In re Howland Children , 2015 Ohio 3862 ( 2015 )

[Cite as In re Howland Children, 2015-Ohio-3862.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. W. Scott Gwin, P.J.
HOWLAND CHILDREN : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2015CA00113
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from Court of Common
Pleas, Juvenile Division, Case No.
2013JCV00968
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 21, 2015
APPEARANCES:
For Appellant For Appellee
JOHN JAKMIDES BRANDON J. WALTENBAUGH
325 East Main Street 300 Market Avenue North
Alliance, OH 44601 Canton, OH 44702
Stark County, Case No. 2015CA00113 2
Farmer, J.
{¶1} On September 18, 2013, appellee, Stark County Job and Family Services,
filed a complaint alleging two children, M.H. born December 29, 2007, and M.H. born
February 23, 2009, to be neglected and/or dependent children. Mother of the children is
Tina Ibrahim nka Stremo; father is Marcello Howland.
{¶2} On December 4, 2013, the children were found to be dependent and were
placed in the custody of Ms. Ibrahim's mother, appellant herein, Jennifer Lawson. The
children were removed from this home due to improper disciplinary methods, and
temporary custody was granted to appellee on April 23, 2014.
{¶1} On October 9, 2014, appellee filed a motion for permanent custody. A
hearing was held on April 30, 2015. By judgment entry filed May 14, 2015, the trial
court terminated parental rights and granted appellee permanent custody of the
children. Findings of fact and conclusions of law were filed contemporaneously with the
judgment entry.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED IN REFUSING TO GRANT MATERNAL
GRANDMOTHER CUSTODY OF THE CHILDREN. THE DECISION WAS BASED
ALMOST EXCLUSIVELY ON THE DISCIPLINE METHODS EMPLOYED AS SHE
ADJUSTED TO PARENTING SPECIAL NEEDS CHILDREN FOR THE FIRST TIME."
Stark County, Case No. 2015CA00113 3
I
{¶5} Appellant claims the trial court erred in not granting her legal custody of
the children as she completed parenting classes at her own expense and was learning
to adapt to new disciplinary methods. We disagree.
{¶6} R.C. 2151.353(A)(3) states the following in pertinent part:
(A) If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of disposition:
(3) 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 or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings.
{¶7} We agree with the following analysis set forth by our brethren from the
Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-
4818, ¶ 19-22:
Legal custody is significantly different than the termination of
parental rights in that, despite losing legal custody of a child, the parent of
the child retains residual parental rights, privileges, and responsibilities. In
re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.
2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not
Stark County, Case No. 2015CA00113 4
permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130,
2010-Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses
in making its determination is the less restrictive "preponderance of the
evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App. 3d 445, 455, 751
N.E.2d 552 (7th Dist.2001). "Preponderance of the evidence" means
evidence that is more probable, more persuasive, or of greater probative
value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
Unlike permanent custody cases in which the trial court is guided
by the factors outlined in R.C. 2151.414(D) before terminating parental
rights and granting permanent custody, R.C. 2151.353(A)(3) does not
provide factors the court should consider in determining the child's best
interest in a motion for legal custody. In re G.M. at ¶ 15. We must
presume that, in the absence of best interest factors in a legal custody
case, "the legislature did not intend to require the consideration of certain
factors as a predicate for granting legal custody." Id. at ¶ 16. Such
factors, however, are instructive when making a determination as to the
child's best interest. In re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-
1193] at ¶ 13.
The best interest factors include, for example, the interaction of the
child with the child's parents, relatives, and caregivers; the custodial
history of the child; the child's need for a legally secure permanent
placement; and whether a parent has continuously and repeatedly failed
Stark County, Case No. 2015CA00113 5
to substantially remedy the conditions causing the child to be placed
outside the child's home. R.C. 2151.414(D).
Because custody determinations " 'are some of the most difficult
and agonizing decisions a trial judge must make,' " a trial judge must have
broad discretion in considering all of the evidence. In re E.A. at ¶ 10,
quoting Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159
(1997). We therefore review a trial court's determination of legal custody
for an abuse of discretion. Miller v. Miller, 37 Ohio St. 3d 71, 74, 523
N.E.2d 846 (1988). An abuse of discretion implies 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).
Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland
County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-
738.
{¶8} Appellant passed a home study and was granted temporary custody of the
children on December 4, 2013. T. at 10, 24. Appellant was cautioned by several
individuals prior to receiving temporary custody of the children not to use physical
discipline because the children had "already suffered some damage in their lives." T. at
31. After a few months, the children were removed because of appellant's use of
corporal punishment with a belt against the children, leaving the children in their rooms
Stark County, Case No. 2015CA00113 6
all day, and permitting a male friend, "Big Mike," to also discipline the children. T. at 11,
31, 58. Appellant did not object to the removal, but assented to it. T. at 12, 32.
{¶9} Appellant participated in parenting assessment and Goodwill Parenting
and has paid for the services out of her own pocket. T. at 27-28, 33. However, the
caseworker opined "I don't think that anything's going to make a difference" given her
psychological evaluation and "this later date, she's still going in, trying to figure out
when she can use physical discipline." T. at 27. After receiving education on
disciplinary methods, appellant asked "if it would be acceptable to spank the children
with an open hand and not with a fist or object." T. at 56.
{¶10} There was constant friction and conflict between appellant and her
daughter, the mother of the children. T. at 17, 33. They have spoken "horribly about
each other to the children." T. at 33. Mother perceived appellant as having an alcohol
problem, and reported she had been sexually abused by one of appellant's boyfriends,
disclosed the abuse to appellant, and appellant "did not believe her allegations." T. at
43-44, 57.
{¶11} Based upon appellant's poor choices of discipline with admittedly very
emotionally troubled children, her on-going difficulties with the mother of the children,
and her permitting her male friend to also discipline the children, the experts opined
appellant was not a good placement. T. at 25, 38, 55-59, 108-110, 122-123.
{¶12} The children are placed together in an "Agency foster to adopt home" and
are doing very well and their needs are being met. T. at 106-108, 124. The children are
bonded to one another and their foster family. T. at 108.
Stark County, Case No. 2015CA00113 7
{¶13} Based upon the testimony and evidence presented, we concur with the
trial court's following finding of fact filed on May 14, 2015:
10. On December 04, 2013, the children were placed in the
temporary custody of maternal grandmother Jennifer Lawson. The
children were removed from the care of Ms. Lawson in April 2014 due to
concerns that Ms. Lawson and her live in boyfriend were punishing the
children using belts and other forms of corporal punishment. There were
also concerns that Ms. Lawson was leaving the children in their rooms all
day without food until dinner. Reasonable efforts were made to keep the
children with maternal grandmother but despite removal and education on
the inappropriateness of Ms. Lawson's use of corporal punishment; she
was unable to grasp the fact that she could not hit the children.
Ms. Lawson's relationship with her daughter was described by Dr.
Aimee Thomas, psychologist from Northeast Ohio Behavioral Health
(NEOBH), as not a positive one. Dr. Thomas testified that Ms. Lawson
was not supportive of her daughter and that Ms. Ibrahim felt that her
mother was always at the bar and never around to care for her as a child.
As a minor, Ms. Lawson let her daughter live with an unrelated adult male
much older than Ms. Ibrahim at the time.
Given the foregoing facts, the Court cannot find at this time that
placement of the children with Ms. Lawson would be appropriate.
Stark County, Case No. 2015CA00113 8
{¶14} Upon review, we find the trial court did not abuse its discretion in not
granting legal custody to appellant, and find the trial court did not err in finding the best
interest of the children was best served with permanent custody to appellee (see this
court's opinion in Stark County Case No. 2015CA00109).
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Court of Common Pleas of Stark County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/sg 902