Court of Appeals of Ohio, Eleventh District, Ashtabula
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).
Noon Miller, Law Offices of Eileen Noon Miller, (For
Appellant, Pamela Means).
M. Blankenship, (Guardian ad litem).
TIMOTHY P. CANNON, J.
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.
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.
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.
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.
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.
At the hearing, the following testimony was heard by the
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.
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.
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.
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.
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.
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.
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.
Mother's second assignment of error states:
"The trial court failed to consider whether Appellant
would be able to parent the child within a reasonable
"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 ...