[Cite as In re E.A., 2013-Ohio-1193.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 99065

IN RE: E.A., ET AL. 

Minor Children

[Appeal By K.A., Mother] 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. AD 12906499, AD 12906500, AD 12906501 

BEFORE: Kilbane, J., S. Gallagher, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: March 28, 2013 
ATTORNEY FOR APPELLANT

Betty C. Farley 

17316 Dorchester Drive 

Cleveland, Ohio 44119 

ATTORNEYS FOR APPELLEES 

For C.C.D.C.F.S.

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Tammy L. Semanco 

Assistant Prosecuting Attorney 

4261 Fulton Parkway 

Cleveland, Ohio 44144 

Guardian ad Litem

Thomas Kozel 

P.O. Box 534 

North Olmsted, Ohio 44070 
MARY EILEEN KILBANE, J.: 

{¶1} Mother-appellant, K.A. (“mother”), appeals from the juvenile court’s 

decision awarding legal custody of her minor children, Eri.A., Ery.A., and Eb.A., to their 

paternal aunt and uncle. For the reasons set forth below, we affirm. 

{¶2} In April 2012, appellee, the Cuyahoga County Department of Children and 

Family Services (“CCDCFS”) filed a complaint requesting legal custody of the children 

be awarded to the paternal aunt and uncle. The complaint alleged that: (1) mother has a 

substance abuse problem; (2) mother physically abused Ery.A.; and (3) all three children 

were neglected. An adjudicatory hearing was held on the matter in July 2012. At this 

hearing, mother admitted to an amended complaint read in open court. The court found 

Eri.A. and Eb.A. to be dependent and Ery.A. to be abused. 

{¶3} In August 2012, the juvenile court held a dispositional hearing on the 

matter. Mother’s admissions and the testimony provided at the hearing were 

incorporated into evidence. Kate McBride (“McBride”), the assigned CCDCFS social 

worker, provided additional testimony. McBride testified that she was assigned to this 

case in April 2012, after mother was arrested for punching her four year-old, Ery.A., in 

the face. As a result of this incident, mother was convicted of domestic violence, child 

endangering, and drug possession. CCDCFS then placed all three children with the 

paternal aunt and uncle, and they have remained in their home since that time. McBride 

testified the children are doing well with the paternal aunt and uncle and, over the years, 

have resided with them on six different occasions. McBride spoke to the children about 
their current situation. While 16-year-old Eb.A. indicated to McBride that she wanted to 

return to her mother, 14-year-old Eri.A. indicated that she wanted to stay with her aunt 

and uncle because her mother made Eri.A. assist her in selling drugs. McBride testified 

that mother regularly visited with her children while in the custody of the aunt and uncle, 

but she did not assist in their care. 

{¶4} CCDCFS maintained an open case with mother from 2004 to 2011, 

primarily due to mother’s drug abuse, her repeated episodes in treatment, and subsequent 

arrests. From 2006-2010, Eb.A. and Eri.A. were either in court-ordered protective 

supervision or temporary custody. Mother has another child that was placed in 

permanent custody in 2008, due in part to her substance abuse problem. 

{¶5} During the seven years of CCDCFS involvement, mother completed four 

inpatient treatment programs, and received five referrals to intensive outpatient programs. 

 She completed only two intensive outpatient referrals. Mother failed to maintain 

sobriety following the completion of these programs. In addition to her recent criminal 

conviction, mother had been convicted in four other criminal cases involving drugs, 

between 2010 and 2012. Mother was sentenced to two years of probation in her most 

recent case. 

{¶6} McBride testified the alleged father of Ery.A. has not established paternity 

and has not contacted CCDCFS. The father of Eb.A. and Eri.A. has not provided any 

care or support for his children and indicated to McBride that he wants his children to 

stay with the paternal aunt and uncle. McBride further testified that she did not have any 

concerns regarding the aunt and uncle’s ability to provide for the children. 
{¶7} McBride further testified that mother recently participated in substance 

abuse treatment for approximately 20 days. She completed parenting classes as required 

by her current case plan. McBride also testified that mother’s scheduled weekly drug 

screens while on probation and two random drug screens by CCDCFS had negative 

results. 

{¶8} At the conclusion of the hearing, the juvenile court ordered that the children 

be placed in the legal custody of the paternal aunt and uncle. The court stated that: 

This case has been going on in one form or another since 2004. * * * [I]n 

considering the factors in R.C. 2151.353 and then looking at the standard 

factors in 2151.414(D)(1), these facts would lay in favor of the prayer for 

legal custody. * * * While the Court tends to give a lot of weight to the 

opinions of 16-year-old kids in these cases, * * * but in this particular 

case[,] we have what is a dysfunctional relationship for a very long time. 

According to the testimony that was undisputed, the children have been 

with their aunt and uncle over the course of their life on six separate 

occasions. * * * [T]he Court * * * finds that the need for permanency is 

the most compelling thing here. Therefore, the Court grants this prayer for 

legal custody to [the paternal aunt and uncle] of all three children. The 

Court finds simply that this is in the best interest of these children. The 

Court finds the custodial issue, the wishes of the two youngest children, the 

need for legally secure placement, the recommendation of the guardian ad 

litem, and the factors in division (E). Which again, technically, I’m not 

required to go through those, but I would say the chronic mental chemical 

dependency, the parental rights termination and the extreme history here 

with [CCDCFS] since 2004, which would be another factor. 

{¶9} Mother now appeals, raising the following two assignments of error for 

review. 

ASSIGNMENT OF ERROR ONE

The trial court[’s] decision to grant legal custody of the children to the 

paternal aunt and uncle was not based on a preponderance of the evidence 

and therefore constitutes an abuse of discretion. 

ASSIGNMENT OF ERROR TWO
The trial court’s decision to grant legal custody of the children to the 

paternal aunt and uncle was against the manifest weight of the evidence. 

Standard of Review

{¶10} A trial court enjoys broad discretion in custody proceedings because 

“custody issues are some of the most difficult and agonizing decisions a trial judge must 

make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159. 

Thus, on appeal, a trial court’s custody determination will not be disturbed unless the 

court abused that discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 

(1988). An abuse of discretion “‘implies that the court’s attitude is unreasonable, 

arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). 

{¶11} Legal custody is defined by R.C. 2151.011(B)(21) as follows: 

[A] legal status that vests in the custodian the right to have physical care 

and control of the child and to determine where and with whom the child 

shall live, and the right and duty to protect, train, and discipline the child 

and to provide the child with food, shelter, education, and medical care, all 

subject to any residual parental rights, privileges, and responsibilities. 

{¶12} 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, the standard the trial court uses when making its determination is “preponderance 

of the evidence.” In re C.V.M., 8th Dist. No. 98340, 2012-Ohio-5514, ¶ 7. 

Preponderance of the evidence means “evidence that’s more probable, more persuasive, 

or of greater probative value.” Id., quoting In re D.P., 10th Dist. No. 05AP-117, 

2005-Ohio-5097. 
{¶13} “Unlike R.C. 2151.414(D), which sets forth specific factors that the court 

must consider before terminating parental rights and granting permanent custody, R.C. 

2151.353(A)(3) does not independently set forth factors that the court should consider for 

determining the child’s best interests in a request for legal custody.” In re G.M., 8th 

Dist. No. 95410, 2011-Ohio-4090, ¶ 16. Thus, the factors in R.C. 2151.414(D) are 

instructive when making a best-interest-of-the-child determination. Id.; In re M.J.M., 8th 

Dist. No. 94130, 2010-Ohio-1674, ¶ 16. The statute instructs the court to consider: 

(a) The interaction and interrelationship of the child with the child’s 

parents, siblings, relatives, foster caregivers and out-of-home providers, and 

any other person who may significantly affect the child; 

(b) 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; 

(c) The custodial history of the child, including whether the child has been 

in the temporary custody of one or more public children services agencies 

or private child placing agencies for twelve or more months of a 

consecutive twenty-two month period * * *; 

(d) 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 to the agency; 

(e) Whether any of the factors in divisions (E)(7) to (11) of this section 

apply in relation to the parents and child.1

 R.C. 2151.414(D)(1). 

 1

These additional factors include: whether a parent has continuously and repeatedly failed to 

substantially remedy the conditions causing the child to be placed outside the child’s home, and has 

utilized available resources; whether a parent has chronic chemical dependency that is so severe that it 

makes the parent unable to provide an adequate permanent home for the child at the present time; 

whether the parent has been convicted of or pleaded guilty to certain listed offenses (which are 

offenses of violence, sex offenses, or offenses against children); whether the parent has repeatedly 

withheld medical treatment or food from the child when the parent has the means to provide the 

treatment or food; whether the parent has placed the child at substantial risk of harm two or more 

times due to alcohol or drug abuse and has rejected treatment two or more times; whether the parent is 

repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the 

child; whether the parent for any reason is unwilling to provide food, clothing, shelter, and other basic 
{¶14} In the first assignment of error, mother argues the juvenile court’s decision 

to grant legal custody of the children to the paternal aunt and uncle was not based on the 

preponderance of the evidence and constituted an abuse of discretion. In the second 

assignment of error, she argues that the juvenile court’s decision is against the manifest 

weight of the evidence. Mother contends that by completing her case plan and 

maintaining regular visits and negative drug screen, she demonstrated that she is able to 

provide for her children. 

{¶15} A review of the record, however, demonstrates that a preponderance of the 

evidence existed to support an award of legal custody to the paternal aunt and uncle. 

Mother admitted that she has a criminal history of drug convictions. Most recently, in 

March 2012, she was convicted and placed on probation for domestic violence for hitting 

Ery.A. in the face and drug possession. Mother also admitted that she has a substance 

abuse problem. Eri.A. indicated that she had to assist her mother in selling drugs. 

{¶16} CCDCFS maintained an open case with mother from 2004 to 2011. From 

2006-2010, Eb.A. and Eri.A. were either in court-ordered protective supervision or 

temporary custody. Mother admitted that she has another child who was placed in 

permanent custody in 2008, due in part to her substance abuse problem. During the 

seven years of CCDCFS involvement, mother completed numerous inpatient and 

outpatient programs, but continued to relapse and received five referrals to intensive 

outpatient programs. 

 

necessities for the child. 
{¶17} The fathers of the children did not provide care or support, and Eb.A. and 

Eri.A.’s father indicated the children should stay with the paternal aunt and uncle. 

Furthermore, the aunt and uncle provided the children with appropriate care and shelter, 

and Eri.A. wanted to stay in their custody. Over the years, the children have resided with 

them on six different occasions and have been continuously with them since April 2012, 

now almost an entire year. 

{¶18} In the instant case, the juvenile court considered many factors and 

determined that it was in the children’s best interest to be placed in the legal custody of 

the paternal aunt and uncle. The juvenile court considered: the custodial history of the 

children; the children’s wishes; the guardian ad litem’s recommendation for legal 

custody; the need for legally secure placement; mother’s chronic chemical dependency; 

the termination of parental rights of her other child; and mother’s lengthy history with 

CCDCFS. Based on the foregoing, we find the court’s determination is supported by a 

preponderance of the evidence. Therefore, the trial court did not abuse its discretion in 

rendering legal custody to the paternal aunt and uncle. 

{¶19} Accordingly, the first and second assignments of error are overruled. 

{¶20} Judgment is 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 be sent to said Cuyahoga 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. 

MARY EILEEN KILBANE, JUDGE 

SEAN C. GALLAGHER, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR