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In re T.R.

Court of Appeals of Ohio, Ninth District, Summit

March 28, 2018

IN RE: T.R.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 16-06-0485

          RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

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

          THOMAS LOEPP, Attorney at Law, for Appellee.

          JOSEPH M. KERNAN, Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          SCHAFER, Presiding Judge.

         {¶1} Appellant, R.R. ("Father"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that placed his minor child in the legal custody of the child's mother, S.B. ("Mother"). Because the trial court's legal custody decision was not supported by a preponderance of the evidence about the best interest of the child, this Court reverses and remands for a new hearing.

         I.

         {¶2} Father and Mother are the biological parents of T.R., born April 8, 2015. Although Mother has four older children, T.R. is the only child at issue in this appeal. At the time this case began, T.R. lived with Mother, who did not reside with Father. T.R. was removed from Mother's custody pursuant to Juv.R. 6 when Mother was pulled over for a traffic stop and was arrested on an outstanding felony warrant. Mother was then involved in drug treatment in lieu of conviction on criminal charges of identity fraud and misuse of a credit card, but she had not complied with court-ordered treatment.

         {¶3} CSB filed a complaint to allege that T.R. was a dependent child because Mother admitted that she had struggled with opiate addiction and associated criminal activity for several years and that one of her older children was born with drugs in her system. CSB further alleged that three of Mother's older children were in the custody of their fathers because of Mother's unresolved opiate addiction. CSB was not prepared to place the child with Father because he was "an alleged perpetrator of past substantiated sexual abuse."

         {¶4} T.R. was later adjudicated dependent and placed in the temporary custody of CSB. The case plan required that Mother resolve her drug abuse and criminal problems. During the next several months, according to the limited evidence in the record, Mother consistently engaged in drug treatment, achieved ongoing medically-assisted sobriety, and resolved her criminal issues.

         {¶5} Because of the allegations that Father had been a sexual perpetrator and his own admission that he had been diagnosed with "chronic depression and manic depression[, ]" the primary case plan requirement for Father was that he obtain a psychological or psychiatric evaluation and follow any treatment recommendations. Despite reminders from the caseworker and the guardian ad litem, Father did not obtain a mental health evaluation. For reasons not clear from the record, however, CSB later placed T.R. in Father's home, but the child remained in the temporary custody of CSB.

         {¶6} The case ultimately went to a final dispositional hearing on competing motions for legal custody filed by Father and Mother. CSB supported Father's motion, but the guardian ad litem supported Mother because Father had not complied with the case plan, but Mother had.

          {¶7} The magistrate decided that T.R. should be returned to the legal custody of Mother. Father filed objections to the magistrate's decision, asserting that the legal custody decision was not supported by the evidence presented at the hearing. The trial court later overruled Father's objections and placed T.R. in the legal custody of Mother. Father ...


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