[Cite as In re C.B., 2018-Ohio-5303.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
 IN RE C.B., C.B., AND B.B.                     :   Hon. Patricia A. Delaney, J.
 NEGLECTED CHILDREN                             :   Hon. Earle E. Wise, Jr., J.
                                                :
                                                :   Case Nos. 18-COA-022
                                                :             18-COA-023
                                                :             18-COA-024
                                                :
                                                :
                                                :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Ashland County Court
                                                    of Common Pleas, Juvenile Division,
                                                    Case Nos. 20153046, 20153047,
                                                    20153048



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             December 26, 2018




APPEARANCES:

 For Mother-Appellant:                              For ACDJFS -- Appellee:

 EMILY M. BATES                                     CHRISTOPHER R. TUNNELL
 46 W. Main Street                                  ASHLAND COUNTY PROSECUTOR
 Ashland, OH 44805
                                                    JOSHUA T. ASPIN
                                                    110 Cottage St., 3rd Floor
                                                    Ashland, OH 44805
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                            2

Delaney, J.

       {¶1} Mother-Appellant appeals the May 9, 2018 judgment entry of the Ashland

County Court of Common Pleas, Juvenile Division. Appellee is the Ashland County

Department of Job and Family Services (“ACDJFS”).

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On October 29, 2015, ACDJFS filed complaints with the Ashland County

Court of Common Pleas, Juvenile Division alleging Mother’s three minor children were

neglected based on Mother possessing and/or using a controlled substance and not

providing adequate parental care. Mother’s three children are B.B., born on October 12,

2010, and twins, C.B. and C.B., born on August 30, 2011. Father of children was not

involved in the children’s care. The children were removed from Mother’s care on October

29, 2015.

       {¶3}   Following an adjudicatory hearing, the trial court found the children were

neglected under R.C. 2151.03(A)(2). ACDJFS requested the children be placed in the

temporary or legal custody of Maternal Aunt and Uncle. On January 21, 2016, the trial

court conducted a dispositional hearing. By judgment entry filed February 3, 2016, the

trial court declined to place the children in the custody of Maternal Aunt and Uncle. The

trial court entered a dispositional order placing the children in the temporary custody of

the ACDJFS.

       {¶4} The concern in the case was Mother’s substance abuse issues. Mother

acknowledged a lengthy history of drug abuse and depression. Mother has prior drug

convictions and in September 2015, she was indicted for felony drug possession, DUS,

and drug paraphernalia. A case plan was developed for Mother that required Mother to
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                            3


participate in drug counseling, submit to random drug tests, maintain her sobriety, and

cease any criminal activity. Mother was also required to complete a mental health

assessment and follow any recommendations.

       {¶5} On August 8, 2016, ACDJFS filed a motion for annual review and motion to

extend the temporary custody order. A hearing was held on the motion on October 3,

2016. The trial court found Mother had made progress on her case plan requirements,

especially in the area of abstaining from drug use. Mother had taken 31 drug tests and

tested negative on all tests. Mother was living with her father. Mother’s brother, a

convicted sex offender, also lived with father. The children were in the temporary custody

of ACDJFS, but ACDJFS had placed them with Maternal Aunt and Uncle since

approximately 2015. At the hearing, evidence was presented of a domestic violence

incident between Maternal Aunt and Uncle and Uncle was out of the home for

approximately six months. The Guardian Ad Litem did not support the children remaining

in the home of Maternal Aunt and Uncle. Based on the evidence, the trial court extended

the temporary custody order and the children remained in the temporary custody of

ACDJFS for an additional six months.

       {¶6} Mother had progressed in her case plan where she had in-home overnight

visitation with the children. The children were returned to Mother on January 13, 2017

and resided with Mother until February 28, 2017.

       {¶7} On May 9, 2017, ACDJFS filed a motion to modify disposition. ACDJFS

requested the trial court terminate the existing temporary custody order and grant legal

custody of the children to Maternal Aunt and Uncle.
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                              4


       {¶8} A hearing was held before the Magistrate on July 28, 2017. The following

evidence was adduced at the hearing. Mother had been participating in her case plan.

She had maintained abstinence from drugs since January 2016 and passed multiple drug

screens. She was taking Suboxone. Mother was not aware that her case plan required

that she needed a mental health assessment separate from her substance abuse

treatment, but those issues were addressed in her substance abuse treatment. Mother

broke her wrist in March 2017 and missed some sessions of group treatment. After

February 28, 2017, ACDJFS added parent education to the case plan.

       {¶9} Mother lived with her father. She was unemployed and cared for her father

full-time. Mother’s brother also resided with his father. Mother’s brother was classified as

a Tier III registered sex offender based on a 2005 conviction for two counts of rape and

two counts of gross sexual imposition. In March 2017, he was convicted in Lorain County

of vandalism, breaking and entering, and theft and convicted in Cuyahoga County of

vandalism, breaking and entering, and theft. He started his nine-month prison term on

April 10, 2017.

       {¶10} Mother told ACDJFS that her brother moved out of her father’s home on

June 21, 2016. In February 2017, ACDJFS received a report that her brother was living

in his father’s home and parked his car behind the home. ACDJFS and an officer from

the Ashland County Sheriff’s Department reported to the home on February 20, 2017.

There was evidence that the brother was present in the home, but it was undetermined if

he was living in the home. ACDJFS removed the children from Mother’s home on

February 28, 2017, based on brother’s presence in the home.
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                           5


      {¶11} There were some concerns with Mother’s visitation with children. Mother

would provide sugary treats for the children, who had dental issues, and Mother appeared

to favor one child over the other two children. Maternal Aunt supervised visitation with

Mother, but she requested that she no longer supervise visitation due to conflict between

her and Mother. ACDJFS now supervises visitation.

      {¶12} Mother was charged with Driving under FR Suspension in October 2016

and November 2016. In February 2017, Mother was charged with and found guilty of

Petty Theft because she did not pay for items through the self-checkout lane at Walmart.

The children were with Mother after she was taken to the loss avoidance room.

      {¶13} Father of the children was serving a four-year prison sentence for

aggravated robbery and robbery. His release date from prison was January 11, 2020.

      {¶14} The children had been placed with Maternal Aunt and Uncle for almost a

year and a half. Maternal Aunt and Uncle were both employed; Maternal Aunt worked at

home until the children went to school, and in the summer, the children attended a day

camp. Two children were in first grade, with one experiencing issues with reading. One

child was entering kindergarten and tested for autism, but was determined to be globally

delayed. The children’s paternal grandparents assisted with care. The children shared a

bedroom in the ranch-style home.

      {¶15} There was a domestic violence incident between Maternal Aunt and Uncle

where the children were present. Maternal Uncle left the home for six months. He

completed an alcohol treatment program and attended AA. He was tested randomly for

alcohol use and had not had any positive tests. There was another alleged incident of
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                            6


domestic violence where Uncle was accused of drinking and breaking Aunt’s nose. It was

determined Uncle was not drinking and the break to Aunt’s nose was an old injury.

       {¶16} The GAL recommended Maternal Aunt and Uncle be granted legal custody

of the children.

       {¶17} The magistrate issued her decision on September 25, 2017. The magistrate

found it was in the best interests of the children to grant legal custody to Maternal Aunt

and Uncle.

       {¶18} Mother filed objections to the Magistrate’s Decision. She argued ACDJFS

did not make reasonable efforts to prevent the continued removal of the children from the

home and did not make reasonable efforts towards reunification. She argued the

evidence showed Mother made significant progress with her case plan and therefore it

would be in the best interests of the children to be placed with Mother. ACDJFS did not

respond to Mother’s objections.

       {¶19} The trial court considered Mother’s objections and conducted an

independent review of the evidence. On April 5, 2018, in an extremely detailed and

thorough judgment entry, the trial court overruled Mother’s objections, but found the

Magistrate’s Decision did not specifically address which best interest factors of R.C.

3109.04(F)(1) applied to the case to support a finding that it was in the best interest of

the children to be placed in the legal custody of Maternal Aunt and Uncle. The trial court

remanded the matter to the magistrate to make specific findings of fact as to which best

interest factors applied to the case.

       {¶20} On April 27, 2018, the magistrate issued her findings of fact as to the best

interest factors under R.C. 3901.04(F)(1).
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                               7


       {¶21} On May 9, 2018, the trial court considered the magistrate’s findings of fact.

It found the magistrate’s decision was supported by the evidence. It accepted and

adopted the Magistrate’s Decision to grant legal custody of the children to Maternal Aunt

and Uncle. The trial court ordered incremental increases in parenting time with Mother.

       {¶22} It is from this judgment Mother now appeals.

                               ASSIGNMENTS OF ERROR

       {¶23} Mother raises three Assignments of Error:

       {¶24} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING

OF CUSTODY TO MATERNAL AUNT AND UNCLE WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶25} “II. THE TRIAL COURT ERRED IN GRANTING CUSTODY TO THIRD

PARTIES WHEN ACDJFS DID NOT MAKE REASONABLE EFFORTS TO PREVENT

THE CONTINUED REMOVAL OF THE CHILDREN FROM THE HOME.

       {¶26} “III. THE TRIAL COURT ERRED IN GRANTING CUSTODY TO THIRD

PARTIES WHEN ACDJFS DID NOT MAKE REASONABLE EFFORTS TOWARDS

REUNIFICATION OF THE CHILDREN WITH MOTHER.”

                                        ANALYSIS

                                    I. BEST INTEREST

       {¶27} Mother contends in her first Assignment of Error that the trial court erred in

finding it would be in the best interest of the children to be placed in the legal custody of

Maternal Aunt and Uncle. We disagree.
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                                8


       {¶28} Legal custody does not divest parents of residual parental rights, privileges,

and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188

at ¶ 17. Accordingly, Mother may petition the trial court in the future for a modification of

custody. Id.

       {¶29} In Ohio, the statutorily permissible dispositional alternatives in a

dependency, neglect, or abuse case are enumerated in R.C. 2151.353(A). See, e.g., In

re S.Y., 5th Dist. Tusc. No. 2011 AP04 0018, 2011–Ohio–4621, ¶ 31. In particular, R.C.

2151.353(A)(3) provides: “If a child is adjudicated an abused, neglected, or dependent

child, the court may make any of the following orders of disposition: * * * Award legal

custody of the child to either parent or 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. * * *.”

       {¶30} A trial court “must have wide latitude in considering all the evidence” and a

custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,

77 Ohio St.3d 415, 418, 1997–Ohio–260. As an appellate court, we neither weigh the

evidence nor judge the credibility of the witnesses. Our role is to determine whether there

is relevant, competent, and credible evidence upon which the finder of fact could base its

judgment. Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758,

1982 WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent,

credible evidence going to all the essential elements of the case will not be reversed as

being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                               9


       {¶31} Unlike 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 a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.

2013CA0081 & 2013CA0082, 2013–Ohio–5752, ¶ 32 (Citations omitted).

       {¶32} 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 M.T., 5th Dist. Richland No. 18CA28, 2018-Ohio-4553, 2018 WL 5920452, ¶¶ 16-20.

       {¶33} R.C. 3109.04(F)(1) mandates as follows:

       In determining the best interest of a child pursuant to this section, whether

       on an original decree allocating parental rights and responsibilities for the

       care of children or a modification of a decree allocating those rights and

       responsibilities, the court shall consider all relevant factors, including, but

       not limited to:

       (a) The wishes of the child's parents regarding the child's care;

       (b) If the court has interviewed the child in chambers pursuant to division

       (B) of this section regarding the child's wishes and concerns as to the

       allocation of parental rights and responsibilities concerning the child, the

       wishes and concerns of the child, as expressed to the court;
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                          10


     (c) The child's interaction and interrelationship with the child's parents,

     siblings, and any other person who may significantly affect the child's best

     interest;

     (d) The child's adjustment to the child's home, school, and community;

     (e) The mental and physical health of all persons involved in the situation;

     (f) The parent more likely to honor and facilitate court-approved parenting

     time rights or visitation and companionship rights;

     (g) Whether either parent has failed to make all child support payments,

     including all arrearages, that are required of that parent pursuant to a child

     support order under which that parent is an obligor;

     (h) Whether either parent or any member of the household of either parent

     previously has been convicted of or pleaded guilty to any criminal offense

     involving any act that resulted in a child being an abused child or a

     neglected child; whether either parent, in a case in which a child has been

     adjudicated an abused child or a neglected child, previously has been

     determined to be the perpetrator of the abusive or neglectful act that is the

     basis of an adjudication; whether either parent or any member of the

     household of either parent previously has been convicted of or pleaded

     guilty to a violation of section 2919.25 of the Revised Code or a sexually

     oriented offense involving a victim who at the time of the commission of the

     offense was a member of the family or household that is the subject of the

     current proceeding; whether either parent or any member of the household

     of either parent previously has been convicted of or pleaded guilty to any
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                             11


       offense involving a victim who at the time of the commission of the offense

       was a member of the family or household that is the subject of the current

       proceeding and caused physical harm to the victim in the commission of the

       offense; and whether there is reason to believe that either parent has acted

       in a manner resulting in a child being an abused child or a neglected child;

       (i) Whether the residential parent or one of the parents subject to a shared

       parenting decree has continuously and willfully denied the other parent's

       right to parenting time in accordance with an order of the court;

       (j) Whether either parent has established a residence, or is planning to

       establish a residence, outside this state.

       {¶34} The trial court remanded the matter to the magistrate to make detailed

findings as to the best interest factors the magistrate considered in granting legal custody

to Maternal Aunt and Uncle. The magistrate made the following findings as to the factors:

       1) Mother wished to regain custody of her children;

       2) The children were too young to interview, but the GAL recommended it would

          be in the best interest of the children to grant legal custody to Maternal Aunt

          and Uncle;

       3) The children were bonded with both Mother and Maternal Aunt and Uncle. They

          demonstrated love and affection to both. Maternal Aunt and Uncle have served

          as the children’s caregivers for much of the case. While in Maternal Aunt and

          Uncle’s care, the children have regular interaction with extended members of

          the family, including Paternal Grandmother;
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                              12


       4) The children’s mental, health, and educational needs were better addressed

          by Maternal Aunt and Uncle. Maternal Aunt and Uncle sought out testing and

          extra instruction for one child to address her different learning needs. The

          children had severe dental issues when they were placed in the custody of

          ACDJFS. Maternal Aunt and Uncle have addressed the children’s dental

          health;

       5) While in Mother’s care, the children were exposed to Mother’s criminal activity.

          Mother also exposed the children to her brother, a convicted sex offender;

       6) Mother stated she was unable to work because she provided full-time care for

          her father. Evidence showed Mother was sometimes overwhelmed by caring

          for her father;

       7) The was evidence of domestic violence in the home of Maternal Aunt and

          Uncle, which the children witnessed. Uncle participated in alcohol treatment

          and has tested negative on random screens; and

       8) Mother has a child support order, but has not paid her child support obligation.

       {¶35} The trial court independently reviewed the magistrate’s best interest

findings and determined they were supported by the evidence. We likewise find the

preponderance of the evidence supports the trial court’s determination it would be in the

best interest of the children that legal custody be granted to Maternal Aunt and Uncle.

       {¶36} Mother has made significant progress completing her case plan. Her

commitment to sobriety as evidenced by multiple negative drug screens is commendable.

The determination of legal custody, however, focuses on the best interest of the children.

The children have been in the temporary custody of Maternal Aunt and Uncle for the
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                             13


majority of this case. The children are bonded with Maternal Aunt and Uncle, as they are

with Mother. The children had significant dental issues when they were placed in

temporary custody of ACDJFS. Maternal Aunt and Uncle addressed those dental issues.

One child demonstrated different learning abilities, which Maternal Aunt and Uncle

addressed. After the children were placed back with Mother in January 2017, Mother

exposed the children to criminal activity and allowed the children contact with her brother,

a convicted sex offender. Mother provides care for her ailing father without support, and

her duties prevent her from working. In this case, the record supports the trial court’s

conclusion that it would be in the best interest of the children to be placed in the legal

custody of Maternal Aunt and Uncle.

       {¶37} Mother’s first Assignment of Error is overruled.

                              II. REASONABLE EFFORTS

       {¶38} Mother contends in her second Assignment of Error that the trial court erred

in granting legal custody to Maternal Aunt and Uncle when ACDJFS did not make

reasonable efforts to prevent the continued removal of the children from the home. In her

third Assignment of Error, Mother contends ACDJFS did not make reasonable efforts

towards reunification of the children and Mother.

       {¶39} R.C. 2151.419(A)(1) states, “* * * at any hearing held pursuant to section

2151.28, division (E) of section 2151.31, or section 2151.314, 2151.33, or 2151.353 of

the Revised Code at which the court removes a child from the child's home or continues

the removal of a child from the child's home, the court shall determine whether the public

children services agency * * * that filed the complaint in the case, removed the child from

home, has custody of the child, * * * has made reasonable efforts to prevent the removal
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                               14


of the child from the child's home, to eliminate the continued removal of the child from the

child's home, or to make it possible for the child to return safely home. The agency shall

have the burden of proving that it has made those reasonable efforts. * * * In determining

whether reasonable efforts were made, the child's health and safety shall be paramount.”

       {¶40} In its April 5, 2018 judgment entry overruling Mother’s objections, the trial

court initially agreed with Mother that ACDJFS did not make reasonable efforts to keep

the children in Mother’s home or prevent removal from the home after February 28, 2017,

when ACDJFS removed the children from Mother’s home because brother, a convicted

sex offender, was found to be present in the home. After February 28, 2017, the trial court

found ACDJFS expressed to Mother that reunification was no longer the goal, although

ACDJFS added a parenting class to Mother’s case plan after the February 28, 2017

incident. The trial court determined, however, it must review the entire history of the case,

not just the February 28, 2017 matter, to determine whether ACDJFS made reasonable

efforts.

       {¶41} An examination of Mother’s case plan found ACDJFS correctly identified

the issues that Mother needed to address and provided services Mother needed to utilize

for the children to return home safely. The trial court found that up until February 28, 2017,

ACDJFS did make reasonable efforts to prevent the continued removal of the children

and to finalize a permanency plan with the goal of reunification.

       {¶42} The evidence in this case supports the trial court’s decision that ACDJFS

made reasonable efforts towards reunification. Mother had regular contact with the

children, she completed most of her case plan, and she eventually progressed to

placement of the children in her home. Once the children were placed with Mother,
Ashland County, Case Nos. 18-COA-022, 18-COA-023, 18-COA-024                        15


however, two activities occurred that required removal of the children. While there was

conflicting evidence whether Mother’s brother was living in the father’s home while the

children were present, there was no dispute that the brother was present while the

children were in the home. There was also no dispute that Mother was convicted of Petty

Theft after the children were placed back in her home. The health and safety of the

children are paramount in determining whether ACDJFS made reasonable efforts.

       {¶43} Mother’s second and third Assignments of Error are overruled.

                                    CONCLUSION

       {¶44} The judgment of the Ashland County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
