IN RE: M.H., ABUSED, NEGLECTED, DEPENDENT CHILD. [AMBER ARTHUR - APPELLANT] IN RE: D.H., ABUSED, NEGLECTED, DEPENDENT CHILD. [AMBER ARTHUR - APPELLANT] IN RE: S.S., ABUSED, NEGLECTED, DEPENDENT CHILD. [AMBER ARTHUR - APPELLANT]
from Marion County Common Pleas Court Family Division Trial
Court Nos. 2016 AB 0087, 2016 AB 0088 and 2016 AB 0089
M. Noland for Appellant
J. Kahle for Appellee
Appellant Amber Arthur ("Arthur") brings this
appeal from the judgments of the Court of Common Pleas of
Marion County, Family Division granting legal custody of the
minor children to Heather Evert ("Evert"). Arthur
claims on appeal that the Marion County Children's
Services Agency ("the Agency") filed to make
reasonable efforts to reunify the minor children with Arthur.
For the reasons set forth below, the judgments are affirmed.
Arthur is the mother of three children: 1) S.S. born in May
of 2008, 2) D.H. born in July 2010, and 3) M.H. born in
September 2012. On August 2, 2016, the Agency filed a
complaint alleging that the minor children were neglected and
dependent. ADoc. 1, BDoc. 1, CDoc. 1. The complaint alleged that
the children lacked adequate parental care and the home
conditions were unsafe. Id. The Agency requested
that the children be placed under protective supervision.
Id. A case plan was submitted to the trial court and
incorporated into the disposition on August 31, 2016. ADoc.
8., BDoc. 8, CDoc. 9. The case plan required in pertinent
part for Arthur to 1) complete a mental health assessment and
follow through with the recommendations, 2) maintain the home
in a reasonable manner, 3) complete a parenting class, 4)
speak with the children about what to do in an emergency
situation, and 5) cooperate with the Agency. Id. An
adjudication hearing was held on October 7, 2016. ADoc. 14,
BDoc. 14, CDoc. 16. Arthur stipulated at the hearing that the
children were dependent and the magistrate found them to be
dependent children. Id. On October 27, 2016, the
trial court adopted the magistrate's decision. ADoc. 15,
BDoc. 15, CDoc. 17. On October 31, 2016, the magistrate held
a hearing regarding the disposition of the adjudications of
dependency for M.H. and D.H. ADoc. 16 and BDoc. 16. The
magistrate recommended that the children remain in the
custody of Arthur with the Agency maintaining protective
supervision. Id. The trial court adopted this
decision on November 21, 2016. ADoc. 17 and BDoc. 17.
The matter regarding S.S. was not heard at that time, as
there had not been an adjudication of dependency in regards
to the child's father. CDoc. 17. On November 18, 2016,
the complaint alleging that S.S. was dependent was dismissed
without prejudice because the 90 day time limit had elapsed.
CDoc. 23. That same day the Agency filed a new complaint
again alleging that S.S. was a dependent and neglected child.
CDoc. 24. A second adjudication hearing for S.S. was held on
November 30, 2016. CDoc. 29. The magistrate determined that
S.S. was a dependent child. Id. The trial court
adopted the magistrate's decision on December 13, 2016.
CDoc. 30. A dispositional hearing was held on December 21,
2016. CDoc. 33. The magistrate allowed Arthur to maintain
custody of S.S. under the protective supervision of the
Agency. Id. The trial court adopted this decision on
January 11, 2017. CDoc. 34.
On April 27, 2017, the Agency filed a motion for ex parte
orders to remove the children from the home. ADoc. 26, BDoc.
26, and CDoc. 41. The motion was filed because Arthur was
being evicted from the home, had not kept the home clean, had
not tended to the medical needs of the children, and needed
further mental health management. Id. The motion was
granted and the children were placed with Evert. ADoc. 27,
BDoc. 27, and CDoc. 42. A new case plan was approved by the
trial court on May 9, 2017. ADoc. 29, BDoc. 29, and CDoc. 44.
The new case plan showed that temporary custody of D.H. and
S.S. was granted to Evert, but M.H. was placed in the
temporary custody of the Agency due to his behavioral issues.
Id. , M.H. was subsequently placed in Evert's
temporary custody with his siblings effective June 14, 2017.
ADoc. 33, BDoc. 33, and CDoc. 49.
On July 13, 2017, the semi-annual administrative review was
filed with the trial court. ADoc. 34, BDoc. 34, and CDoc. 51.
The review indicated that Arthur was not attending her
counseling and had not completed her first aid classes.
Id. Although the Agency had offered Arthur bus
tickets to allow her to get her children to their medical
appointments, Arthur had refused to use them. Id.
Arthur was also unwilling to follow through with mental
health recommendations. Id. Arthur was again facing
eviction due to the cleanliness (lack thereof) of the home.
Id. This continued even though the case worker
indicated that she had helped Arthur to clean the home on
several occasions. Id. The review noted that Arthur
was unable to maintain the cleanliness of the apartment when
the children were with her and that she was not able to
consistently and effectively parent the children.
Id. However, the review did indicate that Arthur had
completed her parenting classes.
On December 19, 2017, Arthur filed a motion for
reunification, overnight visitation, and Christmas
visitation. ADoc. 46, BDoc. 46, and CDoc. 71. Arthur also
alleged that she had completed her case pan. ADoc. 47, BDoc.
47, and CDoc.72. On January 17, 2018, the Agency filed the
semi-annual administrative review. ADoc. 48, BDoc. 48, and
CDoc.73. The review indicated that Arthur was not
appropriately parenting the children by placing them in adult
situations and indicated there was insufficient progress on
this goal. Id. The review also indicated that
although Arthur had completed the case plan objectives, she
was "unable to demonstrate that she has gained the
ability to protect or support the children's needs."
Id. at 3. The review noted that Arthur "will
most likely require ongoing monitoring and support in order
to implement effective and consistent parenting
strategies." Id. at 5. All three children were
noted to have ongoing medical issues. Id. . at 5-6.
On January 26, 2018, the Agency filed a motion requesting the
trial court grant legal custody of the children to Evert.
ADoc. 49, BDoc. 49, and Cdoc. 74. On June 20, 2018, Arthur
filed her motion for custody. ADoc. 67, BDoc. 67, and CDoc.
98. Arthur also filed a brief concerning the alleged lack of
reasonable efforts put forth by the Agency towards
reunification. ADoc. 68, BDoc. 68, and CDoc. 99. The Agency
filed its response to Arthur's brief on July 3, 2018.
ADoc. 69, BDoc. 69, and CDoc. 102. A hearing on the motions
was held on May 17, June 26, and August 17. 2018. During the
August 17, 2018 hearing, the GAL testified that his only
issue with the home was the smell, which had made him feel
ill when he left. Tr. 214-15. That visit had occurred the
weekend before the hearing. Tr. 215. The GAL recommended that
the trial court grant the motion for legal custody to Evert.
Tr. 216.On September 5, 2018, the magistrate issued a
decision granting legal custody of the children to Evert.
ADoc. 74, BDoc. 74, and CDoc. 108. The decision contained a
notice that if a party wanted findings of facts and
conclusions of law, a request needed to be made within seven
days. Id. The notice also informed Arthur that she
had fourteen days to file an objection to the decision.
Id. No request for findings of fact and conclusions
of law was filed in this case. Additionally, no objections to
the magistrate's decision were filed. On October 17,
2018, the trial court adopted the magistrate's decision,
including ordering that Arthur be given parenting time with
the children. ADoc. 78, BDoc. 78, and CDoc. 115.
On October 30, 2018, Arthur filed her notices of appeal.
ADoc. 80, BDoc. 80, and CDoc. 118. Arthur raises the
following assignment of error.
trial court erred in determining that [the Agency] made
reasonable efforts to reunify the minor children with their
mother as required under Ohio Law.
"Legal custody" is defined as a legal status giving
the custodian the right to have physical care and control
over a child while allowing the parents to retain residual
parental rights, privileges, and responsibilities. R.C.
2151.011(B)(21). An award of legal custody does not terminate
parental rights and leaves open the possibility that a parent
may regain custody in the future. In re M.G., 3d
Dist. Allen No. 1-18-54, 2019-Ohio-906, ¶ 6. Thus it is
not as drastic a remedy as permanent custody and the trial
court's standard of review is merely a preponderance of