[Cite as In re S.H., 2011-Ohio-5335.]


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

IN RE: S.H.                                            C.A. No.        10CA009945


                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
                                                       CASE No.   07 JC 19945


                                 DECISION AND JOURNAL ENTRY

Dated: October 17, 2011



        WHITMORE, Judge.

        {¶1}     Appellant, Brenda H. (“Mother”), appeals from a judgment of the Lorain County

Court of Common Pleas, Juvenile Division, that placed her minor child in the legal custody of

the child’s paternal aunt and uncle. This Court affirms.

                                                   I

        {¶2}     Mother is the natural mother of S.H., born May 10, 1999. Although S.H.’s father

was involved in the earlier stages of this case, he is not a party to the appeal.

        {¶3}     Lorain County Children Services (“LCCS”) became involved with the family

during June 2007 because S.H. had not been attending school. LCCS also had concerns about

the unclean living conditions of the home and the fact that both parents suffered from untreated

mental health problems. The parents initially agreed to work with LCCS on a voluntary safety

plan, but LCCS later filed a dependency and neglect complaint due to domestic violence between
                                                2


Mother and the father and the parents’ inability to meet S.H.’s basic needs. S.H. was later

adjudicated a neglected and dependent child and placed in the home of a relative.

       {¶4}    Over the next several months, the parents worked on the reunification goals of the

case plan. S.H. was later diagnosed with epilepsy and attention deficit hyperactivity disorder

(“ADHD”) and began taking two prescription medications to control her epileptic seizures and

the behavioral problems associated with ADHD. During August 2008, because the parents

demonstrated an ability to meet S.H.’s medical and other needs, the trial court returned S.H. to

her parents’ custody, under an order of protective supervision to LCCS.

       {¶5}    Four months later, S.H. was again removed from Mother’s home. Mother and

S.H. were no longer living with S.H.’s father but were living with Mother’s brother, who had

been convicted of a sex offense against S.H.’s older half-sibling. LCCS also reported unclean

living conditions in the home and that S.H. was having increasing problems with her epilepsy,

her behavioral problems, and her academic performance. LCCS also believed that Mother was

no longer attending counseling.

       {¶6}    S.H. was placed in the Florida home of a paternal aunt and uncle and has lived

there ever since. Eventually, LCCS moved the trial court to place S.H. in the legal custody of the

aunt and uncle. Mother later filed her own motion for legal custody of S.H. Following a hearing

on the motions, the magistrate recommended that S.H. be placed in the legal custody of her aunt

and uncle. Mother filed objections to the magistrate’s decision, arguing that the evidence did not

support the magistrate’s decision and that the magistrate erred in relying on the report of the

guardian ad litem. The trial court overruled the objections and ordered that S.H. be placed in the

legal custody of her aunt and uncle. Mother appeals and raises one assignment of error.
                                                3


                                                II

                                       Assignment of Error

       “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN
       OVER THE OBJECTIONS OF MOTHER, IT ADOPTED THE JUDGMENT OF
       THE MAGISTRATE GRANTING LEGAL CUSTODY OF S.H. TO A
       PATERNAL AUNT AND UNCLE, WHERE SUCH JUDGMENT WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶7}    In her sole assignment of error, Mother argues that the trial court erred in

overruling her objections to the magistrate’s decision and ordering that S.H. be placed in the

legal custody of the aunt and uncle. Specifically, she argues that the trial court’s decision was

not supported by the evidence. We disagree.

       {¶8}    Initially, we note that Mother has raised two additional issues that this Court will

not address on the merits: whether the trial court was required to explicitly find that LCCS made

reasonable efforts to reunify S.H. with Mother, and whether Mother’s compliance with the case

plan overcame the implicit determination of her unsuitability that resulted from the dependency

and neglect adjudication. She has failed to properly raise either argument on appeal by assigning

them as error. App.R. 12(A)(1)(b). Moreover, Mother did not timely raise these issues at the

hearing before the magistrate or through her objections to the magistrate’s decision and she has

not argued that the trial court committed plain error. See Juv.R. 40(D)(3)(b)(iv).

       {¶9}    Following an adjudication of neglect, dependency, or abuse, the juvenile court’s

determination of whether to place a child in the legal custody of a parent or a non-parent is based

solely on the best interest of the child. See In re D.R., 9th Dist. No. 21218, 2003-Ohio-2852, at

¶17; In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, paragraph two of the syllabus (holding

that an adjudication of abuse, dependency, or neglect is an implicit determination of the parent’s

unsuitability). “Although there is no specific test or set of criteria set forth in the statutory
                                                  4


scheme, courts agree that the trial court must base its decision on the best interest of the child.”

In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶23, citing In re Fulton, 12th Dist. No.

CA2002-09-236, 2003-Ohio-5984, at ¶11. The juvenile court’s disposition of legal custody to a

relative is a less drastic disposition than permanent custody to a children services agency because

it does not terminate parental rights but instead “leaves intact ‘residual parental rights, privileges,

and responsibilities.’” In re Shepherd (Mar. 26, 2001), 4th Dist. No. 00CA12, at *7, quoting

R.C. 2151.011(B)(19). The trial court’s decision to grant or deny a motion for legal custody is

within its sound discretion and will not be reversed absent an abuse of discretion. In re M.S., 9th

Dist. No. 22158, 2005-Ohio-10, at ¶11. An abuse of discretion implies that the trial court’s

attitude is “unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219.

       {¶10} The trial court’s decision to place S.H. in the legal custody of her aunt and uncle

was fully supported by the evidence presented at the hearing. The magistrate heard testimony

from the caseworker, the guardian ad litem, and the paternal aunt and uncle, each of whom

testified about how well S.H. was doing in the home of her aunt and uncle. Mother does not

question the credibility of the witnesses, nor does she point to any evidence to support her

implicit argument that the trial court should have placed S.H. in her legal custody instead. In

fact, Mother did not testify at the hearing, nor did she present any evidence to support her own

motion for legal custody.

       {¶11} The caseworker testified that she had observed S.H. at the aunt and uncle’s home

in Florida and had maintained regular telephone contact and written communication with the

aunt and uncle, as well as S.H.’s counselor and other service providers.             The caseworker

explained how S.H. was thriving in their home. Because the aunt and uncle were semi-retired
                                                 5


and their own two children were grown, they had been able to devote significant attention to

working one-on-one with S.H. and had ensured that she received the medical care, counseling,

and educational services that she needed. It was apparent from the testimony of all witnesses

that the aunt and uncle had the ability and desire to meet all of S.H.’s needs and that they would

continue to do so an ongoing basis.

          {¶12} During the thirteen months that S.H. had been living with her aunt and uncle, she

had made considerable progress addressing her educational, medical, and behavioral problems.

When S.H. was first placed in their home, she was failing every subject in school; her academic

performance and fine motor skills were significantly delayed for her age; she had trouble

concentrating, following the rules, and making friends at school; she had anxiety that was

causing her to chew on her skin; she was not sleeping well; and her epilepsy was not under

control. The aunt and uncle ensured that S.H. took her medication regularly and received regular

medical attention. Through adjustment of S.H.’s two medications, counseling, and the aunt and

uncle providing her with a more consistent and stable environment, S.H.’s problems were

stabilized. She was no longer having epileptic seizures or chewing on her skin and she was

sleeping and controlling her behavior better.

          {¶13} The aunt and uncle enrolled S.H. in school, ensured that she attended regularly,

and became actively involved in her schooling. They worked with S.H. on her homework each

night and arranged for her to regularly work with a tutor and an occupational therapist. They

also involved S.H. in several extracurricular activities, which improved her confidence and social

skills.     At the time of the hearing, all witnesses reported that S.H. had made significant

improvements during the year that she had spent with her aunt and uncle. Her academic

performance still was not up to grade level, but she was receiving passing grades and high marks
                                                  6


for the effort that she exerted. The caseworker and the guardian ad litem were confident that the

aunt and uncle could provide a suitable permanent home for S.H.

       {¶14} S.H. had been living outside Mother’s home for more than a year and had been

involved with LCCS for more than two years due to concerns about the safety of Mother’s home

and her ability to meet S.H.’s needs. Mother had yet to demonstrate to LCCS or the trial court

that she could meet S.H.’s educational, emotional, and medical needs on an ongoing basis.

Although S.H. expressed love for Mother and enjoyed visiting her, she reported to her counselor

that she felt safer and more secure with the aunt and uncle. S.H. still had concerns about

violence in Mother’s home and Mother’s ability to care for her. Mother had only recently started

counseling to address her lengthy history of physical and sexual abuse and its impact on her

ability to make safe and appropriate decisions for herself and her children. She still was married

to S.H.’s father, with whom she has a history of domestic violence. The caseworker and

guardian ad litem both expressed concerns about Mother’s ability to provide S.H. with a stable

and secure home. The guardian ad litem further emphasized that S.H. had been removed from

Mother’s home two different times. She expressed her concern that another failed attempt at

reunification with Mother would be very hard on S.H.

       {¶15} The aunt and uncle had been facilitating visits between Mother and S.H. and

testified that they would continue to do so. They understood that S.H. loved Mother and that a

continued relationship with Mother is in S.H.’s best interest. Given the evidence presented at the

hearing, the trial court reasonably concluded that it was in the best interest of S.H. to be placed in

the legal custody of her paternal aunt and uncle. Mother’s assignment of error is overruled.
                                                 7


                                                III

       {¶16} Mother’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of 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 constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR
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APPEARANCES:

HOLLACE B. WEIZEL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and AMY L. PRICE, Assistant Prosecuting Attorney,
for Appellee.
