[Cite as In re B.H., 2011-Ohio-1967.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA




                            JOURNAL ENTRY AND OPINION
                                     No. 95794




                                          IN RE: B.H.

                                        A Minor Child
                                        (Appeal by Mother)




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. AD 08940290

        BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT

Anita Barthol Staley
7327 Center Street
Mentor, OH 44060

ATTORNEYS FOR APPELLEE
CUYAHOGA COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES

William D. Mason
Cuyahoga County Prosecutor

BY: Gina S. Lowe
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144

Also listed:

Guardian Ad Litem for Child

Brian Sharken
P.O. Box 770824
Lakewood, OH 44107

Guardian Ad Litem for Mother

Daniel B. Wolf
4186 Wilmington Road
South Euclid, OH 44121

For Father

M.H., pro se
2416 Park Place
Westlake, OH 44145
SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant J.S. (“mother”) appeals the judgment of the Cuyahoga

County Court of Common Pleas, Juvenile Court Division, that awarded legal

custody of her child (B.H.) to the child’s maternal aunt and uncle.1 For the

reasons stated herein, we affirm the judgment of the trial court.

      {¶ 2} B.H. was born in October 2008 and is mother’s child.          At the time

of B.H.’s birth, mother had a long history of being homeless and unemployed,

as well as a history of significant, untreated mental health issues.              She

previously had six other children removed from her care. B.H.’s father has

criminal convictions for rape and sexual imposition.

      {¶ 3} On November 7, 2008, the Cuyahoga County Department of

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

and temporary custody of B.H., who was alleged to be a dependent child. On

January 29, 2009, the juvenile court adjudicated B.H. a dependent child and

committed B.H. to the temporary custody of CCDCFS.

      {¶ 4} As part of the case plan, mother was to obtain stable housing and

employment and maintain her mental health stability.               In the course of

proceedings, mother obtained housing, but was served with an eviction notice.


      1
         The parties are referred to herein by their initials or title in accordance
with this court’s established policy regarding non-disclosure of identities in juvenile
cases.
 She initially obtained employment with Crestmont North Healthcare, but

purportedly was terminated due to a “no call, no show,” although mother

claims she resigned.

     {¶ 5} CCDCFS filed two initial motions to modify temporary custody to

legal custody because mother was still without stable housing and

employment, and had not obtained mental health counseling.        The initial

motions were denied.

     {¶ 6} CCDCFS filed a third motion on April 20, 2010, after the child

had been in the custody of CCDCFS for over 14 months. At the time of the

hearing, mother had obtained housing and was employed at the Eliza

Jennings Nursing Home.         She had not yet obtained mental health

counseling, although she had made efforts to do so.        She also provided

evidence that she was not currently presenting as mentally ill. There was

evidence that mother consistently visits with B.H. and B.H. is bonded with

mother. Mother does have shared parenting over one of her other children,

over which no concern was expressed.

     {¶ 7} B.H. has been residing in the home of her maternal aunt and

uncle since she was born and has been doing well in their care. CCDCFS

presented some evidence concerning allegations that the mother had used

laxatives on the child as a baby, gave the baby coffee and chicken wings, and

maintained a relationship with the father of B.H., despite a no-contact order.
CCDCFS further claimed that despite mother’s recent employment and

housing, she had not demonstrated stability and had yet to receive

psychological counseling services. The guardian ad litem recommended that

it was in B.H.’s best interest to grow up in a safe and stable environment and

that she remain in the care of her maternal aunt and uncle.

      {¶ 8} Following the hearing, the juvenile court awarded legal custody of

B.H. to her maternal aunt and uncle. Mother timely filed this appeal. In

her sole assignment of error, mother challenges the decision of the trial court

to modify temporary custody to legal custody.

      {¶ 9} After a child is adjudicated abused, neglected, or dependent, the

trial court may award legal custody to a non-parent upon finding, by a

preponderance of the evidence, that legal custody is in the child’s best

interest. In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d

552; R.C. 2151.353(A)(3); R.C. 2151.415(B). When an award of legal custody

is made, the parents of the child retain residual parental rights, privileges,

and responsibilities. R.C. 2151.353(A)(3)(c).

      {¶ 10} An appellate court will not reverse an award of legal custody

absent a showing of an abuse of discretion. Id. To constitute an abuse of

discretion, the ruling must be unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
         {¶ 11} In this case, the juvenile court considered the history of

instability in mother’s housing and employment.             Though mother had

obtained housing, she was evicted by a previous landlord earlier in the year.

There also was evidence that mother did not maintain her employment with

Crestmont North Healthcare. She had since found other employment, but

was not consistently working because of an injury sustained on the job. She

also had not engaged in any psychological counseling services. The hearing

was held approximately a year and a half after B.H. had been committed to

the temporary custody of CCDCFS.             Additionally, the court recognized

father’s criminal history, his failure to complete parenting education, and his

failure to maintain consistent contact with the child.

         {¶ 12} The court found that mother had not fully complied with all of the

objectives of the case plan.     The court considered the guardian ad litem’s

recommendation that legal custody be awarded to the maternal aunt and

uncle.     The court determined that legal custody would be in B.H.’s best

interest, whereas a return to her mother’s home would be contrary to the

child’s best interest and welfare. Although legal custody was awarded, the

court ordered that “mother shall be provided with reasonable visitation with

the child as agreed upon by the parties and as in the best interest of the

child.”
      {¶ 13} Upon our review of the record, we find that the trial court’s

decision that an award of legal custody to B.H.’s maternal aunt and uncle is

in the child’s best interest is supported by the preponderance of the evidence.

We also believe that the child’s best interests are being served by placement

in a stable and secure environment.      Accordingly, the trial court did not

abuse its discretion and we overrule appellant’s sole assignment of error.

      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.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
