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In re M.H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

IN RE M.H. A Minor Child Appeal by S.J., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. CU 12108014 and CU 12108015

          Bartos & Bartos, L.P A., and David Bartos, for appellant

          Dean A Colovas, for appellee.


          LARRY 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.

         Procedural History

         {¶ 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 August 2017.

         {¶ 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.

         Trial Testimony

         {¶ 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 or activities."

         {¶ 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 there.

         {¶ 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 rehabilitation.

         {¶ 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 were "loved."

         {¶ 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 cards.[1]

         {¶ 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 ...

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