[Cite as In re R.D.J., 2013-Ohio-1999.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF R.D.J., I.E.J.,               :   JUDGES:
W.AJ., S.J.J. AND A.J., DEPENDENT              :
CHILDREN                                       :   Hon. John W. Wise, P.J.
                                               :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
                                               :
                                               :   Case No. 12 CAF 07 0046
                                               :
                                               :
                                               :
                                               :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Delaware County
                                                   Court of Common Pleas, Juvenile
                                                   Division, Case Nos. 10-12-2836-01-C,
                                                   10-12-2837-01-C, 10-12-2838-01-C,
                                                   10-12-2839-01-C, 10-12-2921-01-C



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 5, 2013



APPEARANCES:

For Appellant M.H.:                                For Appellee: Delaware County
                                                   Department of Job and Family
                                                   Services:
PAMELLA LAMMON                                     KATHRYN L. MUNGER
103 N. Union St.                                   140 N. Sandusky Street, 3rd Floor
Delaware, OH 43015                                 Delaware, OH 43015
Baldwin, J.

       {¶1} Appellant M.H. appeals a judgment of the Delaware County Common

Pleas Court, Juvenile Division, awarding legal custody of her daughter I.E.J. and her

son A.J. to the foster families with which they resided and legal custody with protective

supervision of W.A.J. and S.J.J. to their natural father.     Appellee is the Delaware

County Department of Job and Family Services.

                            STATEMENT OF FACTS AND CASE

       {¶2} Appellant is the natural mother of R.D.J. (dob 12/29/04), I.E.J. (dob

10/12/07), W.A.J. (dob 12/16/08), S.J.J. (dob 10/11/09), and A.J. (dob 12/10/10). A

sixth child, A.J., was born on 2/19/12 and is not a part of the instant case. The natural

father of the children, R.J., has never been married to appellant, but they live together.

       {¶3} The family first came to the attention of Franklin County Children’s

Services (FCCS) due to concerns that appellant was not taking medication for bipolar

disorder while caring for R.D.J. She was diagnosed with bipolar disorder, avoidant

personality, anger control issues, and anxiety.     R.D.J. remained in the custody of

appellant and his father, with protective supervision. The parents were referred to

parenting classes, counseling and Help Me Grow. Help Me Grow terminated services

due to non-compliance. Protective supervision was terminated on October 2, 2006.

       {¶4} The case was reopened in July of 2007.              R.D.J. was adjudicated

neglected and dependent and placed in the temporary custody of FCCS. I.E.J. was

born during this time, and she also was placed in the temporary custody of FCCS from

October 12, 2007 through January 14, 2009. When the children were returned in

2009, FCCS retained protective supervision over I.E.J. FCCS’s concerns included
appellant’s arrest for assaulting the father of the children, the father’s arrest for

outstanding traffic warrants, appellant’s history of physical aggression, a pattern of

unexplained bruising, and relationship and anger issues between the parents. During

supervised visits, appellant had difficulty handling the children. She would sit on the

couch and yell at the children and call them inappropriate names. Further, her mental

health issues were not consistently treated.

       {¶5} In September and October of 2009, FCCS investigated two incidents of

unexplained bruising to I.E.J. She was placed outside the home from September 21,

2009 through October 19, 2009, while FCCS investigated. She was returned home

and four days later she had a black eye.        She was removed for thirty days by

agreement of the parents while FCCS investigated.

       {¶6} On December 9, 2009, the court in Franklin County removed all of the

children from the home due to safety concerns.         Despite parenting classes, the

parents continued to struggle with parenting the children during visits. R.D.J. was

struck in the face by appellant during an unsupervised visit in December of 2010.

Appellant screamed at the caseworker and pushed the children’s father and R.D.J.

upon learning that future visits would be supervised due to R.D.J. being hit in the face

during the unsupervised visit. When the foster parents arrived to pick up the children,

I.E.J. ran down the street, clutching a doll. Appellant chased her and yelled, “give me

my fucking toy back.”    The police were called after appellant grabbed the foster

mother. Michele Reynolds, who was the caseworker during this time, described visits

as very hectic and chaotic with the parents unable to handle the behavior problems of

the children.
      {¶7} In January of 2011, the case was certified to Delaware County as the

result of a motion filed by FCCS. The parents moved to Delaware in 2010. The case

plan in Delaware County required appellant to be referred to the Board of

Developmental Disabilities, take parenting classes, complete an anger management

program, participate in individual and couples counseling, and consistently take

medication for her mental illness.

      {¶8} Kelsie Clark was assigned as the caseworker on the case from January

10, 2011 to February 7, 2012.         She found that sometimes the parents were

cooperative, and sometimes they were defensive. The visits Clark supervised varied

from chaotic with the children hitting each other and the parents yelling excessively, to

more appropriate visits. The children were often physically aggressive toward each

other and threw tantrums during visits. The parents were not always aware of the

children’s violence toward each other during visits. During one visit, R.D.J. pulled

down his pants and told his sister I.E.J. to “suck his peepee.” The parents were

instructed after this incident to keep the children away from each other unless

supervised.

      {¶9} Despite continued concerns for the safety of the children during visits,

the children were placed with their parents for an extended home visit in March and

April of 2012.   During this time, the director of the day care center the children

attended reported multiple bruises to I.E.J., W.A.J. and S.J.J.

      {¶10} Appellee filed a motion seeking permanent custody of the children on

October 3, 2011. The case proceeded to a fifteen day trial in the Delaware County

Common Pleas Court, Juvenile Division, beginning November 16, 2011, and
concluding on May 23, 2012. On April 9, 2012, the guardian ad litem for the children

filed a motion to grant legal custody of the children to the two foster families where

they were placed. During trial, the court dismissed the motion for permanent custody

of R.D.J., as he had been returned to the legal custody of his father.

      {¶11} The trial court overruled the motion for permanent custody. The court

granted legal custody of I.E.J. and A.J. to the two separate foster families with which

they had been residing. Legal custody of W.A.J. and S.J.J. was returned to father,

with appellee retaining protective supervision.

      {¶12} Both parents appealed. Father dismissed his appeal on April 12, 2013.

      {¶13} Appellant assigns two errors on appeal:

      {¶14} “I. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN

ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE WHEN IT AWARDED LEGAL CUSTODY OF I.E.J. AND A.J. TO TWO

SEPARATE SETS OF FOSTER PARENTS UNDER R.C. 2151.353.”

      {¶15} “II. WHETHER THE JUDGMENT OF THE TRIAL COURT KEEPING

THE CASE ON W.A.J AND S.J.J. OPEN AFTER DENYING THE DELAWARE

COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES’ (DCDJFS) MOTION

FOR PERMANENT CUSTODY IS AN ABUSE OF DISCRETION.”

                                           I.


      {¶16} In her first assignment of error, appellant incorporates father’s arguments

from his brief in his dismissed appeal concerning the award of legal custody to two

separate foster families, and also argues that the judgment was against the manifest

weight of the evidence.
       {¶17} Father argued that the motion for legal custody was not timely, the legal

custodians did not sign a statement of understanding, and the legal custodians were

not present throughout the entire hearing pursuant to R.C. 2151.353(A)(3), which

provides:

       {¶18} “(A) If a child is adjudicated an abused, neglected, or dependent child, the

court may make any of the following orders of disposition:

       {¶19} “(3) Award legal custody of the child to either parent or 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. A person identified in a

complaint or motion filed by a party to the proceedings as a proposed legal custodian

shall be awarded legal custody of the child only if the person identified signs a

statement of understanding for legal custody that contains at least the following

provisions:

       {¶20} “(a) That it is the intent of the person to become the legal custodian of the

child and the person is able to assume legal responsibility for the care and supervision

of the child;

       {¶21} “(b) That the person understands that legal custody of the child in question

is intended to be permanent in nature and that the person will be responsible as the

custodian for the child until the child reaches the age of majority. Responsibility as

custodian for the child shall continue beyond the age of majority if, at the time the child

reaches the age of majority, the child is pursuing a diploma granted by the board of

education or other governing authority, successful completion of the curriculum of any
high school, successful completion of an individualized education program developed

for the student by any high school, or an age and schooling certificate. Responsibility

beyond the age of majority shall terminate when the child ceases to continuously pursue

such an education, completes such an education, or is excused from such an education

under standards adopted by the state board of education, whichever occurs first.

         {¶22} “(c) That the parents of the child have residual parental rights, privileges,

and responsibilities, including, but not limited to, the privilege of reasonable visitation,

consent to adoption, the privilege to determine the child's religious affiliation, and the

responsibility for support;

         {¶23} “(d) That the person understands that the person must be present in court

for the dispositional hearing in order to affirm the person's intention to become legal

custodian, to affirm that the person understands the effect of the custodianship before

the court, and to answer any questions that the court or any parties to the case may

have.”

         {¶24} Appellant agreed to hear the motion for legal custody at the same time

as the permanent custody motion. Tr. 871. Therefore, any error in the timing of the

motion has been waived.

         {¶25} Further, appellant failed to object to the failure of the court to require the

foster families to sign a written statement of understanding, and has therefore waived

all but plain error. In re A.V.O., 9th Dist. Nos. 11CA010115, 11CA010116,

11CA010117, 11CA010118, 2012-Ohio-4092, ¶8. In order to prevail under a plain

error analysis, appellant bears the burden of demonstrating that the outcome of the

trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978); Notice of plain error “is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” Id. at paragraph three of the syllabus.

       {¶26} Appellant has not demonstrated plain error in the court’s failure to

require the two foster families to sign a statement of understanding.        Both foster

mothers testified at trial that they were willing to accept legal custody and to allow

visitation with the parents if they received legal custody.

       {¶27} Appellant also argues that the foster parents were not present for the

entire dispositional hearing as required by R.C. 2151.353(A)(3)(d). Again, appellant

did not object, and in fact invited any error by moving for a separation of witnesses.

Further, the statute does not require that the legal custodian be present for the entire

hearing. Both foster mothers testified at trial and affirmed their willingness to become

legal custodians and their understanding of what that status means, and they were

subject to questioning by the parties.

       {¶28} Finally, appellant argues that the judgment was against the manifest

weight of the evidence because the siblings are now divided.

       {¶29} On appeal, we will not reverse an award of legal custody absent an

abuse of discretion. In re Gales, 10th Dist.. No. 03AP–445, 2003–Ohio–6309; In re

Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (2001). Abuse of discretion connotes

more than an error of law or judgment. Rather, it implies that the trial court's decision

was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). “‘[L]egal custody where parental rights are not

terminated is not as drastic a remedy as permanent custody’.” In re A. W.-G., 12th
Dist. No. CA2003–04–099, 2004–Ohio–2298, at ¶ 7, quoting Nice at 455, 751 N.E.2d

552. Therefore, the trial court's standard of proof in legal custody proceedings is not

clear and convincing evidence, as it is in permanent custody proceedings, but is

merely a preponderance of the evidence. Nice at 455, 751 N .E.2d 552; In re A. W.-G;

In re Law, 5th Dist. No.2003 AP 06 45, 2004–Ohio–117.

       {¶30} The trial court’s decision to award legal custody of I.E.J. to her foster

family and separate her from her siblings is not an abuse of discretion or against the

weight of the evidence. She has been out of the parents’ home the majority of her life,

and was placed with the foster family when she was two days old. She views the

foster family as her own and does not want to visit her parents. Appellant has not

formed a bond with I.E.J., speaks negatively to her during visits and is more

aggressive in her handling of I.E.J. She returned home from visits with unexplained

bruising, and there was evidence of violence between the children and evidence that

appellant once pulled her out of the room by her ankles. On another occasion, I.E.J.

vomited on her shirt on the car ride to a visit and appellant did not want her shirt

changed. Appellant told I.E.J. that she was too fat and heavy to hold, and at another

visit told I.E.J. that she’s fat and smells bad. There was abundant evidence from

which the court could conclude that I.E.J. is at best ignored and at worst treated badly

when she is with her parents and her other siblings. The court did not abuse its

discretion in awarding legal custody to the foster family.

       {¶31} A.J. has hearing loss. The foster family has purchased a Baha band to

aid in A.J.’s hearing.   They have received training on use of the band and daily

maintenance for the band. They further have worked with a hearing specialist and
with the school regarding A.J.’s specialized needs. Because of the band, A.J. is very

sensitive to background noise and it is important that noise be minimized when he is

wearing the band. As noted by the court, “The overwhelming theme throughout the

testimony is that of chaos. The [J/H] home is generally loud. The children run, play

and yell. While this may be normal for children of their ages, it is not conducive to

[A.J’s] specialized needs.” The court did not abuse its discretion in awarding legal

custody of A.J. to the foster family.

       {¶32} The first assignment of error is overruled.

                                               II.

       {¶33} In her second assignment of error, appellant incorporates the argument

made by father in his brief that the trial court did not have authority to award appellee

protective supervision over W.A.J. and S.J.J. while awarding legal custody to father.

       {¶34} Appellant relies on In re C.B., 129 Ohio St. 3d, 231, 2011-Ohio-2899,

951 N.E.2d 398. In that case, the Ohio Supreme Court held that an order which

denies a children services agency's motion to modify temporary custody to permanent

custody, terminates the placement of temporary custody with the agency, and awards

legal custody to a parent is a final, appealable order. Id. at syllabus. Nothing in that

case prohibits a court from awarding legal custody to a parent and at the same time

giving the agency protective supervision over the children.

       {¶35} R.C. 2151.353(A) provides in pertinent part:

       {¶36} “(A) If a child is adjudicated an abused, neglected, or dependent child,

the court may make any of the following orders of disposition:

       {¶37} “(1) Place the child in protective supervision;
       {¶38} “(2) Commit the child to the temporary custody of a public children

services agency, a private child placing agency, either parent, a relative residing within

or outside the state, or a probation officer for placement in a certified foster home, or

in any other home approved by the court;

       {¶39} “(3) Award legal custody of the child to either parent or 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.”

       {¶40} The statute does not limit a court to only one dispositional alternative,

and the word “any” usually refers to one or more of a specific quantity. In re Pryor, 86

Ohio App. 3d 327, 337, 620 N.E.2d 973 (4th Dist. 1993). While as a practical matter

most instances will involve the use of only one dispositional alternative, there is no

rule of law which restricts the court’s options. Id.

       {¶41} In the instant case, there is abundant evidence to support the court’s

decision to place the children in protective supervision. The transcript is rife with

testimony that the household is chaotic, the parents at times have great difficulty

controlling the behavior of the children who are violent with each other, and the

children often have unexplained bruising while in the care of the parents. Further,

while the parents, particularly the father, have made progress on the case plan and in

dealing with the children, the court and appellee remain concerned about appellant’s

mental illness as well as R.D.J.’s mental illness and the effect their problems could

have on the household.
      {¶42} The second assignment of error is overruled.     The judgment of the

Delaware County Common Pleas Court, Juvenile Division, is affirmed.



By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.



                                     HON. CRAIG R. BALDWIN



                                     HON. JOHN W. WISE



                                     HON. PATRICIA A. DELANEY


rad/CRB
         IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                       FIFTH APPELLATE DISTRICT


                                    :
IN THE MATTER OF R.D.J., I.E.J.,    :
W.A.J., S.J.J. AND A.J.,            :
DEPENDENT CHILDREN                  :       JUDGMENT ENTRY
                                    :
                                    :
                                    :
                                    :       Case No. 12 CAF 07 0046
                                    :
                                    :
                                    :
                                    :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas, Juvenile Division,      is affirmed.   Costs

assessed to Appellant.




                                    HON. CRAIG R. BALDWIN



                                    HON. JOHN W. WISE



                                    HON. PATRICIA A. DELANEY
