[Cite as In re A.P. , 2021-Ohio-1229.]

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

IN RE: A.P. C.A. No. 20CA011638

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14JC42484

DECISION AND JOURNAL ENTRY Dated: April 12, 2021

TEODOSIO, Judge. {¶1} Appellant, M.G. (“Mother”) appeals from a judgment of the Lorai n County Court of Common Pleas, Juvenile Division, that denied the motion of L orain County Children Services (“LCCS”) to modify or terminate its prior judgment that placed Mother’s child in the legal custody of the child’s father, M.P. (“F ather”). This Court affirms. {¶2} Mother and Father are the biological parents of A.P., born Janu ary 2, 2014. This case began on June 11, 2014, when LCCS filed a complaint to all ege that A.P. was a neglected and dependent child because Mothe r had ongoing substance abuse problems and Father was incarcerated for domestic violence against Mother. A.P. was la ter adjudicated a dependent child and placed in the temporary custody of LCCS. {¶3} During 2016, Mother and Father separately moved for legal custo dy of A.P. Following a hearing before a mag istrate, because Father had com plied with the case plan and was in a better position to care for the child, A.P. was placed in the legal custody of Father. Mother2

filed objections to the magistra te’s decision, which were later overruled by the trial court. The trial court entered an independe nt judgment placing A.P. in the legal custody of Father. On appeal to this Court, however, the legal custody decision was reversed and remanded because it appeared that the trial court did not properly base its decision on the best interest of the child. In re A.P ., 9th Dist. Lorain No. 17CA011132, 2017-Ohio-8926, ¶ 16. {¶4} On remand, following another legal custody hearing, the magistr ate explicitly

considered the best interest of the child and decided that A.P. should be placed in the legal custody of Father and that protective s upervision should be terminated. The same day, March 19, 2018, the trial court adopted the magistrate’s decision, pending the filing of timely, written objections. The trial court ordered that A.P. be placed in the legal custod y of Father and it terminated protective supervision. Althoug h Mother filed objections to th e magistrate’s decision, she dismissed her objections several months later. Consequently, t he trial court’s March 2018 order that placed A.P. in the legal custody of Father and terminated protective supervision became a final legal custody judgment. See Juv.R. 40(D)(4). {¶5} During May 2018, the teenaged daughter of Father’s former girlf riend made allegations of sexually inappr opriate conduct by Father. Witho ut involving the trial court or providing Father with legal rep resentation, an LCCS caseworker contacted Father about the allegations and asked him to tem porarily surrender physical cus tody of A.P. Because Father

believed that A.P. would be ret urned to him after an investigat ion determined that the allegations were unfounded, he agreed to allow A.P. to be temporarily place d in Mother’s physical custody. {¶6} On July 31, 2018, LCCS did not file a new dependency complaint but instead moved for further dispositional orders in the same case. The a gency requested that A.P. be placed3

in the legal custody of Mother. LCCS focused its motion solely on the best interest of the child. Father alternatively requested t hat A.P. be returned to his cus tody. {¶7} Following a hearing on the competing dispositional motions, the magistrate found that there had been no requisite change of circumstances under R.C. 2151.42(B). Consequently, the magistrate decided that A. P. would not be removed from Fath er’s legal custody and would be returned to his physical custody. The trial court adopted the magistrate’s decision the same day and independently entered judgment, returning A.P. to Father’s physical custody and denying Mother’s motion to terminate its prior order of legal custody t o Father. Mother filed objections to the magistrate’s decision, which w ere later overruled by the tr ial court. {¶8} Mother appeals and raises two assignments of error. Although L CCS participated in the hearing in the trial c ourt, it did not f ile a brief or o therwise participate in this appeal.

II.

ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED WHEN IT REQUIRED LCCS TO SHOW THAT A CHANGE OF CIRCUMSTANCES MUST OCCUR BEFORE CHANGING THE PLACEMENT OF THE CHILD FROM FATHER TO MOTHER. {¶9} Mother’s first assignment of error is that the trial court erre d in requiring that there be a change of circumstances of the child or Father before it w ould consider placing A.P. in the legal custody of Mother. Alterna tively, Mother argues that the re was evidence before the trial court to demonstrate the requis ite change of circumstances. {¶10} Mother argues that, because LCCS filed a motion for further dis positional orders and cited R.C. 2151.353, not R.C . 2151.42, the trial court was required to consider only the best interest of the child. Regardless of the label that LCCS put o n the motion or its argument in4

support, the fact remains that th e agency was asking the trial court to modify or terminate its prior judgment placing A.P. in the legal custody of Father. {¶11} The authority of the trial court and the children services agen cy in dependency and neglect cases is strictly governed by a comprehensive statutory scheme set forth in R.C. Chapter

2151. See , e.g ., In re S.R ., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 35; In re I.S., 9th Dist. Summit No. 24763, 2009-Ohio-6432, ¶ 10. LCCS filed a motion fo r further dispositional orders in the same case that began in 2014 because the trial court ret ained jurisdiction over A.P. after it adjudicated her a dependent a nd neglected child. R.C. 2151.353 (F)(1). Although LCCS was

authorized to seek a modificati on or termination of the trial c ourt’s prior dispositional order “at any time[,]” it was also necessary that any modification of the legal custody judgment comply with R.C. 2151.42 “[i]f applicable.” R.C. 2151.353(F)(2). {¶12} R.C. 2151.42(A) authorizes the trial court to modify or termina te many other dispositional orders if it finds that such a change is in the c hild’s best interest. R.C. 2151.42(B), however, sets forth an additional constraint on the trial court ’s authority to modify or terminate an order “granting legal custody of a child to a person” because s uch an order “is intended to be permanent in nature.” Conseque ntly, a trial court “shall not” modify or terminate a legal custody order entered under R.C. 2151.42 unless it find s, based on facts that have arisen since the prior order or wer e unknown to the court at that time , “that a change has occurred in the

circumstances of the child or th e person who was granted legal custody, and that modification or

termination of the order is nece ssary to serve the best interes t of the child.” R.C. 2151.42(B). “Not every change will support the modification of a [legal] custody order, but rather only a ‘change [that] is one of substance that warrants a change of custody.’” In re L.V ., 9th Dist. Summit No.5

26245, 2012-Ohio-5871, ¶ 10, quoting In re L.M ., 2d Dist. Greene No. 2010-CA-76, 2011-Ohio3285, ¶ 15. {¶13} At the dispositional hearing, L CCS and Mother did not argue tha t there had been a requisite change in circumstan ces under R.C. 2151.42(B). Inste ad, the evidence presented at the dispositional hearing focused almo st exclusively on the best in terest of A.P. On appeal, Mother argues that, “[e]ven assuming arguendo, that a finding of chang e in circumstances is a prerequisite, sufficient facts in the record support this finding.” She fail s to point to any such evidence,

however. {¶14} The only evidence before the trial court about a potential chan ge in circumstances was testimony that the teenaged daughter of Father’s former gir lfriend alleged that Father had behaved in a sexually inappropria te manner with her. No specif ic details were given about Father’s alleged conduct. It was not dis puted, however, that there was not enough evidence to justify further action on the allegation. Father was not criminally charged an d LCCS’s investigation found the allegation to be unsubstantiated. An “[u]nsubstantiated report ” is one in which the agency’s investigation “determined no occurrence of child abuse or negle ct.” Ohio Adm.Code 5101:2-1- 01(B)(330). {¶15} Mother has failed to demonstrate that the trial court erred in finding that there had been no change in circumstances to justify modifying or termina ting the prior judgment of legal custody to Father. Mother’s fir st assignment of error is overr uled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT IT IS IN THE BEST INTEREST OF THE MINOR CHILD, A.P. (DOB 01/02/14) TO BE PLACED IN THE LEGAL CUSTODY OF MOTHER.6

{¶16} Mother’s second assignment of erro r is that the trial court err ed in failing to find that it was in the best interest of A.P. to be placed in Mother ’s legal custody. The trial court found that there had not been a change in circumstances required by R .C. 2151.42(B) to modify or terminate its prior order of legal custody to Father. Conseque ntly, because the threshold requirement of R.C. 2151.42(B) had not been met, the court did not move on to the second prong

of the test to determine whethe r “modification or termination o f the [legal custody] order [was] necessary to serve the best interest of the child.” Because Mo ther has failed to demonstrate any error in the trial court’s application of the statutory test, h er second assignment of error is

overruled.

III. {¶17} Mother’s assignments of error ar e overruled. The judgment of t he Lorain County Court of Common Pleas, Juven ile Division, is affirmed. Judgment affirmed.

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 s tamped 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 to7

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. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CARR, P. J. SUTTON, J. CONCUR.

APPEARANCES: LORIE K. BROBST, Attorney at Law, for Appellant. J.D. TOMLINSON, Prosecuting Attorney, and EMILY KIRSCH, Assista nt Prosecuting Attorney, for Appellee. MATTHEW A. CRAIG, Attorney at Law, for Appellee. ELIZABETH PATTERSON, Guardian ad Litem.