In re O.L.
Dated: March 10, 2010
WHITMORE, Judge.
{¶1} Gwendolyn H. (“Mother“) has appealed from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that overruled her objections to the decision of the magistrate and placed one of her minor children in the legal custody of the child‘s father, Gregory L. (“Father“). This Court affirms.
I
{¶2} Mother and Father are the parents of O.L., born May 23, 2005. The parents had a brief relationship, but were never married. Mother had custody of the child for the first two and one-half years of his life, and Father had visitation, pursuant to an order of the domestic relations court. On January 24, 2008, two-year-old O.L. and his thirteen-year-old half-brother, T.H., were removed from Mother‘s home upon the discovery of marks on O.L. that suggested physical abuse. Following an adjudication that O.L. was abused and dependent and that T.H. was dependent, both children were placed in the temporary custody of Summit County Children
{¶3} A case plan was adopted, requiring Mother to address mental health and substance abuse issues. Mother had long been treated for depression and had also been diagnosed with paranoia. Father‘s case plan required him to address substance abuse issues. Eventually, Mother and Father each moved for legal custody of O.L., and CSB supported Father‘s motion. Following a hearing on the competing motions, the magistrate decided that O.L. should be placed in the legal custody of Father, as that was in the child‘s best interest. The trial court adopted the magistrate‘s decision and entered independent judgment, pending the filing of objections. Thereafter, Mother filed an objection, maintaining that the magistrate erred in finding that it was in O.L.‘s best interest to be placed in the legal custody of Father. The trial court overruled Mother‘s objection and ordered O.L. to be placed in the legal custody of Father. Mother has appealed and has assigned two errors for review.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING MOTHER‘S MOTION FOR LEGAL CUSTODY AND AWARDING LEGAL CUSTODY TO FATHER.”
{¶4} Mother‘s first assignment of error is that the trial court erred by granting legal custody of O.L. to Father.
{¶5} Initially, this Court observes that although the decision adjudicating the child abused and dependent and placing him in the legal custody of his Father was made by a
{¶6} The juvenile court‘s disposition of legal custody is a less drastic disposition than permanent custody to a children services agency because it does not terminate parental rights but instead “leaves intact ‘residual parental rights, privileges, and responsibilities.‘” In re Shepherd (Mar. 26, 2001), 4th Dist. No. 00CA12 at *7, quoting
{¶7} 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. See In re D.R., 153 Ohio App.3d 156, 2003-Ohio-2852, at ¶17. The trial court‘s disposition of legal custody is not guided by clear statutory requirements, as the Ohio Revised Code fails to set forth a best interest test that is specifically tailored to the determination of legal custody following an adjudication of abuse, neglect, or
{¶8} Because of CSB‘s concerns that O.L. had been abused by either Mother or his older brother, after the agency obtained temporary custody, the children were put in separate placements, with O.L. being placed with Grandmother and T.H. in a foster home. Father had previously been living with Grandmother and he was initially ordered to leave the home. After some time, and because that home had been made accessible for his physical disabilities, he was eventually permitted to resume his residence there.
{¶9} While staying with Grandmother, O.L. began attending pre-school in March 2008. Based on concerns with the child‘s disruptive behavior in pre-school, O.L. began seeing a counselor in June 2008. The child‘s counselor, Angela Lancianese, testified at the hearing. While the initial concern was with the child‘s behavior, the counselor‘s concern quickly turned to the child‘s attachment to his parents. Mother claimed that O.L. never needed counseling when he was in her care and believed that O.L.‘s acting-out behaviors were due to his fear of Father and missing her. The counselor very much disagreed. She testified that O.L. was very apprehensive in the sessions conducted jointly with Mother and that he did not attempt to engage her in play. When Mother attempted to secure an affirmation of her relationship with O.L. from the child or get him to suggest that he was sad when he was with Father, O.L. would not agree or assent. In addition, when Mother would attempt to give the child a hug, he would push her
{¶10} The counselor stated that she made little progress with Mother‘s relationship with O.L., explaining that Mother was very rigid in her beliefs about child-rearing and would not respond to the counselor‘s interventions or follow through with her recommendations, including the recommendation that Mother obtain a parenting evaluation. Mother responded by claiming that she did not need a parenting evaluation and insisted that the only problem was that O.L. was not living with her. The counselor testified that Mother demonstrated no emotional attachment and showed little insight into O.L.‘s behaviors and feelings. The counselor indicated that Mother was simply not cooperative, whereas Father always was. She concluded by stating that O.L. needs to feel safe in his environment and needs to believe that his feelings are accepted. He needs his parents to be consistent, nurturing, and open to seeking out professional help.
{¶11} The CSB case aide who supervised most of Mother‘s visits with O.L. testified similarly. Victoria Diamond had 23 years of experience as a visitation aide and was the person designated to closely supervise Mother‘s visits with her sons. Initially, there was a no-contact
{¶12} Significantly, Ms. Diamond testified that Mother treated the boys differently during those visits, and she believed Mother‘s bond with O.L. was not as strong as her bond with T.H. During her visits, Mother was said to have behaved in a rigid manner with O.L., whereas she was more relaxed and loving with T.H. She would just sit and watch O.L., while she tended to engage T.H. in games. On one occasion, Mother sent T.H. back to his placement with a watermelon, but gave none to O.L. And on another occasion, Mother brought a camera and took pictures of T.H., but took none of O.L.
{¶13} According to Ms. Diamond, O.L. did not respond to his older brother at first and would move away from him. This was the single occasion in which O.L. went to Mother for comfort. The case aide stated that O.L. would respond to Mother, but that their bond was not very close. He would not initiate any interaction with her. Ms. Diamond observed Mother and T.H. engaging in rough horseplay, kicking each other, and rolling on the grass, which she believed to be inappropriate. Ms. Diamond also observed Mother refusing to tell T.H. to stop hitting O.L. in the face, despite O.L. calling for him to stop. Ms. Diamond testified that she would be concerned about the physical nature of the visits if they were unsupervised and would worry that O.L. could get hurt.
{¶14} Maria Whalen, the CSB caseworker assigned to this case, believed that legal custody to Father was in the best interest of O.L. and testified to her reasoning. First, Ms. Whalen said that Father had been meeting O.L.‘s needs, and she had no concerns with Father‘s ability to parent his son. Furthermore, Ms. Whalen explained that Father had completed his case
{¶15} Ms. Whalen was also cognizant of safety concerns. She noted that T.H. had been diagnosed with intermittent explosive disorder. He had had four incidents at school in the current year and several more last year. His problems included taunting other students, chasing a child out of a classroom and pushing him towards the steps, and grabbing a teacher. T.H. was hospitalized last year with suicidal/homicidal ideations, is in a behavioral program, and is also in counseling. He was on medications to stabilize his mood and calm him. Mother believed that he did not have intermittent explosive disorder because he did not exhibit those problems at home. Ms. Whalen stated that she would be concerned with putting O.L. in Mother‘s home along with T.H. because of T.H.‘s explosiveness. Ms. Whalen noted that although it had never been determined who harmed O.L., O.L. has been resistant to interaction with Mother and T.H., but he has not been reluctant to engage with Father or others in that household.
{¶16} Mother has contended that the return of T.H. to her home, in combination with the failure to return O.L., demonstrates an inequity. If she can parent her older son, Mother argued,
{¶17} Father and Mother each testified and presented several character witnesses in support of their positions. For his part, Father presented the testimony of a friend, Grandmother, and Catherine Talley. The friend testified that Father interacted lovingly with O.L. She stated that Father shows affection to his son, plays with him, properly disciplines him, and shops for his clothing. Grandmother testified that O.L. is better adjusted since he has been in her home. She explained that she, Father, and Ms. Talley all help with the daily care of O.L. She said that O.L. follows Father all over, and that the child does not seem to like to talk to Mother on the telephone. Ms. Talley testified that she had lived in Grandmother‘s home since 2005, has her own room, and attends school during the day. Since Father‘s accident, she has transported him to appointments and, more recently, has taken O.L. to visits and counseling sessions. She explained that she often helps O.L. get dressed in the morning, takes him to daycare, and picks him up at the end of the day. She also takes him to church. She explained that Father often picks out the child‘s clothes, sometimes dresses him, gives him baths, prepares his meals and does other things with him. She stated that when O.L. first came to their home, he would frequently awaken with nightmares, but that the nightmares have now stopped. Ms. Talley
{¶18} Father testified that he had an accident in 2005, where he was crushed by ice falling off a building. His mobility is currently limited so that he uses a walker, but he is getting therapy and hopes to eventually return to his mobile barbeque business. He explained that before the present case, he and Mother had disputes about support and visitation, resulting in a domestic relations case where Father was ordered to pay support, Mother was ordered to permit Father to visit, and Mother was held in contempt for failing to do so. Father described O.L. as an energetic, challenging, lovable child, and said that his favorite toys are trucks, a small train, and a bicycle. Father testified that he and O.L. have a great relationship and that he believes he can care for him. He expressed concern for O.L.‘s safety if he were placed in Mother‘s custody.
{¶19} For her part, Mother presented three character witnesses, who attested to Mother‘s love for and close relationship with her children while they were in her care, her ability to properly provide for them, and the existence of a family support system. The witnesses stated that they never saw T.H. harm O.L.
{¶20} Mother also testified on her own behalf and stated that she had been the sole provider for O.L. during the first two and one-half years of his life. Father provided some child support, but was in arrears. She stated that she supports herself with recently-acquired social security benefits for herself, social security benefits for T.H., occasional child support from T.H.‘s father, and an occasional job with a catering company. Mother admitted to using cross words with Ms. Talley, and conceded that Ms. Talley never said anything inappropriate to her.
{¶21} Mother also testified that she loves her children and has a strong bond with them. She believes that O.L.‘s behavioral problems and need for counseling have only arisen since he
{¶22} The guardian ad litem also reported to the court. She indicated that both homes are appropriate and that O.L. enjoys contact with both parents. He is very attached to Father, and Mother interacts appropriately at visits. She reported that Father completed his case plan goals, whereas Mother still had some objectives outstanding. She observed that the domestic relations magistrate issued a very negative review of Mother‘s behavior when Mother denied visitation to Father. She emphasized that both parents clearly love O.L. and, although the parents do not have a good relationship, the child will continue to need both of them. She noted that, despite his disability, Father has come to all the court hearings, and despite Grandmother‘s age, she is able to help with O.L. as well. Ms. Talley has provided valuable educational assistance to O.L. also. The guardian ad litem expressed concern with the fact that O.L. was harmed by someone in January 2008, but that no one has been found to be responsible. She also expressed concern that T.H. exhibits aggressive behavior in certain settings. The guardian ad litem concluded by recommending that legal custody be awarded to Father.
{¶23} From a review of the evidence presented, the trial court could reasonably have concluded that placement with Father was in O.L.‘s best interest. The trial court did not abuse its
Assignment of Error Number Two
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING SUPERVISED VISITATION FOR MOTHER WITH THE MINOR CHILD.”
{¶24} Mother‘s second assignment of error is that the trial court erred in requiring her visitation to be supervised. This Court will not reach the merits of this challenge because Mother failed to preserve it for appellate review.
III
{¶25} Mother‘s two assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J. CONCURS
CARR, J. CONCURS, SAYING:
{¶26} I concur in the judgment of the Court. I write separately only to indicate that, even if Mother had properly preserved the issue of supervised visitation, as raised in the second assignment of error, for review, I would find that requiring supervised visitation is warranted in this case. Although the perpetrator of abuse against O.L. was not determined, there was evidence that he had been physically abused by someone. There was, at the least, a failure to protect this child from such harm. In addition, there was evidence that Mother failed to fully
APPEARANCES:
DEREK CEK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
EDWARD SMITH, Attorney at Law, for Appellee.
NANCY FLOWER, Guardian ad Litem.