[Cite as In re K.H.,
2016-Ohio-4784.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTERS OF: : JUDGES:
: Hon. Sheila G. Farmer, P.J.
K.H. AND K.C. : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. CT2016-0001
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
21330239 and 21330240
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 30, 2016
APPEARANCES:
For Appellant For Appellee
PETER N. CULTICE GERALD V. ANDERSON II
58 North Fifth Street 27 North Fifth Street
Zanesville, OH 43701 P.O. Box 189
Zanesville, OH 43702-0189
For K.H. and K.C.
Guardian ad Litem
FRED SEALOVER
P.O. Box 2910 KEVIN VAN HORN
Zanesville, OH 43702-2910 715 Adair Avenue
Zanesville, OH 43701
Muskingum County, Case No. CT2016-0001 2
Farmer, P.J.
{¶1} On November 8, 2013, appellee, Muskingum County Children Services,
filed a complaint alleging K.H., born October 4, 2008, and K.C., born June 14, 2011, to
be neglected and/or dependent children. Mother of the children is appellant, Kayla
Hayes; father of K.H. is Christopher Dalton and father of K.C. is Jonathan Commeans.
Neither father is a party to this appeal.
{¶2} Following a shelter care hearing, the children were placed in appellee's
temporary custody. A case plan was filed on December 5, 2013.
{¶3} An adjudicatory hearing was held on February 6, 2014, wherein the children
were found to be neglected and dependent. The dispositional hearing followed and the
trial court placed the children in the temporary custody of Christopher and Diana Riggs.
{¶4} On November 5, 2014, appellee filed a motion for an order of legal custody
of the children to the Riggses. Appellant also filed a motion for legal custody on January
21, 2015. Hearings were held on March 16, and September 28, 2015. By judgment entry
filed November 23, 2015, the trial court awarded legal custody of the children to the
Riggses.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶6} "THE JUDGMENT ENTRY OF THE COURT AWARDING LEGAL
CUSTODY OF THE CHILDREN TO CHRISTOPHER AND DIANA RIGGS IS
CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."
Muskingum County, Case No. CT2016-0001 3
I
{¶7} Appellant claims the trial court's decision on legal custody is against the
manifest weight of the evidence.
{¶8} R.C. 2151.353(A)(3) states the following in pertinent part:
(A) If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
(3) Award legal custody of the child 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.
{¶9} We agree with the following analysis set forth by our brethren from the
Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-
4818, ¶ 19-22:
Legal custody is significantly different than the termination of
parental rights in that, despite losing legal custody of a child, the parent of
the child retains residual parental rights, privileges, and responsibilities. In
re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.
2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not
permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130, 2010-
Muskingum County, Case No. CT2016-0001 4
Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses in
making its determination is the less restrictive "preponderance of the
evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455,
751
N.E.2d 552 (7th Dist.2001). "Preponderance of the evidence" means
evidence that is more probable, more persuasive, or of greater probative
value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
Unlike permanent custody cases in which the trial court is guided by
the factors outlined in R.C. 2151.414(D) before terminating parental rights
and granting permanent custody, R.C. 2151.353(A)(3) does not provide
factors the court should consider in determining the child's best interest in
a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in
the absence of best interest factors in a legal custody case, "the legislature
did not intend to require the consideration of certain factors as a predicate
for granting legal custody." Id. at ¶ 16. Such factors, however, are
instructive when making a determination as to the child's best interest. In
re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13.
The best interest factors include, for example, the interaction of the
child with the child's parents, relatives, and caregivers; the custodial history
of the child; the child's need for a legally secure permanent placement; and
whether a parent has continuously and repeatedly failed to substantially
remedy the conditions causing the child to be placed outside the child's
home. R.C. 2151.414(D).
Muskingum County, Case No. CT2016-0001 5
Because custody determinations " 'are some of the most difficult and
agonizing decisions a trial judge must make,' " a trial judge must have broad
discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting
Davis v. Flickinger, 77 Ohio St.3d 415, 418,
674 N.E.2d 1159 (1997). We
therefore review a trial court's determination of legal custody for an abuse
of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74,
523 N.E.2d 846 (1988).
An abuse of discretion implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219,
450 N.E.2d 1140 (1983).
Accord, In re L.D., 10th Dist. Franklin No. 12AP-985,
2013-Ohio-3214; Stull v. Richland
County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48,
2012-Ohio-738.
{¶10} In its judgment entry filed November 23, 2015, the trial court found the
following as to appellant:
The Court finds that Mother completed Stanton Villa; does have
Section 8 Voucher; completed mental health assessment and is counseling
at Six County; completed 103 random drug screens out of 157 possible
random drug screens and completed parent education. However, despite
those reasonable efforts made by Muskingum County Children Services, it
continues to be in the best interest of the children, Not to be returned home
because Mother has missed 54 random drug screens; Mother tested
positive for THC and Opiates; Mother has had no unsupervised visitation
Muskingum County, Case No. CT2016-0001 6
since the case opened; Mother does not have appropriate/independent
housing; Mother has failed to attend all of the children's medical
appointments and required treatments/injections.
{¶11} We note the trial court's findings are lacking in specificity and are cursory at
best. The trial court used a form similar to a traffic court entry and merely filled in the
blanks.
{¶12} The case began in November 2013 because of a domestic violence incident
between appellant and Mr. Commeans wherein appellant was the aggressor. See Report
of Investigation attached to Complaint filed November 8, 2013; September 28, 2015 T. at
14-15. A case plan was filed on December 5, 2013. The objectives in the case plan for
appellant included substance abuse assessment, random drug screenings, mental health
assessment, anger management, obtain housing and income, complete parenting
classes, and attend the children's appointments. March 16, 2015 T. at 9; September 28,
2015 T. at 9. The case plan did not instruct appellant to stay away from Mr. Commeans.
{¶13} As for substance abuse assessment, appellant completed Stanton Villa and
continuing care with Genesis Recovery. March 16, 2015 T. at 9; September 28, 2015 T.
at 9. She completed mental health assessment at Six County, completed anger
management through Tompkins, and completed parenting classes. Id. at 10; Id. She
obtained and has maintained employment and recently obtained a Section 8 voucher for
housing. Id.; Id. She has attended some of the children's appointments, but not all. Id.;
Id. at 10.
Muskingum County, Case No. CT2016-0001 7
{¶14} During the March 16, 2015 hearing, the caseworker explained appellee's
continuing concern was with the medical condition of one of the children. The child has
juvenile polyarticular arthritis and needs to be monitored very closely and receive
injections to control inflammation. March 16, 2015 T. at 10. Appellee wanted appellant
to attend all of the children's medical appointments and remain familiar with the child's
medical condition. Id. Out of twenty-seven appointments for K.H., appellant attended
four, and for K.C., appellant attended one appointment out of eighteen. Id. at 11. During
the March hearing, the caseworker admitted appellant completed every objective of the
case plan and appellee's only concern "has to do with her attendance at medical
appointments." Id. at 14-15. The caseworker was also concerned with appellant's contact
with Mr. Commeans, as he had done nothing to meet the objectives of his case plan. Id.
at 19. The caseworker agreed this concern would be addressed if the trial court ordered
no contact with Mr. Commeans during appellant's parenting time. Id. At the March
hearing, appellant was seven and a half months pregnant with Mr. Commeans's child. Id.
at 92.
{¶15} At the start of the September 28, 2015 hearing, appellant presented to the
trial court a civil protection order she had obtained against Mr. Commeans on August 31,
2015. September 28, 2015 T. at 6-7. Mr. Commeans was incarcerated at the date of the
hearing and was expected to be released in November 2015. Id. at 16. His criminal
history did not involve violence, "mostly theft and nonpayment of child support." Id. at 26.
During this hearing, the caseworker stated appellant submitted to one hundred and three
random drug screens out of one hundred and fifty-seven. Id. at 9. The caseworker
admitted "[o]f those missed, seven were due to the number not working, busy signal. I
Muskingum County, Case No. CT2016-0001 8
did not call her. Part of it was because she was in Stanton Villa, so that was a good bit
of them." Id. The caseworker stated appellant "was positive for marijuana on five, opiates
on two of them, but the opiates were due to having a baby. She completed a hair follicle
test in October of 2013 and was positive for marijuana. She was referred to Six County.
She did complete that assessment." Id. As for attending the children's medical
appointments, the caseworker testified since the March hearing, appellant was "doing
better as far as getting to the appointments." Id. at 10. The caseworker stated the only
change from the March hearing was the civil protection order. Id.
{¶16} Appellant gave birth in June of 2015 and the child resides with appellant
and appellee has no problems or concerns regarding this child. Id. at 12. The caseworker
observed the infant in appellant's care and the infant was doing well and the infant's needs
were being met. Id. at 18. When questioned as to the reasoning for not wanting the
children returned to appellant even though she basically completed her case plan, the
caseworker stated "[t]he continued contact" with Mr. Commeans. Id. at 13. The
caseworker did not have any confidence that appellant would abide by the civil protection
order. Id. at 22.
{¶17} The caseworker testified the children have been in the legal custody of the
Riggses since November 2013 and were "thriving." March 16, 2015 T. at 13. Christopher
Riggs is the pastor to the children's maternal grandmother. Id. The Riggses have
cooperated with appellee in trying to reunify the children with appellant. September 28,
2015 T. at 23-24. In fact, they made the one child available so appellant could administer
the necessary injections. Id. at 24.
Muskingum County, Case No. CT2016-0001 9
{¶18} In finding the children should not be returned to appellant, the trial court
noted she had missed "fifty-four random drug screens" and tested positive for THC and
opiates. The caseworker testified seven of the missed drug screens were due to the
number not working or it was busy or she did not call her, and a "good bit of them" were
missed because appellant was in Stanton Villa as directed by her case plan. September
28, 2105 T. at 9. Appellant's Drug Testing Schedule and Results, attached to the trial
court's November 23, 2015 judgment entry, indicates appellant did not have any "no-
shows" after December 2, 2014, which means appellant complied with random drug
testing for over nine months prior to the September 2015 hearing. As for the positive drug
screens, the caseworker explained appellant tested positive for opiates because she had
just given birth, and the Drug Testing Schedule and Results indicate appellant last tested
positive for THC on May 7, 2014, over sixteen months prior to the September 2015
hearing. By the March 2015 hearing, appellant had completed substance abuse
assessment at Stanton Villa and continuing care with Genesis Recovery. March 16, 2015
T. at 9.
{¶19} The trial court also found appellant "had no unsupervised visitation since
the case opened." The caseworker stated the reason visitation was supervised after
appellant had completed the case plan had to do with location, not supervision at the
agency, as transportation was easier for appellant to the agency. March 16, 2015 T. at
20-21. Appellant had custody of her newborn and appellee did not have any problems or
concerns as the infant's needs were being met. September 28, 2015 T. at 12, 18.
{¶20} The trial court also found appellant did not have "appropriate/independent
housing." At the March hearing, appellant was residing with her uncle, and there was no
Muskingum County, Case No. CT2016-0001 10
testimony that the arrangement was unsuitable. By the September hearing, appellant
was still living with her uncle, but had obtained a Section 8 voucher for housing.
September 28, 2015 T. at 9. Clearly appellant made efforts toward independent living.
{¶21} Lastly, the trial court found appellant "has failed to attend all of the children's
medical appointments and required treatments/injections." During the September
hearing, the caseworker stated appellant was doing better at attending the appointments,
and agreed the Riggses were making the child available so appellant could administer
the injections which was going well. September 28, 2015 T. at 10, 21, 23-24. No further
testimony was taken on this issue, as the bulk of the hearing focused on appellant's prior
contact with Mr. Commeans, which appellant remedied by obtaining a civil protection
order against him. It is interesting to note that the March hearing primarily focused on the
medical appointments issue which was barely touched upon during the September
hearing.
{¶22} We find appellant has completed the required objectives of the case plan
and has even obtained a civil protection order against Mr. Commeans even though the
case plan did not instruct her to stay away from him.
{¶23} Based upon the foregoing, we find the trial court abused its discretion in
granting legal custody of the children to the Riggses.
{¶24} The sole assignment of error is granted.
Muskingum County, Case No. CT2016-0001 11
{¶25} The judgment of the Court of Common Pleas of Muskingum County, Ohio,
Juvenile Division, is hereby reversed, and the matter is remanded to said court for further
proceedings consistent with this opinion.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 601
