[Cite as In re K.Q., 2018-Ohio-906.]


                                       IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                       ASHTABULA COUNTY, OHIO


IN THE MATTER OF:                                  :      OPINION
K.Q., NEGLECTED CHILD.
                                                   :
                                                          CASE NO. 2017-A-0060
                                                   :

                                                   :

Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case
No. 16 JC 97.

Judgment: Affirmed.


April R. Grabman, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Appellant – Kristina Sanders).

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047; and Margaret A. Draper, Assistant Prosecutor ACCSB, 3914 C Court,
Ashtabula, OH 44004 (For Appellee – Ashtabula County Children Services Board).

Linda Silakoski, 8 North State Street, Suite 400, Painesville, OH 44077 (Guardian ad
litem).



CYNTHIA WESTCOTT RICE, J.

          {¶1}   Appellant, Kristina Sanders, appeals from the judgment of the Ashtabula

County Court of Common Pleas, Juvenile Division, terminating temporary custody and

awarding legal custody of her daughter, K.Q., to a third party, Michelle Diemer. At issue

is whether the trial court abused its discretion when it entered the foregoing order. We

affirm.
        {¶2}    In April 2016, an abuse complaint was filed in Ashtabula County Juvenile

Court by Ashtabula County Children’s Services Board (“ACCSB”).                   A complaint for

temporary custody of K.Q. was subsequently filed, which was granted by the trial court.

On May 2, 2016, a motion for ex parte placement with a third party, Ms. Diemers, was

filed. The motion was granted on June 9, 2016. Prior to granting the motion, the court

held a hearing and found K.Q. to be a dependent child and ordered her to remain in the

custody of ACCSB. ACCSB later filed a motion to terminate temporary custody and

grant legal custody to Ms. Diemers. A hearing was held, at which the following facts

were adduced:

        {¶3}    K.Q., D.O.B. April 29, 2008, is the child of appellant and Ramone

Quinones. Appellant is the mother of five children, in total. None of the children are in

appellant’s care. K.Q. has certain developmental disabilities and is described as a low-

functioning, autistic child. Due to concerns regarding appellant’s ability to care for K.Q.,

she surrendered custody of the child to Roy Sanders, appellant’s husband from whom

she is separated.1 Mr. Sanders enrolled K.Q. in Happy Hearts School Program, a

facility that assists in the academic and occupational education of physically and

mentally disabled children, for the 2015-2016 school year.                The facility is operated

through the Ashtabula County Board of Developmental Disabilities.

        {¶4}    K.Q. was eight years old at the beginning of the academic year and school

officials observed numerous concerns with K.Q.’s intellectual as well as physical

condition; to wit: she was non-verbal, had low weight, was unable to feed herself, she

drank from a bottle, and lacked toilet training. K.Q. was frequently absent in the fall of

2015 and stopped attending school in November 2015. She resumed school in March

1. The date appellant surrendered custody is not clear from the record.


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2015; even though the program provided transportation, K.Q. missed a total of 94 days

over the academic year. Due to the significant absences as well as the child’s physical,

occupational, and educational deficits, ACCSB opened a case file for K.Q. And, in April

2016, the abuse complaint was filed in the trial court along with a complaint for

temporary custody.2 On June 9, 2016, K.Q. was ultimately placed with Ms. Deimer, who

was her teacher at Happy Hearts.

        {¶5}    Jada Rosado, ongoing caseworker at ACCSB, commenced working with

the family in June 2016 and a case plan was developed for appellant. Pursuant to the

plan, appellant was to obtain mental health services, obtain and maintain housing, and

maintain an income. At the time of the hearing, appellant had neither obtained nor

maintained housing.         She had applied and been accepted for housing through the

Ashtabula Metropolitan Housing Authority; because, however, appellant claimed she

required a three-bedroom home, she remained on a waiting list. Appellant was residing

with a family member during the pendency of the proceedings. Moreover, appellant was

not working and, while she had obtained a mental health evaluation and services, Ms.

Rosado noted her participation was sporadic.

        {¶6}      Ms. Diemer testified she first met K.Q. in November 2015, when the child

was enrolled at Happy Hearts. Ms. Diemer noted K.Q. was initially aggressive with

others; she would spit, scratch, head-butt, throw things, and destroy property. The

program’s director, Patrick Guliano, recommended K.Q. see a doctor concerning her

behavior. An appointment was ultimately made in March 2016. K.Q. did not attend

school between November 2015 and March 2016.


2. At the time the complaint was filed, K.Q. was residing with Mr. Sanders, along with nine other children,
including K.Q.’s four siblings, of whom Mr. Sanders had legal custody.


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       {¶7}    While in Ms. Diemer’s care, K.Q. developed a relationship with Ms.

Diemer’s two children. She learned to feed herself, gained weight, and used the toilet

independently.     K.Q. additionally started speaking, learned to write her name,

acknowledge colors, numbers, and recognize various sight words. Ms. Diemer also

taught K.Q. to drink from a straw, take baths, and dress herself.

       {¶8}    Moreover, Ms. Diemer testified K.Q. is getting along with other students

and participating in school. According to Ms. Diemer, however, K.Q. does not deal well

with change.     If an interruption in her routine occurs, she becomes withdrawn and

aggressive. And, Ms. Diemer testified, upon returning from visits with appellant, she is

visibly upset and does not listen.

       {¶9}    Mr. Guliano, Director of Happy Hearts, testified that, since K.Q. was

placed with Ms. Diemer, she has been absent only four times; moreover, she has

mastered her IEP goals.      Before being under Ms. Diemer’s care, he testified, the

program was unable to place K.Q. on an IEP because her deficits were so profound she

was “un-scoreable” (i.e., she was incapable of participating in the evaluations necessary

to construct an IEP).

       {¶10} At the time of the hearing, appellant was living in Conneaut, Ohio. She

testified the living arrangement was not permanent.       She noted she did not have

custody of K.Q. when ACCSB became involved with the child. She recognized her case

plan goals and acknowledged she was approved for housing, but was on a waiting list;

moreover, she was receiving mental health services, but had transportation issues.

Appellant was in the process of purchasing a vehicle, but did not have a valid driver’s

license or insurance.     Appellant asserted she was seeking employment, but was




                                            4
unemployed at the time of the hearing. Appellant conceded she was happy with the

progress K.Q. had made while in Ms. Diemer’s care.

       {¶11} Linette Butts, appellant’s case manager, assisted appellant in her attempts

to find housing and employment. She provided transportation for appellant to visit her

children. According to Ms. Butts, appellant was diligently attempting to resolve her

housing and employment issues. Nevertheless, appellant had been seeking housing for

nearly a year and had only one part-time, seasonal job (with a tax company) since Ms.

Butts was assigned to her case. Ms. Butts also noted appellant had applied for Social

Security Disability, but was not yet receiving benefits.

       {¶12} After hearing the evidence, the trial court granted legal custody of K.Q. to

Ms. Diemer, finding the placement was in the best interest of the child. Appellant now

appeals assigning the following error:

       {¶13} “The trial court erred by awarding legal custody to a third-party non-

relative as such award of legal custody was not in the child’s best interest and not

based on a preponderance of the evidence and, therefore an abuse of discretion.”

       {¶14} A juvenile court’s judgment granting legal custody is reviewed under an

abuse-of-discretion standard. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶25.

“Regarding this standard, we recall the term ‘abuse of discretion’ is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record.” In

re L.L.S., 11th Dist. Portage No. 2016-P-0068, 2017-Ohio-7450, ¶20.

       {¶15} “When a child is adjudicated a dependent child, the juvenile court may, as

its dispositional order, place the child under the protective supervision or temporary

custody of a children services agency, or award legal custody of the child to a third




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party.” In re Yates, 11th Dist. Geauga No. 2008-G-2836, 2008-Ohio-6775, ¶29. “‘Legal

custody’ means a legal status that vests in the custodian the right to have physical care

and control of the child and to determine where and with whom the child shall live, and

the right and duty to protect, train, and discipline the child and to provide the child with

food, shelter, education, and medical care, all subject to any residual parental rights,

privileges, and responsibilities.”    R.C. 2151.011(B)(21).      Although legal custody is

intended to be permanent in nature, R.C. 2151.42(B), it “is not as drastic a remedy as

permanent custody because a parent retains residual rights and has the opportunity to

request the return of the children.” In re Memic, 11th Dist. Lake Nos. 2006-L-049, 2006-

L-050, and 2006-L-051, 2006-Ohio-6346, ¶24 (citations omitted); In re C.R., supra, at

paragraph one of the syllabus.

       {¶16} In considering a disposition of legal custody, R.C. 2151.353(A)(3) does not

list specific factors a court should consider in deciding what is in the child’s best interest.

In re B.P., 3rd Dist. Logan No. 8-15-07, 2015-Ohio-5445, ¶20, citing In re N.P., 9th Dist.

Summit No. 21707, 2004-Ohio-110, ¶23, citing In re Fulton, 12th Dist. Butler No.

CA2002-09-236, 2003-Ohio-5984, ¶11. This court has observed, however, “[w]hen a

court makes a custody determination under R.C. 2151.353, it must do so in accordance

with the best interest of the child standard as set forth in R.C. 3109.04.” Memic, supra,

at ¶26; see also Yates, supra, at ¶36. The trial court made detailed findings under the

best interest considerations set forth under R.C. 3109.04(F).            We shall therefore

consider whether the court’s findings and conclusion are reasonable and consistent with

the record.




                                              6
       {¶17} Appellant asserts the trial court abused its discretion in placing her in the

legal custody of Ms. Diemer because it was in K.Q.’s best interest to remain in the

temporary custody of ACCSB. She maintains she opposed the placement because she

is working on completing her case plan and, as such, the court should have extended

temporary custody towards the end of reunification. Appellant also contends the trial

court’s decision was unreasonable because it relied upon the guardian ad litem’s

recommendation that K.Q. be placed with Ms. Diemer.                Appellant underscores,

however, that the guardian ad litem did not observe appellant and K.Q. interact.

Appellant further asserts the court did not give adequate weight to the bond K.Q. had

established with appellant as well as her four siblings. Appellant appears to claim that,

even though K.Q.’s siblings are in foster care, her best interest will be served if she

remains in the custody of ACCSB because there would be a possibility she could

actively interact with her full biological family during visits.

       {¶18} We first point out appellant cites the best interest factors set forth under

R.C. 2151.414(D), which generally pertain to cases where the termination of parental

rights is the issue. While courts have noted these factors can be instructive, this court

has determined that subsection is inapplicable to legal custody placements under R.C.

2151.353(A)(3). In Yates, supra, this court observed:

       {¶19} A plain reading of R.C. 2151.414(D) demonstrates that it does not
             apply to the present situation[, i.e. an award of legal custody]. The
             factors contained in R.C. 2151.414(D) become operative when the
             “best interest” of the child is considered within the context of a
             possible grant of “permanent custody” to a children services agency
             or a “planned permanent living arrangement” with such an agency.
             R.C. 2151.353(A)(4) and (5). Consistent with this reading of the
             statute, the Ninth District * * * [in In re R.R, 9th Dist. Summit No.
             23641, 2007-Ohio-4808,] merely characterized the factors
             contained in R.C. 2151.414(D) as factors that “may provide



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             guidance.” 2007-Ohio-4808, at ¶12. Nothing in the R.R. decision
             suggests that consideration of these factors is mandatory.

      {¶20} [Moreover,] prior decisions of this court * * * have held that “[w]hen
            a court makes a custody determination under R.C. 2151.353, it
            must do so in accordance with the best interest of the child
            standard as set forth in R.C. 3109.04.” In re Ratliff, [171 Ohio
            App.3d 55,] 2007–Ohio–1770, at ¶ 32 [(11th Dist.)], citing Memic,
            2006–Ohio–6346, at ¶ 26 (citations omitted); In re Poling, 64 Ohio
            St.3d 211, 1992-Ohio-144, at paragraph two of the syllabus
            (“[w]hen a juvenile court makes a custody determination under R.C.
            * * * 2151.353, it must do so in accordance with R.C. 3109.04”).
            “Under this standard, there is no definitive test or set of criteria for
            the court to apply, rather, a court ‘should consider the totality of the
            circumstances, including, to the extent they are applicable, the best
            interest factors set forth in R.C. 3109.04(F).” Memic, 2006–Ohio–
            6346, at ¶ 26, citing In re Pryor (1993), 86 Ohio App.3d 327, 336,
            620 N.E.2d 973; In re Mitchell, 11th Dist. Nos.2002–L–078 and
            2002–L–079, 2003–Ohio–4102, at ¶ 14 (“[i]n determining the best
            interest of the child in a custody proceeding incident to a
            dependency action, there does not appear to be any definitive test
            or set of criteria to apply”).Yates, supra, at ¶35-36.

      {¶21} Because appellant’s arguments are framed by reference to R.C.

2151.414(D), they do not directly attack the trial court’s analysis. Nevertheless, there is

some overlap between that subsection and R.C. 3109.04(F) and, as stated in Yates, a

court must consider the totality of the circumstances. Accordingly, appellant’s use of

the R.C. 2151.414(D) factors does not necessarily undermine the substantive points of

her arguments.

      {¶22} We shall now address appellant’s arguments. With respect to appellant’s

compliance with her case plan, the trial court noted:

      {¶23} Although mother’s case manager characterized mother’s efforts
            towards her case plan goals as diligent, mother has failed to
            adequately address these concerns as of the date of the hearing.
            Mother has not obtained housing, and continued on a waiting list at
            the time of the hearing despite being on a list for housing for at
            least several months. Mother testified that she resides * * * in
            Conneaut, Ohio, but that is not a permanent address. Mother lives



                                            8
              in that residence with another family member who provides her with
              some amount of support.

       {¶24} Mother was not working but had sought employment. She has
             worked seasonal jobs in the past. She testified that she supported
             herself with disability income and food stamps, but subsequent
             testimony clarified that her disability application remained pending
             and mother had received no such benefits as of the date of the
             hearing in this case.

       {¶25} Mother has been addressing her need for transportation by making
             plans for repairs for a recently purchased vehicle. Mother lacked a
             valid driver’s license, and did not have insurance as of the hearing
             date.

       {¶26} Mother participated in a Signature Health evaluation but her
             participation with recommended services, including therapy, was
             sporadic. Mother had future appointments scheduled at the time of
             the hearing. Mother had a case manager at that time as well, and
             mother’s case manager testified favorably about mother’s
             commitment and ability to parent.”

       {¶27} The trial court thoroughly considered appellant’s efforts to meet her case

plan goals. Although appellant’s efforts do not directly bear on the child’s best interest,

they are certainly relevant to whether reunification is reasonably foreseeable and

plausibly possible. As the trial court identified, even though there was some evidence to

show appellant was making some effort, at the time of the hearing, none of the salient

issues had been fully addressed. In this respect, and even though mother vehemently

expressed her wish for temporary custody to persist, the trial court made the reasonable

determination that K.Q.’s best interest, especially in light of the child’s deficits and need

for consistency, would not be served by remaining in ACCSB’s temporary custody.

       {¶28} In any event, the trial court fully considered the nuances of appellant’s

living situation and her ostensible ability and motivation to stabilize her life as required

by the case plan. Given appellant’s minimal actual progress, the court could reasonably




                                             9
conclude that keeping K.Q. in the temporary custody of ACCSB was, under the

circumstances, contrary to her best interest. In light of the significant advancements

K.Q. has experienced in the care of Ms. Diemer, the court did not abuse its discretion in

not giving appellant’s efforts greater weight.

       {¶29} Next, appellant takes issue with the court’s reliance on the guardian ad

litem’s strong recommendation that Ms. Diemer be given legal custody.            Appellant

asserts this reliance is misplaced because the guardian ad litem failed to observe her

interactions with K.Q. In considering the guardian ad litem’s recommendation, the court

noted K.Q.’s mental and physical condition when ACCSB became involved and K.Q’s

significant improvement since ACCSB and Ms. Diemer became involved.                  Even

assuming the guardian ad litem did not observe appellant’s interaction with K.Q., the

court was permitted to consider her recommendation and, in light of the remarkable

strides the child has made with Ms. Diemer, we fail to see how the recommendation

somehow lacked credibility or was otherwise problematic.

       {¶30} Appellant finally asserts the trial court’s judgment was contrary to K.Q.’s

best interest because it “significantly hinders [her] relationship with her siblings.” Even

though K.Q. may have been raised with her siblings prior to ACCSB’s involvement,

there was no evidence presented that her interaction with the siblings was so

meaningful or important that her best interests would be undermined by granting Ms.

Diemer placement.      Indeed, the quality and quantity of K.Q.’s interaction with her

immediate family was not explored in any great detail.               Moreover, appellant

acknowledges that three of K.Q.’s siblings are currently in foster care. As such, even if

the agency retained temporary custody, it is unclear how appellant would, or even




                                             10
could, consistently coordinate interaction with all siblings. We therefore fail to see how

K.Q.’s previous interaction with appellant and her siblings militates against the trial

court’s determination.

      {¶31} The trial court fully considered all relevant factors under R.C.

3109.04(F)(1). The court’s findings were supported by the evidence received at the

hearing and its legal conclusion was, under the totality of the circumstances, eminently

reasonable. We therefore hold the trial court did not abuse its discretion in in granting

legal custody to Ms. Diemer.

      {¶32} Appellant’s assignment of error is without merit.

      {¶33} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas, Juvenile Division, is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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