[Cite as In re M.A.,
2024-Ohio-808.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: M.A. C.A. No. 30781
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 21 08 0688
DECISION AND JOURNAL ENTRY
Dated: March 6, 2024
HENSAL, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that placed her child in the legal custody of the maternal grandparents
(“Grandmother,” “Grandfather,” and collectively “Grandparents”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of M.A., born May 17, 2021. The
parents were never married. Father is a convicted sexual offender and was not permitted to have
contact with any children as a condition of his parole. Accordingly, he has never developed a
relationship with the child. He has not appealed the juvenile court’s judgment.
{¶3} Mother tested positive for marijuana at the child’s birth and exhibited some mental
health concerns which brought the child to the attention of Summit County Children Services
Board (“CSB” or “the agency”). Although M.A. was discharged into Mother’s care upon his
release from the hospital, CSB implemented three successive in-home safety plans to address
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concerns for the child’s well-being. After the third in-home safety plan failed, the agency
implemented an out-of-home safety plan whereby M.A. stayed in Grandparents’ home and Mother
was allowed to visit with the child but not spend the night. Ultimately, CSB filed a complaint
alleging that the child was dependent and sought an emergency order of temporary custody to
Grandparents under the protective supervision of the agency.
{¶4} Mother and Father appeared at shelter care, waived their rights to a hearing, and
stipulated to a finding of probable cause for the child’s removal from their custody. They agreed
to emergency temporary custody to Grandparents under CSB’s protective supervision. The
juvenile court granted Mother supervised visitation.
{¶5} Following an adjudicatory hearing, the magistrate found that M.A. was a dependent
child, citing Mother’s serious mental health issues, including hallucinations; and the failure of
three safety plans because of Mother’s inattention to the child in circumstances that put him at risk.
Mother did not file an objection, and the juvenile court adopted the magistrate’s decision as its
order.
{¶6} Mother and Father waived their rights to the initial dispositional hearing. They
stipulated to the agency’s use of reasonable efforts. They further agreed to the child’s placement
in the temporary custody of Grandparents under CSB’s protective supervision and to the juvenile
court’s adoption of the agency’s case plan as an order. Mother’s case plan objectives included
basic needs, mental health, and parenting education components.
{¶7} Neither parent attended the first review hearing, although each was represented by
counsel. The magistrate found that both the caseworker and guardian ad litem proposed more
intensive and hands-on parenting instruction to address Mother’s lack of parenting skills. Mother
did not object to that factual finding. The juvenile court maintained the child’s custody status.
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{¶8} After the second review hearing, the magistrate found that Mother was participating
in mental health counseling but had not engaged in the recommended parenting education, did not
have suitable housing, and had missed a substantial number of visits during the prior two months.
M.A. remained in Grandparents’ temporary custody under the agency’s supervision.
{¶9} Eleven months into the case, CSB moved for legal custody to Grandparents.
Mother filed a motion for legal custody, or, alternatively, for a six-month extension of temporary
custody. Father did not file a motion regarding the child’s custody.
{¶10} After a three-day dispositional hearing, the magistrate found that Mother had not
made significant progress on her case plan objectives and that it was in the child’s best interest to
be placed in Grandparents’ legal custody and terminate CSB’s protective supervision. Mother
filed a timely objection, challenging the magistrate’s factual findings. CSB responded in
opposition.
{¶11} The juvenile court overruled Mother’s objection, finding that Mother had failed to
prove by clear and convincing evidence the statutory factors required to grant an extension of
temporary custody. The trial court found that awarding legal custody of M.A. to Grandparents
and terminating the agency’s protective supervision was in the best interest of the child. Mother
was granted supervised visitation with M.A. Mother timely appealed and raises one assignment
of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO
GRANT A FIRST SIX-MONTH EXTENSION OR LEGAL CUSTODY OF THE
CHILD TO MOTHER AND INSTEAD GRANTED LEGAL CUSTODY TO
MATERNAL GRANDPARENTS BECAUSE THAT DECISION WAS NOT IN
THE BEST INTEREST OF THE CHILD, AGAINST THE MANIFEST WEIGHT
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OF THE EVIDENCE, AND WAS NOT SUPPORTED BY A PREPONDERANCE
OF THE EVIDENCE.
{¶12} Mother argues that the juvenile court’s judgment that denied her dispositional
motions and instead awarded legal custody of M.A. to Grandparents is against the manifest weight
of the evidence. This Court disagrees.
Manifest weight: legal custody
{¶13} 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 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.
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.
{¶14} “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
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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 Revised Code Section
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.
{¶15} The best interest 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 Section 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 Section 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 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).
{¶16} CSB removed M.A. from Mother’s custody the month following the child’s birth.1
M.A. resided with Grandparents since he was about ten days old. He was 15 months old when the
legal custody hearing commenced. During that time, Mother visited only sporadically with the
child, preventing her from progressing beyond the need for supervision during her interactions
with the child.
1
The agency’s first case was dismissed and refiled due to statutory time restrictions.
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{¶17} M.A. shares a strong bond with Grandparents. The child is happy and comfortable
in their care, in the only home he has effectively ever known. The child is also bonded to Mother
whose interactions with him are generally appropriate. The caseworker testified that Mother
remains uneasy or uncomfortable, however, when the child is fussy or requires soothing.
{¶18} Due to the child’s young age, the guardian ad litem made a recommendation for
custody in the child’s best interest. She opined that legal custody to Grandparents was appropriate
to meet the child’s needs. The guardian ad litem did not support an extension of temporary custody
given Mother’s inconsistency and lack of progress on her case plan objectives.
{¶19} Because M.A. has spent his entire life in custodial limbo, the child requires
permanence. He has some special needs, including two club feet and speech delays, which
Grandparents have addressed consistently and appropriately. Moreover, Grandparents provide a
safe, financially secure, and stable home for M.A.
{¶20} On the other hand, Mother has struggled throughout the case to address the
concerns underlying the child’s removal from her care. Mother engaged in mental health
counseling but was terminated after failing to maintain contact with the mental health provider.
Although she reestablished contact and reengaged with her counselor, she had not gained the
insight or developed the coping skills necessary to mitigate the impact that her mental health issues
had on her ability to provide a safe and stable home environment for M.A.
{¶21} Mother struggled to meet her own basic needs during the pendency of the case.
During those 15 months, Mother moved six times. Although Father was prohibited from having
contact with any child due to his status as a child sexual offender, Mother lived in two homes with
Father during the case. She most recently lived with a male friend and his child, while she
continued to look for independent housing. Although she testified that her friend would allow her
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to live with him as long as necessary, Mother hoped to find an apartment closer to where she was
working because she did not have a car and relied on public transportation. At the time of the
hearing, Mother did not have the financial resources to secure such housing.
{¶22} Although Mother claimed to work throughout the case, she never provided
verification of employment or income to the agency. The caseworker and guardian ad litem both
understood that Mother virtually provided spiritual readings through an online company, although
they believed that Mother did not earn a significant income from that work. In addition, Mother
worked at one point at an entertainment club, but it appeared that she was later only providing such
services virtually.
{¶23} Mother began working at a bar and claimed she was earning more than $100 per
hour, although she did not testify as to how many hours she worked each week. The caseworker
was not aware that Mother had started working at a bar, and Mother admitted she had not told the
caseworker about her recent employment. By the third day of the hearing, Mother testified that
her employment had changed again. While she claimed she was still working at bars, it appeared
she was involved with a consortium of various establishments that allowed her to choose where
she would work at any given time. Mother provided no verification of income but testified that
she had made $600 the prior weekend. Notwithstanding Mother’s claim of lucrative employment,
she testified that she could not yet afford to pay rent, buy a car, or even purchase a new pair of
sneakers she needed.
{¶24} Mother testified that she worked evenings. She believed that a friend in another
city would be willing to provide childcare for M.A. during that time, but that would necessitate
Mother’s relocation to that city. Although she was looking for an apartment there, she could not
yet afford to move.
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{¶25} Mother had not prioritized visiting with M.A. During the last three months of the
case, Mother attended only three visits when she was scheduled to have at least 24. She testified
that the prospect of seeing Grandfather during visits made her ill because he had abused her as a
child. She also testified that she suffered abuse at the hands of both Grandparents. Mother
provided no details regarding the abuse. CSB investigated those allegations early in the case and
found them to be unsubstantiated. The guardian ad litem testified that Mother had mentioned an
incident involving the shower but also reported that Grandfather had not touched her
inappropriately. Nevertheless, Mother made vague references to “gross things that nobody should
do to people that are their kid” and excused her failure to visit because seeing Grandfather triggered
her trauma. The juvenile court, with agreement from the agency, admitted a letter from Mother’s
counselor into evidence based on Mother’s assertion that it clarified her diagnoses and the progress
she was making in treatment. The letter made no reference to Mother having been abused by her
parents as a child.
{¶26} Initially, Grandmother supervised Mother’s visits. Grandfather began supervising
when Grandmother no longer felt safe around Mother. While Mother testified that her rift with
Grandmother began when Grandmother commented during a visit that Mother was not prioritizing
the child’s needs, Grandmother testified that it arose when Mother brought Father to a visit at a
park and attempted to hide him in her car. Grandmother called the caseworker and guardian ad
litem to ask what she should do because Father was not allowed to have contact with the child.
Both testified that they told her to end the visit. After she did, Mother began harassing and
threatening Grandmother, indicating that she wanted to kill Grandmother. Both the caseworker
and guardian ad litem testified that they had seen Mother’s texts to Grandmother and posts on
social media referencing Mother’s desire to see Grandmother dead.
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{¶27} Mother later refused to allow Grandfather to supervise her visits and insisted that
they be moved to a private visitation center. The caseworker made a referral to Common Ground.
Grandfather immediately completed his intake there, while Mother delayed completing hers,
further delaying some visits.
{¶28} Grandmother and Grandfather testified that they understand that Mother’s residual
parental rights include the right the reasonable visitation with the child. Both explained the
opportunities they have offered for Mother to visit with M.A. twice a week. They testified that
they have and will continue to facilitate Mother’s visitation with the child, including expanding
visits to encompass longer periods of time a couple weekends a month. While Grandfather did not
think that Mother should have to pay to visit with the child, he would respect Mother’s choice to
visit at Common Ground. Grandparents also agreed that a friend Mother identified was appropriate
to supervise visits.
{¶29} The agency required Mother to participate in parenting education. Although she
argues that the case plan did not specify the need for intensive parenting classes, Mother testified
that she was aware of that requirement, and she never objected. The caseworker made a referral
to Ohio Guidestone upon Mother’s request, but Mother did not pursue that referral in a timely
manner. When she finally did contact Ohio Guidestone, they had a waiting list for services. The
caseworker made a referral to Ever Well but when she realized there was a waiting list there too,
she made a referral to Bellefaire where Mother could start parenting classes immediately. Mother
waited three months to contact Bellefaire which, by that time, had a waiting list. The caseworker
then made a referral to The Bair Foundation which could have assigned Mother a parenting
instructor at that time. After Bair attempted to contact Mother on multiple occasions without
success, it sought help from CSB to facilitate contact. The caseworker told Mother that Bair was
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trying to set up her intake appointment. By the time Mother reached out to Bair, that provider too
had a waiting list.
{¶30} Within a month, Bair was able to offer Mother services. By the time of the hearing,
Mother had completed her intake but had not begun any one-on-one sessions involving the child.
{¶31} 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 awarding
legal custody of M.A. to Grandparents. The preponderance of the evidence established that
Grandparents are willing and able to provide a safe and stable home for the child, as they had since
M.A. was less than two weeks old. They were meeting all the child’s basic and special needs.
Grandparents also demonstrated their commitment to facilitating visitation between Mother and
the child.
{¶32} Mother had neither consistently addressed her mental health issues nor developed
the insight or coping skills to overcome the impact those issues had on her ability to attain stability.
She failed to establish safe and stable housing, planning to move a seventh time when she could
afford to leave her friend’s home. Mother changed jobs regularly without keeping the caseworker
or guardian ad litem apprised of her current situation. She never provided verification regarding
employment and income despite ongoing requests by the caseworker.
{¶33} Despite concerns underlying the child’s removal that Mother lacked the skills to
parent the child on a regular, fulltime basis and manage both M.A.’s basic and special needs,
Mother did not pursue the intensive parenting education she knew was requested. She waited
months on occasion to contact service providers to initiate classes. By the conclusion of the three-
day hearing, Mother had not yet begun parenting sessions involving the child.
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{¶34} As the child is in a safe and secure home with the only caregivers he ever knew, his
needs are fully met, Mother has the opportunity for regular and reasonable visitation, and Mother
has neither made progress on her case plan objectives nor demonstrated the ability to provide an
appropriate permanent home for M.A., the juvenile court’s finding that an award of legal custody
to Grandparents is not against the manifest weight of the evidence.
Six-month extension of temporary custody
{¶35} Mother further argues that the juvenile court erred by not granting a first six-month
extension of temporary custody to allow her additional time to continue to work on her case plan
objectives. As previously stated, the juvenile court must resolve a motion for legal custody solely
in consideration of the best interest of the child. In re K.H., 2016-Ohio-1330, at ¶ 12. It is well
settled that “‘[w]here the trial court finds that it is in the best interest of a child to be placed in legal
custody as a permanent disposition, the trial court must necessarily deny any extension of
temporary custody.’” In re B.C., 9th Dist. Summit Nos. 26976 and 26977,
2014-Ohio-2748, ¶ 22,
quoting In re C.M., 9th Dist. Summit No. 24380,
2009-Ohio-943, ¶ 24. As legal custody of M.A.
to Grandparents is in the child’s best interest, an extension of temporary custody necessarily is not.
{¶36} Moreover, before the juvenile court may grant a first six-month extension of
temporary custody, it must find by clear and convincing evidence not only that the extension is in
the best interest of the child, but also that there has been “significant progress” on the case plan
objectives, and there is reasonable cause to believe reunification would occur within the extension
period. R.C. 2151.415(D)(1). As explained above, Mother made very limited progress in
addressing her case plan objectives. Her housing remained unstable, and her income was
unverified. Although she was participating in mental health counseling, she did not appear to
recognize its purpose or importance, testifying that it is “helpful for what it is, but I don’t think it’s
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an end all be all.” She had not begun to address her allegations of childhood abuse with her
counselor, leaving the juvenile court with unconfirmed evidence of Mother’s claims of impropriety
in contravention of the agency’s finding after investigation that Mother’s allegations were
unsubstantiated. Finally, Mother had not engaged in the required parenting education when the
hearing began. By the third day of the hearing, she had completed her intake appointment but had
not yet scheduled any sessions including the child.
{¶37} Given the supported finding that legal custody to Grandparents is in the child’s best
interest, coupled with Mother’s lack of significant progress in addressing her case plan objectives
to remedy the conditions underlying the child’s removal, the juvenile court did not err by denying
Mother’s motion for an extension of temporary custody. For the above reasons, Mother’s
assignment of error is overruled.
III.
{¶38} Mother’s 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.
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
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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.
JENNIFER HENSAL
FOR THE COURT
SUTTON, P. J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
JAYSEN W. MERCER, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
HOLLY FARAH, Guardian ad Litem.
