08-1229 David and Shelia Weir, on Appeal from the Lorain County Court of Appeals, Appellant, Ninth Appellate District

Home , Weir

IN THE SUPREM COURT OF OHIO 08-1229 David and Shelia Weir, On Appeal from the Lorain County Court of Appeals, Appellant, Ninth Appellate District

vs.

Lorain County Children Services,; Court of Appeals Case No.: 07CA009249 and,

Bruce and Katherine Lightner,

Appellee

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT DAVID AND SHELIA WEIR

David Weir ( Pro Se Counsel of Record) 4005 Jacob St. Wheeling, WV 26003 .,. (304)-233-4960 )s ^iaan -> >v- a_yai=^ C^^^}61{ .^^ Or SUP1^P^,^ i;CRI€,3 ^s;^ O4Il^ 5C.zv40C1,-102,`caG1. ^oTM

COUNSEL FOR APPELANT, DAVID AND SHELIA WEIR

Dennis P. Will Prosecuting Attorney Billie Jo Belcher (Counsel of Record) Assist. Prosecuting Attorney Lorain County Justice center 225 Court St. Elyria, Ohio 44035

COUNSEL FOR APPELLEES, LORAIN COUNTY CHILDREN SERVICES, AND BRUCE AND KATHERINE LIGHTNER jUN ^ ^ ^om'^

- i - CLERK OF COURT SUPRENIE COURT OF OHIO Notice of Appeal of Appellants David and Shelia Weir

Appellants David and Shelia Weir hereby gives notice of appeal to the Supreme Court of Ohio from the judgment of the Lorain County Court

of Appeals, Ninth Appellate District, entered in the Court of Appeals

case No. 07CA009249 on May 12, 2008.

This case raises a substantial constitutional question and is one

of public or great general interest.

Respectfully submitted,

David Weir, Counsel of Record

David Weir

COUNSEL FOR APPELLANTS DAVID AND SHELIA WEIR

Certificate of Service

I certify that a copy of this Memorandum in Support of

Jurisdiction was sent by ordinary U.S. to counsel for the Appellees,

(APA) Billie Jo Belcher Lorain County Court of Common Pleas Juvenile

Div. Lorain County Justice center, 225 Court St. Elyria, Ohio 44035,

counsel for Lorain County Children Services , Mr. and Mrs. Lightner,

290 Washington, Ave C- 110 Elyria, Ohio, 44039

^^3--^v V`-^^'"^ David Weir

COUNSEL FOR APPEI.I.AIPT, DAVID AND SHEI.TA WEIR TABLE OF CONTENTS

Pa¢e

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GERERAL INTEREST AND INVOLVES A SUBSTANTLAL CONSTITUTIONAL QUESTION ...... 1

STATEMENT OF THE CASE AND FACTS ...... 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 6

Proposition of Law No.1 Admissible "hear say" testimony and evidence R.C. 2151.35(B)(2)(b) ...... 6

Proposition of Law No. 2 (LCCS) did not make reasonable efforts to return the child R.C. 2151.412 ...... 6

Proposition of Law No. 3 The court did not find in the best interest of the child ...... 8

CONCLUSION ...... 9

CERTIFICATE OF SERVICE ...... 10

APPENDIX App%. Pa¢e

Decision and Journal Entry Lorain county Court of Appeals May 12, 2008 ...... 1

Journal Entry Magistrate's Decision March 12, 2007 ...... 14

Journal Entry August 30, 2007 ...... 22 EXPLANATION OF WI3Y THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION

{¶ 1} The case at bar brings to light several issues dealing with Children Services, and the juvenile court when it comes to and not limited to; permanet custody, reasonable efforts made by both the parents and he agency, case plan progress, clear and convincing evidence, fmding of fact, unsuitability of parents, change in circumstances, in the best interest of the child clause, and the fundamental rights of the parents. The fundamental rights and responsibilities of parents are out lined in both R.C. 2151.011(B) (19) and R.C.

2151.353(A) (3) (C).

{1[2} R.C.3109.04 out lines a change in circumstances in regards to shared parenting due to divorce and the loss of permanent custody of a child to one parent or the other or a nonparent. See In re Brayden James 113 Ohio st, 3d 420, 2007-Ohio-2335 at

¶8-11, 15, 18, 20, 43. However in this case as in many others like it R.C. 3109.04 dose not apply when dealing with the loss of custody to a nonparent due alleged abuse and neglect cases. There appears to be no statute to determine a in circumstances when it comes to loss of custody due to alleged abuse and neglect cases. See In re S.J. 2006-

Ohio-6381 at ¶33, In re Fulton 2003-Ohio-5984 at ¶11, In re T.A.2006-Ohio-4468 at ¶19,

In re N.P. & H.P. 2004-Ohio-110 at ¶23, In re Brayden James 113 Ohio st, 3d 420, 2002-

Ohio-2335 at ¶44, and In re Hockstok 98 Ohio st, 3d, 2002-Ohio-7208 at ¶ 13, 15. This is one of many reasons why this is of great public interest and also raises a very good statutory question.

{¶3} R.C. 3109.04 poses a problem to parents who have lost custody of their child/children because the statute only deals with divorce cases and leaves the juvenile

I court to it's own discretion under the "best interest clause" as out lined in

R.C.2151.414(D). There is no such language to determine "a change in circumstances" for the parents who have got themselves into trouble and need help to be reunited with their child. The statute makes it impossible for the parents who are doing all they can do to make progress on their case plan to achieve their goals and becomes a sword when it comes to permanent loss of custody especially if it takes a considerable amount of time to achieve the goals. It is because of this reason that many families who may need help from the agency may be reluctant to ask for the help they need for fear of never being able to get their child back. See In re Brayden James 113Ohio st.3d 420, 2007-Ohio-2335 at ¶

52.

{¶ 4} The " best interest clause" as out lined in R.C.3109.04(E)(1)(a) and through out 2151.414 has a lot to do with supervised visitation by the custodial parents, the interaction of the child with the parents, and the frequency of those visits. See In re S.J.

2006-Ohio-6381 at ¶ 35, 36, 39, In re Braydon James 2007-Ohio-2335 at ¶4-6, 12, In re

Hockstok 2007-Ohio-2335 at ¶8, 9, In re Keaton 2004-Ohio-6210 at¶49, In re A.D. &

M.D. 2002-Ohio-6032 at ¶6, 7, 10, 11, 13, 14, 19 This gives an unfair advantage to the custodial parents when it comes to reporting to the agency as to how the visit went, and the interaction between parents and the child. The custodial parents can pretty much can say anything that want to the agency with no factual proof as to what they are telling the agency to be true when the agency reports to the court as to how the visit went with the child. The parents do not stand a chance when it comes to their defense because it is usually their word against the word of the custodial parents and the agency, in most cases

2 the court will rule against the parents no matter what they say or do to defend against the claims of the custodial parents and the agency.

{¶5} In regards to permanent or legal custody as out lined in 2151.01, 2151.011,

2151.353, and 2151.414 of the Ohio Revised code there are many factors that come into play, but in nearly all of the above statutes the rights of the parents are paramount when it comes to the custody of their child. See In re Brayden James 2007-Ohio-2335 at¶45, In re Hockstok 2002-Ohio-7208 at¶35, 36, In re Keaton 2004-Ohio- 6210 at ¶37, 38, In re

A.D. & M.D. 2002-Ohio-6032 at ¶9, 10. However, in most custody cases involving alleged abused, neglected, and dependent children the " finding of facts" gets lost when

"hear say' evidence and testimony are adnussible as according to 2151.35(B)(2)(b). The parents are again at a great disadvantage because it comes down to the word of the agency over the word of the parents and the court again rales against the parents

{¶6} When it comes to "clear convincing evidence "as outlined in

R.C.2151.35(B)(2)(b) and see also In re Keaton 2004-Ohio-6210 at¶ 42 "The Ohio

Supreme Court has Defined "clear and convincing evidence" as follows: "T he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear unequivocal."

{17) The statute is used in both criminal and juvenile cases, the difference between the two types of cases is that in juvenile cases "hear say" is admissible for consideration of the court according to 2151.35(B)(2)(b). However the statute is

ambiguous and broad in scope as to if it only applies to tangable evidence or tangible

3 evidence and witness testimony. Therefore if "hear say" is admissible when it comes to what is considered "clear convincing evidence" in juvenile cases , the statute becomes even more ambiguous. "When unreliable testimony is admitted, "it is impossible for the reviewing court to determine if enough proper evidence exists to support the trial courts conclusions"' This again puts the parents at a big disadvantage because it again becomes the word of the agency and custodial parents against the word of the parents which clouds the actual facts of the case and the judgment of the court who will usually rule against the parents.

STATEMENT OF THE CASE AND FACTS

{18} On August 8, 2005 a complaint was filed by the Assistant Prosecuting

Attomey loannidis, (APA) on behalf of the agency Lorain County Children Services,

(LCCS). A motion for an Ex Parte Order of Pre Dispositional Interim Orders was filed by the (APA). A request for a Guardian ad Litem (GAL) was also filed. The court found probable cause and granted emergency custody to (LCCS) and scheduled a hearing for

August 9, 2005. The parents were denied counsel for this hearing and were indigent at this time, therefore were unrepresented at the time this hearing was held. The court ordered the child to remain in the custody of (LCCS).

{19} On August 15, 2005 Fred Courtright was appointed (GAL) for the minor child, Dan Gibbons was appointed counsel for (Father/Appellant)David Weir, Tabitha

Williams, was appointed counsel for (Mother/appellant) Shelia Weir. On October 27,

2005 and under the advisement of counsel, the parents, and all parties agreed the minor child was adjudicated a neglected and dependant child. Temporary custody was granted

4 to half brother and sister in law, Bruce and Katherine Lightner. A case plan was attached o the order.

{4f10} During this time the parents did as they informed (LCCS) and the court by filing Chapter seven Bankruptcies and try to relocate. The parents did find a house in

West Virginia. They also were driving back and forth to renovate the house and working on the goals of their case plan. The parents were trying to keeping an impossible visitation schedule, Parenting classes as well as getting ready for the move. In April, the parents did make the move to the West Virginia home. Prior to the move the parents did inform (LCCS) of the move and asked for expanded visitation. Tina Cottrell of (LCCS) told the parents that they were the ones moving away and would not discuss it any further.

{¶11} On July 31, 2006, (LCCS) filed a motion for Further Dispositional Orders asking the court to award legal custody of the minor child to the Lightners. Attached to that motion was a document signed by the Lightners purporting to be a motion for legal custody to a relative or interested third party. The motion was prepared by the Lorain

County Prosecutor's office, and stated that the Lightners "join[ed] in the forgoing motion for legal custody, which was filed by (LCCS)." The motion alleged that neither parent had made substantial progress and neither parent had demonstrated the ability to meet the needs of the child. The parents challenged the factual basis of the motion in a contested hearing before the magistrate over several days and spanning several months. On March

12, 2007 a Magistrates decision was filed awarding legal custody of the minor child to the Lightners. The parents through counsel filed formal objections to the decision and on

August 30, 2007 ajournal entry was filed upholding the Magistate's decision. In

5 September of 2007, the parents appealed to the Ninth District Court of Appeals who affirmed the judgment in their May 12, 2008 decision.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: Admissible "hear say" testimony and evidence R.C.2151.35(B)(2)(b)

{112} When a unreliable testimony is admitted "it is impossible for the reviewing court to determine if enough proper evidence exists to support the trial court conclusions." In re Antonio M. Lucas App. No. L-96-188, 08/15/94, unreported. The confrontation right ensures reliability by demanding evidence be subjected to rigorous testing during and adversary proceeding. Maryland v Craig 497U.S. 836, 845, (1990) The confrontation clause requires exclusion of out of court statements unless "an affirmative reason, arising from the circumstances in which the statement was made. In this case at the conclusion of each witnesses the Magistrate not only admitted hearsay from each of the witnesses but directly solicited the testimony regarding the minor child's health, medical, social, and cognitive conditions.

Pronosition of Law No. 2 (LCCS) did not make reasonable Efforts to return the child R.C. 2151.412

{¶13} The goal stated in R.C.2151.412 is to re-unify children with their parents.

In this case from the testimony the re-uninifing the child with the parents was never an agency priority and case plan loosely structured to accomplish hat goal. The court found that (LCCS) provided referrals to the Nord center and Bob Reitmen. As the case worker testified, the parents did complete the parenting classes, despite the fact that they were regularly traveling to West Virginia to complete renovations on the house they had purchased while still living in Northeast Ohio. Furthermore the parents had agreed to take

6 repairs to the West Virginia home due to their desire to be reunited with their daughter

Pearlie.

Proposition of law No. 3 The court did not find In the best interest in the child R.C.2151.414, R.C.3109.4

{116} At the beginning of this case, there were a number of issues regarding the parent's ability to keep their home in North Ridgeville, Ohio clean and free of hazards to

Pearlie. It should be noted that Mr. Lightner lived with the parents at the North Ridgeville address, by his own account for at least (2) two years. Pearlie was bom during his time at the Weirs (the parents), Mr. Lightner did not pay rent or any of the bills.

{¶17} Katherine Lightner (nee Torrez at the time) also lived with the Weirs (the parents) in the North Ridgeville home, from March of 2003 until May of 2004, when she was engaged to Mr. Lightner. Mrs. Lightner (nee Torrez at the time) also did not pay any rent or contribute towards any of the bills. Mrs. Lightner (nee Torrez at the time) admitted she had visited Mr. Lightner often at the Weir's (the parents) residents, and knew the condition of the home prior to moving in. Mrs. Lightner (nee Torrez at the time) also admitted that she felt comfortable enough to move in and live there for a year or so.

Interestingly, Mrs. Lightner (nee Torrez at the time) testified that she called (LCCS) about the home, but only after she moved out.

{¶18} Clearly, during their rent free stay, the Lightners helped to create, or did nothing to abate, at least some of the hazard issues at the Weir's (the parents) home in

North Ridgeville, which were the basis for (LCCS) to initially become involved. Indeed

Mr. Lightner admitted that he INTENTIONALY stopped doing any cleaning of the house. Mr. Lightner lived there until Pearlie was (3) three years of age, however neither he or his soon to be wife at the time, contacted anyone about their alleged concerns, nor

8 did they make any serious attempt to have Pearlie removed from the situation until they moved out of the Weir's (the parents) home in May 2004. It is impossible to fathom how some of the persons who were culpable for the conditions in the North Ridgeville home, and allowed Pearlie to live in the home can be considered SUITABLE to be granted legal custody of Pearlie.

{1[19} Which stands to question as to how the Lightners who lived in the same conditions as Pearlie, who also contributed to the conditions of the home and did nothing to help change said conditions. Furthermore lived there rent free and did not pay anything towards any of the bills, or contribute any thing at all toward the house, be considered as suitable parents for Pearlie when in fact they were and are no better than the parents if not worse. At least the parents tried to clean up and fix the concerns.

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional question. The appellant requests that this court accept jurisdiction in this case so that important issues will be reviewed on the merits.

Respectfully submitted,

David Weir, Counsel of Record

COUNSEL FOR APPELLANT

DAVID AND SHELIA WEIR

9 Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. to counsel for the Appellees, (APA) Billie Jo Belcher Lorain County Court of Common Pleas Juvenile Div. Lorain County Justice center, 225 Court St. Elyria, Ohio 44035, counsel for Lorain County Children Services, Mr. and Mrs. Lightner, 290 Washington, Ave C- 110 Elyria, Ohio, 44039

David Weir COUNSEL FOR APPELLANT, DAVID AND SHELIA WEIR

10 APPENDIX STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTJI.JCJDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: P.L. ; ;;C;A.,.No..;: :07CA009249 iiif io11,6 (',(i0 `:1; JI APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 05JC10015

DECISION AND JOURNAL EN'TRY

Dated: May 12, 2008

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DICKINSON, Judge.

INTRODUCTION

{¶1} This case involves the legal custody of a young girl who was removed from her parents' care due to concerns about her home environment and parental supervision. P.L. was adjudicated neglected and dependent. Lorain

County Children Services obtained temporary custody and placed P.L. with her half-brother and his wife. She reinained there for over a year, adjusted well, and hnproved developmentally and academically. During that time, P.L.'s parents made some progress on their case plan, but the agency's concerns remained.

Following a dispositional hearing, a magistrate awarded legal ctistody to P.L.'s

Court of Appeals of Ohio, Ninth Judicial District RECEIVED ^ Jt,"; 0 3 20K 2 half-brother and his wife. P.L.'s father filed objections and amended objections to that decision. The trial court overruled those objections and granted the motion

for legal custody to P,L,'s half-brother and his wife. Her father has appealed from that judgment. The central issue on appeal is whether it was in P.L.'s best interest

to be placed in the legal custody of her half-brother and his wife rather than her

parents. Upon consideration, this Court concludes that the trial court properly

found that legal custody to the half-brother and his wife was in the child's best

interest and the agency made reasonable efforts to prevent P.L.'s continued

removal from her parents' home.

FACTS

{¶2} In August 2005, P.L. was removed from her parents' care due to

Lorain County Children Services'concerns regarding the condition of her home

and a general lack of supervision. At that time, P.L. was nearly three-and-a-half

years old. She was living with her parents, a teenage half-sister, an adult half-

brother, and his wife. According to the October 2005 Magistrate's Decision,

Lorain County Children Services reported that P.L. had been living in a "filthy

environment" including "piles of dirty dishes, food embedded in the carpet, trash

throughout the home, and broken furniture." The family maintained up to nine

cats that shared one litter box and spread feces throughout the house. P.L. slept in

her parents' room because she did not have her own bedroom. According to

reports received by Lorain County Children Services, P.L.'s parents "frequently

Court of Appeals of Ohio, Ninth Judicial District RECEIVED Jl1's' 0 3 200 1 3 had sex in front of [her]." P.L.'s parents both have medical conditions that have

resulted in thetn receiving government disability benefits. The family was

struggling financially and• was in danger of having their utilities disconnected.

{¶3} P.L. was adjudicatad neglected and dependent and temporary

custody, with agency supervision, was awarded to P.L.'s half-brother, Bruce, and

his wife, Katherine. P.L. remained in.Bruce and.Katherine's care.for.a year before

Lorain County Children Services moved the court for an award of legal custody to

the caregivers and tennination of protective custody. A magistrate conducted a

,lengthy ..hearing on the motion before awarding legal custody to Bruce and

Katherine and ordering visitation for P.L.'s parents. Both parents objected to the

Magistrate's Decision. The trial court overruled the objections and granted the

.motion. Although both parents.initially appealed that decision,.only the father has

set forth arguments for this Court to consider.

{¶4} At the dispositional hearing, Tina Cottrell, a social worker employed

by Lorain County Children.Services,.testified about the condition of the.home and

the ability of P.L.'s parents to supervise their daughter. Ms. Cottrell testified that,

before P.L. was removed from the home, her personal hygiene had been a

problem. Herhair was..often.dirty, her feet were blackened from failure to wear

shoes, even outside of the house, and she often slept in "extremely soiled bed

linens." P.L. had recurrent problems with lice and fleas. Ms. Cottrell also

Court of Appeals ofOhio, Ninth Judicial District RECEIVED JO'{ 0 3 100^ 4

testified that P.L.'s parents had not been regularly feeding or bathing their daughter.

{¶5} According to Ms: Cottrell, P.L.'s parents were not attending to her

medical needs. Prior to her removal, P.L. had never seen a dentist. Ms. Cottrell

testified that P.L. had seven to eight cavities b.efore the age of four, likely due to

sugary drinks and neglected dental hygiene. Ms. Cottrell also testified that P.L.'s

pediatrician expressed concern for P,L.'s respiratory system due to her "extensive

exposure to cigarette smoke in the home" as well as her mother having smoked

while gcegnant with P.I.,. Ms. Cottrell testified that P.L. was a premature baby

who has suffered "recurring upper respiratory infections that are chronically

resurfacing" and that she is "at an increased risk for developing asthma:" P.L.'s

caregiver, Katherine, also testified that P.L. requires _twice-daily .breathing

treatments and takes other prescription medications, including using an inhaler, for

her respiratory problems. P.L.'s mother testified that she had tried to quit

smoking, but was not successful. P.L.'s father .testified that he did not actually

believe that exposure to cigarette smoke was harmful to P.L.'s health, but he

planned to designate a separate smoking room in the parents' house if P.L. came to

live with them.

{¶6} When P.L. was removed froxn her parents' care, she was

developmentally and academically behind her peers. She was also shy and afraid

to try new things. At three-and-a-half years old, P.L.'s speech was limited and

Court of App®afs of Ohio, Ninth Iudicial Discricc RECEIVED Jl;'; 0 3 200 difficult to understand. Up until that time, P.L. was in the habit of pointing and

making noise to get what she wanted. She suffered from fine and gross motor

deficits and failed to rheet developmental milestoanes xegarding balance and

coordination. Ms. Cottrell reported that a developmental evaluation reported that

P.L:'s deficits were due to "lack of opporturiity ini her environment "

{¶7} After filing for bankruptcy in Ohioa P.L.'s parents bought a house in

West Virginia and began repairing and remodeling it. They moved there in April

2006, six months after P.L. was adjudicated neglected and dependent. P.L.

remained in Ohio in the temporary custody of her half-brother, Bruce, and his

wife, Katherine. Ms. Cottrell nlade regular visits to the West Virginia house, and

P:L.'s guardian ad litem, Fred Courtright, also made two unannounced visits to

West Virginia. Although the ageney and the guardian ad .litem originally had

some concerns about the safety of the parents' new house, the parents made

progress in addressing those issues and this concern was not'lncluded by the trial

court in support of its grant of legal custo.dy to Bruce and Katherine. The trial

court did mention that the magistrate correctly found that another couple was living with the parents in their West Virgiriiahome and occupying the bedroom

intended for.P,,L. Various people testified that the couple would either sleep on the couch or move out of the house if P.L. were placed in the home.

{¶8} P:L:'s parents have ixiissed a significaot number of scheduled visits with P.L. sixlce she was removed from their care. According to the testimony of

RECEI ;Cputpf Appesls of Ohio; Ninth ludicial 1?istHct ^ a JU'; 0 3100 COP 6

Ms. Cottrell and Katherine, while the parents were living in Ohio, they missed inore than half of their scheduled visits. After they moved to West Virgirda, they never made a trip to Ohio for the sole purpose of visiting their daughter. They have traveled to Ohio to attend court appearances in this matter and have almost always included a visit with P:L. on those occasions. For about six months after they moved, the parents did not visit P.L. at.all: Both parents testified that the cost of the five-hour-round-trip and difficulties coinmunicating with the caregivers made more frequent visits impossible. Everyone agreed that the parents frequently spoke with their daughter by telephone.

{1[9} Ms. Cottrell, Katherine, and Bruce all testified that, when the parents do visit thEir daughter, P.L.'s father makes little effort to interact with her. Her mother pays more attention to P,L., but has been inappropriate at times. Bruce and

Katherine testified that, during one visit, in a Chuck E. Cheese restaurant full of children and families, P.L.'s mother lifted her shirt above the level of her bra in order to show off a new tattoo. Ms. Cottrell testif.ied that, during visits, the parents have failed to wipe P.L.'s nose when necessary or wash her hands after taking her to the bathroom.

j110} By the ti~,ne the dispositional hearing was completed, P.L. had been living with Brt.>..ce and Ka.therine for over a year. By all accounts, P.L. had improved academically, socially, and emotionally during that time. Katherine testified that she had enrolled P.L. in preschool and had been working with her at

Court of Appeals of Ohio, Ninth Judicial Distrfct RECEIVED iu*. 0 3 2004 ^^ L E COP Y 7 home to develop her language skills. Ms. Cottrell testified that Bruce and

Katherine had established a daily routine for P.L., who seemed to function well in that environment. According to Ms. Cottrell, P.L. experienced "a lot of growth and development" after being placed with Bruce and Katherine. Her speech greatly improved, and she had become "quite a chatterbox," Although she struggled in preschool at first, by the tiine .of the hearing, P.L. was easily making friends and participating in extra-curricular activities such as soccer and swimming. She had also begun to take great pride in her own personal hygiene and appearance. Ms. Cottrell testified that Bruce and Katherine were always attentive to P.L.'s needs and consistently followed through with the agency's recommendations.

{¶ItJ.} Ms, Cottrell testified that th,e agency had developed a case plan for the family that required P.L.'s parents to provide for her basic as well as her special needs and to supervise those needs consistentty. The case plan specifically required hex pareztts to attend parenting classes and undergo mental health evaluations. After four referrals from Lorain County Children Services, the parents did complete the parenting classes. According to the parents, however, they were unable to integrate anything from those classes into their interaction with P.L. because the classes were focused on teenage behavior problems. By the time of the dispositional hearing, the parents had not cornpleted inental health evaluations. They testified that they had tried to schedule them, but could not

Court of Appeals of 0hio, Ninth ]udioial District RECEIVED JU'i 0 3 20K 8 overcome obstacles caused by confusion over how the sessions would be billed and scheduling difficulties caused by thdir move to West Virginia.

{¶12} After the hearing, the trial court deterniined that it was in P.L.'s best interest for legal custody to be granted to Bruce and Katherine. The court granted the parents supervised visitation. The parents appealed.

{¶13} P.L.'s father has argued that the trial court's order awarding legal custody to Bruce and Katherine was an abuse of discretion and against the manifest weight of the evidence. He has also raised two additional, distinct errors within his sole assignment of error. First, he has argued that the trial court violated his.constitutional:right to co.nfr.pn.t witnesses against him. Second, he has argued that the court incorrectly found that Lorain County Children Services had made reasonable efforts to place P.L. with her parents.

BEST INTEREST OF THE CHILD

{4ff 14} "Although the statutory schene regarding an award of legal custody does. not include a specific test or set of criteria, this Court has previously indicated that the trial-court must base such.a decision on the best interestof the child." In re S.N., 9th Dist. No. 23571, 2007-Ohio-2196, at ¶27 (citing In re S.J.,

9th Dist. No. 23199, 2006-Ohio-6381, at ¶32). The primary question at issue is whether it was in P.L.'s best interest to be placed in the legal custody of her half- brother and.his wife rather than her parents.

Court ofAppeats of Ohio, Ninth Tudicial Aistriot RECEIVED JU'r 0 3 200q 9

I¶15} The Magistrate held a lengthy dispositional hearing. Ms. Cottrell, the social worker assigned by Lorain County Children Services, testified extensively regarding in.foraaaation gathered about P.L., her parents., and her caregivers throughout the life of the case. The court also heard testimony ffozn the guardian ad litern, each parent, Bruce, and Katherine, as well as from a friend of

P.L.'s father.. Although the evidence indicated that the parents had made some progress on their case plan and had addressed some of the agency's initial concerns, the parents had not coinpleted their case plan objectives and were not prepared to provide a stable, healthy hoine for P.L. The social worker and the guardian ad litem testified that legal custody should be awarded to Bruce and

Katherine rather than to P:L:'s parents.

{¶16} Early.in this case, the agency had been concerne,d about the failure of P.L.'s parents to attend to P.L.'s medical needs. At the dispositional hearing, the parents adniitted that they had not located a doctor or dentist for P.L. near their new hoine in West Virginia. They alsQ .did not seern to understand the agency's concern regarding P.L.'s respiratory ailments. Ms. Cottrell and Katherine testified that P.L. took daily breathing treatments and other prescription medications due to her respiratory problems. There was evidence presented that all four people living in the parents' house in West Virginia habitually smoked cigarettes inside the house. The parents had not set aside a separate area of the house for smoking so that P.L. would not be exposed to second-hand smoke. Although the father did

R E C E I V E[] Court of Appeals of Ohio, Ninth Judicial Distrfct

JU'; 0 3 100 FIL 10 claim he was willing to set aside such an area if P.L. were returned to his care, he also testified that- he did not-believe that exposure to second-hand smoke presented any threat to P.L.'s respiratory sysien?.

{¶17} The agency was also concerned about P.L.'s environment contributing to her delayed development of academic and social skills. When she was removed froin her parents' care, P.L. was shy aad barely verbal. At three- and-a-half yeats old, she was hardly intelligible when she did attempt to use language to express herself and she suffered from delays in the areas of gross and fine motor slaills.

{¶1$} The agency was concerned that P.L.'s parents did not pay sufficient

attention to her health and safety. While in her parents' care, her hygiene had

been a major concern. During the course of this case, her parents' own personal

hygiene was occasionally a concern and testimony revealed that P.L,'s parents did

not always wipe her nose when necessary or wash her hands after taking her to the

bathroom during supervised visits. Additionally, there was evidence that P.L.'s

parents tnissedznany of their weekly scheduled visits with.P.L. while they were

still living in Ohio. After the move, the parents visited her only when they were

required to attend a court appearance. Significantly, various witnesses testified that

P.L.'s father paidlittle_attention tohex during visits.

{¶19} Further, the parents failed to ineet the objectives of their case plan.

Although they did complete parenting classes, by their own admission, they were

Court of Appeals of Ohio, Ninth Judicial District RECEIVED JU ti U 3 GUO1G F 11

not able to integrate anything they learned into their parenting of P.L. Their case

plan also called for mental health evaluations of each .parent. These were never

completed.

{120} Meanwhile, P.L. has blossomed under Bruce and Katherine's care.

P.L.'s language skills have greatly improved, and she has made up for early

deficits in motor and social skills as well. According to the testimony, Bruce and

Katherine's house is safe and child-focused. They have, for over a year, provided

a stable, nurturing environment for P.L. The trial court "had ample evidence before

it from which it could conclude that it was in P.L.'s best.interest to be placed in

the legal custody of her half-brother and his wife, rather than of her pareuts.

{121} P.L.'s father has specifcally argued that the trial court violated his

constitutional right to confront witnesses against him by adznitting ".unreliable.and

prejudicial testimony" regarding P.L.'s "health, medical, social and cognitive

conditions." He has failed to identify specific statements in the record that are

deemed affected by this issue, but has referred .thit4 Caurt's _attention to.a number

of transcript pages. Those pages do not reveal any objection based on this alleged

error. The father has also failed to preserve this argument in either of his two sets

of objections to the"Magistrate's Decision as required by Rule 40(D)(3)(b)(iv) of the Ohio Rules of Juvenile Procedure.

{122} Even if the father had properly preserved the issue for appeal, the constitutional tight to confront witnesses is limited to criminal proceedings. In re

Court of Appeals of Ohio, Ninth Judicial District RECEIVED Ju; 03 100 q 12

BurehfIeld, 51 Ohio App. 3d 148, 154 (1988). Dispositional hearings in juvenile court are governed by Rule 34 of the Ohio Rules of 7uvetiile Procedure. Subpart

(B)(2) of that rule pr.ovides that, "[e]xce.pt as provided in division (1) of this rule, the court may admit evidence that is material and relevant, including, but not liniited to, hearsay, opinion, and documentary evidence:" Statements regarding

P,L,'s "health,,medical, social and cognitive conditions" are certainly "material and relevant" to the question of legal custody and a determination of what is in the child's best interest. See Juv. R. 34(B)(2).

{¶23} P.L.'s father has argued that the trial court incorrectly found that

Lorain County Children Services had made reasonable efforts to return P.L. to her parents' home. Section 2151.419(A)(1) of the Ohio Revised Code requires a dliild welfare agency to prove at a dispositional hearing that it has made "reasonable

efforts" to prevent removal or continued removal of the child from the home.

"When a trial court is considering whether the agency made reasonable efforts to

prevent the xeznoval, the issue is not whether the agency could have done more,

but whether it did enough to satisfy the reasonableness standard under the statute."

In re Mastache, Sth Dist. No. 2006CA00250, 2006-Ohio-6937, at 115. The statute

provides that "the child's health and safety shall be paramount" in determining

whether the agency made reasonable efforts. R.C. 2151.419(A)(1).

{1124} The trial court correctly noted that Lorain County Children Services

made reasonable efforts to enable P.L. to return to her parents' home. The court

Cour{ of tlppeals of Ohio, Ninth Judicial District RECEIVED e• JU;i 03 200$ 13 specifically found that the agency provided case planning and case management servic-es and also provided multiple xefernals for parenting classes and -mental health evaluations for the parents and developmental testing for P.L. The agency researched relative placement and monitored that placement, including progress made on recommendations specific to P:L:'s special needs. The agency social worker made multiple home visits to tite parents' Ohio home and later to .their house in West Virginia. The trial court correctly found that the agency made reasonable efforts to prevent the continued removal of P.L. from her parents' home, The father's assignment of error is overruled.

CONCLUSION

{¶25} P:L.'s -father's sole assignment of error is overruled because there was ample evidence from which the trial court coul.d conclude thatat was in P.L.'s best interdst to be placed in the legal custody of her half-brother and his wife and that the agency had made reasonable efforts to prevent the continued removal of the child from her parents' home. The judgment of the Lorain County Common

Pleas Court, Juven,ile Division, granting legal custody -of P.L. .to her -half-.brother and his wife is affirmed.

Judgment affirmed.

The Court finds that there were reasonable grounds for this appeal,

Court of Appeals of Ohio, Ninth Judicial District R-E_GEIVED Ju:Y 0 3 200 q -LCCS-Cottrell --APA Soto ZQ^i <

IN THE COLRT OF COMMON PLEAS JUVfiNILE DIVISION LORAIN COUNTY. OHIO

IN RE: ) CASENO. 05JC 10015

}

PEARLIE LIGHTIe'ER JUDGE DEBRA L. BOROS (MAGISTRATE ARREDONDO) ) ) JOURNALENTRY (MAGIS7RATE'S DECISION)

This matter came on for hearing on November 2, 2006 and January 5, 2007 on Lorain

County Children Services'Motiou for Further Dispositional Orders filed July 31, 2006.

The Court. based upon the evidence presented, makes the following findings:

1 All parties have been duly sened according to lam• and those expressing an interest were present for the hearing.

2. All parties have been advised of the nature of the proceedine and how their parental riehts are affected regarding the granting of legal custody or temporary custody to a parent or relative or temporary custody to Lorain County Children Services. The parties have further been advised of their right to counsel and their right to Court appointed counsel if indigent, together with the name and phone number of the court employee who can provide a"sSistance in arranging the prompt appointment of counsel for any party who is indigent. At this time, the status of representation for all parties is as follows:

Lorain County Children Services is represented by APA Soto. hQother, Sheila Weir, is represented by Attv. Gibbons. Father, David Weir, is representd by Atty. Tabitha Williams. The Guardian ad Litem, Fred Courtright, from Voices for Children, is not represented by counsel. Bruce and Katherine Lightner are not represented by counsel.

3. The child has previouslv been adjudicated neglected and dependent.

4. Lorain County Children Services made the followino reasonable efforts to enable the child to return home:

1. LCCS offered case planning and case management services. 2. LCCS provided referrals to the Nord Center and Bob Reitman. 3. LCCS made inonthly visits to the home of parents in West Virginia. 4. LCCS researched relative placement. 5. LCCS monitored the child's placement Aaith Bruce and Katherine Lightner. 6. LCCS arranged for developmental testing for the minor child.

These services did not prevent the removal from the home or enable the child to return home:

Parents have completed some of their case plan goals, but have failed to demonstrate a commitment to Pearlie. They moved to West Virginia and only visit the child once a month for a couple of hours. They have not demonstrated an understanding of the child's medical or developmental needs.

The Court further finds that the following problems initially caused the child to be placed outside the home:

Pearlie Lightner, DOB 3/21/02, is the minor child of mother, Sheila Weir, and father, David Weir. Pearlie was residing with mother and father who are married. Father also has a sixteen year old daughter, Linda Weir, who has also lived in the residence. Mother has tow adult children, one of whom lived in the residence along with his wife.

Lorain County Children Services (LCCS) had major concems as to the condition of the family's home. LCCS received a referral in April 2005 regarding the filthy environment of the residence. LCCS learned that there were piles of dirty dishes, food embedded in the carpet, trash throughout the home, and broken furniture. It was also reported that Pearlie slept with her mother and father in a bedroom created in a garage until LCCS boueht the family a bed for Pearlie. In addition, LCCS received reports that mother and father frequently had sex in front of Pearlie. The family also had up to nine cats, with one litter box, which resulted in animal feces being spread throughout the house. Pearlie's toys have been found in the bathroom amongst soiled sanitary napkins. It was

RECEIVEI) MAR 15 100 further reported that every adult in the home smoked. Pearlie had been observed to have blackened feet.

LCCS was also concerned as to mother and father's medical conditions. Mother has had multiple strokes. As a result, she has deficits in terms of her language abilities but has cliosen not to participate in rehabilitation. In addition, father has an arthritic condition. Both mother and father were taking prescription medications which were not securely kept out of Pearlie's reach. The concern was that these medical conditions in extremely poor supervision of Pearlie.

Mother and father were also having serious financial difficulties. It was reported to LCCS that mother and father were behind on their taxes and risked their utilities being disconnected due to nonpayment. Mother and father's income consisted of disability payment and $60 per month in food stamps. As a result, the family was planning to file for bankruptcy.

Pearlie's medical needs were also an issue. Pearlie was born premature and was involved with Help Me Grow until the age of two. Although Pearlie was current on her immunizations, LCCS learned that Pearlie did not receive routine care in terms of hygiene. Pearlie had head lice and fleas in her hair. Pearlie also had a rash between her legs at one point due to an accident which was not properly treated.

LCCS c,as also greatly concerned as to the likelihood that mother and father were a flight risk. A family meeting occurred on August 2, 2005 at LCCS and mother and father left early after becoming upset. It was reported to LCCS that mother and father were prepared to pack their belongings and move to West Virginia.

LCCS located an appropriate placement for Pearlie with her half-brother, Bruce Lightner and his wife, Katherine. A home study was completed and it was determined that they would be able to provide a safe and clean environment for Pearlie where her basic needs would be met. Mother and father agreed to allow Pearlie to reside there.

The minor child Pearlie was adjudicated a neglected and dependent child on October 26. 2005 and placed in the temporary custody of half-brother, Bruce Lightner and his wife, Katherine Lightner.

7. The Court further finds the following:

a. Parents, David and Sheila Weir, completed parenting classes with Bob Reitman, but failed to undergo psychological assessments through Nord. They purchased a house in West Virginia in September 2005 and moved in April 2006. They have been renovating the house to make it liveable and have made that their priority; major renovations were completed in lanuary 2007.

b. After PearIie was removed from their home and while parents were living in Ohio, they missed over half of their supervised visits with Pearlie. Since moving, they

RECEIVED MAR 15 200 -1

y'AP visit once/month for an hour or two, usually in conjunction writh a court hearing, and have stated that they cannot afford to visit more frequently. They missed a visit on the day of a court hearing (November 2, 2006) and did not visit at Christmas. During visits, father only interacts with Pearlie during the first few minutes- Parents speak to Pearlie by telephone twice a week.

c. At the time of her removal from the home, Pearlie's speech could not be understood and she had not met developmental milestones in her fine and gross motor skills and her social skills. She was found to bave respiratory problems and had at least seven cavities in her teeth.

e. Since being placed with the Lightaers, Pearlie's speech, motor skills and ability to interact with other children have markedly improved. She attends pre-school and is very particular about cleanliness and her appearance. She is functioning well at home and in school, and has bonded with the Lightners. The home is appropriate and the couple has adequate income to support Pearlie. Bruce and Katherine Lightner have requested that Pearlie be placed in their legal custody.

f Pearlie has chronic respiratory problems, and uses a breathing machine with two medications twice/day and takes a third oral medication. Her respiratory problems are aggravated by srnoke. Pearlie' "s parents have not demonstrated an understanding of Pearlie's respiratory problems. They both smoke and are reluctant to believe that stnokine around Pearlie is an issue. Mother stated she would not smoke around Pearlie "if she did have" respiratory problems; Father stated that he does not believe it is necessary for him to smoke outside but would set aside a room in the house for smoking.

g. Another couple is currently living in what parents indicate would be Pearlie's bedroom. They have not looked into getting a pediatrician for Pearlie and although they indicated that there are schools nearby, they have not checked into pre-school for Pearlie.

h. Father has a teenage daughter who was placed in the legal custody of an interested third party through Huron County Children Services in January 2007. Father did not attend the court hearings.

8. By a preponderance of the evidence, the Court finds that a grant of legal custody of the minor child, Pearlie Lightner, to Bruce and Katherine Lightner is in the best interest of the child.

IT IS THEREFORE ORDERED THAT IT IS FURTHER ORDERED that Legal Custody of the minor child. Pearlie Lightner, is granted to Bruce and Katherine Lightner.

IT IS FURTHER ORDERED that the parents may visit with Pearlie whenever they are in Lorain County, with at least a 48 hour advance notice to the Legal Custodians. Visits shall be monitored pursuant to the Responsibilities of Visitation Monitor attached hereto as Exhibit "A".

RECEIVED MAR 15 280 !- Said visits shall be at least three hours in length, or longer as the parents and Legal Custodians may agree,

Both parents are jointly and severally responsible for al1 medical, dental, optical, psychological, and counseling expenses for the child. They shall provide the lecal custodian with appropriate medical forms and cards necessary to utilize any insurance. If no medical insurance exists at this time but becomes available, the parents are ordered to immediately notify this Court in writing.

In the event of a change of address, no matter how brief such Iength of stay, the relocating party is ordered to promptly advise the Juvenile Clerk of courts in vtTiting with name, this case number and the new address.

In accordance with Amended Substitute House Bill 591, assistance of Lorain County Child Suppot-[ Enforcement Agency is hereadth ordered. The Obligees do hereby request the full sen•ices of the Child Support Enforcement Agency, N-D, for the collection and enforcement of this Court order.

It is further ordered that the school district of the Legal Custodians shall bear the cost of educating said child.

All until further order of the Court.

o z i / //;- ,0,/^C^f r//.r :^ NIAGISTRATE

RECEIVED MAR 15 200 i. The Court, having made an independent anal}'sis of the findines of fact, the issues and the

applicable law, hereby approves and adopts the magistrate's decision and orders it be entered as judgment as a matter of record. Pursuant to Juv. R. 40 (D)(7), and based upon the findings of fact

herein, the Court adopts the magistrate's decision as an interim order for 28 days from the date of

this entry, immediate relief being justified. Thereafter, the interim order shall automatically

become final unless timely objections are filed and the Court modifies or rejects this order.

Date 3 q v JUDGE

2n_I crn:-%,.. . .,_ .. REGUIEC? t4RE,,_ 5?1A ^ , RESPONSIBILITIES FOR MONITORED VISITATION

1. The monitor shall be kept informed of the visiting parent's plans and the whereabouts of the child/ren, including the names of any third party participants, during the visitation experience and visitation site.

2. If the monitor feels that the plans are inappropriate for the child/ren, the visiting parent shall by request of the monitor:

A. Change his/her plans accordingly B. Delay plans until after visitation C. Leave the child/ren in the care of the monitor.

3. If concerns or difficulties occur with the care of the child/ren during a visitation period, the visiting parent shall contact the monitor.

4. If-dif-f-i-c-u1-t-i-e-s---os-s-u-r- whi-c-h-r-equire the termination of the visit, the monitor should end the visit and return the child/ren to the residential parent. In this case, the monitor must notify the department on the next working day following the visit.

5. It is requested that the monitor contact the child/ren and/or parent at least once daily by either going to the visitation site, by talking personally with the child/ren and/or parent by telephone, or having the parent and child/ren report to the monitor for observation.

RECEIVED MAR j. D 200 1 - LCCS-Cottrell APA Soto 1N3 FAt - 9 FM 4 02 VFC - Courtright -Atty. D. Gibbons Atty. T. VJilliams fi5avid and Sheila Weir - 4005; Jacob Street, VJheeltng VTV 26007 'Pi"ruce and Katherine Lightner - 290 Washington Ave., Apt. C-110, Elyria, OH 44035 GSEA 5

JOURNAL F.1S'TRY COURT OF COMMON PLEAS Lorain County, Ohio

Ronald ?.labakowski, Clerk

Case No, 0>7C 1001 5

In the Matter of:

PEARLIE LIGHTNER

Date: March S. 2007 J.E. Vol. Page

Hearing had. Leea1 Custodv of the minor child, Pearlie Liahtner. is herebv sranted to

Bruce and Katherine Liehtner. CSEA is ordered to direct all navments on behalf of the minor

child to Bruce and Katherine Lishtner. 290 Vdashinaton Ave.. A^t. C-110. Elvria. OH 44035.

See Journal. All until further order of the Court.

RECEIVED MAR 15 200 -LCCS- Cottrell " T. -APA Nicole Soto ;. '4 Voices for Children - Courtright f. Attorney Dan Gibbons -Attorney Tabitha Williams -David and Sheila Weir: 4005 Jacob Street, Wheeling, WV 26007 Bruce and Katherine Lightner: 290 Washington Avenue, Apt. C-110, Elyria, Ohio 44035

~~IN RE: ) CASE NO. 05JC10015 ) ) ) PEARLIE LIGHTNER ) JUDGE DEBRA BOROS ) ) ) ) ) JOURNAL ENTRY ) ) This matter came on for hearing before Magistrate Arredondo on November 2,~~

~~2006 and January 5, 2007 on Lorain County Children's Services Motion for Further~~

~~Dispositional Orders filed July 31, 2006. An Objection to the Magistrate's Decision was~~

~~filed and supplemented. The parties and counsel waived oral hearing on the Objection~~

~~and requested that the Court rule on the briefs submitted.~~

~~Upon review of the record, briefs, exhibits and the Magistrate's Decision, the~~

~~Court finds as follows:~~

~~I. The Magistrate was correct in finding that the child has previously been adjudicated neglected and dependent.~~

2. The Magistrate did not err in finding LCCS made the following reasonable efforts to enable the child to return home: LCCS offered case planning and case management services; LCCS provided referrals to the Nord Center and

RECEIVED 5^° o 32AU;^ I Bob Reitman; LCCS made monthly visits to the home of the parents. in West Virginia; LCCS researched relative placement; LCCS monitored the child's placement with Bruce and Katherine Lightner; LCCS arranged for developmental testing for the minor child.

3. The Magistrate did not err in fmding that LCCCS inade referral for the parents to complete parenting education classes through Mr. Bob Reitman. The testimony of Ms. Cottrell supported the Magistrate finding that a referral was made on four separate occasions. Tr. Pg. 7. LCCS continued to have concern regarding both parents failure to integrate what they leamed in the classes. TR. Pg. 8.

4. The Magistrate did not err in fmding that LCCS provided a referral to the Nord Center. Testimony by Ms. Cottrell supported the proposition that LCCS made referrals for mental health services through the Nord Center. Per Father's testimony, he could have completed the psychological assessment through the Nord Center and could have taken time to do so during a visit to Ohio. Tr. Pg. 500.

5. The Magistrate did not err in finding that LCCS made monthly home visits to Mother and Father in West Virginia. Ms. Cottrell provided testimony that she had been to the home repeatedly. Although Ms. Cottrell was unable to recall the exact dates of the months of her visit to West Virginia, she was able to articulate that she consistently visited the Weir's home. Tr. Pgs. 139-140:

6. The Magistrate did not err in finding that while they resided in Ohio, David and Sheila Weir missed over half of their supervised visits with Pearlie. While visitation was ongoing, David Weir interacted with Pearlie for mere minutes; David and Sheila Weir spoke with Pearlie via telephone only twice a week. Since the move to West Virginia, Ms. Cottreil indicated that the parents visit once a month for an hour or two, usually in conjunction with a court hearing, and that they missed a visit on the date of a court hearing and failed to visit on Christmas. Tr. Pg. 69-70. Furthermore, from Apri12006 to November 2, 2006, the parents failed to make any trips in order to visit with Pearlie. Tr. Pg. 69. Further, the parents failed to call ahead to cancel their missed visits. Tr. Pg. 70.

7. The Magistrate did not err in finding that at the time of Pearlie's removal from David and Sheila Weir's home, Pearlie could not be understood and she was lacking in developmental milestones pertaining to her fine and gross motor skills. Ms. Cottrell indicated that the concern at the time of Pearlie's assessment was that her delays were due to enviromnental circumstances. Tr. Pg. 179 Ms. Cottrell fiuther testified that as a result of an evaluation of Pearlie through Spring Valley, it was determined that Pearlie had fine and gross motor deficits for her age, that she was lacking in developmental milestones

~~RECEIVED ^^ ^ % Z%7 and that her eye-hand coordination was limited. Neither parent introduced evidence to contradict this testimony.~~

8. The Magistrate did not err in finding that Pearlie has shown improvement since her placement with Brace and Kathy. Pearlie's speech, motor skills and social skills have markedly improved. Ms.Cottrell testified that Pearlie's speech has improved and that Pearlie has progressed developmentally and academically. Tr. Pg. 80.

9. The Magistrate did not err in finding that Pearlie has respiratory problems, and uses a breathing machine with two medications twice daily and takes a third medication orally. Pearlie's respiratory problems are aggravated by smoke. The Magistrate did not err in finding that David and Sheila Weir failed to demonstrate an understanding of Pearlie's respiratory problems as exemplified by testimony of David who testified that he does not believe that smoking in front of Pearlie would pose a problem for the child. Tr. Pg. 507- 508.

10. The Magistrate did not err in finding that another couple is currently living in what David and Sheila Weir indicate would be Pearlie's bedroom. The Weirs have not looked into securing the services of a pediatrician for Pearlie and although they indicated that there are schools nearby, they have failed to locate a preschool for Pearlie.

11. The Magistrate did not err in finding that by a preponderance of the evidence, that a grant of legal custody of the minor child, Pearlie Lightner, to Bruce and Katherine Lightner is in the best interest of the child.

~~IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Legal Custody of the minor child, Pearlie Lightner, is granted to Bruce and Katherine Lightner.~~

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the parents may visit with Pearlie whenever they are in Lorain County, with at least a 48 hour advance notice to the Legal Custodians. Visits shall be monitored pursuant to the Responsibilities of Visitation Monitor. Said visits shall be at least three hours in length, or longer as the parents and Legal Custodians may agree.

Both parents are jointly and severally responsible for all medical, dental, optical, psychological, and counseling expenses for the child. They shall provide the legal custodian with appropriate medical forms and cards neoessary to utilize any insurance. If no medical insurance exists at this time but becomes available, the parents are ordered to immediately notify this Court in writing.

RECEIVED Sz° 0 3 200? In the event of a change of address, no matter how brief such a length of stay, the relocating party is ordered to promptly advise the Juvenile Clerk of Courts in writing with name, this case number and the new address.

In accordaince with Amended Substitute House Bill 591, assistance of Lorain County Child Support Enforcement Agency is herewith ordered. The Obligees do hereby request the full services of the Child Support Enforcement Agency, IV-D, foa' the collection and enforcement of this Court Order,

~~If is further ordered that the school district of the Legal Custodian shall be costs of educating said child.~~

~~All until further order of the Court.~~

~~9/2 D /01~~

~~he+rph\' cAr;ifv this to he a true ?'^;; cfr`iti0; + conk, of th.e origina! -Q^l if!e in this office.~~

~~Deputy RECEIVED SE° 0 3 200-7~~