B.A. v. C.C. , 2021 Ohio 3719 ( 2021 )

[Cite as B.A. v. C.C., 2021-Ohio-3719.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
B. A. JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021 AP 02 0006
C. C.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2019 CC
00080
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 18, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. ONG DAN GUINN
201 North Main Street GUINN LAW FIRM, LLC
Uhrichsville, Ohio 44683 232 West 3rd Street, Suite 312
Dover, Ohio 44622
Tuscarawas County, Case No. 2021 AP 02 0006 2
Wise, John, P. J.
{¶1} Appellant C.C. appeals the decision of the Tuscarawas County Court of
Common Pleas, Juvenile Division, which granted legal custody of Appellant’s minor
children. Appellee is B.A., the minor children’s paternal grandmother. The relevant facts
leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and J.A. are the biological parents of minor children H.A. and H.A.
Appellee is paternal grandmother of the minor children.
{¶3} On April 2, 2019, Appellee filed a Complaint for Custody of the minor
children with the trial court. Appellee moved the trial court to designate her as legal
custodian of the minor children.
{¶4} On September 21, 2020, Appellee’s Complaint proceeded to trial.
{¶5} At trial Mary Beth Markley, a supervisor of community counseling at Ohio
Guidestones, testified Appellant completed parenting classes starting in June of 2019.
Markley continued she remembered nothing negative about Appellant. She only
remembered her attendance at the program.
{¶6} Next, Samantha Barone, a probation officer with the Tuscarawas County
Southern District Court, testified Appellant was on probation in 2019 for a disorderly
conduct charge. As part of probation, Appellant was required to complete random drug
screens, participate in review hearings, complete thirty hours of community service, and
complete a mental health evaluation. Appellant completed her one-year probation in four
months.
Tuscarawas County, Case No. 2021 AP 02 0006 3
{¶7} On cross-examination, Barone noted she never observed Appellant with her
children. Barone also noted that the disorderly conduct charge had been amended from
a child endangerment charge.
{¶8} Next, Appellant testified H.A. was born on November 16, 2016, and H.A.
was born on October 18, 2018. J.A. is the father of both minor children.
{¶9} In early 2019, the minor children were placed with Appellee by Job and
Family Services because Appellant was arrested for endangering her children by leaving
marijuana within reach of the children. Appellant confirmed she was under the influence
of marijuana when her children were removed.
{¶10} At the time of removal, one child was current on doctor’s appointments and
vaccines and one was behind. Appellee followed through on medical care for the children,
and both are current on doctor’s appointments and vaccinations. Appellee keeps
Appellant apprised of medical updates with her children.
{¶11} Appellant has the children from Tuesday at 9 a.m. through Thursday at noon
each week. On Wednesdays, when Appellant is at work, Appellant’s mother watches the
children.
{¶12} Appellant has been living with her parents since April of 2019, when she
was evicted from her apartment for drugs.
{¶13} Appellant works thirty-four hours a week and pays Appellee child support.
On top of the child support, Appellee has refused any other monetary support from
Appellant.
{¶14} Appellant testified her children are developing well in Appellee’s care. She
has expressed concern that sometimes the children have greasy hair and dirt behind their
Tuscarawas County, Case No. 2021 AP 02 0006 4
ears. Appellant testified she would like her children back, and that Appellee should get
visitation rights.
{¶15} Next, J.A. testified his children are developing well while living with
Appellee. They are learning more and are better behaved.
{¶16} Joyce Brown then testified she worked for forty years at Harrison County
Job and Family Services in administration. Brown is friends with Appellee. Appellee has
contacted Brown to baby sit the minor children.
{¶17} Brown testified the children are developing well under Appellee’s care and
that the children are well adjusted to living with Appellee.
{¶18} After Brown testified, the court drug screened both Appellant and J.A. J.A.
tested positive for THC and Appellant was negative for all substances.
{¶19} Next, Rindy Brace, a former children services worker at the Welfare
Department in Harrison County, testified. Brace and Appellee became friends while
working together. Brace met Appellant’s minor children in 2019. When she met the
children, Brace noted the older of the children, H.A., was developmentally behind with
speech and language. Since that time, Brace noted H.A.’s language skills have improved
dramatically, even though he can be difficult to understand at times. Brace continued that
Appellee relates well to the minor children, and the children are safe and healthy living
with Appellee. Brace does not know Appellant and has never observed Appellant with her
minor children.
{¶20} Next, Appellee testified the minor children are currently living with her.
Appellee confirmed her son, J.A., does not reside with her. Appellee was previously
employed with Harrison County Department of Job and Family Services and then was
Tuscarawas County, Case No. 2021 AP 02 0006 5
hired by the State as Acting Assistant District Director for the Canton District Office.
Appellee retired on July 1, 2008, and is sixty-five years old.
{¶21} Appellee described H.A. as being behind developmentally, looked
unhealthy, and had a very restrictive diet when the minor children began living with her.
Appellee discovered Appellant and J.A. were giving H.A. spoiled milk to drink. Appellee
said she has worked with H.A. on vocabulary, counting, reading, playing outside, and his
colors. When the children started living with Appellee, H.A. needed a flu shot, and
Appellee took him to get a flu shot. H.A. is hard to understand and was recommended for
speech therapy a week before the hearing. Appellee also testified the younger of the two
minor children, H.A. is developmentally on track. Appellee believes that both children
have bonded with her.
{¶22} On cross-examination, Appellee said she received the minor children
because of criminal issues with Appellant. Appellee admitted that she was worried about
having a relationship with the minor children after Appellant and J.A. broke up. Appellee
continues that she does not know if Appellant is a good parent, as she has not seen her
with her minor children.
{¶23} Appellant again took the witness stand and testified she started a
relationship with J.A. in December of 2015. Appellant began residing with Appellee in
early 2017 for financial reasons. Appellant testified that while living with Appellee,
Appellee was controlling. Appellee would try to take over while Appellant was feeding
H.A. In October of 2017, Appellant and J.A. moved out because the stress became too
much.
Tuscarawas County, Case No. 2021 AP 02 0006 6
{¶24} Appellant testified that she is aware of H.A.’s developmental delays.
Appellant helps him by practicing ABCs, numbers, and vocabulary. Appellant stated that
both she and J.A. have learning disabilities.
{¶25} In November of 2018, Appellant’s relationship ended with J.A., but J.A.
continued living with Appellant and the children. In early 2019, there was a domestic
violence incident, and J.A. left the residence.
{¶26} Appellant testified that after J.A. left the residence, she continued to let
Appellee see the children, even watching them for two days. Appellant started dating
Cody Richmond after J.A. moved out. During their relationship he was using marijuana,
but she was not aware if he used drugs around her kids. Richmond left Appellant when
her legal problems with marijuana started.
{¶27} One night while preparing dinner the police arrived at the residence to do a
wellness check on the children. They found marijuana on the table. Appellant testified it
was Richmond’s marijuana and she hadn’t seen it on the table. The police placed the
children with Appellee; Appellant tested positive for marijuana.
{¶28} Appellant was charged with possession of marijuana and child
endangerment. The possession charge was dismissed, and the child endangerment
charge was reduced to disorderly conduct. Appellant was placed on probation for a year.
{¶29} Since being placed on probation, Appellant has passed every drug test.
Appellant has completed parenting classes and attends counseling. During her visits with
her children, she says the kids are happy to see her, they play outside, work on ABCs,
and do activities. Appellee has not complained to Appellant about how the children have
been cared for when they visit Appellant.
Tuscarawas County, Case No. 2021 AP 02 0006 7
{¶30} Since Appellee has had the children, Appellant has not attended any
doctor’s appointments but gets updates from Appellee. Appellant has access to the
medical records through My Chart. Appellant has stated that the children are not kept
clean when Appellee is taking care of them. There have been a few times that H.A. has
not been wiped clean after going to the bathroom and that his face and ears have not
been washed.
{¶31} The hearing was then continued to October 2, 2020. Appellant continued
testifying that she had concerns about safety at Appellee’s house. Appellee has a
swimming pool without a fence around it.
{¶32} On cross-examination, Appellant testified Appellee has not failed to get the
children medical treatment, keeps Appellant informed of their visits, and that Appellee has
set up speech therapy for H.A. Appellant testified that while she was watching H.A., he
received a bruise on his eye from carrying sticks and was burned on a space heater.
{¶33} Next, Appellee was called back to the witness stand to testify she added a
safety cover to her pool, that the pool hasn’t been opened since 2018, and that she has
no plans to open the pool back up. The cover can hold up to 500 pounds. Appellee
continued that the children are active children and can get bruises just from playing. While
under Appellant’s care, H.A. has come back with bruises to his ear, scratches from
running through a rose bush, and got his arm caught between rungs on a space heater.
Appellee testified that when Appellant and J.A. lived with her, they did not clean up the
house, and that Appellee is still concerned with Appellant’s ability to provide a clean home
for the children.
Tuscarawas County, Case No. 2021 AP 02 0006 8
{¶34} On November 6, 2020, the magistrate issued its decision finding Appellant
and J.A. were unsuitable to parent their minor children. Appellant and Richmond used
marijuana during their relationship. Appellant, while under the influence of marijuana was
cooking dinner for her children leaving marijuana on a table, in reach of her minor children.
This was discovered by the police during a wellness check. Appellant has completed her
probation and attended parenting classes and counseling. The children were placed with
Appellee when the incident occurred. Appellant is currently residing with her mother, D.L.
When Appellant was younger, she was removed from D.L.’s care at the age of three
following numerous sexual abuse cases in which Appellant was the victim. The
magistrate’s decision also provided that the minor children are to have no contact with
Scott Sanders, Nathanial Coverdale, Timothy Coverdale, Jr. or Timothy Coverdale, Sr.
{¶35} On January 27, 2021, the trial court overruled Appellant’s objections to the
magistrate’s decision and granted legal custody of the minor children to Appellee
ASSIGNMENT OF ERROR
{¶36} Thereafter, Appellant timely filed a notice of appeal. She herein raises the
following Assignment of Error:
{¶37} “I. THE COURT ERRED IN DETERMINING THAT THE APPELLANT WAS
UNSUITABLE AS A PARENT AND SHOULD NOT HAVE CUSTODY OF HER MINOR
CHILDREN.”
I.
{¶38} In Appellant’s sole Assignment of Error, Appellant argues the trial court
abused its discretion regarding its determination that Appellant was not a suitable parent.
We disagree.
Tuscarawas County, Case No. 2021 AP 02 0006 9
{¶39} An appellate court reviews disposition of child custody matters for an abuse
of discretion on the part of the trial court. Miller v. Miller (1988), 37 Ohio St.3d 71, 73-74.
In order to find an abuse of discretion, we must determine the trial court’s decision was
unreasonable, arbitrary, or unconscionable, not merely an error of law or judgment.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Appellate courts
reviewing evidence in custody matters do not function as fact finders; we neither weigh
the evidence nor judge credibility of witnesses. Dinger v. Dinger, 5th Dist. Stark No.
2001CA00039, 2001-Ohio-1386. Our role is to determine whether there is relevant,
competent, and credible evidence upon which the fact finder could base his or her
judgment. Id. As custody issues are some of the most difficult and agonizing decisions a
trial court judge must make, the trial court judge is given wide latitude in considering all
the evidence. Girdlestone v. Girdlestone, 5th Dist. Stark No. 2016CA00019, 2016-Ohio-
8073, ¶12 citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
However, granting legal custody, where parental rights are not terminated, is not as
drastic a remedy as permanent custody. In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-
2272, ¶9.
{¶40} R.C. 2151.23(A)(2) gives exclusive jurisdiction to the juvenile court “to
determine the custody of any child not a ward of another court of this state.” In In re
Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047, syllabus, the Supreme Court of Ohio held:
In an R.C. 2151.23 child custody proceeding between a parent and
a nonparent, the hearing officer 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
Tuscarawas County, Case No. 2021 AP 02 0006 10
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.
{¶41} Therefore, before awarding legal custody to a non-parent, a trial court must
ordinarily make a finding that each parent is unsuitable. In re L.P., 5th Dist. Muskingum
No. CT2016-0045, 2017-Ohio-52, ¶18.
{¶42} In its journal entry filed January 27, 2021, the trial court concluded through
adopting the magistrate’s decision that both J.A. and Appellant are unsuitable to parent
the minor children. This finding was based upon several findings of fact about Appellant
which were all supported by the record including, that while doing a wellness check on
the children, the police discovered Appellant and children were home, Appellant was
cooking dinner under the influence of marijuana, and that there was marijuana on the
kitchen table accessible by the children. The trial court also found that Appellant had been
charged with child endangerment and possession of drugs (though the charges were
reduced to disorderly conduct) in relation to the incident. Appellant lives with her mother
and when Appellant was a child, Appellant was removed from her mother’s care because
of sexual abuse cases in which Appellant was the victim. During Appellant’s first overnight
visit with the children, H.A. was burned by a space heater. The minor children are bruised
while in Appellant’s care. H.A. was behind on his shots when the children were placed
with Appellee. Appellee now has H.A. up to date and has kept Appellant apprised of the
children’s medical care. H.A. has been diagnosed with a speech delay, and Appellee has
enrolled H.A. in speech therapy. The children are developing well in Appellee’s care. J.A.
Tuscarawas County, Case No. 2021 AP 02 0006 11
has little contact with the children. J.A. has been kicked out of Appellee’s house multiple
times due to J.A.’s behavior. Appellant and J.A. were giving H.A. spoiled milk to drink.
Appellee has spent significant time with the minor children. They have bonded with
Appellee. The children are vulnerable, both under age five, and are unable to protect
themselves. They rely on adults to provide their daily needs.
{¶43} Upon review of the evidence presented, we cannot say the trial court
abused its discretion in finding Appellant and J.A. unsuitable to parent the minor children.
We find the record contains substantial credible and competent evidence to support the
decision.
{¶44} Appellant’s sole Assignment of Error is overruled.
{¶45} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Tuscarawas County, Ohio, is hereby, affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J. concur.
JWW/br 1006