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In re A.R.

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 3, 2019

IN THE MATTER OF: A.R.

          Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division. Case No. 2018 JC 00023.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, (For Appellee, Ashtabula County Children Services Board).

          Eileen Noon Miller, Law Offices of Eileen Noon Miller, (For Appellant, Pamela Means).

          Jodi M. Blankenship, (Guardian ad litem).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Pamela Means ("Mother), appeals a judgment in the Ashtabula County Court of Common Pleas, Juvenile Division, overruling her objections to the magistrate's decision, which awarded legal custody of A.R. (d.o.b. 09/13/2000) and A.R. (d.o.b. 02/23/2006) to Miguel Rios ("Father") and terminated protective supervision by appellee, Ashtabula County Children Services Board ("ACCSB"). Subsequently, the case regarding the older child was dismissed because she is now 18 years of age; only the case regarding A.R. (d.o.b. 02/23/2006) ("the child") is before us. Upon review of the record, the trial court's conclusions concerning the best interest of the child are supported by competent, credible evidence. Accordingly, we affirm the judgment.

         {¶2} ACCSB filed a complaint for temporary custody on February 23, 2018, after being granted ex parte custody of the child following an inspection of Mother's home in response to a complaint about the well-being of the child. During that inspection, ACCSB determined that Mother's home was unsafe and unsanitary, prompting the filing of the complaint and subsequent custody dispute.

         {¶3} At an Adjudicatory Hearing on March 21, 2018, the parents stipulated to a finding of Dependency as alleged and stipulated the family is in need of services.

         {¶4} At the dispositional hearing on April 21, 2018, the child was placed in the temporary custody of Father, with protective supervision granted to ACCSB. A case plan was implemented to address various concerns regarding Mother, including the condition of her home, her mental health issues, and her lack of income. Father's lone requirement under the case plan was to provide for the child while she was in his custody.

         {¶5} On May 17, 2018, ACCSB filed a motion to terminate protective supervision and for legal custody of the child to be granted to Father. The matter was originally scheduled to be heard on June 20, 2018; however, the hearing was converted to a pretrial, and the matter was ultimately heard on August 21, 2018, during the semi-annual review hearing.

         {¶6} At the hearing, the following testimony was heard by the trial court.

         {¶7} On behalf of ACCSB, supervisor Terri Jo Mickle testified regarding her knowledge of the initial investigation of Mother's home, custody of the child, and progress of both parents with regard to the established case plan. Mickle testified that Mother was minimally compliant with cleaning the residence, she was minimally compliant with attempting to treat her mental health issues, and she had not secured a source of income. These shortcomings were attributed to both the physical limitations of Mother-who has substantial physical difficulties due to previous injuries to both knees-and Mother's unwillingness to cooperate with home visits or mental health facilities. Mickle testified that Father, whose only requirement was to provide for the child, had met his requirement under the case plan. Mickle's testimony was that she believed it to be in the best interest of the child to remain with Father.

         {¶8} Mother offered rebuttal testimony on her own behalf. She confirmed that the cleaning of the residence was progressing slowly due to her handicap and stated that she had a friend helping when the friend had free time. She also confirmed that, at the time of the hearing, the residence was not suitable for the child to live because the child's room was not habitable.

         {¶9} When questioned about the progress of her mental health treatment and securing an income, she offered explanations for each. She stated that she had attended two sessions for mental health treatment and that she did not like the facility. She stated that she was seeking a new facility because she was not satisfied with the treatment she received. Regarding her income, Mother stated that she previously worked for Ashtabula County Board of MRDD before her knee injuries, and she was unaware of whether she was still employed by them despite not having performed work or received a salary in nearly ten years. When asked if she considered herself an employee, she stated, "[w]ell, I mean, I never resigned. Like I said, I don't know. I mean, I'm not getting PERS through them." Mother went on to claim that she supported herself by bartering with a neighbor for services and utilizing an inheritance from the death of her father.

         {¶10} A substantial portion of Mother's testimony was regarding her concerns of alcohol and drug use of the child while in the custody of Father. There was concern over Father's paramour drinking while supervising the child, which Mother had discussed at length with the child in private. These discussions, through text messages, involved Mother telling the child things such as "She's an alcoholic like her daughter said," "And she threatened to kill her daughter," "She needs to watch herself," "I would die for you," and other messages the trial court found to be inappropriate communication with a 12-year-old child. Mother did not find any of her text messages to be inappropriate.

         {¶11} Following this testimony from ACCSB and Mother, guardian ad litem Jodi Blankenship ("GAL") testified regarding her recommendation. She was in agreement with ACCSB that it was in the best interest of the child to remain in the custody of Father. She acknowledged there were substantial behavioral problems with both children which would take substantial time to remedy; however, she stated that (1) Father's home was suitable, and Mother's home, by her own admission, was not; (2) Father was providing for the child and had a source of income, whereas Mother did not; and (3) the child was doing better since being placed in the custody of Father.

         {¶12} Immediately following the hearing, the magistrate issued a decision awarding legal custody of the child to Father and terminating protective supervision. Mother timely filed objections to the magistrate's decision, which were overruled in a judgment entry filed September 10, 2018, adopting and approving the decision.

         {¶13} Mother filed a timely notice of appeal and raises three assignments of error for our review. Because each of the errors addresses alleged deficiencies in the trial court's determination of legal custody in the matter, we consider the assignments out of order.

         {¶14} Mother's second assignment of error states:

         {¶15} "The trial court failed to consider whether Appellant would be able to parent the child[] within a reasonable time."

         {¶16} "The court may amend a dispositional order in accordance with division (F)(2) of section 2151.353 of the Revised Code at any time upon its own motion or upon the motion of any interested party." R.C. 2151.417(B). "A trial court has the authority 'to award legal custody of an adjudicated dependent child to either parent in the disposition phase of the dependency proceedings.'" In re Memic, 11th Dist. Lake Nos. 2006-L-049, et seq., 2006-Ohio-6346, ¶24, quoting In re Cloud (May 19, 1997), 12th Dist. Butler No. CA96-01-002, 1997 WL 264264, *2 (May 19, 1997), citing R.C. 2151.353(A)(3). "'Legal custody vests in the custodian the physical care and control of the child while residual parental ...


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