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In re K.D.

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

IN RE: K.D., N.D.

         APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         II.

         ASSIGNMENT OF ERROR II

         THE 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[]

         {¶5} 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.

         {¶6} 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.

         {¶7} "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, ΒΆ 17. While some factors overlap ...


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