Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE C.D.Y., ET AL. Minor Children Appeal by S.S., Mother
see vacated opinion at 2019-Ohio-4262.]
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
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
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.
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)
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
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
(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
(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
(f) The parent more likely to honor and facilitate
court-approved parenting time rights or visitation and
(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.
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.