In re K.R. , 2021 Ohio 3622 ( 2021 )

[Cite as In re K.R., 2021-Ohio-3622.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. W. Scott Gwin, P.J.
K.R. AND K.R. : Hon. John W. Wise, J.
: Hon. Earle E. Wise, J.
:
:
: Case Nos. 2021 CA 00037
: 2021 CA 00038
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
Nos.2018JCV00475
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 7, 2021
APPEARANCES:
For SCDJFS For Appellant-Mother
BRANDON J. WALTENBAUGH BERNARD L. HUNT
SCDJFS 2395 McGinty Road N.W.
402 2nd Street S.E. North Canton, OH 44720
Canton, OH 44702
For Appellee-Custodians
RUSSELL BUZZELLI
P.O. Box 84
Wadsworth , OH 44282
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 2
Gwin, P.J.
{¶1} Mother appeals the March 15, 2021 judgment entry of the Stark County
Court of Common Pleas, Juvenile Division, granting legal custody of K.R.(1) and K.R.(2)
to custodians R.R. and T.R., and denying Mother’s motion for custody.
Facts & Procedural History
{¶2} A.B. is the Mother (“Mother”) of four children, including K.R.(1), born on
December 30, 2006, and K.R.(2), born on February 3, 2010. M.B. is the father of Mother’s
two younger children, G.B. and L.B. The father of K.R.(1) and K.R.(2) is deceased. R.R.
and T.R. (“Custodians”) are the paternal aunt and uncle of K.R.(1) and K.R.(2).
{¶3} On May 10, 2018, SCDJFS filed a complaint alleging K.R.(1), K.R.(2), and
G.B. were dependent, neglected, and abused children. The complaint alleged as follows:
SCDJFS received multiple referrals regarding the family dating back to October of 2017;
there were concerns about domestic violence in the home and concerns about substance
abuse by both Mother and M.B.; there were reports that K.R.(1) was acting as the primary
caretaker for the younger children; school officials reported several incidents of concern;
K.R.(1) sent a group text indicating she was going to commit suicide; SCDJFS contacted
Mobile Youth Crisis for K.R.(1); SCDJFS observed multiple adults coming out of the home
with large black trash bags; Mother denied substance abuse concerns, but refused to
take a drug test; K.R.(2) and G.B. had multiple observable scratches and bruises; Mother
was recently charged with OVI and possession of a controlled substance; M.B. was
recently convicted of domestic violence against Mother; both K.R.(1) and K.R.(2) made
multiple concerning statements regarding events and inappropriate circumstances that
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 3
occurred while living with Mother and M.B.; and K.R.(1) and K.R.(2) repeatedly expressed
concern of returning to their prior home environment.
{¶4} The magistrate held a shelter care hearing on May 11, 2018. On the same
day, Custodians filed a motion for legal custody of K.R.(1), K.R.(2), and G.B. The trial
court issued a judgment entry on August 1, 2018, finding K.R.(1), K.R.(2), and G.B.
dependent. Further, the court found “Mother was not available to care for the children as
she has absconded law enforcement and there are warrants out for Mother’s arrest.” The
case then proceeded to disposition. The disposition entry, also filed on August 1, 2018,
placed K.R.(1), K.R.(2), and G.B. in the legal custody of Custodians.
{¶5} Mother filed a motion for change of custody and/or motion for visitation with
regards to K.R.(1), K.R.(2), and G.B. on December 28, 2018. SCDJFS filed a complaint
with regards to L.B. in February of 2019 a week after her birth. Mother tested positive for
various substances during her pregnancy with L.B., including cocaine, marijuana, and
methamphetamines.
{¶6} The trial court conducted a trial on Mother and Custodians’ motions on
September 1, 2020 and September 15, 2020. The trial court also held an in-camera
interview of K.R.(2), as requested by Mother, on November 12, 2020.
{¶7} Mother testified she lost her children in 2018 when her oldest child
threatened suicide. Mother admitted she was addicted to methamphetamines from
November of 2017 to March of 2018. She also admitted that, at the beginning of the case,
she misrepresented her substance abuse issues to SCDJFS. In 2017, M.B. pushed her
and yelled at a lot. Both she and M.B. were abusing drugs. M.B. has a brain injury and
suffers from post-traumatic stress disorder from being the military. After Mother lost the
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 4
children, she went to Florida to be with her mother. She used cocaine in July of 2018.
When her brother overdosed in Ohio, she returned for several months, but then returned
to Florida. Mother returned to Ohio to stay in February of 2019.
{¶8} Mother began counseling in 2018 and remains in counseling today for
grief/trauma issues and drug abuse. Mother completed drug screens several times per
week and stated she was negative every time. Mother described her Vyvanse and
Adderall medications, and stated she informed SCDJFS when those prescriptions
changed.
{¶9} Mother stated she has complied with her case plan. Mother testified she is
currently working, taking care of a hospice patient. Mother completed the Goodwill
parenting program and is going through the home-based visitation program. She believes
she has done everything SCDJFS has asked of her to make the home appropriate.
{¶10} Mother also attends counseling with K.R.(1) and K.R.(2). Mother knows
that K.R.(1) is angry at her; however, Mother believes this anger is misplaced. Mother
stated she is now clean and sober, and she has made significant changes in her life since
she lost custody of the children. She believes it is in the best interest of the children to
be returned to her care.
{¶11} On cross-examination, Mother confirmed there was a no-contact order
between her and M.B. when she got pregnant with L.B.
{¶12} Jennifer Fire (“Fire”) is the supervisor of the Goodwill parenting program.
Fire testified that Mother successfully completed the Goodwill parenting program;
however, Mother failed on the individual goals portion of the program. Mother’s home
was appropriate and, when Fire visited, Mother was utilizing the safety plan put in place
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 5
by SCDJFS. Fire had concerns regarding Mother’s substance abuse issues because,
throughout the program, Mother vacillated from accepting responsibility of that to
minimizing it; Fire stated Mother never accepted full responsibility for her substance
abuse problems, and blamed it on her ADHD and childhood trauma. Fire testified that
Mother minimized the impact that her substance abuse and domestic violence had on her
children.
{¶13} Nicole Hadden (“Hadden”) is the ongoing caseworker for L.B. For both
Mother and M.B., their case plans required they complete parenting assessments,
complete assessments at CommQuest, and follow any recommendations. M.B. complied
with the recommendations from his parenting evaluation, as he had to continue
counseling and medication services through the VA; comply with the orders of his
probation from his domestic violence conviction; and complete substance abuse
treatment. There were ongoing concerns with M.B. because his memory and mood
dysregulation, and his questionable judgment related to a traumatic brain injury.
{¶14} Mother was required to comply with Summit Psychology for her medication
and counseling, complete parenting classes, and attend joint counseling with M.B.
Mother initially was set up for the color code for approximately six months to monitor her
for illegal substances. Mother completed the parenting class, is in counseling each week,
and completed the color code drug screens when asked.
{¶15} While Mother testified that she notified Hadden as soon as the doctor
increased her medication, Hadden stated that Mother advised her on June 9th by email
that she had a change in medication only after the aide had drug tested her that day. This
concerned Hadden with regards to Mother’s long-term sobriety.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 6
{¶16} When the home-based visits started, L.B. visited alone. However, when
G.B. was added to the visits, Hadden testified that the clutter and things in the home that
they previously worked on getting rid of started to come back and it was difficult for Mother
and M.B. to manage both children. Hadden knew the visits were difficult because of her
interactions with Mother and because Hadden supervised some of the visits herself. For
example, Mother’s behavior became increasingly erratic during the visits when both G.B.
and L.B. were there.
{¶17} The GAL contacted Hadden after the review hearing in July of 2020,
expressing concern about Mother’s appearance and behavior in court. Hadden wrote a
letter to Mother’s doctor about her concerns with Mother’s medication. Based upon
Hadden’s review of her notes and the records she received after Mother signed a release
of information, it appeared that Mother was asking her doctor for Adderall. Mother’s
doctor provided a letter to Hadden stating she is compliant with medication and he did not
see a concern prescribing Adderall.
{¶18} While Hadden believes the primary goal is reunification, she has concerns
that need to be addressed. Her concern for Mother’s sobriety still remains, as does her
concern about Mother’s dishonesty. Hadden testified that Mother has a history of being
dishonest with her throughout the proceedings.
{¶19} Kristin Guardado is the guardian ad litem (“GAL”) for all four children.
{¶20} K.R.(1) and K.R.(2) described to Guardado a life of chaos and anxiety,
including watching Mother and M.B. do drugs and M.B. physically abuse Mother. K.R.(1)
felt it was her responsibility to care for G.B.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 7
{¶21} When Guardado first met K.R.(1) and K.R.(2), they were very thin, had
extreme anxiety, and were very fearful Custodians would leave them. Both children talk
a lot about domestic violence between Mother and M.B. and their continual drug use.
Both children were very afraid to talk to anyone because Mother told them if they talked
to people, Mother would go to jail. When K.R.(1) and K.R.(2) lived with Mother and M.B.
prior to their removal, the house was filthy and the children were taking care of
themselves. K.R.(1) and K.R.(2) had issues with school attendance. K.R.(1) told
Guardado that Mother permitted her half-brother to live in the home, despite K.R.(1)’s
reporting to Mother that the half-brother abused her.
{¶22} K.R.(1) and K.R.(2) are doing very well with Custodians. When Mother
stopped her visitation with them, their anxiety and physical issues substantially
decreased. They are doing well in school. Both have expressed fear at being returned
to Mother’s care, and they do not trust her. Both are afraid of M.B. due to his past acts
of domestic violence against Mother. Guardado testified it would be detrimental for
K.R.(1) and K.R.(2) to be returned to Mother. Guardado believes Custodians continue to
facilitate a relationship between Mother and the children. However, Guardado believes
the two children should not be around M.B. until the counselor feels it is appropriate.
Guardado thinks legal custody to Custodians is in the best interest of both children.
{¶23} On cross-examination, Guardado confirmed Mother has completed portions
of her case plan. However, Guardado stated the children still have issues, and some of
the concerns arising at the beginning of the case with regards to Mother and M.B. still
continue on.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 8
{¶24} The trial court also admitted Guardado’s August 2020 report into evidence.
She believes it is in the best interest of the children for: (1) Custodians to maintain legal
custody of K.R.(1), K.R.(2), and G.B.; (2) Custodians to be granted legal custody of L.B.;
(3) Mother’s motions to terminate and return to be denied; (4) Mother to continue to
participate in therapeutic visits with K.R.(1) and K.R.(2); (5) K.R.(1) and K.R.(2) to not be
around M.B. until their counselor feels it is appropriate; (6) Mother and M.B. to have
weekly 2-hour visits with L.B. and G.B.; and (7) M.B. not to be left unsupervised with the
children.
{¶25} Guardado reports that the children are thriving in their current home. They
are all very close.
{¶26} Guardado included many details in her report, but concluded that she has
concerns about returning any of the children to Mother. This is due to Mother and M.B.’s
dishonesty throughout the case and their inability to take responsibility for their actions
and instead blame others. Guardado stated the parties failed to alleviate the risks that
were present at the time of the removal.
{¶27} Amanda Van Buren (“Van Buren”) is a family coach at Goodwill parenting’s
home-based parenting program. She works with Mother and M.B. weekly.
{¶28} Van Buren stated the visits with G.B. and L.B. are inconsistent. While some
visits go smoothly, sometimes Mother would rather discuss her own issues instead of
spending time with the children. Initially, Van Buren and Mother addressed some safety
concerns in the home. Van Buren recently had to address some issues in the home in
July. Van Burden also stated there are times where Mother and M.B. failed to adequately
supervise the children. Van Buren testified Mother’s behavior is inconsistent, and has
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 9
become more erratic since July. Her main concerns regarding the safety of the children
are: consistent demeanor, ability to supervise the children, and substance abuse.
{¶29} Jessica Skrzypiec (“Skrzypiec”) is a licensed clinician who did an
assessment on Mother and continues to be her counselor. Her diagnoses were
adjustment disorder, ADHD, and major depressive disorder. Mother was not truthful
during her initial assessment about her substance abuse. However, during treatment in
March of 2019, Mother admitted abusing her prescription Adderall. Skrzypiec stated
Mother’s treatment has progressed well and she is not currently worried about Mother
abusing medication because Mother has done well and has done everything Skrzypiec
has asked her to do.
{¶30} On cross-examination, Skrzypiec confirmed that on August 28, 2020 Mother
was very upset because she lost her job. However, Mother testified on September 1,
2020 that she was still employed; thus, Mother lied to the court.
{¶31} R.R. is the current custodian of the children and has been since February
of 2018. R.R. will follow any orders of the court with regards to this case. R.R. believes
it is in the best interest of the children for R.R. and her husband to have legal custody of
the children, but also believes that Mother should have a relationship with G.B. and L.B.
With regards to visitation with K.R.(1) and K.R.(2), R.R. defers to the children’s counselor
as to when that is appropriate.
{¶32} The trial court issued an extensive judgment entry on March 15, 2021.
{¶33} The trial court found the GAL’s testimony credible and noted it took her
report into consideration in its decision. Additionally, the trial court stated it agreed with
the concerns reported by the GAL.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 10
{¶34} The trial court found Mother’s testimony questionable. As the first day of
trial progressed, “Mother’s testimony became more garbled and lacking in a clear
direction. It was as if Mother placed some marbles or cotton in her mouth during the
break session. Her recollection of events, especially as to time, degraded throughout
cross-examination.” The trial court cited several specific portions of Mother’s direct and
cross-examination to illustrate its point.
{¶35} The trial court found the credible testimony and the in-camera interview with
K.R.(2) clearly establish that K.R.(1), K.R.(2), and G.B. were subjected to extremely
traumatic events while living with Mother, including missing meals, witnessing domestic
violence, witnessing drug abuse, suffering sexual abuse, and having their educational
needs neglected. However, Mother continues to deny or downplay this trauma, and even
testified that her children’s “stories” changed, questioning their credibility.
{¶36} The trial court found the credible evidence bolstered the following concerns
of the GAL: that Mother has not been truthful throughout the case; that Mother does not
accept responsibility for the traumatic experiences of her children; and Mother continues
to use excuses. Though Mother testified she is “in a different place completely” than
before, the trial court stated the balance of the testimony does not support Mother’s
assertion.
{¶37} The trial court determined the evidence demonstrates Mother is not
adequately able to supervise the children. For example, Fire testified Mother failed in her
individual goals and she still had concerns about Mother because of her drug use.
Further, Van Buren gave credible testimony that M.B. continues to have issues in
discussing his triggers, and the visits with Mother and M.B. were inconsistent, and during
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 11
one visit, G.B. escaped from the home because the door was not locked and she was not
being adequately watched. The trial court also noted Skrzypiec’s testimony that Mother
was dishonest about her substance abuse, and that Mother is frequently overwhelmed.
{¶38} The trial court found Mother is not suitable to care for any of the children at
this time. Further, the credible evidence establishes that R.R. and T.R. are capable and
willing to care for and support all four of the children, and put the best interest of the
children ahead of their own interests.
{¶39} The trial court then did an extensive review of the relevant best interest
factors contained in R.C. 3109.04(F)(1)(a-j), and addressed them as follows: (a) Mother
testified she wants legal custody of all four children; however, the court questioned the
sincerity of this request; (b) the interview with K.R.(2) confirmed the concerns of the GAL
and did not support Mother’s testimony that K.R.(2) wanted to live with her; (c) the children
are bonded with each other and bonded to R.R. and T.R., while there is no healthy bond
between the children and Mother; (d) the children are doing well in the home of
Custodians, as this is a safe, loving, and healthy environment; however, Mother could not
meet the emotional, educational, or basic needs of the children and there is a legitimate
concern that the return of any of the children to her would place them at risk physically
and emotionally; (e) M.B. is 100% disabled due to a traumatic brain injury, is not able to
care for any of the children, and has committed acts against Mother in the past; Mother
and M.B. have used drugs; Mother’s presentation in court was “off” and she appeared to
be suffering from some physical or mental ailment; Mother struggles with mental health
stability and has trouble telling the truth; (f) Custodians appear most likely to facilitate
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 12
visitation; Mother did not follow orders in other cases and was not truthful with the GAL;
and (g) Mother indicated child support is not current.
{¶40} The trial court concluded, upon review of the testimony presented and
review of the above-factors, it is in the best interest of K.R.(1) and K.R.(2) for Custodians
to be granted legal custody. Further, it would not be in the best interest of K.R.(1) or
K.R.(2) for Mother to be named their legal custodian.
{¶41} The trial court named R.R. and T.R. the legal custodians of K.R.(1) and
K.R.(2), and denied Mother’s motion for custody.
{¶42} Mother appeals the March 15, 2021 judgment entry of the Stark County
Court of Common Pleas, Juvenile Division, and assigns the following as error.
{¶43} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION FOR A CHANGE OF LEGAL CUSTODY AND FOR A MOTION TO RETURN
AND TERMINATE.
{¶44} “II. THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND VIOLATED MOTHER’S DUE PROCESS RIGHTS.”
Legal Custody
{¶45} The award of legal custody is “not as drastic a remedy as permanent
custody.” In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214. This is because
the award of legal custody does not divest parents of their residual rights, privileges, and
responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188.
{¶46} 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, citing In re Hockstock, 98 Ohio St.3d 238, 2002-Ohio-7208.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 13
This requirement does not apply, however, in cases involving abuse, neglect, or
dependency. Id. The Ohio Supreme Court has held that, “[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.” In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843
N.E.2d 1188. 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.” Id.{¶47} In this case, both K.R.(1) and K.R.(2) were adjudicated dependent.
{¶48} R.C. 2151.353(A) states, in pertinent part,
If a child is adjudicated an abused, neglected, or dependent child, the court
may make any of the following orders of disposition:
***
(3) Award legal custody of the child to either parent or to any other person
who, prior to the dispositional hearing, files a motion requesting legal
custody of the child or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings * * *.
{¶49} A trial court “must have wide latitude in considering all the evidence” and a
custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,
77 Ohio St.3d 415, 674 N.E.2d 1159, citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d
846 (1988). As an appellate court, we neither weigh the evidence nor judge the credibility
of the witnesses. Our role is to determine whether there is relevant, competent, and
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 14
credible evidence upon which the finder of fact could base its judgment. Cross Truck
Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911(Feb. 10, 1982). Accordingly, judgments supported by some competent and credible
evidence going to all the essential elements of the case will not be reversed as being
against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978).
{¶50} 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.
{¶51} Issues relating to the credibility of the witnesses and the weight to be given
to the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio
St.3d 77, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility “is
crucial in a child custody case, where there may be as much evidence in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 674 N.E.2d 1159.
I. & II.
{¶52} Mother contends the trial court’s decision to grant legal custody to
Custodians was against the manifest weight of the evidence because she was compliant
with her case plan. Mother argues she completed her case plan services, has
employment, and is medically compliant. She also contends the trial court’s finding it was
in the best interest of the children for Custodians to be awarded custody was against the
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 15
manifest weight of the evidence because she was bonded to the children and completed
her case plan.
{¶53} We disagree with Mother.
{¶54} The statutory scheme regarding an award of legal custody does not include
a specific test or set of criteria, and a trial court must base its decision 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. Stark No. 2012CA00007, 2012-Ohio-3431. When determining the issue of
legal custody, the trial court should consider the totality of the circumstances. In re D.T.,
5th Dist. Stark No. 2013CA00252, 2014-Ohio-2495. Trial courts should consider all
factors relevant to the best interest of the child. Id. This may include the best interest
factors contained in R.C. 2151.414(D) and/or R.C. 3109.4(F), including: the wishes of
the child (expressed to the court or through the GAL) and the child’s parents; the child’s
interactions and interrelationship with the child’s parents, siblings, and any other person
who may significantly affect the child; the custodial history of the child; the child’s need
for a legally secure placement; the child’s adjustment to their home, school, and
community; the mental and physical health of all persons involved in the situation; and
the person more likely facilitate court-approved parenting time rights or visitation.
{¶55} Mother contends she has completed all her case plan requirements.
However, the successful completion of a case plan is not dispositive on the issue of
reunification. In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604. While it may
be in Mother’s best interest to complete the case plan, this is only one factor for a trial
court to consider what is in the best interest of the child, and, “in legal custody cases, trial
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 16
courts should consider all factors relevant to the best interest of the child.” In the Matter
of D.P. and G.P., 5th Dist. Stark No. 2010CA00348, 2011-Ohio-1907.
{¶56} Where a parent has participated in his or her case plan and completed most
or all of the plan requirements, a trial court may still properly determine that such parent
has not substantially remedied the problems leading to agency involvement. In the Matter
of A.L. and J.L., 5th Dist. Guernsey No. 11 CA 23, 2012-Ohio-481. In this case, the GAL
testified that while Mother has substantially completed her case plan, Mother failed to
alleviate the risks present at the time of removal and the same concerns present at the
beginning of the case still continue today.
{¶57} The issue in this case is whether the preponderance of the evidence
demonstrated it was in the best interest of K.R.(1) and K.R.(2) to grant legal custody to
Custodians. The trial court issued a detailed, thorough, and well-reasoned analysis as to
why it determined it was in the best interest of K.R.(1) and K.R.(2) to grant legal custody
to Custodians and deny Mother’s motions. Further, though Mother contends she
substantially remedied any problems leading to agency involvement, the testimony and
evidence presented at the hearing do not support this conclusion.
{¶58} We find the determination by the trial court is supported by competent and
credible evidence.
{¶59} Mother had no contact with K.R.(1) or K.R.(2) for an extended period of
time while she was in Florida. Fire has continued concerns about Mother’s substance
abuse because she never accepted responsibility, and instead blamed it on her medical
conditions and/or childhood trauma. Hadden similarly has concerns that remain about
Mother’s long-term sobriety, particularly due to the Mother’s increasingly erratic behavior
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 17
throughout the proceedings. The GAL also has concerns that remain about Mother’s
sobriety because of her recent jumpy and inappropriate appearance. Van Buren
described Mother’s behavior as inconsistent throughout the case, and more erratic since
July. Van Buren has concerns about Mother’s substance abuse. The trial court found
Mother’s testimony about her remedying of concerns to not be credible and stated
Mother’s testimony was garbled, lacked direction, and her recollection was not clear.
{¶60} Hadden and the GAL testified to Mother’s dishonesty and inability to take
responsibility for her actions throughout the proceedings, and stated she had not
remedied these concerns. Skrzypiec confirmed Mother initially lied to her about her
substance abuse and lied to the court about her employment.
{¶61} Additionally, multiple witnesses had concerns about the visits K.R.(1) and
K.R.(2)’s younger siblings had with Mother. Hadden stated it was difficult for Mother to
manage both children. The GAL stated Mother could do short visits with G.B. and L.B.,
but could not manage them full-time. Van Buren stated the visits were inconsistent, and
she had concerns about both Mother and M.B.’s ability to supervise the children.
{¶62} The GAL testified it is in the best interest of K.R.(1) and K.R.(2) for legal
custody to be granted to Custodians. Both have expressed fear about being returned to
Mother’s care, and they do not trust her. When Mother stopped her visitation with them,
their anxiety and physical issues substantially decreased. Both are afraid of M.B. due to
his past acts of domestic violence against Mother. Guardado stated it would be
detrimental for K.R.(1) and K.R.(2) to be returned to Mother, and believes Custodians will
continue to facilitate a relationship between Mother and the children. However, Guardado
believes the two children should not around M.B. until the counselor feels it is appropriate.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 18
Guardado testified that while Mother has worked hard, she is unable to appropriately
parent. The interview of K.R.(2) confirmed the concerns of Guardado and does not
support Mother’s testimony that K.R.(2) wants to live with her.
{¶63} Guardado testified K.R.(1) and K.R.(2) are doing very well with Custodians.
Hadden describes Custodians as loving, cooperative, attentive, and bonded to the
children. Further, G.B., L.B., K.R.(1), and K.R.(2) are very bonded to each other.
{¶64} Mother also claims the trial court did not consider the testimony about her
good visits, her continued counseling, and case plan compliance in its decision. However,
while there was testimony about her case plan compliance and several good visits, there
was also testimony by multiple witnesses that the visits were inconsistent and many
concerns still remained. As this Court has previously stated, the trial court may believe
all, part, or none of the testimony of any witness who appears before it. Rogers v. Hill,
124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998). Further, as discussed above,
Mother’s compliance with her case plan is only one factor to consider in the best interest
determination.
Due Process
{¶65} In the title of her second assignment of error, Mother asserts the trial court’s
decision violated her due process rights. However, Mother makes no argument in the
body of her brief as to how or why her due process rights were violated.
{¶66} “If an argument exists that can support [an] assignment of error, it is not this
court’s duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-4368. “It
is not the function of this court to construct a foundation for [an appellant’s] claims; failure
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 19
to comply with the rules governing practice in the appellate courts is a tactic which is
ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009-Ohio-1211.
Therefore, “[w]e may disregard any assignment of error that fails to present any citations
to case law or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc., 4th Dist.
Gallia No. 07CA4, 2008-Ohio-2194; See also App.R. 16(A)(7); App.R. 12(A)(2); State v.
Norman, 5th Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596; State v. Untied, 5th Dist.
Muskingum No. CT2006005, 2007-Ohio-1804.
{¶67} As pointed out by SCDJFS, Mother has made no argument to support this
assertion, nor has she supported her allegations with references to the record or citations
to authority to support a finding that the trial court violated her due process rights.
Appellate Rule 16(A)(7) requires an appellant to include in his or her briefs, “* * * [a]n
argument containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions * * *.” We may
not create an argument for Mother as to why her due process rights were violated. See
State v. Carter, 5th Dist. Richland No. 2020-CA-0031, 2021-Ohio-358.
Conclusion
{¶68} Based on the foregoing, we find the trial court did not commit error in
awarding legal custody of K.R.(1) and K.R.(2) to Custodians or in denying Mother’s
motion for custody.
{¶69} Accordingly, Mother’s assignments of error are overruled.
Stark County, Case No. 2021 CA 00037 & 2021 CA 00038 20
{¶70} The March 15, 2021 judgment entry of the Stark County Court of Common
Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Wise, John, J. and
Wise, Earle, J. concur