[Cite as In re T.J., 2013-Ohio-5434.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

Nos. 99877 and 99878

IN RE: T.J., JR., AND C.J. 

 Minor Children

[Appeal By T.J., Sr., Father] 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. AD 11915591 and AD 11915593 

BEFORE: Keough, P.J., E.A. Gallagher, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: December 12, 2013 
ATTORNEY FOR APPELLANT

Judith M. Kowalski 

333 Babbitt Road 

Suite 323 

Euclid, Ohio 44123 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Nicole A. Raimo 

Assistant Prosecuting Attorney 

C.C.D.C.F.S 

4261 Fulton Parkway 

Cleveland, Ohio 44144 

ATTORNEY FOR CHILDREN 

Carla Golubovic 

P.O. Box 29127 

Parma, Ohio 44129 

GUARDIAN AD LITEM 

Jennifer Hanes 

Laubacher & Company 

20525 Center Ridge Road 

Westgate Towers, Suite 626 

Rocky River, Ohio 44116 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} In these consolidated appeals, appellant, T.J., Sr. (“Father”), the biological 

father of T.J., Jr. (born October 26, 1997) and C.J. (born January 24, 2004) (the 

“children”) appeals from the trial court’s judgment that awarded legal custody of the 

children to their maternal uncle.1

 Finding no merit to the appeal, we affirm. 

{¶2} On August 31, 2011, the Cuyahoga County Department of Children and 

Family Services (“CCDCFS”) filed a complaint for dependency and neglect with a 

request for predispositional temporary custody of T.J. and C.J. At the time, Father was 

homeless and unemployed, and the children’s biological mother, who had a history of 

drug use, was hospitalized. The children were committed to the emergency custody of 

CCDCFS. They were subsequently adjudged dependent and committed to the temporary 

custody of CCDCFS. In April 2012, the children’s mother died. 

{¶3} Father subsequently filed two motions to modify the existing temporary 

custody order to an order of legal custody to him. CCDCFS, on the other hand, filed a 

motion to modify custody to an order of legal custody to the children’s maternal uncle. 

After a dispositional hearing before a juvenile court magistrate, the magistrate issued a 

decision recommending that legal custody of the children be granted to the uncle. The 

 1

The parties are referred to by their initials or title in accord with this court’s 

policy of non-disclosure of identities in juvenile cases. 
juvenile court subsequently denied Father’s objections to the magistrate’s decision and 

affirmed and adopted the magistrate’s decision. This appeal followed. 

I. Hair Follicle Test 

{¶4} At the hearing, CCDCFS case worker Judith Lebron testified that she 

developed a case plan for Father that included (1) completion of a drug assessment and 

compliance with any recommendations of that assessment, (2) procurement of adequate 

housing, and (3) permanent employment. Lebron testified that CCDCFS will only 

recommend custody if the petitioner has been drug-free for six months so, in light of 

Father’s ten-year history of drug abuse, she asked him for monthly urine samples and, in 

March 2013, requested that he complete a hair follicle test. Lebron testified that she was 

not an expert, but to the best of her knowledge, a hair follicle test can determine the 

presence of cocaine used up to three months prior to the test and that Father’s test was 

positive for cocaine. 

{¶5} At the close of the hearing, when CCDCFS sought to introduce a report of 

the hair follicle test from the agency that had administered the test, the magistrate ruled 

that the report was inadmissible because it had not been authenticated. The magistrate 

stated that Lebron’s testimony relative to the hair follicle test would stand, however. 

{¶6} In rendering her decision at the close of trial, the magistrate stated that 

“[t]he court can’t get beyond the hair follicle test.” The magistrate stated that substantial 

compliance with the case plan is one factor in determining custody but “[t]he real 
determination is that the conditions that led to the removal have been remedied.” The 

magistrate found that the result of Father’s hair follicle test indicated that those conditions 

had not been remedied and, accordingly, granted legal custody to the children’s uncle. 

{¶7} In his first assignment of error, Father contends that the trial court abused 

its discretion in basing its ruling in part on the hair follicle test because the report was 

ruled inadmissible. He argues further that the trial court should not have relied on 

Lebron’s testimony regarding the hair follicle test because Lebron admitted that she was 

not an expert on the subject but then testified, based on hearsay, that a positive hair 

follicle test indicates drug use within the last three months. 

{¶8} Our review of the record demonstrates that Father never objected to 

Lebron’s testimony. Because Father failed to object to Lebron’s testimony, he has 

waived all but plain error on appeal. In re J.T., 8th Dist. Cuyahoga Nos. 93240 and 

93241, 2009-Ohio-6224, ¶ 67. 

{¶9} We find no plain error in this case. During dispositional hearings, “[t]he 

court may admit any evidence that is material and relevant, including, but not limited to, 

hearsay, opinion, and documentary evidence.” R.C. 2151.35(B)(2)(b); Juv.R. 34(B)(2); 

In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-Ohio-4064, ¶ 14. 

Lebron’s testimony that Father had tested positive for cocaine in March 2013, only one 

month before the dispositional hearing, was obviously material and relevant to whether 

the children should be placed with Father, especially in light of his ten-year drug abuse 
history. Accordingly, the trial court did not abuse its discretion in admitting Lebron’s 

testimony. 

{¶10} Moreover, our review of the record demonstrates that Father’s counsel 

elicited on cross-examination the testimony regarding the length of time cocaine will stay 

in a hair follicle that Father now claims was hearsay. Father’s argument therefore also 

fails under the invited error doctrine. See State v. Gumins, 8th Dist. Cuyahoga No. 

90447, 2008-Ohio-4238, ¶ 18 (under the doctrine of invited error, a litigant may not take 

advantage of an error that he himself invited or induced). 

{¶11} The first assignment of error is therefore overruled. 

II. Best Interest, Preponderance of the Evidence, and the Wishes of the Children 

{¶12} In his second, third, and fifth assignments of error, Father contends that the 

trial court erred in awarding legal custody of the children to their uncle. He argues that 

the grant of legal custody to the uncle was (1) not in the best interest of the children, (2) 

not supported by a preponderance of the evidence, and (3) contrary to the stated wishes of 

the children. We discuss these assigned errors together because they are interrelated. 

{¶13} This court recently discussed the standards for a trial court’s grant of legal 

custody and our review of the trial court’s decision in In re E.A., 8th Dist. Cuyahoga No. 

99065, 2013-Ohio-1193, ¶ 10-13, where the court stated: 

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.33d 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). 

 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. 

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. Cuyahoga 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. Franklin No. 

05AP-117, 2005-Ohio-5097. 

“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. Cuyahoga 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. Cuyahoga 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.2

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

{¶14} In this case, a preponderance of the evidence supported the trial court’s 

judgment that it was in the best interest of the children to grant legal custody to their 

uncle. At the time of the hearing, the children had been in the custody of CCDCFS for 

approximately 19 months. Their maternal uncle was able and willing to provide a 

permanent, appropriate home for the children and, as Father’s counsel told the magistrate, 

the children had a good relationship with their uncle, having lived with him previously for 

several months. 

{¶15} The evidence also demonstrated that Father had a ten-year substance abuse 

problem (including convictions in 1996 and 2006 for drug-related offenses) that had not 

yet been resolved: Father admitted to smoking marijuana in January 2012 and he tested 

positive for cocaine in March 2013. Although Father argued at the hearing that he had 

 2

Among these additional factors are: 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; and whether a 

parent has chronic chemical dependency that is so severe that it makes the parent 
completed a drug assessment that did not recommend further treatment, Lebron’s 

testimony demonstrated that one reason for the recommendation was the lack of collateral 

evidence of Father’s drug use, which CCDCFS obtained thereafter. The evidence further 

demonstrated that Father would wait several days to comply with Lebron’s requests for 

random urine samples, presumably so that his urine would be clean. Thus, although the 

children expressed their desire to live with their father, reunification was not possible as 

of the date of the hearing because Father was still using drugs. 

{¶16} The evidence also demonstrated that Father did not have adequate housing 

for the children: the only furnishings in his CMHA-provided one-bedroom apartment 

were a television and bed in the bedroom, and a recliner in the living room. Although 

Father argued at the hearing that CMHA would move him to a larger apartment if he were 

granted legal custody of the children, he produced no evidence to support this claim. 

{¶17} Finally, the evidence demonstrated that Father was working at a temporary 

job. Although Lebron had tried to give Father referrals for full-time, permanent 

employment, he had refused the referrals and sought employment through various 

temporary employment agencies. 

{¶18} In light of this evidence, the trial court did not abuse its discretion in 

concurring with the guardian ad litem’s recommendation that legal custody of the 

children should be awarded to their maternal uncle. The trial court’s decision was 

 

unable to provide an adequate permanent home for the child at the present time. 
supported by the preponderance of the evidence and in the best interest of the children, 

despite their bond with their father and their desire to live with him. The second, third, 

and fifth assignments of error are therefore overruled. 

III. Case Planning 

{¶19} In his fourth assignment of error, Father argues that the trial court erred in 

granting legal custody to the children’s uncle because CCDCFS did not make reasonable 

efforts through diligent case planning to reunite him with his children. 

{¶20} Under R.C. 2151.419(A)(1), 

the court shall determine whether the public children services agency * * * 

that filed the complaint in the case, removed the child from the home, has 

custody of the child, or will be given custody of the child has made 

reasonable efforts to prevent the removal of the child from the child’s 

home, to eliminate the continued removal of the child from the child’s 

home, or to make it possible for the child to return safely home. The 

agency shall have the burden of proving that it has made those reasonable 

efforts. 

{¶21} Father contends that he successfully fulfilled the objectives of his case plan, 

namely completing a substance abuse assessment and obtaining housing and employment, 

but that CCDCFS refused to recognize what he had achieved and wanted only to end the 

case by placing the children with a relative, rather than working at reunification. We 

disagree. 

{¶22} Lebron testified that Father’s case plan required him to complete a substance 

abuse assessment and treatment, obtain adequate housing, and maintain full-time 

employment. Although Father contends that he complied with his case plan, the 
evidence at the hearing showed otherwise. He did not have permanent employment, and 

his one-bedroom apartment with minimal furnishings was inadequate to provide for the 

children. Most importantly, however, he had not resolved his chronic substance abuse 

problem. Indeed, in awarding legal custody to the uncle, the trial court specifically found 

that the “evidence about the adequacy of housing or employment was not dispositive,” but 

that “Father has failed to remedy the conditions causing removal of the [children;] 

specifically his chronic substance abuse.” 

{¶23} Despite Father’s argument otherwise, CCDCFS made reasonable efforts to 

reunite him with his children by establishing a workable case plan. When he failed to 

comply with the case plan, CCDCFS acted in the best interest of the children by 

requesting that they be placed with their uncle. The fourth assignment of error is 

therefore overruled. 

{¶24} 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 be sent to said court 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. 
KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

EILEEN T. GALLAGHER, J., CONCUR