[Cite as In re W.A.J., 2014-Ohio-604.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99813




                           IN RE:          W.A.J., JR. and A.P.

                                         Minor Children

                                 [Appeal by Mother, R.P.]




                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                            Case Nos. AD 09917803 and AD 09917809

        BEFORE: Stewart, J., S. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                 February 20, 2014
ATTORNEY FOR APPELLANT MOTHER

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE CUYAHOGA                       COUNTY   DIVISION   OF
CHILDREN AND FAMILY SERVICES

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Pamela A. Hawkins
Assistant County Prosecutor
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, OH 44115

ATTORNEY FOR CHILDREN

Brian W. Sharkin
Law Office of Brian Sharkin
P.O. Box 770824
Lakewood, OH 44107

GUARDIAN AD LITEM FOR CHILDREN

Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road, Suite 320
Rocky River, OH 44116

GUARDIAN AD LITEM FOR MOTHER

Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, OH 44131
MELODY J. STEWART, J.:
       {¶1} The court terminated appellant-mother R.P.’s custody of two of her children,

W.A.J., Jr., and A.P., and granted legal custody of the children to a person who is

unrelated to them, but whom they consider to be an aunt. The mother complains the

court failed to articulate a sufficient evidentiary basis for the decision to place the

children with the surrogate aunt and that the court’s decision was not in the best interest

of the children.

                                             I

       {¶2} This appeal involves the loss of legal custody under R.C. 2151.353(A)(1)(3)

rather than the termination of parental rights. In In re G.M., 8th Dist. Cuyahoga No.

95410, 2011-Ohio-4090, we stated the following about the differences between legal

custody and the termination of parental rights:

       [the loss of] legal custody is significantly different than the termination of
       parental rights — 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).       For this reason, we apply the less restrictive
       “preponderance of the evidence” standard of appellate review to the court’s
       factual findings.       In re S.E., 8th Dist. Cuyahoga 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 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. Cuyahoga No.
       95794, 2011-Ohio-1967, ¶10.

Id. at ¶ 14.

       {¶3} R.C. 2151.353(A)(3) allows the court to award legal custody of a child who

has been adjudicated abused, neglected, or dependent, to any person who, prior to the

dispositional hearing, filed a motion requesting legal custody of the child. Apart from
the requirement that the child be previously adjudicated as abused, neglected, or

dependent, the court’s authority to award legal custody under R.C. 2151.353(A)(3) is

limited only by the best interests of the child (assuming the person seeking legal custody

has complied with the statutory prerequisites).

       {¶4} The mother makes no argument that the prerequisites for an award of legal

custody were not met.        The children were declared neglected and dependent in

September 2009 and placed in the temporary custody of appellee Cuyahoga County

Division of Children and Family Services (the “agency”). The neglect and dependency

finding was based on allegations that the mother had for years permitted one of her five

children to sexually molest another one of her children (those children were the subject of

a separate custody proceeding). The mother was subsequently convicted of attempted

child endangering.     With the exception of the child who committed the acts of

molestation, the four remaining children were placed with the aunt and remained with her

until the time of the hearing.

       {¶5} Additionally, the complaint for temporary custody charged that A.P. suffered

severe asthma attacks, caused in part by the mother’s smoking in the house, yet the

mother did not consistently follow up with the child’s medical care. Finally, the agency

alleged that the mother had emotional issues, including a major depressive disorder with a

psychotic component. These facts were sufficient to establish that the children were

neglected and dependent as a predicate for the agency to seek legal custody.

                                             II
       {¶6} To resolve the question of whether granting legal custody would be in the

best interest of the children, the court made factual findings in which it concluded that the

mother had, despite diligent case planning by the agency toward the goal of reunification,

failed to remedy the problems that caused the children to be removed from her. The

court found that the mother had not substantially complied with the case plan and failed to

demonstrate a commitment to the children by providing them with a permanent home.

The mother contests these findings, particularly her failure to show substantial

compliance with the case plan, as being unsupported by the evidence.

                                             A

       {¶7} To the extent the court’s findings were premised on factual determinations,

we review those facts under a preponderance of the evidence standard. In re S.E., 8th

Dist. Cuyahoga 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.).

                                             1

       {¶8} The mother was found guilty in a criminal child endangerment prosecution

relating to her failure to stop the molestation of one of her children. She served one year

in prison, during which time the children were living with the aunt. The case plan

adopted by the agency required the mother to establish stable housing upon the mother’s

release from prison. She obtained housing and showed her case worker a lease bearing

her name and the name of another person as the tenants. The agency told the mother that

if she was living with someone, that person would have to undergo a background check.
The mother insisted that she was living alone and the other person signed the lease as an

accommodation because nobody would rent to her.

       {¶9} Questions about the mother’s living arrangement remained when a case

worker discovered that the mother was in fact living with someone else and that person’s

children. The case worker said that the mother’s house was usually neat and clean, but

that on a later visit to the house she found it in such disarray that it looked as though it

had been “tossed” and that she found school books and homework belonging to other

children. The case worker testified that two of the mother’s children independently

verified to her that others were living with them. The mother continued to deny that she

was sharing her home with another family and called her own children “liars.” The case

worker believed it was the mother who was being untruthful.

                                             2

       {¶10} The case plan also expressed concerns regarding the mother’s physical and

mental health.

       {¶11} The mother’s health became a growing concern for the agency after she

began having seizures following her release from prison. These seizures sometimes

required the mother’s hospitalization and were affecting her visitation schedule with the

children. The case worker was unable to verify the types of medication prescribed to the

mother, and the mother took the case worker’s inquiries about her physical condition as a

form of “gossiping.”    At the same time, in March 2012, the mother was receiving

medical treatment relating to her kidneys and blood work performed in conjunction with
that treatment tested positive for marijuana. The case worker attempted to have the

mother submit to a drug screening, but the mother suffered a seizure while waiting to

submit a sample and was hospitalized.

       {¶12} The case worker testified that in addition to the mother’s physical health,

there were concerns about her mental health status.        The mother qualified for and

received Social Security Disability benefits, but told the case worker that she did not

know why she was receiving those benefits.         This lack of knowledge was despite

entering a plea of not guilty by reason of insanity during her trial for child endangerment

relating to the molestation of one of her children. The case worker did verify that the

mother was taking antipsychotic medication. However, the mother failed to provide her

case worker with a progress note that would show whether she had been compliant with

her mental health services.

                                            3

       {¶13} Most recent to the hearing were new revelations of the mother’s drug use.

       {¶14} Questions about the mother’s drug use began in May 2012, after a new case

worker learned that the mother failed a drug screening by testing positive for marijuana

and PCP. The agency referred the mother for a drug and alcohol assessment, but the

mother could not verify her completion of the program. In September 2012, at the time

of the hearing before a magistrate on the agency’s motion for legal custody, the mother

provided the case worker with a new assessment that showed she was still testing positive

for PCP. The agency also learned that the drug test sample submitted by the mother may
have been diluted, suggesting that the mother tampered with the sample to avoid a

positive result. This new test result caused the agency to recommend that the mother

enter an outpatient drug treatment program.           The mother was to begin outpatient

treatment after the hearing concluded.

                                               4

          {¶15} Finally, the court heard evidence relating to the mother’s lack of parenting

skills.

          {¶16} The mother’s parenting skills were plainly an issue in light of her conviction

for attempted child endangering. The facts of that criminal case, which led the agency to

seek emergency temporary custody of the children, showed that the mother was aware

that one of her children had repeatedly sexually molested another one of her children, but

did nothing to stop it.

          {¶17} After the mother’s release from prison, concerns about her parenting skills

were raised by a case worker and a psychologist who treated A.P. These witnesses

collectively expressed their concerns that the mother was too lenient with the children.

Both W.A.J., Jr., and A.P. said that they wished to remain with the mother because they

could “go outside and play more when they want to, eat more junk food, stay up a little bit

later.” The psychologist testified to her concerns that the mother failed to provide an

environment with “limits, rules, and structure” and that she always says “yes” to the

children.

                                               B
       {¶18} The mother did not testify or offer any evidence at the hearing. A case

worker testified that the mother completed a number of parenting and self-esteem classes

while in prison, and the mother premised her case primarily on that evidence to prove that

she substantially complied with the case plan. This argument, however, misconstrues

completion of a case plan as an automatic path to reunification.

       {¶19} The successful completion of a case plan “is not dispositive on the issue of

reunification.” In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25

(8th Dist.). Indeed, “[a] parent can successfully complete the terms of a case plan yet not

substantially remedy the conditions that caused the children to be removed — the case

plan is simply a means to a goal, but not the goal itself.” Id.

       {¶20} The above principles presume completion of a case plan, and it is not at all

clear that the mother completed the objectives set by the case plan. For example, the

agency set a goal that the mother obtain stable housing. The word “stable” means more

than just the permanency of the dwelling itself — it also refers to the conditions inside the

home. The mother did obtain housing, but the evidence showed that she was living with

another family who had not been vetted by the agency. A case worker noted that the

mother normally kept a neat house when she and her family lived alone, but that when the

mother shared a house with another family, the house was in disarray.

       {¶21} Additionally, the mother’s completion of parenting skills courses did not

mean that she proved her competency to parent. As previously noted, the mother’s lack

of discipline gave the psychologist reason to be concerned about her ability to put limits
on the children. And the children posed certain difficulties beyond the problems posed

in normal child-rearing: A.P. had been labeled as having a serious emotional disturbance

and was receiving counseling for “ongoing behavioral issues.” So despite completing

parenting courses, the mother had not satisfied the court that she fulfilled the goals of her

case plan and removed the conditions that caused the children to be removed from her

home.

                                             III

        {¶22} The final issue is whether the court abused its discretion by finding that it

would be in the children’s best interest to be placed in the aunt’s legal custody.

        {¶23} R.C. 2151.353 does not provide factors that the court should consider to

determine the child’s best interest in a request for legal custody. In re E.A., 8th Dist.

Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13. Some courts have employed the best

interest factors set forth in R.C. 2151.414(D) that must be considered before a court can

terminate parental rights; other courts have considered the best interest factors set forth in

R.C. 3109.04(F) that must be considered before allocating parental rights in domestic

relations child custody cases.     In In re G.M., we found that principles of statutory

construction meant that the absence of best interest factors in R.C. 2151.353 compelled

the presumption that “the legislature did not intend to require the consideration of certain

factors as a predicate for granting legal custody.” In re G.M., 8th Dist. Cuyahoga No.

95410, 2011-Ohio-4090, at ¶ 16. We found that the courts were free to consider the best
interest factors set forth in other statutes to guide their discretion in determining legal

custody issues, but were not compelled to consider those statutes. Id.

       {¶24} Given the court’s factual findings, we cannot say that its determination that

it would be in the best interest of the children to be placed in the legal custody of the aunt

was so arbitrary and capricious that it constituted an abuse of discretion. The mother’s

refusal to stop ongoing sexual molestation in her home was a grave parenting failure.

Although she completed a number of parenting courses while in prison, the mother

displayed poor judgment by living with another family without getting prior approval

from the agency.     She then showed mendacity when confronted with that fact and

accused her own children of lying about it.

       {¶25} Perhaps most troubling was the mother’s drug use at a time when she was

about to go to court to get back her children. Compounding the seriousness of her drug

use was her documented mental and physical health issues: the mother was taking

antipsychotic medication and suffered from random seizures. Any one of these factors

would have been cause for concern; combined, the drug, mental, and physical issues were

so serious that they could place the children in physical jeopardy.

       {¶26} It is true that the children wished to remain with the mother, but the court

heard evidence suggesting that this was because the mother was so lax with her

discipline. One of the children had significant behavioral issues and would likely benefit

from a home environment that was more structured than the one the mother was

providing. In any event, the children had lived with the aunt for well over two years at
the time of the hearing, were adjusted to living with her, and were not experiencing any

problems with the aunt.       What is more, the aunt had been, and continued to be,

committed to integrating the mother into the children’s lives. The aunt expressed her

desire that the mother continue to have access to the children, so even though the mother

was losing legal custody, she was not losing all contact with her children.

       {¶27} We therefore find that the court did not abuse its discretion by finding it

would be in the best interest of the children to be placed in the legal custody of the aunt.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas — Juvenile Division 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.




MELODY J. STEWART, JUDGE

SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
