[Cite as In re T.R., 2018-Ohio-1144.]


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

IN RE: T.R.                                             C.A. No.     28619



                                                        APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
                                                        COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
                                                        CASE No.   DN 16-06-0485

                                 DECISION AND JOURNAL ENTRY

Dated: March 28, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Appellant, R.R. (“Father”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that placed his minor child in the legal custody of the

child’s mother, S.B. (“Mother”).         Because the trial court’s legal custody decision was not

supported by a preponderance of the evidence about the best interest of the child, this Court

reverses and remands for a new hearing.

                                                   I.

        {¶2}     Father and Mother are the biological parents of T.R., born April 8, 2015.

Although Mother has four older children, T.R. is the only child at issue in this appeal. At the

time this case began, T.R. lived with Mother, who did not reside with Father. T.R. was removed

from Mother’s custody pursuant to Juv.R. 6 when Mother was pulled over for a traffic stop and

was arrested on an outstanding felony warrant. Mother was then involved in drug treatment in
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lieu of conviction on criminal charges of identity fraud and misuse of a credit card, but she had

not complied with court-ordered treatment.

       {¶3}    CSB filed a complaint to allege that T.R. was a dependent child because Mother

admitted that she had struggled with opiate addiction and associated criminal activity for several

years and that one of her older children was born with drugs in her system. CSB further alleged

that three of Mother’s older children were in the custody of their fathers because of Mother’s

unresolved opiate addiction. CSB was not prepared to place the child with Father because he

was “an alleged perpetrator of past substantiated sexual abuse.”

       {¶4}    T.R. was later adjudicated dependent and placed in the temporary custody of

CSB. The case plan required that Mother resolve her drug abuse and criminal problems. During

the next several months, according to the limited evidence in the record, Mother consistently

engaged in drug treatment, achieved ongoing medically-assisted sobriety, and resolved her

criminal issues.

       {¶5}    Because of the allegations that Father had been a sexual perpetrator and his own

admission that he had been diagnosed with “chronic depression and manic depression[,]” the

primary case plan requirement for Father was that he obtain a psychological or psychiatric

evaluation and follow any treatment recommendations. Despite reminders from the caseworker

and the guardian ad litem, Father did not obtain a mental health evaluation. For reasons not clear

from the record, however, CSB later placed T.R. in Father’s home, but the child remained in the

temporary custody of CSB.

       {¶6}    The case ultimately went to a final dispositional hearing on competing motions

for legal custody filed by Father and Mother. CSB supported Father’s motion, but the guardian

ad litem supported Mother because Father had not complied with the case plan, but Mother had.
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          {¶7}   The magistrate decided that T.R. should be returned to the legal custody of

Mother. Father filed objections to the magistrate’s decision, asserting that the legal custody

decision was not supported by the evidence presented at the hearing. The trial court later

overruled Father’s objections and placed T.R. in the legal custody of Mother. Father appeals and

raises four assignments of error. Three of his assigned error will be consolidated for ease of

review.

          {¶8}   Before reaching the merits of Father’s assignments of error, this Court addresses

his motion to supplement the record on appeal with evidence that predated the adjudication of

the child. Because that evidence was not considered by the trial court in overruling Father’s

objections and adopting the magistrate’s legal custody decision, it will not be considered by this

Court on appeal. This Court necessarily confines its review to the record on appeal. In re G.D.,

9th Dist. Summit No. 27337, 2014-Ohio-3476, ¶ 4.

                                                 I.

                                  ASSIGNMENT OF ERROR I

          The trial court erred and denied [Father] due process of law through its
          ruling on the objections to the magistrate’s decision terminating [Father’s]
          [physical] custody of his minor son in favor of [Mother] [based on evidence
          that was not presented at the hearing.]

                                 ASSIGNMENT OF ERROR III

          The trial court’s reversal of the award of [T.R.’s] [physical] custody from
          [Father] is against the manifest weight of the evidence.

                                 ASSIGNMENT OF ERROR IV

          The trial court’s reversal of the award of [T.R.’s] [physical] custody from
          [Father] is based on insufficient evidence.

          {¶9}   Through his first, third, and fourth assignments of error, Father challenges the

merits of the trial court’s legal custody decision. The final dispositional hearing considered the
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competing motions for legal custody filed by Father and Mother. CSB supported Father’s legal

custody motion because T.R. had been living with him for several months and seemed to be

doing well there. The guardian ad litem supported Mother’s motion because she had complied

with the case plan requirement that she achieve ongoing sobriety and remedy her criminal

problems but Father had not complied with the mental health component of the case plan. This

Court has repeatedly stressed that “evidence of case plan compliance may be relevant to the trial

court’s best interest determination, but it is not dispositive.” In re G.A., 9th Dist. Summit Nos.

28664, 28665, 2017-Ohio-8561, ¶ 13, citing In re J.J., 9th Dist. Summit No. 22236, 2004-Ohio-

6538, ¶ 8.

       {¶10} “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 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. CA2002-09-236, 2003-Ohio-5984, ¶ 11.

       {¶11} The juvenile court is guided by the best interest factors set forth 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, and the child’s need for permanence. Id. at ¶ 10. The juvenile court may

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

Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. Of relevance here, those additional
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factors include the child’s adjustment to his environment and the mental and physical health of

all persons involved. See R.C. 3109.04(F)(1).

       {¶12} Each parent was seeking legal custody of T.R. and, therefore, had the burden to

demonstrate to the trial court that such a permanent placement was in the child’s best interest. In

re M.P., 9th Dist. Summit No. 25222, 2010-Ohio-3701, ¶ 6. A legal custody judgment will not

be reversed on appeal if it was supported by a preponderance of the evidence. In re M.F., 9th

Dist. Lorain No. 15CA010823, 2016-Ohio-2685, ¶ 7.

       {¶13} Although the preponderance standard is a lesser burden than the clear and

convincing standard, it nevertheless requires sufficient credible evidence to persuade the trier of

fact. “Preponderance of the evidence entails the ‘greater weight of the evidence,’ evidence that

is more probable, persuasive, and possesses greater probative value.” Id. A “preponderance” of

evidence is “that measure of proof that convinces the judge or jury that the existence of the fact

sought to be proved is more likely than its nonexistence.” State ex rel. Doner v. Zody, 130 Ohio

St. 3d 446, 2011-Ohio-6117, ¶ 54.

       {¶14} A review of the record reveals that neither parent supported their legal custody

motion with sufficient evidence to persuade the trier of fact that it was in the best interest of T.R.

to be permanently placed with them. The trial court was required to consider all of the best

interest factors, but its consideration of those factors was necessarily limited to the evidence

presented by the parties. Because the parties presented so little evidence on the best interest

factors, it would have been impossible for the trial court to adequately consider the child’s best

interest. See, e.g., In re A.W., 9th Dist. Lorain No. 09CA009631, 2010-Ohio-817, ¶ 13; In re

A.D., 9th Dist. Lorain No. 02CA008090, 2002-Ohio-6032, ¶ 17 (both decisions reversing
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permanent custody judgments because the agency failed to present sufficient evidence about the

best interest of the children).

        {¶15} For example, the first best interest factor required the trial court to consider “[t]he

interaction and interrelationship of the child with the child’s parents, siblings, relatives, * * * and

any other person who may significantly affect the child.” R.C. 2151.414(D)(1)(a). The trial

court was also required to consider the child’s custodial history and his adjustment to his

environment. The only evidence on these factors was brief, conclusory testimony that T.R. was

bonded with both parents and interacted well with them. The parties presented no evidence to

explain how the child interacted with either parent or why the witnesses had concluded that there

was a bond.      The trial court heard no evidence about T.R.’s past or current day-to-day

relationship with either parent.

        {¶16} There was also no evidence presented about T.R.’s relationship with his siblings.

One older sibling lived with Mother and there was brief testimony that T.R. is bonded with that

child. There was no evidence regarding the three other siblings, however, and whether T.R. has

or ever has had a relationship with any of them. In fact, the evidence in this case tended to raise

more questions about this family than it answered.

        {¶17} Given that the adjudication in this case hinged on Mother’s drug problems and

Father’s alleged mental health problems, the parties should have presented detailed evidence

about the current mental health of both parents. See R.C. 3109.04(F)(1)(e). Nevertheless,

neither parent presented much evidence about the past or current status of those obstacles to their

parenting ability. There was brief testimony that Mother had agreed to surrender custody of

three of her older children to their fathers because she was in a drug treatment facility, but there

was no explanation of when or how that surrender occurred, how long Mother had struggled with
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a drug problem, or how long she had been sober. Notably, there is no evidence in the record

from any drug treatment or drug testing providers or her probation officer.

       {¶18} The record similarly lacked evidence about Father’s current mental health status.

The complaint alleged that Father had a past history as the perpetrator of sex abuse, but those

allegations were not explained at the hearing. Father also admitted to the caseworker at the

beginning of the case that he had a history of mental health problems, so a mental health

component was included in the case plan. Although the caseworker was not concerned that

Father did not complete the assessment because she had observed no erratic or unusual behavior

by him, she was not a mental health professional. More significantly, CSB never amended the

case plan to remove the mental health component for Father. “The procedures for the creation

and amendment of a case plan are statutorily mandated.” In re S.D.-M., 9th Dist. Summit Nos.

27148, 27149, 2014-Ohio-1501, ¶ 26, citing R.C. 2151.412. The journalized case plan legally

bound all parties to its terms. Id., citing R.C. 2151.412(F)(1). CSB lacked the authority to

implicitly remove such a significant component of the case plan without following the required

procedure. See id. at ¶ 26-27.

       {¶19} At the end of the hearing, the magistrate was left with very little evidence about

this family.    Because neither parent presented sufficient evidence to establish, by a

preponderance of the evidence, that legal custody was in T.R.’s best interest, this case must be

reversed and remanded for a new evidentiary hearing.            Father’s first, third, and fourth

assignments of error are sustained insofar as they assert that the trial court’s legal custody

decision was not supported by the evidence that was presented at the hearing.

                                 ASSIGNMENT OF ERROR II

       The trial court’s omission of a reasonable efforts determination constitutes
       prejudicial and reversible error as a matter of law.
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       {¶20} Finally, Father argues that the trial court failed to comply with the requirements of

R.C. 2151.419 because its final judgment did not include a finding that CSB had made

reasonable efforts to return T.R. to the home. Because this Court has reversed the trial court’s

dispositional judgment, this assigned error has been rendered moot and will not be addressed.

App.R.12(A)(1)(c).

                                                III.

       {¶21} Father’s first, third, and fourth assignments of error are sustained, insofar as the

trial court had insufficient evidence to make a determination about the best interest of the child.

This Court does not address his second assignment of error because it is moot. The judgment of

the Summit County Court of Common Pleas, Juvenile Division, is reversed and remanded for

further proceedings consistent with this opinion.

                                                                             Judgment reversed and
                                                                                  cause remanded.




       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.
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      Costs taxed to Appellee.




                                               JULIE A. SCHAFER
                                               FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

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

THOMAS LOEPP, Attorney at Law, for Appellee.

JOSEPH M. KERNAN, Guardian ad Litem.
