Opinion
Case No. CT2018-0065
05-03-2019
IN RE T.B.
APPEARANCES: For Mother-Appellant: VALERIE WIGGINS 107 S. Main St. New Lexington, OH 43764 For MCCS-Appellee: D. MICHAEL HADDOX MUSKINGUM COUNTY PROSECUTOR GERALD V. ANDERSON II 27 N. 5th St., P.O. Box 189 Zanesville, OH 43702-0189
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Division, Case No. 21630165 JUDGMENT: AFFIRMED APPEARANCES: For Mother-Appellant: VALERIE WIGGINS
107 S. Main St.
New Lexington, OH 43764 For MCCS-Appellee: D. MICHAEL HADDOX
MUSKINGUM COUNTY PROSECUTOR GERALD V. ANDERSON II
27 N. 5th St., P.O. Box 189
Zanesville, OH 43702-0189 Delaney, J.
{¶1} Mother-Appellant appeals the September 13, 2018 judgment entry of the Muskingum County Court of Common Pleas, Juvenile Division.
FACTS AND PROCEDURAL HISTORY
{¶2} S.M. is the mother of T.B., born on August 6, 2005. D.B. is the father. Mother and Father are not married. Father is not involved with T.B. and is not a party to this case.
{¶3} T.B. is the youngest of three children. The Muskingum County Children Services ("MCCS") became involved with Mother based on issues with T.B.'s older siblings. MCCS involvement with T.B. originated as a request from the trial court to investigate after Mother was charged with contributing to the delinquency of a minor by truancy. Mother admitted she was abusing alcohol and would not get T.B. to school. On September 30, 2016, T.B. was placed into the temporary custody of S.B. and C.B. ("B Family").
{¶4} Since September 2015 and prior to MCCS involvement, Mother relied on the B Family to help her care for T.B. S.B. is the coach of T.B.'s football team. The B Family's 12-year-old son is friends with T.B. T.B. originally came to stay with the B Family when Mother told them she had to go away for work training for approximately ten to twelve days and she asked if T.B could stay with them. The B Family later learned that Mother did not have training but was incarcerated.
{¶5} T.B. stayed with the B Family two to three days during the school week. While T.B. was in Mother's care, T.B. was consistently late or absent from school, resulting in the truancy action. While T.B. was in the B Family's care, T.B. did not have any absences or tardiness. The B Family worked with T.B.'s school to place T.B. in the correct grade level and to address his learning differences. T.B. is cognitive delayed and is on an I.E.P. The B Family did not tell Mother they had worked with the school regarding T.B's learning differences. T.B. is a talented athlete and participates in football and wrestling.
{¶6} In November 2016, MCCS developed a case plan for Mother. Mother was required to address the areas of substance abuse, housing, and mental health. Mother was abusing alcohol and dealing with unresolved grief issues. Mother entered into alcohol treatment and received mental health counseling. Mother struggled to maintain consistent housing. Since the inception of the case, Mother has lived at five different residences. Mother first resided in an apartment at Fairway Lane. She then moved in with a relative at a senior citizen residence, where Mother nor T.B. were permitted to reside. Mother obtained an apartment from May to November 2017 but was evicted for alleged non-payment of rent. Mother obtained new housing and had lived there from December 2017. Mother was employed at Applebee's as a hostess.
{¶7} After T.B. was placed in the temporary custody of the B Family, T.B. would stay with the B Family for half a week and Mother for half a week. That arrangement only lasted a few weeks and T.B. stayed exclusively in the B Family's home. T.B. spent time with Mother when she wasn't working. The B Family arranged T.B.'s transportation to and from Mother's residence. T.B. spoke to Mother on the phone every day.
{¶8} While in Mother's care, T.B. accidently cut his chin while roughhousing near a glass door. Mother came home from work when she learned T.B. was injured but did not feel the cut was serious enough to warrant medical attention. The B Family saw the cut and C.B. asked a nurse at football practice to examine and bandage the cut. T.B. was healthy enough to play football. The B Family had T.B. examined by a doctor the next day and no glass was found in the cut.
{¶9} Mother does not have a relationship with T.B.'s older siblings. While T.B. was present, there was a domestic violence incident between Mother and her adult son. Mother did not report the incident to MCCS. The older son does not live with Mother and Mother will not permit her older son to return to her home.
{¶10} T.B. was adjudicated dependent on January 18, 2017. T.B. remained in the temporary custody of the B Family.
{¶11} On July 12, 2017, MCCS filed a motion to modify dispositional order to give Mother legal custody of T.B. A hearing was held on October 5, 2017, where MCCS withdrew its motion. MCCS learned that Mother had been evicted from her apartment for allegedly non-payment of rent.
{¶12} On October 31, 2017, the B Family filed a motion for legal custody of T.B. A hearing was held on February 13, 2018.
{¶13} Erika Goines, MCCS caseworker assigned to T.B.'s case, testified at the hearing. Goines stated that Mother completed everything in her case plan. Goines felt Mother's underlying problem was her grief and alcoholism, which Goines stated those issues were alleviated. Goines testified that MCCS was recommending legal custody be granted to the B Family based on Mother's historical patterns of not paying rent and not paying her bills. Mother utilized the B Family to care for T.B. when she needed help. MCCS made the recommendation to provide T.B. with stability and predictability.
{¶14} Mother testified she met her case plan objectives. She had secured housing and was paying her bills. She was currently paying $250.00 per month in child support. Mother was working two shifts at Applebee's, but had flexibility to adjust her shifts so she would not miss T.B.'s extracurricular activities. She did not own a car and was relying on the bus system or friends for transportation. Mother was saving for a car. She loved T.B. but knew T.B. considered the B Family his family and could not be separated from them.
{¶15} The GAL recommended it was in the best interest of T.B. that legal custody be granted to the B Family so T.B. could continue with his schooling and extracurricular activities. He also recommended that Mother continue one-on-one visitation with T.B.
{¶16} On September 12, 2018, the trial court issued its judgment entry. It found it was in the best interest of T.B. that legal custody be awarded to the B Family. The trial court terminated the MCCS protective supervision of T.B.
{¶17} It is from this judgment Mother now appeals.
ASSIGNMENT OF ERROR
{¶18} Mother raises one Assignment of Error:
{¶19} "THE TRIAL COURT'S DECISION TO GRANT LEGAL CUSTODY TO A NON-PARENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
ANALYSIS
{¶20} Mother contends in her sole Assignment of Error that the trial court abused its discretion when it granted legal custody of T.B. to the B Family. We disagree.
{¶21} The award of legal custody is "not as drastic a remedy as permanent custody." In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio-3214, ¶ 7. See also In re N.F., 10th Dist. No. 08AP-1038, 2009-Ohio-2986, ¶ 9. This is because the award of legal custody does not divest parents of their residual parental rights, privileges, and responsibilities. In re C.R. at ¶ 17. Therefore, since the granting of legal custody does not divest a parent of his or her fundamental parental rights, the parent can petition the court for a custody modification in the future. In re L.D. at ¶ 7.
{¶22} Before awarding legal custody to a non-parent, a trial court must ordinarily make a finding that each parent is unsuitable. In re L.P., 5th Dist. Muskingum No. CT2016-0045, 2017-Ohio-52, ¶ 18 citing In re L.M., 2nd Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, ¶ 18 citing In re Hockstock, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971. This requirement does not apply, however, in cases involving abuse, neglect, or dependency. Id. The Ohio Supreme Court in In re C.R. held "[a] juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents." 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, paragraph one of syllabus. Thus, "[w]hen a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty to make a separate finding at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal custody to a nonparent." In re L.M., 2011-Ohio-3285 quoting In re C.R., 108 Ohio St.3d 369, paragraph two of syllabus.
{¶23} In this case, T.B. was adjudicated dependent.
{¶24} "A trial court has broad discretion in proceedings involving the care and custody of children." In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 14. We review the award of legal custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No. 03AP-445, 2003-Ohio-6309, ¶ 13; In re N.F., 10th Dist. No. 08AP-1038, 2009-Ohio-2986, ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455 (7th Dist.). Abuse of discretion connotes more than an error of law or judgment; rather, it implies that the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶25} Unlike in a permanent custody proceeding where a juvenile court's standard of review is by clear and convincing evidence, the standard of review in legal custody proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos. 2013CA0081, 2013CA0082, 2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006-12-105, 2007-Ohio-3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001).
{¶26} In this type of dispositional hearing, the focus is on the best interest of the child. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188; In re P.S., 5th Dist. No. 2012CA00007, 2012-Ohio-3431. Despite the differences between a disposition of permanent custody and legal custody, some Ohio courts have recognized "the statutory best interest test designed for the permanent custody situation may provide some 'guidance' for trial courts making legal custody decisions." In re A.F., 9th Dist. No. 24317, 2009-Ohio-333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006-Ohio-4468 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081, 2013CA0082, 2013-Ohio-5752, ¶ 33. R.C. 2151.414(D) sets forth factors to be considered in making a determination regarding the best interest of the child.
{¶27} There is no dispute Mother completed her case plan, but the primary goal is not to simply complete the case plan. In re T.H., 5th Dist. Muskingum No. CT2016-0009, 2016-Ohio-7312, ¶ 42. The question is what is in the best interests of the child. Id.
{¶28} In order to make the decision as to what is in the best interest of the child, the trial court can examine the custodial history of the child and the child's need for a legally secure permanent placement. Id. at ¶ 37. Mother struggled during the pendency of the case to maintain secure housing, sometimes living in places that T.B. could not live with her. MCCS moved to grant her legal custody of T.B., but Mother was evicted from her apartment and had to secure a new living arrangement.
{¶29} The evidence showed that Mother relied upon the B Family to care for T.B. when she was unable to provide for T.B. T.B. has lived with the B Family since 2015, first on an informal basis and then in 2016, under the protective supervision of MCCS. While T.B. was with the B Family, the B Family addressed T.B.'s learning differences at school. T.B.'s attendance at school stabilized and he did not have any tardies or unexcused absences. The B Family provided T.B. with transportation to and from his extracurricular activities and to visit with Mother. Mother acknowledged and respected that T.B. was bonded with the B Family.
{¶30} There is no question that Mother loves her child. The issue in this case is whether the preponderance of the evidence demonstrated it was in the best interest of T.B. to grant legal custody to the B Family. The trial court found upon its examination of the evidence that Mother voluntarily placed T.B. with the B Family, whom was meeting all of T.B.'s needs. Mother addressed her alcohol usage and mental health issues, but during the pendency of the case, Mother consistently struggled to secure housing where she and T.B. could live together. Mother repeatedly relied on the B Family to care for T.B. when she could not. MCCS and the GAL recommended that it was in the best interest of T.B. to be placed in the legal custody of the B Family to provide T.B. with the stability and predictability a twelve-year old child needed. We find no abuse of discretion for the trial court to grant the B Family legal custody of T.B. under the circumstances of this case.
{¶31} Mother's sole Assignment of Error is overruled.
CONCLUSION
{¶32} The judgment of the Muskingum County Court of Common Pleas, Juvenile Division, is affirmed. By: Delaney, J., Hoffman, P.J. and Wise, Earle, J., concur.