[Cite as In re K.D., 2017-Ohio-4161.]


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

IN RE: K.D.                                              C.A. No.   28459
       N.D.


                                                         APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
                                                         COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
                                                         CASE Nos. DN 16-02-077
                                                                    DN 16-02-078

                                 DECISION AND JOURNAL ENTRY

Dated: June 7, 2017



        CARR, Judge.

        {¶1}     Appellant D.D. (“Mother”) appeals the judgment of the Summit County Court of

Common Pleas, Juvenile Division, that awarded legal custody of her children to their father

(“Father”). This Court affirms in part, reverses in part, and remands.

                                                    I.

        {¶2}     Mother and Father are the parents of K.D. (d.o.b. 4/8/09) and N.D. (d.o.b.

3/14/11). The parents are divorced and have an historically hostile relationship. The children

were removed by police from Mother’s care based on allegations that Mother was exhibiting

erratic behavior and mental health issues; and that she and her cousin who was living with her

were abusing drugs, using excessive discipline on the children, and getting into physical

altercations with one another.           Summit County Children Services Board (“CSB”) filed a

complaint alleging the children to be dependent and neglected. At adjudication, Mother and

Father waived a hearing and agreed that the children were dependent and neglected. The
                                                 2


magistrate issued a decision adjudicating them as such, and the juvenile court adopted the

decision the same day. After the subsequent dispositional hearing, the children were placed in

the temporary custody of CSB, and the juvenile court adopted the agency’s case plan for the

family.

          {¶3}   Both Father and CSB filed motions for legal custody to Father. The magistrate

held a dispositional hearing over the course of two days, continuing the matter after the first day

to allow Mother to subpoena additional witnesses.         At the conclusion of the hearing, the

magistrate issued an order awarding legal custody to Father and granting Mother regular phone

contact and visitation as the parties may agree. In the event that the parties could not agree,

Mother was entitled to visitation every other weekend upon her successful completion of

substance abuse treatment and mental health counseling, and her demonstration of sobriety.

Mother filed timely objections to the magistrate’s decision.

          {¶4}   After hearing argument by counsel, the juvenile court overruled Mother’s

objections as they related to the award of legal custody to Father and the denial of Mother’s

motion to continue the hearing.      The court sustained her objection regarding the issue of

visitation, however. In addition to regular phone contact, the juvenile court ordered that Mother

shall have regular supervised visitation as the parties may agree. If the parties could not agree,

then Mother was “permitted to receive at least one hour of visitation to occur at a neutral site, to

be supervised by an appropriate adult besides Father.” The order did not clarify the frequency in

which Mother was to have one hour of visitation. Nor did it define the terms “neutral site” and

“appropriate adult.” Mother filed a timely appeal in which she raises two assignments of error

for review. We rearrange the assignments of error to facilitate discussion.
                                                  3


                                                 II.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT’S FINDING THAT LEGAL CUSTODY TO FATHER
        WAS IN THE BEST INTEREST OF THE CHILDREN IS AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE[.]

        {¶5}   Mother argues that the juvenile court’s finding that an award of legal custody to

Father was in the best interest of the children was against the manifest weight of the evidence.

This Court disagrees.

        {¶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 and citations

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

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, citing 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.
                                                  4


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, 26977, 2014-Ohio-2748, ¶ 16. In addition, 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. While some factors overlap with those above,

others include the child’s adjustment to her environment; the mental and physical health of all

persons involved; the parents’ history of providing support and honoring companionship orders;

certain indicia of violence, abuse, or neglect in any household involved; and whether a parent

plans to or has established a residence outside of Ohio. R.C. 3109.04(F)(1).

       {¶8}    K.D. and N.D. are now eight and six years old, respectively. They have lived

with both parents together and apart, as well as with their paternal grandparents during the

pendency of this case. They have experienced instability due to multiple relocations by Mother,

as well as civil protection orders obtained by Mother against Father, which have impacted their

ability to see Father. Shortly before CSB filed its complaint in this case, Mother obtained a civil

protection order against Father, which named both Mother and the children as protected persons.

Mother admitted that she pursued that protection order, because she believed that Father had

made false accusations against her about her drug use and abuse of the children. Although

Mother obtained an ex parte civil protection order, it was terminated and her petition was
                                                 5


dismissed after a full hearing on the matter.1 Because the children were no longer protected

under the terms of a civil protection order, CSB was able to facilitate visitation between them

and Father.

       {¶9}    By all accounts, the children enjoy a close relationship with Father, his live-in

fiancée, and her children. The fiancée has no criminal history, and is available and willing to

provide child care for the children when they are not in school and Father is at work. Mother has

a boyfriend, who is on probation and has a history of drug abuse. According to the boyfriend’s

mother, Mother and her boyfriend recently moved in together. Although Mother’s boyfriend has

had contact with the children, there was scant evidence regarding the children’s relationship and

interactions with him.

       {¶10} Both parents have had the opportunity for weekly visitation with the children.

Father has consistently exercised his visitation. The visits have gone very well, and the agency

allowed Father to have the children overnight on occasion. Mother only sporadically appeared

for visitation in the beginning, and this caused the children to become “weary” of her

inconsistency. The children were more excited to see Mother when she became more consistent

in showing up for scheduled visitations. Both children have expressed to the guardian ad litem

their desire to live with Father and visit with Mother.

       {¶11} The children were removed from Mother’s care due to concerns for her mental

health, substance abuse, and instability. Her case plan objectives addressed those concerns. The

case worker testified that Mother was effectively non-compliant with her case plan objectives.




1
  Another civil protection order Mother obtained, naming only her as a protected party, expired
in October 2016.
                                                6


       {¶12} Mother’s primary case plan objective was to address her issues with substance

abuse by submitting to an assessment and following all treatment recommendations. Mother was

assessed through the STARS program and diagnosed with opiate and marijuana use. It was

recommended that she participate in intensive outpatient treatment, or, if that proved

unsuccessful, inpatient treatment. By the time of the dispositional hearing, Mother had not

engaged in any services, although both she and her case manager at a mental health facility

testified that she had been referred and was planning to start intensive outpatient substance abuse

treatment in an addictions program in Medina. The program was expected to last up to six

months, and required 4-8 hours participation per day, 3-5 days per week. It was not clear how

Mother would get to Medina from Akron for treatment, although her case manager testified that

she would bring her, if necessary. At the hearing on Mother’s objections (at which Mother did

not appear), both the guardian ad litem and CSB case worker provided the juvenile court with

updates. Both believed that Mother was not engaged in any treatment program.

       {¶13} In addition to participation in substance abuse treatment, Mother was also

required to submit to random drug screens. Although Mother was adamant that she had never

received any calls from the agency to drop a urine specimen for drug analysis, she testified that

she nevertheless provided urine specimens 7-8 times since March 2016, at Oriana House. She

clarified that she accompanied her boyfriend when he had to go there weekly while on probation,

and she checked in for drug screens to be submitted to CSB. The case worker verified during a

court recess that Oriana House had never submitted reports to the agency regarding any drug

screens for Mother, although it had submitted weekly reports regarding Father, who was also

required to submit to random drug screens. Despite weekly requests for drug screens since
                                                7


February 2016, Mother never complied. In fact, the case worker testified that although Mother

appeared twice the previous week, she refused both times to provide a urine sample for analysis.

       {¶14} Mother testified that she never had a substance abuse problem until her children

were removed from her care. She admitted to using heroin in the past. She further admitted that

her last urine screen at her mental health facility tested positive for marijuana. Finally, she

admitted that, when she was arrested and taken to a hospital psychiatric ward approximately five

weeks before the hearing, she tested positive for opiates. Even though the drug screen also

indicated that Mother was positive for amphetamines, Mother interjected that that was a lie.

       {¶15} Given Mother’s repeated failures to submit to random drug screens requested by

the agency, her positive drug screens in other contexts, and her failure to engage in any substance

abuse treatment, the case worker testified that Mother had not complied at all with her case plan

objective relating to substance abuse.

       {¶16} Mother’s second case plan objective required her to submit to a mental health

assessment and follow through on all recommendations.          Mother began engaging in some

services at Charak Center for Health and Wellness in June 2016. The case worker had not

received Charak’s assessment of Mother, so he was unsure whether she had completed one.

Mother’s case manager at Charak testified that a counselor assessed Mother but that, as her case

manager, she did not have authority to view Mother’s assessment. She testified, however, that

Mother had been diagnosed with bipolar disorder, cannabis abuse, and opiate abuse. Mother

asserted that she takes five medications for bipolar disorder, depression, and anxiety. She had

had two mental health counseling sessions prior to the dispositional hearing, but Charak reported

that Mother had not been compliant with her medications for six months before reengaging

services in June. For the first four months of this case, Mother participated in no mental health
                                                 8


treatment. Moreover, once she began treatment, she often refused to submit to drug screens

required before the center would prescribe her medication.

       {¶17} Mother was further required to participate in anger management and parenting

classes. The caseworker testified that he provided Mother with a list of agencies capable of

providing her with services. Although Mother ultimately contacted Greenleaf for services, she

had not engaged in either anger management or parenting classes by the date of the hearing.

Moreover, throughout the case, Mother informed the caseworker that she was participating in

various services. When the caseworker called the various agencies to confirm, he was always

informed that Mother was not in fact a client.

       {¶18} Mother exhibited some concerning behaviors during the hearing. She frequently

interrupted the proceedings by interjecting her commentary about the witnesses’ testimony. She

repeatedly exclaimed that witnesses were lying, that the situation was not fair, that she was going

to pursue legal action in other courts to get her children returned, and that she could not stand

listening to the testimony any longer.      On multiple occasions, Mother walked out of the

courtroom after ranting, cursing, or making threats and accusations. At one point, Mother clearly

became overwhelmed by the situation and succumbed to a defeatist attitude and exclaimed, “Let

[Father] have the kids. I’m out of here. I’m done. Let him have them.” On another occasion,

Mother blurted out that she is pregnant, but that that was nobody’s business.

       {¶19} Finally, Mother’s case plan objectives required her to obtain appropriate housing.

She obtained a three-bedroom AMHA apartment that contained appropriate bedroom furniture

for the children. Two weeks prior to the hearing, however, a friend of Mother’s boyfriend

suffered a drug overdose in Mother’s apartment, leaving the viability of maintaining that housing

in question.
                                                 9


       {¶20} In conclusion, the caseworker testified that Mother had failed to comply with her

case plan objectives to the extent that he had significant concerns regarding her mental health,

substance abuse issues, and ability to manage her anger and maintain her housing. He opined

that Mother was not in a position to provide for the basic needs of the children. On the other

hand, the caseworker testified that, not only was Father fully compliant with his case plan

objectives, he had exceeded expectations and obligations.

       {¶21} Father obtained substance abuse and anger management assessments, as required.

The assessments indicated that there was no need for treatment in those areas. Although Father

was not required to submit to a mental health assessment, he obtained one on his own initiative.

That assessment, too, indicated no need for treatment. Father complied with every request to

submit a urine sample for drug analysis, and all his drug screens were negative.             Father

successfully completed his required parenting classes. In addition, Father is employed full time

and is financially able to provide for the children’s basic needs. He and his fiancée share a three-

bedroom AMHA apartment that is furnished and otherwise appropriate for the children.

       {¶22} The case plan objective for the children required trauma screens, which indicated

a need for counseling. Based on that recommendation, Father had already begun the process of

setting up counseling for them.

       {¶23} The caseworker and guardian ad litem both testified that an award of legal

custody to Father is in the best interest of the children. After multiple disruptions during the

course of their short lives, the children are in need of permanence; and Father has demonstrated

his ability and willingness to provide the safety and stability the children require. While not

dispositive of the issue, case plan compliance is relevant to the best interest determination. See

In re T.W., 9th Dist. Summit No. 27477, 2016-Ohio-92, ¶ 17. Both the caseworker and guardian
                                                10


ad litem emphasized that Father had fully complied with all case plan objectives, while Mother

had either not engaged in necessary services at all or had only recently made an effort to engage.

       {¶24} Based on a review of the evidence, this is not the exceptional case where the

finder of fact clearly lost its way and created a manifest miscarriage of justice in awarding legal

custody of the children to Father. The critical inquiry before awarding legal custody is to

consider the current parenting abilities of each potential custodian and to determine whether it is

in the best interest of the child to be placed in the legal custody of any of them. See In re K.C.,

9th Dist. Summit Nos. 26992, 26993, 2014-Ohio-372, ¶ 20.              The evidence in this case

established that K.D. and N.D. had experienced trauma and instability during their lives, due in

significant part to Mother’s mental health, substance abuse, and anger issues. Despite the efforts

by CSB to provide her with assistance to facilitate her engagement in necessary services, Mother

failed to comply with any case plan objectives, and only sought mental health counseling mere

weeks before the dispositional hearing. On the other hand, Father complied with all objectives

and demonstrated that he was willing and able to provide a safe and stable environment for the

children. Under the circumstances, the juvenile court’s finding that an award of legal custody to

Father was in the children’s best interest was not against the manifest weight of the evidence.

Mother’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MOTHER
       MINIMAL SUPERVISED VISITATION WITH THE CHILD[REN.]

       {¶25} Mother argues that the juvenile court abused its discretion in regard to its

visitation order. This Court agrees.

       {¶26} Unless the juvenile court has abused its discretion, this Court will uphold an order

of visitation. See In re G.S., 9th Dist. Summit No. 28050, 2016-Ohio-7471, ¶ 32. An abuse of
                                                 11


discretion is more than an error of judgment; it means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying the abuse of discretion standard, this Court may not substitute its

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

        {¶27} A parent who has lost legal custody of a child, but whose parental rights have not

been terminated, retains residual parental rights, including the “privilege of reasonable

visitation.” R.C. 2151.353(A)(3)(c); R.C. 2151.011(B)(48). In ordering visitation, the juvenile

court must consider the “totality of the circumstances as they relate to the child’s best interest.”

See In re M.E., 10th Dist. Franklin No. 12AP-684, 2013-Ohio-2562, ¶ 25, quoting In re C.J., 4th

Dist. Vinton No. 10CA681, 2011-Ohio-3366, ¶ 15. It is generally understood that it is in a

child’s best interest to have companionship with both parents. See Davis v. Flickinger, 77 Ohio

St.3d 415, 419 (1997) (noting that one parent’s exclusion of the other from the child’s life

materially affects the child’s best interest).

        {¶28} In this case, there was a glut of evidence demonstrating the long term hostility

between Mother and Father. Moreover, the evidence indicated no reason to believe that their

hostility was likely to abate. Mother argues that the visitation order is unworkable, because it

requires Mother and Father to agree regarding the terms. This Court agrees that ordering

visitation that is dependent on these hostile parties’ agreement severely limits Mother’s

opportunity for companionship with the children. No party argued below that the best interest of

the children required such a restriction on Mother’s visitation. As requiring the parties to agree

to the terms of the time, location, frequency, and duration of visitation effectively allows Father

to veto Mother’s efforts to see the children, such an order is unreasonable and not in the best

interest of the children.
                                                12


       {¶29} The juvenile court purported to provide for the likely contingency that Mother and

Father would not be able to reach any agreements regarding visitation. The contingency reads:

       If the parties are unable to agree, Mother shall be permitted to receive at least one
       hour of visitation to occur at a neutral site, to be supervised by an appropriate
       adult besides Father.

       {¶30} The order, as it stands, however, is too vague to offer Mother any certainty with

regard to enjoying her statutory privilege of reasonable visitation. The order does not note the

frequency in which Mother may receive at least one hour of visitation. Because the parties may

disagree as to whether Mother may visit with the children one hour each day, one hour each

week, one hour each month, etc., the order is unreasonable to effect the purpose of a visitation

order. The vagueness of the order is further compounded by the inclusion of the undefined terms

“neutral site” and “appropriate adult.” Under the particular facts of this case, given the deep

hostility of the parents towards one another, in the absence of any additional parameters

clarifying Mother’s opportunity for visitation, the order as written is unreasonable to accord

Mother any visitation with the children.2 Mother’s first assignment of error is sustained.

                                                     III.

       {¶31} Mother’s first assignment of error is sustained. The second assignment of error is

overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is

affirmed in part, reversed in part, and the cause remanded for further proceedings consistent with

the opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.

2
  This Court does not hold that visitation orders referencing neutral locations and appropriate
persons will always be too vague to accord a party her right to enjoy visitation with a child. We
merely conclude that under some particular circumstances, like those in this case, such phrases
will be insufficient to effectuate any practical opportunity for visitation.
                                                13




       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 equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

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