In re H.J.H. , 2019 Ohio 116 ( 2019 )

[Cite as In re H.J.H., 2019-Ohio-116.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: H.J.H. : APPEAL NO. C-180019
TRIAL NO. F13-1252
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed, Judgment Entered, and Cause Remanded
Date of Judgment Entry on Appeal: January 16, 2019
Stagnaro Hannigan Koop, L.P.A., and Michaela Stagnaro, for Appellant-Father,
Heyman Law LLC and D. Andrew Heyman, for Appellees-Grandparents.
OHIO FIRST DISTRICT COURT OF APPEALS
Z AYAS , Presiding Judge.
Background
{¶1} Father appeals the judgment of the Hamilton County Juvenile Court
awarding custody of his daughter, H.J.H., to her maternal grandparents. We hold
that the trial court abused its discretion by finding father unsuitable. Because the
record before us does not establish father is unsuitable, we reverse the trial judge’s
decision and enter judgment awarding custody to father.
{¶2} Mother and father both had substance abuse problems when H.J.H.
was born. As a result, H.J.H. lived with her grandparents. Legal custody remained
with mother although she continued to struggle with addiction. Father engaged in
treatment for his addiction and testified that he stopped abusing heroin in November
of 2014. Father also paid child support and exercised visitation. Father filed a
motion for custody of H.J.H. in October of 2016. Approximately six months later,
grandparents filed a motion for custody of H.J.H. A guardian ad litem (“GAL”) was
appointed to help the court determine what custody arrangement would be in
H.J.H.’s best interests. Instead, the GAL determined that father was unsuitable and
that it would be in H.J.H.’s best interests for grandparents to be H.J.H.’s legal
custodians. After a hearing, the magistrate determined that father was not
unsuitable and awarded custody to father. Grandparents filed objections to the
magistrate’s decision, which were sustained by the trial judge who, without further
testimony, awarded custody to grandparents. Father, in his single assignment of
error, argues that the trial court erred as a matter of law by awarding custody of
H.J.H. to her maternal grandparents. Father argues that there is not enough
evidence in the record for the trial court to have found him unsuitable.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Natural parents have a paramount right to the custody of their
children, and this paramount right cannot be denied unless a preponderance of the
evidence indicates that the parent is unsuitable. In re Perales, 52 Ohio St.2d 89, 98,
369 N.E.2d 1047 (1977); In re Harper, 1st Dist. Hamilton No. C-800045, 1981 WL
9599, *3 (Feb. 4, 1981). We review a juvenile court’s decision to grant legal custody
under an abuse-of-discretion standard. An abuse of discretion is more than an error
of law or judgment; it is a decision that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). A trial court's decision that is not supported by competent, credible,
evidence is unreasonable and may be reversed. In re Wilkenson, 1st Dist. Hamilton
Nos. C-010402 and C-010408, 2001 WL 1220026, *1 (Oct. 12, 2001); In re A.W., 1st
Dist. Hamilton No. C-140142, 2015-Ohio-489, ¶ 10; In re Patterson, 1st Dist.
Hamilton No. C-090311, 2010-Ohio- 766, ¶ 15 and 20. See Bechtol v. Bechtol, 49
Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus (where an award of custody is
supported by a substantial amount of credible and competent evidence, such an
award will not be reversed as being against the weight of the evidence by a reviewing
court).
{¶4} Only if the trial court determines that the parent is unsuitable, should
it then examine which custodial placement would be in the best interest of the child.
In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 15; O’Connor v.
Stires, 12th Dist. Fayette No. CA2017-04-008, 2017-Ohio-8929, ¶ 22.
Determination of Unsuitability
{¶5} Unsuitability of a parent is established if the parent has abandoned the
child, or the parent has contractually relinquished the child, or the parent has
become totally incapable of supporting or caring for the child, or if an award of
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OHIO FIRST DISTRICT COURT OF APPEALS
custody would be detrimental to the child. Perales at 98. “Biological 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.” In re Z.P., 2017-
Ohio-7397, 96 N.E.3d 1115, ¶ 31 (8th Dist.).
{¶6} The only issue before the magistrate and the trial judge was whether
father was unsuitable because an award of custody to him would be detrimental to
H.J.H.
Detrimental to the Child
{¶7} While an award of custody may have a detrimental effect on a child, a
child being moved from her home, by itself, is not the sort of detriment that rises to
the level of rendering a parent unsuitable. In re Davis, 7th Dist. Mahoning No. 02-
CA-95, 2003-Ohio-809, ¶ 28. Courts have found detriment to the child in cases
where a parent has exposed the child to verbal and physical abuse, where the child is
in a chaotic environment filled with domestic violence, and where the child has
animosity toward the parent which causes mental and physical problems. In re M.B.,
9th Dist. Summit No. 26004, 2012-Ohio-687 (child exposed to verbal and physical
abuse due to parents arguing and fighting); In re D.D., 2017-Ohio-8392, 100 N.E.3d
141 (7th Dist.) (child experienced physical manifestations of anxiety when faced with
visiting with father).
{¶8} Here, the record demonstrates that father had a stable home and was
living with his girlfriend and her children. They had lived in an apartment for seven
months but had recently moved into a larger apartment to better accommodate
H.J.H. and the child he and his girlfriend were going to have. Father had stopped
using heroin almost three years prior to the hearing and had stable employment.
Although father had been charged with a DUI two years before the hearing, he had
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OHIO FIRST DISTRICT COURT OF APPEALS
stopped drinking regularly. He also had found a daycare to care for H.J.H. while he
was at work.
{¶9} The GAL’s report indicates that the focus of the GAL was to provide a
recommendation to assist the court with determining H.J.H.’s best interests, yet he
found father unsuitable. The GAL was “concern[ed] because [father] wants to uproot
[H.J.H.] from her life and support system in Colerain and move her to Northern
Kentucky where she is unfamiliar [sic].” He also noted that father had not been to
doctor’s appointments, although testimony from father and grandmother indicated
that grandmother had not permitted him to take H.J.H. to the doctor.
{¶10} The GAL also opined that father’s support system would be weak if
father needed help, and was concerned that father’s name was not on the lease to his
apartment in the event that he and his girlfriend broke up. Although father had
worked full time for the last year, the GAL was worried about father and his
girlfriend’s finances once their baby was born. The GAL also believed that father had
“not built enough of a record to prove stability and fitness in this case,” but the
burden was on the grandparents to prove unsuitability, not on father. In re Z.P.,
2017-Ohio-7397, 96 N.E.3d 1115, at ¶ 35.
{¶11} The trial court, while determining unsuitability, noted that the
grandparents “have provided exceptional care for [H.J.H.] over the last four and one
half years, and she is thriving in their home.” He found that the grandparents
“prioritized the child’s safety and well-being” and that they “maintain a stable home
environment.” He also noted that grandparents have a three-bedroom home, spend
time with and vacation with H.J.H.’s cousins, and deposit father’s child-support
payments into an account set up for H.J.H.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} In evaluating father’s suitability, the court relied on the GAL’s
recommendation, and was concerned about father’s employment and relationship
stability, and that only his girlfriend’s name was on the lease to their apartment. A
suitability determination, however, is based on father’s current situation, not what
might occur at some time in the future. See In re Davis, 7th Dist. Mahoning No. 02-
CA-95, 2003-Ohio-809, at ¶ 19;
{¶13} The court then held that awarding custody to father would be
detrimental to H.J.H. These findings and comparisons between father and
grandparents, however, are based on a best-interest evaluation. Grandparents may
have a larger home, longer term employment, and live close to other family
members, but that does not render father unsuitable. “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 C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514,
at ¶10; In re Porter, 113 Ohio App.3d 580, 589, 681 N.E.2d 954 (3d Dist.1996).
{¶14} A best-interest test looks at the “best” situation available and places
the child there, but a suitability test requires a detriment to the child. Id.; In re D.D.,
2017-Ohio-8392, 100 N.E.3d 141. A comparison between third parties and parents is
inappropriate because parents have a paramount right to custody of their children
and parental custody is presumed to be in the best interest of the child unless that
placement would be detrimental. Perales, 52 Ohio St.2d at 97, 369 N.E.2d 1047; In
re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990).
{¶15} While the court found that, under a best-interest test, custody of
H.J.H. should be awarded to grandparents, a preponderance of the evidence did not
show that father was unsuitable. The record shows that, at the time of the
magistrate’s hearing, father had a suspended driver’s license and the suspension
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OHIO FIRST DISTRICT COURT OF APPEALS
would continue for two more weeks, he sometimes drove outside his driving
privileges, and he occasionally drove with H.J.H. in the front seat of his car when
driving to the pool or the dumpster of his apartment complex.
{¶16} Based on the evidence, the trial court abused its discretion in awarding
custody to grandparents. The trial court’s decision was based on findings about
grandparent’s care that are not relevant to father’s suitability. Its judgment
determining that an award of custody would be detrimental to H.J.H. and that father
is unsuitable is not supported by sufficient competent and credible evidence. See
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12.
Father’s assignment of error is sustained.
{¶17} We reverse the trial court’s judgment, enter judgment awarding
custody of H.J.H. to father, and remand this cause to the trial court to set a visitation
schedule for grandparents. See App.R. 12(C).
Judgment accordingly.
MYERS J., concurs.
MILLER, J., concurs in part and dissents in part.
I write separately because while I agree with the majority that the judgment
should be reversed, I disagree with the disposition. I would not enter judgment in favor
of father, but would remand the case to the trial court so that it can determine father’s
suitability using the appropriate criteria.
Please note:
This court has recorded its own entry on the date of the release of this opinion.
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