[Cite as In re A.S., 2012-Ohio-5998.]


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

IN RE: A.S.                                           C.A. No.       26452



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 09-11-0883

                                 DECISION AND JOURNAL ENTRY

Dated: December 19, 2012



        BELFANCE, Judge.

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

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

the child’s father, Alexander L. (“Father”). For the reasons that follow, this Court affirms.

                                                 I.

        {¶2}     Mother and Father are the natural parents of A.S., born February 22, 2006.

Although Mother has an older child, who is the child of another father, that child is not a party to

this appeal.

        {¶3}     On November 10, 2009, Summit County Children Services Board (“CSB”) filed a

complaint, alleging that A.S. was a neglected and dependent child because Mother was abusing

drugs and alcohol and had untreated mental health problems. Mother and A.S. lived with the

maternal grandmother, with whom Mother had repeated domestic disputes in the presence of the

child. On numerous occasions, Mother’s “out-of-control” behavior had required intervention by
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the police and/or family members to protect the child. Mother had allegedly told then three-year-

old A.S. that she was going to kill herself and he would never see her again.

       {¶4}     A.S. was later adjudicated a dependent child. He was initially allowed to remain

with Mother in the home of the maternal grandmother, under an order of protective supervision

by CSB. Mother was required to obtain substance abuse and mental health assessments and

engage in any recommended treatment. She was diagnosed with bipolar disorder and anxiety

and was prescribed psychiatric medication to help stabilize her moods. Although Mother briefly

engaged in treatment, CSB later moved for a change of disposition because Mother had stopped

taking her prescribed psychiatric medication and was again abusing prescription and illegal

drugs. She allegedly had even hidden drugs and a hypodermic needle in the bedroom of one of

her children. Mother continued to exhibit volatile and violent behavior in the presence of A.S.

and had physically injured the grandmother.

       {¶5}     The trial court found that A.S. was in immediate danger and ordered that he be

removed from Mother’s custody and, following a dispositional hearing, placed him in the

temporary custody of CSB. Because Father had requested custody of A.S. and had made

substantial progress on the reunification requirements of the case plan, A.S. was placed in his

home in April 2011.

       {¶6}     Each parent eventually moved for legal custody of A.S., and a hearing was held

before a magistrate on their competing motions. Although CSB had initially supported shared

parenting by the parents, by the time of the hearing, it supported Father’s motion for sole legal

custody. CSB concluded that Father had been providing A.S. with a suitable home for the past

six months, but Mother had not adequately addressed her mental health or substance abuse

problems.     The magistrate granted Father’s motion for legal custody, finding that such a
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disposition was in the best interest of A.S. Mother objected to the magistrate’s decision, but the

trial court overruled her objection and ordered that A.S. be placed in Father’s legal custody.

Mother appeals and raises one assignment of error.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING LEGAL
       CUSTODY OF THE CHILD TO FATHER, AS ITS DECISION WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WAS AN ABUSE
       OF DISCRETION, AND WAS CONTRARY TO THE BEST INTEREST OF
       THE MINOR CHILD.

       {¶7}    Mother argues that the trial court abused its discretion by placing A.S. in the legal

custody of Father rather than in her legal custody.         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 non-parent is based solely on the best interest of the child. In re D.R.,

9th Dist. No. 21218, 2003-Ohio-2852, ¶ 17. See also In re C.R., 108 Ohio St.3d 369, 2006-

Ohio-1191, paragraph two of the syllabus (holding that an adjudication of abuse, dependency, or

neglect is an implicit determination of the parent’s unsuitability). “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. No. 21707, 2004-Ohio-110, ¶

23, citing In re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, ¶ 11.

       {¶8}    Furthermore, 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 their “residual parental rights, privileges, and

responsibilities.” In re C.R., 2006-Ohio-1191, at paragraph one of the syllabus. The trial court’s

decision to grant or deny a motion for legal custody is within its sound discretion and will not be
                                                  4


reversed absent an abuse of discretion. In re M.S., 9th Dist. No. 22158, 2005-Ohio-10, ¶ 11. An

abuse of discretion implies that the trial court’s attitude is “unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    Mother argues that A.S. should have been placed with her rather than with Father

because she had remedied the problems that led to the removal of A.S. from her custody.

Although the evidence established that Mother was making progress on the reunification goals of

the case plan, she was not currently engaged in any counseling for either her mental health or

substance abuse. She had been terminated from treatment at her previous provider because she

did not attend on a consistent basis. Because Mother refused to sign releases from her service

providers, it was unclear whether she was taking her psychiatric medication.

       {¶10} Additionally, Mother had been testing positive for opiates throughout this case.

According to Mother, she had been prescribed pain medication.          Even when Mother did

substantiate that claim with proof of medical prescriptions, CSB was concerned that, because

Mother was a former heroin addict, she was simply replacing that habit by taking prescribed

opiates on an ongoing basis. Moreover, during the months preceding the hearing, Mother had

been unable to prove that she had current prescriptions for the drugs that she was taking.

Consequently, CSB remained concerned that Mother was not adequately addressing her mental

health or substance abuse problems.

       {¶11} The evidence at the hearing also revealed that Mother was eight months pregnant

with another child. The guardian ad litem testified that, after learning about the pregnancy, she

was only further convinced that A.S. “needs to remain with his father.” She explained that, by

her observation, Mother was overwhelmed caring for one child and herself. She did not believe

that Mother had the ability to care for an additional child.
                                                5


       {¶12} Father, on the other hand, did everything that he was required to do on the case

plan. He attended first aid and parenting classes and maintained stable housing and employment.

CSB never had any concerns about drug or alcohol abuse by Father or about his mental health.

The caseworker explained that CSB fully supported Father’s request for legal custody because

A.S. had been doing well in Father’s care for the past six months. A.S. was enrolled in school,

had adjusted to Father’s home and neighborhood, and had made many friends there.                The

caseworker shared her observations of the loving interaction between A.S. and Father in the

home. She also had the opportunity to see A.S. interact with neighborhood friends who had

come over to play. The guardian explained how well everyone in that home interacted together.

She had no concerns about Father’s ability to continue meeting all of the daily needs of A.S.

       {¶13} Mother focuses much of her argument on appeal, as she did at the hearing, on her

allegations that Father has not provided appropriate care for A.S. Specifically, she focuses on

three incidents during which, while in Father’s care, A.S. fell and knocked out a tooth, sustained

a bruise on his leg, and developed ringworm. Mother believed that Father was responsible for

the injuries and/or failed to seek appropriate treatment for the injuries and the ringworm. The

evidence established, however, that Mother contacted CSB about her concerns and the agency

investigated each incident. The caseworker testified that, after investigating each incident, the

agency was satisfied that the child’s injuries had been accidental and did not require medical

treatment. For example, A.S. had knocked out a baby tooth when he fell while rocking back and

forth in his chair at the dinner table. Father took him to a dentist, who confirmed that no harm

had been done to his permanent tooth and no treatment was required.

       {¶14} CSB also determined that father had treated A.S.’s ringworm appropriately. The

caseworker confirmed that, although Father initially had not taken A.S. to a doctor to diagnose
                                                 6


and treat his ringworm, he had obtained an appropriate over-the-counter cream and was treating

the ringworm prior to Mother raising her concerns and taking the child to a hospital emergency

room.

        {¶15} Given all of the evidence before the trial court, it was not unreasonable for it to

conclude that it was in the best interest of A.S. to remain in Father’s home. Consequently, it did

not abuse its discretion by placing A.S. in Father’s legal custody. The assignment of error is

overruled.

                                                III.

        {¶16} Mother’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              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.
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      Costs taxed to Appellant.




                                               EVE V. BELFANCE
                                               FOR THE COURT



CARR, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

LEONARD J. BREIDING, II, Attorney at Law, for Appellant.

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

LINDA BENNETT, Guardian ad litem.
