In re C.V.M. , 2013 Ohio 3361 ( 2013 )

[Cite as In re C.V.M., 2013-Ohio-3361.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99426
IN RE: C.V.M., JR.
A Minor Child
[Appeal by C.V.M., Sr., Father]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 03902263
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 1, 2013
ATTORNEY FOR APPELLANT, FATHER
Mark S. O’Brien
Heights Medical Center Building
2460 Fairmount Blvd.
Suite 301B
Cleveland Heights, OH 44106
FOR APPELLEES
FOR STEPMOTHER
A.W., pro se
1822 Walford Road
Apt. 309
Warrensville Heights, OH 44128
FOR MOTHER
L.S.M., pro se
4889 Banbury Court #2
Warrensville Heights, OH 44128
GUARDIAN AD LITEM
Michael B. Granito
24400 Highland Road
Suite 162
Richmond Heights, OH 44143
EILEEN A. GALLAGHER, J.:
{¶1} Father-appellant appeals the trial court’s decision that found him to
be an unsuitable parent and awarded legal custody of his son, C.V.M., to
appellee-custodian (hereinafter “stepmother”), a nonparent. For the reasons that
follow, we affirm.
{¶2} The pertinent background facts of this case were stated by this court
in In Re: C.V.M., Jr., 8th Dist. No. 98340, 2012-Ohio-5514 (“C.V.M. I”) as
follows:
Appellant is the natural father of C.V.M., who was born in 2003. In
2004, the juvenile court granted custody of C.V.M. to father and his
wife, who is not C.V.M.’s biological mother. Both father and wife
acted as parents to the child. In 2010, wife filed for divorce against
father. In May 2010, father filed a motion with the juvenile court
for sole legal custody of C.V.M.; however, wife (hereinafter referred
to as “custodian”) obtained physical custody of the child. In
August 2010, custodian was granted temporary custody of the child
and was granted a divorce from father. Thereafter, a myriad of
contentious motions were filed, and allegations were made by the
parties against each other. Ultimately, motions were filed by
custodian for sole legal custody of C.V.M. and by father for
modification of the temporary custody order.
The trial court held a hearing on all pending motions, including the
motions affecting the sole legal custody of C.V.M. The crux of the
hearing was to determine who would be the child’s legal custodian.
The trial court took testimony from father, custodian, C.V.M.’s
guardian ad litem, C.V.M.’s birth mother, and five character
witnesses called on behalf of father. Following the hearing, the
trial court issued a judgment entry and written opinion granting legal
custody to custodian after finding that an award of custody to father
would be detrimental to the child.
Id. at ¶ 2-3.
{¶3} In C.V.M. I, this court reversed the judgment of the trial court
awarding sole custody to stepmother and remanded the case for the trial court to
apply the correct legal standard of parental unsuitability to the facts elicited at the
hearing. Upon remand, the trial court issued a new judgment entry finding
appellant to be an unsuitable parent because an award of custody to appellant
would be detrimental to C.V.M. The trial court again awarded legal custody of
C.V.M. to stepmother. Appellant appeals from this judgment, asserting the
following sole assignment of error:
The trial court abused its discretion in determining that [appellant]
was an unsuitable parent.
{¶4} A trial court enjoys broad discretion in custody proceedings because
“custody issues are some of the most difficult and agonizing decisions a trial judge
must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674
N.E.2d 1159. A trial court’s custody determination will not be disturbed unless
the court abused that discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523
N.E.2d 846 (1988). An “abuse of discretion” connotes that the court’s attitude is
“unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶5} While the trial court has discretion in custody proceedings, the
record must contain sufficient factual evidence to support the court’s findings.
C.V.M. I, 8th Dist. No. 98340, 2012-Ohio-5514, citing In re Schwendeman, 4th
Dist. Nos. 05CA18 and 05CA25, 2006-Ohio-636. We will not reverse a
judgment as being against the manifest weight of the evidence when the record
contains some competent, credible evidence going to all the essential elements of
the case. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d
578 (1978), syllabus. In conducting our review, we must make every reasonable
presumption in favor of the trial court’s findings of fact. C.V.M. I, citing Myers
v. Garson, 66 Ohio St.3d 610, 614, 1993-Ohio-9, 614 N.E.2d 742. We give
deference to the trial court as the trier of fact because it is “best able to view the
witnesses and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.”
C.V.M. I, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d
1273 (1984).
{¶6} Because legal custody where parental rights are not terminated is not
as drastic a remedy as permanent custody, the trial court’s standard of review in a
legal custody proceeding is not clear and convincing evidence as in permanent
custody proceedings, but merely preponderance of the evidence. C.V.M. I, citing
In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097. “Preponderance
of the evidence” means “evidence that’s more probable, more persuasive, or of
greater probative value.” In re M.F., 5th Dist. Ashland No. 12-COA-036,
2013-Ohio-1755, quoting State v. Finkes, 10th Dist. Franklin No. 01AP-310,
2002-Ohio-1439.
{¶7} In a child custody proceeding between a parent and nonparent not
arising from an abuse, neglect or dependency determination, a court may not
award custody to the nonparent without first making a finding of parental
unsuitability — that is, without first determining by a preponderance of the
evidence 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, 369 N.E.2d 1047(1977), syllabus; In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d
971. The Perales test, however, requires that some detriment to the child be
shown before he is taken away from an otherwise suitable parent. Thrasher v.
Thrasher, 3 Ohio App.3d 210, 213, 444 N.E.2d 431 (9th Dist.1981).
{¶8} On remand, the trial court in this case found by a preponderance of
the evidence that appellant was unsuitable because “an award of the child’s
custody to the [appellant] would be detrimental to the child.” The trial court
based this finding on the fact that appellant has a history of substance abuse, has
spent minimal time with C.V.M. since appellant and stepmother separated, has
provided minimal emotional support or guidance for C.V.M., has failed to be
supportive of C.V.M.’s schooling, has consistently missed C.V.M.’s
extracurricular activities, consistently failed to provide any financial support for
C.V.M., has stated that he would only allow C.V.M. to interact with stepmother on
his own terms and has mental health problems. While we do not agree with
every detail of each of the specific reasons espoused by the trial court or the
relative weight the trial court may have assigned to them, in light of the entire
record we cannot say that the trial court abused its discretion in finding that an
award of custody to appellant would be detrimental to C.V.M.
{¶9} Appellant argues that the trial court abused its discretion by relying,
in part, on evidence concerning appellant’s suitability that existed prior to the
juvenile court’s original grant of custody to appellant in 2004. Specifically, the
trial court found that appellant had a “history of substance abuse,” 1 felony
convictions and possible mental health problems. The record reflects that each
of these factors existed prior to 2003 when appellant was investigated by an
We note that the trial court found appellant to have a “history of substance abuse”
1
based on a single positive urine screen in 2003. The record reflects that appellant completed
a drug and alcohol assessment with no recommendation being made and agreed to participate
and follow all recommendations of the assessment including treatment, but the record is
unclear as to whether he actually participated in or completed treatment or whether he
submitted any subsequent urine specimens.
assigned social worker, was “deemed an appropriate [caregiver] for his child” and
was granted custody of C.V.M.
{¶10} While we agree with appellant’s proposition that it would generally
be inappropriate for a trial court to declare a parent unsuitable based solely on
negative information that the court was aware of prior to the original grant of
custody in favor of that parent, such is not the case before us. First, the trial
court’s unsuitability determination was based on far more information than just the
above pre-existing conditions. Second, the record reflects that in 2003 the court
did not grant sole custody of C.V.M. to appellant originally, but rather the
complaint for legal custody for C.V.M. was amended to include stepmother.
Appellant explained at the trial court’s hearing that stepmother was added because
she “conned” or tricked him into including her in the complaint for custody and he
relented in hopes of appeasing her. Stepmother testified that after appellant
failed a drug test, the Cuyahoga County Department of Children and Family
Services (“CCDCFS”) would not allow sole custody to appellant. She testified
that the complaint was amended to include her as a co-custodian after she took,
and passed, a drug test. The complaint refers to her as “step mother.” Although
we agree that the weight to be given to appellant’s felony conviction, failed drug
test and prior mental health concerns is slight, we note that the record does not
reflect that these factors were a non-concern in the original custody decision. To
the contrary. The record reflects that appellant may not have gained custody
without stepmother joining in the complaint.
{¶11} We cannot fault the trial court for accepting the testimony of
stepmother as more credible than the testimony of appellant. The record reveals
appellant’s credibility to be highly suspect. During the trial court’s hearing,
appellant was repeatedly confronted with reports of negative behavior on his part
and in each instance appellant asserted that the reporting party was lying and/or
had fabricated the incidents in question. If one were to accept appellant’s
testimony as true, fellow Cleveland police officers fabricated and lied about events
that led to his felony convictions and the end of his police career; the principal of
C.V.M.’s former school lied about being cursed at by appellant that led to the
school seeking a no trespassing order against him; Warrensville Heights police
lied about his aggressive conduct at a visitation pick up that occurred at the
Warrensville Heights Police Department; CCDCFS lied about his positive drug
test in 2003; the Cuyahoga County Juvenile Court’s clinical psychologist lied in
her report regarding a discussion of his mental health; and both stepmother and
C.V.M.’s biological mother lied about a plethora of issues to which they testified
at the hearing.
{¶12} The evidence indicating that appellant is presently an unsuitable
parent is of far greater concern to this court than felony convictions and a failed
drug test from a decade in the past. The trial court noted that appellant has spent
minimal time with C.V.M. since appellant and stepmother separated. We agree
with appellant’s criticism of this factor as a product, in part, of the trial court’s
own temporary visitation schedule whereby appellant was only alotted four hours
each Wednesday and three and one-half hours each Friday to spend with C.V.M.
However, beyond this limited visitation schedule, the record supports the trial
court’s finding that appellant has “not availed himself of the court-ordered
companionship time.” Significant testimony was introduced regarding incidents
at C.V.M.’s bus stop, stepmother’s home and the Warrensville Heights Police
Department where appellant failed to make use of his visitation time due to his
own conduct and his failure to communicate in a civil manner with stepmother.
Consistent with this pattern of behavior, the record reflects that appellant was
barred from C.V.M.’s former school, has had problems with C.V.M.’s present
school and caused one daycare center to decline care of C.V.M. while another
daycare center called the police and banned him from their property. Stepmother
also testified that when she initially separated from appellant she had asked
appellant to watch C.V.M. while she worked and he declined.
{¶13} Appellant failed to attend C.V.M.’s extra-curricular activities
including his participation in organized youth football wherein he won a local
championship as the team’s quarterback. Appellant blamed stepmother and
C.V.M. for failing to make him aware of such opportunities to be a part of
C.V.M.’s life. Stepmother testified that she did make appellant aware of
C.V.M.’s extracurricular activities.
{¶14} The record supports the trial court’s finding that appellant has
failed to provide any financial or medical support for C.V.M. in the time since
appellant and stepmother separated.2 Appellant did not deny this at the hearing
despite the presentation of evidence that he had ample capability to provide such
support. There is no explanation for this failure other than that appellant chose to
withhold support for C.V.M. due to his negative feelings towards stepmother and
the fact that during the pendency of this case she retained custody of C.V.M.
{¶15} The Guardian ad litem (“GAL”) report and the juvenile court’s
child custody / visitation evaluation performed by Dr. A. Justice raise the greatest
concerns regarding appellant’s unsuitability. We are mindful that the test for
parental “suitability” is different from the “best interest” test. A pure “best
interest” test looks totally to the best situation available to the child and places the
child in that situation. Thrasher v. Thrasher, 3 Ohio App.3d 210, 213, 3 Ohio B.
240, 444 N.E.2d 431 (9th Dist.1981). The Perales test, however, requires that
The record reflects that the sole item that appellant provided C.V.M. in the time since
2
appellant and stepmother separated was a pair of hand-me-down shoes, which were many sizes
too large for C.V.M.
some detriment to the child be shown before he is taken away from an otherwise
suitable parent. Simply because one situation or environment is the “better”
situation does not mean that the other is detrimental or harmful to the child. In re
Porter, 113 Ohio App.3d 580, 589, 681 N.E.2d 954 (3d Dist.1996). Our task is
not to weigh whether custody in favor of stepmother would be a better situation
for C.V.M. than custody in favor of appellant. However, we must consider
whether placement of C.V.M. in the custody of appellant would be detrimental to
the child. We find that in addition to the previously discussed factors, the GAL
report and the child custody / visitation evaluation strongly support the trial court’s
conclusion that such custody would be detrimental.
{¶16} The child custody / visitation evaluation performed by Dr. Justice
reported that appellant demonstrated “delusional ideation involving religious and
persecutory themes.” Appellant’s personality assessment inventory suggested
“suspicion, hostility, and quick anger responses.” Dr. Justice observed C.V.M.
and appellant interacting and described C.V.M. as being uncomfortable and
possessing a “reserved demeanor with his eyes downcast.” C.V.M. was “sullen
and reserved” when in the company of appellant. Dr. Justice did not observe
such uncomfortable behavior in C.V.M.’s interactions with others.
{¶17} Dr. Justice also noted that appellant spoke in vagaries that
appeared to have no effect upon C.V.M. and which C.V.M. later confirmed
privately that he did not understand. C.V.M. told Dr. Justice that he spends just
about the right amount of time with appellant and would like to spend even more
time with stepmother. The record, including appellant’s own testimony,
indicated that when appellant does have visitation time with C.V.M., the child
spends significant time alone in his room bouncing a basketball. Dr. Justice
testified that C.V.M.’s responses showed that “he is a sad child who frequently
feels like crying and who looks upon his future with a sense of uncertainty and
apprehension” and noted that C.V.M.’s mental health records indicated that he
possessed adjustment disorder with anxiety and individual counseling had been
recommended to address fear and anxiety about his father. Dr. Justice further
testified that C.V.M. was afraid of appellant because he is mean.
{¶18} In regards to appellant’s mental health, Dr. Justice concluded:
[Appellant] likely has a psychotic condition. He is highly defensive
and has a history of providing little information upon clinical
evaluation, necessarily making precise diagnosis difficult.
[Appellant] has consistently had problems in conforming his
behavior to meet societal standards. He presently demonstrated a
stilted, overly intellectualized style of interacting that is often seen in
individuals suffering schizophrenia. He was pushy and insistent
when interacting with [C.V.M.] for purposes of the present
evaluation. He clearly prioritized his own needs over those of the
child.
{¶19} The GAL testified that C.V.M. prefers to live with stepmother but
to have contact with appellant. The GAL noted that C.V.M. viewed stepmother
as “mom.” In fact, the record reflects that C.V.M. was unaware of the fact that
stepmother was not his biological mother until the pendency of this custody
dispute when appellant informed him of that fact.
{¶20} The GAL further testified that C.V.M. has nightmares of people
breaking into his home and kidnapping him and is fearful that he won’t see
stepmother again should appellant gain custody. C.V.M reported that he was also
fearful that should custody be awarded to appellant, he would no longer have
contact with his biological mother and siblings, at least one of whom C.V.M. has
developed a close relationship with.
{¶21} Consistent with these concerns, appellant testified at the hearing
that should he gain custody of C.V.M., he would “probably” allow C.V.M. to see
stepmother but only “on his terms.” Appellant had no idea what his terms would
be and stated that he would raise his son as he saw fit. The record reflects that
appellant sent a threatening text message to stepmother intimating that she would
not see C.V.M. in the future.
{¶22} The GAL testified that custody in favor of appellant would be
detrimental to C.V.M. This court has previously found such an opinion to carry
significant weight. See, e.g., In Re: S.M., 160 Ohio App.3d 794,
2005-Ohio-2187, 828 N.E.2d 1044 (8th Dist.). The GAL based his opinion in
large part on appellant’s own position that C.V.M. would only be allowed contact
with stepmother on his terms. The record reflects that appellant’s behavior
towards stepmother has created a hostile environment in which the parties are
unable to adequately communicate in regard to parenting and visitation issues,
even in the face of a court-ordered visitation schedule. Appellant’s own
testimony at the hearing confirms his inability to establish the necessary
cooperation with stepmother to facilitate court-ordered visitation. The GAL’s
concern that appellant would frustrate or terminate contact between C.V.M. and
stepmother to the detriment of C.V.M. is supported by the record. Dr. Justice’s
evaluation of C.V.M. demonstrates the detriment that the mere threat of the
severance or disruption of C.V.M.’s relationship with stepmother has had on
C.V.M.’s mental health during this custody dispute.
{¶23} The GAL also expressed his concerns regarding appellant’s
inability to interact appropriately with others, particularly C.V.M.’s school and
daycare staff. We share the GAL’s concern on this point. The record is replete
with evidence of appellant’s inability to interact in a civilized manner with others,
much less stepmother, and the testimony of all parties including appellant,
revealed that he treats her with open hostility. Even if we were to disregard the
mental health evaluation of Dr. Justice, it is firmly established in the record that
appellant is unable to conduct himself in a reasonable and appropriate manner
when interacting with third parties involved in C.V.M.’s life and that his failure to
do so is detrimental to C.V.M.
{¶24} Although natural parents have a fundamental liberty interest in the
care, custody and management of their children and a finding of parental
unsuitability is not to be made lightly, considering the above record we cannot say
that the trial court abused its discretion in finding appellant to be unsuitable. A
preponderance of the evidence demonstrated that appellant is an unsuitable parent
and that an award of the custody to the appellant would be detrimental to C.V.M.
{¶25} Appellant’s sole assignment of error is overruled.
{¶26} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR