[Cite as In re T.J., 2013-Ohio-5434.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                   Nos. 99877 and 99878




                               IN RE: T.J., JR., AND C.J.
                                    Minor Children
                                  [Appeal By T.J., Sr., Father]




                                         JUDGMENT:
                                          AFFIRMED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                            Case Nos. AD 11915591 and AD 11915593


        BEFORE:           Keough, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     December 12, 2013
ATTORNEY FOR APPELLANT

Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Nicole A. Raimo
Assistant Prosecuting Attorney
C.C.D.C.F.S
4261 Fulton Parkway
Cleveland, Ohio 44144

ATTORNEY FOR CHILDREN

Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129

GUARDIAN AD LITEM

Jennifer Hanes
Laubacher & Company
20525 Center Ridge Road
Westgate Towers, Suite 626
Rocky River, Ohio 44116
KATHLEEN ANN KEOUGH, P.J.:

      {¶1} In these consolidated appeals, appellant, T.J., Sr. (“Father”), the biological

father of T.J., Jr. (born October 26, 1997) and C.J. (born January 24, 2004)          (the

“children”) appeals from the trial court’s judgment that awarded legal custody of the

children to their maternal uncle.1 Finding no merit to the appeal, we affirm.

      {¶2} On August 31, 2011, the Cuyahoga County Department of Children and

Family Services (“CCDCFS”) filed a complaint for dependency and neglect with a

request for predispositional temporary custody of T.J. and C.J. At the time, Father was

homeless and unemployed, and the children’s biological mother, who had a history of

drug use, was hospitalized. The children were committed to the emergency custody of

CCDCFS. They were subsequently adjudged dependent and committed to the temporary

custody of CCDCFS. In April 2012, the children’s mother died.

      {¶3} Father subsequently filed two motions to modify the existing temporary

custody order to an order of legal custody to him. CCDCFS, on the other hand, filed a

motion to modify custody to an order of legal custody to the children’s maternal uncle.

After a dispositional hearing before a juvenile court magistrate, the magistrate issued a

decision recommending that legal custody of the children be granted to the uncle. The




      1
        The parties are referred to by their initials or title in accord with this court’s
policy of non-disclosure of identities in juvenile cases.
juvenile court subsequently denied Father’s objections to the magistrate’s decision and

affirmed and adopted the magistrate’s decision. This appeal followed.

I. Hair Follicle Test

       {¶4} At the hearing, CCDCFS case worker Judith Lebron testified that she

developed a case plan for Father that included (1) completion of a drug assessment and

compliance with any recommendations of that assessment, (2) procurement of adequate

housing, and (3) permanent employment.          Lebron testified that CCDCFS will only

recommend custody if the petitioner has been drug-free for six months so, in light of

Father’s ten-year history of drug abuse, she asked him for monthly urine samples and, in

March 2013, requested that he complete a hair follicle test. Lebron testified that she was

not an expert, but to the best of her knowledge, a hair follicle test can determine the

presence of cocaine used up to three months prior to the test and that Father’s test was

positive for cocaine.

       {¶5} At the close of the hearing, when CCDCFS sought to introduce a report of

the hair follicle test from the agency that had administered the test, the magistrate ruled

that the report was inadmissible because it had not been authenticated. The magistrate

stated that Lebron’s testimony relative to the hair follicle test would stand, however.

       {¶6} In rendering her decision at the close of trial, the magistrate stated that

“[t]he court can’t get beyond the hair follicle test.” The magistrate stated that substantial

compliance with the case plan is one factor in determining custody but “[t]he real
determination is that the conditions that led to the removal have been remedied.” The

magistrate found that the result of Father’s hair follicle test indicated that those conditions

had not been remedied and, accordingly, granted legal custody to the children’s uncle.

       {¶7} In his first assignment of error, Father contends that the trial court abused

its discretion in basing its ruling in part on the hair follicle test because the report was

ruled inadmissible. He argues further that the trial court should not have relied on

Lebron’s testimony regarding the hair follicle test because Lebron admitted that she was

not an expert on the subject but then testified, based on hearsay, that a positive hair

follicle test indicates drug use within the last three months.

       {¶8} Our review of the record demonstrates that Father never objected to

Lebron’s testimony.     Because Father failed to object to Lebron’s testimony, he has

waived all but plain error on appeal. In re J.T., 8th Dist. Cuyahoga Nos. 93240 and

93241, 2009-Ohio-6224, ¶ 67.

       {¶9} We find no plain error in this case. During dispositional hearings, “[t]he

court may admit any evidence that is material and relevant, including, but not limited to,

hearsay, opinion, and documentary evidence.” R.C. 2151.35(B)(2)(b); Juv.R. 34(B)(2);

In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-Ohio-4064, ¶ 14.

Lebron’s testimony that Father had tested positive for cocaine in March 2013, only one

month before the dispositional hearing, was obviously material and relevant to whether

the children should be placed with Father, especially in light of his ten-year drug abuse
history. Accordingly, the trial court did not abuse its discretion in admitting Lebron’s

testimony.

       {¶10} Moreover, our review of the record demonstrates that Father’s counsel

elicited on cross-examination the testimony regarding the length of time cocaine will stay

in a hair follicle that Father now claims was hearsay. Father’s argument therefore also

fails under the invited error doctrine. See State v. Gumins, 8th Dist. Cuyahoga No.

90447, 2008-Ohio-4238, ¶ 18 (under the doctrine of invited error, a litigant may not take

advantage of an error that he himself invited or induced).

       {¶11} The first assignment of error is therefore overruled.

II. Best Interest, Preponderance of the Evidence, and the Wishes of the Children

       {¶12} In his second, third, and fifth assignments of error, Father contends that the

trial court erred in awarding legal custody of the children to their uncle. He argues that

the grant of legal custody to the uncle was (1) not in the best interest of the children, (2)

not supported by a preponderance of the evidence, and (3) contrary to the stated wishes of

the children. We discuss these assigned errors together because they are interrelated.

       {¶13} This court recently discussed the standards for a trial court’s grant of legal

custody and our review of the trial court’s decision in In re E.A., 8th Dist. Cuyahoga No.

99065, 2013-Ohio-1193, ¶ 10-13, where the court stated:

       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.33d 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).

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.
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. Cuyahoga 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. Franklin No.
05AP-117, 2005-Ohio-5097.

“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. Cuyahoga 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. Cuyahoga 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.2 R.C. 2151.414(D)(1).

         {¶14} In this case, a preponderance of the evidence supported the trial court’s

judgment that it was in the best interest of the children to grant legal custody to their

uncle.       At the time of the hearing, the children had been in the custody of CCDCFS for

approximately 19 months.         Their maternal uncle was able and willing to provide a

permanent, appropriate home for the children and, as Father’s counsel told the magistrate,

the children had a good relationship with their uncle, having lived with him previously for

several months.

         {¶15} The evidence also demonstrated that Father had a ten-year substance abuse

problem (including convictions in 1996 and 2006 for drug-related offenses) that had not

yet been resolved: Father admitted to smoking marijuana in January 2012 and he tested

positive for cocaine in March 2013. Although Father argued at the hearing that he had



       Among these additional factors are: whether a parent has continuously and
         2

repeatedly failed to substantially remedy the conditions causing the child to be
placed outside the child’s home, and has utilized available resources; and whether a
parent has chronic chemical dependency that is so severe that it makes the parent
completed a drug assessment that did not recommend further treatment, Lebron’s

testimony demonstrated that one reason for the recommendation was the lack of collateral

evidence of Father’s drug use, which CCDCFS obtained thereafter. The evidence further

demonstrated that Father would wait several days to comply with Lebron’s requests for

random urine samples, presumably so that his urine would be clean. Thus, although the

children expressed their desire to live with their father, reunification was not possible as

of the date of the hearing because Father was still using drugs.

       {¶16} The evidence also demonstrated that Father did not have adequate housing

for the children: the only furnishings in his CMHA-provided one-bedroom apartment

were a television and bed in the bedroom, and a recliner in the living room. Although

Father argued at the hearing that CMHA would move him to a larger apartment if he were

granted legal custody of the children, he produced no evidence to support this claim.

       {¶17} Finally, the evidence demonstrated that Father was working at a temporary

job.   Although Lebron had tried to give Father referrals for full-time, permanent

employment, he had refused the referrals and sought employment through various

temporary employment agencies.

       {¶18} In light of this evidence, the trial court did not abuse its discretion in

concurring with the guardian ad litem’s recommendation that legal custody of the

children should be awarded to their maternal uncle.        The trial court’s decision was


unable to provide an adequate permanent home for the child at the present time.
supported by the preponderance of the evidence and in the best interest of the children,

despite their bond with their father and their desire to live with him. The second, third,

and fifth assignments of error are therefore overruled.

III. Case Planning

       {¶19} In his fourth assignment of error, Father argues that the trial court erred in

granting legal custody to the children’s uncle because CCDCFS did not make reasonable

efforts through diligent case planning to reunite him with his children.

       {¶20} Under R.C. 2151.419(A)(1),

       the court shall determine whether the public children services agency * * *
       that filed the complaint in the case, removed the child from the home, has
       custody of the child, or will be given custody of the child has made
       reasonable efforts to prevent the removal of the child from the child’s
       home, to eliminate the continued removal of the child from the child’s
       home, or to make it possible for the child to return safely home. The
       agency shall have the burden of proving that it has made those reasonable
       efforts.

       {¶21} Father contends that he successfully fulfilled the objectives of his case plan,

namely completing a substance abuse assessment and obtaining housing and employment,

but that CCDCFS refused to recognize what he had achieved and wanted only to end the

case by placing the children with a relative, rather than working at reunification. We

disagree.

       {¶22} Lebron testified that Father’s case plan required him to complete a substance

abuse assessment and treatment, obtain adequate housing, and maintain full-time

employment.     Although Father contends that he complied with his case plan, the
evidence at the hearing showed otherwise. He did not have permanent employment, and

his one-bedroom apartment with minimal furnishings was inadequate to provide for the

children. Most importantly, however, he had not resolved his chronic substance abuse

problem. Indeed, in awarding legal custody to the uncle, the trial court specifically found

that the “evidence about the adequacy of housing or employment was not dispositive,” but

that “Father has failed to remedy the conditions causing removal of the [children;]

specifically his chronic substance abuse.”

       {¶23} Despite Father’s argument otherwise, CCDCFS made reasonable efforts to

reunite him with his children by establishing a workable case plan. When he failed to

comply with the case plan, CCDCFS acted in the best interest of the children by

requesting that they be placed with their uncle.       The fourth assignment of error is

therefore overruled.

       {¶24} Judgment 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 court 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR
