[Cite as In re M.S., 2019-Ohio-4150.]


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

IN RE: M.S.                                          C.A. No.      29348



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE No.   DN 17-04-0284

                                 DECISION AND JOURNAL ENTRY

Dated: October 9, 2019



        SCHAFER, Judge.

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

Pleas, Juvenile Division, that placed the child M.S. in the legal custody of his maternal

grandfather (“Grandfather”). This Court affirms.

                                                I.

        {¶2}     Mother is the biological mother of M.S. (d.o.b. 10/3/08). The child’s father is

deceased. Mother has mental health, physical, and medical issues that prevent her from living

independently. M.S. was living with Mother in a home with the child’s maternal grandmother

(“Grandmother”) and step grandfather (“Step Grandfather”) when Summit County Children

Services Board (“CSB” or “the agency”) filed a complaint alleging multiple bases that the child

was an abused and dependent child. Specifically, CSB alleged that M.S. had been sexually

abused by Step Grandfather and physically abused by all three adult household members, that the

child was exhibiting sexualized behaviors and mental health issues, that Mother exhibited mental
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health issues, and that Grandmother and Step Grandfather were evicting Mother and M.S. from

the home. CSB obtained an emergency order of temporary custody of the child and placed him

with an aunt. When that placement later disrupted, M.S. was placed with Grandfather.

       {¶3}   Mother waived her rights to an adjudicatory hearing and the parties stipulated that

M.S. was a dependent child. CSB withdrew its allegations of abuse. Mother again waived her

rights to a hearing at disposition and agreed to an order placing the child in the temporary

custody of CSB. The juvenile court adopted the agency’s proposed case plan as the order of the

court. CSB later moved for a first six-month extension of temporary custody, which the juvenile

court granted based on an agreement by the parties.

       {¶4}   When M.S. had been out of his home for ten months, CSB filed a motion for legal

custody to a relative, specifically Grandfather. Mother filed a motion for legal custody. The

magistrate heard the matter and issued a decision granting the agency’s motion and placing the

child in the legal custody of Grandfather. Mother filed timely objections to the magistrate’s

decision.

       {¶5}   The juvenile court issued a judgment in which it overruled Mother’s objections,

placed M.S. in the legal custody of Grandfather, granted Mother liberal visitation with the child

in the community or Grandfather’s home, issued a $0 child support order, and prohibited the

child from being near Step Grandfather. The juvenile court appointed appellate counsel for

Mother and she filed a timely appeal.

                                               II.

       {¶6}   In lieu of a merit brief, appellate counsel filed a brief on Mother’s behalf pursuant

to Anders v. California, 386 U.S. 738 (1967), and sought permission to withdraw from further

representation in this appeal. Appellate counsel served Mother with a copy of the brief, and this
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Court’s magistrate issued an order allowing Mother the opportunity to file a response. Mother

filed a timely response.

       {¶7}    Mother’s appellate counsel submitted one possible issue for review: whether the

juvenile court’s award of legal custody of M.S. to Grandfather was against the manifest weight

of the evidence. Appellate counsel concluded that the argument lacks merit. In her response,

Mother echoes the argument that the juvenile court’s judgment was 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,
       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 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-
                                                  4


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 R.C.

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. 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 R.C.

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 and 26977, 2014-Ohio-2748, ¶ 16.

       {¶10} This Court has fully and independently reviewed the record, and we agree with

Mother’s counsel that there is no merit to the proposed issue. The juvenile court’s award of legal

custody to Grandfather is not against the manifest weight of the evidence. The environment in

the home Mother shares with Grandmother and Step Grandfather continues to be stressful and

contentious. Mother reported to her behavioral health specialist that she and Grandmother

engage in screaming matches over disagreements regarding the discipline of the child. Both the

behavioral health specialist and Mother’s mental health counselor testified that Mother reported

ongoing sexual abuse by Step Grandfather and Mother’s stepbrother wherein the men would

touch Mother’s breasts and make sexually explicit comments to her. The specialist testified that

Step Grandfather gave Mother money as a child in exchange for touching her breasts, but that the

payments stopped as Mother got older. Although Mother denied during her testimony that the

sexual groping continued, she admitted that Step Grandfather touched her breasts on one
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occasion approximately ten years earlier and that Grandmother was aware of the incident. It was

Mother’s understanding that Step Grandfather attended one counseling session as a result of the

incident and that the counselor had no concerns.

       {¶11} M.S. reported that Step Grandfather has fondled the child’s penis during showers.

Both Mother and Grandmother testified that the child later said that he had lied about the sexual

touching. Mother does not believe that Step Grandfather would ever do such a thing despite her

own admission that he had touched her inappropriately.

       {¶12} Mother suffers from numerous physical and mental ailments. She has epilepsy,

hydrocephalus, depression, and debilitating anxiety that cannot be controlled by medication.

Mother readily admitted that she is unable to live independently and that she relies on

Grandmother and Step Grandfather for care and support. Both Mother’s behavioral health

specialist and counselor agreed that Mother could not independently take care of herself, let

alone a child. Grandmother described every day for Mother as a struggle and admitted that

Mother would not be able to protect herself from unwanted touchings by other household

members due to her disabilities. Despite the indication that Step Grandfather had touched both

Mother and M.S. inappropriately without any intervention by Grandmother, Grandmother

asserted that she would be able to protect both Mother and the child in her home.

       {¶13} The child’s guardian ad litem reported that his sole concern is the child’s

exposure to Step Grandfather based on accusations against Step Grandfather by both Mother and

M.S. despite the child’s subsequent recanting of the allegations.        The guardian ad litem

recognized the love and bond between Mother and the child, as well as the physical adequacy of

Mother’s home.     Nevertheless, because Mother is incapable of living independently and

protecting herself and/or the child, and because she resides with Step Grandfather who poses a
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potential risk to M.S., the guardian ad litem opined that it would be in the child’s best interest to

reside in the legal custody of Grandfather.

       {¶14} The guardian ad litem reported that Grandfather’s home is appropriate and that

the child is comfortable and well-adjusted there. M.S. is doing well in school and his behavioral

issues have abated.     The child demonstrates love and respect for Grandfather.           The two

particularly enjoy fishing together. Although the child expressed a desire to live with Mother

and have access to his games, toys, and prior bedroom, M.S. has reported being angry with

Grandmother and Step Grandfather due to the arguing and “chaos” in that home. In the best

interest of the child, the guardian ad litem recommended legal custody to Grandfather, liberal

unsupervised visitation between Mother and the child, and no unsupervised contact between

M.S. and Step Grandfather.

       {¶15} Upon review of the record, this Court agrees with Mother’s appellate counsel that

the manifest weight of the evidence argument does not present a meritorious and non-frivolous

issue for consideration on appeal.

       {¶16} Mother independently argues that her efforts to regain custody of the child were

prejudiced by a caseworker who modified Mother’s case plan objectives in a manner to which

Mother did not agree. “A party may not object to matters regarding case plan implementation

for the first time on appeal.” In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 33.

The record contains no indication that Mother objected to any case plan proposed by CSB.

                                                III.

       {¶17} Having independently and fully reviewed the record and having found that no

appealable issues exist, this Court concludes that Mother’s appeal is meritless and wholly

frivolous pursuant to Anders. Mother’s appellate counsel’s motion to withdraw from further
                                                 7


representation is granted.   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.

       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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CALLAHAN, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

C.S., pro se, Appellant.

AMBER CROWE, Attorney at Law, for Appellee.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant
Prosecuting Attorney, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.
