[Cite as In re J.C., 2017-Ohio-7149.]


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

IN RE: J.C.                                           C.A. No.    28550
       T.C.
       A.C.

                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. DN 14-06-354
                                                                 DN 14-06-355
                                                                 DN 14-06-356

                                  DECISION AND JOURNAL ENTRY

Dated: August 9, 2017



        CARR, Judge.

        {¶1}     Appellant, K.C. (“Mother”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that placed her minor children in the legal custody of

a maternal aunt. After the trial court issued its final judgment in this case, Mother filed a

suggestion of the unexpected death of her oldest child, J.C. Because the custody of J.C. has

tragically become moot, J.C. is dismissed from this case. This Court affirms the trial court’s

decision as it pertains to Mother’s other two children.

                                                 I.

        {¶2}     Mother is the biological mother of T.C., born January 20, 2012; and A.C., born

February 27, 2014. The children’s father was not involved in the trial court proceedings and did

not appeal from the trial court’s judgment.
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       {¶3}     On June 2, 2014, Summit County Children Services Board (“CSB”) filed

complaints to allege that Mother’s children were neglected and dependent.                 Mother has

significant cognitive delays and, although she had been working on a voluntary case plan for

many months, she was still unable to meet the children’s basic needs or provide them with a safe

and sanitary home. The children were adjudicated neglected and dependent and placed in the

temporary custody of CSB.

       {¶4}     While Mother’s children remained outside of her custody, she worked with in-

home service providers to improve the physical condition of her home. CSB did not dispute that,

with the assistance of in-home service providers, Mother was able to maintain a clean home

without the children there. The agency remained concerned, however, about Mother’s ability to

independently care for her children.     Mother did not consistently engage in case planning

services and failed to demonstrate an ability to care for the children without the assistance of

other adults.

       {¶5}     During May 2016, CSB moved for permanent custody and Mother alternatively

moved for legal custody of the children. The next day, CSB filed notice that it was decreasing

Mother’s supervised visitation time and relocating visitation from her home to the visitation

center. A hearing was later held before a magistrate. The parties agreed that CSB had been

making reasonable efforts to find a suitable permanent home for the children. The disputed

issues at the hearing were the appropriate length and level of supervision of Mother’s visits and

whether visitation should continue in her home or be returned to the visitation center.

       {¶6}     Although the magistrate decided that Mother’s visits should not change, the trial

court later set aside that ruling. The trial court held that Mother continued to require supervision

and that visitation should be relocated to the visitation center because Mother no longer qualified
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for assistance from a service provider that had been assisting with the supervision of her in-home

visits with the children.

          {¶7}   The final dispositional hearing was continued because the guardian ad litem

withdrew and a new guardian was appointed. Before the final dispositional hearing, the new

guardian ad litem filed a motion to place the children in the legal custody of a maternal aunt

(“Aunt”), who had been involved with the children throughout their lives and was prepared to

provide them with a permanent home. Following a hearing on the competing dispositional

motions, the trial court denied CSB’s motion for permanent custody and Mother’s motion for

legal custody and granted the motion to place the children in the legal custody of Aunt. Mother

appeals and raises two assignments of error, which will be addressed in reverse order to facilitate

review.

                                                II.

                                 ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT-
          MOTHER’S MOTION FOR LEGAL CUSTODY WHERE CSB FAILED TO
          USE REASONABLE EFFORTS TO REUNITE APPELLANT-MOTHER AND
          HER MINOR CHILDREN.

          {¶8}   Mother’s second assignment is that CSB failed to exert reasonable reunification

efforts in this case. She failed to challenge the efforts exerted by the agency prior to or during

the final dispositional hearing, however. Moreover, the record reveals that, by the time of the

final dispositional hearing, Mother had been receiving ongoing case planning services for more

than two years. CSB had connected Mother with numerous outside service providers, but

Mother did not consistently follow through with any of them. Although Mother now argues on

appeal that she did not understand what was expected of her on the case, the evidence in the

record demonstrates that Mother continued to deny that she was cognitively impaired and had
                                                 4


even been able to convince the Summit County Department of Developmental Disabilities

(“Summit DD”) that she no longer qualified for services.

       {¶9}    At the hearing held after CSB gave notice that it would decrease Mother’s

visitation time and relocate her visits to the visitation center, Mother’s only challenge to the

agency’s case planning efforts was that she should be allowed to have longer and unsupervised

visits with the children. Mother’s trial counsel stipulated that CSB had exerted reasonable

efforts to find a suitable permanent home for the children. The magistrate entered that stipulated

reasonable efforts finding on the record and Mother did not challenge that finding. Because

Mother has failed to argue or demonstrate ineffective assistance of trial counsel for failing to

raise a reasonable efforts challenge or plain error in the trial court’s ultimate reasonable efforts

finding, her second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DECISION TO GRANT LEGAL CUSTODY TO
       MATERNAL AUNT WAS NOT SUPPORTED BY CLEAR AND
       CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶10} Mother’s first assignment of error is that the trial court’s decision to place the

children in Aunt’s legal custody was not supported by the evidence. This Court emphasizes in

this case that, although the trial court placed Mother’s children in the legal custody of Aunt, it

denied CSB’s alternative motion for permanent custody of the children. The juvenile court’s

disposition of legal custody to a relative is a less drastic disposition than permanent custody to a

children services agency because it does not terminate parental rights but instead “leaves intact

‘residual parental rights, privileges, and responsibilities.’” In re Shepherd, 4th Dist. Highland

No. 00CA12, 2001 WL 802209, *7 (Mar. 26, 2001), quoting former R.C. 2151.011(B)(17).
                                                 5


Aunt emphasized to the trial court that she agreed to assume the role of legal custodian so that

Mother would be able to retain rights as the children’s mother.

       {¶11} “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.” See In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-

1330, ¶ 12. “Although there is no specific test or set of criteria set forth in the statutory scheme,

courts agree that the trial court must base its decision [regarding legal custody] on the best

interest of the child.” In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23, citing In re

Fulton, 12th Dist. Butler No. CA 2002-09-236, 2003-Ohio-5984, ¶ 11.

       {¶12} Mother asserts that she had made substantial progress on the reunification

requirements of the case plan, but the record demonstrates otherwise. Several witnesses testified

that Mother engaged in case plan services only sporadically. Early in the case, Mother was

receiving services from Summit DD but, because she missed so many appointments, many

service providers refused to work with her. She was later terminated from Summit DD services

because she convinced an assessor that she could care for herself. That same witness explained

that Mother’s disability assessment pertained only to her ability to care for herself, not for her

children.   Another witness from Summit DD testified that she believed that Mother

underreported her disability because she did not want to receive services. Although Mother was

twice scheduled to be reassessed by the state, she missed the scheduled appointments.

       {¶13} Mother participated in some counseling, but only on a sporadic basis.               Her

counselor testified that, because Mother had missed so many appointments, she would no longer

schedule appointments for Mother, but she allowed her to attend on a limited, walk-in basis. The
                                                      6


counselor further explained that she was working with Mother to help her cope with the stress in

her life, not on any of the goals of the case plan.

       {¶14} Moreover, Mother’s progress on the case plan may have been relevant to the best

interest of her children, but it was not dispositive. See, e.g., In re K.C., 9th Dist. Summit Nos.

26992, 26993, 2014-Ohio-372, ¶ 22, citing In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-

5003, ¶ 21. The primary focus of the trial court’s legal custody determination was the current

parenting ability of Mother and Aunt and whether it was in the best interest of the children to be

permanently placed in the legal custody of either of them. In re K.C. at ¶ 20.

       {¶15} The evidence pertaining to the best interest of the children fully supported the trial

court’s decision. “[T]his Court has held that the best interest test set forth in R.C. 2151.414(D),

although it relates to permanent custody, ‘provide[s] guidance’ in legal custody determinations.”

In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, quoting In re T.A., 9th Dist.

Summit No. 22954, 2006-Ohio-4468, ¶ 17. When determining the children’s best interest under

R.C. 2151.414(D), the juvenile court must consider all relevant factors, including the interaction

and interrelationships of the children, their wishes, their custodial history, and their need for

permanence in their lives. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-

6284, ¶ 11.

       {¶16} Throughout this case, Mother’s interaction with her children was limited to

supervised or monitored visitation. Witnesses agreed that Mother and the children love each

other and enjoy being together, but the evidence was not disputed that Mother lacked the ability

to care for her children without assistance. According to a social work assistant who supervised

some of mother’s visits, Mother’s interaction with the children during visits was “minimal[.]”
                                                 7


She explained that Mother tended to sit on the couch and watch the children and would intervene

only when the children began fighting.

       {¶17} Several visitation supervisors testified that they had to intervene during every visit

to prompt Mother to interact with the children and/or to protect the children from harming

themselves. Despite two years of redirecting Mother’s interaction with the children, those who

supervised the visits testified that they had seen little improvement in Mother’s ability to interact

with or supervise the children. The caseworker, a licensed social worker who had worked for

CSB for nearly 15 years, opined that Mother lacked the ability to care for her children on her

own.

       {¶18} CSB repeatedly planned to expand Mother’s visits with the children, but those

expanded visits did not occur because Mother continued to exercise “poor judgment” by

choosing to do something other than working toward reunification with her children. At one

point during the case, Mother was scheduled to have an expanded visit with her children but she

chose instead to go on an out-of-state trip with her boyfriend. Another time, Mother missed a

visit because she had been arrested for getting into an altercation with the children’s father, in

violation of a no contact order.

       {¶19} On the other hand, the children’s interaction with Aunt was positive. Aunt had

been involved with the children throughout their lives, had been regularly visiting them during

this case, and her home had been approved by CSB as a kinship placement. Aunt had visited the

children in the foster home twice a week to learn their daily routines. The foster mother testified

that Aunt did well with the children and that she “[d]efinitely” observed a bond between Aunt

and the children. The caseworker also testified about a positive bond between Aunt and the
                                                8


children and explained that CSB also supported legal custody to Aunt as the least restrictive

placement for the children.

       {¶20} The children’s interaction with Aunt had progressed to overnight visits at Aunt’s

home. Aunt testified that she was prepared to assume the role of the children’s legal custodian,

that she “fully understood” that role, and explained that she wanted to help Mother retain some

of her parental rights. Aunt and Mother have other family members who were prepared to assist

Aunt with the children and their visits with Mother.

       {¶21} The guardian ad litem testified that the children were not mature enough to

express their own wishes, so she spoke on their behalf. She had filed the motion for legal

custody to Aunt because Aunt was able to provide appropriate care for the children and would

maintain a good relationship between Mother and the children. The guardian ad litem expressed

“grave concerns” about Mother’s ability to independently care for the children on a daily basis.

She explained that Mother did not seem to appreciate that her obligation to her children was

more than providing them with a clean home and emphasized that the children were young,

active, and “need constant direction.”

       {¶22} Mother’s children had been living in a temporary placement for nearly two years

and were in need of a legally secure permanent placement. The trial court reasonably concluded

that placing them in the legal custody of Aunt would provide them with such a placement and

would also allow them to maintain a relationship with Mother.

       {¶23} Mother has failed to demonstrate that the trial court erred in concluding that legal

custody to Aunt was in the best interest of the children. Mother’s first assignment of error is

overruled.
                                                 9


                                                III.

       {¶24} Mother’s assignments of error are overruled. The appeal is dismissed, in part, as

it relates to J.C. The judgment of the Summit County Court of Common Pleas, Juvenile

Division, is affirmed.

                                                                         Appeal dismissed, in part,
                                                                           and 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.




                                                       DONNA J. CARR
                                                       FOR THE COURT



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

PAUL GRANT, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
