[Cite as In re D.T. , 2014-Ohio-4818.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 100970 and 100971

IN RE: D.T., ET AL. Minor Children [Appeal By E.J., Mother]

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-11916021 and AD-11916022

BEFORE: Celebrezze, J., Boyle, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: October 30, 2014ATTORNEY 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 BY: Timothy D. Smanik Assistant Prosecuting Attorney C.C.D.C.F.S. 3955 Euclid Avenue Room 307-E Cleveland, Ohio 44115 For Appellee-Father Vickie L. Jones P.O. Box 110771 Cleveland, Ohio 44111

ATTORNEY FOR CHILDREN

Thomas Robinson Law Offices of Thomas B. Robinson P.O. Box 110298 Cleveland, Ohio 44111

GUARDIAN AD LITEM FOR CHILDREN

Donald Paul Christman 6520 Carnegie Avenue Cleveland, Ohio 44103FRANK D. CELEBREZZE, JR., J.: {¶1} Appellant, E.J. (“mother”), appeals the j udgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, that granted le gal custody of her minor children, P.T. and D.T., to the children’s father, L.T. (“father”). After a careful review of the record, we affirm the juvenile court’ s determination. I. Procedural History {¶2} On September 7, 2011, P.T. and D.T. (“th e children”) were removed from their mother’s custody pursuant to an exparte telephoni c order. The next day, the Cuyahoga County Division of Children and Family Services (“CCDCFS”) filed a complaint for temporary custody and a motion for pre-dispositional temporary cust ody of the children. The complaint alleged P.T. to be abused, and both P.T. and D.T. to be dependent. The agency’s motion for pre-dispositional temporary cust ody was granted that day. {¶3} On December 14, 2011, P.T. was adjudicated to be abused, and both P.T. and D.T. were adjudicated to be depende nt. On December 29, 2011, the trial court issued its decision by journal entry. On May 14, 2012, the magistrate committed the child ren to the temporary custody of CCDCFS. On May 30, 2012, th e trial court issued its decision by judgment entry. {¶4} On July 1, 2013, CCDCFS filed a motion to suspend visitation and communication between mother and the children. On July 8, 2013, the magistrate or dered that mother’s visitation and communication with the children be suspended until further order of the court. {¶5} On August 27, 2013, CCDCFS filed a motion seeking to place the children in the legal custody of their father. On Septembe r 5, 2013, the trial court held a hearing on the agency’s motion where the following testimony was adduced.{¶6} The children’s therapists, Lisa Eulinberg a nd Robin Skolnik, testified at the hearing. Collectively, Eulinberg and Skolnik testified th at both children love and miss their mother and that mother had some positive influences on them. However, Eulinberg and Skolnik each expressed concerns with mother’s anger and her effect on the children’s em otional development. Eulinberg discussed D.T.’s statements that mother made him feel disloyal for speaking positively of his father. Eulinberg testified that she believed mother’s “alienation of affection” was detrimental to D.T.’s mental health. Finally, Eu linberg and Skolnik testif ied that the children’s interaction with father was progressing positively and that they did not have any concerns with the children being placed in father’s custody. {¶7} CCDCFS social worker, Lauren Shaheed, testified she was assigned to the children’s case in February 2012. Shaheed testifie d that mother’s case plan objectives included parenting education, anger manage ment, and a psychological eval uation. Shaheed stated that “mother complied with her case plan objectives” but “did not benefit from her case plan.”

Shaheed testified that mother was uncooperative and that her beha vior was the same or even worse following her participation in the case plan. Shaheed testified that mother was “manipulative,” frequently rude during her parenting classes, had not completed her anger management courses at the time Shaheed was assigned to the case, and made excuses not to attend individual therapy. {¶8} With respect to father, Shaheed testified that he completed all the objectives of his case plan and was cooperative throughout the pro cess. Shaheed stated that she “had never experienced a father so dedicated to his children.” Accordingly, Shaheed opined that it was in the children’s best interest to be placed in the legal custody of father.{¶9} CCDCFS social worker, Bryanta Spencer, testified that she was assigned to the children’s case in April 2013. With respect to mo ther’s case plan, Spencer opined that, although mother attended parentin g classes and anger mana gement counseling prior to her involvement in this case, she did not benefit fro m those services. Spencer expl ained that her opinion was based on her observation of mother’s visits with the children. Further, Spencer stated that mother provided no documentation to verify her comple tion or progress with individual therapy. {¶10} Regarding father, Spencer testified that he was cooperative and completed the objectives of his case plan, whic h included parenting education a nd a psychological evaluation. Spencer testified that she visited father’s home on two occasions and had no concerns. Accordingly, Spencer opined that it was in the children’s best interest to be placed in the legal custody of father. {¶11} After hearing all of the testimony provi ded at the September 5, 2013 hearing, the children’s guardian ad litem recommended that father be granted legal custody of the children. {¶12} On September 6, 2013, the magistrate gran ted legal custody of the children to father with protective supervision. On Septem ber 24, 2013, the trial court issued its decision by judgment entry. {¶13} On December 10, 2013, CCDCFS filed a motion to terminate protective supervision and requested that custody of the child ren be granted to father without restriction. On December 17, 2013, the magistrate granted the ag ency’s motion and granted legal custody to father without restriction. On January 2, 2014, th e trial court issued its decision by judgment entry. {¶14} Mother now brings this appeal, raisin g two assignments of error for review.I. The trial court’s decision to grant legal custody of the children to the father was not based on a preponderance of the evidence and therefore constitutes an abuse of discretion. II. The trial court’s decision to grant legal custody of the children to the father was against the manifest weight of the evidence. II. Law and Analysis {¶15} In her first assignment of error, mother argues that the trial court’s decision to grant legal custody to father was not based on a pre ponderance of the evidence, and therefore was an

abuse of discretion. In her sec ond assignment of error, mother argues that the trial court’s judgment was against the manifest weight of the evidence. Because mother’s first and second assignments of error raise related ar guments, we address them together. {¶16} Parents have a constitutionally protected interest in raising their children. In re

M.J.M. , 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15, citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That interest, however, is “‘always subject to the ultimate welfare of the child.’” Id ., quoting In re B.L. , 10th Dist. Franklin No. 04AP-1108, 2005-Ohio-1151, ¶ 7. {¶17} Under R.C. 2151.353(A)(3), the court may aw ard legal custody of a child who has been adjudicated abused, neglected, or depende nt, to any person who filed a motion requesting legal custody of the child prior to the dispositional hearing. Assuming the person seeking legal custody has complied with any statutory require ments, the court’s authority to award legal custody under this statute “is limited only by the best interest of the child.” Id .; In re W.A.J. , 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 3. The best interest of the child is “of paramount concern” when making cu stody determinations. In re M.J.M. at ¶ 14. {¶18} Legal custody is defined 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, a nd discipline the child and to provide the child with food, shelter, e ducation, and medical care, a ll subject to any residual parental rights, privile ges, and responsibilities. R.C. 2151.011(B)(21); In re E.A, 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 11. {¶19} Legal custody is significantly different than the termination of parental rights in that, despite losing legal custody of a child, the pa rent of the child retains residual parental rights, privileges, and responsibilities. In re G.M. , 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C. 2151.353(A)(3)(c). In such a case, a parent’s right to regain custody is not permanently foreclosed. In re M.J.M. at ¶ 12. For this reason, the standard the trial court uses in making its determination is the less restrictive “pre ponderance of the evidence.” Id . at ¶ 9, citing In re Nice , 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001). “Preponderance of the evidence” means evidence that is more probable, more persuasive, or of greater probative

value. In re C.V.M. , 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7. {¶20} Unlike permanent custody cases in which the trial court is guided by the factors outlined in R.C. 2151.414(D) before terminating parental rights and granting permanent custody, R.C. 2151.353(A)(3) does not provide factors the court should consider in determining the child’s best interest in a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in the absence of best interest factors in a legal custody case, “the legislature did not intend to require the consideration of certain factors as a predicate for granting legal custody.” Id. at ¶ 16. Such factors, however, are instructive when making a determination as to the child’s best

interest. In re E.A. at ¶ 13. {¶21} The best interest factors include, for example, the interaction of the child with the child’s parents, relatives, and caregivers; the cust odial history of the child; the child’s need for alegally secure permanent placemen t; and whether a parent has con tinuously and repeatedly failed to substantially remedy the conditions causing the child to be placed outside the child’s home. R.C. 2151.414(D). {¶22} Because custody determinations “‘are some of the most difficult and agonizing decisions a trial judge must make,’” a trial judge must have broad discreti on in considering all of

the evidence. In re E.A. at ¶ 10, quoting Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We therefore review a trial c ourt’s determina tion of legal custody for an

abuse of 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). {¶23} In the case at hand, mother argues that th e trial court’s decision was an abuse of discretion because she had successfully completed her case plan. However, we are mindful that in making custody determinations, the trial court’s principal concern is the children’s best interest. While completing her case plan may be in mother’s best interest, this is not a factor in determining what is in the children’s best interest. In re M.J.M. , 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, at ¶ 14. The successful completion of a case plan, “‘is not dispositive on the

issue of reunification.’” In re W.A.J. , 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, at ¶ 19, quoting In re C.C. , 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist). “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

. {¶24} Moreover, the record does not support mo ther’s position that she successfully completed her case plan. Here, case worker Spencer testified that mother failed to provide theagency with documentation that she completed the psychological evaluation objective of her case plan. Further, Shaheed and Spencer both te stified that although mother completed her parenting classes and a ttended anger management counseling, they di d not believe mother showed any benefit from having done so based on her interac tions with the children during visitations. Shaheed and Spencer testified that mother was uncooperative and did not take her case plan seriously, often referring to it as “a waste of time.” Moreover, Shaheed, Spencer, Eulinberg, and Skolnik each testified that mother continued to manipulate the children’s relationship with father and their progress in therapy. Ultimately, the magistrate agreed, finding that mother had not benefitted from the case pl an services, including counseling and anger management. {¶25} Given the evidence presented at the Sept ember 5, 2013 hearing, we cannot say that

the trial court’s determination that it would be in the best interest of the children to be placed in the legal custody of father was arbitrary or unreasonable. The evidence shows that mother has failed to remedy the conditions that initially caused the children to be removed from her home. In contrast, the evidence shows that father has taken his obligations under the case plan seriously

and has made a substan tial effort to provide his childre n with a safe and stable home.

III. Conclusion {¶26} In light of the above, we find that the trial court’s decisi on was supported by a preponderance of the evidence and was not against the manifest weight of the evidence. We therefore find that the trial court’s award of legal custody to father was in the best interest of the

children and was not an abuse of discretion. {¶27} Mother’s first and second assi gnments of error are overruled. {¶28} Judgment affirmed.It is ordered that appellees recove r from appellant costs herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE MARY J. BOYLE, A.J., and TIM McCORMACK, J., CONCUR