[Cite as In re S. Children, 2015-Ohio-4934.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN RE: S. CHILDREN                             :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                                               :       Hon. John W. Wise, J.
                                               :
                                               :
                                               :       Case No. 2015CA00111
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Juvenile Division, Case
                                                   No. 2014JCV00486


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            November 23, 2015

APPEARANCES:

For: Plaintiff-Appellee                            For: Defendant-Appellant

JAMES PHILLIPS, JR.                                DAVID SMITH
SCJFS                                              245 33rd St. N.W.
221 Third St. S.E.                                 Canton, OH 44709
Canton, OH 44702
Stark County, Case No. 2015CA00111                                                                 2

Gwin, P.J.

       {¶1}    Mother–Appellant, Samantha D. appeals the May 7, 2015 judgment entry

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

Job and Family Services ["SCJFS"].

                                     Facts and Procedural History

       {¶2}    On May 21, 2014, SCJFS filed a complaint alleging abuse, neglect and

dependency of T. S. (b. November 3, 2004) and S.S. (b. December 17, 2007), and

requesting an order to place the children in the temporary custody of their Paternal

Grandparents subject to the Protective Supervision of the SCJFS.1

       {¶3}    At the emergency shelter care hearing, the court ordered that the children be placed

into the temporary custody of the Paternal Grandparents subject to the Protective Supervision of the

SCJFS.

       {¶4}    On August 14, 2014, the trial court found both children to be abused children and

continued them both in the temporary custody of their Paternal Grandparents subject to the

Protective Supervision of the SCJFS. The trial court further approved and adopted the case plan.

The case plan contained several services for the mother to successfully complete for reunification to

occur. Regular six-month review hearings were held in this case with the court finding the SCJFS

had made reasonable efforts to make it possible for the children to return home.

       {¶5}    On November 26, 2014, the SCJFS filed a Motion to Change Legal Custody of both

children to the Paternal Grandparents. The trial court took a full day of evidence on the motion to

change custody on April 27, 2015.

       Hearing on motion to change legal custody.

       1    Counsel should adhere to Sup.R.Rule 44(H) and 45(D) concerning disclosure of personal
identifiers. See also Juv R. 5.
Stark County, Case No. 2015CA00111                                                                3


          {¶6}   The allegations in the complaint were centered on physical and mental abuse of

the children, domestic violence between Mother and her current paramour, medical and

education neglect of S.S. and mental health concerns with Mother.

          {¶7}   That case plan required Mother to complete an evaluation at Northeast Ohio

Behavioral Health and follow all recommendations from it. Mother did complete the evaluation

and the recommendations were added to the case plan. Those recommendations required

Mother to successfully complete Goodwill Parenting Classes, anger management classes at

Freespace, engage in counseling and medication for her own mental health issues, and

successfully complete the Intensive Child Parent Interaction Program. The evaluation did not

recommend reunification of the children with Mother unless the children could tolerate contact

with her paramour.

          {¶8}   The ongoing caseworker, Vicki Mitchell testified that Mother received a Certificate

of Attendance from the Goodwill Parenting Program which is the lowest one available if a person

actually shows up for the program. The worker attended every visitation between the Mother and

the children. The caseworker testified Mother would either expose the children to things that would

remind them of her paramour, who was their main abuser, or bring up subjects that would trigger the

children's behaviors. She continued to engage in this behavior despite being instructed not to on

several occasions. The children's behaviors would then become violent with each other and

others.

          {¶9}   Mother was sent for additional counseling at Northeast Ohio Behavioral Health in

an effort to get her to understand and acknowledge the trauma and abuse her actions and the

actions of her paramour had inflicted upon her children. One group counseling session with
Stark County, Case No. 2015CA00111                                                                4


Mother and the children was attempted but went so bad that the professionals refused to attempt a

second one due to the risk it posed to the mental wellbeing of the children.

        {¶10} Mother refused to attend group counseling at Freespace because her paramour

might need her car. Mother did attend some individual sessions but demonstrated no insight and

continued to defend her paramour's actions against the children and herself. Ms. Mitchell testified

that Mother had not successfully completed her case plan or reduced any risk to the children.

She further testified that Mother displayed no insight into the harm she caused her children and

continued to defend her actions.

        {¶11} The caseworker further testified that she had witnessed the interaction between the

children and the paternal grandparents on several occasions. The children are bonded to the paternal

grandparents. Both children have made extreme progress since being placed into the paternal

grandparent's home. Ms. Mitchell stated that the children are completely different children when

she sees them in the paternal grandparent's home then when they were visiting with Mother. They

are calm and loving when in the paternal grandparent's home. The children have both expressed

their strong desire to remain in their paternal grandparent's home. Ms. Mitchell testified that she

believed that granting legal custody of the children to the paternal grandparents was in the

children's best interest.

        {¶12} The guardian-ad-litem also reported great growth of the children since their

placement with the paternal grandparents and recommended the change of legal custody be

granted.

        {¶13} Carrie Schnirring testified at the trial. Ms. Schnirring completed the mental health

evaluation on both children. Ms. Schnirring testified that both children described being made to

stand in the corner for hours or sometimes until the next day. They described being beat with a belt
Stark County, Case No. 2015CA00111                                                                 5


and having to eat only what they could hold in their hand while standing up. Ms. Schnirring testified

that Mother's excuse that she did not know any better did not make any sense. Ms. Schnirring

testified that she went over the concerns of the evaluation and the fear of the children of her

paramour with Mother. Mother refused to acknowledge the concerns and actually stated she

believed the children loved her paramour. Ms. Schnirring testified she had no concerns with the

paternal grandparents based on her interaction with them.

       {¶14} The trial court also heard testimony from Dr. Aimee Thomas. Dr. Thomas

completed the parenting assessments on Mother and her paramour, Jason Artrip. Mother reported

issues with low self-esteem, mood dysregulation, high anxiety, and persistent fears. Mother reported

not being able to do basic life activities without the assistance of her paramour. Dr. Thomas

diagnosed Mother with generalized anxiety disorder and dependent personality disorder. Dr.

Thomas stated that the way Mother attempted to raise her children was very punitive and not

nurturing in any way. Dr. Thomas testified that Mother did not internalize how problematic her

actions were to her children and how her actions affected her relationship with her children. Dr.

Thomas testified that Mr. Artrip found nothing wrong with his conduct in abusing the children. Dr.

Thomas testified that Mother was one of the most mentally ill people she has conducted an exam on

that has not been diagnosed with Bi-Polar or Schizophrenia. Dr. Thomas testified that she did not

believe that Mother would separate from Mr. Artrip or successfully make the life changes

necessary to parent her children.

       {¶15} Becky Crookston testified that she attempted to counsel Mother to prepare her for

the Intensive Parent Child Interaction Program. Ms. Crookston testified that she had six or seven

sessions with Mother including one joint session with her and the children. Ms. Crookston testified

that her main goal was to get Mother to understand and have empathy for what her children had
Stark County, Case No. 2015CA00111                                                                   6


gone through due to the abuse. That attempt was unsuccessful because Mother never really

accepted the role she played in the abuse. Ms. Crookston testified that she went over ground

rules with Mother before the joint session; however, Mother violated the rules. The session was

very unproductive. Ms. Crookston testified that she chose to end her involvement with Mother after that

joint session due to her belief that she could not meet the emotional needs of the children and the

Intensive Parent Child Interaction Program not being appropriate for her.

       {¶16} Gail Mager was the treating counselor for both children. Ms. Mager testifies that she

had been counseling both children since August of 2014. Ms. Mager testified that she was working

with both children to process the experiences they suffered while with Mother. Ms. Mager testified

that when she started working with the children they were angry, had a hard time sitting still, and a

hard time respecting boundaries. Ms. Mager testified that since the children had been placed with

the paternal grandparents, their behaviors and functioning have improved. The children have

calmed down and are much happier where they are now. Ms. Mager testified that she had contact

with Mother on two occasions. Mother brought her paramour to the first meeting and asked if he could

come back to the session. Ms. Mager confirmed that the joint session with Mother and the children

did not go well due to Mother's actions. Ms. Mager testified that she did not believe the Mother

retained for ten minutes the instructions they had given her on how to interact with her children. Ms.

Mager testified that the children have expressed a desire to remain with the paternal grandparents

and that Mother could not meet their emotional needs for one hour.

       {¶17} Dr. Steve Dean completed an evaluation of Jason Artrip. Dr. Dean testified

that Mr. Artrip denied perpetrating any physical abuse on the children or a prior partner.

Dr. Dean found those denials not credible. Dr. Dean testified that he recommended that

Mr. Artrip successfully complete a domestic violence treatment program. Dr. Dean
Stark County, Case No. 2015CA00111                                                                   7


testified that while Mr. Artrip has been attending the program, he has made little

progress and the risk he poses to children has not been reduced.

       {¶18} Jennifer Fire was the Mother's instructor at the Goodwill Parenting Program.

Ms. Fire testified about the extensive involvement she had with Mother during her time in the

class. Ms. Fire testified that while Mother did well on her final test, she failed to apply what

she learned at visits. Mother scored very low on her program goals. Ms. Fire testified that

they tried to assist Mother in how to deal with her children but she failed to follow the

recommendations. Ms. Fire testified extensively about the safe house exercise they did with the

children and Mother. Both children actively confronted Mother about how they were abused,

their fear of Mr. Artrip, and how Mother did not protect them. Mother failed to internalize any of

the children's concerns and continued to defend her and Mr. Artrip's abusive actions. Ms. Fire

testified that Mother did not successfully complete the program. Ms. Fire stated that she did

not recommend Mother to reunify with her children.

       {¶19} Mother testified at the trial. Mother testified that she only used her hand to

spank the children but then admitted to using a spoon and a belt. Mother testified that she still

did not believe the children were afraid of Mr. Artrip. Mother admitted to not staying current on

her mental health medications and stopping them on her own. Mother admitted to not following

the directions given to her for the joint session with the children and the children having to be taken

out of the room at one point due to her actions. Mother defended Mr. Artrip during her testimony

and clearly indicated she wanted another chance for her and Mr. Artrip.

       {¶20} By Judgment Entry filed May 7, 2015, the trial court granted legal custody of the

children to their paternal grandparents.
Stark County, Case No. 2015CA00111                                                                   8

                                            Assignment of Error

       {¶21} Mother raises one assignment of error,

       {¶22} "I. THE COURT'S ORDER STATING THAT THE CHILDREN COULD NOT BE

PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE."

                                                  Analysis

       {¶23} 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 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.

       {¶24} Importantly, the award of legal custody is “not as drastic a remedy as permanent

custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7. See also In re N.F., 10th

Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the award of legal custody does not

divest parents of their residual parental rights, privileges, and responsibilities. In re C.R. at ¶ 17.
Stark County, Case No. 2015CA00111                                                                     9


Therefore, since the granting of legal custody does not divest a parent of his or her fundamental

parental rights, the parent can petition the court for a custody modification in the future. In re L.D.

at ¶ 7.

          {¶25} “A trial court has broad discretion in proceedings involving the care and custody of

children.” In re Mullen, 129 Ohio St.3d 417, 2011–Ohio–3361, ¶ 14. We review the award of legal

custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No. 03AP–445, 2003–

Ohio–6309, ¶ 13; In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9, citing In re Nice,

141 Ohio App.3d 445, 455 (7th Dist.). Abuse of discretion connotes more than an error of law or

judgment; rather, it implies that the trial court’s decision was unreasonable, arbitrary or

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

          {¶26} Unlike in 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; In re A.C., 12th Dist. No. CA2006–12–105, 2007–Ohio–3350 at ¶ 14; In re

Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001).

          {¶27} 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 S.D. 5th Dist. Stark Nos. 2013CA0081,

2013CA0082, 2013-Ohio-5752, ¶ 33 .
Stark County, Case No. 2015CA00111                                                                     10


        {¶28} R.C. 2151.414(D) sets forth factors to be considered in making a determination

regarding the best interest of the child. These factors include, but are not limited to, the following:

                (1) 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;

                (2) 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;

                (3) 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 ending on or after March 18, 1999;

                (4) The child’s need for a legally secure placement and whether that type of

        placement can be achieved without a grant of permanent custody to the agency;

                (5) Whether any of the factors in divisions (E)(7) to (11) of this section apply

        in relation to the parents and child.

        {¶29} In the case at bar, the trial court found,

                Mother's Motion for Extension of Temporary Custody is denied. The Court does

        not believe that another six months would enable the children to be reunited with her. As of

        trial, it has been eleven months since the children were identified at emergent risk and

        removed from Mother's home, but she has made little progress. She still does not

        take ownership of her abusive approach to parenting; in fact she continues to view it as

        mere discipline and does not understand that it was wrong. Eleven months later she still

        clings to her relationship with Jason Artrip despite the abuse he perpetrated on her
Stark County, Case No. 2015CA00111                                                             11


     children. Eleven months later she still fails recognize the impact of the trauma on the

     children and accuses them of exaggerating or of being coached. Mother failed to provide

     any professional testimony or evidence that she is successfully addressing any of the

     concerns that gave rise to the removal of the children from her care.

                                              ***

            Dr. Thomas diagnosed Mother as having generalized anxiety

     disorder, social anxiety disorder, panic disorder with agoraphobia and

     dependent personality disorder. Dr. Thomas diagnosed Mr. Artrip as

     having a cannabis abuse disorder and other specified personality

     disorder— anger management problems, stubborn, irresponsible. The

     children report Mr. Artrip using marijuana. Mother denies this. Mr. Artrip's

     first and only urine drop was negative, but he did not drop in a timely

     manner, and he has refused subsequent drug tests. No evidence was

     presented as to any evaluation for Father, other than the concerns with

     domestic violence and anger management. [T.S.] was diagnosed as

     having adjustment disorder with anxiety. He also demonstrates some of

     the criteria for post-traumatic stress disorder, but has not been so

     diagnosed. Carrie Schnirring of NEOBH conducted the evaluation of [T.S.]

     and [S.S.]. Ms. Schnirring was struck by the emotion that [T.S.] exhibited

     when describing the beating that Mr. Artrip gave [S.S.]. He appeared to be

     reliving it as he told it. Ms. Schnirring first saw the children on June 24,

     2014, about one month after being removed from Mother's home. Ms.

     Schnirring described [S.S.] as still being on "high alert." [S.S.] has been
Stark County, Case No. 2015CA00111                                                       12


       diagnosed with adjustment disorder with mixed disturbance of conduct

       and emotion. It is also possible that she suffers from ADHD, although the

       symptoms of ADHD closely mirror the symptoms associated with PTSD;

       and, given her history, it is likely that at least some of those symptoms

       were caused by what happened to her in her mother's home. There is

       currently no concern about physical health of any of the parties, although

       when the children were with Mother and Mr. Artrip, they suffered abuse,

       including mental abuse and physical abuse that left temporary marks.

       {¶30} As set forth in our statement of the facts and procedural history, these

findings are based upon competent, credible evidence presented to the trial court during

the evidentiary hearing.

       {¶31} The testimony also revealed that the children are thriving in their

placement. They are loved and bonded with the grandparents.

       {¶32} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented that a change in legal custody was in the best

interest of the children.
Stark County, Case No. 2015CA00111                                           13


      {¶33} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
