[Cite as In re D.B., 2024-Ohio-1965.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

IN RE: D.B.

D.S.

C.A. Nos. 30806

30807

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE Nos. DN 21 10 0874

DN 22 03 0241

DECISION AND JOURNAL ENTRY

Dated: May 22, 2024

HENSAL, Judge.

{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common 

Pleas, Juvenile Division, that placed her children in the legal custody of a third party. This Court 

affirms.

I.

{¶2} Mother is the biological mother of D.B., born October 16, 2007; and D.S., born 

November 29, 2011. D.B.’s father is incarcerated for life and did not participate in the proceedings 

below or on appeal. D.S.’ father is unknown. D.B. was placed in the legal custody of her maternal 

grandmother during a dependency case in 2011.

{¶3} In September 2021, Summit County Children Services Board (“CSB” or “the 

agency”) received a referral asserting that Mother’s then-paramour inappropriately touched D.S. 

While investigating the allegation of sexual abuse, the agency learned that Mother had been 
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charged with various felony and misdemeanor offenses, was in jail, and was expected to remain 

incarcerated for some time; and that D.B.’s legal custodian was using crack cocaine and had a 

pending warrant for her arrest. CSB filed complaints alleging that D.B. and D.S. were neglected 

and dependent children. At a team decision meeting held by the agency, Mother and the maternal 

grandmother agreed that the grandmother would vacate her home and the children would remain 

there in the temporary custody of their maternal aunt who also resided there. The juvenile court 

placed the children in their aunt’s emergency temporary custody under the protective supervision 

of the agency. 

{¶4} After a shelter care hearing, however, the juvenile court placed the children in the 

emergency temporary custody of CSB because the aunt had admitted to using marijuana illegally. 

Thereafter, in early November 2021, the agency placed both children in the home of D.B.’s 

paternal grandmother (“Grandmother”). Grandmother is not related to D.S. by blood.

{¶5} After adjudicatory hearings1, the juvenile court found both children dependent and 

dismissed the allegations of neglect. For their initial dispositions, D.B. and D.S. were placed in 

the temporary custody of CSB which maintained them in Grandmother’s home. The juvenile court 

adopted the agency’s case plan as its order. Mother’s case plan objectives included chemical 

dependency, mental health, and basic needs components.

{¶6} Mother was convicted and sentenced to prison during the cases. As the sunset date 

approached, Mother filed alternative motions for either temporary custody of both children to 

Grandmother or a six-month extension of the agency’s temporary custody. Mother asserted that 

1 Due to service issues in D.S.’ case regarding John Doe, the agency dismissed and refiled 

its complaint regarding D.S. Accordingly, the children’s adjudicatory and initial dispositional 

hearings occurred at different times.
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she expected to be released from prison within two months and the extension of time would allow 

her to work on her case plan objectives. 

{¶7} D.B. and D.S. filed a motion requesting they be placed in the legal custody of 

Grandmother. Prior to D.S.’ adjudication, CSB had moved for legal custody of D.B. to 

Grandmother. The agency later joined in the children’s motion for legal custody of both to

Grandmother.

{¶8} After an evidentiary hearing, the magistrate granted the children’s and agency’s 

motions for legal custody of both D.B. and D.S. to Grandmother. The magistrate denied Mother’s 

alternative motions which would have extended the pendency of the cases. Mother timely objected 

to the magistrate’s decision.

{¶9} The juvenile court overruled Mother’s objection. It denied Mother’s motions for 

temporary custody to Grandmother or a six-month extension of the agency’s temporary custody. 

The trial court granted CSB’s and the children’s motions for legal custody to Grandmother. 

Mother filed a timely appeal in which she raises three assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

GRANTED LEGAL CUSTODY OF THE MINOR CHILDREN TO 

[GRANDMOTHER] AS [CSB] FAILED TO DEMONSTRATE WITH CLEAR 

AND CONVINCING EVIDENCE THAT IT WAS IN THE CHILDREN’S BEST 

INTEREST. THE TRIAL COURT’S DECISION IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

{¶10} Mother argues that the juvenile court’s judgment awarding legal custody of the 

children to Grandmother is against the manifest weight of the evidence. This Court disagrees.

{¶11} As an initial matter, Mother argues that an award of legal custody must be based on 

clear and convincing evidence. Mother cites an incorrect burden of proof, as it is well settled:
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On appeal, an award of legal custody will not be reversed if the judgment is 

supported by a preponderance of the evidence. Preponderance of the evidence 

entails the greater weight of the evidence, evidence that is more probable, 

persuasive, and possesses greater probative value. In other words, when the best 

interest of the child is established by the greater weight of the evidence, the trial 

court does not have discretion to enter a judgment that is adverse to that interest. 

Thus, our standard of review is whether a legal custody decision is against the 

manifest weight of the evidence.

(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-

Ohio-2685, ¶ 7.

{¶12} In considering whether the juvenile court’s judgment is against the manifest weight 

of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the 

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder 

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] 

must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman, 

132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always 

be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

{¶13} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s 

determination of whether to place 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 courts 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, at ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard, 

the juvenile court is guided by the best interest factors enunciated 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 factors 
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include the interaction and interrelationships of the child, the 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. 

{¶14} 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 environment; the mental and physical health of all persons involved; the 

parents’ history of providing support and honoring companionship orders; certain indicia of 

violence, abuse, or neglect in any household involved; and whether a parent plans to or has 

established a residence outside of Ohio. R.C. 3109.04(F)(1). 

{¶15} D.B. and D.S. were 14 and 9 years old, respectively, when CSB filed its complaints 

below. D.S. had been in Mother’s legal custody until the agency removed him shortly before his 

tenth birthday. D.B., however, had been removed from Mother’s home and placed in the legal 

custody of her maternal grandmother when she was three or four years old.

{¶16} The children share a close sibling bond and wish to reside together. They had been 

living in Grandmother’s home for about 16 months at the time of the hearing. They are 

comfortable and well adjusted to that environment. D.B. is particularly close with Grandmother 

with whom she shares a biological connection. D.S. initially felt like he was a burden on a 

caregiver with whom he has no familial relationship, but he has come to recognize Grandmother 

as someone willing to assume the role of his natural grandparent. He feels loved by Grandmother 

and has acknowledged that she provides “excellent” care for him and his sister. 
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{¶17} Grandmother is committed to providing a permanent home for both children. She 

ensures that D.B. maintains a relationship with her father who is serving a long-term prison 

sentence. In addition, Grandmother facilitates visits and ongoing relationships for the children 

with their maternal grandmother and aunt. She encourages the children to stay in touch with 

Mother.

{¶18} Mother was in jail when these cases began but was transferred to prison after 

convictions for various felony offenses. She has remained in regular contact with the children via 

phone calls during her incarceration. Mother and the children share a bond.

{¶19} D.B. told the guardian ad litem that she wants to continue living in Grandmother’s 

home because she is comfortable, familiar with the environment, and all her needs are met in that 

home. The guardian ad litem testified that D.S. initially hoped to live with his maternal aunt, a 

family member with whom he is comfortable and has a familial relationship. CSB did not approve 

the aunt for placement due to her then-illegal use of marijuana. D.S. was clear that he wants to 

live wherever his sister D.B. is residing. He reported that he likes living with Grandmother where 

he has everything he needs. The guardian ad litem opined that legal custody to Grandmother 

would meet the best interest of both children because her home is appropriate, meets all the 

children’s needs, provides stability, and Grandmother facilitates the children’s relationships with 

other family members.

{¶20} D.B. experienced a custodial disruption as a young child. Both children were in 

CSB’s temporary custody for almost a year and a half during these cases and require permanency 

and stability. Grandmother executed a statement of understanding for legal custody and testified 

that she was willing and able to provide a home for both children until they reach the age of 

majority. 
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{¶21} The caseworker and guardian ad litem testified that Grandmother’s home is safe, 

stable, and appropriate. Grandmother supports D.S.’ participation in counseling services to 

address his exposure to sexual abuse by Mother’s prior paramour and his ongoing adjustment 

issues. Both children have done well in school throughout their placement with Grandmother.

{¶22} Mother was serving a prison term at the time of the February 2023 hearing, with an 

anticipated release date near the end of that year. Although she testified she believed her attorney 

in her criminal case had filed a motion for judicial release, there was no record of that motion 

having been filed. Moreover, while Mother testified that the judge who presided over her criminal 

case guaranteed her early release from prison, any judicial release, particularly with no motion 

pending, was speculative. Accordingly, the evidence demonstrated that Mother was not available 

to reassume legal custody within the near future. See In re A.M., 9th Dist. Summit No. 30858, 

2024-Ohio-1152, ¶ 11 (noting that “speculative projections about early release from incarceration” 

do not provide evidentiary support regarding a parent’s release from prison).

{¶23} Mother has argued that the juvenile court erred by granting legal custody of the 

children to Grandmother because she made significant progress on her case plan objectives. While 

relevant to the issue of best interest of the children, a parent’s case plan compliance is not 

dispositive. In re M.B., 9th Dist. Summit No. 30383, 2023-Ohio-1804, ¶ 15. 

{¶24} Mother’s case plan objectives addressed mental health, substance abuse, and basic 

needs. She testified that she has been engaging in mental health counseling in prison. The only 

drug screen CSB requested of her was negative for illegal substances. Mother is working four 

days a week in prison, although there was no evidence of her earnings. 

{¶25} Mother testified that she has secured housing for herself upon release from prison 

in a domestic violence shelter in Columbus, more than two hours away from where the children 
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have lived in Summit County. She asserted that the children could stay with her in the shelter. 

She testified that she also found employment upon her release, although she could not provide 

many details except that the job was in Summit County. She did not explain how she would travel 

between the shelter in Columbus and her job in Summit County every day, or what plans she had 

for the children in her absence.

{¶26} The guardian ad litem opined that displacing the children from Grandmother’s 

home, where they were well settled and comfortable, and moving them to a shelter environment 

in an area unfamiliar to them would not be in their best interest. A shelter is necessarily a shortterm housing situation, so the children would expect to face further disruptions to their living 

arrangements, schools, service providers, and established friendships. 

{¶27} Based on a thorough review of the record, this Court concludes that this is not the 

exceptional case in which the trier of fact clearly lost its way and created a manifest miscarriage 

of justice by granting legal custody of D.B. and D.S. to Grandmother. The children are safe and 

comfortable in Grandmother’s home where all their needs are met. Grandmother encourages and 

facilitates the children’s relationships with family members, including Mother. D.B. and D.S. 

want to reside together and are content to remain with Grandmother. The guardian ad litem opined 

that legal custody to Grandmother is in the children’s best interest. The children had been in 

custodial limbo for almost a year and a half and require permanency. Mother’s anticipated release 

from prison would not occur for another seven months. Her plans for housing and employment 

upon release were inconsistent and not well developed. Accordingly, the children and CSB 

established by a preponderance of the evidence that legal custody to Grandmother was in the 

children’s best interest. Under these circumstances, the juvenile court’s judgment is not against 

the manifest weight of the evidence. Mother’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS 

DISCRETION WHEN IT DENIED MOTHER[‘S] MOTION FOR FIRST SIXMONTH EXTENSION.

{¶28} Mother argues that the juvenile court erred by denying her motion for a six-month 

extension of temporary custody. This Court disagrees.

{¶29} As stated above, the juvenile court determines a motion for legal custody solely in 

consideration of the best interest of the children. In re J.M., 9th Dist. Summit No. 30258, 2022-

Ohio-3638, ¶ 32, citing In re K.H., 2016-Ohio-1330, at ¶ 12. We have further repeatedly held that 

“if legal custody to a nonparent is in the best interest of the child[ren], an extension of temporary 

custody is not.” In re A.P., 9th Dist. Summit No. 30056, 2022-Ohio-276, ¶ 9, citing In re A.M., 

9th Dist. Lorain No. 16CA010995, 2017-Ohio-7653, ¶ 41. 

{¶30} The juvenile court may only extend temporary custody for up to six months for the 

first time if it finds, by clear and convincing evidence, all of the following: “the extension is in the 

best interest of the child[ren], there has been significant progress on the case plan of the child, and 

there is reasonable cause to believe that the child[ren] will be reunified with one of the parents or 

otherwise permanently placed within the period of extension.” R.C. 2151.415(D)(1). Clear and 

convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or 

conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d 

361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the 

syllabus.

{¶31} Because an award of legal custody of the children to Grandmother is in the 

children’s best interest, any extension of temporary custody necessarily is not. Moreover, 

Mother’s release from prison was not scheduled until seven months after the date of the legal 
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custody hearing. She failed to prove that she had moved for judicial release and her prospects for 

early release were speculative. Accordingly, there was no reasonable cause to believe that the 

children could be reunified with Mother within the period of extension. Therefore, assuming 

without deciding that Mother demonstrated significant progress on her case plan objectives, there 

was no clear and convincing evidence to support the remaining two necessary requirements to 

support an extension of temporary custody. Mother’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS 

DISCRETION WHEN IT GRANTED LEGAL CUSTODY TO 

[GRANDMOTHER] (A NON-RELATIVE OF MINOR CHILD D.S.) WHEN 

[CSB] DID NOT PROVIDE REASONABLE REUNIFICATION EFFORTS.

{¶32} Mother argues that CSB did not use reasonable efforts to attempt to reunify the 

children with her. This Court disagrees.

{¶33} Parents have a substantial right under law to raise their children and are entitled to 

all legally permissible procedural and substantive protections. In re K.J., 9th Dist. Summit No. 

29915, 2021-Ohio-4413, ¶ 18. Those protections “include the child welfare agency’s obligation 

to make reasonable efforts to reunify children with one or both parents.” Id. Section 2151.419(A) 

places the burden on the agency to demonstrate it has made reasonable efforts to facilitate 

reunification.

{¶34} Chapter 2151 of the Revised Code does not define “reasonable efforts.” Ohio 

courts have come to construe that term as “[t]he state’s efforts to resolve the threat to the child 

before removing the child or to permit the child to return home after the threat is removed[.]” 

(Internal quotations omitted.) In re J.M., 9th Dist. Summit No. 30258, 2022-Ohio-3638, ¶ 35, 

quoting In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, quoting Will L. Crossley, Defining 

Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 
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12 B.U.Pub.Int.L.J. 259, 260 (2003). When making a reasonable efforts determination, “‘the issue 

is not whether the agency could have done more, but whether it did enough to satisfy the 

reasonableness standard under the statute.’” In re J.M. at ¶ 35, quoting In re C.M., 9th Dist. 

Summit No. 24380, 2009-Ohio-943, ¶ 21. “In determining whether reasonable efforts were made, 

the child’s health and safety shall be paramount.” R.C. 2151.419(A)(1).

{¶35} Section 2151.412(A) requires CSB to “prepare and maintain a case plan for any 

child to whom the agency is providing services” under various circumstances, including when the 

agency has temporary custody of the child. See also Ohio Adm.Code 5101:2-38-05(A). Parents 

are necessary parties to the case plan. Id. at (C)(1). Moreover, this Court recognizes:

The case plan is the tool used by the agency to facilitate family reunification efforts. 

In re H.S., 9th Dist. Summit Nos. 28944 and 28948, 2018-Ohio-3360, ¶ 18. In fact, 

the overriding purpose of the case plan is to allow the agency to assist the parents 

in remedying the conditions underlying a child’s removal so that the child can be 

returned safely to one or both parents’ custody. In re S.R., 9th Dist. Summit No. 

27209, 2014-Ohio-2749, ¶ 45.

In re K.J. at ¶ 18.

{¶36} CSB created a case plan for the children which included mental health, substance 

abuse, and basic needs objectives for Mother. Mother argues that the agency failed to make 

reasonable reunification efforts because the caseworker “did absolutely NOTHING” during the 

last six months of the cases while Mother was in prison. She reasons that, because she 

“substantially completed her case plan[,]” and the caseworker did not obtain her mental health 

records from prison, the agency deprived her of reasonable reunification efforts.

{¶37} The caseworker testified that he obtained a release of information from Mother and 

remained in ongoing communications with her various case managers in prison, requesting updates 

on Mother’s status and what she was doing. He testified that each time Mother changed pods in 

prison, she was assigned a new case manager and that it took each of those people time to 
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understand that there was an effective release of information on file. He admitted that Mother may 

have been involved in mental health services in prison but that she did not inform him of her 

involvement. The caseworker testified that Mother only recently informed him that the prison 

required a release of information specific to mental health services before it would share such 

information. The caseworker sent a release of mental health information to the prison but had not 

yet received an update on Mother’s mental health services and progress because either Mother had 

not yet signed the form, or the prison had not obtained her executed release.

{¶38} In addition to creating a case plan and maintaining contact with Mother’s case 

managers in prison, the caseworker maintained contact with the parties, conducted home visits 

where the children were placed, made referrals for services for the various parties, and assessed 

family members for placement. Mother’s ongoing incarceration prevented her from establishing 

and maintaining an appropriate home and obtaining employment or other financial resources to 

allow her to provide for the children’s basic needs. It also delayed the caseworker’s ability to 

obtain information relevant to Mother’s engagement in services, her progress, and any need to 

modify objectives based on newly identified concerns.

{¶39} The evidence indicates that CSB used reasonable efforts throughout these cases 

with the health and safety of the children in mind. See R.C. 2151.419(A)(1). Mother’s 

unsubstantiated argument that the caseworker did “nothing” during the last six months of the cases, 

coupled with her own incarceration which precluded her from achieving the important goal of 

demonstrating her ability to meet the children’s basic needs, “do not impugn CSB’s reasonable 

reunification efforts.” See In re J.E., 9th Dist. Summit No. 30174, 2022-Ohio-2403, ¶ 31. 

Mother’s third assignment of error is overruled. 
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III.

{¶40} Mother’s three assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed. 

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court 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 make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL

FOR THE COURT

CARR, P. J.

FLAGG LANZINGER, J.

CONCUR.
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APPEARANCES:

STEPHEN M. GRACHANIN, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant 

Prosecuting Attorney, for Appellee.