[Cite as In re N.C., 2012-Ohio-1641.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97155




                                           IN RE: N.C.
                                          A Minor Child
                                        [Appeal by Mother]




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 10921764


        BEFORE: Jones, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: April 12, 2012
ATTORNEYS FOR APPELLANT

Joseph E. Feighan, III
14516 Detroit Avenue
Lakewood, Ohio 44107

Michael B. Telep
4438 Pearl Road
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Pamela Hawkins
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144


FOR FATHER

C.H., Pro se
16410 Huntmere Avenue
Cleveland, Ohio 44110
LARRY A. JONES, SR., J.:

       {¶1} Mother-appellant appeals the trial court’s judgment in which it (1) overruled

her objections to the magistrate’s decision to grant legal custody of N.C. to Father, (2)

terminated its previous order committing N.C. to the temporary custody of the Cuyahoga

County Department of Children and Family Services (“CCDCFS” or the “Agency”), (3)

affirmed, approved, and adopted the magistrate’s decision, and (4) granted legal custody

of N.C. to Father.   We reverse and remand.

                            I. Procedural History and Facts

       {¶2} In November 2010, CCDCFS filed a complaint alleging N.C. to be an abused

and neglected child. A magistrate was assigned to the case.     An adjudicatory hearing

was held in February 2011 and, at its conclusion, the magistrate adjudicated the child to

be abused. Mother objected to the adjudication, but the trial court found the objections

not well taken, overruled them, and affirmed, approved, and adopted the magistrate’s

decision.

       {¶3} The Agency filed a motion to amend the dispositional prayer from temporary

custody to legal custody. A dispositional hearing was held in May 2011. Mother and

Father, each with counsel, along with the Agency’s attorney, the assigned social worker,

and N.C.’s guardian ad litem (“GAL”) were present.     The following facts were elicited

from Mother and the social worker.

       {¶4} N.C. was born in November 2006, and up until November 2010, she had been

cared for by Mother without any involvement from Father. In November 2010, N.C.,
then four years old, was found alone in the hallway of the apartment building where she

resided with Mother.    Mother had secured the services of a babysitter who abandoned

her charge.   Mother was contacted, returned home, and was taken into police custody,

where she was charged with child endangering.      The Agency filed a complaint and was

granted temporary custody of N.C.

       {¶5} Father became tangentially involved in the child’s life in 2010 as a result of

Mother filing for child support. The Cuyahoga County Support Enforcement Agency

(“CSEA”) located Father and established his paternity.    When Mother was charged with

child endangering, CCDCFS investigated Father’s ability to provide for N.C., found him

suitable, and placed N.C. with him.

       {¶6} According to the social worker, Father lived with his mother in a

three-bedroom house, which the social worker described as “appropriate.”      Father was

working part-time as a security guard six hours a week, and had recently taken the

Cleveland Police Department test. Father’s mother worked full-time, and along with

Father’s cousin, aided in the care of N.C.    The social worker testified that he did not

investigate if Father had been meeting his child support obligations.         The record

demonstrates that, in fact, Father had not and was $4,000 in arrears.

       {¶7} The social worker testified that N.C. was bonded to Mother and Father and

wanted to live with both of them. Father expressed to the social worker that it was his

desire to have Mother continue to be involved in N.C.’s life and that he would facilitate

that relationship.
      {¶8} In regard to Mother, the social worker testified that her case plan consisted of

her completing parenting classes and getting a psychological evaluation.           Mother

completed the parenting classes.     The social worker testified that notwithstanding

Mother’s completion of parenting classes, he was concerned about her ability to parent.

His concern was based on a single incident during Mother’s visitation with N.C.

Specifically, through agreement of the parties and counsel, Mother’s visitation with N.C.

was to take place at her mother’s house, with maternal grandmother present.    During one

of the social worker’s visits with N.C., N.C. told the social worker that she had been to

Mother’s house, Mother had a man over, and she saw the man come out of Mother’s

bedroom, naked and with a “tail.”

      {¶9} Mother did appear for the psychological evaluation in-take interview but the

social worker testified that the psychological evaluation was not completed because of a

“mix-up” he had with the agency that was to do the testing.       He further testified that

after N.C. was found alone, Mother’s landlord evicted her.         The social worker had

attempted three times to visit Mother’s new residence, but was unsuccessful. The first

scheduled visit they “missed each other”; the second scheduled visit the social worker had

an emergency but did not notify Mother; and the third scheduled visit he went to Mother’s

residence, but she did not answer the door.      The social worker was of the opinion that

Father should be granted legal custody of N.C.

      {¶10} Mother testified that, relative to the underlying child endangering charge,

she had left N.C. with a babysitter, but admitted that she did not exercise the best
judgment in selecting the babysitter. Mother was placed in the Selective Intervention

Program (SIP), which if she successfully completed, would result in the child

endangering charge being dismissed.

       {¶11} Mother testified that parenting classes had helped her learn about making

“life decisions” and that she would implement what she had learned in parenting N.C.

She was employed at the Cleveland Clinic as a medical assistant, and had been for the

past seven years.

       {¶12} In regard to the visitation issue, Mother testified that she “misunderstood”

the arrangement and thought that it was acceptable for N.C. to visit her house if maternal

grandmother brought her and remained there.             According to Mother, maternal

grandmother was present the entire time of the visitation at her house.   She testified that

she brought N.C. to her house because she wanted her to see her bedroom and get toys to

take to maternal grandmother’s house.     Mother denied that a man was there.

       {¶13} Mother also testified about a prior child endangering allegation which

resulted from another allegation that she had left N.C. home alone.          According to

Mother, she was home, but asleep.       The social worker testified that the allegation was

dismissed as unsubstantiated.

       {¶14} At the time of the hearing in May 2011, N.C. had been living with Father for

the preceding six months. The May hearing continued in June, at which time, the

magistrate heard closing arguments, the GAL’s recommendation, and issued her ruling.

The GAL testified that he stood by his final report, which had been filed with the court in
January 2011, and in which he recommended that: (1) it was in N.C.’s best interest that

she be returned to Mother, with “perhaps” protective supervision by the Agency; and (2)

N.C. should have “liberal” visitation with Father.

       {¶15} The magistrate stated that she “felt strongly that, although mother did make

some terrible errors[,] * * * she has learned from them * * *.”              The magistrate

questioned the GAL about how the child was doing with Father. The GAL responded:

“The child gets along with the father. I’m still questioning the living arrangements of

the father, whether he’s there with the child.   On the same floor as the child.       And I

don’t know the answer to that question.”

       {¶16} The magistrate asked the GAL if he had been to the house lately, to which

the GAL answered, “[n]ot lately.”     The magistrate responded, “[b]ecause it is June not

December and I really would have preferred a report that was more current.          At this

point in time I am going to grant legal custody to the father. I want a visitation plan

before you leave today.”

       {¶17} In her written decision, the magistrate found that the Agency

       made reasonable efforts to prevent the removal of the child, to eliminate the
       continued removal of the child from [her] home, or to make it possible for
       the child to return home. Relevant services provided to the family and the
       reasons those services were not successful: Mother was referred for
       parenting and a psychological assessment. The results of the assessment
       are not available.

The juvenile court made the same findings in overruling Mother’s objections and

adopting the magistrate’s decision.
       {¶18} Mother filed objections to the magistrate’s decision.      The trial court (1)

overruled Mother’s objections to the magistrate’s decision to grant legal custody of N.C.

to Father, (2) terminated its previous order committing N.C. to the temporary custody of

the Agency, (3) affirmed, approved, and adopted the magistrate’s decision, and (4)

granted legal custody of N.C. to Father.




       {¶19} Mother raises the following assignments of error for our review:

       [I.] The award of legal custody to the Father was against the manifest
       weight of the evidence.

       [II.] The court abused its discretion when it awarded legal custody to the
       Father contrary to the guardian ad litem’s recommendation, the manifest
       weight of the evidence and the court’s own stated impression that Mother
       had learned from her mistakes.

       [III.] Awarding legal custody to the Father was contrary [to] the best
       interest of the child.

       {¶20} The assignments of error are interrelated and we will consider them

together.

                                   II. Law and Analysis

       {¶21} Under R.C. 2151.353(A)(3), after a child has been adjudicated abused,

neglected, or dependent, the juvenile court may award legal custody:

       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 * * *.
        (Emphasis added.)

       {¶22} The required statement of understanding must contain at least four

enumerated affirmations, one of which is “[t]hat 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.”    R.C. 2151.353(A)(3)(d).

       {¶23} Legal custody differs from termination of parental rights. With the latter,

despite losing legal custody of a child, the parents of the child retain residual parental

rights, privileges, and responsibilities.    R.C. 2151.353(A)(3)(c).      Because a legal

custody determination is not as severe as a termination of parental rights, we apply the

less restrictive “preponderance of the evidence” standard of appellate review, as opposed

to the “clear and convincing evidence” standard to the court’s factual findings. In re

S.E., 8th Dist. No. 96031, 2011-Ohio-2042, ¶ 14, citing In re Nice, 141 Ohio App.3d 445,

455, 2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.). However, when considering the trial

court’s ultimate decision on whether the facts as determined would make it in the child’s

best interests to be placed in legal custody, we apply the abuse of discretion standard.   In

re B.H., 8th Dist. No. 95794, 2011-Ohio-1967, ¶ 10.

       {¶24} With the above in mind, we consider the trial court’s decision granting

Father legal custody of N.C.    Initially, we note that the Agency’s request that Father be
awarded legal custody of N.C. did not comply with the statutory mandates. Specifically,

Father never signed a statement of understanding.            Further, although he was present at

the dispositional hearing, he was never questioned by counsel or the magistrate.                  The

record is therefore lacking any evidence from Father that he met the requirements under

R.C. 2151.353. For this reason alone, the judgment granting Father legal custody was an

abuse of discretion.1

       {¶25} But we also consider Mother’s contention that the evidence before the court

consisted of an incomplete investigation by the social worker, a social worker who was

biased for Father, as compared to her “sufficient, detailed, uncontroverted and therefore

credible” testimony.      We agree with Mother that the investigation was lacking.                For

example, at the time of the final disposition hearing in May when evidence was

introduced, Mother had not completed a psychological evaluation, through no fault of her.

 Further, at the final disposition hearing in June when the magistrate heard closing

arguments and rendered her decision, the results of Mother’s psychological evaluation

were “pending.”      Mother’s case plan required her to do two things: (1) attend parenting

classes and (2) submit to a psychological evaluation.          She attended the parenting classes,

and by the magistrate’s observation, “although, mother did make some terrible errors[,] *

       1
         At oral argument, the Agency’s attorney stated that the Agency does not require parents to
sign a statement of understanding; rather, it only requires non-parents who are seeking custody to
sign. But this court has held that in custody proceedings parents are required to sign statements of
understanding. In re A.G. & D.A., 8th Dist. Nos. 94117 and 94118, 2010-Ohio-2230, ¶ 14
(“Finally, under R.C. 2151.353(A)(3), a court may award legal custody of a neglected child to either
parent, who, prior to the dispositional hearing, files a motion for legal custody, ‘only’ if the parent
‘signs a statement of understanding’ * * *.”).
* * she has learned from them * * *.”     Through no fault of her own, the evaluation was

not completed at the time the court considered the Agency’s request that Father be

granted legal custody of N.C.

       {¶26} Neither the magistrate nor the trial court gave explanations that comported

with the evidence as to why it was in the child’s best interest that Father be granted legal

custody. Further, Father was not questioned by counsel or the magistrate as to his

understanding of and ability to assume legal custody of N.C.

       {¶27} We are mindful that trial courts have broad discretion in custody

proceedings, but here the trial court granted legal custody of the child in favor of Father

who, for the child’s four-year life span, had not been involved, and did not become

involved in her life on his own accord. This decision was made — without following

statutory mandates and without the benefit of full investigation, which was, at least, not

entirely Mother’s fault — to Mother’s detriment who, for N.C.’s four-year life span, had

cared for her without major incident.   On this record, the trial court abused its discretion

in granting legal custody to Father.

       {¶28} In so finding, we quote the Ohio Supreme Court’s reasoning behind

reasonable efforts to preserve and reunify existing families:

       The right to parent one’s children is a fundamental right.          Troxel v.

       Granville (2000), 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49; In re

       Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680. However, [the]

       government has broad authority to intervene to protect children from abuse
      and neglect.   R.C. 2151.01.     When the state intervenes to protect a child’s

      health or safety, “[t]he state’s efforts to resolve the threat to the child before

      removing the child or to permit the child to return home after the threat is

      removed are called ‘reasonable efforts.’”         Will L. Crossley, Defining

      Reasonable Efforts: Demystifying the State’s Burden Under Federal Child

      Protection Legislation (2003), 12 B.U.Pub.Int.L.J. 259, 260.

      No one section of the Revised Code addresses the concept of reasonable
      efforts. Overall, Ohio’s child-welfare laws are designed to care for and
      protect children, “whenever possible, in a family environment, separating
      the child from the child’s parents only when necessary for the child’s
      welfare or in the interests of public safety.” R.C. 2151.01(A). To that
      end, various sections of the Revised Code refer to the agency’s duty to
      make reasonable efforts to preserve or reunify the family unit. In re C.F.,
      113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28-29.

      {¶29} This case lacked reasonable efforts to reunify the child with Mother.
                                   III. Conclusion

      {¶30} In light of the above, Mother’s three assignments of error are well taken.

The trial court’s judgment is reversed and the case is remanded for further proceedings

that should follow statutory mandates, consider Mother’s psychological evaluation, and

complete the investigation into both Mother and Father’s living arrangements.

      {¶31} Reversed and remanded.

         It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
