In re A.L. , 2021 Ohio 1767 ( 2021 )

[Cite as In re A.L., 2021-Ohio-1767.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN RE: :
A.L. : CASE NO. CA2020-12-090
: OPINION
5/24/2021
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 18-C000209
Buckley King LPA, Dalma C. Grandjean, James D. Miller, One South Main Street, Suite
1590, Dayton, Ohio 45402, for appellant
A. Aaron Aldridge, 130 E. Mulberry Street, Lebanon, Ohio, 45036, for appellee
B.L., pro se
HENDRICKSON, J.
{¶1} Appellant, C.P.W. IV ("Father") appeals from a decision of the Warren County
Court of Common Pleas, Juvenile Division, denying his motion for legal custody of his
daughter and granting legal custody of the child to appellee, R.M., the child's paternal
grandmother ("Paternal Grandmother"). For the reasons that follow, we affirm the juvenile
court's decision.
{¶2} A.L., born November 7, 2014, is the daughter of Father and B.L. ("Mother"),
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who are unmarried. On August 20, 2018, Paternal Grandmother filed a complaint for legal
custody of A.L. in the juvenile court. Paternal Grandmother alleged that Mother was
homeless and abusing drugs and that Father was in the United States Marine Corps and
stationed in North Carolina. The juvenile court placed A.L. in the emergency temporary
custody of Paternal Grandmother and subsequently awarded Mother supervised parenting
time with the child.
{¶3} On August 28, 2019, the parties resolved Paternal Grandmother's complaint
for legal custody by entering into an "Agreed Entry." Pursuant to the Agreed Entry, Mother,
Father, and Paternal Grandmother "agree[d] to share joint custody of the minor child." The
agreement further provided that "[e]ffective June 1, 2019, both [Paternal Grandmother] and
[Mother] shall be the residential and legal custodians. [Paternal Grandmother] shall be the
residential custodian for school purposes." Under the terms of the agreement, A.L. resided
with Paternal Grandmother, with Mother being granted supervised parenting time with the
child for four hours one day a week for four weeks. Thereafter, Mother's parenting time
would gradually increase to unsupervised overnight visits, contingent upon Mother
"engag[ing] and complet[ing] drug treatment, maintain[ing] a residence, refrain[ing] from the
use of illegal drugs and provid[ing] clean drug screens, and maintain[ing] employment or
full-time education." The agreement further provided that Father, who was still in the military
and residing in North Carolina, was to have parenting time as agreed upon between himself
and Paternal Grandmother. The Agreed Entry was adopted by the juvenile court.
{¶4} The "joint custody" arrangement lasted approximately three weeks before
Paternal Grandmother filed a Motion to Terminate Joint Custody, claiming that Mother was
not abiding by the terms of the Agreed Entry. Paternal Grandmother sought legal custody
of the child. Mother and Father subsequently filed competing motions for legal custody of
A.L.
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{¶5} A hearing on the motions was held before a magistrate on August 6, 2020. At
this time, Paternal Grandmother indicated her support for Father's motion for legal custody.
However, Paternal Grandmother moved forward with her own motion for legal custody as
an alternative, in case Father's motion was denied. The magistrate heard testimony from
Mother, Father, Paternal Grandmother, Paternal Grandfather, Maternal Grandmother, one
of Mother's friends, and the Warren County Children's Services ("WCCS") caseworker who
had been assigned to A.L.'s case. At the conclusion of the hearing, the magistrate took the
matter under advisement.
{¶6} On August 11, 2020, the magistrate issued a decision that terminated the joint
custody agreement, denied Mother's and Father's motions for legal custody, and granted
Paternal Grandmother's motion for legal custody of A.L. In doing so, the magistrate noted
that the parties' August 28, 2019 Agreed Entry constituted a contractual relinquishment of
exclusive custody of A.L. by her parents, thereby forfeiting Mother's and Father's paramount
right to custody of the child. Because the parties previously agreed to give Grandmother
"joint custody" of A.L., and that agreement was adopted by the court, the magistrate found
that the "parental unsuitability [test] d[id] not apply to this case" and that "the only analysis
required [was] whether a modification to the prior custody order [was] in the child's best
interest."
{¶7} In considering the best interest factors set forth in R.C. 3109.04(F)(1), the
magistrate noted that the WCCS caseworker felt it was in A.L.'s best interest for Paternal
Grandmother or Father to be awarded legal custody as both had interacted properly with
the child and made appropriate decisions for the child. With the exception of overnight visits
and trips, A.L. had resided exclusively with Paternal Grandmother for two years, and these
years represented the "only stable period of the child's life." A.L. was well adjusted to
Paternal Grandmother's home, had significant relationships with her paternal grandparents,
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maternal grandparents, and Mother, and was engaged in counseling in Ohio. The
magistrate expressed concern about the disruption of these relationships as a result of
uprooting A.L. and relocating her to North Carolina to live with Father. The magistrate
ultimately concluded it was in A.L.'s best interest for Paternal Grandmother to have legal
custody of the child, stating "[f]or the first time in this child's life she has stability and the
Court is not willing to disrupt that stability." Mother and Father were granted parenting time,
with Father's parenting time occurring "by agreement of Father and Paternal Grandmother
at any time that does not conflict with Mother's parenting time." Father was also given eight
consecutive weeks of parenting time during A.L.'s summer break from school and one week
of parenting time during A.L.'s winter break.
{¶8} Father objected to the magistrate's decision, arguing that (1) it was against
the manifest weight of the evidence not to grant him full legal custody of A.L., (2) the
magistrate violated the Military Uniform Services Act in finding him unable to be the
residential parent based on his military status, (3) he did not permanently give up his
parenting rights when he agreed for Paternal Grandmother to temporarily care for A.L., and
(4) the magistrate erred by not permitting him daily phone calls with A.L. when the child was
in the care of Paternal Grandmother.
{¶9} On November 18, 2020, the juvenile court issued a decision overruling in part
and sustaining in part Father's objections. The juvenile court sustained Father's objections
as it related to his ability to have telephone contact with A.L., finding that "Father is entitled
to daily phone contact with the minor child as agreed upon by Father and Paternal
Grandmother." The court denied Father's remaining objections, finding there was no merit
to Father's claim that the magistrate had violated the Military Uniform Services Act and that
the denial of legal custody to Father and the award of legal custody to Paternal
Grandmother was not against the manifest weight of the evidence. The court further found
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that by agreeing to designate Paternal Grandmother as a legal custodian in the Agreed
Entry, "Father relinquished his primary right to sole custody, and that act eliminate[d] the
need to consider Father's unsuitability for this custody proceeding." The court modified the
magistrate's decision to permit daily telephone contact between Father and A.L., but
otherwise approved and adopted the magistrate's decision.
{¶10} Father timely appealed, raising the following as his sole assignment of error:
{¶11} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW BY AWARDING LEGAL CUSTODY OF THE MINOR CHILD, A.L., TO
A NON-PARENT RELATIVE.
{¶12} Father argues the juvenile court applied the wrong legal standard in denying
his motion for legal custody, contending that rather than a "best interest analysis" the
juvenile court was required to apply a "parental suitability analysis." Father asserts that the
August 28, 2019 Agreed Entry stating that Paternal Grandmother had "joint custody" and,
with Mother, was the "residential and legal custodian" of A.L., did not relinquish his natural
parenting rights to Paternal Grandmother as that was not his intention in agreeing to joint
custody. He contends that utilizing the "parental suitability analysis," he should have been
awarded legal custody as the record "clearly indicates that [his] attributes as a parent can
be nowhere near the level necessary to find [him] 'unsuitable.'"
{¶13} R.C. 2151.23(A)(2) grants juvenile courts exclusive original jurisdiction "to
determine the custody of any child not a ward of another court of this state." The juvenile
court is to exercise its jurisdiction in child-custody matters in accordance with R.C. 3109.04.
See R.C. 2151.23(F)(1).
{¶14} Generally, decisions concerning child custody matters rest within the sound
discretion of the juvenile court, and "[w]here an award of custody is supported by a
substantial amount of credible and competent evidence, such an award will not be reversed
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as being against the weight of the evidence by a reviewing court." Bechtol v. Bechtol, 49
Ohio St.3d 21 (1990), syllabus. See also In re A.F., 12th Dist. Butler No. CA2019-01-005,
2019-Ohio-4627, ¶ 19. The discretion that a juvenile court enjoys in custody matters
"'should be accorded the utmost respect, given the nature of the proceeding and the impact
the court's determination will have on the lives of the parties concerned.'" In re J.M., 12th
Dist. Warren No. CA2008-12-148, 2009-Ohio-4824, ¶ 17, quoting Miller v. Miller, 37 Ohio
St.3d 71, 74 (1988). However, while "a trial court has broad discretion in determining
custody matters, a court has no discretion to apply an improper legal standard in a custody
dispute between a parent and a nonparent and, therefore, such 'process flaws' are reviewed
on appeal without deference to the trial court." Anderson v. Anderson, 12th Dist. Warren
No. CA2009-03-033, 2009-Ohio-5636, ¶ 15.
{¶15} "[T]he overriding principle in custody cases between a parent and nonparent
is that natural parents have a fundamental liberty interest in the care, custody, and
management of their children." Hockstock v. Hockstock, 98 Ohio St.3d 238, 2002-Ohio-
7208, ¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982) and In re
Murray, 52 Ohio St.3d 155, 157 (1990). As a result, the Ohio Supreme Court has held that
in a custody dispute between a parent and nonparent, a trial court
may not award custody to the nonparent without first making a
finding of parental unsuitability – that is, without first determining
that a preponderance of the evidence shows that the parent
abandoned the child, that the parent contractually relinquished
custody of the child, that the parent has become totally
incapable of supporting or caring for the child, or that an award
of custody to the parent would be detrimental to the child.
In re Perales, 52 Ohio St.2d 89 (1977), syllabus. See also Masitto v. Masitto, 22 Ohio St.3d
63, 65 (1986) (noting that in disputes between a parent and a non-parent, parents who are
"suitable" persons have a "paramount" right to the custody of their minor children unless
they forfeit that right by contract, abandonment, or by becoming totally unable to care for
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and support those children).
{¶16} "[I]f a parent contracts away custody rights of his minor child, he may be
considered to have forfeited his right to custody of such child, and may accordingly be found
to be unsuitable for custody." Id., citing Perales at 97. As the supreme court noted,
"[p]arents may undoubtedly waive their right to custody of their children and are bound by
an agreement to do so." Id., citing Rowe v. Rowe, 58 Ohio Law Abs. 497, 499 (2d
Dist.1950). Furthermore, while Ohio law does not recognize a parent's attempt to enter into
a statutory "shared parenting" arrangement with a nonparent as the nonparent does not fall
within the definition of "parent" under the state's current statutes, "a parent may
[nonetheless] voluntarily share with a nonparent the care, custody, and control of his or her
child through a valid shared-custody agreement." In re Mullen, 129 Ohio St.3d 417, 2011-
Ohio-3361, ¶ 11, citing In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, ¶ 35, 50. "The
essence of such an agreement is the purposeful relinquishment of some portion of the
parent's right to exclusive custody of the child." Id. "A shared-custody agreement
recognizes the general principle that a parent can grant custody rights to a nonparent and
will be bound by the agreement." Id., citing Bonfield at ¶ 48. See also Masitto, 22 Ohio
St.3d at 65. "A valid shared-custody agreement is reviewed by the juvenile court and is an
enforceable contract subject only to the court's determinations the custodian is 'a proper
person to assume the care, training, and education of the child' and that the shared-legal-
custody arrangement is in the best interests of the child." Mullen at ¶ 11, quoting Bonfield
at ¶ 48, 50. See also Masitto at 65-66.
{¶17} "[T]he determination of whether a 'parent relinquishes rights to custody is a
question of fact which, once determined, will be upheld on appeal if there is some reliable
credible evidence to support the finding.'" Mullen at ¶ 15, quoting Masitto at 66. If a parent
has contractually relinquished custody of a child to a nonparent, then in a subsequent
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custody proceeding between the parent and the nonparent, the general rule is that custody
will not be modified unless "necessary to serve the best interest of the child." Masitto at 65,
citing R.C. 3109.04(B). See also Redmond v. Davis, 7th Dist. Columbiana No. 14 CO 37,
2015-Ohio-1198, ¶ 39. "When an original custody award has already been made, the
subsequent contest does not require application of the suitability test." Id. at ¶ 48.
{¶18} In Masitto, the supreme court found that a father's consent to the probate
court's appointment of his child's maternal grandparents as guardians for the child and the
incorporation of this guardianship order in a decree of divorce in domestic relations court
constituted a contractual relinquishment of the father's paramount right to custody of his
daughter. The court found that the parental unsuitability test was not the proper standard
when the father sought a change in custody, stating, "Under all the facts here, we hold that
by consenting to the guardianship and divorce decree, the father forfeited his natural rights
of custody of his daughter, making the child's best interest the appropriate test for a change
of custody." (Emphasis added.) Masitto at 66.
{¶19} Similarly, in Redmond, 2015-Ohio-1198, the Seventh District Court of Appeals
found that an agreed order for shared custody between a parent and a nonparent was
sufficient to contractually relinquish the parent's paramount right to custody. Id. at ¶ 50.
There, a mother entered into a shared-parenting arrangement with her boyfriend, who was
not her child's biological father, and the agreement was adopted by the juvenile court. The
court found that "[w]here there is a prior order granting shared custody to a non-parent by
incorporating that agreement, the parent does not have a paramount right to custody. A
finding of parental unsuitability is not required in order to refuse the parent's later request
for sole custody." (Emphasis added.) Id. at ¶ 51.
{¶20} The present case is similar to Masitto and Redmond in that Father
contractually relinquished exclusive custody of A.L. by entering into a shared custody, or
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"joint-custody," agreement. The Agreed Entry, which was adopted by the juvenile court,
specifically designated Paternal Grandmother, along with Mother, as a "residential and legal
custodian" of A.L. Though Father contends the joint custody arrangement was not intended
to be permanent but rather was meant to address the "immediate situation" caused by
Mother's drug use and homelessness coupled with his location in North Carolina for military
service, there is nothing in the Agreed Entry suggesting that the arrangement was
temporary or had anything to do with Father's circumstances of being in the Marines and
stationed in North Carolina. The Agreed Entry did not provide Paternal Grandmother with
temporary custody, but rather gave her legal custody of A.L.1
{¶21} As we previously recognized, whether a parent has relinquished his or her
right to custody is a "question of fact which, once determined, will be upheld on appeal if
there is some reliable, credible evidence to support the finding." Masitto, 22 Ohio St.3d at
66. Here, there is reliable, credible evidence to support the juvenile court's finding that the
Agreed Entry was a relinquishment of Father's paramount right to custody. Therefore, the
juvenile court did not err in resolving the parties' competing motions for legal custody of the
child utilizing a best interest analysis.
1. Compare the facts in the present case to those in Hockstock v. Hockstock, 98 Ohio St.3d 238, 2002-Ohio-
7208, wherein a mother agreed to an award of temporary custody of her child to the child's maternal
grandparents. There, the agreement specifically stated that maternal grandparents were being awarded
"temporary legal care and custody" of the child "for a period of six (6) months" while the mother took steps to
create a more stable living environment for the child. Id. at ¶ 4. When the six months expired, the parties
entered into another agreement continuing the same terms and conditions as the original. Id. at ¶ 6. Mother
then took steps to regain custody of her child and opposed the maternal grandparents' motion for legal
custody. Id. at ¶ 7-11. The case made its way before the Ohio Supreme Court, which held that a finding of
parental unsuitability was required as
there is no evidence that [mother] ever agreed to give the [maternal
grandparents] legal custody of her child. [Mother] merely entered into an
agreement whereby the [maternal grandparents] were given temporary
custody of the child, and it is undisputed in the record that this temporary
custody was not a grant of legal custody. The record is also undisputed that
[mother] resisted all efforts by the [maternal grandparents] to gain legal
custody of the child * * *.
Id. at ¶ 33.
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{¶22} We further find that the juvenile court did not abuse its discretion in awarding
legal custody of A.L. to Paternal Grandmother following its consideration of the best interest
factors set forth in R.C. 3109.04(F)(1). The best interest factors include, but are not limited
to, (1) the wishes of the child's parents, (2) the child's wishes, as expressed to the court in
chambers, (3) the child's interactions and interrelationships with parents, siblings, and other
persons who may significantly affect the child's best interests, and (4) the child's adjustment
to home, school, and community, (5) the mental and physical health of all persons involved
in the situation, (6) the parent more likely to honor and facilitate visitation, (7) whether one
parent has denied the other of parenting time, (8) whether child support orders have been
followed, and (9) whether either parent has established or is planning to establish a
residence outside of Ohio. R.C. 3109.04(F)(1)(a)-(j).
{¶23} As the juvenile court and magistrate noted, A.L. is loved by many people and
she is bonded to Mother, Father, Paternal Grandmother and to her extended family on both
her maternal and paternal sides. Though Mother has not created a stable environment for
A.L., as evidenced by the fact that she has moved numerous times since 2018, failed to
hold a steady job, and has not completed case plan objectives set forth by WCCS, the
record nonetheless discloses that A.L. has a close connection to her Mother. Mother has
exercised her supervised parenting time with the child and the child enjoys spending time
with Mother.
{¶24} A.L. is also bonded with Father. Though Father joined the Marines in July
2016 and has been stationed in North Carolina for a number of years, Father has
maintained constant contact with A.L. Father has daily phone and video calls with A.L. and
he makes at least two trips to Ohio per year to spend his leave time with A.L. Additionally,
Father spends time with A.L. when his parents take A.L. to North Carolina to visit with Father
and Father's family. A.L. has spent as many as ten consecutive days visiting Father in
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North Carolina. A.L. enjoys spending time with her stepmother, stepsister, who is a grade-
level ahead of her, and with her half-sister.
{¶25} A.L. also has a close connection to Paternal Grandmother and, as the juvenile
court noted, Paternal Grandmother has provided a stable home for A.L. In fact, Paternal
Grandmother has provided "the most, and only, stable period of the child's life." While in
Paternal Grandmother's care, A.L. has been afforded the opportunity to see her extended
family members. Paternal Grandfather, who is divorced from Paternal Grandmother, plays
an active role in A.L.'s life. In addition to spending time with A.L. two to three times a week
and taking A.L. to her various extracurricular activities, Paternal Grandfather frequently
supervises Mother's visitations with the child.
{¶26} By all accounts, A.L. is doing well in Paternal Grandmother's care. She
attended a preschool in Mason, Ohio and is set to be enrolled in a private Catholic school
for kindergarten. A.L. has taken swim lessons and is involved in gymnastics and dance.
She attends regular doctor and dentist appointments. She is also enrolled in counseling
and has been since the fall of 2019, when she disclosed that one of Mother's boyfriends
sexually molested her. Following the event with Mother's boyfriend, A.L.'s behavior
changed; she started having trouble with boundaries and having attachment issues with
men. A.L. was seeing her counselor weekly, but the frequency of her visits slowed down
due to the coronavirus pandemic. As the juvenile court noted, there are "significant
concerns for the mental health of the child," given that she has had "to deal with Mother's
mental health issues, a lack of stability in housing, the fallout of Mother's interrelationship
problems, and now is the victim of sexual abuse."
{¶27} The fact that the parties reside in separate states was also a relevant factor
the juvenile court considered. The record indicates Father will continue to reside in North
Carolina for at least the next year and a half as he recently reenlisted in the Marines for
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another two years. The remainder of A.L.'s family members reside in Ohio, with Paternal
Grandmother living in Oregonia, Mother living in Cincinnati, and maternal grandparents
residing in Loveland. While the juvenile court had "no concerns that either Father or
Paternal Grandmother would follow court orders" regarding parenting time, the court was
nonetheless concerned about the effect that a move to North Carolina would have on A.L.
The court noted that "the past two (2) years in Paternal Grandmother's home has been the
most, and only, stable period of the child's life. Moving the child would disrupt clear bonds
between the child and multiple people, including specifically Mother, Paternal Grandmother,
Paternal Grandfather, and Maternal Grandmother." Though Father would support A.L.'s
continued contact with these family members, A.L.'s interactions with her family members
would be disrupted, their bonds interfered with, and the child's sense of normalcy impacted.
Additionally, as the juvenile court noted, "although counseling services would be available
to the child in North Carolina, a move would result in the disruption of the present counseling
services" and would therefore have an effect on A.L.'s mental health.
{¶28} Finally, the juvenile court considered Father's claim that Paternal
Grandmother caring for A.L. was only meant to be temporary. Though Paternal
Grandmother and Father indicated Paternal Grandmother only took a "front seat role" in
caring for A.L. because of the emergency created by Mother's homelessness and abuse of
drugs while Father was out of state due to his enlistment in the Marines, the court noted
that the Agreed Entry awarded Paternal Grandmother legal custody of A.L., not temporary
custody. Nothing had changed in Father's circumstances between the time he entered into
the Agreed Entry and the time he moved for custody – he was still living out of state and
was enlisted in the military.
{¶29} Given the record before us, we find that the juvenile court did not abuse its
discretion in denying Father's motion for legal custody. The court's determination that it
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was in A.L.'s best interest for Paternal Grandmother to have legal custody of the child is
supported by a substantial amount of competent and credible evidence. Father's sole
assignment of error is, therefore, overruled.
{¶30} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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