In re C.S.

[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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