[Cite as In re B.H., 2011-Ohio-1967.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95794

IN RE: B.H. 

A Minor Child

(Appeal by Mother)

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. AD 08940290 

BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: April 21, 2011 
ATTORNEY FOR APPELLANT

Anita Barthol Staley 

7327 Center Street 

Mentor, OH 44060 

ATTORNEYS FOR APPELLEE 

CUYAHOGA COUNTY DEPARTMENT OF 

CHILDREN AND FAMILY SERVICES 

William D. Mason 

Cuyahoga County Prosecutor 

BY: Gina S. Lowe 

Assistant Prosecuting Attorney 

C.C.D.C.F.S. 

4261 Fulton Parkway 

Cleveland, Ohio 44144 

Also listed:

Guardian Ad Litem for Child 

Brian Sharken 

P.O. Box 770824 

Lakewood, OH 44107 

Guardian Ad Litem for Mother 

Daniel B. Wolf 

4186 Wilmington Road 

South Euclid, OH 44121 

For Father

M.H., pro se 

2416 Park Place 

Westlake, OH 44145 
SEAN C. GALLAGHER, J.: 

{¶ 1} Appellant J.S. (“mother”) appeals the judgment of the Cuyahoga 

County Court of Common Pleas, Juvenile Court Division, that awarded legal 

custody of her child (B.H.) to the child’s maternal aunt and uncle.1 For the 

reasons stated herein, we affirm the judgment of the trial court. 

{¶ 2} B.H. was born in October 2008 and is mother’s child. At the time 

of B.H.’s birth, mother had a long history of being homeless and unemployed, 

as well as a history of significant, untreated mental health issues. She 

previously had six other children removed from her care. B.H.’s father has 

criminal convictions for rape and sexual imposition. 

{¶ 3} On November 7, 2008, the Cuyahoga County Department of 

Children and Family Services (“CCDCFS”) filed a complaint for dependency 

and temporary custody of B.H., who was alleged to be a dependent child. On 

January 29, 2009, the juvenile court adjudicated B.H. a dependent child and 

committed B.H. to the temporary custody of CCDCFS. 

{¶ 4} As part of the case plan, mother was to obtain stable housing and 

employment and maintain her mental health stability. In the course of 

proceedings, mother obtained housing, but was served with an eviction notice. 

 1

 The parties are referred to herein by their initials or title in accordance 

with this court’s established policy regarding non-disclosure of identities in juvenile 

cases.
 She initially obtained employment with Crestmont North Healthcare, but 

purportedly was terminated due to a “no call, no show,” although mother 

claims she resigned. 

{¶ 5} CCDCFS filed two initial motions to modify temporary custody to 

legal custody because mother was still without stable housing and 

employment, and had not obtained mental health counseling. The initial 

motions were denied. 

{¶ 6} CCDCFS filed a third motion on April 20, 2010, after the child 

had been in the custody of CCDCFS for over 14 months. At the time of the 

hearing, mother had obtained housing and was employed at the Eliza 

Jennings Nursing Home. She had not yet obtained mental health 

counseling, although she had made efforts to do so. She also provided 

evidence that she was not currently presenting as mentally ill. There was 

evidence that mother consistently visits with B.H. and B.H. is bonded with 

mother. Mother does have shared parenting over one of her other children, 

over which no concern was expressed. 

{¶ 7} B.H. has been residing in the home of her maternal aunt and 

uncle since she was born and has been doing well in their care. CCDCFS 

presented some evidence concerning allegations that the mother had used 

laxatives on the child as a baby, gave the baby coffee and chicken wings, and 

maintained a relationship with the father of B.H., despite a no-contact order. 
CCDCFS further claimed that despite mother’s recent employment and 

housing, she had not demonstrated stability and had yet to receive 

psychological counseling services. The guardian ad litem recommended that 

it was in B.H.’s best interest to grow up in a safe and stable environment and 

that she remain in the care of her maternal aunt and uncle. 

{¶ 8} Following the hearing, the juvenile court awarded legal custody of 

B.H. to her maternal aunt and uncle. Mother timely filed this appeal. In 

her sole assignment of error, mother challenges the decision of the trial court 

to modify temporary custody to legal custody. 

{¶ 9} After a child is adjudicated abused, neglected, or dependent, the 

trial court may award legal custody to a non-parent upon finding, by a 

preponderance of the evidence, that legal custody is in the child’s best 

interest. In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 

552; R.C. 2151.353(A)(3); R.C. 2151.415(B). When an award of legal custody 

is made, the parents of the child retain residual parental rights, privileges, 

and responsibilities. R.C. 2151.353(A)(3)(c). 

{¶ 10} An appellate court will not reverse an award of legal custody 

absent a showing of an abuse of discretion. Id. To constitute an abuse of 

discretion, the ruling must be unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. 
{¶ 11} In this case, the juvenile court considered the history of 

instability in mother’s housing and employment. Though mother had 

obtained housing, she was evicted by a previous landlord earlier in the year. 

There also was evidence that mother did not maintain her employment with 

Crestmont North Healthcare. She had since found other employment, but 

was not consistently working because of an injury sustained on the job. She 

also had not engaged in any psychological counseling services. The hearing 

was held approximately a year and a half after B.H. had been committed to 

the temporary custody of CCDCFS. Additionally, the court recognized 

father’s criminal history, his failure to complete parenting education, and his 

failure to maintain consistent contact with the child. 

{¶ 12} The court found that mother had not fully complied with all of the 

objectives of the case plan. The court considered the guardian ad litem’s 

recommendation that legal custody be awarded to the maternal aunt and 

uncle. The court determined that legal custody would be in B.H.’s best 

interest, whereas a return to her mother’s home would be contrary to the 

child’s best interest and welfare. Although legal custody was awarded, the 

court ordered that “mother shall be provided with reasonable visitation with 

the child as agreed upon by the parties and as in the best interest of the 

child.” 
{¶ 13} Upon our review of the record, we find that the trial court’s 

decision that an award of legal custody to B.H.’s maternal aunt and uncle is 

in the child’s best interest is supported by the preponderance of the evidence. 

We also believe that the child’s best interests are being served by placement 

in a stable and secure environment. Accordingly, the trial court did not 

abuse its discretion and we overrule appellant’s sole assignment of error. 

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court 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. 

SEAN C. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR