In re H.R.P.T.

[Cite as In re H.R.P.T., 2021-Ohio-2285.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
IN THE MATTER OF: : Case No. 20CA3915
:
H.R.P.T. : DECISION AND JUDGMENT
: ENTRY
________________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant-Mother, Jennifer Tackett aka
Bennett.
Randall L. Lambert, Ironton, Ohio, for Appellee, Daisy Bennett.
Christopher Tackett, Father.1
________________________________________________________________
Smith, P. J.
{¶1} Jennifer Tackett, the mother of minor child, H.R.P.T., and “Appellant”
herein, appeals the judgment entry of the Scioto County Common Pleas Court,
Juvenile Division, entered April 8, 2020. The trial court found that Appellant is an
unfit and unsuitable parent and that it is in the best interest of H.R.P.T. that legal
custody be granted to the child’s grandmother, Daisy Bennett, “Appellee.” On
appeal, Appellant asserts that the trial court’s determination finding her unsuitable
is against the manifest weight and sufficiency of the evidence. However, having
fully reviewed the record, we find the trial court’s decision that Appellant
1
Christopher Tackett has not participated in this appeal.
Scioto App. No. 20CA3915 2
contractually relinquished custody of H.R.P.T. is supported by competent, credible
evidence and is not against the manifest weight of the evidence. Therefore, we
find Appellant’s arguments are without merit and the sole assignment of error is
overruled. The judgment of the trial court is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} H.R.P.T. was born on September 26, 2012, and at the time of
the custody hearing was seven years old. Appellant and Christopher Tackett,
“Tackett,” are H.R.P.T.’s biological parents. Appellee is H.R.P.T.’s maternal
grandmother. Appellee is a pediatric nurse with a Master’s degree. She has been
employed providing respite care for one patient for over 20 years.
{¶3} Appellant is 39 years old. She has never obtained a high school
diploma or GED. She is not employed. She does not receive Social Security
Disability. In addition to H.R.P.T., Appellant and Tackett have an adult daughter,
Madison Bentley, age 20 and K.T., who is two years older than H.R.P.T. Tackett
also has two sons. Tackett is not employed.
{¶4} Appellee filed a pro se Petition for Custody in the Scioto County Court
of Common Pleas, Juvenile Division, on August 27, 2019. Appellee alleged that it
was in the child’s best interest that Appellee have custody and described
H.R.P.T.’s parents as follows:
Mother is unable to care for [H.R.P.T.]. Mother has severe
back problems, lupus, also mental illness. Father has liver
Scioto App. No. 20CA3915 3
failure [sic] in a lot of pain. Mother has attacked a 16 yr. old
niece [sic] choking her and yelling “I’m going to kill you.”
Police called. This was witnessed by 5 people including
myself.
{¶5} Appellee further requested an emergency order, based on the
above allegations, stating, “I am concerned [H.R.P.T.] is in danger when her
mother is out of control.” Appellant and Tackett were served copies of the petition
for custody and ordered to personally appear for a hearing on temporary orders on
September 5, 2019.
{¶6} On September 5, 2019, an attorney on behalf of Appellee filed a notice
of appearance in the matter. Subsequent to the hearing on temporary orders, the
trial court found that service was perfected on all parties and the court had
jurisdiction to proceed. However, based on the testimony adduced at the hearing,
the trial court did not make temporary orders. The petition for custody was
scheduled for a full hearing on November 5, 2019.
{¶7} At the full hearing, Appellee testified that H.R.P.T. was born in
September 2012. At that time, Appellee lived in a residence on Birch Hollow in
the Sciotoville, Ohio area with Appellant and Tackett, Shianne, (Appellee’s 17-
year-old granddaughter), K.T., H.R.P.T., and Tackett’s two sons. H.R.P.T. was a
premature baby and was in the hospital’s neonatal intensive care unit (NICU) for
three weeks before she came home.
Scioto App. No. 20CA3915 4
{¶8} Appellee testified Shianne, H.R.P.T., and she moved into a camper
next to the Birch Hollow residence in January 2013. She testified she moved into
the camper because “there was a lot of argumentation, cussing people out, um,
[H.R.P.T.] was not allowed to be around smokers and they smoked in the house. It
was just not a good environment for [H.R.P.T.] or Shianne at that time.” They
lived in the camper four to five months. During that time, Appellee took care of
H.R.P.T., getting up with her in the night for feedings. The parents did not provide
care for H.R.P.T. While living in the camper, Appellee provided financial support
for everyone living in the residence and in the camper.
{¶9} Appellee, Shianne, and H.R.P.T. next moved to a residence on Harding
Avenue in Sciotoville. They lived there until H.R.P.T. was approximately five
years old. During that time, the child’s parents and K.T. remained at the Birch
Hollow residence. Appellant and Tackett did not provide financial support of any
type for H.R.P.T. Appellee was the sole provider. During this time, Appellee
continued to financially support Appellant and Tackett. Appellee paid for
groceries, utility bills, and car repair. Eventually, Appellant, Tackett and K.T.
came to live with Appellee at the Harding Avenue location.
{¶10} The group which included Appellee, Appellant, Tackett, H.R.P.T. and
K.T. next lived in Minford, Ohio in a residence owned by Tackett’s family.
Appellee continued to pay the utilities and other expenses at the Minford residence.
Scioto App. No. 20CA3915 5
H.R.P.T.’s parents still did not provide for her financially. H.R.P.T. attended
school in Scioto County. Appellee testified Appellant would not get out of bed to
register H.R.P.T. for school and did not drive her to school due to “physical and
emotional and mental problems.”
{¶11} Appellee testified that she moved to Oak Hill, Ohio (Jackson County)
in August 2018. She lived in a modular home with her son, his girlfriend, the
girlfriend’s three children, Shianne, and H.R.P.T. Despite living in a different
county, Appellee drove H.R.P.T. to school daily. Appellee was the exclusive
provider of care and financial support for H.R.P.T.
{¶12} Appellee testified H.R.P.T. attended first grade at an elementary
school in Jackson County until Appellant removed her from school on or about the
day Appellee’s petition for custody was filed. Appellee also continued to pay
utilities at the Minford residence until the petition was filed. Currently, Appellee
pays only Appellant’s phone bill and one other bill because they are in Appellee’s
name.
{¶13} Appellee testified that two weeks prior to her filing of the petition
Appellant pulled into the driveway at the Minford residence. Shianne got out of
the car to get in another one. Appellant ran down the driveway and threw Shianne
to the ground, choked her, and screamed “I’m going to kill you.” Appellee and
Tackett managed to free Shianne from Appellant. There were several witnesses
Scioto App. No. 20CA3915 6
and the police were called. Appellee did not file a report because she wanted
Appellant to get mental health care. Appellee testified that since that day
Appellant has threatened Appellee and that is why she took H.R.P.T. out of school.
{¶14} Appellee also testified to other instances of Appellant behaving in a
violent manner. A couple of years prior, Appellant slapped Appellee. Another
time, in the McDonald’s line, Appellant got mad at another driver and threatened
to beat her up. Appellee stopped her but Appellant was mad and drove erratically,
almost running over Appellee and scaring K.T. During the years Appellant was
addicted to drugs, Appellant once tried to choke Appellee. According to Appellee,
Appellant fights with Tackett and cusses at the children.
{¶15} Appellee testified Appellant has physical conditions including lupus,
back problems, and a clotting disorder. Appellant was diagnosed with bipolar
issues when she was 10 or 11. She was sent to military school for a year. She saw
a psychiatrist. Recently Appellant has been diagnosed with borderline personality
disorder. Appellant does not take medication for either mental condition but takes
Methadone and medication for her back. Appellant has used Methadone for eight
years. Appellant has applied for Social Security Disability for physical and mental
issues.
Scioto App. No. 20CA3915 7
{¶16} Appellee testified she is concerned for the children’s safety because
Appellant does not supervise them. Appellant stays in bed and takes pain
medication. She “drifts off” while driving.
{¶17} Appellee testified K.T. failed third grade. She missed a lot of school
and is now home-schooled. K.T. isolates herself and likes to play games. She
loses sleep because she plays games and stays up all night. By contrast, H.R.P.T.
is a more active child. Appellee has a routine with H.R.P.T. H.R.P.T. does well in
school and started to read in kindergarten.
{¶18} At the time of the hearing, Appellee had not seen H.R.P.T. for 60
days. She did not want to traumatize her more due to the legal situation. Appellee
sent birthday balloons to H.R.P.T. at school. She has not been allowed to visit.
She does not know if H.R.P.T. is getting to school on time.
{¶19} Appellant cross-examined Appellee. Appellant alluded to a sexual
incident between Shianne and K.T. On redirect, Appellee testified she had no
direct knowledge of anything other than what Appellant had told her. Children’s
Services was not contacted. K.T. was not examined and no police report was filed.
{¶20} Appellant also testified. On direct she testified that H.R.P.T. was
happy with them and always had been. She was not in a bad or dangerous
Scioto App. No. 20CA3915 8
environment. Appellant currently resides with Tackett and her three daughters in
Minford in a home owned by her in-laws.2
{¶21} Appellant acknowledged she was addicted for six to seven years and
also dated a drug dealer during that time. She also acknowledged a felony
conviction for misuse of a food stamp card, although she testified someone else left
it at her home. She completed the terms of her community control in 2013.
Appellant’s last employment was in 2015 or 2016. She drove Appellee to work
and Appellee gave her money to do so. Appellant also acknowledged she was
denied Social Security benefits for lack of medical evidence.
{¶22} Appellant uses Methadone for her addiction. She rides to a
Methadone clinic in Chillicothe with a friend. She also has counseling there.
The trial court asked Appellant why her drug tests did not show Methadone.
Tackett interjected that his did not either. Both denied masking the drug.
Appellant testified she takes a very low dose and also takes Gabapentin for back
pain and Cyclobenzaprine, a muscle relaxer. The court noted these other drugs
also did not show up on her drug tests.
{¶23} Appellant admitted she did not file a police report, contact Children’s
Services, or take K.T. for a medical exam despite the vague allegation of sexual
2
The record indicates at times other adults have resided with Appellant and Tackett.
Scioto App. No. 20CA3915 9
abuse. Appellant testified she did take her to Mahajan Therapeutics to see a
counselor as a result of the abuse. She does not know if they filed any reports.
{¶24} Appellant’s oldest daughter, Madison Bentley, testified she has lived
with her mother most of her life. Madison attended college at Kent State in 2018
but stayed for only one semester. Since then she has worked at a daycare center.
{¶25} Madison testified H.R.P.T. has done well in the last 60 days and is
“well-taken care of.” She testified the child is worried Appellee would take her
from Appellant. Madison admitted that she has lived with Appellee most of her
life and that Appellee paid most of the bills. She admitted Appellee has tried to
steer her to right decisions.
{¶26} Madison testified she lived with her boyfriend who was over the age
of 18 when she was a junior in high school. Her mother did not know where she
was living because she was free to do as she wanted and she “just didn’t come
home.” Madison testified her mother didn’t know she was living with the
boyfriend but “just knew that I wasn’t living with her.”
{¶27} At the conclusion of the full hearing, the trial court ordered both
parents to complete a hair follicle test. On November 10, 2019, Appellant and
Tackett wrote a joint letter to the trial court indicating they were willing to comply
with the trial court’s request for a hair follicle test but were unable to spare the
money for the procedure. Appellant explained any funds they had were spent on
Scioto App. No. 20CA3915 10
the children’s seasonal clothing and gifts. Appellant suggested the court or
Appellee cover the costs of the test.
{¶28} On November 25, 2019, Appellant and Tackett wrote another letter to
the trial court. Appellant and Tackett characterized their home as filled with love
and based on household routines such as having snacks, doing homework, clearing
the dinner table, watching shows or plays, and then having bath time. Appellant
and Tackett, while acknowledging that most of the years of the child’s life they had
lived with Appellee, and also acknowledging that the child was happy and well-
adjusted, suggested that Appellee’s petition was filed for the purpose of “using [the
child] as a weapon,” and trying to “break up” the family. Appellant acknowledged
that she had made mistakes in her life but stated that she had learned from her
mistakes and would never put her children in harm’s way.
{¶29} On January 3, 2020, Appellee’s counsel filed a closing argument. On
April 8, 2020, the trial court filed the appealed-from judgment entry. Pertinent to
this appeal, the entry states as follows:
The Court does not believe the Mother is fit and suitable. The
Court finds by a preponderance of the evidence that she
contractually relinquished custody of this Child when she
allowed the Petitioner to provide for and support her for her
entire life and to move away with her for the prior year. * * *
The Court further finds that an award of custody to her, the
Mother, would be detrimental to the Child. She is unstable,
provides no support, has no home, has no means, uses very
poor judgment and sets a bad example, among many other
shortcomings.
Scioto App. No. 20CA3915 11
{¶30} This timely appeal followed.
ASSIGNMENT OF ERROR
I. THE TRIAL COURT DETERMINATION THAT
THE BIOLOGICAL MOTHER WAS UNSUITABLE
WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
A. STANDARD OF REVIEW
{¶31} A trial court has broad discretion in determining custody matters. See
Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, ¶ 9
(4th Dist.), citing Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008(1996). Consequently, we can sustain a challenge to a trial court's custody decision
only upon a finding that the trial court abused its discretion. See Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). When applying an
abuse-of-discretion standard, we are not free to merely substitute our judgment for
that of the trial court. See In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566
N.E.2d 1181 (1991).
{¶32} However, in this appeal, Appellant has challenged the trial court’s
finding that she contractually relinquished custody of H.R.P.T. to Appellee. The
Supreme Court of Ohio “ ‘ “has consistently held that the determination of whether
‘a parent relinquishes rights to custody’ is a question of fact which, once
determined, will be upheld on appeal if there is some reliable, credible evidence to
Scioto App. No. 20CA3915 12
support the finding.” ’ ” In re JRA, 4th Dist. Washington No. 13CA18, 2014-Ohio-
4463, at ¶ 18, quoting In re Mullen, 129 Ohio St. 3d 417, 2011-Ohio-3361, 953
N.E.2d 302 at ¶ 15, quoting Masitto v. Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d
857 (1986). We review whether a custody determination is against the manifest
weight of the evidence by weighing the evidence and all reasonable inferences,
considering the credibility of witnesses, and determining whether in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial
ordered. See In the Matter of B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-
3178, ¶ 28, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 20.
LEGAL ANALYSIS
{¶33} “ ‘ “The right of a parent to the custody of his or her child is one of
the oldest fundamental liberty interests recognized by American courts.” ’ ” In the
Matter of E.S.,4th Dist. Pickaway No. 17CA16, 2018-Ohio-1902, at ¶ 25, quoting
State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d
809, ¶ 31, quoting In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875
N.E.2d 582, ¶ 10. Consequently, “[p]arents have a constitutionally protected due
process right to make decisions concerning the care, custody, and control of their
children, and the parents' right to custody of their children is paramount to any
Scioto App. No. 20CA3915 13
custodial interest in the children asserted by nonparents.” In re Mullen, supra, 953
N.E.2d 302, ¶ 11. Nevertheless, a parent's paramount right to custody of his or her
children is not unlimited. Id. Instead, “ ‘the natural rights of a parent * * * are
always subject to the ultimate welfare of the child, which is the polestar or
controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d 100,
106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58
(Fla.App.1974); accord In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d
308, ¶ 20.
{¶34} Furthermore, if a parent is unsuitable, the parent forfeits his or her
paramount right to custody. E.S., supra at ¶ 26, citing In re Perales, 52 Ohio St.2d
89, 98-99, 369 N.E.2d 1047 (1977). “In a child custody proceeding between a
parent and a nonparent, a court may not award custody to the nonparent without
first determining that the parent is unsuitable to raise the child, i.e., without
determining by a preponderance of the evidence that the parent abandoned the
child, contractually relinquished custody of the child, or 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.” Hazelbaker, supra at ¶ 10, citing
Perales, 369 N.E.2d 1047, at syllabus. “The general rule in Ohio regarding
original custody awards in disputes between a parent and a nonparent is that
‘parents who are “suitable” persons have a “paramount” right to the custody of
Scioto App. No. 20CA3915 14
their minor children unless they forfeit that right by contract, abandonment, or by
becoming totally unable to care for and support those children.’ ” Masitto, supra,
488 N.E.2d 857 (1986), quoting Perales at 97, 369 N.E.2d 1047.
{¶35} Appellant asserts that the trial court’s determination was
against the manifest weight and sufficiency of the evidence. Appellant argues that
testimony in the trial court record evidences that she is a mother who is over a
decade clean, and who has raised other children who appeared to be well-adjusted.
Appellant further argues that the trial court disregarded all the positive evidence
presented on her behalf and focused on her marijuana and methadone use to justify
a finding of unsuitability. Appellant concludes that there is scant evidence, if any,
to support a finding that she contractually relinquished H.R.P.T., or that an award
of custody would be detrimental to the child.
{¶36} The Third District considered the issue of contractual relinquishment
when it affirmed the judgment of the trial court in In re Galan, 3d Dist. Seneca No.
13-02-44, 2003-Ohio-1298. The appellate court found that the evidence presented
to the trial court supported findings that the mother had contractually relinquished
custody of her daughter and that awarding custody to the mother would be
detrimental to the child. In Galan, “contractual relinquishment” did not involve a
written agreement or prior custody findings, but instead was evinced in the
mother’s pattern of acquiescence to others since the child’s birth, primarily the
Scioto App. No. 20CA3915 15
paternal grandparents, with regard to the physical custody, care and support of her
minor child.
{¶37} In Galan, the minor child’s parents were never married. From the
time of the child’s (Delee) birth until the age of four, she lived with her parents at
the Galans’ (the paternal grandparents’) home in Fostoria, Ohio. During that time,
the paternal grandmother Mrs. Galan was the primary caretaker.
{¶38} At age four, Delee’s mother, Sandra, and Delee left the Galans’ home
to live with the maternal grandparents in Leipsic, Ohio. There Delee was also left
in the maternal grandmother’s primary care. One year later, Sandra and Delee
moved into a one-bedroom apartment but shortly thereafter returned to the
maternal grandparents’ home. Delee attended kindergarten and part of her first-
grade year in Leipsic.
{¶39} Sometime thereafter, Sandra met a convicted drug felon and moved
with him to Toledo, Ohio to live in his mother’s house. In December 1999, Sandra
placed Delee with the Galan grandparents in Fostoria. In 2001, Sandra returned to
Leipsic, obtained employment, and planned to keep Delee with her. The Galans
subsequently initiated a complaint for custody, alleging that the mother had
voluntarily relinquished custody of the child in December 1999; that the child’s
contact with her mother had been sporadic; and that it would be in Delee’s best
interest to remain in the Galans’ custody.
Scioto App. No. 20CA3915 16
{¶40} At a two-day hearing, the magistrate found by clear and convincing
evidence that both parents of the child were not suitable custodians and had
forfeited their parental rights. Sandra raised timely objections. The trial court
rescheduled the matter for hearing and subsequently found Sandra to be unfit.
{¶41} On appeal, mother asserted that the court’s findings, pursuant to In re
Perales, supra, were unsupported by the evidence. In affirming the trial court’s
decision, the Third District Court noted:
There is competent, credible evidence to support the assertion
that Sandra contractually relinquished custody of Delee and
that if Sandra were to regain custody of Delee it would be
detrimental to the child. With respect to contractual
relinquishment of custody, the record reflects that Delee was
voluntarily placed with the Galans by her mother on December
3, 1999, when [Mr.Galan] picked Delee up from school in
Leipsic by agreement. That evening Sandra and [Mrs. Galan]
had a telephone conversation wherein Sandra placed Delee in
the Galans’ custody for an indefinite period of time. Both
parties confirm the existence of the agreement.
Id. at ¶ 19.
{¶42} The appellate court further observed:
Other testimony supports the trial court’s additional finding that
Delee’s placement with Sandra would also be detrimental to the
child. Multiple witnesses testified that during the first four
years of Delee’s life when Sandra and her child lived in the
Galans’ home, [Mrs. Galan] was the child’s primary caretaker.
When Sandra and Delee moved in with Sandra’s parents, it was
Sandra’s mother who was Delee’s primary caretaker. The
record reflects that the only time Sandra was primarily
responsible for Delee was the brief period when Sandra rented
Scioto App. No. 20CA3915 17
[the apartment] in Leipsic, before she and the child returned to
Sandra’s parents’ home. (Emphasis added.)
Id. at ¶ 20.
{¶43} Finally, the Galan court observed:
[T]he evidence that Sandra consistently placed her own needs
above those of her daughter was also properly considered by the
trial court as indicia of unsuitability. After meeting her
boyfriend Danny, Sandra moved to Toledo to be with Danny
uprooting Delee once again. At this time, Delee was a student
in first grade and was just weeks away from completing the
second quarter of the school year. Because of her mother’s
move and the child’s placement in the custody of her paternal
grandparents, Delee was never able to complete the second
quarter at St. Wendolyn Elementary. ***[W]itnesses at St.
Wendolyn’s testified that Sandra never attended a parent-
teacher conference and that two years passed before the school
had Sandra’s address. Witnesses also testified that Sandra’s
visitation, up until the filing of the Galans’ complaint for
custody was sporadic.
Id. at ¶ 21.
{¶44} Upon review of the law in Perales, the Galan court concluded
the trial court’s decision that Sandra contractually relinquished custody of
her daughter to the Galans in December 1999 was supported by competent,
credible evidence. The court also concluded the trial court’s additional
finding that an award of custody to Sandra would be detrimental to Delee
was supported by the evidence. The court found no abuse of discretion in
the trial court’s finding that Sandra was an unsuitable parent.
Scioto App. No. 20CA3915 18
{¶45} We have fully reviewed the record which includes the transcript of the
full hearing on November 5, 2019. The trial court set forth a detailed analysis of
the evidence presented at the full hearing. Upon review of the testimony, we agree
there is competent, credible evidence to support the trial court’s factual finding that
Appellant contractually relinquished custody of H.R.P.T. to Appellee.
{¶46} In the trial court’s discussion of the testimony provided by Appellant,
Appellee, Tackett, and Appellant’s adult daughter, the trial court observed:
The Mother does not provide for her children. She allowed
Petitioner to pay her rent and bills most of the child’s life. * * *
She allowed the Petitioner to keep, and care for, this child for
the school year immediately preceding the Petition. She did not
pay child support and did not contribute to her care. She
refused to assist in transporting the child to and from school.
She made excuses of why she was unable to help. The
transportation allowed the child to finish out the school year
after a relocation. This, the Court finds, was a contractual
relinquishment of custody. The Petitioner, who works full time
and who was paying the Mother’s rent, provided all of the
transportation as well. * * * The Court finds by a
preponderance of the evidence that she contractually
relinquished custody of this child when she allowed the
Petitioner to provide for and support her for her entire life and
to move away with her for the prior year.
{¶47} As is evident, the trial court’s summary and finding comports
with the testimony given at the full hearing and set forth above. As in Galan, the
record reflects that the only time Appellant has been primarily responsible for
caring for H.R.P.T. is for a very brief period of time, in this case, 60 days.
Furthermore, that period occurred only after Appellee’s petition was filed and
Scioto App. No. 20CA3915 19
Appellant decided to remove H.R.P.T. from her elementary school at the end of the
first week of the school year. The evidence further demonstrates that Appellant
has not financially supported H.R.P.T. her entire life.
{¶48} There is also competent, credible evidence to support the trial court’s
finding that an award of custody to Appellant would be detrimental to H.R.P.T. In
the trial court’s discussion, the trial court noted that the mother is “unstable,
provides no support, has no home, has no means, uses very poor judgment and sets
a very bad example, among many other shortcomings.” Again, these conclusions
can be made based upon analysis of the testimony at the full hearing, set forth
above. And, as in Galan, the record reflects that Appellant has not placed
importance upon caring for her child, physically or financially, until after
Appellee’s petition was filed. The trial court’s decision specifically stated:
The mother is a recovering addict. She was in active addiction
from 2011 to 2017. * * * She maintains sobriety by attending a
Methadone treatment facility every two weeks. She rides there
with a friend. The facility is a long distance from her home.
She goes there even though there is one much closer to her
home. * * * She could easily ride [to the closer facility] with
[her husband] saving both time and money. * * * She does not
work, yet is not eligible for disability. * * * She caused this
child, a premature child, to move out of a home to a camper
parked in the drive because she would rather smoke and use
drugs.
{¶49} As indicated, Appellant contends the trial court focused upon
Scioto App. No. 20CA3915 20
her Methadone and marijuana use and disregarded that she had been a decade
clean, had raised older children who appeared well-adjusted, and had disregarded
other positive evidence in the record. We find this characterization disregards the
sum of the evidence presented at the full hearing. While Appellant may have been
free of addiction of illegal substances for approximately ten years, the evidence
does not demonstrate that during that ten-year period Appellant has managed to
complete her education, find and maintain employment, or participate in active
parenting.
{¶50} While Appellant has apparently had two older daughters in her
custody, K.T. and Madison, well-adjusted may possibly describe only
one―Madison, who testified at the hearing. K.T. did not attend the hearing. K.T.
was described as “sweet.” Unfortunately, the evidence also demonstrates that K.T.
failed third grade; that she isolates herself; and that Appellant does not have a
routine with K.T. but allows her to stay up late at night playing games. We find it
doubtful that this evidence suggests a well-adjusted child.
{¶51} And, while the transcript reflects Madison to be an intelligent and
articulate 20-year-old woman, we note that Madison has not completed her
education although it appears she was once enrolled at Kent State. She is currently
unemployed and not furthering her education. While still a minor, Madison lived
with her boyfriend who was over age 18 for two months and Appellant apparently
Scioto App. No. 20CA3915 21
did not trouble herself to find out where her daughter was. Importantly, Madison
testified that while her mother was addicted for several years, Madison resided
with her father. The admirable but limited success Madison has made thus far in
her life may not be fully or fairly attributed to Appellant.
{¶52} Appellant also claims the trial court disregarded other positive
evidence in the record. However, Appellant fails to direct us to this evidence and
we are unable to surmise what that evidence may be.
{¶53} In conclusion, we find the aforementioned testimony provided at the
full hearing provides a credible basis for the trial court’s findings. The trial court’s
decision that Appellant contractually relinquished custody of H.R.P.T. to Appellee
by failing to provide financial support for the child her entire life and allowing
Appellee to move away from her for the entire year preceding the petition is
supported by competent credible evidence. The trial court’s additional finding that
an award of custody to Appellant would be detrimental to H.R.P.T. is also
supported by the evidence. These findings cannot be found to be against the
manifest weight of the evidence.3 For the foregoing reasons, we cannot say that
the trial court’s decision granting custody to Appellee was against the manifest
weight and sufficiency of the evidence.
3
“ ‘[T]hough sufficiency and manifest weight are different legal concepts, a finding that a judgment is supported by
the manifest weight of the evidence necessarily includes a finding that sufficient evidence supports the judgment..’ ”
In re L.B., 10th Dist. Franklin Nos.19AP-644, 19AP-645, 2020-Ohio-3045, at ¶ 29, quoting In re C.N., 10th Dist.
No. 15AP-67, 2015-Ohio-2546, ¶ 9.
Scioto App. No. 20CA3915 22
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court, Juvenile Division, 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.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
__________________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.