[Cite as In re W.W., 2024-Ohio-807.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

IN RE: W.W. C.A. No. 30815

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. DN 21 08 0693

DECISION AND JOURNAL ENTRY

Dated: March 6, 2024

HENSAL, Judge.

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

Pleas, Juvenile Division, that placed her child in the legal custody of the child’s maternal great 

uncle and aunt (“Uncle” and “Aunt”). This Court affirms.

I.

{¶2} Mother is the biological mother of W.W., born March 1, 2021. The child’s father 

is serving two life sentences for multiple counts of rape and gross sexual imposition of three 

unrelated children. Although he was represented by counsel, he did not pursue reunification in the 

case below and has not appealed.

{¶3} Summit County Children Services Board (“CSB” or “the agency”) began 

investigating the child’s circumstances around her birth due to Mother’s history of mental health 

issues and housing instability. The agency discovered that Mother had difficulty understanding 

the child’s basic needs. Home visits indicated a cluttered, unsanitary, and unsafe environment, 
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with food, clothing, and trash piled on the floor; soiled diapers strewn about, dog feces and urine 

throughout the home, and an infestation of roaches. Most problematic, however, was that W.W. 

was not gaining weight. At CSB’s suggestion, Mother brought the child to the hospital where 

medical professionals diagnosed her with a failure to thrive. Mother agreed to voluntarily work 

with the agency to remedy the home conditions and abide by a feeding schedule for the child.

{¶4} Despite the agency’s intervention, W.W. continued to lose weight. At four months 

old, her eyes had sunken dramatically and she weighed only nine pounds. Mother was unable to 

maintain an appropriate feeding schedule for the child to facilitate her growth. Coupled with 

ongoing concerns regarding the unsanitary home conditions; Mother’s mental health issues; and 

Mother’s unwavering insistence that Father was innocent of any sex offenses against children, 

would be exonerated, and would be an appropriate caregiver for the child; CSB removed W.W. 

from Mother’s home and filed a complaint alleging the child’s neglect and dependency.

{¶5} After an adjudicatory hearing, the magistrate found the child dependent and 

dismissed the allegations of neglect. The magistrate further found that Mother did not recognize 

that her home conditions or the child’s low weight were problematic. Mother did not file an 

objection to the magistrate’s decision.

{¶6} After the initial dispositional hearing, the juvenile court placed W.W. in CSB’s 

temporary custody and adopted the agency’s case plan as an order. Mother’s case plan objectives 

included a basic needs component, emphasizing the need to remedy the unsanitary conditions in 

the home; a mental health component, including the requirement to follow through on 

recommendations for intensive treatment and a parenting assessment; and an objective requiring 

Mother to educate herself regarding the behaviors of sexual offenders, their grooming techniques, 

and the risks of sexual abuse to children.
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{¶7} After investigation and approval, CSB placed W.W. in the home of nonblood kin, 

whom Mother had identified. The juvenile court ordered that Mother would initially have weekly 

two-hour supervised visits with the child, but that she would graduate quickly to unsupervised, 

overnight, and then weekend visits to ensure that she was able to independently meet the child’s 

needs. Within a couple of weeks, however, the agency moved to modify that order and limit 

Mother to supervised visits because she had not completed her parenting assessment and was not 

focusing on the child during visits. The trial court restricted Mother’s visitation accordingly.

{¶8} After a review hearing two months later, the juvenile court again implemented a 

graduated plan to expand Mother’s visitation. A month later, CSB again moved to limit Mother 

to supervised visits based on the recommendations of the assessor who conducted her parenting 

evaluation, as well as some concerning behaviors by Mother during visitation. The guardian ad 

litem agreed with restricting Mother to supervised visits for the time being. The juvenile court 

again rescinded its order for expanded visitation.

{¶9} Mother moved for legal custody, or alternatively, a six-month extension of 

temporary custody. CSB moved for legal custody to a third party, Ms. R., the nonblood kin with 

whom it had placed the child. At the sunset hearing, Mother withdrew her motions, waived her 

right to a contested hearing, and agreed to an award of legal custody of the child to Ms. R. Thirteen 

months into the case, the juvenile court granted legal custody to Ms. R. and closed the case.

{¶10} Three weeks later, CSB sought an emergency order of temporary custody and 

moved to modify Ms. R.’s legal custody of W.W. to temporary custody to the agency. In the three 

weeks since obtaining legal custody, Ms. R. had been diagnosed with a medical condition requiring 

extensive treatment that prevented her from continuing to provide care for the child. After a shelter 
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care hearing, the magistrate granted emergency temporary custody to CSB which placed the child 

with Uncle and Aunt, whom Mother had identified as potential caregivers.

{¶11} CSB filed an amended case plan, reiterating Mother’s prior case plan objectives. 

The juvenile court adopted the amended case plan as an order. Thereafter, CSB moved for legal 

custody of the child to Uncle and Aunt. Mother moved for legal custody, or alternatively, a sixmonth extension of temporary custody. Five months after the agency invoked the juvenile court’s 

continuing jurisdiction over W.W., the magistrate held a hearing on the parties’ dispositional 

motions. The magistrate issued a decision denying Mother’s motions, granting CSB’s motion, and 

placing the child in the legal custody of Uncle and Aunt. Mother timely objected to the 

magistrate’s decision. Both the agency and guardian ad litem responded in opposition.

{¶12} The juvenile court overruled Mother’s objection. It denied Mother’s motion for a 

six-month extension of temporary custody upon finding that Mother had not made significant 

progress on her case plan objectives and that an extension was not in the best interest of the child. 

The trial court granted CSB’s motion for legal custody to Uncle and Aunt, leaving visitation as the 

parties might agree. Mother appealed, raising two assignments of error for review. As she 

consolidated her assignments of error for discussion, we do likewise to facilitate review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN 

DENYING MOTHER’S MOTION FOR LEGAL CUSTODY AND MOTION 

FOR SIX-MONTH EXTENSION OF TEMPORARY CUSTODY AND FINDING 

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

LEGAL CUSTODY OF RELATIVES.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN 

ERROR IN GRANTING LEGAL CUSTODY OF W.W. TO RELATIVES AS 
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THE COURT’S DECISION WAS NOT SUPPORTED BY PREPONDERANCE 

OF THE EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE.

{¶13} Mother argues that the juvenile court erred by denying her alternative motions for 

legal custody or a six-month extension of temporary custody, and by granting CSB’s motion for 

legal custody to Uncle and Aunt. This Court disagrees.

{¶14} Our standard of review for such challenges is well settled:

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.

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

Ohio-2685, ¶ 7.

{¶15} 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 citations and 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.

{¶16} “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 
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custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio7994, ¶ 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 enumerated 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. 

{¶17} The best interest factors 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. 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).

{¶18} W.W. was in Mother’s legal custody briefly before CSB removed her when the 

infant was five months old. After spending more than a year in the agency’s temporary custody, 

the child was placed in the legal custody Ms. R. for mere weeks before that custodial disposition 

disrupted. CSB resumed temporary custody of the child for over five additional months until the 

contested legal custody hearing. By that time, W.W. had spent three quarters of her life in custodial 

limbo and deserved stability and permanence.
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{¶19} Mother struggled with issues that prevented her from being able to provide a safe, 

secure, and stable environment for the child. Her mental health diagnoses of depression, bipolar 

disorder, post-traumatic stress disorder, and borderline personality disorder made her quick to 

anger and impacted her ability to interact appropriately with others and make sound parenting 

decisions. Despite her involvement with both Coleman and Ever Well Community Health, Mother 

demonstrated no improvements in insight or practical skills. She continued to express her belief 

that Father was innocent of the sex crimes for which he was convicted and that he would be an 

appropriate caregiver for the child. Mother also maintained a limited understanding regarding the 

child’s needs and development. For example, she failed to cut the child’s food into appropriately 

sized pieces and once gave W.W. hard candy which caused her to choke, requiring intervention by 

Aunt when Mother failed to take appropriate action.

{¶20} Aunt testified that other behaviors by Mother with the child caused her concern for 

W.W.’s safety. For example, during a visit at a store, Mother put the child down so Mother could 

look at something that caught her attention. When Aunt asked Mother where W.W. was, Mother 

did not know. On other occasions during visits, Mother would frequently spend time looking at 

her phone or talking with the adults who were supervising the visits instead of focusing on the 

child. While Uncle and Aunt expressed concern that Mother was easily distracted during visits, 

Mother testified that she thought the two-year-old child did not need constant oversight because 

that would allow the child to learn boundaries and develop independence.

{¶21} Mother made limited improvements in maintaining a safe and clean home. She had 

very few furnishings. While the dog who had urinated and defecated throughout the home had 

died, Mother replaced him with four cats. Because she had only one litterbox for the cats, Mother’s 
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home continued to smell of pet waste. In addition, the guardian ad litem was concerned that 

Mother left the litterbox in an area accessible to the child. 

{¶22} Throughout most of the case, Mother was engaged in services at Ever Well where 

a team of five people helped manage her care. A therapeutic behavioral specialist coordinated 

Mother’s team and monitored her progress. A psychosocial rehabilitation specialist worked 

directly with Mother to help her develop interpersonal skills and manage daily activities. Together, 

they addressed issues like budgeting, setting goals, finding employment, and choosing appropriate 

activities for the child. Mother’s community resource treatment specialist helped her access 

resources for food, clothing, furniture, hygiene products, and cleaning supplies, reaching out to 

Mother twice each month. Mother frequently contacted that specialist beyond those times for 

additional assistance. Mother’s therapist provided counseling services, while her parenting 

instructor focused on information regarding child development and protection.

{¶23} Mother took advantage of Ever Well services necessary to meet her immediate 

basic needs. For example, Mother frequently ran out of money between paychecks for food and 

other necessities. While she was employed at the time of the hearing, she had only recently begun 

working for her current employer. Mother’s employment history was sporadic. She moved from 

job to job and spent periods of time with no income. She did not have a car but reported that she 

planned to buy one with funds from her expected tax refund. After receiving that money, however, 

Mother took a trip in North Carolina instead.

{¶24} As for services geared towards stability and long-term needs, Mother’s focus 

waned. She did not engage in counseling services on a regular basis. Her failure to meet regularly 

with her therapist hindered her ability to work through the trauma she endured throughout her 

childhood and gain insight into how to protect the child from predators. Mother further had only 
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recently begun attending parenting classes which would include lessons regarding how to identify 

sexual predators, grooming behaviors, and ways to keep a child safe from people who posed a 

threat. While she testified that she had researched the warning signs and dangers of predators, 

Mother refused to acknowledge the threat Father posed to W.W. Instead of recognizing the 

significance of Father’s rape and gross sexual imposition convictions involving children, Mother 

testified that she could not say that Father was guilty because she was not there when the incidents 

occurred. 

{¶25} While Mother and W.W. share a bond, Mother failed to take advantage of many of 

her opportunities for visitation. She missed nearly all her weekly Thursday visits and attended 

only 70 percent of her scheduled Saturday visits. Mother frequently did not notify Uncle and Aunt 

when she could not attend a visit. When she did notify them, she said she was busy or did not 

have transportation, despite Aunt’s testimony that she offered to pick Mother up from the bus 

station nearby.

{¶26} The child is too young to express her desires regarding custody, so the guardian ad 

litem spoke on her behalf. The guardian ad litem recommended legal custody to Uncle and Aunt, 

given the child’s comfort and familiarity in their home where all her basic needs were being met. 

Both the caseworker and guardian ad litem were concerned that Mother’s lack of progress on her 

case plan objectives left her unable to provide a safe and stable home for the child then or within 

a reasonable time.

{¶27} Based on a thorough review of the record, this is not the exceptional case where the 

trier of fact clearly lost its way and created a manifest miscarriage of justice by awarding legal 

custody to Uncle and Aunt. The child was flourishing in their home. They facilitated opportunities 

for Mother to visit with W.W. during twice-weekly scheduled visits, as well as during frequent 
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family get-togethers and church events. W.W. was safe and secure in the home of Uncle and Aunt 

who met all her basic needs. Mother, on the other hand, struggled with meeting even her own 

basic needs, frequently running out of food and failing to maintain a sanitary home. She refused 

to recognize that Father was the type of person who posed a threat to the child’s well-being. Under 

these circumstances, the juvenile court’s finding that an award of legal custody to Uncle and Aunt 

was in the child’s best interest is not against the manifest weight of the evidence. 

{¶28} To the extent that Mother argues that the juvenile court erred by failing to grant her 

motion for a six-month extension of temporary custody, this Court disagrees.

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

in consideration of the best interest of the child. In re K.H., 2016-Ohio-1330, at ¶ 12. It is well 

settled that “‘[w]here the trial court finds that it is in the best interest of the child to be placed in 

legal custody as a permanent disposition, the trial court must necessarily deny any extension of 

temporary custody.’” In re B.C., 2014-Ohio-2748, at ¶ 22, quoting In re C.M., 9th Dist. Summit 

No. 24380, 2009-Ohio-943, ¶ 24. See also In re A.P., 9th Dist. Summit No. 30056, 2022-Ohio276, ¶9 (“[I]f legal custody to a nonparent is in the best interest of the child, an extension of 

temporary custody is not.”).

{¶30} In addition, the juvenile court would have only had authority to grant a first sixmonth extension of temporary custody if it also found, by clear and convincing evidence, that 

“there has been significant progress on the case plan of the child, and there is reasonable cause to 

believe that the child will be reunified with one of the parents * * * within the period of extension.” 

R.C. 2151.415(D)(1). As explained above, Mother failed to make significant progress on her case 

plan objectives. She had not addressed her mental health issues stemming from the trauma she 

experienced from long-term abuse and neglect as a child. She failed to demonstrate an 
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understanding of the child’s developmental needs and abilities. She continued to deny that Father 

posed a threat to the child notwithstanding his convictions for multiple sexual crimes against 

minors. Mother was employed sporadically and struggled to meet her own basic needs, frequently 

running out of food. She failed to maintain her home in a safe and sanitary condition. Mother 

frequently missed visits with W.W. and did not prioritize interactions with the child when she did 

appear for visitation.

{¶31} Moreover, there was not reasonable cause to believe that W.W. would have been 

reunified with Mother within the period of extension. For more than 18 months, Mother was aware 

of the concerns underlying the child’s removal from her home. Although she had access to 

multiple service providers who might have helped her address those concerns, she either failed to 

take advantage of those services or gained limited insight into remedying the concerns, instead 

merely addressing an immediate need that reoccurred with continuing frequency. Mother never 

demonstrated sufficient progress to move beyond the need for supervised visits. Accordingly, she 

failed to present clear and convincing evidence that reunification was reasonably likely to occur 

within another six months.

{¶32} For the above reasons, this Court concludes that the juvenile court did not err by 

denying Mother’s motion for a six-month extension of temporary custody and granting CSB’s 

motion for legal custody to Uncle and Aunt. Accordingly, Mother’s first and second assignments 

of error are overruled.

III.

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

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.
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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

STEVENSON, P. J.

SUTTON, J.

CONCUR.
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APPEARANCES:

SHUBHRA AGARWAL, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.

EDWARD SMITH, Attorney at Law, for Appellee.

PAUL GRANT, Attorney at Law, for Appellee.

LAURIE M. BOVEINGTON, Guardian ad Litem.