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In re C.D.Y.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

IN RE C.D.Y., ET AL. Minor Children Appeal by S.S., Mother

         [Please see vacated opinion at 2019-Ohio-4262.]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-17906669 and AD-17906670

          Phyllis Brooks, for appellant.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and LocApp.R. 11.1. S.S. ("Mother") appeals from the juvenile court's judgment denying her motion to modify custody and designating Ashley Franklin ("Franklin") as the legal custodian of her children, C.Y. and K.Y. Mother assigns the following errors for our review:

I. Trial court erred by failing to conduct an unsuitability analysis and failing to make an express finding of unsuitability.
II. Trial court erred in applying the best interest test.
III. Trial court erred in granting custody to a person not properly before the court.

         {¶ 2} Having reviewed the record and pertinent law, we reverse the trial court's judgment finding that the court erred by denying Mother's motion to modify custody and designating Franklin as the legal custodian of C.Y. and KY. The apposite facts follow.

         {¶ 3} On April 28, 2017, the Cuyahoga County Department of Children and Family Services ("CCDCFS") filed a complaint for neglect, abuse, and temporary custody of C.Y. and KY. to C.Y, Sr., ("Father"). This complaint alleged that Mother left the children unattended while she went to work, and heroin and marijuana were found in the home within reach of the children. The court granted Father emergency temporary custody that same day. On July 14, 2017, Father filed a motion for legal custody of the children. On July 24, 2017, Mother and Father stipulated to an amended complaint, which alleged that Mother left the children with an inappropriate caregiver, who then left the children unattended. The allegations regarding drugs in the home remained the same.

         {¶ 4} On August 9, 2017, the court granted Father's motion for legal custody of the children with an order of protective supervision by CCDCFS. The court found that the children's "continued residence in or return to the home of [Mother] will be contrary to the child's best interest." On February 12, 2018, the court terminated the protective supervision order, finding that it "is not necessary and is not in the child[ren]'s best interest."

         {¶ 5} On June 15, 2018, Mother filed a motion to modify custody, arguing that there was a change of circumstances in that Father was incarcerated and left the children "with a non family member." The court held a hearing on this motion seven months later, on January 15, 2019. At this hearing, Franklin, who is Father's girlfriend, identified herself as a "party involved" and testified that Father was still in jail and she had been caring for the children since June 2018.

         {¶ 6} On February 13, 2019, the court denied Mother's motion to modify custody and found that "it is in the best interests of the child[ren] that [Franklin] is designated as the temporary legal custodian of the children. The court granted Mother parenting time. It is from this order that Mother appeals.

         {¶ 7} Before reviewing the merits of this case, we note that Mother's appeal is unopposed. Neither Father nor Franklin has made an appearance or otherwise participated in this appeal. Furthermore, CCDCFS, as well as the Office of Child Support Services, filed notices of intent to forego the filing of appellate briefs in this case.

         Legal Custody

         {¶ 8} We review a trial court's order regarding legal custody of a child under an abuse of discretion standard. In re S.E ., 8th Dist. Cuyahoga No. 96031, 2011- Ohio-2042, ¶ 13. In determining whether a lower court abused its discretion, "a reviewing court may not simply substitute its own judgment * * *." Baxter v. Thomas, 8th Dist. Cuyahoga No. 101186, 2015-Ohio-2148, ¶ 21. Rather, an abuse of discretion is an attitude that is unreasonable, arbitrary, or unconscionable. "A decision is unreasonable if there is no sound reasoning process that would support that decision." Id. "Arbitrary" is defined as a decision made "'without consideration of or regard for facts [or] circumstances."' Black's Law Dictionary 125 (10th Ed.2014).

         {¶ 9} Legal custody is defined in R.C. 2151.011(B)(21) as

a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities.

         {¶ 10} Legal custody and permanent custody are alternative disposition choices. Compare R.C. 2151.011(B)(21) with R.C. 2151.011(B)(31). "Although there is no specific test or set of criteria set forth in the statutory scheme [regarding legal custody cases], courts agree that the trial court must base its decision on the best interest of the child." In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23.

         {¶ 11} The "best interest" test under R.C. 2151.414(D) provides guidance, and courts shall consider the following relevant factors: the relationship "of the child with the child's parents, siblings, [and] relatives * * *; [t]he wishes of the child, as expressed directly by the child or through the child's guardian ad litem; [t]he custodial history of the child * * *; [t]he child's need for a legally secure placement * * *;" and various factors relating to the child's parents, including criminal history, substance abuse issues, compliance with case plan objectives, abandoning the child, and whether the parents have had "parental rights involuntarily terminated with respect to a sibling of the child * * *." R.C. 2151.414(D) and (E).

         {¶ 12} The court may also look to the best interest factors found in R.C. 3109.04(F)(1). See In re R.L.C., 8th Dist. Cuyahoga No. 98283, 2012-Ohio-5893, ¶ 14. These factors include the following:

(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(d) The child's adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; * * *
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.

R.C. 3109.04(F)(1)(a)-(j).

         {¶ 13} Given this standard of review, Mother's second assigned error, which argues that the court erred by applying the best interest test, is overruled.

         {¶ 14} Furthermore, when a person is awarded legal custody of a child who has been adjudicated abused, neglected, or dependent, courts make an implicit determination of the unsuitability of the child's parents. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 22. Accordingly, Mother's first assigned error, which states that the "court erred by failing to conduct an unsuitability analysis and failing to make an express finding of unsuitability" is overruled.

         Legal ...


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