[Cite as In re J.G., 2019-Ohio-2543.]


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

IN RE: J.G.                                              C.A. No.     29261



                                                         APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
                                                         COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
                                                         CASE No.   DN 17-11-0009

                                 DECISION AND JOURNAL ENTRY

Dated: June 26, 2019



        CALLAHAN, Presiding Judge.

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

Pleas, Juvenile Division, that placed her child in the legal custody of the child’s paternal

grandparents (“Grandparents”). This Court affirms.

                                                    I.

        {¶2}     Mother is the biological mother of J.G. (d.o.b. 5/28/14). Paternity has been

established. The child resided with Mother, while Father has only had contact with the child a

couple times during her life.1           When J.G. was three-and-a-half years old, Summit County

Children Services Board (“CSB” or “the agency”) filed a complaint alleging the child to be

abused and dependent based on concerns regarding Mother’s mental health, substance abuse, and

involvement in criminal activity.          CSB later withdrew its allegation of abuse, and Mother




1
  Although properly served, Father had limited involvement in the case below and has not
participated in this appeal.
                                                2


stipulated that J.G. was a dependent child. The juvenile court granted temporary custody of J.G.

to CSB, who placed the child with Grandparents.         The juvenile court further adopted the

agency’s case plan as the order of the court.

       {¶3}    CSB filed a motion for legal custody to Grandparents. Mother did not file a

dispositional motion, but requested that she be transported from the Community Based

Correctional Facility (“CBCF”) to attend the hearing on the agency’s motion. At the hearing,

Mother conceded that she was not then in a position to request legal custody of the child.

Instead, she informed the magistrate that she opposed the agency’s motion and requested more

time, although she did not explicitly move for a six-month extension of temporary custody.

       {¶4}    After a hearing, the magistrate issued a decision granting CSB’s motion for legal

custody to Grandparents. Mother filed objections, arguing that she had insufficient time to work

on her case plan objectives in pursuit of reunification because she had been in and out of jail

since the initiation of the case. Both CSB and the guardian ad litem filed briefs in opposition to

Mother’s objections. The guardian ad litem noted that Mother never filed a motion for a six-

month extension of temporary custody. CSB argued that there was no evidence to support a six-

month extension of temporary custody pursuant to the statutory factors listed in R.C.

2151.415(D)(1). The juvenile court issued a judgment, overruling Mother’s objections based on

an analysis of the statutory best interest of the child factors. The juvenile court awarded legal

custody of J.G. to Grandparents and ordered that Mother could pursue supervised visitation with

the child. Mother filed a timely appeal in which she raises two assignments of error for review.
                                                 3


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN
       GRANTING SUMMIT COUNTY CHILDREN SERVICES’ MOTION FOR
       LEGAL CUSTODY TO A RELATIVE.

       {¶5}    Mother argues that the juvenile court erred by granting CSB’s motion for legal

custody to Grandparents. This Court disagrees.

       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.

       {¶6}    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.

       {¶7}    “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-

1330, ¶ 12. The statutory scheme regarding an award of legal custody does not include a specific
                                                  4


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.

       {¶8}    Although Mother cites the best interest factors enumerated in R.C.

2151.414(D)(1), the focus of her argument is that “the best interest of the child would have been

to grant the mother sufficient time to effectuate reunification with the child.” Accordingly,

Mother argues that the juvenile court erred by failing to grant an extension of temporary custody

to allow Mother to work towards reunification. Extensions of temporary custody are governed

by R.C. 2151.415(D), which provides in relevant part:

       The court may extend the temporary custody order of the child for a period of up
       to six months, if it determines at the hearing, by clear and convincing evidence,
       that the extension is in the best interest of the child, there has been significant
       progress on the case plan of the child, and there is reasonable cause to believe that
       the child will be reunified with one of the parents or otherwise permanently
       placed within the period of extension.

R.C. 2151.415(D)(1).

       {¶9}    In this case, there is no evidence of significant progress by Mother on her case

plan objectives. Pursuant to the case plan, Mother was required to (1) schedule and obtain a

mental health assessment at Summit Psychological and follow all treatment recommendations;
                                                5


(2) schedule and obtain a substance abuse assessment at the Community Health Center, follow

all treatment recommendations, and submit to requested drug screens; and (3) obtain safe and

stable housing and adequate income to meet the basic needs of the child.

        {¶10} Although the caseworker testified that she made all necessary referrals on behalf

of Mother to Summit Psychological and the Community Health Center, Mother failed to

schedule a mental health or substance abuse assessment. She spent most of the time that the case

was pending in jail. At the time of the hearing, Mother had been transferred to CBCF. She

testified that she received a substance abuse assessment there but had not yet begun participating

in a treatment program. Mother admitted that she struggles with addiction issues and that she

has used methamphetamine and opiates.        Because she had not scheduled a mental health

assessment, she had not participated in mental health treatment to address those issues.

Furthermore, Mother had no job, no government assistance income, no housing, no driver’s

license, and no transportation. She did not expect to be released from CBCF for another three

months, at which time she believed she would have employment and housing with a sober friend.

She admitted that she had not yet applied for any jobs and that CSB had not been given any

information regarding her friend to ensure that his home would be appropriate for the child.

Under the circumstances, Mother’s compliance with her case plan objectives was negligible.

Moreover, given her lack of compliance and ongoing incarceration, there was no evidence of any

reasonable cause to believe that J.G. could be reunified with Mother within six months.

Accordingly, the juvenile court did not err by failing to extend the order of temporary custody of

the child.

        {¶11} Upon review of the evidence, the juvenile court’s award of legal custody to

Grandparents was not against the manifest weight of the evidence. J.G. was three-and-a-half
                                                 6


years old when she was removed from Mother’s care and placed by CSB with Grandparents.

During the pendency of the case, Mother admitted that she only had contact with the child

approximately five times, even though she was not incarcerated for a month and had the ability

to call the child from CBCF. The child is closely bonded with Grandparents who provide a safe,

stable, secure, and appropriate home environment for her. Mother testified that, if she could not

have legal custody, she wanted Grandparents to be the child’s legal custodians.              Mother

recognized that the child was receiving proper care with Grandparents. Mother further testified

that she had a good relationship with Grandparents and believed that they would allow her to

visit with J.G. Grandparents both testified that the child is doing well in their home, that they are

willing and able to provide for her until the age of the child’s majority, and that they understand

and will honor Mother’s residual right to visit with the child. The child was too young to express

her wishes for custody. The guardian ad litem reported that it is in the best interest of the child

that she be placed in the legal custody of Grandparents.

       {¶12} This is not the exceptional case where the trier of fact clearly lost its way and

created a manifest miscarriage of justice by finding that an award of legal custody to

Grandparents was in the best interest of the child. Accordingly, the juvenile court’s judgment is

not against the manifest weight of the evidence. Mother’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT
       FOUND THAT SUMMIT COUNTY CHILDREN SERVICES USED
       REASONABLE EFFORTS TO PREVENT THE CONTINUED REMOVAL OF
       THE CHILD FROM THE MOTHER.

       {¶13} Mother argues that the juvenile court erred by finding that CSB had used

reasonable efforts to prevent the continued removal of J.G. from Mother’s home. This Court

declines to consider the merits of Mother’s alleged error.
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       {¶14} Juv.R. 40(D)(3)(b)(iv) provides:

       Except for a claim of plain error, a party shall not assign as error on appeal the
       court’s adoption of any factual finding or legal conclusion, whether or not
       specifically designated as a finding of fact or conclusion of law under Juv.R.
       40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
       required by Juv.R. 40(D)(3)(b).

Accordingly, “‘[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s

decision, it may not be raised for the first time on appeal.’” In re C.C.-L., 9th Dist. Summit No.

28666, 2017-Ohio-9296, ¶ 23, quoting Varner v. Varner, 170 Ohio App.3d 448, 2007-Ohio-675,

¶ 22 (9th Dist.).   Because Mother did not challenge the reasonable efforts finding in her

objections to the magistrate’s decision, she has forfeited that challenge on appeal except for a

claim of plain error. See In re J.W., 9th Dist. Summit Nos. 28966 and 28967, 2018-Ohio-3897, ¶

7, citing In re S.D., 9th Dist. Lorain Nos. 15CA010864 and 15CA010867, 2016-Ohio-1493, ¶

25; see also Juv.R. 40(D)(3)(b)(iv). As Mother has failed to allege plain error, this Court will

not construct an argument on her behalf. See In re N.C., 9th Dist. Summit Nos. 27116 and

27118, 2015-Ohio-1627, ¶ 62, citing Juv.R. 40(D)(3)(b)(iv), App.R. 12(A)(2), and App.R.

16(A)(7). Mother’s second assignment of error is overruled.

                                               III.

       {¶15} Mother’s assignments of error are overruled.         The judgment of the Summit

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

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT




HENSAL, J.
CONCURS.

CARR, J.
CONCURRING.

       {¶16} I concur with the majority’s opinion that the juvenile court’s judgment awarding

legal custody of J.G. to Grandparents is not against the manifest weight of the evidence. I write

separately to express my opinion that the record supports the conclusion that CSB used

reasonable efforts to prevent the continued removal of the child from Mother’s home.
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APPEARANCES:

ANTHONY J. COSTELLO, Attorney at Law, for Appellant.

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

NEIL P. AGARWAL, Guardian ad Litem.

J.G., Appellee.

G.G. and T.G., Appellees.
