[Cite as In re J.R., 2023-Ohio-4766.]

COURT OF APPEALS

KNOX COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: J.R. : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

: Hon. Patricia A. Delaney, J.

: Hon. Andrew J. King, J.

:

: Case No. 23CA000010

:

:

:

:

: O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of

Common Pleas, Juvenile Division, Case

No. 221-2028

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES:

December 26, 2023

For Appellant Mother: For Appellee Knox Co. DJFS:

NOEL B. ALDEN ASHLEY L. JOHNS

ZELKOWITZ, BARRY et al. 117 E. High St.

103 South Main St. Mount Vernon, OH 43050

Mount Vernon, OH 43050

Guardian Ad Litem:

For Allen Hamilton: ADAM JOHNSON

25 E. Waterloo St.

CAROLYN FITTRO Canal Winchester, OH 43110

1335 Dublin Rd., Suite 115F

Columbus, OH 43215 Marea Guillermo

240 Newark Rd.

Mount Vernon, OH 43050
[Cite as In re J.R., 2023-Ohio-4766.]

Delaney, J.

{¶1} Appellant Mother appeals from the June 2, 2023 Judgment Entry of the

Knox County Court of Common Pleas, Juvenile Division granting legal custody of her

minor child J.R. [“John Doe”] to Paternal Aunt M.G. Appellee is the Knox County

Department of Job and Family Services [“Agency”].

FACTS AND PROCEDURAL HISTORY

History of Agency involvement with John Doe

{¶2} The Agency initiated action regarding John Doe, the subject of this case,

twice. First, the trial court granted emergency custody of John Doe to the Agency nine

days after his birth in 2020. He remained in the Agency’s custody from February 11,

2020, until August 20, 2020, when he was reunified with Mother. The Agency maintained

protective supervision of John Doe until November 10, 2020.

{¶3} The instant case arose on April 2, 2021, when the Agency again sought and

was awarded temporary custody of John Doe. A shelter care hearing was held on April

5, 2021, and the trial court found probable cause to continue the child in the Agency’s

temporary custody. On April 5, 2021, the Agency filed a complaint alleging dependency.

A preliminary hearing was held on April 16, 2021, and temporary custody was continued

to the Agency. On May 3, 2021, the trial court found the child dependent following an

adjudicatory hearing. On June 3, 2021, following a dispositional hearing, the child was

continued in the temporary custody of the Agency, and temporary custody continued

following a review hearing on September 27, 2021.

{¶4} On January 17, 2023, the Agency filed a motion to modify disposition

requesting the trial court to grant legal custody of John Doe to Paternal Aunt.
[Cite as In re J.R., 2023-Ohio-4766.]

{¶5} On March 30, 2023, Mother filed a motion to return custody.

{¶6} On February 28, 2022, the Agency filed a motion for permanent custody

because the child had been in the Agency’s temporary custody in excess of 12 of the past

22 consecutive months.

{¶7} On February 10, 2022, the biological Father of the child was identified and

verified by DNA testing. Ultimately the motion for permanent custody was dismissed by

the Agency during efforts to explore placement with paternal relatives.

{¶8} On January 17, 2023, the Agency filed a motion to modify disposition

requesting the trial court grant legal custody of John Doe to Paternal Aunt.

{¶9} On March 30, 2023, Mother filed a motion to return custody.

{¶10} On April 3, 2023, and April 24, 2023, the trial court held an evidentiary

hearing on all pending motions.

Evidentiary hearing on pending motions

{¶11} The following evidence is adduced from the record of the hearing.

{¶12} The family’s ongoing caseworker testified that John Doe has been the

subject of action by the Agency twice. He was first removed from Mother’s care in

February 2020, shortly after his birth, until August 2020. He was reunified with Mother

and the Agency retained protective supervision from August 2020 until November 2020.

{¶13} The instant case arose on April 2, 2021, when the Agency was granted

emergency temporary custody of Doe. Law enforcement took custody of the child after

placing Mother on a 72-hour mental-health hold and observing the home conditions to be
[Cite as In re J.R., 2023-Ohio-4766.]

unsafe.1 Doe was found to be dependent and remained in the temporary custody of the

Agency throughout the duration of the case (25 months).

{¶14} Although this case began with concerns for Mother’s mental health,

additional problems emerged including substance abuse and homelessness. The Agency

developed a case plan with identified goals including investigation of Father and paternal

relatives, visitation, referral to providers, foster placement, and kinship placement.

{¶15} Mother demonstrated ongoing instability during implementation of the case

plan. She tested positive for use of methamphetamines through September 2021; was

homeless through December 2021; failed to appear for random drug screens through

December 2022; and did not receive mental health treatment for the specific diagnoses

identified in her psychological evaluation, to wit, bipolar 2 and borderline personality

disorder.

{¶16} Mother did receive mental health treatment at the Freedom Center from

October 2021 until February 2022. At the beginning of treatment, her provider opined

Mother was so mentally ill that she could not recognize her own mental illness. She was

evaluated again in March 2023 but did not receive additional treatment. The provider

agreed that Mother’s instability could pose a risk to a 3-year-old child, especially if Mother

was attempting to parent the child unsupervised or full-time.

{¶17} The Agency referred Mother for a psychological evaluation with Dr. Dennis

Marikis in March 2022. Dr. Marikis diagnosed Mother with bipolar disorder 2 and

borderline personality disorder. Dr. Marikis opined that Mother’s significant psychiatric

1 The caseworker testified that law enforcement “pink slipped” Mother. T. 18.
[Cite as In re J.R., 2023-Ohio-4766.]

problems impacted her ability to parent to the degree that placing a young child with

Mother would be inappropriate.

{¶18} Mother attended counseling at Catalyst from February 2022 until December

2022 and Family Life Counseling from December 2022 until May 2023. Providers from

both services testified that Mother was treated for anxiety-related disorders, not for her

psychological diagnoses, but Mother did make progress and her attendance was positive.

{¶19} The Agency eventually sought permanent custody of John Doe on February

8, 2022; that motion was dismissed, refiled, and dismissed again when Father was

identified and confirmed for the first time. The Agency investigated the possibility of

placement with Father, but he was inappropriate due to concerns with alcohol abuse and

domestic violence against a minor victim. The Agency investigated paternal relatives and

identified Paternal Aunt as a potential placement.

{¶20} Paternal Aunt testified at the hearing and noted she signed a legal

statement of understanding with the Agency agreeing to assume custody of John Doe.

She understands that both parents retain rights to reasonable visitation, obligations to

support Doe, the right to determine his religious upbringing, and must consent to his

adoption. Paternal Aunt lives in Knox County with her other children and John Doe, who

was first placed with her in November 2022. By April 2023, Doe’s development was

positive and ongoing; his speech improved, he was potty-trained and wore diapers only

at bedtime, and ate a variety of foods. He was in preschool full-time and bonded with the

other children in the home.

{¶21} Paternal Aunt has the means and the desire to care for Doe long-term and

the ability and willingness to work out visitation with both parents, which she has done
[Cite as In re J.R., 2023-Ohio-4766.]

successfully so far. She is also willing to terminate visitation if appropriate, as she did

once when Father arrived for visitation visibly intoxicated.

{¶22} The Agency recommended legal custody to Paternal Aunt due to Mother’s

lack of stability, cyclical mental health concerns affecting her ability to parent, and John

Doe’s need for a safe, secure placement. Mother has significant history with the Agency

not only with John Doe but also with her three other children, all of whom are in relative

placement. At the time of the legal custody hearing, John Doe had been placed out of

Mother’s home for the majority of his young life, 30 months out of 38, and had just started

unsupervised visitation after 25 months of case plan services.

{¶23} Although Mother made progress on her case plan and was doing well at the

time of the hearing, the caseworker testified historically Mother cannot maintain stability

for any length of time when she is reunified with children. The caseworker acknowledged

Mother has completed parenting programs and is enrolled in counseling programs, has

adequate housing and employment, and is appropriate with John Doe during visitation.

When asked what prevents the Agency from reunifying Mother with Doe, the caseworker

pointed to Mother’s significant history with the Agency and the results of the psychological

evaluation. T. 26.

{¶24} The guardian ad litem testified at the hearing and recommended that the

trial court grant legal custody to Paternal Aunt. He noted this is an unusually complicated

case because he has recently had very positive interactions with Mother, but also

negative interactions in which she expressed that homelessness is acceptable for a child.

He observed that Mother has been appropriate with John Doe in the recent short term,

but opined that parenting John Doe full-time would put too much pressure on Mother’s
[Cite as In re J.R., 2023-Ohio-4766.]

fragile mental health. The G.A.L. stressed that his priority is long-term safety and security

for John Doe; he is concerned with Mother’s overall stability because historically

reunifications have not ended well. The G.A.L. also pointed out that legal custody does

not terminate Mother’s rights; if her progress continues, she can ask the court for more

contact, but at this point in time John Doe has been in the Agency’s custody for two years

and deserves permanency.

{¶25} On June 2, 2023, the trial court filed a journal entry finding that a grant of

legal custody to Paternal Aunt was in John Doe’s best interest. Mother now appeals from

the trial court’s Judgment Entry of June 2, 2023.

{¶26} Mother raises one assignment of error:

ASSIGNMENT OF ERROR

{¶27} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THAT IT WOULD BE IN THE BEST INTERESTS OF J.R. TO GRANT LEGAL

CUSTODY OF HIM TO [PATERNAL AUNT].”

ANALYSIS

{¶28} In her sole assignment of error, Mother argues the trial court abused its

discretion in awarding legal custody of John Doe to Paternal Aunt. We disagree.

{¶29} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an

abused, neglected, or dependent child, the court may make any of the following orders of

disposition: * * * Award legal custody of the child to either parent or to any other person

who, prior to the dispositional hearing, files a motion requesting legal custody of the child

or is identified as a proposed legal custodian in a complaint or motion filed prior to the
[Cite as In re J.R., 2023-Ohio-4766.]

dispositional hearing by any party to the proceedings * * *. In the instant case, John Doe

was adjudicated a dependent child.

{¶30} We note legal custody does not divest parents of residual parental rights,

privileges, and responsibilities. In re S.D., 5th Dist. Stark No. 2013CA0081, 2013-Ohio5752, ¶ 29, citing In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188 at

¶ 17. Accordingly, Mother may petition the trial court in the future for a modification of

custody. Id.

{¶31} Unlike in a permanent custody proceeding where a juvenile court's standard

of review is by clear and convincing evidence, the standard of review in legal custody

proceedings is a preponderance of the evidence. In re C.Y., 5th Dist. Licking No. 14-CA7, 2014-Ohio-4142, ¶ 25, citing In re A.C., 12th Dist. Butler No. CA2006–12–105, 2007-

Ohio-3350; In re Nice, 141 Ohio App.3d 445, 751 N.E.2d 552 (7th Dist.2001). The

statutory scheme regarding an award of legal custody does not include a specific test or

set of criteria, and a trial court must base its decision on the best interest of the child. In

re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188; In re P.S., 5th Dist. Stark

No. 2012CA00007, 2012-Ohio-3431. Despite the differences between a disposition of

permanent custody and legal custody, some Ohio courts have recognized that “the

statutory best interest test designed for the permanent custody situation may provide

some ‘guidance’ for trial courts making legal custody decisions.” In re A.F., 9th Dist.

Summit No. 24317, 2009-Ohio-333, citing In re T.A., 9th Dist. Summit No. 22954, 2006-

Ohio-4468.

{¶32} R.C. 2151.414(D) sets forth factors to be considered in deciding regarding

the best interest of the child. These factors include, but are not limited to, the following:
[Cite as In re J.R., 2023-Ohio-4766.]

(1) The interaction and interrelationship of the child with the

child's parents, siblings, relatives, foster caregivers, and out-of-home

providers, and any other person who may significantly affect the

child;

(2) The wishes of the child, as expressed directly by the child

or through the child's guardian ad litem, with due regard for the

maturity of the child;

(3) The custodial history of the child, including whether the

child has been in the temporary custody of one or more public

children services agencies or private child placing agencies for

twelve or more months of a consecutive twenty-two month period

ending on or after March 18, 1999;

(4) The child's need for a legally secure placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;

(5) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

{¶33} Because custody determinations “‘are some of the most difficult and

agonizing decisions a trial judge must make,’” a trial judge must have broad discretion in

considering all of the evidence. In re K.H., 5th Dist. Muskingum No. CT2016–0001, 2016–

Ohio–4784, ¶ 9, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159

(1997). We therefore review a trial court's determination of legal custody for an abuse of

discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An abuse of
[Cite as In re J.R., 2023-Ohio-4766.]

discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶34} We review the following with the standards for legal custody in mind and

find the record to be replete with relevant, competent, and credible evidence supporting

the trial court’s conclusion that granting legal custody to Paternal Aunt is in John Doe’s

best interest.

{¶35} We do not discount the progress Mother has made on her case plan, and

she is clearly trying her best to maintain stability and sobriety. Nevertheless, her history

with the Agency, her cyclical mental health concerns, and above all her seeming

unwillingness to address the significant psychological diagnoses weigh in favor of

granting legal custody to Paternal Aunt. Mother is addressing her anxiety and has been

sober recently, but the diagnoses of bipolar and borderline personality disorder, along

with her past methamphetamine use, are significant issues for the G.A.L., Dr. Marikis, the

trial court, and for us. Dr. Marikis opined that Mother’s significant psychiatric problems

affected her ability to parent to the degree that placement of a young child with her would

be inappropriate.

{¶36} Moreover, at the time of the hearing John Doe had been out of Mother’s

home for 30 months out of 38 months of life. He was thriving with Paternal Aunt. Upon

our review of the record, we find by a preponderance of the evidence that the grant of

legal custody to Paternal Aunt is in John Doe’s best interest.

{¶37} We disagree with Mother’s characterization that the trial court “pre-judged”

the case before evidence was taken at the hearing. Upon thoroughly reviewing the

record, we find that there was competent, credible evidence supporting the trial court's
[Cite as In re J.R., 2023-Ohio-4766.]

decision to decline return of John Doe to Mother’s custody and that decision is in the best

interest of the child. In light of the trial court's broad discretion in custody determinations,

we cannot say that the trial court abused its discretion in granting legal custody of John

Doe to Paternal Aunt. See, Matter of D.H., 5th Dist. Muskingum No. CT2020-0040, 2021-

Ohio-192, ¶ 41.

{¶38} Mother’s sole assignment of error is overruled.

CONCLUSION

{¶39} Mother’s sole assignment of error is overruled and the judgment of the Knox

County Court of Common Pleas, Juvenile Division is affirmed.

By: Delaney, J.,

Gwin, P.J. and

King, J., concur.