In re M.S. , 2022 Ohio 3348 ( 2022 )

[Cite as In re M.S., 2022-Ohio-3348.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: M.S. and K.B :
:
: Appellate Case No. 29441
:
: Trial Court Case Nos. G-2018-004061-
: 0F,0I and G-2019-002912-0F,0I
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
...........
OPINION
Rendered on the 23rd day of September, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee, Montgomery County Children Services
TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
Attorney for Defendant-Appellant, Father
.............
WELBAUM, J.
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{¶ 1} Father appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which awarded legal custody of his children to their
paternal grandmother. In support of his appeal, Father contends that the decision to
award legal custody to paternal grandmother was not in the best interest of his children.
Based on our review of the record, we see no abuse of discretion in the trial court’s ruling.
Accordingly, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} Father is the biological father of siblings M.S. and K.B., who are currently
nine and seven years old. Before Montgomery County Children Services (“MCCS”)
became involved with the children, M.S. was in the custody of Father and K.B. was in the
custody of the children’s biological mother (“Mother”).
{¶ 3} On August 15, 2018, MCCS filed a dependency complaint regarding M.S.
when he was five years old, due to concerns of physical abuse occurring at his home.
At the time the complaint was filed, M.S. was living with Father and Father’s girlfriend,
D.K., and with D.K.’s child, S.K. The complaint was filed because MCCS learned that
D.K. and Father hit S.K. with a belt as a form of discipline. MCCS became aware of this
information after S.K. presented at the hospital with linear bruising on her body. During
MCCS’s investigation of the matter, M.S. reported that both Father and D.K. had hit him
with a belt as well. After the dependency complaint was filed, M.S. was placed in the
temporary custody of his paternal grandmother, S.G., as the whereabouts of M.S.’s
mother was unknown. On October 5, 2018, the trial court adjudicated M.S. a dependent
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child and ordered M.S. to remain in the temporary custody of S.G.
{¶ 4} As for K.B., on July 18, 2018, K.B. was placed in the emergency custody of
the Oklahoma Department of Human Services (“ODHS”) when she was just under three
years old. ODHS obtained emergency custody due to Mother’s abandoning K.B. and
K.B.’s half-sibling, A.B., at a family friend’s house. On March 11, 2019, the District Court
of Tulsa County adjudicated K.B. and A.B. as deprived children and awarded ODHS
temporary custody of the children. Because it was later determined that K.B.’s mother
and father resided in Montgomery County, Ohio, the District Court of Tulsa County made
contact with Montgomery County’s Juvenile Court Division in order to discuss transferring
jurisdiction of the matter per the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”). After the courts discussed the matter, the District Court of Tulsa County
filed an order transferring jurisdiction to the trial court herein. The trial court accepted
jurisdiction pursuant to the UCCJEA and then granted temporary custody of K.B. and A.B.
to MCCS and then to S.G.
{¶ 5} On June 28, 2019, and July 30, 2019, MCCS filed motions for M.S. and K.B.
to be placed in the legal custody of S.G. On October 9, 2019, the trial court awarded
S.G. legal custody of the children’s half-sibling, A.B. Thereafter, on December 13, 2019,
and June 8, 2020, MCCS filed additional motions requesting that the trial court award
S.G. legal custody of M.S. and K.B.
{¶ 6} The trial court held hearings on the legal custody motions on March 10 and
22, 2021. The witnesses who testified at the hearings were S.G., MCCS caseworker
Deja Williams, Mother, and Father. Because Father wants custody of the children and
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is the only party appealing from the trial court’s legal custody determination, we will only
discuss the testimony that is relevant to Father’s appeal. The following is a summary of
the relevant testimony of each witness.
S.G.’s Testimony
{¶ 7} S.G. is the paternal grandmother of M.S. and K.B. According to S.G., M.S.
and K.B. refer to her as “Mama.” Hearing Tr., Vol. I, p. 31. S.G. testified that in addition
to caring for M.S. and K.B., she and her husband care for four other children. Those
children include A.B. (of whom S.G. received legal custody in October 2019), S.G.’s two
teenage stepsons, and S.G.’s maternal grandson. S.G. testified that her husband is a
truck driver who owns his own company and that they have sufficient income to provide
for all the children’s needs. S.G. described her home as a three-bedroom trailer
containing bunk-bed sets so that each child has his or her own bed. S.G. also testified
that MCCS conducted and approved a home study at her residence.
{¶ 8} With regard to M.S. and K.B., S.G. testified that both children were doing
great in school. According to S.G., the children were on target with their grade level and
were not on individualized education plans. S.G. indicated that M.S. and K.B. were not
up to date on their vaccinations and medical/dental appointments when they first came
into her care, but that she had since been able to bring them up to date on everything.
S.G. further testified that she had taken M.S. and K.B. to Butler County Behavioral
Services, where counselors advised her that the children did not have any issues that
required counseling. S.G., however, testified that the children did have occasional talks
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with their school counselor, and that the school counselor had told S.G. that she could
schedule counseling sessions in the future to make sure that the children continued to do
well.
{¶ 9} Continuing, S.G. testified that Father and Mother are deaf and that, in 2020,
she was ordered by the court to have M.S. and K.B. attend American Sign Language
(“ASL”) classes. S.G. testified that enrollment in the classes was to be handled by MCCS
and that the agency had referred her to multiple places that could not offer classes due
to the COVID-19 pandemic and due to the children’s ages. S.G. testified that she was
then taking a remote ASL class for adults via Zoom, during which the children sat and
learned sign language with her.
{¶ 10} With regard to visitation, S.G. testified that she had and would continue to
have an open-door policy when it came to Father’s and Mother’s visiting the children in
her home. S.G. testified that Father’s visits had been inconsistent and, until recently,
Father had only been interested in visiting M.S. S.G. testified that Father treated M.S.
like an only child and that Father had just started interacting with K.B. in the previous four
or five months. As a result, S.G. testified that K.B. was not as close to Father as M.S.
{¶ 11} S.G. also testified that Father brought his girlfriend, D.K., when he visited
the children. S.G. testified that she had no problem with D.K.’s being at the visits as long
as there was no controversy between D.K. and Father. S.G. testified that just a few
weeks before the custody hearing, she had had to kick Father and D.K. out of her home
during a visit due to Father’s physically abusing D.K. in front of the children. S.G. testified
that the children told her that D.K. had called one of the children a “bitch” and that Father
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had punched and kicked D.K. for speaking to the children in such a manner. S.G.
testified that, although she did not witness the incident herself, she observed that D.K.’s
tooth had been chipped and that the bridge of D.K.’s nose was bleeding and swollen.
S.G. reported the incident to MCCS and to the police, but D.K. did not press any charges
against Father. S.G. testified that D.K. and Father were still in a relationship and that
D.K. showed no interest in M.S. or K.B. S.G. also testified that D.K. had had her own
child taken away by MCCS.
{¶ 12} In addition to Father’s hitting D.K., S.G. testified that Father had hit her on
three occasions. S.G. testified that the third time Father hit her, she decided to report
the incident to the police and to press charges against Father. As a result, S.G. testified
that Father had a warrant for his arrest at the time of the hearing. When asked to
describe Father’s temperament, S.G. testified that Father got mad when he did not get
his way and that “he flew off the handle” when she asked him how he planned on getting
his children back. Hearing Tr., Vol. I, p. 78.
Deja Williams’s Testimony
{¶ 13} Deja Williams was the MCCS caseworker assigned to M.S.’s and K.B.’s
cases. Williams testified that S.G. had cared for M.S. since March 2018 and K.B. since
July 2019. Williams also confirmed that S.G. had legal custody of M.S. and K.B.’s half
sibling, A.B. Williams testified that both M.S. and K.B. had told her that they would like
to continue living at S.G.’s house, where they can still have visits with Father and their
older half-sibling.
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{¶ 14} Williams testified that she had no concerns with S.G.’s home; she had
visited the home and conducted a home study, which was approved. According to
Williams, S.G.’s home was appropriate, clean, and had sufficient space and beds for all
the children. Williams also testified that there was always food in the house and that
S.G. and her husband had the financial means to provide for all the children.
{¶ 15} Continuing, Williams testified that neither child had any special medical
needs and that S.G. kept her up to date on when the children had medical or dental
appointments. Williams testified that, in 2020, the trial court had ordered M.S. and K.B.
to take ASL classes and that she had worked on trying to get the children enrolled in a
sign language program. Specifically, Williams testified that she had registered the
children for a private tutoring program, which was canceled due to the COVID-19
pandemic. Williams testified that after the COVID quarantine was lifted, the tutoring
program was no longer offering the same services.
{¶ 16} Williams testified that she had also reached out to St. Rita School for the
Deaf, but that no classes were being offered to children of M.S.’s and K.B.’s ages.
Williams also had reached out to the Hearing and Deaf Center of Cincinnati, which only
offered a three-month private tutoring session for $800, a cost which MCCS would not
approve. As a result, Williams testified that she had suggested S.G. sign up for a remote
ASL class for adults so that the children could sit and learn sign language with S.G. as
S.G. took the class. Williams testified that she really tried to get the children enrolled in
ASL classes but that the options had been limited due to the COVID-19 pandemic.
{¶ 17} Regarding the children’s relationship with S.G., Williams testified that the
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children were very bonded to S.G., had a good relationship with her, and showed her
affection. Williams testified that everyone was close and comfortable with each other in
S.G.’s household. Williams conveyed that she had no concerns about M.S. and K.B.
being comfortable with the other children living in the home or with S.G.’s husband.
{¶ 18} Concerning Father, Williams testified that Father has a case plan with
MCCS at the time of the hearing; Williams used an interpreter to discuss the objectives
of the case plan with Father and provided the objectives in writing to ensure that Father
understood what was expected of him. According to Williams, Father’s case plan
included the following objectives:
1. resolve all criminal charges and receive no new charges;
2. complete parenting classes;
3. maintain stable housing;
4. maintain sufficient income for him and the children;
5. visit the children and caseworker regularly;
6. help with the needs of the children; and
7. sign all releases of information.
{¶ 19} Williams testified that Father had completed the case plan objectives
requiring him to attend parenting classes and sign releases of information. Williams also
testified that Father had completed the objective to maintain sufficient income, as Williams
explained that Father had worked full time at UPS since 2020 and had always had a job
and maintained income.
{¶ 20} Regarding the case plan objective to visit the children regularly, Williams
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testified that visitation was as agreed upon by the parties. Williams testified that S.G.
described Father’s visits as sporadic, while Father maintained that he visited the children
regularly. According to Williams, Father visited the children approximately every other
week when it was convenient for him. As to Father’s helping with the needs of the
children, Williams testified that S.G. had told her that Father did help out with the
children’s needs by buying them clothing.
{¶ 21} Williams, however, testified that Father had not completed the housing
objective on his case plan. Williams testified that when she had first been assigned to
Father’s case, Father resided in a two-bedroom apartment with D.K. in Hamilton; they
were later evicted. From there, Father had moved in with D.K.’s mother for a few months
and then leased a studio apartment in Middletown, where he had stayed until the summer
of 2020. Williams testified that, to her knowledge, Father was living with a friend in
Columbus at the time of the hearing; Father had not secured appropriate housing despite
her providing him with several referrals and applications for housing in Montgomery,
Hamilton, Butler, Warren, and Franklin Counties. Williams testified that she had
provided Father with this information in person, by mail, and via e-mail.
{¶ 22} In addition to providing Father with housing referrals and applications,
Williams testified that, at Father’s request, she had contacted housing authorities to which
he had allegedly applied in Warren and Butler Counties. Williams testified that Father
had been placed on a waiting list by the Warren County agency and that the Butler County
agency had advised her that Father had never filled out a housing application. Williams
testified that she was aware that Father was unsatisfied with her help on his housing
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objective; however, Williams explained that she could only assist Father with the process
and could do everything for him.
{¶ 23} Williams also testified that Father had failed to complete the case plan
objective requiring him to resolve all of his criminal charges and to not receive any new
criminal charges. Williams testified that Father had had a conviction for misdemeanor
assault that he resolved in 2019 by completing court-ordered probation and anger
management classes. Although Father had resolved that criminal charge, Williams
testified that Father had since acquired a warrant out of Middletown for domestic violence.
Williams testified that the victim of that domestic violence charge was S.G. Williams
testified that she had discussed the charge with Father and had told him that he needed
to get the matter resolved with the court. Williams testified that Father had denied the
allegations related to the charge and had yet to resolve the matter.
{¶ 24} Williams also testified regarding the domestic violence incident that
occurred between Father and his girlfriend, D.K., while they had been visiting the children
at S.G.’s house. Williams testified that S.G. had called her and reported the incident and
had provided her with a video showing the aftermath of the incident. Williams also
testified to being made aware of past, unreported domestic violence between Father and
Mother.
{¶ 25} Williams testified that she was concerned about Father’s pattern of
domestic violence, especially because the recent allegations of domestic violence had
occurred after Father had completed the parenting class, “Family Against Violence.”
Williams testified that MCCS would want Father’s issues with domestic violence to be
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addressed before Father could get custody of the children. Williams was also concerned
about Father’s continuing a relationship with D.K. due to the allegations of domestic
violence between them and due to MCCS’s removal of D.K.’s child from her care.
Mother’s Testimony
{¶ 26} Mother testified that she did not believe Father was fit to parent M.S. and
K.B. Mother testified that she had had violence issues with Father in the past and that
she felt scared and unsafe when Father was present during her visits with the children.
Mother also testified regarding concerns about Father drinking and smoking around the
children. Mother specifically testified that she did not want the children to be placed with
Father due to his issues with domestic violence and addiction.
{¶ 27} Mother also testified that she did not want the children to be placed with
S.G. According to Mother, M.S. and K.B. did not have a good relationship with S.G. and
would prefer to live with Mother. Mother alleged that marijuana and alcohol use occurred
in S.G.’s home in front of the children, but Mother admitted that she had never reported
those allegations to MCCS. Mother also testified to her concerns about there not being
sufficient, child-appropriate food in S.G.’s home.
Father’s Testimony
{¶ 28} Father testified that S.G. says negative things about him to the children.
Father also took issue with the fact that S.G. never learned sign language despite his
being deaf. Father testified that he uses Facebook and text messaging to communicate
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with S.G. Father testified that S.G.’s inability to use sign language made it difficult to
communicate with her and caused a lot of misunderstandings between them. Father
also testified that S.G. never took steps to have the children enrolled in ASL classes,
which had made it difficult for him to communicate with the children and become close to
them.
{¶ 29} Father denied ever committing physical violence against D.K. or S.G.
Father also denied having any problems with anger. With regard to the recent incident
of domestic violence against D.K., Father claimed that he and D.K. had simply had an
argument outside of S.G.’s home and that the children had seen them arguing through
the window.
{¶ 30} Father claimed that MCCS had not helped him find adequate housing and
that MCCS’s housing referrals had not provided him with enough support. Father
claimed that his caseworker had not taken his deafness into consideration when she
simply gave him paperwork on how to get housing. According to Father, he had needed
more help with obtaining housing because he had had difficulty making contact with the
housing agencies. Father claimed that he had asked his caseworker for more help, but
that his caseworker had simply told him to look at the paperwork.
{¶ 31} Father testified that if he did not get custody of his children, he would still
want to be able to take the children on short weekend trips, have sleepovers, and
celebrate birthdays. Father testified that placing the children with S.G. would not be in
the children’s best interest because S.G. did not provide a good example for the children
and deprived them of the clothing he bought them.
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Guardian Ad Litem (“GAL”) Recommendation
{¶ 32} The GAL did not testify at trial but supplied the trial court with a written
recommendation for legal custody to be awarded to S.G. In a supplemental report, the
GAL explained that the children had no established relationship with Father or Mother
and noted that both parents “pop in” for visits with the children when it is convenient for
them. The GAL noted that, at one point, M.S. indicated that he wanted to live with his
Father. The GAL, however, found that Father did not have appropriate housing and had
not completed some of his other case plan objectives. The GAL also noted that S.G.
had indicated that if either Father or Mother got their life together, and if it was in the
children’s best interest, she would support having the children go back to them.
Trial Court Decision
{¶ 33} On May 13, 2021, the trial court magistrate issued a decision granting S.G.
legal custody of M.S. and K.B. The magistrate also granted Father and Mother parenting
time as agreed by the parties. Father thereafter filed objections and supplemental
objections pursuant to Juv.R. 40(D)(3)(b). After taking the matter under advisement, on
March 7, 2022, the trial court issued an order overruling Father’s objections and awarding
legal custody of the children to S.G. The trial court additionally ordered S.G. to
cooperate in getting the children enrolled in sign language classes.
{¶ 34} Father now appeals from the trial court’s legal-custody decision, raising a
single assignment of error for review.
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Assignment of Error
{¶ 35} Under his assignment of error, Father contends that the trial court erred by
awarding S.G. legal custody of M.S. and K.B. We disagree.
{¶ 36} “An appellate court will not reverse an award of legal custody absent an
abuse of discretion by the juvenile court.” (Citation omitted.) In re J.C., 2d Dist.
Montgomery No. 28847, 2020-Ohio-5540, ¶ 16. “ ‘Abuse of discretion’ has been defined
as an attitude that is unreasonable, arbitrary or unconscionable.” (Citation omitted.)
AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990). “The discretion which a trial 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.”
Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Because “[t]he knowledge
a trial court gains through observing the witnesses and the parties in a custody proceeding
cannot be conveyed to a reviewing court by a printed record[,] * * * the reviewing court in
such proceedings should be guided by the presumption that the trial court’s findings were
indeed correct.” (Citations omitted.) Id.{¶ 37} “R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent
child, the court may award legal custody of the child ‘to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting legal custody of
the child[.]’ ” J.C. at ¶ 14, quoting R.C. 2151.353(A)(3). “An award of legal custody
‘vests in the custodian the right to have physical care and control of the child and to
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determine where and with whom the child shall live, and the right and duty to protect,
train, and discipline the child and to provide the child with food, shelter, education, and
medical care, all subject to any residual parental rights, privileges, and responsibilities.’ ”
Id. at ¶ 13, quoting R.C. 2151.011(B)(21). (Other citation omitted.) “Unlike an award of
permanent custody * * *, ‘[a]n award of legal custody of a child does not divest parents of
their residual parental rights, privileges, and responsibilities.’ ” Id., quoting In re C.R.,
108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, paragraph one of the syllabus.
{¶ 38} “A juvenile court may award legal custody of a child to an individual if the
court finds, by a preponderance of the evidence, that legal custody is in the best interest
of the child.” Id. at ¶ 14, citing In re C.B., 2d Dist. Montgomery No. 28113, 2019-Ohio-
890, ¶ 17. (Other citation omitted.) When considering the best interest of the child, courts
typically look to the factors found in R.C. 3109.04(F)(1). In re M.W., 2d Dist. Montgomery
No. 29413, 2022-Ohio-2054, ¶ 13. “Notably, R.C. 3109.04(F)(1) does not limit courts to
just the listed factors; courts are permitted to consider ‘all relevant factors.’ ” In re C.N.,
K.N. and K.N., 2d Dist. Montgomery No. 27119, 2016-Ohio-7322, ¶ 51. Some of the
listed factors “include such things as the parents’ wishes; the child’s wishes, if the court
has interviewed the child; the child’s interaction with parents, siblings, and others who
may significantly affect the child’s best interests; adjustment of the child to home, school,
and community; and the mental and physical health of all involved persons.” In re D.S.,
2d Dist. Clark No. 2013-CA-51, 2014-Ohio-2444, ¶ 9, citing R.C. 3109.04(F)(1). “Those
factors are similar to the factors in R.C. 2151.414(D) that govern permanent custody
motions, and courts sometimes apply both provisions when considering legal custody.”
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M.W. at ¶ 13, citing In re A.K., 2d Dist. Montgomery No. 27575, 2017-Ohio-8100, ¶ 13-
14.
{¶ 39} In awarding legal custody of the children to S.G., the trial court discussed
best-interest factors under R.C. 3109.04(F)(1) and R.C. 2151.414(D) and addressed the
following considerations.
Parents’
Wishes
R.C. 3109.04(F)(1)(a)
{¶ 40} The trial court considered that neither Father nor Mother wanted M.S. and
K.B. to be placed with S.G. and that each parent wanted the children placed in their
respective care. Father testified that the children should not be placed with S.G.
because S.G. did not provide a good example for the children and did not give the children
the clothing he bought them. Father also takes issue with S.G.’s never having learned
sign language and failing to enroll the children in sign language classes. Mother testified
regarding concerns about S.G.’s ability to care for and feed the children but had no
concerns with S.G. being violent. Mother, however, was concerned with violence as it
related to Father. Mother specifically testified that she was afraid of Father and did not
want the children to be placed with Father due to his issues with domestic violence and
addiction.
Children’s Wishes
R.C. 3109.04(F)(1)(b) and R.C. 2151.414(D)(1)(b)
{¶ 41} The trial court did not interview the children with regard to their wishes;
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therefore, the trial court did not specifically consider the children’s wishes in its decision.
The magistrate’s decision, however, discussed the fact that M.S. once indicated to the
GAL that he wished to live with Father. We further note that caseworker Williams
testified that the children most recently told her that they would like to continue living at
S.G.’s house where they could still have visits with their Father and with their older half-
sibling.
Children’s Interaction and Interrelationship with Parents, Siblings, and Others
R.C. 3109.04(F)(1)(c) and R.C. 2151.414(D)(1)(a)
{¶ 42} The trial court found that although Father had been “somewhat consistent
with his visitation,” Father had primarily been interested in visiting M.S. and only recently
began visiting K.B. over the previous four or five months. Accordingly, the trial court
considered the fact that Father did not have a strong relationship with K.B. The trial court
also considered that M.S. and K.B. referred to S.G. as their mother and had been in S.G.’s
care for multiple years. The trial court further considered that M.S. and K.B. were bonded
to S.G. and the other individuals residing in S.G.’s home and that S.G. already had legal
custody of the children’s half sibling, A.B.
Children’s Adjustment to Home, School, and Community
R.C. 3109.04(F)(1)(d)
{¶ 43} The trial court considered that MCCS had no concerns with S.G.’s home or
ability to care for the children and that the children appeared to be well-adjusted and well
cared for in S.G.’s home. The trial court further considered that the GAL recommended
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that legal custody be granted to S.G. The record further indicates that the children were
doing well in school.
Mental and Physical Health of All Persons Involved
R.C. 3109.04(F)(1)(e)
{¶ 44} The trial court considered that neither M.S. nor K.B. had been up to date on
their vaccinations and medical/dental appointments when they came into S.G.’s care and
that S.G. had since brought them up to date on everything. The trial court also
considered that MCCS had reported no concerns with regard to Father’s mental health.
Parent More Likely to Honor/Facilitate Court-Approved Parenting Time
Rights or Visitation and Companionship Rights
R.C. 3109.04(F)(1)(f)
{¶ 45} Although this factor was not specifically addressed by the trial court in the
decision on appeal, the magistrate’s decision did discuss the fact that S.G. had an open-
door policy with regard to visitation and allowed Mother and Father to visit the children
whenever they wanted. The magistrate also considered a claim by Mother that S.G. was
not willing to work around her schedule and that Mother was uncomfortable in S.G.’s
home, especially when Father was present.
Father’s Alleged Domestic Violence
{¶ 46} In addition to considering the aforementioned statutory factors, the trial
court considered the fact that there had been multiple allegations of Father committing
domestic violence against S.G., Mother, and his girlfriend, D.K. The trial court noted that
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both Mother and S.G. had testified that Father had engaged in domestic violence against
them, and S.G. testified that Father had recently engaged in domestic violence against
D.K. in front of the children. The trial court found it concerning that Father and D.K. were
still in a relationship despite the reported domestic violence between them and that MCCS
had removed D.K.’s child from her care.
Father’s Lack of Stable Housing
{¶ 47} In addition to considering the domestic violence allegations, the trial court
considered the fact that Father had lacked stable, independent housing throughout the
case despite MCCS’s providing him with housing referrals and applications and despite
Father’s allegedly applying for multiple housing opportunities. The record establishes
that Father had been rejected from multiple housing opportunities due to his criminal
background check, which included a domestic violence charge.
Analysis
{¶ 48} Upon review, we find that a majority of the aforementioned factors
considered by the trial court weighed in favor of finding that it was in M.S.’s and K.B.’s
best interest to award legal custody to S.G. Nevertheless, Father argues that the trial
court’s decision awarding S.G. legal custody was an abuse of discretion, because the trial
court disregarded the progress he made on his case plan. The record, however,
establishes that the trial court did consider Father’s case-plan progress. See Judge’s
Final Appealable Order (Mar. 7, 2021), p. 9. Specifically, the trial court noted that Father
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had maintained employment throughout the case, had completed his probation from a
prior criminal case, and had completed his parenting classes. In any event, it is well
established that compliance with a case plan is not dispositive of the trial court’s best-
interest determination. In the Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 12 (2d
Dist.), citing In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. This
court has explained that:
“ ‘[A] parent’s case plan compliance, while it may be relevant to a
best interest analysis, does not automatically override a trial court’s decision
regarding what is in a child’s best interests.’ ” [In re T.D. at ¶ 12], quoting
In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59, citing In re
N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 35. This court has
recognized that “[w]hen the focus is on the child’s best interest, a trial court
conceivably could terminate parental rights even if a parent completed all
of her case-plan objectives.” In re T.D. at ¶ 12, citing In re M.B. This court
also has observed that “[t]he case plan is simply ‘a means to a goal, but not
the goal itself,’ * * *.” Id., quoting In re J.H., 12th Dist. Clinton Nos. CA2015-
07-014, [CA2015-07-015], 2016-Ohio-640, ¶ 47 (citations omitted); see also
In re R.P., 2d Dist. Montgomery Nos. 26744, 2015-Ohio-4295, ¶ 17[.]
T.S. at ¶ 12.
{¶ 49} Based on the preceding discussion, we find that the trial court’s decision to
award legal custody of the children to S.G., including its best-interest determination, was
not an abuse of discretion.
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{¶ 50} Father’s sole assignment of error is overruled.
Conclusion
{¶ 51} Having overruled Father’s assignment of error, the judgment of the trial
court is affirmed.
.............
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Travis Kane
Sara Barry
Charles W. Slicer, III, GAL
Misty M. Connors
S.G.
Hon. Helen C. Wallace