[Cite as In re E.A., 2013-Ohio-1193.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99065




                                    IN RE: E.A., ET AL.
                                      Minor Children

                                   [Appeal By K.A., Mother]




                                        JUDGMENT:
                                         AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                      Juvenile Division
                     Case Nos. AD 12906499, AD 12906500, AD 12906501


        BEFORE: Kilbane, J., S. Gallagher, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEY FOR APPELLANT

Betty C. Farley
17316 Dorchester Drive
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEES

For C.C.D.C.F.S.

Timothy J. McGinty
Cuyahoga County Prosecutor
Tammy L. Semanco
Assistant Prosecuting Attorney
4261 Fulton Parkway
Cleveland, Ohio 44144

Guardian ad Litem

Thomas Kozel
P.O. Box 534
North Olmsted, Ohio    44070
MARY EILEEN KILBANE, J.:

      {¶1} Mother-appellant, K.A. (“mother”), appeals from the juvenile court’s

decision awarding legal custody of her minor children, Eri.A., Ery.A., and Eb.A., to their

paternal aunt and uncle. For the reasons set forth below, we affirm.

      {¶2} In April 2012, appellee, the Cuyahoga County Department of Children and

Family Services (“CCDCFS”) filed a complaint requesting legal custody of the children

be awarded to the paternal aunt and uncle. The complaint alleged that: (1) mother has a

substance abuse problem; (2) mother physically abused Ery.A.; and (3) all three children

were neglected. An adjudicatory hearing was held on the matter in July 2012. At this

hearing, mother admitted to an amended complaint read in open court. The court found

Eri.A. and Eb.A. to be dependent and Ery.A. to be abused.

      {¶3} In August 2012, the juvenile court held a dispositional hearing on the

matter.   Mother’s admissions and the testimony provided at the hearing were

incorporated into evidence. Kate McBride (“McBride”), the assigned CCDCFS social

worker, provided additional testimony. McBride testified that she was assigned to this

case in April 2012, after mother was arrested for punching her four year-old, Ery.A., in

the face. As a result of this incident, mother was convicted of domestic violence, child

endangering, and drug possession. CCDCFS then placed all three children with the

paternal aunt and uncle, and they have remained in their home since that time. McBride

testified the children are doing well with the paternal aunt and uncle and, over the years,

have resided with them on six different occasions. McBride spoke to the children about
their current situation. While 16-year-old Eb.A. indicated to McBride that she wanted to

return to her mother, 14-year-old Eri.A. indicated that she wanted to stay with her aunt

and uncle because her mother made Eri.A. assist her in selling drugs. McBride testified

that mother regularly visited with her children while in the custody of the aunt and uncle,

but she did not assist in their care.

       {¶4} CCDCFS maintained an open case with mother from 2004 to 2011,

primarily due to mother’s drug abuse, her repeated episodes in treatment, and subsequent

arrests.   From 2006-2010, Eb.A. and Eri.A. were either in court-ordered protective

supervision or temporary custody.       Mother has another child that was placed in

permanent custody in 2008, due in part to her substance abuse problem.

       {¶5} During the seven years of CCDCFS involvement, mother completed four

inpatient treatment programs, and received five referrals to intensive outpatient programs.

 She completed only two intensive outpatient referrals.        Mother failed to maintain

sobriety following the completion of these programs. In addition to her recent criminal

conviction, mother had been convicted in four other criminal cases involving drugs,

between 2010 and 2012. Mother was sentenced to two years of probation in her most

recent case.

       {¶6} McBride testified the alleged father of Ery.A. has not established paternity

and has not contacted CCDCFS. The father of Eb.A. and Eri.A. has not provided any

care or support for his children and indicated to McBride that he wants his children to

stay with the paternal aunt and uncle. McBride further testified that she did not have any

concerns regarding the aunt and uncle’s ability to provide for the children.
       {¶7} McBride further testified that mother recently participated in substance

abuse treatment for approximately 20 days. She completed parenting classes as required

by her current case plan. McBride also testified that mother’s scheduled weekly drug

screens while on probation and two random drug screens by CCDCFS had negative

results.

       {¶8} At the conclusion of the hearing, the juvenile court ordered that the children

be placed in the legal custody of the paternal aunt and uncle. The court stated that:

       This case has been going on in one form or another since 2004. * * * [I]n
       considering the factors in R.C. 2151.353 and then looking at the standard
       factors in 2151.414(D)(1), these facts would lay in favor of the prayer for
       legal custody. * * * While the Court tends to give a lot of weight to the
       opinions of 16-year-old kids in these cases, * * * but in this particular
       case[,] we have what is a dysfunctional relationship for a very long time.
       According to the testimony that was undisputed, the children have been
       with their aunt and uncle over the course of their life on six separate
       occasions. * * * [T]he Court * * * finds that the need for permanency is
       the most compelling thing here. Therefore, the Court grants this prayer for
       legal custody to [the paternal aunt and uncle] of all three children. The
       Court finds simply that this is in the best interest of these children. The
       Court finds the custodial issue, the wishes of the two youngest children, the
       need for legally secure placement, the recommendation of the guardian ad
       litem, and the factors in division (E). Which again, technically, I’m not
       required to go through those, but I would say the chronic mental chemical
       dependency, the parental rights termination and the extreme history here
       with [CCDCFS] since 2004, which would be another factor.

       {¶9} Mother now appeals, raising the following two assignments of error for

review.

                            ASSIGNMENT OF ERROR ONE

       The trial court[’s] decision to grant legal custody of the children to the
       paternal aunt and uncle was not based on a preponderance of the evidence
       and therefore constitutes an abuse of discretion.

                           ASSIGNMENT OF ERROR TWO
      The trial court’s decision to grant legal custody of the children to the
      paternal aunt and uncle was against the manifest weight of the evidence.

                                   Standard of Review

      {¶10} A trial court enjoys broad discretion in custody proceedings because

“custody issues are some of the most difficult and agonizing decisions a trial judge must

make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

Thus, on appeal, a trial court’s custody determination will not be disturbed unless the

court abused that discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846

(1988).   An abuse of discretion “‘implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

      {¶11} Legal custody is defined by R.C. 2151.011(B)(21) as follows:

      [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.
      {¶12} Legal custody is significantly different than the termination of parental

rights — despite losing legal custody of a child, the parents of the child retain residual

parental rights, privileges, and responsibilities.   R.C. 2151.353(A)(3)(c).     For this

reason, the standard the trial court uses when making its determination is “preponderance

of the evidence.”      In re C.V.M., 8th Dist. No. 98340, 2012-Ohio-5514, ¶ 7.

Preponderance of the evidence means “evidence that’s more probable, more persuasive,

or of greater probative value.”    Id., quoting In re D.P., 10th Dist. No. 05AP-117,

2005-Ohio-5097.
        {¶13} “Unlike R.C. 2151.414(D), which sets forth specific factors that the court

must consider before terminating parental rights and granting permanent custody, R.C.

2151.353(A)(3) does not independently set forth factors that the court should consider for

determining the child’s best interests in a request for legal custody.” In re G.M., 8th

Dist. No. 95410, 2011-Ohio-4090, ¶ 16. Thus, the factors in R.C. 2151.414(D) are

instructive when making a best-interest-of-the-child determination. Id.; In re M.J.M., 8th

Dist. No. 94130, 2010-Ohio-1674, ¶ 16. The statute instructs the court to consider:

        (a) The interaction and interrelationship of the child with the child’s
        parents, siblings, relatives, foster caregivers and out-of-home providers, and
        any other person who may significantly affect the child;

        (b) The wishes of the child, as expressed directly by the child or through the
        child’s guardian ad litem, with due regard for the maturity of the child;

        (c) The custodial history of the child, including whether the child has been
        in the temporary custody of one or more public children services agencies
        or private child placing agencies for twelve or more months of a
        consecutive twenty-two month period * * *;

        (d) The child’s need for a legally secure permanent placement and whether
        that type of placement can be achieved without a grant of permanent
        custody to the agency;

        (e) Whether any of the factors in divisions (E)(7) to (11) of this section
        apply in relation to the parents and child.1 R.C. 2151.414(D)(1).

         These additional factors include: whether a parent has continuously and repeatedly failed to
        1


substantially remedy the conditions causing the child to be placed outside the child’s home, and has
utilized available resources; whether a parent has chronic chemical dependency that is so severe that it
makes the parent unable to provide an adequate permanent home for the child at the present time;
whether the parent has been convicted of or pleaded guilty to certain listed offenses (which are
offenses of violence, sex offenses, or offenses against children); whether the parent has repeatedly
withheld medical treatment or food from the child when the parent has the means to provide the
treatment or food; whether the parent has placed the child at substantial risk of harm two or more
times due to alcohol or drug abuse and has rejected treatment two or more times; whether the parent is
repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the
child; whether the parent for any reason is unwilling to provide food, clothing, shelter, and other basic
        {¶14} In the first assignment of error, mother argues the juvenile court’s decision

to grant legal custody of the children to the paternal aunt and uncle was not based on the

preponderance of the evidence and constituted an abuse of discretion. In the second

assignment of error, she argues that the juvenile court’s decision is against the manifest

weight of the evidence.            Mother contends that by completing her case plan and

maintaining regular visits and negative drug screen, she demonstrated that she is able to

provide for her children.

        {¶15} A review of the record, however, demonstrates that a preponderance of the

evidence existed to support an award of legal custody to the paternal aunt and uncle.

Mother admitted that she has a criminal history of drug convictions. Most recently, in

March 2012, she was convicted and placed on probation for domestic violence for hitting

Ery.A. in the face and drug possession. Mother also admitted that she has a substance

abuse problem. Eri.A. indicated that she had to assist her mother in selling drugs.

        {¶16} CCDCFS maintained an open case with mother from 2004 to 2011. From

2006-2010, Eb.A. and Eri.A. were either in court-ordered protective supervision or

temporary custody.           Mother admitted that she has another child who was placed in

permanent custody in 2008, due in part to her substance abuse problem. During the

seven years of CCDCFS involvement, mother completed numerous inpatient and

outpatient programs, but continued to relapse and received five referrals to intensive

outpatient programs.



necessities for the child.
       {¶17} The fathers of the children did not provide care or support, and Eb.A. and

Eri.A.’s father indicated the children should stay with the paternal aunt and uncle.

Furthermore, the aunt and uncle provided the children with appropriate care and shelter,

and Eri.A. wanted to stay in their custody. Over the years, the children have resided with

them on six different occasions and have been continuously with them since April 2012,

now almost an entire year.

       {¶18} In the instant case, the juvenile court considered many factors and

determined that it was in the children’s best interest to be placed in the legal custody of

the paternal aunt and uncle. The juvenile court considered: the custodial history of the

children; the children’s wishes; the guardian ad litem’s recommendation for legal

custody; the need for legally secure placement; mother’s chronic chemical dependency;

the termination of parental rights of her other child; and mother’s lengthy history with

CCDCFS. Based on the foregoing, we find the court’s determination is supported by a

preponderance of the evidence. Therefore, the trial court did not abuse its discretion in

rendering legal custody to the paternal aunt and uncle.

       {¶19} Accordingly, the first and second assignments of error are overruled.

       {¶20} Judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said Cuyahoga Court of Common

Pleas, Juvenile Division, to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
