[Cite as In re K.C., 2017-Ohio-8779.]


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

IN RE: K.C.                                           C.A. No.      17CA011135
       A.G.


                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 15 JC 47069
                                                                 15 JC 47070

                                 DECISION AND JOURNAL ENTRY

Dated: December 4, 2017



        HENSAL, Presiding Judge.

        {¶1}     Appellant Mother appeals the judgment of the Lorain County Court of Common

Pleas, Juvenile Division, that granted legal custody of her children K.C. and A.G. to Paternal

Great Aunt and Uncle (“Aunt” and “Uncle”). For the following reasons, this Court affirms.

                                                 I.

        {¶2}     Mother is the biological mother of K.C. (d.o.b. 12/15/11) and A.G. (d.o.b.

8/22/15). Father is the biological father of A.G. Paternity was never established as to K.C.; and

that child’s alleged father did not participate in any proceedings, despite proper service. Aunt is

the biological paternal great aunt of A.G. and an interested third party relevant to K.C. Uncle is

an interested third party as to both children.

        {¶3}     In October 2015, Lorain County Children Services (“LCCS”) received a referral

alleging that the children were witnesses to domestic violence in the home between Mother and

Father, that Mother was using heroin and other drugs, that a drug deal in the parents’ home had
                                                2


resulted in a hostage situation involving the children, that Mother was experiencing mental

health issues, that the parents were recently evicted, and that Father had been incarcerated for

failing to register as a sex offender. LCCS initiated a safety plan for the family wherein the

children and Mother moved in with a paternal relative. A month later, LCCS filed a complaint

alleging that the children were neglected and dependent. A few days later, Mother agreed to

participate in the Lorain County Family Drug Court and participate in treatment at Lorain

County Alcohol and Drug Abuse Services, Inc. (“LCADA”) in an effort to address her substance

abuse issues. Unfortunately, Mother terminated her services at LCADA, leaving her ineligible

for further participation in the drug court.

       {¶4}    After contested hearings, K.C. and A.G. were adjudicated neglected and

dependent and placed in the temporary custody of Aunt with an order of protective supervision

to LCCS. The juvenile court adopted the agency’s case plan as the order of the court. Mother’s

case plan objectives included significant substance abuse, domestic violence, and mental health

components. In addition, Mother was required to obtain adequate and appropriate housing,

demonstrate the ability to meet the children’s basic needs, regularly visit with the children, and

cooperate with the caseworker.

       {¶5}    Five months after the initial disposition, LCCS filed a final dispositive motion for

legal custody to Aunt and Uncle and a termination of the agency’s protective supervision. Aunt

and Uncle both signed the requisite statement of understanding relevant to a third party’s

assumption of legal custody. A contested custody hearing took place before the magistrate

almost a year after the agency filed its complaints in this case, and approximately six weeks after

Mother relocated to Tennessee.        During closing arguments, Mother requested a six-month

extension of temporary custody. In her decision, the magistrate found that LCCS had used
                                                3


reasonable efforts to prevent the continued removal of the children from their home. She

awarded legal custody to Aunt and Uncle and terminated the agency’s order of protective

supervision. The juvenile court adopted the magistrate’s decision and ordered that the children

be placed in the legal custody of Aunt and Uncle and that the agency’s protective supervision be

terminated.

       {¶6}    Mother filed a timely objection, asserting only that the evidence did not support

the magistrate’s decision. She supplemented her argument with citations to the record after the

transcript of the hearing was filed. LCCS responded in opposition to Mother’s objection. After

hearing oral arguments, the juvenile court overruled Mother’s objection and adhered to its prior

order awarding legal custody and terminating protective supervision. Mother filed a timely

appeal in which she raises two assignments of error for review.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S GRANT OF LEGAL CUSTODY TO [ ] AUNT AND
       UNCLE, WHICH ENCOMPASSED A FINDING THAT LEGAL CUSTODY
       WAS IN THE “BEST INTERESTS” OF THE CHILDREN AND THAT THE
       AGENCY EXPENDED “REASONABLE EFFORTS” TO REUNIFY THE
       CHILDREN WITH MOTHER, AND ITS CORRESPONDING DENIAL OF
       MOTHER’S REQUEST FOR A SIX-MONTH EXTENSION, CONSTITUTED
       AN ABUSE OF DISCRETION AND WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶7}    Mother argues that the juvenile court’s findings that LCCS used reasonable

efforts to reunify the children with Mother and that an award of legal custody of K.C. and A.G.

to Aunt and Uncle was in the best interest of the children were against the manifest weight of the

evidence.

       On appeal, an award of legal custody will not be reversed if the judgment is
       supported by a preponderance of the evidence. Preponderance of the evidence
       entails the greater weight of the evidence, evidence that is more probable,
                                                  4


        persuasive, and possesses greater probative value. In other words, when the best
        interest of the child is established by the greater weight of the evidence, the trial
        court does not have discretion to enter a judgment that is adverse to that interest.
        Thus, our standard of review is whether a legal custody decision is against the
        manifest weight of the evidence.

(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-

Ohio-2685, ¶ 7.

        {¶8}   In considering whether the juvenile court’s judgment is against the manifest

weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in the evidence, the

[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations

omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the

evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”

Id. at ¶ 21.

        {¶9}   “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s

determination of whether to place a child in the legal custody of a parent or a relative is based

solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-

1330, ¶ 12. The statutory scheme regarding an award of legal custody does not include a specific

test or set of criteria, but Ohio courts agree that the juvenile court must base its decision to award

legal custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880,

2016-Ohio-7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In

that regard, the juvenile court is guided by the best interest factors enunciated in Revised Code

Section 2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187,

2008-Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17.
                                                5


Those factors include the interaction and interrelationships of the child, the child’s wishes, the

custodial history of the child, the child’s need for permanence, and whether any of the factors in

Section 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th

Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 16. In addition, the juvenile court may

also look to the best interest factors in Section 3109.04(F)(1) for guidance. In re K.A., 9th Dist.

Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. While some factors overlap with

those above, others include the child’s adjustment to his or her environment; the mental and

physical health of all persons involved; the parents’ history of providing support and honoring

companionship orders; certain indicia of violence, abuse, or neglect in any household involved;

and whether a parent plans to or has established a residence outside of Ohio.                 R.C.

3109.04(F)(1).

       {¶10} K.C. and A.G. have adjusted well in their home with Aunt and Uncle. Initially,

the then-4-year old K.C. was very angry when he was placed with his relatives. He threw

tantrums and toys. He hit and kicked Aunt, and punched another child in the home. However,

after counseling to address his violent behaviors, K.C. is no longer angry and has acclimated

peacefully to his current home. The children share a close bond with each other, as well as with

Aunt, Uncle, and an 8-year old cousin living in the home. K.C. has also adjusted well in school.

He interacts appropriately with classmates, appears happy, and volunteers. He is on target with

kindergarten readiness skills. Aunt and Uncle have addressed the child’s chronic ear infections

requiring removal of his adenoids, and his significant dental issues requiring eight root canals

and a filling. A.G. has been assessed by Help Me Grow and is developmentally on target as

well. She has no health issues.
                                                6


       {¶11} While Mother behaves appropriately during visitations with the children, and the

three clearly love each other, Mother has attended fewer than half of the visitations to which she

was entitled. After relocating to Tennessee, Mother engaged in video chats with the children at

least weekly, although it is unclear how meaningful such visitation would have been to the one

year old A.G.

       {¶12} K.C. was not quite four years old, and A.G. was almost three months old, when

they were removed from Mother’s home. By the time of the hearing, the children had spent

almost eleven months in Aunt’s and Uncle’s care. Given the young ages of the children, they

were not competent to articulate a custodial preference. The guardian ad litem reported that it

was in the best interest of the children to be placed in the legal custody of Aunt and Uncle based

on her concerns, and Mother’s admission to her, that Mother could not provide a home and

support for the children.

       {¶13} Although Mother argues that her case plan compliance indicates that she would be

able to provide a safe and stable permanent environment for the children in the near future, a

preponderance of the evidence demonstrates otherwise.        Her case plan objectives included

substance abuse, domestic violence, mental health, and basic needs components.

       {¶14} Mother has a significant substance abuse history. She is a recovering heroin

addict. Although she had not used heroin in five years, she had recently used other illegal

substances despite participation in multiple substance abuse treatment programs. After leaving

the program at LCADA, and thereby being terminated from Family Drug Court, Mother engaged

in and successfully completed a drug treatment program at Psych and Psych in April 2016.

Nevertheless, Mother tested positive for marijuana use in June 2016, and positive for both

marijuana and cocaine use in both July and August 2016. She blamed her relapse on stressors in
                                                 7


her life and the fact that she is a recovering addict. Specifically, although she identified Father

as a negative influence on her and a catalyst for her drug use, Mother explained that she used

marijuana and cocaine even after she broke up with Father because the break up resulted in her

having to leave the home the two shared, thereby leaving her homeless.

       {¶15} When Mother moved to Tennessee, she entered an inpatient treatment facility, but

left the six-month program after only ten days. Mother explained that she did not believe the

program was helpful, because it was solely faith-based and would not allow her to communicate

with anyone outside of “remedial family.” Mother claimed to have then enrolled in an outpatient

drug treatment program within days of leaving the inpatient facility. Mother testified that she

last used illegal drugs a little over a month before the hearing. Accordingly, Mother either used

drugs at the inpatient facility or in the short period of time between leaving the inpatient facility

and enrolling in outpatient treatment. After many years of substance abuse, Mother had attained

sobriety for just over a month at the time of the hearing. Although Mother’s grandmother, with

whom she lives in Tennessee, supports Mother’s efforts for rehabilitation, the grandmother

testified that she calls Mother’s boss every day to verify that Mother actually went to work

instead of someplace else to use drugs.

       {¶16} The caseworker referred Mother to Genesis House for a domestic violence

assessment. After submitting to the assessment, Mother began a 12-week domestic violence

group treatment program.      She attended two sessions and quit.        Although the caseworker

encouraged Mother to obtain a reassessment and return to treatment, Mother failed to do so.

Mother blamed her domestic violence issues on Father’s infidelity and their “toxic” relationship.

Mother admitted punching Father in the face in the summer of 2016, but “[m]ore or less in like

self-defense.” At the time of the hearing, there was a domestic violence charge pending against
                                                 8


Mother arising out of another incident when she ran over Father’s foot with her car in the fall of

2016.

        {¶17} As for mental health services, Mother engaged sporadically in treatment with

various providers, always leaving without successfully completing any programs. She engaged

in couples’ counseling with Father for two sessions, but stopped when she decided to leave

Father. Although she claimed to have ceased all contact with Father, he testified that Mother

continues to call him and just recently notified him that she was in town.

        {¶18} Mother also participated in mental health treatment at Charak Center, where she

was diagnosed with bipolar disorder and put on medication. Reasoning that because she had no

need for medication before meeting Father, Mother stopped taking her prescribed medication and

declared, “I don’t have a mental health problem.”

        {¶19} Given the ongoing concerns for Mother’s substance abuse, domestic violence, and

mental health issues, LCCS focused less attention on Mother’s ability to provide for the basic

needs of the children. However, the caseworker noted that Mother lost her housing in Ohio,

when she had to vacate the trailer she and Father had purchased together, after Father reported an

incident of domestic violence to the police. At the time of the hearing, Mother was living in her

aunt’s four-bedroom home in Tennessee with at least five other people. Her grandmother

testified that she planned to give Mother her home in Tennessee after a black mold problem in

two bedrooms was eradicated. That home had been in the process of rehabilitation for six

months, and Mother’s grandmother estimated it would take at least another six months due to

cost issues.   Notwithstanding her grandmother’s assertion that she would give Mother a

mortgage-free home in Tennessee, Mother’s future residency remains unclear. Mother testified
                                                9


that she plans to finish her treatment in Tennessee and then reengage with her counselor at Psych

and Psych, indicating an intention to return to Ohio. However, Mother had no housing in Ohio.

       {¶20} Nor did Mother have any definitive employment prospects in Ohio. On the other

hand, Mother found temporary part-time employment in Tennessee mowing grass. She recently

obtained alternative part-time employment at a fast food restaurant. Based on the evidence, it

remains unclear whether Mother intends to remain in Tennessee or return to Ohio.

       {¶21} Based on a review of the evidence, this is not the exceptional case where the

finder of fact clearly lost its way and created a manifest miscarriage of justice in awarding legal

custody of K.C. and A.G. to Aunt and Uncle. The evidence established that Mother had not

addressed the issues, namely substance abuse, domestic violence, and mental health, that

jeopardized the safety and stability of the children. Despite moving from one treatment program

to another, Mother continued to use drugs, including marijuana and cocaine. She had only been

sober for about a month at the time of the hearing. Moreover, Mother demeaned the seriousness

of her issues. She blames others, in particular Father, for her relapses into substance abuse and

her acts of domestic violence. In addition, she denies having any mental health issues, despite

being diagnosed with bipolar disorder. Mother admitted that she was not ready to assume

responsibility for the two children, and her lack of substantial progress on her case plan

objectives indicates that she would not likely have resolved her issues within the term of a six-

month extension of temporary custody.

       {¶22} On the other hand, the children are thriving in Aunt’s and Uncle’s home, where

all of their needs are being met. Aunt and Uncle have shown a dedication to the long term

safety, care, and support of the children.     They are agreeable to facilitating a relationship

between the children and Mother and Father. Under the circumstances, the juvenile court’s
                                                 10


finding that an award of legal custody to Aunt and Uncle was in the best interest of the children

was not against the manifest weight of the evidence.

       {¶23} Mother further argues that the juvenile court’s finding that LCCS used reasonable

efforts to facilitate reunification of the children with her was against the manifest weight of the

evidence.

       {¶24} Section 2151.419(A)(1) requires the agency to prove that it 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.” Moreover, “[i]n determining whether reasonable efforts were made, the child’s health

and safety shall be paramount.” Id. Although Chapter 2151 does not define “reasonable

efforts,” courts construe the term to mean “‘[t]he state’s efforts to resolve the threat to the child

before removing the child or to permit the child to return home after the threat is removed[.]’” In

re T.B.-W., 9th Dist. Summit No. 27544, 2015-Ohio-992, ¶ 15, quoting In re C.F., 113 Ohio

St.3d 73, 2007-Ohio-1104, ¶ 28, quoting Will L. Crossley, Defining Reasonable Efforts:

Demystifying the State’s Burden Under             Federal Child Protection Legislation, 12

B.U.Pub.Int.L.J. 259, 260 (2003).      “In a reasonable efforts determination, the issue is not

whether the agency could have done more, but whether it did enough to satisfy the

reasonableness standard under the statute.” In re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-

943, ¶ 21, citing In re Myers, 4th Dist. Athens No. 02CA50, 2003-Ohio-2776, ¶ 18.

       {¶25} Mother challenges the agency’s use of reasonable efforts to reunify her with the

children solely on the basis of the agency’s failure to discuss Mother’s treatment or prognosis

with service providers since her move to Tennessee six weeks before the hearing. However,

Mother decided without consultation with the caseworker to move to Tennessee to be with
                                                 11


family. The caseworker only learned a few weeks before the hearing after calling Mother for

information that Mother had started outpatient substance abuse treatment services in Tennessee.

Because Mother had only participated in outpatient treatment for three weeks of a twelve-week

program at the time of the hearing, it is unclear how the caseworker’s discussion with that

treatment provider so early into treatment would have revealed any additional relevant

information in this case. Moreover, as Mother had only remained in inpatient treatment after

shortly arriving in Tennessee for 10 days (of a six-month program) before leaving that facility

because she did not think the program was helpful, that service provider would have had no

information relevant to the issue of the likelihood of reunification.

       {¶26} On the other hand, the caseworker testified that throughout this case he (1)

implemented multiple safety plans for the family prior to adjudication and disposition, (2)

referred Mother to drug court, (3) referred Mother for various substance abuse programs, (4)

referred Mother for mental health services, (5) facilitated and attended multiple family team

meetings to discuss and implement case planning with the parties, and (6) conducted multiple

home visits to observe the parents, the caregivers, and the children. The record indicates that

Mother’s lack of insight into her accountability and her failure to consistently take advantage of

services, rather than a lack of reasonable efforts by the agency, prevented Mother’s reunification

with the children. Based on our review, we cannot conclude that the juvenile court’s finding that

LCCS made reasonable efforts to facilitate reunification of the children with Mother was against

the manifest weight of the evidence. Mother’s first assignment of error is overruled.
                                                12


                                     ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN CONSIDERING THE GAL REPORT IN
        MAKING ITS DETERMINATION REGARDING THE BEST INTERESTS OF
        THE CHILDREN, AS THE GAL DID NOT COMPLY WITH HER DUTY
        UNDER THE LAW TO CONDUCT AN ADEQUATE INVESTIGATION
        PRIOR TO GIVING HER RECOMMENDATION TO THE COURT.

        {¶27} Mother argues that the juvenile court erred in considering the report of the

guardian ad litem in rendering its judgment, because the guardian did not conduct a dutiful

investigation.   Mother failed to preserve this issue for appeal by failing to object below.

Although she filed an objection to the magistrate’s decision, Mother limited her objections to

challenging the weight of the evidence on the issues of reasonable efforts and the best interest of

the children. She never moved to strike the guardian’s report or otherwise objected to its

consideration by the juvenile court.

        {¶28} Juvenile Rule 40(D)(3)(b)(iv) provides:

        Except for a claim of plain error, a party shall not assign as error on appeal the
        court’s adoption of any factual finding or legal conclusion, whether or not
        specifically designated as a finding of fact or conclusion of law under Juv.R.
        40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
        required by Juv.R. 40(D)(3)(b).

Therefore, “[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s

decision, it may not be raised for the first time on appeal.” Varner v. Varner, 9th Dist. Wayne

No. 06CA0024, 2007-Ohio-675, ¶ 22. As Mother failed to challenge the performance of the

guardian ad litem in her objection, she has forfeited the issue on appeal, except for a claim of

plain error. See Juv.R. 40(D)(3)(b)(iv). Accordingly, Mother must demonstrate that it was plain

error for the juvenile court to have considered the report of the guardian ad litem in determining

the best interest of the children.
                                                 13


       {¶29} To date, this Court has declined to determine whether the criminal or civil plain

error standard is applicable to dependency, neglect, and abuse cases. In re S.G., 9th Dist.

Summit No. 27428, 2015-Ohio-2503, ¶ 11, citing In re D.S., 9th Dist. Summit No. 24619, 2009-

Ohio-3167, ¶ 10. Nor need we do so in this case, as Mother failed to show under either standard

that the juvenile court committed plain error in considering the guardian’s report.

       In the criminal context, plain error does not exist unless it can be said that but for
       the error, the outcome of the trial would have been different and that reversal is
       necessary to prevent a manifest miscarriage of justice. State v. White, 142 Ohio
       St.3d 277, 2015-Ohio-492, ¶ 57. The civil plain error standard may be applied
       only in the extremely rare case involving exceptional circumstances where error,
       to which no objection was made at the trial court, seriously affects the basic
       fairness, integrity, or public reputation of the judicial process, thereby challenging
       the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79
       Ohio St.3d 116 (1997), syllabus.

(Internal quotations omitted.) In re S.G. at ¶ 11.

       {¶30} The guardian ad litem visited the children at least monthly.             She observed

Mother’s interaction with the children during visits, as well as the children’s acclimation in the

caregivers’ home. She spoke with all parties, as well as the caseworker, to gather information.

She testified that she focused her investigation on the children, rather than on the parents. In

addition, the guardian ad litem explained that she had not had contact with Mother since she

moved to Tennessee, because Mother never contacted her. Mother testified that she changed her

phone number after moving to Tennessee to avoid calls from Father.

       {¶31} As discussed above, the juvenile court heard evidence from multiple witnesses,

including Mother herself, indicating concerns about Mother’s ability to provide the children with

a safe and stable environment.       The LCCS caseworker expressed serious concerns about

Mother’s failure to address her long term substance abuse, mental health, and domestic violence

issues, all of which would negatively affect her ability to provide necessary care for the children.
                                                14


Mother admitted that, even though she completed a substance abuse treatment program at Psych

and Psych, she continued to use illegal substances, including marijuana and cocaine as recently

as a month before the hearing. Mother also admitted that she punched Father in the face and that

there was a recent domestic violence charge pending against her for another incident with Father.

She further dismissed her recent mental health diagnosis for bipolar disorder and refused to take

her prescribed medication.     Regarding all of these issues, Mother refused to accept any

responsibility and blamed her substance abuse relapse, violent behavior, and alleged erroneous

mental health diagnosis on Father and the stress and influence he brought into her life.

       {¶32} As this Court concluded in an analogous case, “[e]ven if [Mother] could

demonstrate that the investigation of the guardian ad litem was insufficient in this case, it was

[Mother’s] own behavior, not the opinion of the guardian ad litem, that convinced the trial court

that [Mother] could not provide a suitable permanent placement for the children.” See In re K.T.,

9th Dist. Summit Nos. 28411, 28424, and 28440, 2017-Ohio-2638, ¶ 42. Here, Mother has

failed to demonstrate that the juvenile court’s consideration of the report of the guardian ad litem

was plain error. Mother’s second assignment of error is overruled.

                                                III.

       {¶33} Mother’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                15


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, 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.

       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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ROBERT CABRERA, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and PREETHI KISHMAN, Assistant Prosecuting
Attorney, for Appellee.

SHEILA DUFFEY, Guardian ad Litem.
