[Cite as In re M.P., 2017-Ohio-53.]


                                          COURT OF APPEALS
                                      MUSKINGUM COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT

                                                         JUDGES:
IN THE MATTER OF: M.P.                           :       Hon. W. Scott Gwin, P.J.
                                                 :       Hon. Patricia A. Delaney, J.
                                                 :       Hon. Craig R. Baldwin, J.
                                                 :
                                                 :
                                                 :       Case No. CT2016-0046
                                                 :
                                                 :
                                                 :       OPINION




CHARACTER OF PROCEEDING:                             Civil appeal from the Muskingum County
                                                     Court of Common Pleas, Juvenile Division,
                                                     Case No. 21430015


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              January 6, 2017

APPEARANCES:

For - Appellee                                       For - Appellant

TRAFFORD DICK                                        PETER N. CULTICE
27 North Fifth Street                                58 North Fifth Street
Zanesville, OH 43701                                 Zanesville, OH 43701
Muskingum County, Case No. CT2016-0046                                                 2

Gwin, P.J.

      {¶1}   Appellant Mother appeals the July 14, 2016 Judgment Entry of the

Muskingum County Court of Common Pleas, Juvenile Division, granting legal custody of

M.P. to the maternal aunt.

                                 Facts and procedural History

      {¶2}   On or about January 21, 2014 a Complaint was filed with this Muskingum

County Juvenile Court alleging that M.P. was a Dependent children, as defined in R.C.

2151.04 (C) and Neglected child, as defined in R.C. 2151.03 (A)(2).

      {¶3}   The allegations were based on the drug use of Mother, specifically

methamphetamine.      Muskingum County Children’s Services [“MCCS”] withdrew the

allegation of neglect and Mother admitted to the allegation of dependency on April 10,

2014. See, Judgment Entry dated April 10, 2014. Father was never involved.

      {¶4}   On or about April 10, 2014, the child was placed in the temporary custody

of a relative following a Dispositional Hearing. At the Dispositional Hearing, Mother and

Father were granted only supervised visitation with the Children at Muskingum County

Children Service's discretion.

      {¶5}   On or about October 20, 2014, a review hearing was held and the child was

placed in the temporary custody of the Muskingum County Children Service's. At the

hearing, the Court specifically found that Mother continued to miss required drug screens

and/or substance abuse treatment sessions, this despite her transportation issues having

been alleviated. The Court further found Mother had made little/limited progress in her

required treatment. MCCS specifically requested that the Court approve their amended
Muskingum County, Case No. CT2016-0046                                                  3


Permanency Plan, which added, in addition to Reunification, the possibility for Permanent

Custody to the Agency.

       {¶6}    On or about February 25, 2015, a review hearing was held. The Court found

Mother continued to miss required drug screens, drug treatment (she had at that time

been unsuccessfully discharged from Muskingum Behavioral Health on at least 2

occasions for failing to participate), failed to regularly visit the child.

       {¶7}    On or about July 9, 2015, MCCS filed an Amended Motion to Modify Review

Hearing to include a Motion for Legal Custody of the Children to Maternal Aunt.

       {¶8}    On or about July, 16, 2015 the Court conducted a hearing on the Review

and Motion for Legal Custody. In addition to the parties, Maternal Aunt was present and

did participate at said hearing. By agreement of the parties, the child was placed in the

temporary custody of Maternal Aunt and the Legal Custody Motion was continued.

       {¶9}    On or about March 24, 2016, the Court conducted a Review hearing. At said

hearing, it was represented to the Court that prior to the date of the hearing the parties

had been in agreement that Maternal Aunt receive Legal Custody of the child. It was

further represented to the Court that the parties did not agree now and that the Legal

Custody Motion would need to be set for a different/new hearing date as no parties were

prepared to litigate the now contested issue of legal custody. In addition to the parties,

Maternal Aunt was present and did participate at said hearing. The matter was then set

for a contested hearing.

       {¶10} A legal custody hearing took place on July 16, 2015, but temporary custody

was granted instead to Maternal Aunt, with the agreement and consent of Mother and a

review hearing then was scheduled. See Judgment Entry dated July 16, 2015. This
Muskingum County, Case No. CT2016-0046                                                  4


review hearing was scheduled for March 24, 2016, but was then continued with the

consent of all parties. See, Judgment Entry dated March 24, 2016. Mother and Maternal

Aunt were present at each hearing.

       {¶11} The legal custody hearing was subsequently scheduled for July 14, 2016.

On July 7, 2016, through her attorney, Mother requested a continuance of the July 14,

2016, legal custody hearing. The court denied the request.

       {¶12} Mother did not attend nor did father attend the legal custody hearing of July

14, 2016. Since Mother did not attend the legal custody hearing and neither father chose

to attend, the only witness who testified was Elizabeth Glass, MCCS ongoing caseworker.

       {¶13} Mother, had enrolled in five separate substance abuse treatment programs

(both in-patient and outpatient) and has failed to successfully complete each one of them.

The names of the programs are as follows; Muskingum Behavioral Health; Stanton Villa;

First Step Home; Freedom House; and Buckeye Counseling Center.                  The last

documented drug test of Mother occurred on December 16, 2015 and she again tested

positive for amphetamines and methamphetamines. Mother was Court ordered to submit

to a hair follicle test and MCCS caseworker Elizabeth Glass offered to transport Mother

to the facility for the testing and Mother refused.

       {¶14} Mother had moved to Alabama in December 2015. Alabama is where the

Maternal Aunt lives and is where the child has been since July 16, 2015.

       {¶15} The Maternal Aunt of the child did not attend the legal custody hearing, but

had signed the Statement of Understanding for Legal Custody on May 1, 2016. MCCS

had no issue with the aunt having legal custody since temporary custody had gone well

for almost a year. Legal custody was awarded to the maternal aunt on August 18, 2016.
Muskingum County, Case No. CT2016-0046                                                        5

                                       Assignments of Error

       {¶16} Counsel for Mother has filed a Motion to Withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) asserting that

the appeal is wholly frivolous and setting forth no assignments of error.

                                           Law and Analysis

       {¶17} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant's counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. 386 U.S. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to

raise any matters that the client chooses. Id. Once the defendant's counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss

the appeal without violating constitutional requirements, or may proceed to a decision on

the merits if state law so requires. Id.

                                           Appellate Review

       {¶18} Before awarding legal custody to a non-parent, a trial court must ordinarily make a

finding that each parent is unsuitable. In re L.M., 2nd Dist. Greene No. 2010–CA–76, 2011–Ohio–

3285, ¶ 18 citing In re Hockstock, 98 Ohio St.3d 238, 2002–Ohio–7208, 781 N.E.2d 971. This

requirement does not apply, however, in cases involving abuse, neglect, or dependency. Id. The

Ohio Supreme Court in In re C.R. held “[a] juvenile court adjudication of abuse, neglect, or
Muskingum County, Case No. CT2016-0046                                                                  6


dependency is a determination about the care and condition of a child and implicitly involves a

determination of the unsuitability of the child’s custodial and/or noncustodial parents.” 108 Ohio

St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188, paragraph one of syllabus. Thus, “[w]hen a juvenile

court adjudicates a child to be abused, neglected, or dependent, it has no duty to make a separate

finding at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal

custody to a nonparent.” In re L.M., 2011–Ohio–3285 quoting In re C.R., 108 Ohio St.3d 369,

paragraph two of syllabus.

        {¶19} Importantly, the award of legal custody is “not as drastic a remedy as permanent

custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7. See also In re N.F., 10th

Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the award of legal custody does not

divest parents of their residual parental rights, privileges, and responsibilities. In re C.R. at ¶ 17.

Therefore, since the granting of legal custody does not divest a parent of his or her fundamental

parental rights, the parent can petition the court for a custody modification in the future. In re L.D. at

¶ 7.

        {¶20} “A trial court has broad discretion in proceedings involving the care and custody of

children.” In re Mullen, 129 Ohio St.3d 417, 2011–Ohio–3361, ¶ 14. We review the award of legal

custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No. 03AP–445, 2003–

Ohio–6309, ¶ 13; In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9, citing In re Nice, 141

Ohio App.3d 445, 455 (7th Dist.). Abuse of discretion connotes more than an error of law or

judgment; rather, it implies that the trial court’s decision was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

        {¶21} Unlike in a permanent custody proceeding where a juvenile court’s standard of

review is by clear and convincing evidence, the standard of review in legal custody proceedings is
Muskingum County, Case No. CT2016-0046                                                              7

a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos. 2013CA0081, 2013CA0082,

2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006–12–105, 2007–Ohio–3350 at ¶ 14; In re

Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001).

       {¶22} In this type of dispositional hearing, the focus is on the best interest of the child. In

re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re P.S., 5th Dist.

No.2012CA00007, 2012–Ohio–3431. Despite the differences between a disposition of permanent

custody and legal custody, some Ohio courts have recognized “the statutory best interest test

designed for the permanent custody situation may provide some ‘guidance’ for trial courts making

legal custody decisions.” In re A.F., 9th Dist. No. 24317, 2009–Ohio–333 at ¶ 7, citing In re T.A.,

9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081,

2013CA0082, 2013-Ohio-5752, ¶ 33 . R.C. 2151.414(D) sets forth factors to be considered in

making a determination regarding the best interest of the child.

       {¶23} Concerning the best interest of the child, the trial court found,

               The Children have lived exclusively in the home of Maternal Aunt for a

       significant period of time and have been incorporated as part of her family.

               Maternal Aunt's source of income consists of tax return preparation and

       selling of antiques. Maternal Aunt has sufficient resources to provide for all of the

       Children's special and ordinary needs.

               Maternal Aunt has worked with special needs individuals, she has identified

       legitimate concerns about the Children's development; and had the Children

       evaluated by experts, and then took the necessary steps to ensure the Children

       received therapy and/or special education services as needed.
Muskingum County, Case No. CT2016-0046                                                      8


            Maternal Aunt has done an excellent job of providing for the Children's needs

     while in her care and/or custody. She has enrolled [L.P.] in pre-school and, has her

     prepared to be enrolled in kindergarten next school year. She has enrolled [M.P.] in

     a special needs pre-school which has been providing him with speech therapy.

            Muskingum County Children Services Caseworker, Elizabeth Glass, opined

     that [M.P.’s] speech has improved since went to live with Maternal Aunt.

            The home of Maternal Aunt was inspected and was approved by a

     home study conducted by Ms. Carolyn Blackwood, of Muskingum County

     Children Service's which has been previously filed with this Court. The

     Court finds that Ms. Ingram has resided in this home for fourteen years and

     that it has adequate facilities to provide for the children's needs and that

     they are adjusted to the home, the surrounding environment and the family

     members in the home.

            The Mother has relocated her residence to the same county in

     Alabama as where Maternal Aunt resides so as to facilitate visitation with

     the Children.

            The Mother has had visitation in Alabama with the Children under

     the supervision and by arrangements of Maternal Aunt.

                                            ***

            The Guardian ad Litem believes that it is in the best interests of the

     Children that Legal Custody of the minor children [L.P.] and [M.P.] be

     granted to Maternal Aunt. The guardian ad Litem has submitted a written
Muskingum County, Case No. CT2016-0046                                                 9


      report in accordance with the Rules of Superintendence of the Ohio

      Supreme Court.

             Muskingum County Children Service's Caseworker, Elizabeth Glass,

      recommends as being in the best interest of the Children that the Children

      remain in the care and custody of the Maternal Aunt.

      {¶24} Counsel in this matter has followed the procedure in Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), we find the appeal to be wholly

frivolous and grant counsel's motion to withdraw.

      {¶25} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to

withdraw, and affirm the judgment of the Muskingum County Court of Common Pleas,

Juvenile Division.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
