[Cite as In re T.H., 2018-Ohio-1143.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

IN RE: T.H. 

 

 

 

C.A. No. 28833 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. DN-14-9-573 

DECISION AND JOURNAL ENTRY 

Dated: March 28, 2018 

 

 CALLAHAN, Judge. 

{¶1} Appellant, C.H. (“Mother”), appeals from a judgment of the Summit County 

Court of Common Pleas, Juvenile Division, that placed her minor child in the legal custody of a 

paternal cousin (“Cousin”). This Court affirms. 

I. 

{¶2} Mother is the biological mother of several children, but T.H. is the only child at 

issue in this case. Mother apparently lost custody of several other children in the past, but no 

details about those children are included in the record. T.H.’s father (“Father”) did not appeal 

from the trial court’s final judgment. 

{¶3} On September 3, 2014, the Akron Police Department executed a search warrant at 

the home of both parents, who were under investigation for heroin trafficking. Mother and 

Father were arrested at the scene, charged with felony drug offenses, and refused to disclose the 

location of T.H., who was then three years old. CSB eventually located T.H. at the home of 
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Cousin and removed him from the parents’ legal custody. The trial court later adjudicated T.H. 

a dependent child and placed him in the temporary custody of Summit County Children 

Services Board (“CSB”). This Court affirmed that judgment on appeal. In re T.H., 9th Dist. 

Summit No. 28010, 2016-Ohio-5597, ¶ 1. 

{¶4} Throughout this case, T.H. was placed in the home of Cousin. CSB filed a 

motion for the child to be placed in the legal custody of Cousin while the adjudication appeal 

was pending, but a hearing on that motion was stayed until after the appeal was resolved. The 

agency renewed its legal custody motion and the matter ultimately went to a final dispositional 

hearing before a visiting judge on May 23, 2017. 

{¶5} After the hearing, the trial court found that it was in the best interest of T.H. to be 

placed in the legal custody of Cousin. Mother and Father appealed from that order, but the trial 

court had not entered an independent judgment placing T.H. in Cousin’s legal custody. 

Consequently, this Court dismissed appeal numbers 28707 and 28714 on September 13, 2017, 

because the order appealed was not a final judgment. 

{¶6} On October 20, 2017, the trial court entered a final judgment that placed T.H. in 

the legal custody of Cousin. Mother appeals and raises four assignments of error. 

II. 

ASSIGNMENT OF ERROR I 

THE TRIAL COURT ERRED IN DENYING APPELLANT-MOTHER’S 

MOTION TO DISMISS THE CASE WHERE THE TEMPORARY CUSTODY 

ORDER EXPIRED NEARLY EIGHT MONTHS PRIOR TO TRIAL[.] 

{¶7} Mother’s first assignment of error is that the trial court erred in denying her 

motion to dismiss the case. Mother argued that the temporary custody order had expired before 

the legal custody hearing and, therefore, the juvenile court had lost jurisdiction over this case. 
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Mother attempts to rely on R.C. 2151.353 and In re Young Children, 76 Ohio St.3d 632 (1996), 

which do not support her position. 

{¶8} R.C. 2151.353(G) provides that a trial court shall not order an existing temporary 

custody order to extend beyond the two-year sunset date. The trial court did not order that 

temporary custody extend beyond two years, however. Rather, T.H. remained in temporary 

custody because Mother appealed two interlocutory orders, divesting the trial court of 

jurisdiction to rule on CSB’s motions to place the child in the legal custody of Cousin. Further, 

because CSB filed motions for legal custody to Cousin long before the expiration of the 

temporary custody order, that temporary order extended by operation of law until the trial court 

ruled on the legal custody motion. See R.C. 2151.353(G) and R.C. 2151.415(A)(3). 

{¶9} Moreover, even if the temporary custody order in this case had expired, the Ohio 

Supreme Court has held that “[t]he passing of the statutory time period (‘sunset date’) pursuant 

to R.C. 2151.353(F) does not divest juvenile courts of jurisdiction to enter dispositional orders.” 

In re Young at syllabus. Because In re Young involved four consolidated appeals, the Supreme 

Court explained the rationale of its holding as it applied to the different facts of those cases, two 

of which involved temporary custody orders that had expired. Id. at 638-640. It emphasized 

that a trial court retains jurisdiction even when a temporary custody order has expired unless the 

problems that led to the filing of the complaint “had been resolved or mitigated[.]” Id. at 639. 

A parent asserting that his or her parenting problems have been resolved is not dispositive; it is 

for the trial court to make that determination. See id. at 639-640. Because Mother has failed to 

demonstrate that the trial court lost jurisdiction to rule on CSB’s motion for legal custody to 

Cousin, her first assignment of error is overruled. 
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ASSIGNMENT OF ERROR II 

THE DECISION PLACING THE CHILD IN THE LEGAL CUSTODY OF 

[COUSIN] FAIL[ED] TO RESOLVE ALL MOTIONS BEFORE THE 

COURT[.] 

{¶10} Mother’s second assignment of error is that the trial court failed to explicitly rule 

on her original or renewed motions to dismiss the case or her motions for legal custody of T.H. 

The trial court did explicitly deny Mother’s motion to dismiss the complaint. Although the trial 

court’s judgment did not explicitly deny Mother’s motion for legal custody, because it granted 

legal custody to Cousin, which precluded Mother having legal custody, it implicitly denied 

Mother’s motion. Moreover, “we have generally held that a trial court’s failure to rule gives 

rise to a presumption that the trial court has denied the motion.” GMAC Mtge., LLC v. Jacobs, 

196 Ohio App.3d 167, 2011-Ohio-1780, ¶ 9 (9th Dist.). Mother’s second assignment of error is 

overruled. 

ASSIGNMENT OF ERROR III 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED 

[CSB’S] MOTION FOR LEGAL CUSTODY TO [COUSIN.] 

{¶11} Mother’s third assignment of error is that the trial court’s legal custody decision 

was not supported by the evidence presented at the hearing. Although she also alleges that the 

agency did not adequately perform its case plan duties, that argument will be addressed under 

Mother’s fourth assignment of error. 

{¶12} Mother argues that she had complied with some of the requirements of the case 

plan, but this Court has repeatedly stressed that “evidence of case plan compliance may be 

relevant to the trial court’s best interest determination, but it is not dispositive.” In re G.A., 9th 

Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13, citing In re J.J., 9th Dist. Summit No. 

22236, 2004-Ohio-6538, ¶ 8. “Following an adjudication of neglect, dependency, or abuse, the 
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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 K.H., 9th Dist. Summit No. 

27952, 2016-Ohio-1330, ¶ 12. “Although there is no specific test or set of criteria set forth in 

the statutory scheme, courts agree that the trial court must base its decision on the best interest 

of the child.” In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23, citing In re Fulton, 

12th Dist. Butler No. CA2002-09-236, 2003-Ohio-5984, ¶ 11. 

{¶13} The juvenile court is guided by the best interest factors set forth in R.C. 

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. Those 

factors include the interaction and interrelationships of the child, the child’s wishes, the 

custodial history of the child, and the child’s need for permanence. The juvenile court may also 

look to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain 

Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. 

{¶14} Mother’s interaction with T.H. during this case was extremely limited. Although 

she points to evidence that she “visited with her son every Saturday[,]” she visited T.H. for only 

a few months before the hearing. She had no face-to-face interactions with T.H. for more than 

two years while she was incarcerated. Her interaction during that time was limited to phone 

calls with a very young T.H. 

{¶15} Although Mother suggests that Cousin impeded her ability to visit with T.H. or 

speak to him on the phone, that argument is not supported by the record. Cousin had some 

concerns about facilitating contact between T.H. and Mother because Mother had harassed and 

threatened her. To minimize the conflict between Mother and Cousin, Mother was required to 

call T.H. on his own cellular phone, at reasonable hours of the day, and visit him in a setting 
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outside of Cousin’s home that was supervised by someone else. Cousin recognized that T.H. 

should have a relationship with Mother and did facilitate their interaction. Despite Mother’s 

suggestion to the contrary, there was no evidence that she was ever unable to reach T.H. on his 

phone if she called at an appropriate time.

{¶16} Cousin had been a loving, stable, and long-term caregiver for T.H. The child had 

spent nearly half of his life living with her. The caseworker and guardian ad litem agreed that 

T.H. was closely bonded to Cousin and that Cousin set appropriate boundaries for T.H. Cousin 

had been involved in the life of T.H. since he was an infant. 

{¶17} The guardian ad litem opined that T.H. was not old enough to express his own 

custodial wishes. She believed that legal custody to Cousin was in the child’s best interest. 

Cousin was meeting all of the child’s needs and the guardian had observed “a very strong bond” 

between T.H. and Cousin. The guardian expressed concern that Mother was still on probation 

and had not demonstrated that she had resolved her parenting problems. 

{¶18} The custodial history of T.H. before this case began was not explained at the 

hearing. He was found at the home of Cousin, but it is unclear where T.H. actually resided or 

whether his needs were adequately met. There was evidence that Mother has a lengthy criminal 

history and that she had lost custody of several other children, but none of those details were 

explained on the record. 

{¶19} Throughout this case, T.H. resided with Cousin and was doing well in her home. 

After more than two years of living in this temporary placement, he was in need of a legally 

secure permanent placement and Cousin was prepared to provide him with a stable home. 

{¶20} The additional factors set forth in R.C. 3109.04(F) also supported the trial court’s 

best interest determination. Of relevance here, those factors include the child’s adjustment to 
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home, school, and community and the mental and physical health of all persons involved. See

R.C. 3109.04(F)(1)(d) and (e). The evidence was not disputed that T.H. had adjusted well to 

Cousin’s home and that he was attending school regularly and doing well there. 

{¶21} There were no concerns about Cousin’s mental health, but CSB continued to have 

concerns about Mother’s mental health and her lengthy history of substance abuse. Although 

Mother had been sober since her recent release from incarceration, she remained on house arrest 

and had yet to demonstrate the ability to sustain sobriety outside of a controlled setting. 

{¶22} Mother has failed to demonstrate that the trial court’s legal custody decision was 

not supported by the evidence presented at the hearing. Her third assignment of error is 

overruled. 

ASSIGNMENT OF ERROR IV 

THE TRIAL COURT ERRED IN FINDING THAT [CSB] USED 

REASONABLE EFFORTS TO PREVENT THE CONTINUED REMOVAL OF 

THE CHILD FROM [MOTHER.] 

{¶23} Finally, Mother argues that the trial court erred in finding that CSB made 

reasonable efforts to reunify T.H. with her. At the beginning of this case, Mother was sentenced 

to a three-year term of incarceration but was later released several months early. While Mother 

was incarcerated for more than two years, T.H. clearly could not return home, and the 

reunification services that CSB was able to provide were necessarily limited. “‘Reasonable 

efforts’ does not mean all available efforts.” In re Lewis, 4th Dist. Athens No. 03CA12, 2003-

Ohio-5262, ¶ 16. “[T]he issue is not whether the agency could have done more, but whether it 

did enough to satisfy the reasonableness standard under the statute.” Id. 

{¶24} Although Mother attempted to discredit CSB’s evidence, the caseworker testified 

that she regularly communicated with Mother while she was incarcerated, either directly or 
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through her prison caseworker. She further testified that she reviewed information about 

programs that Mother completed while in prison, but that those programs did not satisfy the 

requirements of the case plan because they were not approved by the agency and were 

administered in a controlled environment. After Mother was released, she refused to sign 

releases of information to enable the caseworker to communicate with her service providers. 

Mother has failed to demonstrate that the trial court erred in concluding that CSB’s efforts to 

reunify Mother with T.H. had been “reasonable.” Mother’s fourth assignment of error is 

overruled. 

III. 

{¶25} Mother’s 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. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, 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. 
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 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

SCHAFER, P. J. 

HENSAL, J. 

CONCUR. 

APPEARANCES: 

AVIVA L. WILCHER, Attorney at Law, for Appellant. 

NEIL AGARWAL, Attorney at Law, for Appellee. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee. 

JOSEPH KERNAN, Guardian ad Litem.