[Cite as In re A.W. , 2021-Ohio-2975.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: A.W. J.V. C.A. No. 20CA011671

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 18JC54878 18JC54879

DECISION AND JOURNAL ENTRY Dated: August 30, 2021

HENSAL, Presiding Judge. {¶1} Appellant Mother appeals the j udgment of the Lorain County Cour t of Common Pleas, Juvenile Division, that g ranted Appellee-Father’s/Intere sted Third Party’s motion for legal custody of A.W. and J.V. This C ourt reverses and remands.

I. {¶2} Mother is the biological mothe r of A.W. (d.o.b. 1/16/09) and J. V. (d.o.b. 7/12/15). Father V. is the biological fathe r of J.V. Father W. (“Father” ) is the biological father of A.W. and the interested third party as to J.V. {¶3} In 2016, Lorain County Children Se rvices (“LCCS” or “the agency ”) removed the children based on concerns regar ding Mother’s mental health and substance abuse issues, domestic

violence between Mother and Fathe r V., Father V.’s incarceratio n, and Father’s lack of consistent

contact with A.W. Both children were adjudicated neglected and dependent but were returned to2

Mother’s legal custody shortly thereafter. LCCS received three additional referrals regarding the children, and the agency worked i nformally with Mother to addre ss ongoing concerns. {¶4} In July 2018, LCCS filed a second complaint, again alleging tha t A.W. and J.V. were neglected and dependent ch ildren. Concerns included Mothe r’s mental health and substance abuse issues, ongoing domestic violence between Mother and Fath er V., Mother’s altercations

with her mother and threats of violence against neighbors while intoxicated, and deplorable

conditions in Mother’s home. Aft er hearings, the children were adjudicated neglected and dependent, ordered into the tem porary custody of LCCS, and plac ed in a foster home. The parents were granted supervised visita tion. The juvenile court adopted the agency’s case plan as the order

of the court. {¶5} The agency’s original case plan noted concerns regarding all th ree parents and included substantially identical objectives for each. The case plan objectives inc luded: (1) mental health assessment and follow all recommendations; (2) substance abuse assessment, follow all recommendations, and obtain sobr iety sponsor; (3) domestic viol ence assessment, follow recommendations, and develop insi ght; (4) obtain safe and stabl e housing with working utilities; (5) show the ability to meet the basic needs of the children; ( 6) demonstrate adequate parenting skills by communicating effectively with caregivers and attendi ng medical appointments, family team decision meetings, and othe r scheduled events; and (7) coo perate with the caseworker and other professionals. Mother’s objectives were intended to hel p her address her mental health issues, remain sober, avoid domestic violence situations, and d evelop an understanding of the impact of her substance abuse on her parenting abilities. Fath er’s objectives were designed to address his acknowledged prior di agnosis for bipolar disorder, as well as agency concerns that3

Father had not had any contact with A.W. for two years and that he had admitted having engaged in past incidents of domestic violence with Mother. {¶6} Within a couple months, LCCS amended the case plan to change Fa ther’s visitation from supervised to monitored based on Father’s compliance with case plan objectives and limited safety concerns. All case plan objectives remained the same. Two months later, the agency again amended the case plan to change Father’s visitation from monito red to unsupervised within the community, and to combine Mother’s and Father V.’s visitation a s they were in a relationship. Again, no case plan objectives w ere modified or deleted. {¶7} Father requested that LCCS complete a home study on him because he was interested in placement of both children. While the agency doe s not normally conduct a home study of a parent, it does when the parent seeks placement as a n interested third party of a nonbiological child. Father move d for legal custody of both A. W., his biological child, and J.V., a child not biologically related t o him. Mother filed a motion for legal custody shortly thereafter. {¶8} LCCS removed the children from their foster home and placed the m both with Father after the home study conc luded he was suitable for place ment. The agenc y again amended the case plan, removing Father V. as he had informed the agency that he was not interested in reunification with J.V., and rein stating Mother’s individual tw o-hour weekly supervised visitation. {¶9} The magistrate held a final dispositional hearing on five days spanning a six-month period. Mother and Father each had a pending motion for legal custody of both children. Although LCCS had not filed a dispositional motion, the assistant prosec utor informed the court that the agency supported Father’s motion. At the conclusion of the hea ring, the magistrate issued a decision granting Father’s motion for legal custody of both A.W . and J.V., and awarding Mother limited supervised visitation. Mot her filed timely objections.4

{¶10} After the parties had the opport unity to file briefs and presen t oral arguments, the juvenile court issued a judgmen t overruling Mother’s objections and granting legal custody of the

children to Father. Mother file d a timely appeal and raises on e assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT’S DECISION TO AFFIRM THE MAGISTRATE’S DECISION GRANTING FATHER’S MOTION FOR [LEGAL] CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, CONTRARY TO LAW AND/OR AN ABUSE OF DISCRETION AND WAS NOT IN THE MINOR CHILDREN’S BEST INTEREST. {¶11} Mother argues that the juvenile c ourt’s award of legal custody of A.W. and J.V. to Father was against the manifest weight of the evidence and cont rary to the best interest of the children. This Court agrees. On appeal, an award of legal custody will not be reversed if th e judgment is supported by a preponderance of the evidence. Preponderance of the evidence entails the greater weight of the evidence, evidence that is mo re probable, persuasive, and possesses great er probative value. In other wo rds, when the best interest of the child is established by the greater weight of t he evidence, the trial court does not have discretion to e nter a judgment that is adve rse to that interest. (Internal citations and quotations omitted.) In re M.F. , 9th Dist. Lorain No. 15CA010823, 2016- Ohio-2685, ¶ 7. {¶12} In considering whether the juve nile court’s judgment is against the manifest weight of the evidence, this Court “wei ghs the evidence and all reason able inferences, considers the credibility of witnesses and determines whether in resolving co nflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest misca rriage of justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal citat ions and quotations omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always be mindf ul of the presumption in favor of the finder of fact.” Id. at ¶ 21.5

{¶13} “Following an adjudication of neg lect, dependency, or abuse, th e juvenile court’s determination of whether to pl ace 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 cour ts 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-Ohio7994, ¶ 18, quoting In re N.P. , 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that reg ard, the juvenile court is guided by th e best interest factors enume rated in Revised Code Section 2151.414(D) relating to permanent custody. In re B.G. , 9th Dist. Summit No. 24187, 2008-Ohio5003, ¶ 9, citing In re T.A. , 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those fact ors include the interaction and inte rrelationships of the child, th e 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 and 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 and 15CA010860, 2017-Ohio-1, ¶ 17. While some factors overlap with those above, others include the child’s adjustment to his or her envi ronment; the mental and physical health of all persons involved; t he parents’ history of providi ng support and honoring companionship orders; certain i ndicia of violence, abuse, or ne glect in any household involved; and whether a parent plans to or has established a residence ou tside of Ohio. R.C. 3109.04(F)(1). {¶14} Significantly, Mother does not argue that the evidence demonstr ated that she had fully complied with her case plan objectives and remedied the a gency’s concerns regarding her ability to provide a safe and stable home for the children. In stead, Mother challenges the juvenile6

court’s award of legal custody of both children to Father in li eu of granting a six-month extension of temporary custody to allow the agency to properly investigat e concerns regarding Father. Mother focuses her argument on both Father’s failure to demonst rate that he had complied with his case plan objectives to addr ess issues identified by the ag ency and LCCS’ failure to hold Father to the obligations the case plan imposed upon him and investiga te ongoing issues. Accordingly, Mother argues that the juvenile court erred by finding that an award of legal custody to Father was

in the children’s best interest at that time. {¶15} This Court notes with some concern that LCCS had not filed a mo tion for

consideration at the sunset d ispositional hearing. Section 215 1.415(A) directs a public children services agency who has temporar y custody of a child to file a dispositional motion no later than 30 days prior to the expiration of the temporary custody order. Initial temporary custody orders expire one year after the date o f the filing of the complaint o r the date the child was first taken into shelter care. R.C. 2151.353(G). The agency must, therefore, m ove for one of five enumerated dispositional options approximate ly one month before the sunset date. Those options include a return of the child to the pare nt’s legal custody, an order for protective supervision, legal custody to a relative or interested third party, permanent custody, and placement in a planned permanent living arrangement. R.C. 2151.415(A)(1)-(5). 1 {¶16} Section 2151.415(F), however, provi des that the juvenile court may conduct a hearing to determine whether t o place a child in any of the fiv e enumerated custodial dispositions in subsections (A)(1)-(5) on any party’s motion or even on the court’s own motion in the best interest of the child. Because the agency initiated the case, developed the case plan to address concerns and facilitate a permanency goal, and is in a position to present evidence offering the

1 Requests for extensions of temporary custody are governed by S ection 2151.415(D).7

greatest insight into any prospective custodian’s ability to pr ovide a safe and stable home for a child, the better practice would be for the agency to file a su nset dispositional motion. Instead, the agency here allowed the parents to prosecute the case. However , we recognize the juvenile court’s authority to consider the parents’ motions and issue a final di spositional order as to A.W. and J.V.

in the absence of a mo tion filed by the agency. {¶17} When considering the parties’ motions for legal custody, the tr ial court was required to hold each moving party to his or her respective burden of pr oof. See In re S.D. , 9th Dist. Summit No. 29415, 2020-Ohio-3267, ¶ 11. As Father had filed a motion for legal custody, he maintained the burden of proving by a preponderance of the evidence that p lacement of the children in his legal custody was in the ir best interest. Id. , citing In re T.R. , 9th Dist. Summit Nos. 25179 and 25213, 2010-Ohio-2431, ¶ 27. {¶18} Mother argues that the juvenile court erred by granting Father’ s motion for legal custody because the preponderance of the evidence did not suppo rt the award. Specifically, Mother argues that Father’s tes timony was not credible and that he did not demonstrate that he had addressed LCCS’ concerns by complying with his case plan object ives. In addition, she argues that LCCS and other professionals involved with Father accepted Father’s assertions at face value despite contrary indications of i ssues, as well as unaddressed historical concerns. {¶19} Father presented the testimony of both agency caseworkers assig ned to the case. Both testified as to ongoing concerns and unresolved issues ass ociated with Mot her. Mother does not challenge that evidence. {¶20} As to Father, the caseworkers were satisfied that Father’s comb ined mental health

and substance abuse assessmen t resulted in no recommendations f or treatment even though it was based on Father’s self-reporting and Father has a history of bo th mental health and substance abuse8

issues. Although Father had admitted a prior diagnosis for bip olar disorder, the caseworkers were not concerned that he was not receiving mental health services, by way of either counseling or

medication. One of the caseworkers testified that she did not know whether bipolar disorder could resolve without any treatment. I n any event, the agency did no t do anything to follow up on

Father’s mental health issues b ecause they were merely historic al concerns. {¶21} The initial caseworker testified that the agency did not requir e drug screens of Father because, again, there were only historical concerns from two years earlier, and no current concerns as indicated by Father’s assessment based on self-repo rting. It is significant that the agency did require additional a ssessments for Mother, notwithst anding the lack of any requirement for follow up treatment based on her initial assessment, becaus e of Mother’s historical issues with

both mental health and substance abuse issues. {¶22} Of even greater concern is LCCS’ failure to investigate ongoing concerns regarding Father’s participation in intimate partner violence. While foc using on Mother’s volatile relationships, the agency minimi zed Father’s involvement in dom estic violence, even as it related to Mother. For example, although Father stabbed Mother with a fork during an altercation, the

caseworker was not concerned becau se the incident occurred ten years earlier, Father claimed not to know how the fork ended up in Mother’s ankle, and Father’s d omestic violence charge was resolved by plea agreement as a conviction for disorderly condu ct persisting. Mother obtained a temporary protection order against Father because of that convi ction. Nevertheless, although she was the caseworker at the time the case plan was amended, the i nitial caseworker did not remember that there was a domestic violence case plan objective for Fath er. In fact, the caseworker did not believe that Father had any oblig ation to complete a domestic v iolence assessment and expressed surprise that such an objectiv e would still be on the current c ase plan.9

{¶23} The caseworker did not know if Father reported his history of d omestic violence during his mental health assessmen t. She knew, however, that t here was no requirement for Father to participate in anger management based on his assessment. Th e caseworker admitted that the juvenile court should consider F ather’s failure to obtain a dom estic violence assessment if that objective remained on his case plan. The record indicates that Father’s domestic violence case plan objective was never removed. {¶24} Despite completing a home st udy on Father in January 2019, the agency did not discover any other charges or investigations for intimate partn er violence by Father. Although the legal custody hearing took place from May 19, 2019, through Nov ember 19, 2019, and the ongoing caseworker provided testimonial updates on four hearing dates, the agency relied solely on information obtained for purpos es of Father’s home study and di sregarded information indicating that Father had engaged in domes tic violence against a paramour in 2017. It was alleged in that case that Father punched a woman who was pregnant with another of his children. Even when presented with evidence of an outstanding warrant for Father’s arrest based on a pending domestic violence charge arising out of the 2017 incident, the agency ho me study assessor testified that she was not concerned because Father had not yet been convicted. T he assessor testified that the agency considers the significance of pending charges on a case- by-case basis, reviewing the parent’s history, likelihood of t he criminal case moving forwar d, the length of time that the parent has not been involved in criminal activity, and whether the cha rges resulted from an isolated incident. In this case, the assessor was not concerned regardi ng Father’s pending domestic violence charge and testified that it would be up to the ongoin g caseworker to determine whether it warranted disrupting the child ren’s current placement with F ather.10

{¶25} The record indicates, however, t hat the caseworker ignored Fath er’s involvement in the criminal justice system, e ven as it occurred during the course of the six-month hearing. On the third day of hearing, the cas eworker did not mention that s he knew that Father had recently been arrested and spent a day in jail, even when asked if she h ad any concerns regarding Father. In fact, the caseworker reiterated her support of an award of l egal custody to Father based in significant part on his home s tudy approval. It was not until the fourth day of hearing that the

caseworker admitted that she had known of Father’s arrest at th e time of the prior hearing date. She again reiterated that she had no concerns regarding Father based on the results of his home assessment which was completed more than nine months earlier. The caseworker testified that she had no opinion regarding LCCS’ finding Mother’s involvement in domestic violence where children were involved (as witne sses) significant, while findin g Father’s charge for domestic violence against a pregna nt woman not concerning. {¶26} As to Father’s other criminal issues, the caseworker testified that she was not aware of them. Specifically, she did not know that Father had violat ed the terms of his probation twice, resulting in both time in Community Based Correctional Facility and eight months in prison. The

caseworker testified that it wa s up to the home study assessor to determine whether that information was important. {¶27} Significantly, the caseworker testified that she has been train ed to recognize the signs and characteristics of dom estically violent relationships . She explained that domestic violence does not always manifest as physical violence, but cou ld present as emotional or financial abuse, or as manipulative and controlling behaviors. The recor d is replete with evidence of Father’s abusive and controlling be haviors relative to Mother.11

{¶28} There is no dispute that the caseworker and guardian ad litem w ere aware that Father and his wife repeatedly and unilaterally modified Mother ’s visitation with the children, even resulting in the deprivation of many of Mother’s visits. Father and his wife testified that they changed or canceled Mother’s sch eduled visits, often with very little notice, for their own benefit. On two occasions, Father canceled Mother’s holiday visits so th at the children could spend time with Father’s family instea d. Despite being told by both the m agistrate and the caseworker not to modify or cancel Mother’s vi sits, the problem continued. {¶29} Father completely deprived Mot her of her entitlement under the case plan to have phone calls with the children base d on Father’s interpretation of the order and belief that he did

not have to allow te lephone contact. Although the caseworker a dmitted that Father had a copy of the case plan detailing Mother’s right to call the children, sh e testified that Father’s denial of Mother’s phone contact only cons tituted “controlling behavior” if Father was aware of the entitlement and prevented it. In t his case, she did not recogn ize Father’s deprivation of telephone visits as controlling or otherwise abusive, even though Father had earlier testified that he was seeking legal custody of both children because “last time we di d this thing [referencing the 2016 dependency and neglect case invol ving A.W.], I got blown off on my visits.” {¶30} The agency declined to investigate Father’s asserted motivation for legal custody, even though he had showed no interest in pursuing custody of A. W. in the prior case. In fact, Father had not had any contact with his son for years before th e instant case. He failed to pay child support for A.W. throughout the child’s life. Moreover, Father has no relationship with his two other children by different mothers and is thousands of dollars in arrears in his child support obligations regarding those child ren. Nevertheless, when quest ioned as to why the agency had no concerns regarding Father’s abdication of his parenting respons ibilities regarding his other12

children, the caseworker testified that that was not important because those children were not subjects of this case. {¶31} In addition, LCCS disregarded Fat her’s abdication of parental d uties even as to the children placed in his home. Both Father and his wife testifie d that Father has wife take the children to appointments and ha ndle communications with Mother, including scheduling visitations. When asked what g rade A.W. was in at school, Fath er testified that he had lost track

of that. When asked what both children are addressing in couns eling, Father testified that he could not remember because his schedule is hectic, and he is too tire d to listen to his wife when she

discusses the children with him. {¶32} The evidence adduced at the hearing indicated numerous concerns regarding Father’s parenting abilities. Accordingly, while the agency co nsidered Mother’s history a barrier to her regaining custody of the children, it ignored historical and current red flags relevant to Father’s ability to provide a saf e and stable home to meet the best interest of the children. {¶33} Finally, the agency seemed to be consistently concerned with ac commodating Father at Mother’s expense, w hile holding Mother to a much high er standard of conduct. Mother was not allowed to bring family members to her visits because i t made Father uncomfortable. Father, however, was allowed to bring his wife and her three ch ildren to Mother’s visits because

it was convenient for Father to do so and because Father wanted witnesses in case Mother behaved inappropriately. Despite Mother’s complaints that the children were intimidated by Father’s and

his wife’s stares and distracted by the wife’s three children d uring visits, the caseworker testified only that she was concerned that Mother would watch Father and his wife during visits. {¶34} It is clear from the record that Father’s circumstances, attitu des, and behaviors raised concerns that required additional investigation to permi t the juvenile court to determine13

whether legal custody to Father, an intended permanent disposit ion for the children, was in the best interest of A.W. and J.V. By ignoring and failing to inve stigate issues regarding Father, in some cases similar issues upon which the agency relied to couns el against legal custody to Mother, LCCS deprived the juvenile court of the evidence necessary to d etermine the issue of the children’s custody as of the concl usion of the hearing. {¶35} In its judgment, the juvenile cour t expressly found that “Fathe r’s testimony lacks credibility * * *.” Nevertheless, the trial court found that o ther witnesses like the guardian ad litem and caseworkers were credible in their testimony regarding why the court “should grant legal custody of the children to Father and not to Mother.” It is im portant to recognize that the denial of one parent’s motion for lega l custody did not require the ju venile court to grant the other parent’s motion for legal custody. The juvenile court was obligated to consider which type of custodial disposition was in the best interest of the children. If neith er parent demonstrated the ability to provide a safe and stable home fo r the children, then the trial court could not reasonably grant either pending motion. While not necessary to deny both motion s, it is significant that Mother had

also filed an alternative motion for a six-month extension of t emporary custody to allow additional time to comply with reunification efforts and demonstrate which custodial disposition would meet

the best interest of the children. {¶36} In this case, based on the previous discussion, this Court conc ludes that neither Father nor Mother met their respective burdens of proving that legal custody to either parent was in the best interest of A.W. and J.V. Mother does not argue th at she met her burden of proof and the evidence adduced at the hearing supports the juvenile court ’s finding that Mother could not yet provide a safe and stable home for the children. Father also f ailed to meet his burden of proof. Given both his lack of credibility when denying concerns and fa ilure to demonstrate good faith14

compliance with case plan objectives, coupled with LCCS’ need t o continue to investigate unaddressed and new concerns, th is Court concludes that this is the exceptional case where the trier of fact lost it way and created a manifest miscarriage of justice by awarding legal custody to Father. As the juvenile court’s judgment is against the manife st weight of the evidence, the matter

must be remanded for a further hearing on the issue of the chil dren’s custody.

III. {¶37} Mother’s sole assignment of error is sustained. The judgment o f the Lorain County Court of Common Pleas, Juvenile Division, is reversed and the c ause remanded for further proceedings consistent with this opinion. Judgment reversed, And cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file sta mped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30.15

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.

APPEARANCES: LINDSAY K. NICKOLLS, Attorne y at Law, for Appellant. J.D. TOMLINSON, Prosecuting Attorney, and JENNIFER A. TOMECHKO, Assistant Prosecuting Attorney, for Appellee. GENEVA CHADWICK, Attorney at Law, for Father W. MICHAEL TOWNE, Attorney at Law, for Father V. AMANDA BOWEN, Guardian ad Litem.