[Cite as In re L.H., 2013-Ohio-5279.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
                                              :
                                              :   Hon. Sheila G. Farmer, P.J.
                                              :   Hon. John W. Wise, J.
IN RE L.H.                                    :   Hon. Patricia A. Delaney, J.
                                              :
                                              :   Case No. CT2013-0017
                                              :
                                              :
                                              :
                                              :
                                              :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Muskingum County
                                                  Court of Common Pleas, Juvenile
                                                  Division, Case No. 20730197


JUDGMENT:                                         REVERSED AND REMANDED


DATE OF JUDGMENT ENTRY:                           November 19, 2013



APPEARANCES:

For Father-Appellant:                             For Grandmother-Appellee:

JOHN D. WEAVER                                    HERBERT W. BAKER
542 S. Drexel Ave.                                301 Main St.., P.O. Box 400
Bexley, OH 43209                                  Zanesville, OH 43702-0400

                                                  For Mother-Appellee:

                                                  BARBARA CAFFARATTI
                                                  45 N. 4th St.
                                                  Zanesville, OH 43701
Muskingum County, Case No.CT2013-0017                                               2

Delaney, J.

      {¶1} Father-Appellant appeals the February 4, 2013 judgment entry of the

Muskingum County Court of Common Pleas, Juvenile Division.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} L.H., born on September 11, 2006, is the child of Father-Appellant and

Mother-Appellee. On December 20, 2007, the Muskingum County Children Services

filed a complaint with the Muskingum County Court of Common Pleas, Juvenile Division

requesting temporary custody of L.H. be granted to maternal Grandmother-Appellee or

Muskingum County Children Services due to the neglect and/or dependency of L.H.

Mother and Father had substance abuse issues, which threatened the welfare of L.H.

The trial court placed L.H. in the temporary custody of Grandmother.

      {¶3} On March 3, 2008, the trial court adjudicated L.H. a dependent child

pursuant to R.C. 2151.04(C). The trial court continued temporary custody of L.H. with

Grandmother.

      {¶4} Father filed a motion to modify disposition of legal custody on November

21, 2008. Mother filed a motion to modify disposition of legal custody on January 21,

2009. On January 21, 2009, Father filed a motion to modify legal custody to Father. On

February 2, 2009, the trial court continued temporary custody with Grandmother.

      {¶5} The trial court held a hearing on April 15, 2009 regarding the motions to

modify custody. The parties entered into an agreed shared parenting/legal custody

plan, filed May 5, 2009. Father and Mother were named the residential parents of L.H.

Both parents were granted parenting time.          Protective supervision granted to

Muskingum County Services was terminated.
Muskingum County, Case No.CT2013-0017                                                 3


       {¶6} On May 27, 2009, Grandmother filed a motion for permanent custody of

L.H. She argued that after the parents entered into the shared parenting plan, the

parents engaged in activities that threatened the well-being of L.H.

       {¶7} On June 16, 2009, the trial court ordered the shared parenting plan

suspended. Grandmother was granted temporary custody of L.H. Mother and Father

were granted parenting time with L.H.

       {¶8} On August 12, 2009, the trial court granted legal custody of L.H. to Father.

Grandmother’s motion for custody was denied.

       {¶9} On March 29, 2012, Mother filed a motion for shared parenting.

Grandmother filed a motion for permanent custody of L.H. on July 10, 2012. In the

motion, Grandmother argued custody should be granted to Grandmother due to L.H.’s

educational needs and Father’s inability to address those needs. At the time of the

motion, L.H. was six years old and entering elementary school. Grandmother argued

Father could not read or write and could not assist L.H. with his education.

Grandmother was also concerned Father was not meeting L.H.’s medical needs.

Grandmother noted Mother had achieved sobriety, gained stable employment, and was

living with Grandmother and Mother’s two other children.

       {¶10} A hearing on the motions was held on January 16, 2013. The trial court

issued its judgment entry on February 4, 2013. The judgment entry stated:

       Hearing held January 16, 2013 on the Motion of [Grandmother] for

       Custody.
Muskingum County, Case No.CT2013-0017                                               4


      The Court found that it would be in the best interest of the child that her

      Motion be granted.      [Grandmother] is therefore designated the Legal

      Custodian of [L.H.].

      The father, [Father], shall have visitation with the child pursuant to the

      Courts [sic] Standard Order.

      In as much as the mother, [Mother] is currently residing with

      [Grandmother], no visitation is ordered for her at this time.

      Until further Order of the Court, IT IS SO ORDERED.

(Judgment Entry, Feb. 4, 2013).

      {¶11} It is from this judgment Father now appeals.

                             ASSIGNMENTS OF ERROR

      {¶12} Father raises four Assignments of Error:

      {¶13} “I. THE TRIAL COURT ERRED IN MODIFYING CUSTODY WITHOUT

FINDING THAT A CHANGE OF CIRCUMSTANCES HAD OCCURRED.

      {¶14} “II. IN THE ALTERNATIVE, IF THE TRIAL COURT DID FIND A CHANGE

OF CIRCUMSTANCES, THAT FINDING WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶15} “III. THE TRIAL COURT ERRED IN AWARDING CUSTODY TO A

NONPARENT WITHOUT FIRST MAKING A DETERMINATION THAT APPELLANT

WAS AN UNSUITABLE PARENT.

      {¶16} “IV. THE TRIAL COURT’S DECISION THAT THE MODIFICATION OF

CUSTODY WAS IN THE CHILD’S BEST INTERESTS WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”
Muskingum County, Case No.CT2013-0017                                                     5


                                        ANALYSIS

                                             I.

       {¶17} In Father’s first Assignment of Error, he argues the trial court did not make

all of the required findings to modify or terminate Father’s legal custody of L.H. Father

contends that in order for the trial court to modify or terminate the disposition of placing

L.H. in Father’s legal custody, the trial court was required to find there was a change in

circumstances and it was in the child’s best interests that a change be made. In this

case, the trial court did not find a change of circumstances.

       {¶18} L.H. was adjudicated dependent by the juvenile court on March 3, 2008.

Because of that adjudication, the trial court retains jurisdiction over the child until the

child reaches age eighteen. R.C. 2151.353(E)(1). A child who is adjudicated to be

dependent may be subject to several types of orders of disposition, including placing the

child in protective supervision or awarding legal custody of the child to a party who files

a motion requesting custody under certain circumstances. R.C. 2151.353(A)(1) and (3).

       {¶19} The procedure for exercising the trial court’s authority to change legal

custody of an abused, neglected, or dependent child is delineated by statute. R.C.

2151.42(B) states:

       An order of disposition issued under division (A)(3) of section 2151.353,

       division (A)(3) of section 2151.415, or section 2151.417 of the Revised

       Code granting legal custody of a child to a person is intended to be

       permanent in nature.     A court shall not modify or terminate an order

       granting legal custody of a child unless it finds, based on facts that have

       arisen since the order was issued or that were unknown to the court at
Muskingum County, Case No.CT2013-0017                                                   6


       that time, that a change has occurred in the circumstances of the child or

       the person who was granted legal custody, and that modification or

       termination of the order is necessary to serve the best interest of the child.

       {¶20} The requirement that the trial court make a best interests and a change in

circumstances finding exists “because some degree of permanence or finality is

necessary in custody determinations.” In re L.V., 9th Dist. Summit No. 26245, 2012-

Ohio-5871, ¶ 8 citing In re J.S., 11th Dist. Lake No. 2011–L–162, 2012–Ohio–4461, ¶

27. See also Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997),

quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982)

(finding that the intent of a comparable statute, R.C. 3109.04(E)(1)(a), is “ ‘to spare

children from a constant tug of war between their parents who would file a motion for

change of custody each time the parent out of custody thought he or she could provide

the children a “better” environment.’ ”). R.C. 2151.42(B) explicitly emphasizes that an

order granting legal custody is “intended to be permanent in nature.”

       {¶21} In the present case, the trial court made no mention of a change of

circumstances, nor can any language in the trial court’s judgment entry be construed as

a finding of a change of circumstances. Due to the omitted finding, we must reverse the

judgment of the trial court for its failure to meet the specific requirements of R.C.

2151.42(B). The matter is remanded to the trial court for further proceedings consistent

with this opinion and law.

       {¶22} Father’s first Assignment of Error is sustained.
Muskingum County, Case No.CT2013-0017                                                      7

                                           II., IV.

       {¶23} Father argues in his second Assignment of Error the trial court’s decision

to modify legal custody based on a change of circumstances was against the manifest

weight of the evidence. In his fourth Assignment of Error, Father argues the trial court’s

decision it was in the best interests of the child to modify legal custody was against the

manifest weight of the evidence. Based on our reversal and remand of the trial court’s

decision pursuant to the requirements of R.C. 2151.42(B), a ruling on these

Assignments of Error would be premature.

                                             III.

       {¶24} Father contends in his third Assignment of Error the trial court erred when

it failed to make a specific finding of parent unsuitability before granting legal custody to

a non-parent. We disagree.

       {¶25} 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 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
Muskingum County, Case No.CT2013-0017                                                            8

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.

          {¶26} In re C.R. negates the need for an unsuitability determination at the

dispositional hearing. Father argues In re C.R. is distinguishable from the present case

because at a post-dispositional hearing, the trial court granted legal custody to Father.

By granting legal custody to Father, the trial court implicitly found Father to be a suitable

parent.      In order to modify legal custody, Grandmother was required to establish

Father’s current unsuitability in order to obtain legal custody of L.H.

          {¶27} In In re L.M., 2nd Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, the

Second District Court of Appeals analyzed the question of whether, in the post-

dispositional hearing context, non-parents seeking legal custody of child previously

adjudicated abused and/or dependent were required to establish parental unsuitability in

order to obtain custody.1 In that case, the mother appealed a juvenile court’s decision

to grant legal custody of her children to non-parents at a post-dispositional hearing.

          {¶28} The facts giving rise to the appeal were as follows. After a complaint by

Children Services, the trial court adjudicated the mother’s three children abused and/or

dependent based on the mother’s drug addiction. Id. at ¶ 2. The trial court awarded

legal custody of the three children to the grandparents.                   Id.   The mother filed a

complaint to regain custody of her three children. The aunt and uncle filed a complaint

to seek legal custody of two of the children. Id. at ¶ 3. The trial court granted legal

custody of the two children to the aunt and uncle. Id. at ¶ 13.




1
    Appeal not allowed, In re L.M., 130 Ohio St.3d 1475, 2011-Ohio-6124, 957 N.E.2d 1168.
Muskingum County, Case No.CT2013-0017                                                   9


      {¶29} The mother argued on appeal the trial court was required to grant her

legal custody absent evidence she was then an unsuitable parent. Id. at ¶ 17. The

Second District disagreed. It held:

             [The mother] seeks to distinguish In re C.R. on the basis that it

      negated the need for an unsuitability determination at the dispositional

      hearing. As set forth above, the dispositional hearing in the present case

      long ago resulted in [the grandparents] receiving legal custody.          The

      matter then returned to the trial court on competing requests by [the

      mother] and [the aunt and uncle] to modify the initial disposition by

      granting them legal custody. In this post-dispositional hearing context,

      [the mother] asserts that In re C .R. does not apply and that [the aunt and

      uncle], as non-parents, were required to establish her current unsuitability

      in order to obtain custody instead of her. We disagree.

             Despite [the mother’s] progress as a parent, the fact remains that

      the trial court previously adjudicated L.M. and J.J. abused and/or

      dependent based primarily on her drug addiction.          As a result of that

      adjudication, the trial court retains jurisdiction over the children until they

      reach age eighteen.       R.C. 2151.353(E)(1).       In the exercise of its

      continuing jurisdiction, the trial court is permitted to change the legal

      custody order it entered at the dispositional hearing. The procedure for

      exercising this authority is delineated by statute. Under R.C. 2151.42(B),

      a trial court cannot modify or terminate a prior dispositional order awarding

      legal custody of an abused, neglected, or dependent child unless it finds
Muskingum County, Case No.CT2013-0017                                                   10


       “based on facts that have arisen since the order was issued or that were

       unknown to the court at that time, that a change has occurred in the

       circumstances of the child or the person who was granted legal custody,

       and that modification or termination of the order is necessary to serve the

       best interest of the child.” Notably, nothing in R.C. Chapter 2151 requires

       a non-parent to establish current parental unsuitability when seeking to

       modify a prior dispositional order in abuse, neglect, or dependency cases.

       As the Ohio Supreme Court has recognized, “no statute requires a finding

       of parental unfitness as a prerequisite to an award of legal custody in

       cases where a child is adjudged abused, neglected, or dependent.” In re

       C.R., ¶ 21. This remains true even when, as in the present case, a non-

       parent competes for legal custody against a biological mother after the

       initial dispositional order. In re I.S., A.S., T.S., K.S., Summit App. No.

       24763, 2009–Ohio–6432, ¶ 9–20. The fact that a parent implicitly found

       unsuitable by an abuse/dependent adjudication, may now be a suitable

       parent does not necessarily entitle her to regain legal custody of L .M. and

       J.J. In re B.J., Hamilton App. No. C–081261, 2009–Ohio–6485, ¶ 3–26.

       Her second assignment of error is overruled.

Id. at ¶ 19-20.

       {¶30} In the present case, while the trial court failed to make the required finding

of a change of circumstances before modifying legal custody, the trial court was not

required to make a finding of parental unsuitability before awarding legal custody to a

non-parent.
Muskingum County, Case No.CT2013-0017                                               11


       {¶31} Father’s third Assignment of Error is overruled.

                                     CONCLUSION

       {¶32} The first Assignment of Error of Father-Appellant is sustained.       The

second and fourth Assignments of Error of Father-Appellant are premature, based on

our decision in the first Assignment of Error. The third Assignment of Error of Father-

Appellant is overruled.

       {¶33} Accordingly, the judgment of the Muskingum County Court of Common

Pleas, Juvenile Division is reversed and the matter is remanded to the trial court for

further proceedings consistent with this opinion and law.

By: Delaney, J.,

Farmer, P.J. and

Wise, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. SHEILA G. FARMER



                                        HON. JOHN W. WISE
