FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE Nos. DN 16-02-077 DN 16-02-078
APPEARANCES: ANGELA M. KILLE, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Appellant D.D. ("Mother") appeals the judgment of
the Summit County Court of Common Pleas, Juvenile Division,
that awarded legal custody of her children to their father
("Father"). This Court affirms in part, reverses in
part, and remands.
Mother and Father are the parents of K.D. (d.o.b. 4/8/09) and
N.D. (d.o.b. 3/14/11). The parents are divorced and have an
historically hostile relationship. The children were removed
by police from Mother's care based on allegations that
Mother was exhibiting erratic behavior and mental health
issues; and that she and her cousin who was living with her
were abusing drugs, using excessive discipline on the
children, and getting into physical altercations with one
another. Summit County Children Services Board
("CSB") filed a complaint alleging the children to
be dependent and neglected. At adjudication, Mother and
Father waived a hearing and agreed that the children were
dependent and neglected. The magistrate issued a decision
adjudicating them as such, and the juvenile court adopted the
decision the same day. After the subsequent dispositional
hearing, the children were placed in the temporary custody of
CSB, and the juvenile court adopted the agency's case
plan for the family.
Both Father and CSB filed motions for legal custody to
Father. The magistrate held a dispositional hearing over the
course of two days, continuing the matter after the first day
to allow Mother to subpoena additional witnesses. At the
conclusion of the hearing, the magistrate issued an order
awarding legal custody to Father and granting Mother regular
phone contact and visitation as the parties may agree. In the
event that the parties could not agree, Mother was entitled
to visitation every other weekend upon her successful
completion of substance abuse treatment and mental health
counseling, and her demonstration of sobriety. Mother filed
timely objections to the magistrate's decision.
After hearing argument by counsel, the juvenile court
overruled Mother's objections as they related to the
award of legal custody to Father and the denial of
Mother's motion to continue the hearing. The court
sustained her objection regarding the issue of visitation,
however. In addition to regular phone contact, the juvenile
court ordered that Mother shall have regular supervised
visitation as the parties may agree. If the parties could not
agree, then Mother was "permitted to receive at least
one hour of visitation to occur at a neutral site, to be
supervised by an appropriate adult besides Father." The
order did not clarify the frequency in which Mother was to
have one hour of visitation. Nor did it define the terms
"neutral site" and "appropriate adult."
Mother filed a timely appeal in which she raises two
assignments of error for review. We rearrange the assignments
of error to facilitate discussion.
OF ERROR II
TRIAL COURT'S FINDING THAT LEGAL CUSTODY TO FATHER WAS IN
THE BEST INTEREST OF THE CHILDREN IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE
Mother argues that the juvenile court's finding that an
award of legal custody to Father was in the best interest of
the children was against the manifest weight of the evidence.
This Court disagrees.
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 quotations and citations
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.
"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, citing
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 enunciated 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, 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, 15CA010860,
2017-Ohio-1, ¶ 17. While some factors overlap ...