[Cite as In re J.B., 2011-Ohio-4611.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.B. C.A. Nos. 25792
25760
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 09-09-0806
DECISION AND JOURNAL ENTRY
Dated: September 14, 2011
CARR, Presiding Judge.
{¶1} Appellant, Stacy B. (“Mother”), appeals a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that overruled her objections to a magistrate’s decision and
placed her minor child in the legal custody of the child’s father, William C. (“Father”). This
Court affirms.
I.
{¶2} Mother and Father are the natural parents of J.B., born March 24, 2007. This is
the third case involving a juvenile court removal of J.B. from his parents’ custody due to their
substance abuse and/or mental health problems J.B. was first removed from Mother’s custody
following his birth because he was born experiencing symptoms of withdrawal from opiates.
That case was eventually closed at the end of 2007, with the juvenile court granting both parents
shared custody of J.B.
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{¶3} During January 2008, J.B. was again removed from his parents’ custody because
Father drove with him while he was intoxicated, shortly after he had threatened to commit
suicide. That case was closed three months later with Mother receiving custody of J.B.
{¶4} This case began at the end of September 2009. J.B. was removed from Mother’s
custody because he ingested an unknown quantity of Mother’s prescription medication,
apparently due to Mother’s failure to store the medication out of the child’s reach. Summit
County Children Services Board (“CSB”) was concerned about the circumstances surrounding
the incident, including that Mother allowed J.B. to take a nap after realizing that he had
swallowed the medication and waited several hours to take him to the hospital. At the hospital,
Mother behaved erratically and was uncooperative with CSB and the hospital staff in their
attempts to treat J.B. and investigate the incident. Because CSB suspected that Mother was
under the influence of drugs at that time, a social worker asked her to take a drug test, but
Mother did not comply with that request for almost one week.
{¶5} The reunification goals in this case again focused on Mother and Father
addressing their ongoing mental health and substance abuse problems. Mother eventually moved
the trial court for legal custody of J.B. Shortly afterward, CSB moved for a change of
disposition, asking the trial court to place J.B. in the legal custody of Father.
{¶6} Following a hearing on the competing motions for legal custody, the magistrate
recommended that J.B. be placed in the legal custody of Father. The trial court adopted the
magistrate’s recommendation and entered judgment accordingly. Mother filed objections to the
magistrate’s decision, which the trial court overruled. The trial court again ordered that J.B. be
placed in the legal custody of Father. Mother appeals and raises two assignments of error.
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II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND IS UNSUPPORTED BY THE
EVIDENCE.”
{¶7} Mother’s first assignment of error is that the trial court erred by placing J.B. in the
legal custody of Father rather than in her legal custody. Following an adjudication of neglect,
dependency, or abuse, the juvenile court’s determination of whether to place a child in the legal
custody of a parent or a relative is based solely on the best interest of the child. See In re D.R.,
153 Ohio App.3d 156, 2003-Ohio-2852, at ¶17. “Although there is no specific test or set of
criteria set forth in the statutory scheme, courts agree that the trial court must base its decision on
the best interest of the child.” In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶23, citing In
re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, at ¶11. The juvenile court’s
disposition of legal custody to a relative is a less drastic disposition than permanent custody to a
children services agency because it does not terminate parental rights but instead “leaves intact
‘residual parental rights, privileges, and responsibilities.’” In re Shepherd (Mar. 26, 2001), 4th
Dist. No. 00CA12, quoting R.C. 2151.011(B)(19). The trial court’s decision to grant or deny a
motion for legal custody is within its sound discretion and will not be reversed absent an abuse
of discretion. In re M.S., 9th Dist. No. 22158, 2005-Ohio-10, at ¶11.
{¶8} Without explaining why she would be the better legal custodian for J.B., Mother
points to isolated facts from the record in an attempt to paint a negative picture of Father.
Specifically, she focuses on Father’s history of substance abuse and mental health problems,
while ignoring her own problems that led to the removal of J.B. from her custody. The evidence
adduced at the hearing supported the trial court’s conclusion that Father had made significant
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progress addressing his problems and was in a better position than Mother to provide a stable
home for J.B.
{¶9} Although Father had a history of drug abuse, his more recent substance of choice
had been alcohol, not drugs. The trial court heard testimony from Father, his substance abuse
counselor, his Alcoholics Anonymous (“AA”) sponsor, and another AA group member who had
become friendly with Father through AA meetings. These witnesses explained how Father had
been able to control his addiction to alcohol. At the time of the hearing, the evidence indicated
that Father had remained sober for over a year. He had completed court-ordered alcohol
counseling many months before the hearing, but was continuing in counseling on a voluntary
basis to help him remain sober while addressing the stressors in his life. His counselor described
Father as being in the remission stage of alcohol addiction and opined that his risk of relapse was
low.
{¶10} Father’s AA sponsor and his friend from the AA meetings verified that Father
attended AA meetings on a regular basis and was actively involved in the AA program. His
sponsor testified that Father was “quite a mess” when he met him over a year earlier, but that he
had been working the 12-step program and had achieved stability in his life. The sponsor
indicated that Father was doing well and, as far as he could determine, had not relapsed in the
past 14 months. The caseworker further testified that all of Father’s alcohol screens had been
negative and that CSB was encouraged that he had a plan in place for relapse prevention.
{¶11} There was also ample evidence that Father had achieved stability with his mental
illness. Father has bipolar disorder and requires medication and counseling to stabilize his mood
swings. He had been seeing the same counselor for approximately 18 months, who testified that
Father was doing so well that she had scaled back his counseling sessions to once a month.
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Based on her interactions with him, she believed that Father was managing his mood well, was
compliant with his psychiatric medications, and was refraining from alcohol. The counselor
further testified that Father had only infrequent mood cycles that were not extreme and did not
interfere with his daily functioning. The caseworker testified that Father demonstrated insight
into his need for ongoing medication and treatment. She believed that Father was motivated to
continue with treatment after this case closed.
{¶12} Throughout this case, Father visited J.B. without supervision, which included
overnight visits at his home. The caseworker observed visits between J.B. and Father and
explained that there was a loving bond between the two and that she had no concerns about
Father’s ability to care for J.B. Father had transported J.B. to some of his visits with Mother and
was willing to continue to do so. He admitted that his relationship with Mother was “strained,”
but agreed to facilitate visits between Mother and J.B. because he knew that their relationship
was important.
{¶13} Father had been moving forward with his life by attending college and was
employed through the work-study program. He testified that he could enroll J.B. in daycare at
the university. Father lived with his parents, who had ample room in their home for J.B. and
were willing to allow Father and J.B. to live there and to provide them ongoing family support.
{¶14} On the other hand, although Mother had made progress on the goals of the case
plan, the evidence demonstrated that she had not achieved the level of stability that was
necessary to provide a stable home for J.B. Mother also has bipolar disorder and requires
medication and counseling to stabilize her symptoms. According to Mother, she was diagnosed
over a decade ago and has received treatment ever since. Mother’s counselor described her
mental health stability as “okay for now.” At the time of the hearing, she was still seeing her
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counselor weekly and would need to continue weekly counseling because she was not
progressing forward with her life. Mother had recently switched psychiatrists and had also
changed many of her medications, so it was unclear exactly what psychiatric medications she
was taking or how the medication change would potentially impact her mental health. Mother
testified that she continued to feel very stressed and suffered physical ailments as a result. She
had been hospitalized so frequently during recent months that she could not remember the
number of hospitalizations or the reasons for each visit. She was able to explain that she had
been hospitalized due to migraines, vomiting, convulsions from her medications, infections, and
pneumonia.
{¶15} Mother was participating in a substance abuse counseling program, but CSB was
concerned that Mother’s counselor was not qualified to address her long-term poly-substance
abuse because the counselor had no specialized training and was not a licensed professional.
Moreover, although Mother testified that she attended counseling sessions weekly, no one from
her treatment program offered testimony or documentation to verify her attendance or report on
her progress in the program. She also testified that she attended AA and had a sponsor, but this
testimony was likewise uncorroborated.
{¶16} Mother’s visits with J.B. had remained supervised throughout this case. The CSB
caseworker expressed concern that Mother continued to lack insight into the reason that J.B.
came into CSB custody. Mother had not admitted that she made a serious mistake by failing to
keep her medication out of J.B.’s reach. It was apparent from her testimony that she did not
accept responsibility for J.B. ingesting her prescription medication, as she testified at length
about how J.B. was able to open a child-proof bottle and that she had not realized he was able to
do so until she found him with her open medication bottle. Her testimony stressed how smart her
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young child was, without any recognition that she had been careless by leaving the bottle where
he had access to it.
{¶17} Given the evidence presented at the legal custody hearing, the trial court
reasonably concluded that legal custody to Father was in J.B.’s best interest. Mother’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PERMITTING
THE MATERNAL GRANDMOTHER TO TESTIFY.”
{¶18} Mother next challenges the trial court’s refusal to allow the maternal grandmother
to testify at the legal custody hearing. She concedes that she did not comply with Summit
County Juvenile Court Local Rule 7.02(B)(3) because she failed to include the maternal
grandmother in her pretrial statement as a potential witness. She maintains, nonetheless, that the
trial court abused its discretion by refusing to allow the grandmother to testify.
{¶19} Mother attempted to call the maternal grandmother as a witness after the
caseworker testified that Mother had inappropriately told J.B. that he would be coming home
soon. Because the grandmother supervised Mother’s visits with J.B., Mother believed that the
grandmother’s testimony would rebut or explain the caseworker’s testimony on that issue.
Because Mother had not listed the grandmother as a witness on her pretrial statement, the
magistrate decided that grandmother could not testify as part of Mother’s case in chief. The
magistrate further stated that he would revisit the issue after Father’s witnesses testified to
determine whether rebuttal testimony from the grandmother would be appropriate. As the trial
court emphasized in overruling Mother’s objection, however, Mother never attempted to call the
grandmother as a rebuttal witness. The trial court further explained that, given all of the
testimony presented at the hearing weighing in favor of legal custody to Father, the
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grandmother’s testimony would not have affected the outcome in this case. Mother has failed to
demonstrate that the trial court erred in overruling her objection to the magistrate’s decision not
to allow the grandmother’s testimony. The second assignment of error is overruled.
III.
{¶20} Mother’s two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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WHITMORE, J.
MOORE, J.
CONCUR
APPEARANCES:
THOMAS C. LOEPP, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.