[Cite as In re C.L., 2021-Ohio-3819.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

IN RE C.L., ET AL. : 

 : No. 110363 

Minor Children : 

 : 

[Appeal by Mother] : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 28, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. AD-18-907033 and AD-18-907034 

 

Appearances: 

Judith M. Kowalski, for appellant. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Michelle A. Meyers, Assistant Prosecuting 

Attorney, for appellee CCDCFS. 

 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Britta Barthol, Assistant Public Defender, for appellee

A.A. 

MICHELLE J. SHEEHAN, J.: 

 Appellant, C.L.L., the mother of two children, C.L. and E.L., appeals 

the juvenile court’s grant of custody of the children to their father, A.A. Because the 

juvenile court (1) did not err in precluding appellant’s testimony in this case, (2) did 
not abuse its discretion determining the children’s best interests were met by 

awarding custody to A.A., and (3) ordered appropriate restrictions on appellant’s 

visitation with the children, we affirm the judgment. 

I. PROCEDURAL HISTORY AND FACTS 

 On June 1, 2018, the Cuyahoga County Division of Children and 

Family Services (“CCDCFS or “the Agency”) filed a complaint alleging appellant’s 

children C.L. and E.L. were dependent and requesting protective supervision. On 

September 10, 2018, the children were found to be dependent after a hearing and 

placed in protective supervision with the Agency. On September 27, 2018, the 

Agency filed a motion for leave to amend the disposition from protective supervision 

to temporary custody. A hearing was held on October 19, 2018, and the juvenile 

court issued an order committing C.L. and E.L. to the temporary care and custody 

of the Agency. On October 23, 2018, appellant objected to the decision, and on 

November 29, 2018, the objections were overruled. On December 4, 2018, the order 

granting temporary custody of the children to the Agency was approved. 

 On May 13, 2019, the Agency filed a motion to extend the order of 

temporary custody that was granted on June 25, 2019, with the temporary custody 

being extended to November 30, 2019. On October 9, 2019, the Agency filed a 

second motion for extension of temporary custody that was granted on February 5, 

2020, extending the Agency’s custody of the children until May 30, 2020. 

 On May 14, 2020, CCDCFS filed a motion to modify temporary 

custody of the children to legal custody of their father, A.A., with protective 
supervision to the Agency. On September 28, 2020, the juvenile court began a 

hearing on the motion. Social worker Shanara Leonard testified that she was 

assigned the case in August 2020 and, at the time the Agency filed the complaint 

alleging the children to be dependent, C.L. was four years of age and E.L. was two 

years of age. The children had been removed from appellant’s care due to concerns 

about her mental health and her inability to manage the children’s behavior. A case 

plan was developed with the goal of reunification that included appellant receiving 

mental health services, parenting classes, and assistance for housing. 

 Leonard further testified that in conjunction with the case plan, 

appellant reported that she completed a mental health assessment and had a 

therapist, but provided no specific information that the Agency could verify. In 

2019, appellant was referred for a parenting program but did not complete the 

program. Further, appellant refused to communicate with the social worker over 

the phone, expressing that she did not want to be recorded, but did not attend any 

meetings with the social worker. Appellant was also referred for assistance with 

housing but did not follow through with the referral. At the time of the hearing in 

September 2020, appellant was homeless and had been sleeping in her car or bus 

stations and in hotels when she could. 

 After the children were initially removed, the children’s father, A.A., 

began having regular visits. The visits with A.A. were unsupervised by December 

2019. In June 2020, the Agency placed the children with A.A., and they remained 

with him. Leonard testified that she visited the home on multiple occasions and 
stated it was safe and that the children had all their basic needs met. The children 

were further observed smiling and playing with their father. Leonard reported that 

the children adjusted well to being with their father and that he demonstrated that 

he can consistently meet their basic needs. 

 As to appellant’s relationship with her children, Leonard testified that 

appellant had supervised visitation with the children at first, but that visitation 

ceased in June 2020. In August 2020, appellant said she wanted visitation with her 

children, but then said she did not want visitation, stating she did not want to be in 

a public setting because she did not want others or the children to see her emotional. 

Further, appellant declined to speak with the children over the phone when given 

the opportunity. 

 After Leonard testified, the court granted appellant a continuance in 

order to produce witnesses. On January 22, 2021, the hearing resumed and 

appellant’s attorney noted appellant wished to testify, but he advised her not to, 

stating there was another proceeding in juvenile court in which her testimony could 

be used against her. The magistrate conducting the hearing asked appellant if she 

understood that she had a right to remain silent. Appellant answered that “I know 

I have the right, but I don’t agree today.” The juvenile court then explained to 

appellant that she has a right to remain silent and that if she remains silent, nobody 

can comment on her decision and asked if she understood. Appellant said, “No, I 

don’t understand that.” 
 Appellant’s attorney and the magistrate again attempted to explain 

her rights to her. After each explanation, appellant wavered in her responses, from 

stating that she did not understand her rights, to stating that she understood her 

rights, to stating, “I don’t understand the right to remain silent part. I can’t 

understand that one.” Appellant also stated that she didn’t “understand how I will 

talk and people will question me, but I can’t question them.” After the court 

procedure was explained, appellant stated that “I understand it, but I don’t agree 

with it. I understand some of it.” The magistrate again asked appellant if she wanted 

to waive her right and testify, she responded, “I don’t know about the Fifth 

Amendment right * * * I mean, I don’t want to waive that right.” Her attorney then 

asked if she wanted “to be silent and not testify?” Appellant responded “No.” Her 

attorney then explained her right not to testify, and appellant responded that “[t]his 

whole thing is (inaudible) confused. I don’t understand. I just don’t. I’m sorry. 

Everything is all messed up. I don’t understand this,” and continued by stating “I 

want to testify, but — I want people questioning me, but I want to have the 

opportunity to ask other people questions.” When explained again that court 

procedure would not allow her to ask questions, she stated “It’s wrong.” The 

magistrate then explained that if appellant testified, she couldn’t ask any questions 

and again asked appellant, “Do you want to waive your Fifth Amendment right to 

remain silent and testify?” Appellant said “I’m sorry. I can’t answer the question. I 

don’t want you to answer it for me either.” Appellant was again asked if she wished 
to waive her right not to testify. Appellant stated, “I’m sorry. I can’t decide on that 

because I don’t think that’s the right move for this court case.” 

 After another discussion of court procedure, appellant indicated that 

she wanted other people to testify. The following colloquy was then had between 

the magistrate and appellant: 

THE COURT: Thank you. [C.L.L.], you have a Fifth Amendment right 

to remain silent. You can waive that and testify here 

today. Do you want to waive your Fifth Amendment 

right and testify or do you want to invoke your Fifth 

Amendment right? Yes or no? 

APPELLANT: I can’t answer it. 

THE COURT: Based on the fact that mother has stated she cannot 

answer that question, mother has a Fifth Amendment 

right to remain silent. In order to protect mother’s 

rights, the Court cannot force mother to testify. She 

cannot give this Court an answer. She has indicated at 

least twice that she can’t answer that question. I cannot 

force her to testify. No one in this courtroom can. I 

can’t make any inferences, nor can anybody else on the 

fact that she’s not testifying. 

 The guardian ad litem (“GAL”) testified that he had visited with the 

father and children on four occasions from August 11, 2020, to the date of the 

hearing and recommended that the children’s best interests would be to grant legal 

custody to their father and that the mother should have visitation. 

 On February 12, 2021, the juvenile court committed the children to 

the custody of their father with an order of protective supervision to the Agency. The 

juvenile court further ordered that the Agency continue to facilitate and supervise 
visits by appellant. On February 22, 2021, appellant objected to the order, and the 

objections were overruled on March 15, 2021. 

II. LAW AND ARGUMENT 

A. THE TRIAL COURT ACTED WITHIN ITS DISCRETION BY NOT 

ALLOWING APPELLANT TO TESTIFY AT THE HEARING 

 Appellant’s first assignment of error reads: 

The trial court erred to the prejudice of the appellant and against the 

best interests of the children by denying her the right to testify at trial. 

Appellant argues that she was denied the right to testify and that such 

denial was an abuse of discretion. The Agency and A.A. argue that because appellant 

did not knowingly waive her rights, there was no abuse of discretion and appellant 

suffered no prejudice from that decision. 

In a juvenile court proceeding regarding custody, parents have a Fifth 

Amendment right not to testify. In re Billman, 92 Ohio App.3d 279, 280-281, 634 

N.E.2d 1050 (8th Dist.1993). “‘In a case where parental rights are permanently 

terminated, it is of utmost importance that the parties fully understand their rights 

and that any waiver is made with full knowledge of those rights and the 

consequences which will follow.’” In re Rock Children, 5th Dist. Stark 

No. 2004CA00358, 2005-Ohio-2572, ¶ 17, quoting Elmer v. Lucas Cty. Children 

Serv. Bd., 36 Ohio App.3d 241, 245, 523 N.E.2d 540 (6th Dist.1987); In re A.C., 8th 

Dist. Cuyahoga No. 102351, 2015-Ohio-3673, ¶ 5. Accordingly, it was incumbent 

upon the juvenile court to ensure that appellant understand her right not to testify 
and ensure that any waiver was made with full understanding of the effects of her 

decision to testify. 

Further, a court has discretion to admit or exclude evidence. 

Appellate courts review a decision to allow or disallow testimony under an abuse 

of discretion standard. Buckmaster v. Buckmaster, 4th Dist. Highland 

No. 13CA13, 2014-Ohio-793, ¶ 21; see also In re M/W Children, 1st Dist. Hamilton 

No. C-180623, 2019-Ohio-948 (reviewing denial of mother’s request for 

continuance in order to testify for an abuse of discretion). An abuse of discretion 

is more than an error of law or judgment; it implies that a court has acted in a 

manner that is unreasonable, arbitrary or unconscionable. Blakemore v. 

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

In this case, the record indicates appellant vacillated between stating 

she understood the right to testify, stating that she wanted to testify and did not 

want to testify, and indicated that she wanted to testify in order to ask questions 

from the witness stand. After numerous attempts to determine whether or not 

appellant understood her right not to testify, the court was unable to satisfy itself 

that appellant understood her right or voluntarily waived that right. Given that the 

juvenile court could not determine if appellant understood her right not to testify 

and its effect and could not determine if appellant did in fact wish to voluntarily 
waive her rights, we cannot find that the juvenile court abused its discretion by 

precluding her testimony.1 

The first assignment of error is overruled. 

B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN 

DETERMINING THAT THE BEST INTERESTS OF THE CHILDREN 

WERE MET BY GRANTING CUSTODY TO THE CHILDREN’S 

FATHER 

 Appellant’s second assignment of error reads: 

The trial court erred to the prejudice of the appellant and against the 

best interests of the minor children in awarding legal custody to 

father. 

 Appellant argues that the court erred in its determination that the 

best interests of her children were served by awarding legal custody to A.A., their 

father, because he had no relationship with the children prior to the Agency’s 

involvement and the Agency did not do more to investigate A.A.’s care of the 

children. The Agency and A.A. argue that the trial court properly considered the 

necessary factors in awarding A.A. custody of his children. 

 Where a child is adjudicated to be dependent, R.C. 2151.353(A)(3) 

provides that the court may 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.” This court has found that: 

1 We also note that Evid.R. 103(A) provides that “Error may not be predicated upon a ruling 

which admits or excludes evidence unless a substantial right of the party is affected.” 

Evid.R. 103(A)(2) requires that where a ruling excluding evidence is made, “the substance 

of the evidence was made known to the court by offer or was apparent from the context 

within which questions were asked.” The record does not reflect a proffer of appellant’s 

testimony or indicate in any manner what appellant’s testimony would be. 
An award of legal custody is “significantly different” than the 

termination of parental rights. In re G.M., 8th Dist. Cuyahoga No. 

95410, 2011-Ohio-4090, ¶ 14. An award of legal custody is “not as 

drastic a remedy as permanent custody” because, despite losing legal 

custody of the child, the parent retains residual parental rights, 

privileges, and responsibilities and can petition the court for a custody 

modification in the future. In re L.D., 10th Dist. Franklin No. 12AP985, 2013-Ohio-3214, ¶ 7; In re H.A.I., 8th Dist. Cuyahoga No. 97771, 

2012-Ohio-3816, ¶ 36-37. 

In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 32. The juvenile 

court’s award of custody is based upon determining the best interest of the child 

“‘based upon a preponderance of the evidence.’” Id. at ¶ 44, quoting In re M.J.M., 

8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 11. A preponderance of the 

evidence means evidence that is more probable, more persuasive, or of greater 

probative value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7. 

“The decision whether to grant or deny a request for legal custody is within the 

sound discretion of the juvenile court.” In re T.R., 8th Dist. Cuyahoga No. 102071, 

2015-Ohio-4177, ¶ 45. 

 When granting custody, the juvenile court is required under 

R.C. 2151.414(D)(1) to 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; (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; and (5) whether any of the factors 

set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). As the 

Supreme Court of Ohio explained, “[R.C. 2151.414(D)] requires a weighing of all the 

relevant factors * * * [and] requires the court to find the best option for the child 

* * *.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64. 

 Regarding A.A.’s ability to care for his children, the juvenile court 

found that A.A. had been engaged with the Agency and that his children had been 

living with him and that he had suitable housing and employment, evidencing 

means to provide for the basic needs of his children. The record further reflects 

these findings were supported by the social worker’s testimony based upon several 

visits to A.A.’s home. In contrast, the record reflects that the juvenile court had 

evidence before it that appellant had stopped visitation with her children and had 

no contact with them for several months before the custody hearing and that, at the 

time of the hearing, appellant had unaddressed mental health issues, was homeless, 

and did not have the means to provide basic needs for her children. The trial court 

further could consider the wishes of the children. Testimony indicated that C.L. did 

not wish to visit with appellant and E.L. was silent about her wishes. Additionally, 

the GAL recommended A.A. be granted custody. The custodial history of the 

children further supported the trial court’s determination that the best interests of 

the children were met by granting custody to A.A. where the children had lived with 

him for the past seven months prior to trial. 
 The juvenile court’s decision to award custody to A.A. demonstrates 

that it considered all the necessary factors and that its decision was supported by 

competent, credible evidence. As such, we cannot say that the decision to grant 

custody of C.L. and E.L. was an abuse of the juvenile court’s discretion. 

 The second assignment of error is overruled. 

C. THE TRIAL COURT’S DETERMINATION THAT APPELLANT 

WOULD HAVE SUPERVISED VISITATION WAS NOT AN ABUSE OF 

DISCRETION 

 Appellant’s third assignment of error reads: 

The trial court abused its discretion in granting mother such restrictive 

visitation that it amounts to a denial of visitation. 

 Appellant argues that the visitation granted by the court was so 

limited that the visitation amounts to “no visitation” where it is supervised by the 

Agency because appellant presumes that it will “be limited and brief.” The Agency 

and A.A. argue the decision that visitation would be supervised was proper where 

appellant had not seen the children in months and where the record demonstrated 

she failed to address the issues that led to the intervention by the Agency. 

 “In ordering visitation, the juvenile court must consider the ‘totality 

of the circumstances as they relate to the child’s best interest.’” In re K.D., 2017-

Ohio-4161, 92 N.E.3d 123, ¶ 27 (9th Dist.), citing In re M.E., 10th Dist. Franklin No. 

12AP-684, 2013-Ohio-2562, ¶ 25, quoting In re C.J., 4th Dist. Vinton No. 10CA681, 

2011-Ohio-3366, ¶ 15. A court’s determination as to visitation is reviewed for an 
abuse of discretion. Id. at ¶ 26, citing In re G.S., 9th Dist. Summit No. 28050, 2016-

Ohio-7471, ¶ 32. 

 The record established through the pendency of the case that the 

Agency conducted supervised visits between appellant and the children. At the time 

of the custody hearing, there was no evidence that appellant had addressed the 

issues of her mental health that led to the Agency involvement. Further, appellant 

had not participated in any recommended services. Moreover, appellant had not 

visited with her children in several months at the time of the dispositional hearing, 

despite the social worker’s repeated attempts to meet and arrange a visitation 

schedule. Appellant’s behaviors demonstrated that the court did not abuse its 

discretion by ordering visits to be supervised by the Agency. 

 The third assignment of error is overruled. 

III. CONCLUSION 

In determining custody of the children, the juvenile court did not 

abuse its discretion in precluding appellant’s testimony where appellant was unable 

to make a knowing, intelligent, or voluntary waiver of her right not to testify. The 

juvenile court further considered the necessary factors in determining that the 

children’s best interests were met by awarding custody to A.A. and that 

determination was not against the manifest weight of the evidence. Under the 

totality of the circumstances, an order of supervised visitation for appellant and the 

children was appropriate and not an abuse of discretion. 

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 issue out of this court directing the 

common pleas court, juvenile division, 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. 

 

MICHELLE J. SHEEHAN, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

LISA B. FORBES, J., CONCUR