[Cite as In re K.C., 2014-Ohio-372.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: K.C.                                         C.A. Nos.      26992
       V.L.                                                        26993
       S.L.


                                                    APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
                                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
                                                    CASE Nos. DN 12 05 0347
                                                               DN 12 05 0348
                                                               DN 12 05 0349

                                 DECISION AND JOURNAL ENTRY

Dated: February 5, 2014



        WHITMORE, Judge.

        {¶1}     Appellants, Eddie L. (“Father”) and Carol L. (“Grandmother”), appeal from a

judgment of the Summit County Court of Common Pleas, Juvenile Division, that placed Father’s

minor children in the legal custody of their mother, Alicia C. (“Mother”). This Court affirms.

                                                I

        {¶2}     Father and Mother are the natural parents of V.L., born December 30, 2005, and

S.L., born April 10, 2007. Mother also has one older child, K.C., born March 10, 2003. During

the years that he lived with Mother, Father also served as a father figure to K.C. because the

child’s father played no role in his life. Father was permitted to intervene as a party in K.C.’s

case for that reason.

        {¶3}     During the several years that Father and Mother lived together, Grandmother,

who lived nearby, was the primary person who helped Mother with the children.                The
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relationship between Mother and Father was a violent one and Father apparently provided little

help with the children. Because Mother had numerous physical and mental health problems, she

had often relied on Grandmother to provide back-up childcare.

       {¶4}    During January 2012, Summit County Children Services Board (“CSB”) began a

voluntary case with this family because Mother’s mental health was not stable and CSB was

concerned about domestic violence in the home. With encouragement from the agency, Mother

ended her violent relationship with Father and petitioned the domestic relations court for a civil

protection order. After an initial emergency order, the domestic relations court issued a five-year

civil protection order that prohibited Father from having any contact with Mother or the children.

Animosity between Mother and Father’s family developed and Mother lost Grandmother as her

primary support system.

       {¶5}    Although Mother had been attending counseling, she was hospitalized during

April 2012 because she had expressed thoughts about suicide. When CSB was unable to find

suitable alternate caregivers for the three children, it filed this involuntary dependency case.1 At

that time, the children were placed in the home of Grandmother, where they remained for less

than two months. The children were later adjudicated dependent children.

       {¶6}    Shortly after Mother was released from the hospital, a dispositional hearing was

held before a magistrate to determine whether the children should be returned to her custody.

During that hearing and throughout these proceedings, Father objected to the children being

returned to Mother’s home, arguing that her unstable mental health prevented her from providing

them with a suitable home.



       1
        For reasons not clear from the record, CSB filed complaints in April 2012, which it later
dismissed, and then filed the complaints in this case in May 2012.
                                                3


       {¶7}     Based on the evidence presented at that dispositional hearing, however, including

the testimony of the licensed psychologist who had been counseling Mother, the magistrate

ordered that the children be returned to Mother’s custody. Although the trial court initially

granted Father’s motion to stay that order, it lifted the stay on June 8, 2012, and the children

returned to Mother’s custody under an order of protective supervision.

       {¶8}     For the next year, the children continued to reside with Mother. During that time,

the contentious relationship between Mother and Father’s family did not improve and Father and

Grandmother continued to accuse Mother of being unable to care for the children. They called

the caseworker frequently and called one service provider so often that it terminated the family’s

cases. Despite repeated allegations by Father and Grandmother that Mother or her boyfriend was

mistreating the children, CSB investigated each of their concerns and found them to be

unwarranted. In fact, the agency and the guardian ad litem believed that Mother had made

substantial progress on the goals of the case plan and that she was providing the children with a

stable and loving home.

       {¶9}     Grandmother moved to intervene in the action, and Father and Grandmother

alternatively moved for legal custody of the children. Grandmother’s motion to intervene was

ultimately denied, but the matter proceeded on her motion for legal custody.

       {¶10} On March 21, 2013, because the children had been residing with Mother for

nearly a year without incident, CSB moved the court to terminate the order of protective

supervision and place the children permanently in her legal custody.      Still pending before the

trial court at that time were the competing legal custody motions of Grandmother and Father.

Ultimately, the matter was transferred to the trial judge to determine the permanent disposition of

the children.
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        {¶11} Following a hearing before the trial judge, at which both CSB and the guardian ad

litem supported continuing the children in Mother’s legal custody and terminating protective

supervision, the trial court entered judgment accordingly and denied the alternate legal custody

motions of Father and Grandmother. Father and Grandmother separately appealed and their

appeals were later consolidated. Father raises four assignments of error and Grandmother raises

two, some of which are rearranged and consolidated for ease of review.

                         Grandmother’s Assignment of Error Number One

        THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
        WHEN IT OVERRULED CAROL LEWIS’ OBJECTIONS TO THE
        MAGISTRATE’S DECISION AND DENIED HER MOTION TO INTERVENE.

        {¶12} Grandmother’s first assignment of error is that the trial court erred in denying her

motion to intervene in this dependency case. Specifically, the trial court refused to grant her

motion to intervene because it concluded that she did not stand in loco parentis to the children,

nor did she ever exercise sufficient parental control over them. See In re Schmidt, 25 Ohio St.3d

331, 337 (1986). Her argument focuses solely on whether the trial court erred in concluding that

she lacked a sufficient parental role in the lives of the children to justify intervention in this case.

        {¶13} To establish reversible error by the trial court, however, Grandmother must

demonstrate not only that the trial court committed error but also that she suffered prejudice as a

result. See In re J.J., 9th Dist. Summit No. 21226, 2002-Ohio-7330, ¶ 31. Grandmother has

failed to argue or demonstrate that she was prejudiced by her lack of party status in this case.

The record reveals that Grandmother retained counsel, who filed a motion for legal custody on

her behalf, and that the trial court allowed her to participate in a hearing after which it fully

considered her motion.
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          {¶14} At the commencement of the legal custody hearing, Grandmother’s counsel

informed the court that Grandmother supported Father’s motion for legal custody and that her

motion was an alternate to his. Her counsel further stated that “I have no problem allowing

father to call witnesses and just questioning them.” The trial court allowed Grandmother’s

counsel to examine all witnesses and, later during the proceedings, allowed her to call a

disinterested witness on Grandmother’s behalf, and also permitted her to testify on her own

behalf.    Because she fails to argue or demonstrate that she suffered any prejudice by the trial

court’s denial of her motion to intervene, Grandmother’s first assignment of error is overruled.

                           Father’s Assignment of Error Number Three

          THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
          MATTER OF LAW AND COMMITTED PLAIN ERROR WHEN IT
          CONSIDERED THE GUARDIAN AD LITEM’S RECOMMENDATION TO BE
          IN THE BEST INTEREST OF THE CHILDREN EVEN AFTER SHE
          ADMITTED TO FAILING TO CONDUCT CERTAIN INVESTIGATIVE
          DUTIES, WHICH WAS ULTIMATELY PREJUDICIAL TO FATHER.

          {¶15} Because Father’s third assignment of error pertains to evidence underlying the

legal custody decision, it will be addressed out of order. Father argues that the trial court erred

by considering the recommendation of the guardian ad litem because she failed to fulfill her role

as set forth under Ohio law. Because Father failed to raise this issue in the trial court and has not

developed a plain error argument, he cannot now fault the trial court for considering the

recommendation of the guardian ad litem. See In re J.G., 9th Dist. Wayne No. 12CA0037, 2013-

Ohio-417, ¶ 20.

          {¶16} During the legal custody hearing, Father cross-examined the guardian ad litem

about whether she had fulfilled her duties and whether she had actually considered him as a

potential custodian for the children. He raised no objection to the admission of her report or

testimony, however, nor did he otherwise argue that the trial court should not consider the
                                                 6


recommendation of the guardian ad litem in making the best interest determination. Father’s

third assignment of error is overruled.

                        Grandmother’s Assignment of Error Number Two

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT DENIED [GRANDMOTHER’S] MOTION FOR [LEGAL]
       CUSTODY.

                            Father’s Assignment of Error Number One

       THE TRIAL COURT’S JUDGMENT ENTRY WAS AN ABUSE OF
       DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
       AND CONTRARY TO LAW WHEN IT GRANTED LEGAL CUSTODY TO
       MOTHER.

                           Father’s Assignment of Error Number Two

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       AWARDED CUSTODY TO MOTHER DESPITE THE FACT THAT SHE HAD
       FAILED TO SUBSTANTIALLY COMPLY WITH HER CASE PLAN
       OBJECTIVES, WHEN FATHER HAD FULLY COMPLIED.

       {¶17} We will address these three assignments of error together because they pertain to

the merits of the trial court’s conclusion that legal custody to Mother was in the children’s best

interests. Grandmother and Father argue that, rather than permanently placing the children in the

legal custody of Mother, the trial court should have granted one of their alternate motions for

legal custody.

       {¶18} Following an adjudication of neglect, dependency, or abuse, the juvenile court’s

determination of whether to place a child in the legal custody of a parent or a relative is based

solely on the best interest of the child. See In re D.R., 153 Ohio App.3d 156, 2003–Ohio–2852,

¶ 17 (9th Dist.). “Although there is no specific test or set of criteria set forth in the statutory

scheme, courts agree that the trial court must base its decision on the best interest of the child.”

In re N.P., 9th Dist. Summit No. 21707, 2004–Ohio–110, at ¶ 23, citing In re Fulton, 12th Dist.

Butler No. CA2002–09–236, 2003–Ohio–5984, ¶ 11. The trial court’s decision to grant or deny
                                                 7


a motion for legal custody is within its sound discretion and will not be reversed absent an abuse

of discretion. In re M.S., 9th Dist. Summit No. 22158, 2005–Ohio–10, ¶ 11. An abuse of

discretion implies that the court’s decision was unreasonable, arbitrary, or unconscionable.

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

       {¶19} In this case, the trial court applied the best interest test set forth in R.C. 2151.414,

but Father argues that the appropriate factors are set forth in the best interest test of R.C.

3109.04(F). Father cites no case law to support his position that the trial court applied the wrong

test and “this Court has held that the best interest test set forth in R.C. 2151.414(D), although it

relates to permanent custody, ‘provide[s] guidance’ in legal custody determinations.”          In re

B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, quoting In re T.A., 9th Dist. Summit

No. 22954, 2006–Ohio–4468, ¶ 17.

       {¶20} At the hearing, and again on appeal, rather than pointing to evidence that either of

them could provide the children with a more suitable home, Father and Grandmother have

challenged Mother’s ability to do so. Moreover, their attempt to discredit Mother’s parenting

ability has continued to focus on facts that arose before the adjudication of the children. The trial

court had already considered those facts when it adjudicated the children dependent and the

purpose of the final hearing was not to rehash those facts. See In re T.R., 9th Dist. Summit Nos.

25179 & 25213, 2010-Ohio-2431, ¶ 14. Instead, the primary focus at the legal custody hearing

was on the current parenting ability of each potential custodian and whether it was in the best

interest of the children to be permanently placed in the legal custody of any of them. See id.

       {¶21} The trial court heard very little evidence about the ability of Father or

Grandmother to provide a permanent home for the children.           In fact, even when Father and
                                                 8


Grandmother testified, they focused on attacking Mother’s parenting ability, even though they

each conceded that they had not seen Mother with the children during the past year.

       {¶22} As to Mother’s current parenting ability, Father argues only that Mother had not

fully complied with the reunification requirements of the case plan, but that he had, suggesting

that he was the more suitable custodian for the children. This Court has frequently emphasized

that “although case plan compliance may be relevant to the trial court’s best interest

determination, it certainly is not dispositive.” See, e.g., In re B.G., 9th Dist. Summit No. 24187,

2008-Ohio-5003, ¶ 21.

       {¶23} Moreover, the record reveals that, according to the caseworker, Mother had

complied with the requirements of the case plan.          The caseworker verified with Mother’s

psychiatrist that, since her hospitalization more than one year earlier, Mother had been

consistently taking her medications and attending counseling. He believed that Mother was

taking care of herself and her children and had no concerns about her ability to provide them

with a suitable permanent home.

       {¶24} The caseworker further explained that all three children have special needs,

including autism and developmental delays.           He had regularly observed Mother patiently

interacting with the children and demonstrating an understanding of their special needs. She had

been ensuring that each child was regularly engaged in services with appropriate providers and

she had been described by one service provider as “deeply involved” in the children’s services.

       {¶25} The evidence further revealed that Mother had established a reliable support

system to assist her in her care of the children. In addition to a friend and her sister, Mother had

become involved with a different man who assisted her with the children. The children liked this

man and CSB and the guardian ad litem had approved him as an alternate caregiver for the
                                                9


children. The guardian ad litem testified that she had observed the man interact appropriately

with the children during several visits to their home. She also observed that the children were

excited to see him when they returned home from visits with Father. Although V.L. had told

others that this man hit him, the caseworker and guardian ad litem did not believe his accusations

because they were contradicted by the other children and by V.L. himself.

       {¶26} The trial court interviewed the children in camera and each child told her that they

wanted to continue living with Mother and visiting Father. The guardian ad litem also testified

that she had spoken to the children about their wishes several times throughout this case. They

consistently told her that they wanted to live with Mother. The guardian had observed “a very

strong bond” between Mother and the children. Mother was affectionate with the children and

they wanted to be near her to cuddle and sit in her lap. She further opined that Mother was

meeting the children’s daily needs and that it was in their best interests to continue in Mother’s

custody on a permanent basis, without any supervision by CSB.

       {¶27} Given the evidence presented at the hearing, the trial court reasonably concluded

that it was in the best interests of K.C., V.L., and S.L. to continue in the custody of Mother.

Consequently, Father and Grandmother have failed to demonstrate that the trial court abused in

discretion by placing the children in Mother’s legal custody rather than in the legal custody of

either of them. Grandmother’s second and Father’s first and second assignments of error are

overruled.

                           Father’s Assignment of Error Number Four

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW WHEN IT REQUIRED FATHER’S INCREASED
       VISITATION TO BE CONTINGENT UPON FATHER AMENDING THE
       CIVIL PROTECTION ORDER MOTHER HAD OBTAINED AGAINST HIM
       IN DOMESTIC RELATIONS COURT PRIOR TO THE FILING OF THE
       JUVENILE COURT COMPLAINT.
                                                10


         {¶28} Father’s final assignment of error is that the trial court abused its discretion by

failing to expand his time with the children to the standard order of parenting time. See Braatz v.

Braatz, 85 Ohio St.3d 40, 45 (1998). Father argues that the juvenile court acted unreasonably by

conditioning his right to increased parenting time upon him obtaining a modification of the

existing civil protection order. We disagree.

         {¶29} In early 2012, before this case was filed, CSB encouraged Mother to end her

violent relationship with Father and obtain a civil protection order. Following a hearing, the

domestic relations court issued a five-year civil protection order that prohibited Father from

having any contact with Mother or the children.       To enable Father to visit with the children

during the pendency of this dependency case, the parents returned to domestic relations court to

jointly request a modification of that order. The domestic relations court modified the order by

transferring matters pertaining to the children to the juvenile court. The civil protection order as

it pertained to Mother remained in effect, prohibiting Father from having any contact with her.

         {¶30} After the domestic relations court transferred matters pertaining to the children,

the juvenile court granted Father weekly visitation with the children. Because Father continued

to be prohibited from having any contact with Mother, including communication via telephone or

e-mail, Father’s visitation was arranged so the two parents would have no contact with each

other.   Father continued to visit with the children under this type of arrangement for the

remainder of the case, seeing them once a week for three hours.

         {¶31} The trial court heard evidence during the legal custody hearing that it would be in

the children’s best interests to spend more time with Father. Although the trial court ultimately

agreed that Father should have expanded time as set forth in the standard parenting time order,

the trial judge expressed her concern during the hearing that the parents were prohibited by the
                                                11


protection order from communicating with each other, which seriously hindered their ability to

exchange physical custody of the children more frequently. She explained that unexpected

circumstances will inevitably arise that require adjustments to the parenting time order, such as

when the children or parents have activities that were not anticipated or addressed by the written

schedule. Without communication between the parents, she expressed concern that the parties

would continually be coming back to court for adjustments to the schedule and/or that the

children would be dropped off with one parent when no one was home. Although the trial court

reasonably believed that communication between the parents was necessary to facilitate a

standard order of visitation, it had no ability to modify the civil protection order to allow the

parents to communicate, as that authority was vested solely with the domestic relations court.

R.C. 3113.31(B) and (A)(2); R.C. 3113.31(E)(8); See also Gomez v. Dyer, 7th Dist. Noble No.

07NO342, 2008-Ohio-1523, ¶ 23.

       {¶32} Counsel for Mother stated on the record that Mother would support a modification

of the civil protection order to allow the parents to communicate via telephone, e-mail, and/or

text message to be able to keep each other informed about the children and their schedules. See

R.C. 3113.31(E)(8)(c)(i). Although Father asserts that it was unreasonable for the juvenile court

to require him to seek a modification of the order rather than Mother, because she obtained the

order in the first place, he overlooks the significant fact that the order had resulted from his own

acts of domestic violence toward Mother. See R.C. 3113.31(A)(1) and (C).

       {¶33} Given the evidence presented at the hearing, we cannot say that the trial court

acted arbitrarily or unreasonably by requiring Father to obtain a modification of the civil

protection order before his parenting time with the children would be expanded to the standard

order. Father’s fourth assignment of error is overruled.
                                                12


                                                III

       {¶34} The assignments of error of Father and Grandmother are overruled.                The

judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:

KANI HIGHTOWER, Attorney at Law, for Appellant.

SHUBHRA AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.

ALEXANDRA HULL, Attorney at Law, for Appellee.

JOSEPH KERNAN, Attorney at Law, for Guardian ad Litem.
