[Cite as In re C.C., 2011-Ohio-1624.]

COURT OF APPEALS 

 LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

 : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

IN RE C.C. & N.C. : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

 : 

 : Case No. 2010 CA 0088 

 : 

 : 

 : 

 : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, Juvenile Division, Case 

Nos. C 2008-0937, C 2008-0938 

 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: March 31, 2011 

APPEARANCES: 

For Mother-Appellant: For LCDJFS-Appellee: 

 

ERIC J. MCENANEY KENNETH W. OSWALT 

21 W. Church St., Suite 201 LICKING COUNTY PROSECUTOR 

Newark, OH 43055 

 ALICE L. BOND 

 Assistant Prosecuting Attorney 

 20 S. Second St., 4th Floor 

 Newark, OH 43055 
[Cite as In re C.C., 2011-Ohio-1624.]

Delaney, J. 

{¶1} Mother-Appellant Susan Clouse appeals the July 9, 2010 judgment entry 

of the Licking County Court of Common Pleas, Juvenile Division, granting legal custody 

of C.C. and N.C. to Appellant’s sister, Lorie Massie. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellant is the mother of C.C., born September 10, 2002, and N.C., born 

September 8, 2004. Father of the children is Michael Clouse. He is currently 

incarcerated for his conviction on two counts of Gross Sexual Imposition involving 

Appellant’s older daughter. 

{¶3} On October 9, 2008, a social worker and Appellant’s probation officer 

discovered Appellant intoxicated in her home with N.C. in her care. Marijuana and pills 

were found in the home. The children were temporarily placed with their grandparents. 

{¶4} On December 4, 2008, the Licking County Department of Job and Family 

Services (“LCDJFS”) filed a complaint with the Licking County Court of Common Pleas, 

Juvenile Division, alleging that C.C. and N.C. were dependent children and asked for 

temporary custody of the children. At the shelter care hearing, the trial court granted 

Lorie Massie, Appellant’s sister, temporary custody of C.C. and N.C. Massie also had 

custody of Appellant’s older daughter after Appellant’s husband was convicted of Gross 

Sexual Imposition. It was alleged that Appellant did not believe her daughter’s 

allegations and could not protect her from her husband. The trial court ordered 

Appellant to complete a psychological evaluation, to attend a drug and alcohol 

evaluation and counseling, and to submit to random drug and alcohol screening. 
Licking County, Case No. 2010 CA 0088 3 

{¶5} An adjudicatory hearing was held on February 17, 2009. At that hearing, 

C.C. and N.C. were found to be dependent children. The dispositional orders continued 

temporary custody with Massie. A case plan submitted by LCDJFS was approved by 

the trial court. 

{¶6} During this time, Appellant was granted unsupervised visitation with the 

children. Appellant and Massie resided in the same apartment complex. Massie 

permitted the children to be with Appellant a majority of the time. Appellant’s social 

worker, Angel Pound, was aware of this arrangement. 

{¶7} On October 9, 2009, LCDJFS filed a motion to modify disposition to return 

legal custody to Appellant. LCDJFS cited Appellant’s significant progress on her case 

plan and that she was attending drug and alcohol counseling. However, on October 29, 

2009, LCDJFS withdrew their motion to modify based on a domestic violence incident 

involving Appellant on October 23, 2009. Appellant was charged with Domestic 

Violence regarding an incident where Massie was the alleged victim. It was alleged that 

the incident involved alcohol. LCDJFS also requested that Appellant’s visitation with the 

children be supervised by the agency. 

{¶8} After the domestic violence charge in October 2009, Appellant made no 

further progress with her case plan. She moved from the area and resided with another 

family in McConnelsville, Morgan County, Ohio. 

{¶9} On January 13, 2010, LCDJFS filed a Motion to Modify Disposition to 

grant legal custody of the children to Massie. The Guardian ad Litem recommended 

that Massie be granted legal custody of the children. A hearing was held before the 

Magistrate on March 19, 2010. 
Licking County, Case No. 2010 CA 0088 4 

{¶10} At the hearing, Appellant, Pound, and Massie testified. Pound 

recommended that legal custody be awarded to Massie. Massie testified that she was 

bonded with the children. Her husband was employed at Wal-Mart and Massie worked 

in the home. The children had their own bedroom. The children were doing well at 

school while in Massie’s care. Massie testified that she had prior criminal convictions 

for theft in 1988 and passing bad checks in 2004. 

{¶11} The Magistrate’s Decision was filed on April 3, 2010 granting legal custody 

of C.C. and N.C. to Massie. Appellant filed objections to the Magistrate’s Decision. 

{¶12} On July 9, 2010, the trial court overruled Appellant’s objections and 

adopted the Magistrate’s Decision granting legal custody of the children to Massie. 

{¶13} It is from this decision Appellant now appeals. 

ASSIGNMENT OF ERROR 

{¶14} Appellant raises one Assignment of Error: 

{¶15} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN 

DETERMINING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE PLACED 

INTO THE LEGAL CUSTODY OF THE FOSTER PARENTS, AS SUCH A 

DETERMINATION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” 

I. 

{¶16} Appellant argues in her sole Assignment of Error that it was not in the 

children’s best interests to be placed in the legal custody of Massie. We disagree. 

{¶17} We first note this was a grant of legal custody, not permanent custody. 

Legal custody does not divest parents of residual parental rights, privileges, and 

responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, at 
Licking County, Case No. 2010 CA 0088 5 

paragraph 17. This means Appellant may petition the court for a modification of custody 

in the future. Id.

{¶18} 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: 

{¶19} “ * * * 

{¶20} “(3) 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 dispositional hearing by any party to the proceedings. * * *.” 

{¶21} Despite the differences between a disposition of permanent custody and a 

disposition of 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., Summit App. No. 24317, 

2009-Ohio-333, ¶ 7, citing In re T.A., Summit App. No. 22954, 2006-Ohio-4468, ¶ 17. 

{¶22} Furthermore, because custody issues are some of the most difficult and 

agonizing decisions a trial judge must make, he or she must have wide latitude in 

considering all the evidence and such a decision must not be reversed absent an abuse 

of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, 

citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme 

Court has also explained: “A reviewing court should not reverse a decision simply 

because it holds a different opinion concerning the credibility of the witnesses and 

evidence submitted before the trial court. A finding of an error in law is a legitimate 
Licking County, Case No. 2010 CA 0088 6 

ground for reversal, but a difference of opinion on credibility of witnesses and evidence 

is not.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273. 

Likewise, “[e]very reasonable presumption must be made in favor of the judgment and 

the findings [of the juvenile court]. * * * If the evidence susceptible to more than one 

construction, we must give it that interpretation which is consistent with the verdict and 

judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.” 

In re: MB, Summit App. No. 21812, 2004-Ohio-2666, citing Karches v. Cincinnati

(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the trial court, as 

the fact finder, is free to believe all, part, or none of the testimony of each witness. 

State v. Caldwell (1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, as an 

appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. 

Our role is to determine whether there is relevant, competent, and credible evidence 

upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 

10, 1982), Stark App. No. CA-5758. 

{¶1} In determining the best interest of the child in a permanent custody case, 

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, 

but not limited to, the following: (1) the interaction and interrelationship of the child with 

the child's parents, siblings, relatives, foster parents 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; and (4) the child's need 

for a legally secure permanent placement and whether that type of placement can be 

achieved without a grant of permanent custody. 
Licking County, Case No. 2010 CA 0088 7 

{¶23} Under the facts of this case, we cannot say the trial court abused its 

discretion in granting legal custody of C.C. and N.C. to Massie. 

{¶24} The record shows that until October 2009, Appellant was successfully 

working on her case plan to the stage that LCDJFS moved for modification of legal 

custody of the children back to Appellant. In October 2009, however, Appellant was 

involved in a domestic violence incident with Massie. At that time, Appellant admittedly 

stopped working on her case plan that would help her reunify with her children. 

Appellant testified that she did not want to work with Pound, her social worker, anymore 

and she moved away from the area. 

{¶25} The Guardian ad Litem and Pound reported that the children were doing 

well with Massie. Massie provided the children with a stable living environment. While 

Massie did let Appellant care for the children while the children were to be in Massie’s 

custody, Pound was aware of the arrangement and did not intercede. 

{¶26} Upon the facts presented, we find that the trial court did not abuse its 

discretion in finding that it was in the children’s best interests to be placed in the legal 

custody of Massie. 

{¶27} Appellant’s sole Assignment of Error is overruled. 
Licking County, Case No. 2010 CA 0088 8 

{¶28} The judgment of the Licking County Court of Common Pleas, Juvenile 

Division, is affirmed. 

By: Delaney, J. 

Hoffman, P.J. and 

Farmer, J. concur. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER 

 
[Cite as In re C.C., 2011-Ohio-1624.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

 : 

 : 

 : 

IN RE C.C. & N.C. : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : Case No. 2010 CA 0088 

 : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Licking County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed 

to Appellant. 

 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER