2021 OHIO 2913 - In re F.D.

[Cite as In re F.D.,

2021-Ohio-2913

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

IN RE: F.D. C.A. No. 29909

APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 17 08 0603

DECISION AND JOURNAL ENTRY

Dated: August 25, 2021

CALLAHAN, Judge.

{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common

Pleas, Juvenile Division, that granted legal custody of her child F.D. to the child’s paternal

cousin (“Cousin”). This Court affirms.

{¶2} Mother is the biological mother of F.D. (d.o.b. 2/1/13), as well as an older

daughter and two younger sons. The three siblings and their two fathers are not parties to this

appeal, but circumstances regarding them are relevant here. F.D.’s paternity was established.

Father was incarcerated the entire time that the case pended in the juvenile court, although he

maintained regular contact with the Summit County Children Services Board’s (“CSB” or “the

agency”) caseworkers.

{¶3} Mother has a long history of involvement with CSB since before F.D. was born.

The agency filed its first complaint regarding F.D. upon his birth. The child was adjudicated
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dependent at that time but remained in Mother’s legal custody under the protective supervision

of CSB. Shortly after protective supervision was terminated, while she was pregnant with her

third child, Mother contacted the agency due to various issues that were impeding her ability to

provide a safe and stable home for her children. Mother agreed to engage in services under a

voluntary case plan in May 2014. CSB closed that case six months later, however, as Mother

ultimately refused to participate in services. About a year later, after Mother had given birth to

her fourth child, CSB removed all four children and filed complaints alleging that each was a

neglected and dependent child. The four children were adjudicated neglected and dependent,

and remained in Mother’s legal custody under an order of protective supervision. Although

Mother had not complied with all case plan objectives and was using marijuana, protective

supervision was terminated and the case was closed in November 2016, once Mother had

obtained stable housing.

{¶4} In May 2017, CSB removed the four children from Mother’s home and filed new

complaints regarding each. Due to timing issues, those complaints were dismissed and refiled in

August 2017.1 The agency alleged that F.D. was a dependent child based on (1) Mother’s refusal

to believe that her husband (the father of her two youngest children) had sexually abused her

daughter; (2) the child’s exposure to violence stemming from Mother’s ongoing involvement in

volatile romantic relationships; (3) Mother’s untreated mental health issues which impacted her

parenting abilities, and which Mother minimized; (4) Mother’s aggression; (5) Mother’s history

of substance abuse; (6) Mother’s history of refusing to engage in services; and (7) the

expectation that Mother would be sentenced to incarceration at an upcoming criminal sentencing

hearing. F.D. was adjudicated dependent and placed in the temporary custody of CSB.

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The four siblings’ cases were consolidated for many of the proceedings below.
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{¶5} The juvenile court adopted the agency’s case plan as an order of the court. Father

was ordered to contact the caseworker to express his interest in visitation or custody and to

cooperate with CSB if the agency had concerns regarding his parenting ability. Mother was

required to obtain mental health, parenting, and chemical dependency assessments and follow all

recommendations. Over two and a half years into the case, the agency amended the case plan to

require that Mother merely obtain a diagnostic assessment, follow all recommendations, and

demonstrate appropriate interaction with adults and children.

{¶6} F.D. remained in CSB’s temporary custody throughout this lengthy case. After

several short placements with relatives and a foster home, the child was placed with a maternal

aunt (“Aunt”), where he remained for almost two years. Mother sought legal custody of the

child, while CSB moved for legal custody to Aunt. The agency later withdrew that motion

because Aunt rescinded her interest in custody of F.D. The child was placed in a therapeutic

foster home while CSB investigated the propriety of a maternal cousin for custody. Although the

agency later filed a motion for legal custody to that cousin, it withdrew that motion and moved

for permanent custody more than two years into the case.

{¶7} Pending the hearing on the motion for permanent custody, CSB continued to

investigate family members, including Cousin, for potential placement and custody. After

assessing and approving Cousin for placement, the agency facilitated visits. F.D. responded well

to the structure in Cousin’s home. With Cousin’s cooperation, he was also able to visit with his

three siblings who had been placed in the legal custody of other relatives. CSB withdrew its

motion for permanent custody, moved for legal custody to Cousin, and placed F.D. in Cousin’s

home.
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{¶8} Mother moved for legal custody. Because the child’s wishes conflicted with the

recommendation of the guardian ad litem, an attorney was appointed for F.D. The child moved

for legal custody to Mother. Father supported the agency’s motion for legal custody to Cousin.

The guardian ad litem initially expressed some reservations regarding Cousin in her report filed

two months before the hearing. After additional investigation, the guardian ad litem revised her

report and fully supported an award of legal custody to Cousin.

{¶9} A magistrate conducted a hearing on the various dispositional motions and issued

a decision ordering legal custody to Cousin. Mother filed timely objections and CSB responded

in opposition. The juvenile court overruled Mother’s objections and granted legal custody of

F.D. to Cousin. Mother filed a timely appeal and raises one assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT DID NOT GRANT MOTHER LEGAL CUSTODY AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.

{¶10} Mother argues that the juvenile court’s judgment granting legal custody of F.D. to

Cousin was against the manifest weight of the evidence. This Court disagrees.

On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
court does not have discretion to enter a judgment that is adverse to that interest.

(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-

Ohio-2685, ¶ 7.

{¶11} 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
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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 citations and quotations

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.

        {¶12} “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

, quoting 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 enumerated in R.C.

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 and 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 and 15CA010860,

2017-Ohio-1, ¶ 17

. While some factors overlap with those

above, others include the child’s adjustment to his or her environment; the mental and physical
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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).

{¶13} F.D. was just over four years old when he was removed from Mother’s custody,

and almost eight years old when the juvenile court awarded legal custody of the child to Cousin.

During that time, he remained in the temporary custody of CSB and was placed with six different

caregivers. Several of the child’s placements disrupted due to his behavioral issues. F.D. has

been diagnosed with disruptive mood dysregulation and attention deficit hyperactivity disorder.

From the time of his removal, the child has exhibited issues with anger, verbal and physical

aggression to peers and adults, destruction of property, oppositional defiant behaviors, lack of

social skills and boundaries, difficulty accepting responsibility for his actions, and inappropriate

sexual comments and behaviors.

{¶14} The Akron Public School system referred F.D. to Bridges Learning Center

(“Bridges”), part of Red Oak Behavioral Health (“Red Oak”), to address his behavioral issues.

Bridges is a restrictive school environment which provides additional services to help children

who are struggling with behavioral issues. All students have individualized education plans

(“IEP”). Each classroom has a teacher and a teacher’s aide. The maximum adult to student ratio

is 1 to 5 in each classroom. In addition, students work with in-school therapists who provide

psychotherapy and support. Children also have access to an on-site psychiatrist for medication

management, if necessary. The academic curriculum mirrors that of the public school. The goal

of the Bridges program is to facilitate a child’s eventual return to a traditional and less restrictive

classroom setting.
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{¶15} F.D. receives services from two therapists and a psychiatrist at Bridges. One of

the therapists testified regarding the child’s participation and progress. F.D. is on three

medications to address his impulsivity and lack of focus. In the past six to eight months since he

had been placed with Cousin, the child’s behaviors have significantly improved. The therapist

has made several visits to Cousin’s home and witnessed the structure and accountability therein.

Since that placement, F.D.’s aggression has lessened, his bouts of anger de-escalate more quickly

as he has learned to self-regulate better, and he has ceased efforts to sabotage his situation as he

has come to experience positive rewards for good behavior.

{¶16} The Bridges therapist has had the opportunity to see Mother and the child interact.

Mother has always been appropriate and attentive, and F.D. is always happy to see Mother. The

child’s inappropriate behaviors tend to escalate after visits with Mother, and F.D. has expressed

concerns that Mother would no longer consider him part of her family if he was placed in the

legal custody of a third party.

{¶17} Mother was enrolled in her own mental health services at Red Oak but she was

discharged for failing to attend. Had Mother participated, Red Oak could have incorporated

Mother in F.D.’s counseling sessions at Bridges. Mother indicated her displeasure with the

child’s presence at Bridges, telling the child and the CSB caseworker that Bridges was for bad

children. Mother was clear that, if she regained legal custody, she would remove F.D. from

Bridges and terminate his use of medications. The therapist testified that removing the child

from Bridges would forfeit his IEP and preclude his participation in necessary therapeutic

services.

{¶18} Cousin is cooperative with the professionals at Bridges. She planned to maintain

F.D. there until it was determined that he could successfully assimilate into a conventional
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classroom setting. Cousin supported maintaining the child on his prescribed medications which

helped regulate his behaviors. The child’s therapist emphasized the need for ongoing therapy,

medication management, and structure so that F.D. could continue to make progress and

diminish his inappropriate behaviors. The therapist was concerned that if the child was returned

to Mother’s legal custody, Mother would not follow through with the necessary services for the

child, especially given Mother’s failure to follow through on her own therapy. The therapist

emphasized, however, that if F.D. was placed in the legal custody of Cousin, it was important for

the child to maintain regular contact with Mother based on their bond.

{¶19} F.D. has acclimated well into Cousin’s home. He shares a bedroom with

Cousin’s teenaged son. A 19-year-old daughter also lives in the home. The child has a very

close relationship with Cousin and her daughter, both of whom provide structure and do not react

to his attempts to manipulate them. F.D.’s attempts at manipulation have subsided in Cousin’s

home.

{¶20} Cousin allows contact between the child and both his parents. She recognizes the

importance of allowing F.D. to have a relationship with Mother and Father and she testified that

she would continue to facilitate that. In fact, Cousin rejected the idea of adopting the child and

receiving an adoption subsidy, preferring legal custody so that F.D. would maintain a legal

relationship with both parents. Father calls and emails from prison multiple times each week.

F.D. is excited to be able to develop a relationship with his father. Upon Father’s eventual

release from prison, Cousin asserted that she would monitor visitations to determine the level of

supervision necessary to ensure the child’s safety. Cousin maintains contact with Mother to set

up visits based on Mother’s schedule. Mother has failed to appear for many visits, including

Skype calls. F.D. worries that he will not see Mother again when she fails to visit with him.
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Cousin reassures the child and encourages Mother to reschedule and maintain consistent

visitation with F.D.

{¶21} The child has expressed his desire to live with Mother. The guardian ad litem

opined that it is in the child’s best interest to be placed in the legal custody of Cousin, where his

needs are being met.

{¶22} F.D.’s custody has been in limbo for more than three years, during which he has

lived in six different placements. The child requires a permanent home. Mother has not

demonstrated that she can provide him with a safe and stable home environment at any time

during this case. On the other hand, Cousin has demonstrated the commitment to providing F.D.

with stability, structure, and care necessary to meet his basic and special needs.

{¶23} Mother has struggled with long term mental health issues, including bipolar

disorder, intermittent explosive disorder, borderline personality disorder, and general anxiety.

She has engaged with multiple mental health providers but only on an inconsistent basis. Mother

has told the agency caseworker that she will stick with therapy when she finds a counselor who

tells her what she wants to hear. She eschews the use of prescribed psychiatric medications for

both herself and her child.

{¶24} Mother has participated in various parenting education programs. She did not get

a certificate for a program in 2018, because she started attending the classes two months after

they began. She began attending a group for mothers called The Connect but was asked to leave

and not return after a few weeks after she became aggressive towards a younger mother in the

group. She received a certificate for participating in The Moms Program at a public library, but

CSB was unable to obtain information regarding the curriculum or accreditation for that

program. Mother successfully completed The Parent Project at Red Oak in April 2019.
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Nevertheless, the agency caseworker testified that Mother was never able to demonstrate an

understanding or application of the skills taught.

{¶25} Mother has not demonstrated that she will provide a safe and stable home for F.D.

Mother’s own mental health is not stable, and she has asserted that she will not maintain the

necessary mental health services for the child. She has not explained how she would provide

structure for F.D. outside of using corporal punishment and intimidation to manage his behavior.

{¶26} Cousin has demonstrated the desire and ability to provide the appropriate home

environment for F.D. that Mother cannot. The child’s behavior has greatly improved since living

in Cousin’s home. He is comfortable and secure in a home with a caregiver who is responsive to

his basic and special needs. Cousin provides the child with consistent and frequent contact with

his parents.

{¶27} Based on a thorough review of the record, this is not the exceptional case in which

the trier of fact clearly lost its way and committed a manifest miscarriage of justice by granting

CSB’s motion for legal custody of F.D. to Cousin. The preponderance of the evidence

established that Mother had not adequately addressed her mental health issues to allow her to

provide a safe and stable home environment for F.D. Mother remains volatile. She has

consistently rejected services designed to help her manage her inappropriate behaviors.

{¶28} F.D. has also struggled with long term behavioral issues. The child requires

consistency, structure, counseling, and medication management to thrive. Mother is opposed to

maintaining F.D. at Bridges where his behavior has improved under the guidance and support of

staff. Mother has also asserted that she does not want F.D. to take medications although they

help the child regulate both his emotions and behaviors and allow him to engage effectively in

classroom learning.
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{¶29} On the other hand, Cousin fully supports F.D.’s participation in services designed

to assist the child. Cousin plans to maintain F.D. at Bridges until the professionals recommend

his return to a conventional classroom setting. Cousin supports the psychiatrist’s advice to

maintain the child on medication to help manage his behaviors. Cousin provides structure for the

child in her home, and F.D.’s violent and other inappropriate behaviors have de-escalated under

her care.

{¶30} Although the child wishes to return to Mother, the guardian ad litem

recommended that legal custody to Cousin would be in F.D.’s best interest. Cousin has

demonstrated her willingness to maintain regular and safe contact between the child, both his

parents, and his three siblings. Under these circumstances, the juvenile court’s finding that an

award of legal custody to Cousin was in the child’s best interest is not against the manifest

weight of the evidence. Mother’s assignment of error is overruled.

III.

{¶31} Mother’s sole 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.
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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 to Appellant.

LYNNE S. CALLAHAN
FOR THE COURT

HENSAL, P. J.
SUTTON, J.
CONCUR.

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.

ALEXANDRA HULL, Attorney at Law, for the child.

ALAN MEDVICK, Attorney at Law, for Appellee.

ANGELINA GINGO, Guardian ad litem.