2016.
- Mother does not have safe and stable independent housing; she is currently living with her brother and us currently on the waiting list for CMHA.
- Mother had a substance use disorder, specifically PCP and marijuana, which prevented her from providing adequate care for the children. Mother tested positive for PCP and marijuana on June 5, 2017. She is in the process of linking with an agency * * *.
- Mother has been diagnosed with bipolar disorder and depression which interferes with her providing adequate care for the children. Mother has sought assistance for these issues and is in counseling presently.
- Father of M.S. * * * is willing and able to care for the child.