[Cite as In re A.P. , 2022-Ohio-276.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: A.P. C.A. No. 30056

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 20 02 0160

DECISION AND JOURNAL ENTRY Dated: February 2, 2022

SUTTON, Judge. {¶1} Appellant, N.C. (“Mother”), appeals a judgment of the Summit Co unty Court of Common Pleas, Juvenile Division, that placed her minor child in the legal custody of the child’s paternal grandmother (“Grandmot her”). This Court affirms.

I. {¶2} Mother is the biological mother of A.P., born March 16, 2019. On February 18, 2020, Summit County Children Services Board (“CSB”) filed a com plaint, alleging that A.P. was an abused and dependent child because it had received multiple referrals that Mother often fell asleep and left the infant unatte nded, and she had failed to pr omptly seek medical treatment for the child as needed. The allegations focused primarily on Moth er’s low level of cognitive functioning and her multiple untreated mental health problems. Mother later stipulated to an adjudication of dependency and A.P. was placed in the temporary custody of Grandmother with an order of protective supervision by CSB.2

{¶3} In addition to obtaining and main taining stable income and hous ing, the courtordered case plan required Mothe r to address her mental health problems and cognitive limitations by obtaining a mental health assessment and followi ng all treatment recommendations. Although Mother obtained a mental health asse ssment, she did not consistently follow through with the recommended individual cou nseling or medication management. Mother switched c ounselors repeatedly and did not attend consistently. CSB was

concerned that Mother had not s tayed with any counselor long en ough to make progress in addressing her anxiety and in stability. Moreover, although CSB had recommended a counseling agency that specialized in help ing people with cognitive delays , Mother chose to go elsewhere. {¶4} On January 7, 2021, CSB moved the trial court to place A.P. in the legal custody

of Grandmother. Mother alterna tively requested an extension of temporary custody. Following a hearing on the competing moti ons, the magistrate decided that A.P. should be placed in the legal custody of Grandmother and that protective supervision sh ould be terminated. Mother filed objections to the magistrate’s d ecision, which were overruled b y the trial court. The trial court placed A.P. in the legal custody of Grandmother and terminated the prior order of protective supervision. Mother appeals a nd raises one assignment of error

. II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN AND REVERSIBLE ERROR WHEN IT GRANTED LEGAL CUSTODY OF THE MINOR CHILD TO [GRANDMOTHER] AND DENIED MOTHER’S MOTION FOR A SIX-MONTH EXTENSION AS IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT IN THE BEST INTEREST OF THE CHILD. {¶5} Mother conceded that she was not p repared to provide A.P. with a stable home at the time of the hearing. Her sole assignment of error is that the trial court s hould have extended3

temporary custody for six months , rather than place A.P. in the legal custody of Grandmother.

Mother asserts that it was in A.P.’s best interest to allow Mot her more time to work on the reunification goals of the case plan. We disagree. {¶6} An award of legal custody must be supported by a preponderance of the evidence. “Preponderance of the evidence entails the greater weight of th e evidence, evidence that is more probable, persuasive, and possesses greater probative value.” (Internal quotations omitted.) In

re M.F ., 9th Dist. Lorain No. 15CA010823, 2016-Ohio-2685, ¶ 7. In co nsidering whether the juvenile court's judgment is again st the manifest weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the credibili ty of witnesses and determines whether in resolving conflicts i n 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 citati ons 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 t he finder of fact.” Id . at ¶ 21. {¶7} “Following an adjudication of neg lect, dependency, or abuse, th e juvenile court’s determination of whether to pl ace 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-Ohio1330, ¶ 12. The statutory scheme regarding an award of legal c ustody does not include a specific test or set of criteria, but Ohi o courts agree that the juvenil e 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-Ohio-7994, ¶ 18, quoting In re N.P ., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. The juvenile court is guided by th e best interest factors enume rated in R.C. 2151.414(D) relating to permanent custody. In re B.G ., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In4

re T.A ., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those fac tors include the interaction and interrelationships of the child, the child’s wi shes, the custodial history of the child, and the child’s need for permanence. 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. {¶8} The juvenile court may also consider the best interest factors in R.C. 3109.04(F)(1). In re K.A ., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860, 2017-Ohio-1 , ¶ 17. While some factors overlap with those set forth in R.C. 215 1.414(D)(1), others include the child’s adjustment to his or her environment; the mental and ph ysical health of all persons involved; and the proposed custodian’s likelihood to honor and facilitate visitation or parenting time. R.C. 3109.04(F)(1). {¶9} In determining whether to grant a first six-month extension of temporary custody, the trial court was also requi red to consider the best interest of the child. This C ourt has held that if legal custody to a nonparent i s in the best interest of the child, an extension of temporary custody is not. See , e.g ., In re A.M. , 9th Dist. Lorain No. 16CA010995, 2017-Ohio-7653, ¶ 41. Moreover, the court would have had authority to grant a first s ix-month extension of temporary custody only 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 pare nts * * * within the period of extension.” R.C. 2151.415(D)(1). As will be explained below, the evidence demonstrated that Moth er had not made significant progress on the case plan and did not support a reasonable beli ef that A.P. would be reunified with Mother during the extension period. {¶10} Mother’s interaction with A.P. during this case was limited to supervised visitation because she had not adequately addressed her mental health problems. Mother5

attended visits only sporadically and often did not stay for th e entire visit. Moreover, Mother

went to Oklahoma for two weeks dur ing this case, which caused h er to miss more than two

weeks of visits because of Covi d-19 quarantine requirements. {¶11} Because A.P. was not yet two years old at the time of the heari ng, the guardian ad litem spoke on his behalf. The guardian ad litem opined that l egal custody to Grandmother was

in the child’s best interest. T he evidence demonstrated that G randmother had been ensuring that A.P. regularly participated in a program at Help Me Grow to add ress his developm ental delays and was also working with him at home to implement what he was learning in the program. Grandmother regularly read to A.P . and reinforced his growing v ocabulary. Both the caseworker and the guardian ad litem testified that A.P. had made great pr ogress with Grandmother in addressing his devel opmental delays. {¶12} A.P. had been living outside Mother’s custody for almost one ye ar. When considering the child’s custodial history under R.C. 2151.414(D ), this Court emphasized in In re

Smith , 9th Dist. Summit No. 20711, 2002 WL 5178, * 5 (Jan. 2, 2002), that “the time period in and of itself cannot be held aga inst the parent without conside ring the reasons for it and the implications that it had on this child.” In this case, the rea son that A.P. had remained placed outside Mother’s custody was becau se Mother needed to address h er mental health problems, yet she did little to work toward reunification during this time. The caseworker testified that, during the one year that A.P. lived outside Mother’s custody, Mother m ade no progress on the case plan and “nothing has changed.” A.P ., however, was doing well outsi de Mother’s custody, but was still in a temporary placement and the evidence did not suggest that he could return home anytime soon. A.P. needed a legally secure permanent placement , which Grandmother was willing and able to pr ovide for him.6

{¶13} Next, considering the additiona l relevant factors in R.C. 3109. 04(F), the evidence demonstrated that A.P. had adjus ted to living in Grandmother’s home, where he had been living

for more than five months. See R.C. 3109.04(F)(1)(d). {¶14} There was no evidence that Gra ndmother had any mental or physic al health problems that affected her ability to provide an appropriate ho me for A.P. See R.C. 3109.04(F)(1)(e). Mother, however, admitted that she suffered from mental health problems, but she did not consistently engage i n counseling or take her psych iatric medication as prescribed. During this case, Mother was once hospitalized for psychiatric treatment, but it was unclear whether she followed up with the treatment that had been recomm ended. On two other occasions during the month befo re the hearing, Mother reached o ut to a crisis center, stating that she was psychotic, depr essed, and was having delusions. The cr isis center was unable to convince Mother to engage in treatment, however. {¶15} At the hearing, Mother testified that she had failed to consist ently attend counseling because she sometimes mixed up the dates and the cou nselors never called her back to reschedule appointments. She conceded, however, that she ha d changed her phone number and might not have apprised the service providers. Mother test ified that her biggest mental health problem was anxiety and that she needed medication. She had been prescribed several different psychiatric medicati ons but had not continued taking any of them because she did not

like the side effects. Mother testified that she had started a new medication two weeks before the hearing, but it was too soon to determine whether the medicatio n would control her symptoms, or she would continue taking it. {¶16} Finally, there was evidence befo re the trial court that Grandmo ther was likely to

facilitate visitation be tween Mother and A.P., as she had done throughout this case. See R.C.7

3109.04(F)(1)(f). Grandmother explicitly recognized that Mothe r would retain the residual parental right to visit her child and agreed that she would con tinue to honor and facilitate

Mother’s visitation with AP. {¶17} After reviewing the evidence presented at the hearing, this Cou rt cannot conclude that the trial court lost its way in determining that it was in the best interest of A.P. to be placed in the legal custody of Grandmothe r. Mother’s assignment of er ror is overruled.

III {¶18} Mother’s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Juven ile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f 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 consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30.8

Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

CARR, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: JASON D. WALLACE, Attorne y at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee. SHUBHRA AGARWAL, Guardian ad Litem.