[Cite as In re D.S., 2018-Ohio-3794.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 106557



                                          IN RE: D.S.

                                         A Minor Child

                                        [Appeal By Mother]



                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 16902940

        BEFORE: Jones, J., E.A. Gallagher, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 20, 2018
[Cite as In re D.S., 2018-Ohio-3794.]
ATTORNEY FOR APPELLANT

Patrick S. Lavelle
Van Sweringen Arcade, Suite 250
123 West Prospect Avenue
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

For CCDCFS

Michael C. O’Malley
Cuyahoga County Prosecutor

Amy L. Carson
Cheryl Rice
Assistant County Prosecutors
Department of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115


Guardian ad litem for D.S., Child

Michael S. Weiss
602 Rockefeller Building
614 Wet Superior Avenue
Cleveland, Ohio 44113




Guardian ad litem for A.S., Mother
                            ii


Pamela A. Hawkins
P.O. Box 43101
Richmond Hts., Ohio 44143

For G.P., Father

James R. Skelton
309 Main Street
Coshocton, Ohio 43812

Michael B. Telep
4438 Pearl Road
Cleveland, Ohio 44109




LARRY A. JONES, SR., J.:
       {¶1} Mother-appellant appeals the decision of the trial court to grant legal custody

of her son, D.S., to his paternal aunt. For the reasons that follow, we affirm.

       {¶2} D.S. was born on July 15, 2009. In February 2016, the Cuyahoga County

Department of Children and Family Services (“CCDCFS”) filed a complaint alleging that

D.S. was abused and dependent.1

       {¶3} Mother stipulated to an amended complaint and D.S. was adjudicated abused

and dependent and was placed in the temporary custody of CCDCFS. In January 2017,

CCDCFS moved for permanent custody. In June 2017, CCDCFS amended its motion

and asked that legal custody of D.S. be given to his paternal aunt, C.J. The court held a

hearing on the matter at which the following pertinent evidence was presented.

       {¶4} D.S. was removed from Mother’s care in February 2016 due to injuries and

bruises on his arms, back, and face. Following his removal, CCDCFS developed a case

plan for Mother that included Mother’s participation in parenting, anger management, and

mental health services.      The case plan was later amended to add a substance abuse

assessment after an agency worker documented that Mother smelled like alcohol when

she arrived for her visits with D.S.

       {¶5} In March 2016, Mother was charged with child endangering stemming from

the injuries to D.S.   She did not appear in court and a warrant was issued for her arrest.


        The complaint also alleged that J.S., D.S.’s half-brother, was dependent. In April 2016, J.S.
       1


was placed in the legal custody of his father; therefore, this appeal does not concern J.S.
       {¶6} At the time of the July 2016 dispositional hearing, Mother had yet to engage

in her case plan services.     The following month, in August 2016, Mother entered an

alcohol detox program, but did not follow through with an assessment or treatment.

Mother also met with a mental health service provider but failed to follow through and

the service provider discharged her in September 2016.

       {¶7} As mentioned, CCDCFS filed a motion requesting permanent custody of D.S.

in January 2017.     At that time, Father was incarcerated and is not expected to be released

until 2037.

       {¶8} In February 2017, Mother began a 30-day, inpatient substance abuse

treatment program.      After completing the program, Mother was recommended for

intensive outpatient treatment.     She was discharged in March 2017 for noncompliance

with that program.

       {¶9} By this time, D.S. had been in agency custody for 12 months and had been in

foster placement the entire time, except for a five-day stay with a relative.       C.J. was

identified as a willing relative that was able to care for D.S., and he was placed with her

in March 2017.

       {¶10} D.S. had to repeat the first grade and had some behavioral issues at school,

including getting in fights.      He was on medication to address his Attention Deficit

Hyperactivity Disorder. His CCDCFS social worker thought he was doing much better

since being in C.J.’s care.
       {¶11} In May 2017, Mother’s child endangering case resumed.                   The municipal

court placed Mother in a selective intervention program and her probation officer

integrated her agency case plan into her probation program.               It was at this time that

Mother started engaging in case plan services.         Mother went to Life Solutions, a service

provider located in the building where she lived, and            completed parenting and anger

management classes.       Mother also went to two service providers to begin addressing her

mental health needs.

       {¶12} Despite Mother’s engagement in services, she was arrested on August 9,

2017, after getting into an altercation with her 13-year-old son and her grandmother, who

had legal custody of her son. Mother was drinking at the time. In September 2017, the

municipal court put an ankle monitor on Mother to monitor her drinking.2

       {¶13} By the time of the October 5, 2017 legal custody hearing, Mother had

completed two mental health counseling sessions and had also been prescribed

medication to address her depression.           She had an appointment to begin intensive

outpatient treatment and was attending two to three court-ordered Alcoholics Anonymous

meetings a week. Mother previously had stable housing but needed to find new housing

and had not done so as of the legal custody hearing. She was also unemployed and,

according to the CCDCFS social worker, had been unemployed for the past ten years.


         The municipal court docket indicates that a warrant was issued on April 4, 2018, for Mother’s
       2


arrest for failure to appear for a compliance hearing in her child endangering case. The warrant was
active as of August 27, 2018.
       {¶14} Mother visited with D.S. two to three times a month and the visits were

appropriate. In the past, as mentioned, Mother showed up to visits smelling like alcohol.

 Mother also had a supportive parenting coach assigned to her to assist with visits but

was discharged from that program after missing three visits. Mother was scheduled to

continue with her Life Solutions social worker through June 2018. The Life Solutions

social worker thought that Mother had benefitted from services and was motivated to

regain custody of D.S.

       {¶15} D.S.’s aunt, C.J., testified that she understood that Mother and Father

retained “residual parental rights” that included the privilege of reasonable visitation.

She testified that she had always cooperated with visitation and would continue to

facilitate visits between Mother and child.

       {¶16} The child’s guardian ad litem (“GAL”) recommended that D.S. be placed in

the legal custody of C.J. The GAL noted that D.S. was doing well in C.J.’s care and,

although too young to express his wishes on placement, appeared to be comfortable and

“very happy” in C.J.’s home. Although the child had some behavioral issues, C.J. had

taken steps to ensure that the child was involved with services in the home and school to

address these issues. C.J.’s home was appropriate, she was meeting all of D.S.’s needs,

and C.J. and D.S. had formed a bond.

       {¶17} The trial court granted the agency’s motion, placing D.S. in C.J.’s legal

custody.
       {¶18} Mother filed a notice of appeal and raises two assignments of error for our

review.

       I. The trial court’s award of legal custody to a relative, despite DCFS’s
       failure to make reasonable efforts to eliminate the continued removal of the
       children from their home and to return the child to their home, violated state
       law and appellant’s right to due process of the law as guaranteed by the
       Fourteenth Amendment of the United States Constitution and Section 16,
       Article 1 of the Ohio Constitution.

       II.   The trial court’s decision to award legal custody to a relative was

       against the manifest weight of the evidence.

       {¶19} Pursuant to R.C. 2151.353(A), after a child has been adjudicated abused,

neglected, or dependent, the court may “[a]ward legal custody of the child to * * * any

other person who, prior to the dispositional hearing, files a motion requesting legal

custody of the child or is identified as a proposed legal custodian in a complaint or motion

filed prior to the dispositional hearing by any party to the proceedings.”              R.C.

2151.353(A)(3). An award of legal custody does not divest parents of residual parental

rights and responsibilities and does not permanently foreclose the right of either parent to

regain custody in accordance with the law.            In re C.R., 108 Ohio St.3d 369,

2006-Ohio-1191, 843 N.E.2d 1188, ¶ 23; see also R.C. 2151.42.

       {¶20} The court must determine the appropriateness of legal custody in accordance

with the best interest of the child as supported by a preponderance of the evidence

presented at the dispositional hearing.   See In re T.R., 8th Dist. Cuyahoga No. 102071,

2015-Ohio-4177, ¶ 44.     A “preponderance of the evidence” is “‘evidence that is more
probable, more persuasive, or of greater probative value.”’ Id., quoting In re C.V.M., 8th

Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.             The factors listed under R.C.

2151.414(D) may be instructive in determining what is in a child’s best interest in a legal

custody case. In re T.R. at ¶ 48.     Those factors include:    the interaction of the child

with the child’s parents, relatives, and caregivers; the wishes of the child, as expressed

directly by the child or through the child’s guardian ad litem; the custodial history of the

child; and the child’s need for a legally secure permanent placement.    R.C. 2151.414(D).

 A decision regarding legal custody is within the sound discretion of the juvenile court.

In re T.R. at ¶ 45.

Reasonable Efforts

       {¶21} In the first assignment of error, Mother contends that the trial court failed to

make a reasonable efforts finding in its order granting legal custody and the agency did

not make reasonable efforts at reunification.

       {¶22} R.C. 2151.419(A)(1) requires a determination as to whether the public

children’s services agency made reasonable efforts to prevent removal, to eliminate

continued removal, or to return the child safely to the home.    The agency has the burden

of proving it made reasonable efforts. Id. Pursuant to R.C. 2151.419(B), the court is

required to “issue written findings of fact setting forth the reasons supporting its

determination” and “shall briefly describe in the findings of fact the relevant services

provided by the agency to the family of the child and why those services did not prevent

the removal of the child from the child’s home or enable the child to return safely home.”
       {¶23} In this case, the court made a finding that CCDCFS made reasonable efforts.

 It also made written findings of fact supporting this determination and set forth the

relevant services provided by the agency, including “substance abuse treatment, parenting

classes, decision making, and mental health.” The court found that Mother had not

made significant progress in alleviating the cause for the removal of the child from the

home and return to the Mother’s home would be against the child’s best interest.

Although brief, the written findings of fact were sufficient in that they explained that the

reason the child could not be returned to the home was because Mother had not made

significant progress in alleviating the cause for D.S.’s removal. Moreover, the court’s

determination that the agency used reasonable efforts to reunify D.S. and his mother is

supported by the record.

       {¶24} The agency developed a case plan for Mother to address her issues with

parenting, anger management, substance abuse, and mental health.            The CCDCFS

caseworker made numerous referrals for Mother to engage in the services enumerated on

the case plan. Mother was referred to Life Solutions to address her issues with parenting

and anger management. Life Solutions offered services in the building in which Mother

lived. Mother did not go to Life Solutions until D.S. had been out of her care for 16

months.

       {¶25} Mother was also referred to Orca House, an organization Mother was

familiar with, for parenting services.   Mother did not go to Orca House for parenting

services but did go to Orca House “a couple times” between August 2016 and February
2017 to “detox” off of alcohol. She did not, however, pursue treatment for alcohol

addiction until February 2017.      Mother then completed a 30-day program and was

recommended to start intensive outpatient treatment but did not follow through and was

discharged the next month. From March 2017 to the date of the legal custody hearing in

October 2017, Mother did not re-engage in substance abuse treatment.

       {¶26} To address Mother’s issues with mental health, the agency referred her in

June 2016 to complete a psychological evaluation with the Cuyahoga County Juvenile

Court Clinic. Mother failed to show up for any of the appointments scheduled with the

court’s clinic.   The agency then made arrangements for Ohio Guidestone to come to an

agency meeting to meet with Mother and attempt to involve her with their mental health

programs. Mother did not follow through with Ohio Guidestone and they closed her

case out in September 2016. Mother re-engaged in mental health treatment shortly before

the October 2017 custody hearing, when she went to Care Alliance for counseling and

Murtis Taylor for medication. Mother began medication for depression two weeks before

the legal custody hearing.

       {¶27} In light of the above, the trial court did not err when it found that the agency

made reasonable efforts.

       {¶28} Therefore, the first assignment of error is overruled.

Manifest Weight of the Evidence
      {¶29} In the second assignment of error, Mother argues that the trial court’s

decision to grant legal custody of D.S. to his paternal aunt is against the manifest weight

of the evidence.

      {¶30} The trial court determined that D.S.’s return to Mother’s home would be

contrary to the child’s best interest; the record supports the award of legal custody as

being in D.S.’s best interest. D.S. was initially adjudicated as abused and dependent.

Mother did not substantially comply with her case plan, Father was serving a long-term

prison sentence, and D.S. was in need of a legally secure placement.

      {¶31} The agency developed a case plan for Mother and referrals were made for

her to engage in a variety of services to address her issues.          Parenting and anger

management classes were even available to her in the building she lived in; but Mother

failed to engage in services until her probation officer integrated her case plan into her

court-ordered intervention program.    Thus, Mother did not progress on her case plan

until almost a year after the agency implemented the case plan.    Moreover, it was after

Mother took parenting and anger management classes that she was arrested when she got

into an altercation with her grandmother and 13-year-old son while under the influence of

alcohol. Thus, as of the legal custody hearing, Mother was only at the early stages of

addressing her mental health, anger management, and substance abuse problems and had

not established a long period of sobriety. Mother also did not have stable housing or

employment.
       {¶32} D.S. was removed from Mother’s custody in February 2016, after he

suffered injuries to his arms, back, and face while in her care.      D.S. remained in the

custody of CCDCFS from that date until he was placed into the legal custody of his

paternal aunt.   D.S. had not been in his mother’s care for 18 months at the time of the

legal custody hearing — he was six years old when he entered agency custody and eight

years old when he achieved permanency with his aunt.

       {¶33} C.J., D.S.’s aunt, is able to provide a safe and stable home for the child.

His aunt is ensuring that he receives services to address his behavioral issues, is able to

manage these behaviors in her home, is actively involved in D.S.’s school, and is

facilitating visitation between Mother and D.S.

       {¶34} Based on the record before us, we find that the juvenile court did not abuse

its discretion in determining an award of legal custody was in the best interest of D.S.

       {¶35} We find the trial court’s decision was supported by a preponderance of the

evidence and was not against the manifest weight of the evidence.               The second

assignment of error is therefore overruled.

       {¶36} 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.




LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
