In re C.S. , 2022 Ohio 2451 ( 2022 )

[Cite as In re C.S., 2022-Ohio-2451.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
IN RE:
CASE NO. 11-21-07
C.S, JR.,
A DEPENDENT CHILD.
OPINION
[C.S. - APPELLANT]
Appeal from Paulding County Common Pleas Court
Juvenile Division
Trial Court No. 20213001
Judgment Affirmed
Date of Decision: July 18, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Matthew A. Miller for Appellee
Case No. 11-21-07
ZIMMERMAN, P.J.
{¶1} This is an appeal from the October 26, 2021 judgment of the Paulding
County Court of Common Pleas, Juvenile Division, granting the Defiance/Paulding
Consolidated Job and Family Services’ (“the agency”) motion for legal custody of
C.S. to maternal grandmother, Beth B. (“Beth”) and denying Charles S. (“Charles”)
motion for legal custody of C.S. to paternal grandmother, Janet S. (“Janet”). For
the reasons that follow, we affirm.
{¶2} C.S., was born in 2011, to Rachel H. (“Rachel”) and Charles
(collectively “parents”). Rachel and Charles were never married to each other. On
January 25, 2021, the filed a complaint alleging C.S. to be a dependent child under
R.C. 2151.04(B) and (C).
{¶3} After a shelter-care hearing on January 26, 2021, the trial court found
that probable cause existed to believe that C.S. was a dependent child; that it was in
the child’s best interest to be placed in the temporary custody of Beth subject to an
order of protective supervision to the agency, and that “[t]he [a]gency made
reasonable efforts to prevent the removal of child [] from the home.” (Emphasis
added.) (Doc. No. 3).
{¶4} The trial court appointed C.S. a CASA (court appointed special
advocate) and a Guardian Ad Litem (“GAL”) on February 17, 2021.
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{¶5} At the adjudicatory hearing on March 17, 2021, the parents entered
admissions to Counts I and II of the complaint, and the trial court found C.S. to be
a dependent child under R.C. 2151.04(B) and (C). Thereafter, the CASA and GAL
filed reports in the trial court recommending that C.S. remain in the temporary
custody of Beth subject to an order of protective supervision to the agency.
{¶6} At the dispositional hearing on April 15, 2021, the trial court ordered
that C.S. remain in the temporary custody of Beth subject to protective supervision
to the agency pending a review hearing scheduled for June 24, 2021. (Doc. No. 49).
{¶7} At the review hearing, the trial court found that it was in the best interest
of C.S. to remain in the temporary custody of Beth subject to an order of protective
supervision. The trial court further found that the agency had made reasonable
efforts to eliminate the continued removal of C.S. from his Rachel’s home and to
make it possible for C.S. to return home safely. The trial court also scheduled a
review hearing for August 26, 2021.
{¶8} However, on August 5, 2021 and before the review hearing, the agency
filed a motion requesting that legal custody be granted to Beth.1 (Doc. No. 58). On
August 23, 2021, Charles filed a motion requesting legal custody of C.S. to Janet
1
Rachel’s unsupervised visitations were suspended after she tested positive on July 21, 2021 for
methamphetamines and amphetamines. Charles, who had been resistant to working with the agency towards
case-plan goals and objectives throughout the life of the case, was now serving a 60-day jail sentence in the
Paulding County Jail for a probation violation.
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and a motion for an interstate compact for the placement of children home study to
be completed for Janet because she was a resident of Indiana.
{¶9} At the August review hearing, the trial court found that it was in the
best interest of C.S. to remain in the temporary custody of Beth subject to the
agency’s protective supervision. The trial court further found that the agency had
made reasonable efforts to eliminate the continued removal of C.S. from his home
and to return him home safely. The trial court then scheduled a legal-custody
hearing for October 22, 2021 on the parties’ legal-custody motions and ordered that
Charles’s motion for an interstate-home study be held in abeyance.
{¶10} The GAL (on October 13, 2021) and the CASA (on October 14, 2021)
filed reports in the juvenile court both recommending that the trial court grant legal
custody of C.S. to Beth and that agency services be terminated.
{¶11} After a legal-custody hearing convened on October 22, 2021 and upon
agreement of the parties, an executed statement of understanding for legal custody
(signed by Beth) was filed in the instant case pursuant to R.C. 2151.353(A)(3)(a)-
(d), and the trial court granted legal custody of C.S. to Beth (pursuant to that
agreement) by judgment entry filed on October 26, 2021.
{¶12} Charles filed timely notice of appeal and raises two issues for our
review, which we will review together.
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Assignment of Error No. I
Where a motion is pending before the court for disposition in a
child abuse, neglect or dependency case and that motion seeks to
designate an out of state relative as custodian, the trial court
abuse [sic] its discretion by holding in abeyance, a motion for an
ICPC home study in advance to [sic] the hearing on the custody
motion.
Assignment of Error No. II
The trial court, in establishing a custody order to a non-parent as
a disposition in an abuse, neglect or dependency case, must
receive a signed and written statement of understanding for legal
custody prior to the commencement of the hearing and thereafter,
pursuant to Ohio Revised Code Section 2151.353(A) (3), and
thereafter inquire of and seek acknowledgment and
understanding from the proposed custodian of their obligations
and rights.
{¶13} In his first assignment of error, Charles challenges the trial court’s
denial of his motion for legal custody to Janet and subsequent denial of his pending
motions. Specifically, he argues that by holding his request for an interstate home
study in abeyance pending the trial court’s determination of the motions for legal
custody filed by the agency (for Beth) and Charles (for Janet), that the trial court
prevented him from supporting his legal-custody motion with evidence.
{¶14} In his second assignment of error, Charles argues that the trial court
erred by granting the agency’s motion for legal custody to Beth. Particularly, he
asserts that the trial court erred by allowing Beth to sign a statement of
understanding for legal custody during the dispositional hearing, rather than, affirm
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an existing statement of understanding for legal custody having been previously
signed and attached to the agency’s legal-custody motion at the time it was filed.
Standard of Review
{¶15} On appeal, we review the grant or denial of a motion for legal custody
under an abuse-of-discretion standard. In re B.P., 3d Dist. Logan Nos. 8-15-07 and
8-15-08, 2015-Ohio-5445, ¶ 21. An abuse of discretion implies that the court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
Legal Custody
{¶16} A juvenile court has exclusive original jurisdiction concerning a child
alleged to be abused, neglected, or dependent. In re S.L., 3d Dist. Union No. 14-
15-07, 2016-Ohio-5000, ¶ 12. See also In re J.L.M., 9th Dist. Summit No. 28867,
2018-Ohio-2175, ¶ 10, citing State ex rel. Allen Cty. Children Servs. Bd. v. Mercer
Cty. Common Pleas Court, Prob. Div., 150 Ohio St.3d 230, 2016-Ohio-7382, ¶ 21;
R.C. 2151.353(A). Following an adjudication of an abused, neglected, or dependent
child, R.C. 2151.353(A) provides the juvenile court’s with certain dispositional
alternatives for the child. “A juvenile court has broad discretion in [fashioning] the
disposition of an abused, neglected, or dependent child.” In re C.W., 3d Dist.
Wyandot No. 16-09-26, 2010-Ohio-2157, ¶ 10, citing R.C. 2151.353(A) and Juv.R.
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29(D). See also In re L.P., 3d Dist. Seneca Nos. 13-12-60 and 13-12-61, 2013-
Ohio-2607, ¶ 20; Juv.R. 34(D).
{¶17} Among the juvenile court’s dispositional alternatives is granting legal
custody of the child to a person identified in the complaint or in a motion filed prior
to the dispositional hearing. See R.C. 2151.353(A)(3); See also Juv.R. 34(D). R.C.
2151.353(A)(3) provides that an
[a]ward legal custody of the child 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. A person identified in a complaint or motion filed by a
party to the proceedings as a proposed legal custodian shall be
awarded legal custody of the child only if the person identified signs
a statement of understanding for legal custody that contains at least
the following provisions:
(a) That it is the intent of the person to become the legal custodian
of the child and the person is able to assume legal responsibility for
the care and supervision of the child;
(b) That the person understands that legal custody of the child in
question is intended to be permanent in nature and that the person will
be responsible as the custodian for the child until the child reaches the
age of majority. Responsibility as custodian for the child shall
continue beyond the age of majority if, at the time the child reaches
the age of majority, the child is pursuing a diploma granted by the
board of education or other governing authority, successful
completion of the curriculum of any high school, successful
completion of an individualized education program developed for the
student by any high school, or an age and schooling certificate.
Responsibility beyond the age of majority shall terminate when the
child ceases to continuously pursue such an education, completes such
an education, or is excused from such an education under standards
adopted by the state board of education, whichever occurs first.
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(c) That the parents of the child have residual parental rights,
privileges, and responsibilities, including, but not limited to, the
privilege of reasonable visitation, consent to adoption, the privilege to
determine the child's religious affiliation, and the responsibility for
support;
(d) That the person understands that the person must be present in
court for the dispositional hearing in order to affirm the person’s
intention to become legal custodian, to affirm that the person
understands the effect of the custodianship before the court, and to
answer any questions that the court or any parties to the case may
have.
R.C. 2151.353(A)(3)(a)-(d).
{¶18} The Revised Code defines “legal custody” to mean
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. An individual granted legal custody shall exercise the
rights and responsibilities personally unless otherwise authorized by
any section of the Revised Code or by the court.
R.C. 2151.011(A)(21) (Apr. 6, 2021 to Sept. 29, 2021) (current version R.C.
2151.011(A)(21) (Sept. 30, 2021)). “[T]he award of legal custody is ‘not as drastic
a remedy as permanent custody.’” In re J.B., 3d Dist. Allen No. 1-15-79, 2016-
Ohio-2670, ¶ 32, quoting In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-
3214, ¶ 7. Unlike granting permanent custody, the award of legal custody does not
divest parents of their residual parental rights, privileges, and responsibilities. In re
C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. Significantly, the parent can
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generally petition the court for a custody modification in the future. In re L.D. at ¶
7. Thus, “a parent’s right to regain custody is not permanently foreclosed.” In re
B.P., 2015-Ohio-5445, at ¶ 19, citing In re M.J.M., 8th Dist. Cuyahoga No. 94130,
2010-Ohio-1674, ¶ 12. The Supreme Court of Ohio has held that a finding of
parental unfitness is not a prerequisite to a disposition of legal custody where a
juvenile court is making a custody determination between a nonparent and parent
under R.C. 2151.353. In re C.R.at ¶ 21. See also In re M.H., 3d Dist. Seneca Nos.
13-13-45 and 13-3-46, 2014-Ohio-1485, ¶ 15 (“[A] trial court is not required to
make a separate ‘unsuitability’ finding at disposition, because an adjudicatory
finding that a child is abused, neglected or dependent implicitly contains an
unsuitability finding.”), citing In re C.R. at paragraphs two and three of the syllabus,
and In re Cunningham, 59 Ohio St. 2d 100, 102 (1979).
{¶19} The standard a juvenile court uses in making its determination in a
legal-custody proceeding (by “preponderance of the evidence”) is the less restrictive
than a permanent-custody proceeding (by “clear and convincing evidence”). See In
re B.P. at ¶ 19. “‘Preponderance of the evidence’ means evidence that is more
probable, more persuasive, or of greater probative value.” In re M.G., 3d Dist. Allen
No. 1-18-54, 2019-Ohio-906, ¶ 7, quoting In re J.B., 3d Dist. Allen No. 1-15-79,
2016-Ohio-2670, ¶ 33, citing In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012–
Ohio–5514, ¶ 7.
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{¶20} At a dispositional hearing involving a request for legal custody, the
focus is on the best interest of the child. In re P.S., 5th Dist. Stark No.
2012CA00007, 2012-Ohio-3431, ¶ 31, citing In re C.R. at ¶ 10; In re B.P. at ¶ 19.
R.C. 2151.353(A)(3) does not list specific factors a court should consider in
deciding what is in the child’s best interest pursuant to the requested disposition of
legal custody. In re B.P. at ¶ 20, citing In re N.P., 9th Dist. Summit No. 21707,
2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. Butler No. CA2002-09-236,
2003-Ohio-5984, ¶ 11.
{¶21} Although, no specific factors must be followed in a case involving the
dispositional alternative of legal custody, we have previously concluded that
juvenile courts may be guided by the factors listed in R.C. 2151.414(D)(1) (the
permanent-custody factors) or R.C. 3109.04(F)(1) (factors employed in private-
custody disputes) since they are both purely instructive. See In re L.P., 3d Dist.
Seneca Nos. 13-12-60 and 13-12-61, 2013-Ohio-2607, ¶ 22. See also In re K.B., 3d
Dist. Hancock Nos. 5-20-37 and 5-20-38, 2021-Ohio-3273, ¶ 50.
{¶22} In addition to the foregoing factors, the juvenile court must also
liberally interpret and construe R.C. Chapter 2151 so as to effectuate the General
Assembly’s express purpose when considering which situation will best promote
the child’s “care, protection, and mental and physical development,” understanding
that the child should only be separated from his or her parents “when necessary for
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the child’s welfare or in the interests of public safety.” In re C.W. at ¶ 11, citing
R.C. 2151.01(A). See also In re L.P. at ¶ 21.
Analysis
{¶23} The record reveals that Rachel and Charles entered admissions to both
counts of dependency involving C.S. as set forth in the agency’s complaint. Based
upon the admission, the trial court adjudicated C.S., a dependent child. At
disposition, the trial court placed C.S. into the temporary custody of Beth under the
protective supervision of the agency. Thereafter, the trial court engaged in two
review hearings wherein the trial court ordered the continuation of its temporary-
custody order.
{¶24} Ultimately, the agency filed a motion for legal custody to Beth. In
response, Charles filed a motion for legal custody (to Janet) that included two
prayers of relief. First, he requested that the trial court allow an interstate-home
study to be completed for Janet’s home in Indiana. Secondly, he requested that upon
approval of the home study, the trial court grant Janet legal custody of C.S. At the
review hearing, the trial court held his interstate-home study motion in abeyance
pending its determination regarding legal custody.
{¶25} Importantly, the parties appeared for the legal-custody hearing having
reached an agreement as to the agency’s request for legal custody. The parties
recited their agreement to the trial court (in open court) agreeing that legal custody
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to Beth was in the best interest of C.S. Thereafter, Charles withdrew his motion for
legal custody. (Oct. 22, 2021 Tr. at 206). At the hearing, Beth acknowledged her
willingness to become C.S.’s legal custodian and that she understood what that
status meant. See In re R.D.J., I.E.J., W.A.J., S.J.J., and A.J., 5th Dist. Delaware
No. 12 CAF 07 0046, 2013-Ohio-1999, ¶ 27. See also In the Matter of A.B., et al.,
12th Dist. Brown No. CA 2016-11-021, 2017-Ohio-5776, ¶ 27 (“‘the legislative
purpose of the signed statement of understanding under R.C. 2151.353(A) is to help
insure that prospective legal custodians are apprised of the significant
responsibilities they will undertake.’”) quoting In re W.A., 5th Dist. Muskingum No.
CT2013-0002, 2013-Ohio-3444, ¶ 16.
{¶26} Beth executed an unopposed statement of understanding for legal
custody in open court at the legal-custody hearing. Neither Charles nor Rachel
challenged the agency’s request for Beth to be granted legal custody of C.S.
Nevertheless, Charles now appeals the trial court’s process of complying with R.C.
2151.353(A)(3)(a)-(d) regarding Beth’s filing of a statement of understanding for
legal custody, despite the fact that neither he nor Janet filed one in his motion for
legal custody.
{¶27} Here, Charles is estopped from seeking to benefit from a purported
error that he invited. See Koch v. Rist, 89 Ohio St.3d 250, 256 (2000) (Cook, J.,
dissenting) (“Invited error is a branch of the waiver doctrine that estops a party from
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seeking to profit from an error that the party invited or induced.”) “Under the
doctrine of invited error, an appellant, in either a civil or a criminal case, cannot
attack a judgment for errors committed by himself or herself, for errors that the
appellant induced the court to commit, or for errors which the appellant is actively
responsible.” In re J.B., 10th Dist. No. 11AP-63, 2011-Ohio-3658, 2011 WL
3077311, ¶ 10. Importantly, Charles “cannot complain of any action taken or ruling
made by the [trial] court in accordance with [his] own [] request.” Id.{¶28} Significantly, the parties asked the trial court to approve and adopt
their agreement granting legal custody to Beth as in the best interest of C.S. In doing
so, Charles withdrew his legal-custody request and did not challenge Beth’s
qualification as the legal custodian of C.S. Following the trial court’s approval and
adoption of that agreement, the trial court ended the agency’s order of protective
supervision involving C.S. and terminated further agency involvement. Thus, we
conclude that Charles’s request for an interstate-home study was implicitly
withdrawn, and consequently denied. The abeyance was inconsequential at that
point.
{¶29} For these reasons, we will not conclude that the trial court committed
any err by granting the agency’s motion for legal custody to Beth under the
circumstances of this appeal. Error, if any, was invited by Charles.
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{¶30} Accordingly, Charles’s first and second assignments of error are
overruled.
{¶31} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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