[Cite as In re W.A.J., 2014-Ohio-604.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 99813

IN RE: W.A.J., JR. and A.P. 

Minor Children 

[Appeal by Mother, R.P.]

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. AD 09917803 and AD 09917809 

BEFORE: Stewart, J., S. Gallagher, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANT MOTHER

Susan J. Moran 

55 Public Square, Suite 1616 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DIVISION OF 

CHILDREN AND FAMILY SERVICES 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Pamela A. Hawkins 

Assistant County Prosecutor 

Cuyahoga County Division of Children and Family Services 

3955 Euclid Avenue 

Cleveland, OH 44115 

ATTORNEY FOR CHILDREN

Brian W. Sharkin 

Law Office of Brian Sharkin 

P.O. Box 770824 

Lakewood, OH 44107

GUARDIAN AD LITEM FOR CHILDREN 

Daniel J. Bartos 

Bartos & Bartos, L.P.A. 

20220 Center Ridge Road, Suite 320 

Rocky River, OH 44116 

GUARDIAN AD LITEM FOR MOTHER

Gregory T. Stralka 

6509 Brecksville Road 

P.O. Box 31776 

Independence, OH 44131 

MELODY J. STEWART, J.: 
{¶1} The court terminated appellant-mother R.P.’s custody of two of her children, 

W.A.J., Jr., and A.P., and granted legal custody of the children to a person who is 

unrelated to them, but whom they consider to be an aunt. The mother complains the 

court failed to articulate a sufficient evidentiary basis for the decision to place the 

children with the surrogate aunt and that the court’s decision was not in the best interest 

of the children. 

 I 

{¶2} This appeal involves the loss of legal custody under R.C. 2151.353(A)(1)(3) 

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

95410, 2011-Ohio-4090, we stated the following about the differences between legal 

custody and the termination of parental rights: 

[the loss of] legal custody is significantly different than the termination of 

parental rights — despite losing legal custody of a child, the parents of the 

child retain residual parental rights, privileges, and responsibilities. R.C. 

2151.353(A)(3)(c). For this reason, we apply the less restrictive 

“preponderance of the evidence” standard of appellate review to the court’s 

factual findings. In re S.E., 8th Dist. Cuyahoga No. 96031, 

2011-Ohio-2042, ¶14, citing In re Nice, 141 Ohio App.3d 445, 455, 

2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.). However, when considering 

the court’s ultimate decision on whether the facts as determined would 

make it in the child’s best interests to be placed in legal custody, we apply 

the abuse of discretion standard. In re B.H., 8th Dist. Cuyahoga No. 

95794, 2011-Ohio-1967, ¶10. 

Id. at ¶ 14. 

{¶3} R.C. 2151.353(A)(3) allows the court to award legal custody of a child who 

has been adjudicated abused, neglected, or dependent, to any person who, prior to the 

dispositional hearing, filed a motion requesting legal custody of the child. Apart from 
the requirement that the child be previously adjudicated as abused, neglected, or 

dependent, the court’s authority to award legal custody under R.C. 2151.353(A)(3) is 

limited only by the best interests of the child (assuming the person seeking legal custody 

has complied with the statutory prerequisites). 

{¶4} The mother makes no argument that the prerequisites for an award of legal 

custody were not met. The children were declared neglected and dependent in 

September 2009 and placed in the temporary custody of appellee Cuyahoga County 

Division of Children and Family Services (the “agency”). The neglect and dependency 

finding was based on allegations that the mother had for years permitted one of her five 

children to sexually molest another one of her children (those children were the subject of 

a separate custody proceeding). The mother was subsequently convicted of attempted 

child endangering. With the exception of the child who committed the acts of 

molestation, the four remaining children were placed with the aunt and remained with her 

until the time of the hearing. 

{¶5} Additionally, the complaint for temporary custody charged that A.P. suffered 

severe asthma attacks, caused in part by the mother’s smoking in the house, yet the 

mother did not consistently follow up with the child’s medical care. Finally, the agency 

alleged that the mother had emotional issues, including a major depressive disorder with a 

psychotic component. These facts were sufficient to establish that the children were 

neglected and dependent as a predicate for the agency to seek legal custody. 

 II 
{¶6} To resolve the question of whether granting legal custody would be in the 

best interest of the children, the court made factual findings in which it concluded that the 

mother had, despite diligent case planning by the agency toward the goal of reunification, 

failed to remedy the problems that caused the children to be removed from her. The 

court found that the mother had not substantially complied with the case plan and failed to 

demonstrate a commitment to the children by providing them with a permanent home. 

The mother contests these findings, particularly her failure to show substantial 

compliance with the case plan, as being unsupported by the evidence. 

 A 

{¶7} To the extent the court’s findings were premised on factual determinations, 

we review those facts under a preponderance of the evidence standard. In re S.E., 8th 

Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 14, citing In re Nice, 141 Ohio App.3d 

445, 455, 2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.). 

 1 

{¶8} The mother was found guilty in a criminal child endangerment prosecution 

relating to her failure to stop the molestation of one of her children. She served one year 

in prison, during which time the children were living with the aunt. The case plan 

adopted by the agency required the mother to establish stable housing upon the mother’s 

release from prison. She obtained housing and showed her case worker a lease bearing 

her name and the name of another person as the tenants. The agency told the mother that 

if she was living with someone, that person would have to undergo a background check. 
The mother insisted that she was living alone and the other person signed the lease as an 

accommodation because nobody would rent to her. 

{¶9} Questions about the mother’s living arrangement remained when a case 

worker discovered that the mother was in fact living with someone else and that person’s 

children. The case worker said that the mother’s house was usually neat and clean, but 

that on a later visit to the house she found it in such disarray that it looked as though it 

had been “tossed” and that she found school books and homework belonging to other 

children. The case worker testified that two of the mother’s children independently 

verified to her that others were living with them. The mother continued to deny that she 

was sharing her home with another family and called her own children “liars.” The case 

worker believed it was the mother who was being untruthful. 

 2 

{¶10} The case plan also expressed concerns regarding the mother’s physical and 

mental health. 

{¶11} The mother’s health became a growing concern for the agency after she 

began having seizures following her release from prison. These seizures sometimes 

required the mother’s hospitalization and were affecting her visitation schedule with the 

children. The case worker was unable to verify the types of medication prescribed to the 

mother, and the mother took the case worker’s inquiries about her physical condition as a 

form of “gossiping.” At the same time, in March 2012, the mother was receiving 

medical treatment relating to her kidneys and blood work performed in conjunction with 
that treatment tested positive for marijuana. The case worker attempted to have the 

mother submit to a drug screening, but the mother suffered a seizure while waiting to 

submit a sample and was hospitalized. 

{¶12} The case worker testified that in addition to the mother’s physical health, 

there were concerns about her mental health status. The mother qualified for and 

received Social Security Disability benefits, but told the case worker that she did not 

know why she was receiving those benefits. This lack of knowledge was despite 

entering a plea of not guilty by reason of insanity during her trial for child endangerment 

relating to the molestation of one of her children. The case worker did verify that the 

mother was taking antipsychotic medication. However, the mother failed to provide her 

case worker with a progress note that would show whether she had been compliant with 

her mental health services. 

 3 

{¶13} Most recent to the hearing were new revelations of the mother’s drug use. 

{¶14} Questions about the mother’s drug use began in May 2012, after a new case 

worker learned that the mother failed a drug screening by testing positive for marijuana 

and PCP. The agency referred the mother for a drug and alcohol assessment, but the 

mother could not verify her completion of the program. In September 2012, at the time 

of the hearing before a magistrate on the agency’s motion for legal custody, the mother 

provided the case worker with a new assessment that showed she was still testing positive 

for PCP. The agency also learned that the drug test sample submitted by the mother may 
have been diluted, suggesting that the mother tampered with the sample to avoid a 

positive result. This new test result caused the agency to recommend that the mother 

enter an outpatient drug treatment program. The mother was to begin outpatient 

treatment after the hearing concluded. 

 4 

{¶15} Finally, the court heard evidence relating to the mother’s lack of parenting 

skills. 

{¶16} The mother’s parenting skills were plainly an issue in light of her conviction 

for attempted child endangering. The facts of that criminal case, which led the agency to 

seek emergency temporary custody of the children, showed that the mother was aware 

that one of her children had repeatedly sexually molested another one of her children, but 

did nothing to stop it. 

{¶17} After the mother’s release from prison, concerns about her parenting skills 

were raised by a case worker and a psychologist who treated A.P. These witnesses 

collectively expressed their concerns that the mother was too lenient with the children. 

Both W.A.J., Jr., and A.P. said that they wished to remain with the mother because they 

could “go outside and play more when they want to, eat more junk food, stay up a little bit 

later.” The psychologist testified to her concerns that the mother failed to provide an 

environment with “limits, rules, and structure” and that she always says “yes” to the 

children. 

 B 
{¶18} The mother did not testify or offer any evidence at the hearing. A case 

worker testified that the mother completed a number of parenting and self-esteem classes 

while in prison, and the mother premised her case primarily on that evidence to prove that 

she substantially complied with the case plan. This argument, however, misconstrues 

completion of a case plan as an automatic path to reunification. 

{¶19} The successful completion of a case plan “is not dispositive on the issue of 

reunification.” In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 

(8th Dist.). Indeed, “[a] parent can successfully complete the terms of a case plan yet not 

substantially remedy the conditions that caused the children to be removed — the case 

plan is simply a means to a goal, but not the goal itself.” Id. 

{¶20} The above principles presume completion of a case plan, and it is not at all 

clear that the mother completed the objectives set by the case plan. For example, the 

agency set a goal that the mother obtain stable housing. The word “stable” means more 

than just the permanency of the dwelling itself — it also refers to the conditions inside the 

home. The mother did obtain housing, but the evidence showed that she was living with 

another family who had not been vetted by the agency. A case worker noted that the 

mother normally kept a neat house when she and her family lived alone, but that when the 

mother shared a house with another family, the house was in disarray. 

{¶21} Additionally, the mother’s completion of parenting skills courses did not 

mean that she proved her competency to parent. As previously noted, the mother’s lack 

of discipline gave the psychologist reason to be concerned about her ability to put limits 
on the children. And the children posed certain difficulties beyond the problems posed 

in normal child-rearing: A.P. had been labeled as having a serious emotional disturbance 

and was receiving counseling for “ongoing behavioral issues.” So despite completing 

parenting courses, the mother had not satisfied the court that she fulfilled the goals of her 

case plan and removed the conditions that caused the children to be removed from her 

home. 

 III 

{¶22} The final issue is whether the court abused its discretion by finding that it 

would be in the children’s best interest to be placed in the aunt’s legal custody. 

{¶23} R.C. 2151.353 does not provide factors that the court should consider to 

determine the child’s best interest in a request for legal custody. In re E.A., 8th Dist. 

Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13. Some courts have employed the best 

interest factors set forth in R.C. 2151.414(D) that must be considered before a court can 

terminate parental rights; other courts have considered the best interest factors set forth in 

R.C. 3109.04(F) that must be considered before allocating parental rights in domestic 

relations child custody cases. In In re G.M., we found that principles of statutory 

construction meant that the absence of best interest factors in R.C. 2151.353 compelled 

the presumption that “the legislature did not intend to require the consideration of certain 

factors as a predicate for granting legal custody.” In re G.M., 8th Dist. Cuyahoga No. 

95410, 2011-Ohio-4090, at ¶ 16. We found that the courts were free to consider the best 
interest factors set forth in other statutes to guide their discretion in determining legal 

custody issues, but were not compelled to consider those statutes. Id. 

{¶24} Given the court’s factual findings, we cannot say that its determination that 

it would be in the best interest of the children to be placed in the legal custody of the aunt 

was so arbitrary and capricious that it constituted an abuse of discretion. The mother’s 

refusal to stop ongoing sexual molestation in her home was a grave parenting failure. 

Although she completed a number of parenting courses while in prison, the mother 

displayed poor judgment by living with another family without getting prior approval 

from the agency. She then showed mendacity when confronted with that fact and 

accused her own children of lying about it. 

{¶25} Perhaps most troubling was the mother’s drug use at a time when she was 

about to go to court to get back her children. Compounding the seriousness of her drug 

use was her documented mental and physical health issues: the mother was taking 

antipsychotic medication and suffered from random seizures. Any one of these factors 

would have been cause for concern; combined, the drug, mental, and physical issues were 

so serious that they could place the children in physical jeopardy. 

{¶26} It is true that the children wished to remain with the mother, but the court 

heard evidence suggesting that this was because the mother was so lax with her 

discipline. One of the children had significant behavioral issues and would likely benefit 

from a home environment that was more structured than the one the mother was 

providing. In any event, the children had lived with the aunt for well over two years at 
the time of the hearing, were adjusted to living with her, and were not experiencing any 

problems with the aunt. What is more, the aunt had been, and continued to be, 

committed to integrating the mother into the children’s lives. The aunt expressed her 

desire that the mother continue to have access to the children, so even though the mother 

was losing legal custody, she was not losing all contact with her children. 

{¶27} We therefore find that the court did not abuse its discretion by finding it 

would be in the best interest of the children to be placed in the legal custody of the aunt. 

{¶28} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Cuyahoga County Court of 

Common Pleas — 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. 

 

 

MELODY J. STEWART, JUDGE 

SEAN C. GALLAGHER, P.J., and 

TIM McCORMACK, J., CONCUR