[Cite as In re B.D., 2017-Ohio-8663.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 105650




                                          IN RE: B.D.
                                         A Minor Child
                                        [Appeal By Mother]



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. AD13916853

        BEFORE: S. Gallagher, J., Keough, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 22, 2017
ATTORNEY FOR APPELLANT

Patrick S. Lavelle
Van Sweringen Arcade
123 West Prospect Street, Suite 250
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEES

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

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Timothy D. Smanik
         Cheryl Rice
Assistant Prosecuting Attorneys
C.C.D.C.F.S.
3955 Euclid Avenue, Third Floor
Cleveland, Ohio 44115


For T.D. and K.D.

Pamela A. Hawkins
P.O. Box 43101
Richmond Heights, Ohio 44143


Also listed:

Guardian ad litem

Troy M. Hough
21887 Lorain Road, #306
Cleveland, Ohio 44126
For Father

S.D., pro se
5763 Portage Avenue
Cleveland, Ohio 44127
SEAN C. GALLAGHER, J.:

      {¶1} Appellant Mother appeals the juvenile court’s decision to award legal custody

of her child, B.D., to the foster parents, who are the appellees herein. Upon review, we

reverse the decision of the juvenile court that granted legal custody to the appellees, and

we order the termination of protective supervision and the immediate return of the child

to Mother’s legal custody.

      {¶2} On November 20, 2013, the Cuyahoga County Department of Children and

Family Services (“CCDCFS”) filed a complaint alleging B.D. was dependent and

requesting a disposition of temporary custody. A hearing was held, and B.D., then a

newborn infant, was committed to the pre-adjudicatory emergency temporary custody of

CCDCFS.

      {¶3} On January 24, 2014, an adjudicatory hearing was held. Mother stipulated to

certain allegations in the amended complaint, including, among others, (1) that Mother

has three other children who were adjudicated dependent because of Mother’s lack of

parenting skills and domestic violence between the parents, and which children are in the

temporary custody of a relative; (2) that Mother has mental health problems that may

interfere with her ability to make safe and adequate choices for B.D.; and (3) that Mother

lacks adequate housing to provide for the child’s basic shelter needs. The juvenile court

found B.D. to be a dependent child and granted temporary custody to CCDCFS. The

juvenile court conducted a number of review hearings at which it continued temporary

custody of B.D. to CCDCFS.
       {¶4} On July 8, 2014, CCDCFS filed a motion to modify temporary custody to

permanent custody. In August 2015, the foster parents filed a motion to intervene that

was granted, and they also filed a motion for legal custody.

       {¶5} However, on November 5, 2015, CCDCFS filed a motion to withdraw its

earlier motion to modify temporary custody to permanent custody and a motion to

terminate temporary custody.       CCDCFS indicated that Mother “has successfully

completed the case plan and has remedied the risks that initially caused the child to be

removed.” CCDCFS expressed its belief that it would be in the best interest of the child

to be returned to Mother and requested that Mother be vested with legal custody of the

child with no restrictions.

       {¶6} A hearing was held on the motions, and B.D. was returned to Mother with

protective supervision on March 29, 2016. The magistrate issued a decision that was

adopted by the juvenile court in a judgment entry filed April 18, 2016. The juvenile

court indicated the motion for permanent custody and the motion for legal custody were

withdrawn and “[t]he parties are in agreement with the child reunifying with the

[m]other.” The juvenile court found that “[t]here has been significant progress on the

case plan by the mother and substantial progress has been made in alleviating the cause

for the removal of the child from the home.” The juvenile court also found that the

father had abandoned the child. The juvenile court determined that it would be in the

child’s best interest to return to Mother’s home and to have continued visitation by the

foster parents. The juvenile court terminated temporary custody, ordered the child be
committed to the legal custody of Mother with protective supervision, and ordered

reasonable visitation to the foster parents during the period of protective supervision.

       {¶7} On July 5, 2016, CCDCFS filed a motion to terminate protective supervision

and requesting that the court grant legal custody to Mother with no restrictions.

CCDCFS indicated in its motion that the social worker had monitored the family by

making regular visits to the home and that “mother has been providing the proper care for

the child and [has] been providing for all of the child’s basic needs.” CCDCFS further

expressed that “[c]ooperative efforts with CCDCFS have reduced the risk to the child so

as to allow him to remain in the home unsupervised by CCDCFS.”

       {¶8} The next day, the foster parents filed a motion for legal custody of B.D. The

foster parents stated that they had provided care for the child for the majority of his young

life and advocated for a grant of legal custody to the foster parents as being in the child’s

best interest.

       {¶9} The juvenile court held a hearing on December 14, 2016. At that time, B.D.

was three years old. CCDCFS represented that Mother had completed her case plan and

expressed its belief that protective supervision was no longer necessary.          CCDCFS

indicated that “[Mother] has had the child for nearly nine months in her care without

incident and we believe she’s taken appropriate care of the child” and that “[Mother] has

demonstrated her ability to provide for this child’s safety and basic needs without the

Agency’s involvement[.]”
       {¶10} The social worker testified that as a result of a domestic violence case, there

was a no-contact order between Mother and B.D.’s biological father. Father did not

participate in case plan services, and the juvenile court previously found that Father had

abandoned B.D. and his visitation rights were suspended. Mother reported that she has

not had contact with the father.

       {¶11} The social worker testified that Mother is employed through a temporary

agency and that she has provided for all of the medical needs for the child. Mother was

renting a home from a family friend, and under an arrangement she paid utilities and no

rent. The social worker was aware that B.D. had tested positive for high blood glucose

levels, indicated Mother had stated she had an upcoming doctor’s appointment for the

child, and noted there were no concerns from the child’s prior medical visits.

       {¶12} The social worker observed some behavioral problems when B.D. first

returned to Mother’s home, but testified she was no longer seeing any of those problems.

The social worker noted two referrals that had been made regarding safety issues since

the child was reunified with Mother.       One was an unsubstantiated report regarding

Mother and the child being homeless. The other was that Mother was in a relationship

with a man who had a history of sexual abuse with children. The outcome of the social

worker’s investigation was that the referral was unsubstantiated. The social worker also

discussed Mother’s first child having been the product of sexual abuse by Mother’s

biological brother when she was a teenager. The family never reported the sexual abuse.
       {¶13} The social worker testified to appropriate interactions between Mother and

her child, to Mother’s care of the child, and to the child’s development. The social

worker testified that the agency had no concerns and that Mother was able to provide for

the child’s basic needs.

       {¶14} The foster mother testified that she observed behavioral concerns with B.D.

after his return to Mother. She also noted concerns such as the child’s head being shaved

because of issues with lice, his shoes smelling of urine, smoking around the child, and

suspicions that the child was being shuffled around to his aunts or cousins. The foster

mother also expressed her suspicion that the child’s father, who had a history of domestic

violence and child endangering, was still in Mother’s life. The foster mother testified

that Mother had informed her the child had met his father and ran to him and called him

“daddy.” The foster mother also testified to observing an October 2016 Facebook post in

which Mother purportedly commented on having been with the child’s father for seven

years and left him “two months ago.” The foster mother admitted she could not say with

100 percent certainty that the Facebook page was actually Mother’s page. The foster

father also testified at the hearing.

       {¶15} The guardian ad litem testified that he saw “nothing wrong with mother’s

home” and that he believes Mother “is an appropriate caregiver.” He indicated that

Mother had completed all areas of her case plan and had stable housing for over a year.

Nonetheless, the guardian ad litem expressed that the child had been in the foster home
since he was two days old and that “given the family’s history with mother, although she

means well, I do not see a bright future for [the child].”

       {¶16} In his report and recommendation of December 5, 2016, the guardian ad

litem observed that the child “appeared healthy and happy” and “both homes were clean

and appropriate in all respects.” The guardian ad litem also observed that the child

appeared bonded to both his mother and his foster parents and that “both parties’

interactions with the child were appropriate in all respects.”

       {¶17} The guardian ad litem acknowledged that Mother had completed all

elements of her case plan and appeared capable of providing for the child’s basic needs.

Although the guardian ad litem expressed that he had “no concerns for the child’s safety

if left in Mother’s custody,” he nevertheless recommended that the court grant legal

custody to the foster parents. The guardian ad litem referenced Mother’s family history

and financial instability, and expressed his belief that “if left in [Mother’s] custody, [the

child’s] future will be one of ignorance and poverty.”

       {¶18} The foster parents submitted proposed findings of fact and conclusions of

law. On January 3, 2017, the juvenile court issued a decision that granted legal custody

to the foster parents, finding that “mother would more likely than not subject the child to

perpetual low level neglect throughout the child’s minority.” The juvenile court “gave

significant weight” to the recommendation of the guardian ad litem. Additionally, the

juvenile court concluded that “until protective supervision is terminated[,] the conclusion
of [parental] unsuitability stands.” The juvenile court further concluded that “an order of

legal custody of the child to [the foster parents] is in the child’s best interest.”

       {¶19} Mother timely filed this appeal. She raises two assignments of error for our

review. Under her first assignment of error, Mother claims her right to due process was

violated because the juvenile court awarded legal custody without determining that she

was unsuitable.

       {¶20} The Supreme Court of Ohio has held that once a child has been adjudicated

dependent, a juvenile court 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 C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188,

paragraph one of the syllabus. As the court recognized in In re C.R., “[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.” Id. at ¶ 23. Furthermore, “no statute

requires a finding of parental unfitness as a prerequisite to an award of legal custody in

cases where a child is adjudged abused, neglected, or dependent.” Id. at ¶ 21.

       {¶21} Mother claims this case is distinguishable and argues against application of

the holding in In re C.R. because the child had been returned to her legal custody. 1


       1
          Mother cites to private custody cases not involving allegations of abuse, neglect, or
dependency, in which a court is required to make a finding of parental unsuitability prior to awarding
custody of a child to a nonparent. See In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781
N.E.2d 971; In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977). Those cases were
distinguished in In re C.R. as they were private custody matters that did not involve an award of legal
However, the record reflects that the placement with Mother was ordered with protective

supervision and CCDCFS’s involvement in the case had not been terminated. Thus, the

holding in In Re: C.R. remains controlling. Moreover, nothing in R.C. 2151.353 requires

a finding of unsuitability before awarding legal custody. Rather, the court’s primary

concern is the best interest of the child. In re B.J., 8th Dist. Cuyahoga Nos. 104800 and

104801, 2017-Ohio-315, ¶ 14. Accordingly, the first assignment of error is overruled.

       {¶22} Under her second assignment of error, Mother claims the award of legal

custody is against the manifest weight of the evidence.

       {¶23} Initially, we must reiterate that a stated purpose of R.C. Chapter 2151 is

“[t]o provide for the care, protection, and mental and physical development of children”

and whenever possible, the child is to remain in a family environment and should be

separated from the child’s parents “only when necessary for the child’s welfare or in the

interests of public safety.” R.C. 2151.01(A). See also In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 29; In re B.J. at ¶ 13.

       {¶24} Pursuant to R.C. 2151.353(A), after a child has been adjudicated abused,

neglected, or dependent, the court may “[a]ward legal custody of the child to * * * any

other person who, prior to the dispositional hearing, files a motion requesting legal

custody of the child or is identified as a proposed legal custodian in a complaint or motion

filed prior to the dispositional hearing by any party to the proceedings.”                  R.C.

2151.353(A)(3). “An award of legal custody does not divest parents of residual parental


custody of a child who had been adjudged abused, neglected, or dependent. In re C.R. at ¶ 18-21.
rights and responsibilities and does not permanently foreclose the right of either parent to

regain custody in accordance with the law.” In re G.W., 8th Dist. Cuyahoga No. 103706,

2016-Ohio-5242, ¶ 15, citing In re C.R. at ¶ 23; see also R.C. 2151.42.

       {¶25} The juvenile court must determine the appropriateness of legal custody in

accordance with the best interest of the child as supported by the preponderance of the

evidence. In re G.W. at ¶ 21. A “preponderance of the evidence” requires evidence that

is more probable, more persuasive, or of greater probative value. Id., citing In re T.R.,

8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 44.

       {¶26} In determining the best interest of the child in a legal custody case, the

juvenile court should consider all relevant factors, and may look to the factors listed

under R.C. 2151.414(D), which pertains to permanent custody cases, for guidance. In re

M.B., 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, ¶ 11. Those factors include the

interaction of the child with the child’s parents, relatives, and caregivers; the wishes of

the child, as expressed directly by the child or through the child’s guardian ad litem; the

custodial history of the child; and the child’s need for a legally secure permanent

placement. R.C. 2151.414(D). R.C. 2151.414(D).

       {¶27} The evidence in this case reflects that the interaction of the child with both

Mother and the foster parents was appropriate, and the juvenile court found that both

parties have a loving relationship with the child. The social worker testified to observing

appropriate interactions between Mother and B.D., and she testified that Mother was able

to provide for the child’s basic needs. Although certain referrals had been made to the
agency, they were investigated and found to be unsubstantiated. The guardian ad litem

found Mother’s home and her interactions with the child to be “appropriate in all

respects.”

       {¶28} The child was too young to express his wishes. The guardian ad litem

acknowledged in his report that Mother appeared capable of providing for the child’s

basic needs and expressed he had no safety concerns for the child if left in Mother’s

custody. Despite his observations, the guardian ad litem supported a grant of legal

custody to the foster parents, over a concern that the child’s future would be “one of

ignorance and poverty” if left in Mother’s custody.

       {¶29} During the pendency of the case, the child had been placed in the care of the

foster parents from November 2013 until March 2016, when the child was returned to

Mother’s legal custody with protective supervision. At the time of the hearing, the child

had been with Mother for nearly nine months without incident. Mother had completed

all case plan services, and CCDCFS was in favor of granting legal custody of B.D. to

Mother with no restrictions.

       {¶30} Although the foster parents, who desired to have legal custody, expressed

some concerns and suspicions, the record was devoid of any compelling reasons not to

grant CCDCFS’s request. Although we can appreciate the bond that has developed

between the foster parents and B.D., we must recognize that the right to parent one’s child

is a fundamental right.    In re B.J., 8th Dist. Cuyahoga Nos. 104800 and 104801,
2017-Ohio-315, at ¶ 12, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147

L.Ed.2d 49 (2000).

       {¶31} Our review reflects that no competent, credible evidence supports the

juvenile’s court’s determination that “an award of legal custody to mother would be

detrimental to the child.” The juvenile court gave “significant weight” to the guardian ad

litem’s recommendation, which reflected no more than a concern for the child’s quality of

life if left in Mother’s care. The juvenile court speculated that Mother “would more

likely than not subject the child to perpetual low level neglect[.]”

       {¶32} Nevertheless, in this particular case, the evidence showed that Mother had

complied with case plan services, CCDCFS had moved to grant legal custody to Mother

with no restrictions, the child had been returned to Mother’s care for nearly nine months

without incident, and both the social worker and the guardian ad litem had no safety

concerns and believed Mother to be an appropriate caregiver. Upon this record, the trial

court erred in failing to determine an award of legal custody to Mother would be in the

best interest of the child.

       {¶33} Upon the record before us, we find the juvenile court’s best-interest

determination was not supported by a preponderance of the evidence and was against the

manifest weight of the evidence. The preponderance of the evidence shows B.D.’s best

interest, as well as the purpose of R.C. Chapter 2151, is served by granting legal custody

to Mother without restriction. The second assignment of error is sustained.
      {¶34} Judgment reversed.      Case remanded to the juvenile court to carry this

judgment into execution.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court, 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.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY
