Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE M.H. A Minor Child Appeal by S.J., Mother
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case Nos. CU 12108014 and CU 12108015
& Bartos, L.P A., and David Bartos, for appellant
Colovas, for appellee.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE.
1} In this appeal, appellant S.J.
("Mother") challenges the trial court's
judgments granting appellee B.H.'s ("Father")
motion to modify custody. For the reasons that follow, we
affirm and remand.
2} This case dates back to 2012, when Father filed
an application for custody of the children at issue, twin
boys M.H. and A.H., who were born in July 2010. As a result
of the initial proceedings, the boys were placed in the legal
custody of Mother in 2014.
3} In February 2017, Father, pro se, filed a motion
for modification of custody and an emergency motion for
temporary custody of the boys. Father contended in the
motions that he learned that Mother was in an inpatient drug
treatment facility and unavailable to care for the children.
On March 16, 2017, the trial court granted the emergency
motion for temporary custody.
4} On March 31, 2017, Mother, by and through
counsel, filed a motion to vacate the trial court's order
and a motion for temporary orders. The motions were set for
hearing on April 14, 2017, but the date was continued until
May 18, 2017. On May 11, 2017, Mother filed a motion for an
in camera interview of the boys. The May 18 hearing was held,
and the trial court denied Mother's motions to vacate and
for temporary orders. Mother's attorney was granted
permission to withdraw from the case at the hearing. The
matter was set for further proceedings to take place in
5} The August 2017 hearing did not take place,
however, because the matter was continued for the appointment
of a guardian ad litem ("GAL") for the children.
The next hearing was in October 2017, at which Mother's
parenting schedule was adjusted for the upcoming holidays and
the matter was set for trial to take place on January 19,
2018. Father had counsel at that hearing; Mother did not.
6} The trial did not take place on January 19, but
the GAL did file her report on that date; the trial was
continued until March 30, 2018. On February 22, 2018, Father
filed a supplemental affidavit averring to issues that were
not directly addressed in his initial pro se motion for
modification of custody.
7} The trial took place on March 30, 2018, whereupon
the following testimony was elicited.
8} Mother testified that in May 2015 she was living
with her parents, but she was "in and out of the streets
and institutions and jails," and at that time, her
mother was primarily taking care of the boys. She
"caught a case" in July 2015, and went to jail.
Mother testified that after her release from jail, she did
not want to return to her parents' house; her mother told
her that she was not allowed to see the boys until after she
stopped using heroin. Mother testified that her "drug of
choice [was] any and every mind or mood-altering substances
9} Mother testified that after her release from jail
she participated in two inpatient treatment programs: the
first was a 90-day program that she attended from
approximately February 2016 to May 2016, and the second was
an approximate 69-day program that she attended from about
February 1, 2017 through April 13, 2017.
10} In mid-July 2017, Mother tested positive for
marijuana and cocaine. Mother testified that after testing
positive, she continued attending Alcoholics Anonymous
meetings to help her stay sober, which she contends she has
been since that July 2017 relapse. She was diagnosed with
anxiety, depression, and bipolar disorder, and she takes
medications (an antidepressant and mood stabilizer) to help
her with those issues. Mother admitted that, as of the time
of trial, she had not been successful in finding a medication
that helped with her anxiety, but testified that she was
treating with a behavioral therapist and a psychiatrist.
11} At the time of trial, Mother was employed as a
painter. She did not have a valid driver's license. She
testified that the house she lived in belonged to her
grandparents. Originally, she and the boys lived in the house
with her parents and her brother, who was responsible for the
rent payments to the grandparents. The brother, however, whom
Mother referred to as "no good," defaulted on the
payments and her father took them over. Her father also
defaulted and was "told to leave."
12} At the time of trial, only Mother and her mother
resided in the house that Mother hoped the twins would be
able to purchase one day so that they could have "a roof
over their head" and Mother could "go on [her]
merry way." Mother was happy that it would be just her
and her mother living in the house because she did not want
her brother to be around the boys. According to Mother, her
brother was an "addict," and he had been hiding out
in the basement of the house when he was not supposed to be
13} A police officer also testified. He stated that
in March 2016 he responded to Mother's home and found
drugs and drug paraphernalia "in plain sight" in
the house. The record established that, at the time, Mother
was not residing in the house because she was in
14} Paternal grandmother testified as well. Father
lives with paternal grandmother; paternal grandmother's
other son, who was a firefighter, also resided in the home.
Grandmother described Father as a "good dad" who
engages in many activities with the boys, including Cub
Scouts. She testified that she was also involved in
activities with them, including taking them to Sunday school,
and their uncle was involved as well.
15} As it related to Mother, paternal grandmother
testified as follows: "[Mother] is a very good mom. She
has mood swings. Sometimes I don't really want to deal
with her, but [she] is a good mom. I'm not gonna say
she's not." She described the boys as "a
handful," but noted that because of the family, they
16} Father testified that he is a construction
worker and had been employed for the past two years at a
company. When the boys were living with Mother, they were
attending the Parma City Schools and they both had individual
educational plans ("IEPs"). Father lives in
Cleveland and once he got emergency custody of them, he
enrolled them in the Cleveland Public Schools.
17} According to Father, the Cleveland Public
Schools "refused everything that came from Parma,"
including the IEPs. The Cleveland Metropolitan School
District then issued new IEPs. Father testified that he is
actively involved in their education, and that both boys were
doing well in the Cleveland public school district, as
measured by their results on state testing and their report
18} Father testified that he supports Mother
spending time with the boys and will occasionally extend
their visitation time with each other: "That's a
strong belief of mine, that they need to see both parents,
and I'm always gonna stick to that."
19} Mother testified in the narrative form. She told
the court that she had been working hard to better herself.
She believed that the main problem that caused her to lose
custody was her brother living in her house, and that had
been rectified, because he moved out about one week prior to
the hearing. She acknowledged that Father took good care of
the boys, but had concerns about them being left alone with
paternal grandmother because she believed the grandmother had
physical limitations, and ...