[Cite as In re A.G., 2012-Ohio-1621.]


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

IN RE: A.G.                                          C.A. No.       26092
       N.W.


                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE Nos. DN 09-06-0530
                                                                DN 10-02-0084

                                 DECISION AND JOURNAL ENTRY

Dated: April 11, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Appellant, Sara K. (“Mother”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, which awarded legal custody of her minor children

to their maternal aunt and uncle. This Court affirms.

                                                 I

        {¶2}     On March 31, 2009, Mother returned from North Carolina with her five month

old child, A.G., to live with her parents. Sometime around May 2009, Summit County Children

Services (“SCCS”) was contacted by a North Carolina Children Services Agency and asked to

conduct a courtesy interview of Mother in order to assess the risk to and safety of A.G. Mother

was uncooperative with SCCS and denied SCCS access to the home.

        {¶3}     SCCS returned to Mother’s residence in late June 2009, after receiving a referral

expressing concerns about the environment in which A.G. was living.                  Mother was

uncooperative and aggressive towards the social worker. Akron Police were called to the scene.
                                                2


SCCS was able to enter the home with the permission of the maternal grandmother. SCCS found

the home to be extremely cluttered, with a strong smell of urine and dog feces on the floor.

       {¶4}    After some discussion, A.G. was sent to spend the night with her maternal aunt

and uncle. SCCS then worked to develop a safety plan with Mother, but Mother remained

uncooperative. The following day, SCCS filed for emergency temporary custody, placed A.G.

with the maternal aunt and uncle, and developed a case plan for Mother. The court subsequently

found A.G. to be a neglected and dependent child.

       {¶5}    Mother’s case plan had three objectives; (1) “to complete a mental health

evaluation and follow all recommendations for treatment”; (2) “to complete intensive parenting

education”; and (3) “to obtain/maintain stable, safe, appropriate housing with adequate hygiene

standards.”

       {¶6}    Mother completed a mental health evaluation with Summit Psychological

Associates, Inc. in December 2009.       Mother was diagnosed with adjustment disorder with

depression, borderline personality disorder with narcissistic features, antisocial personality

disorder, and borderline intellectual functioning. The evaluation recommended Mother receive

individual mental health counseling, complete an intensive anger management program,

complete a comprehensive parenting education, complete a psychiatric evaluation, and follow

through with all medication prescribed. Mother completed an anger management program and

attended some counseling sessions at Portage Path. In addition, Mother completed parenting

education through Greenleaf. SCCS maintained that this training did not satisfy the case plan

requirement. Mother refused to attend any additional parenting classes.

       {¶7}    Mother gave birth to N.W. in January 2010. N.W. was immediately placed with

A.G. in the home of her maternal aunt and uncle and added to Mother’s case plan. A.G. and
                                                  3


N.W. remained in the home of their maternal aunt and uncle, under temporary custody of SCCS,

until the legal custody hearing on March 4, 2011.

          {¶8}   On January 7, 2011, Mother married her new husband who resides with his

parents in Brunswick, Ohio. Mother moved in with her new husband and his parents.

          {¶9}   On March 4, 2011, the court held a legal custody hearing. Legal custody of both

children was sought by Mother, their maternal grandparents, and their maternal aunt and uncle.

Legal custody of A.G. was also sought by A.G.’s father and her paternal grandparents. The court

found that it was in the best interest of the children to remain with their maternal aunt and uncle,

and granted them legal custody.

          {¶10} Mother filed a timely appeal. In lieu of a merit brief, Mother’s appellate counsel

has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which counsel

asserts that there are no meritorious issues to raise on Mother’s behalf. Counsel has moved this

Court to accept the Anders brief in lieu of a merit brief and to permit her to withdraw from the

case.

          {¶11} In her Anders brief, Mother’s counsel has presented three possible issues for

review.

                                                 II

                              Possible Issue For Review Number One

          THE TRIAL COURT ERRED IN FINDING THAT LEGAL CUSTODY TO
          THE MATERNAL UNCLE AND AUNT WAS SUPPORTED BY A
          PREPONDERANCE OF THE EIDENCE (sic) AND IN THE CHILDREN’S
          BEST INTEREST[.]

          {¶12} In the first possible issue for review, Mother’s counsel concludes that “Mother did

not offer more convincing evidence to support her * * * request for legal custody * * *, than the
                                                    4


agency presented to support its Motion for legal custody to the maternal uncle and aunt.” We

agree.

         {¶13} “This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. In so doing, we consider the trial court’s action with

reference to the nature of the underlying matter.” (Internal quotations and citations omitted.)

Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, ¶ 7. “A trial court retains broad

discretion in child custody matters, and this Court will only reverse the trial court upon a

showing of an abuse of discretion.” In re M.B., 9th Dist. No. 26004, 2012-Ohio-687, ¶ 10, citing

Lorence v. Goeller, 9th Dist. No. 04CA008556, 2005-Ohio-2678, ¶ 14. An abuse of discretion

implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore

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

         Although the statutory scheme regarding an award of legal custody does not
         include a specific test or set of criteria, this Court has previously held that the trial
         court must base such a decision on the best interest of the child. In re S.J., 9th
         Dist. No. 23199, 2006-Ohio-6381, ¶ 32, citing In re N.P., 9th Dist. No. 21707,
         2004-Ohio-110, ¶ 23. Consequently, “[i]n legal custody cases, trial courts should
         consider all factors relevant to the best interest of the child.” In re S.J. at ¶ 34.
         We have also noted that the factors contained in R.C. 2151.414(D) may provide
         guidance to the trial court in making an award of legal custody. Id. at ¶ 32.
         Those factors include:

         “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;

         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;

         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 * * *; [and]

         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[.]” R.C. 2151.414(D)[(1)(a-d)].
                                                   5


In re R.R., 9th Dist. No. 23641, 2007-Ohio-4808, ¶ 12.

        {¶14} In her brief, Mother’s counsel refers this Court to R.C. 3109.04(F)(1) for factors

to consider in determining the best interest of the children. While R.C. 3109.04(F)(1) applies to

the “allocation of parental rights in a domestic relations case[,]” these factors may also be

considered in legal custody cases. In re J.D., 9th Dist. No. 24915, 2010-Ohio-1344, ¶ 7. Trial

courts should consider all factors relevant to the best interest of the child. In re S.J. at ¶ 34.

        {¶15} SCCS became involved in June 2009, when A.G. was approximately eight months

old. At the time of the legal custody hearing, A.G. had been living with the maternal aunt and

uncle for just under two years. N.W. has been living with the maternal aunt and uncle since

birth. At the time of the trial, N.W. was just over one year old.

        {¶16} There is no indication in the record of concerns for the children in the home of the

maternal aunt and uncle.       The maternal aunt and uncle are willing and able to provide a

permanent home for the children. There is no dispute that the children are doing well in the

home and have bonded with the aunt and uncle’s two older children. The uncle testified that

A.G. and N.W. are doing great and have “thrive[d]” since coming to live with his family. The

uncle described the bonding between his two biological children, A.G., and N.W. He described

the household as “one family unit.” Moreover, the uncle testified that both he and his wife are

willing to facilitate visits with all parties involved and understood that legal custody does not

terminate Mother’s parental rights.

        {¶17} Mother argues that she wants custody of her children because she knows she “can

provide for them and * * * can actually take care of them.” However, there is concern about

Mother’s stability and her ability to provide for the children. Mother is unemployed and does
                                                 6


not have a driver’s license or a steady mode of transportation. Mother is currently residing with

her new husband in the home of her in-laws.

       {¶18} There was testimony that Mother had not fully complied with her case plan, and

continued concerns about Mother’s mental health. Mother testified that she did comply with all

of the objectives in her case plan and disputes that her mental health is a concern. “[T]he

dispositive issue is not whether the parent has substantially complied with the case plan, but

rather, whether the parent has substantially remedied the conditions that caused the child’s

removal.” In re Pittman, 9th Dist. No. 20894, 2002-Ohio-2208, ¶ 60. The magistrate found it

“clear from the testimony that * * * [M]other has not adequately addressed the issues which

brought these children before the court.” The trial court agreed with the magistrate’s decision.

After reviewing the record, this Court cannot say that the trial court abused its discretion in

reaching that determination.

       {¶19} The trial court did not abuse its discretion in granting legal custody to the

maternal aunt and uncle. Mother’s first possible issue for review is without merit.

                               Possible Issue For Review Number Two

       THE TRIAL COURT ERRED IN PLACING THE CHILDREN INTO THE
       LEGAL CUSTODY OF THE MATERNAL UNCLE AND AUNT, RATHER
       THAN WITH MOTHER OR MATERNAL GRANDPARENTS[.]

       {¶20} In the second possible issue for review, Mother’s counsel concludes that Mother

cannot successfully challenge the trial court’s decision to grant legal custody to the maternal aunt

and uncle. We agree.

       {¶21} Mother filed a motion requesting that legal custody be granted to her, the maternal

grandparents, or the maternal aunt and uncle. Assuming without deciding that Mother has

standing to challenge the denial of legal custody to the maternal grandparents, we conclude that
                                                 7


the trial court did not abuse its discretion in granting legal custody to the maternal aunt and

uncle.

         {¶22} Grandmother testified that she had not discussed obtaining custody of the children

with her husband. The record also indicates that the grandparents have had little interaction with

the children since their removal. The grandparents have not visited the children at the home of

the aunt and uncle, nor has Grandfather visited the children at CSB. Grandmother had visited

with the children at CSB, but testified that she had not been for a visit in a couple of months.

Further, the grandparents testified that they believed Mother was currently in the position to take

care of the children. The guardian ad litem recommended that the maternal grandparents have

supervised visits because she was concerned that the grandparents would not supervise Mother’s

visits with the children. After reviewing the record, we cannot conclude that the trial court

abused its discretion in granting legal custody to the maternal aunt and uncle.

         {¶23} Mother cannot prevail on an argument that the trial court erred in its decision not

to grant her legal custody. As discussed in the section above, the trial court found that granting

legal custody to the maternal aunt and uncle was in the best interest of the children. The trial

court did not abuse its discretion when it made this finding.

         {¶24} Mother’s second possible issue for review is without merit.

                             Possible Issue For Review Number Three

         TRIAL COUNSEL DID NOT PROVIDE EFFECTIVE ASSISTANCE OF
         COUNSEL[.]

         {¶25} In the third possible issue for review, Mother’s counsel concludes that Mother’s

trial counsel was not ineffective. We agree.

         {¶26} A claim of ineffective assistance of counsel requires Mother to satisfy a two-

prong test. First, she must prove that trial counsel’s performance was deficient. Strickland v.
                                                 8


Washington, 466 U.S. 668, 687 (1984). Second, Mother must “demonstrate that [s]he was

prejudiced by h[er] trial counsel’s deficient performance.” State v. Srock, 9th Dist. No. 22812,

2006-Ohio-251, ¶ 21. Prejudice entails “a reasonable probability that, were it not for counsel’s

errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136

(1989), paragraph three of the syllabus.

       {¶27} After reviewing the record, we cannot conclude that trial counsel’s performance

was deficient. Trial counsel diligently represented Mother in her pursuit to regain custody of her

children. Mother’s third possible issue for review is without merit.

       {¶28} In addition to the three possible issues presented for review, this Court has

conducted a full, independent examination of the proceedings in accordance with Anders v.

California, 386 U.S. 738 (1967). We conclude that there are no appealable issues in this case.

Mother’s appeal is without merit and frivolous under Anders.

                                                III

       {¶29} After a thorough review of the record, we agree that Mother’s appeal is without

merit and frivolous. Appellate counsel’s motion to withdraw is granted, and 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.
                                                9


       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



BELFANCE, J.
CONCURS.

DICKINSON, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

LEE A. SCHAFFER, Attorney at Law, for Appellant.

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