In re D.B.

[Cite as In re D.B., 2016-Ohio-7910.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
D.B. : CASE NO. CA2016-04-067
: OPINION
11/28/2016
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2013-0190
D. Joseph Auciello, Jr. 306 South Third Street, Hamilton, Ohio 45011, for appellant, L.B.-I.
Mary Lou Kusel, 6 South Second Street, Suite 317, Hamilton, Ohio 45011, for appellees, J.B.
and A.G.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Department of Job & Family Services
Carol Garner, 9435 Waterstone Blvd., Suite 140 Cincinnati, Ohio 45249, guardian ad litem
PIPER, J.
{¶ 1} Appellant, L.I.-B. ("Mother"), appeals a decision of the Butler County Court of
Common Pleas, Juvenile Division, granting legal custody of her child to the child's maternal
uncle ("Uncle").
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{¶ 2} Butler County Children Services ("the Agency") filed a complaint alleging that
Mother's child, D.B., was an abused and dependent child. The Agency's allegations of abuse
and dependency were predicated upon a report that D.B. and Mother were abused by
Mother's boyfriend. The complaint alleged that D.B. witnessed an instance of domestic
violence between Mother and her boyfriend, and that Mother asked D.B. to call 9-1-1.
However, Mother's boyfriend threatened to "kill both of them," and the child did not call 9-1-1.
The other allegations included that Mother's boyfriend threw the child against the wall during
another instance of domestic violence.
{¶ 3} After the child was adjudicated dependent, D.B. remained in Mother's care
under protective supervision. As a condition of protective supervision, the court ordered no
contact between D.B. and Mother's boyfriend. Subsequently, the Agency was forced to
remove the child from Mother's care when she married her boyfriend, and allowed the
contact previously prohibited by the court.
{¶ 4} Mother's case plan with the Agency had included domestic violence and mental
health assessments, and a requirement to follow any recommendations arising from the
assessments. While Mother completed the mental health assessment, she did not initially
complete the domestic violence assessment. Despite the child witnessing the event, Mother
denied the claim that her then-boyfriend committed domestic violence against her. After D.B.
was removed from her home, Mother completed a domestic violence course, as well as
anger management. Mother also participated in a psychological evaluation. The results of
the evaluation included a recommendation that Mother complete parenting classes.
However, Mother became reluctant to complete the Agency's plan and finish the classes.
The Agency made no any further referrals given Mother's reluctance and hesitancy to work at
completing the Agency's plan.
{¶ 5} Meanwhile, D.B. was placed with Uncle and did well in his care. His grades
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improved, he started to receive tutoring, and he began participating in several extracurricular
activities. Uncle also facilitated visitation between D.B. and his biological father ("Father"),
with whom D.B. was beginning to form a relationship. After D.B. had lived with Uncle and his
live-in girlfriend for approximately a year, Uncle moved for legal custody.
{¶ 6} While the Agency supported Uncle's motion, Mother opposed Uncle having
custody of D.B., indicting she wanted to reunify with her child. Father also opposed the
motion, and asked the juvenile court to award him custody. Uncle's motion was heard by a
magistrate. During the hearings, Mother testified that she was aware of the no-contact order,
and that despite the order, she married the man with whom D.B. was to have no contact.
Mother even had D.B. attend the wedding. Mother testified that she would divorce her
husband if it meant that she could regain custody. The magistrate also heard testimony from
an Agency caseworker who testified that Mother's husband did not complete the case plan
items suggested by the Agency, and that he had a notable criminal history, which included
violent crimes.
{¶ 7} After the hearings, the magistrate granted Uncle legal custody, and Mother filed
objections. The juvenile court held a hearing on Mother's objections, and overruled them.
The juvenile court then adopted the magistrate's decision awarding Uncle legal custody.
Mother now appeals the juvenile court's ruling, raising the following assignment of error.
{¶ 8} THE TRIAL COURT ERRED BY FINDING CLEAR AND CONVINCING
EVIDENCE TO SUPPORT TRANSFER OF LEGAL CUSTODY TO A RELATIVE FINDING
THE FACTORS OF R.C. 3109.04(F)(1) PRESENT.
{¶ 9} Mother argues in her assignment of error that the juvenile court erred in
granting legal custody of D.B. to Uncle.
{¶ 10} 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,
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prior to the dispositional hearing, files a motion requesting legal custody of the child. Legal
custody vests in the custodian the physical care and control of the child while residual
parental rights and responsibilities remain intact. In re M.M., 12th Dist. Fayette No. CA2010-
12-034, 2011-Ohio-3913, ¶ 7. Unlike permanent custody, granting legal custody does not
terminate the parent-child relationship. Id. A juvenile court "may award legal custody to a
nonparent upon a demonstration by a preponderance of the evidence that granting legal
custody to the nonparent is in the child's best interest." In re C.A., 12th Dist. Butler No.
CA2014-07-165, 2015-Ohio-1410, ¶ 13. A preponderance of the evidence is evidence that is
of a greater weight or more convincing than the evidence which is in opposition to it. In re
L.A.B., 12th Dist. Fayette No. CA2012-03-008, 2012-Ohio-5010, ¶ 12.
{¶ 11} A juvenile court must base its custody determination on the best interest of the
child. R.C. 3109.04. As pertinent to the case at bar, and in determining the best interest of
the child, R.C. 3109.04(F)(1) requires the juvenile court to consider all relevant factors, which
include:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child's wishes and
concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of
the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly
affect the child's best interest;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
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(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
parent pursuant to a child support order under which that parent
is an obligor;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act
that is the basis of an adjudication; whether either parent or any
member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of
the Revised Code or a sexually oriented offense involving a
victim who at the time of the commission of the offense was a
member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or
household that is the subject of the current proceeding and
caused physical harm to the victim in the commission of the
offense; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child
or a neglected child;
(i) Whether the residential parent or one of the parents subject to
a shared parenting decree has continuously and willfully denied
the other parent's right to parenting time in accordance with an
order of the court;
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state
{¶ 12} An appellate court reviews a juvenile court's custody determination for an
abuse of discretion. In re C.A., 2015-Ohio-1410 at ¶ 15. The juvenile court's exercise of its
discretion in custody matters is entitled to 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. Id. Thus, an appellate court will afford deference to the juvenile court's findings
regarding the credibility of the witnesses. Id.
{¶ 13} In considering a claim that the juvenile court's decision is contrary to the
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manifest weight of the evidence, "a reviewing court must determine whether the finder of fact,
in resolving conflicts in the evidence, clearly lost his way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered." In re
X.B., 12th Dist. Butler No. CA2014-07-168, 2015-Ohio-1174, ¶ 21. The reviewing court is
guided by the presumption that the juvenile court's findings are correct. Id. Thus, where an
award of custody is supported by a substantial amount of credible and competent evidence,
the reviewing court will not reverse the juvenile court's custody determination on the grounds
that it is contrary to the manifest weight of the evidence. Id.
{¶ 14} After reviewing the record, we find that the juvenile court's custody
determination was supported by the preponderance of the evidence, and was not contrary to
the manifest weight of the evidence. The magistrate fully reviewed and balanced the
statutory factors. The magistrate gave consideration to the parent's wishes for the child.
Mother asked the court to return D.B. to her custody, and opposed Uncle's motion for legal
custody. While Father also asked for custody, he did not oppose Uncle having legal custody
of D.B. Nor did Father deny that the child was "good" with Uncle. The child was not
interviewed, and the court did not learn of the child's wishes. Even so, the child's guardian
ad litem suggested that Uncle have legal custody.
{¶ 15} Regarding the child's interaction and interrelationship with the people in his life,
the court considered that D.B. was in Mother's custody, even after being adjudicated
dependent, until he was removed when Mother violated the no-contact order by having D.B.
around the man who mistreated D.B. While the child loves Mother, and was happy in her
care, the record also demonstrates that Mother was not actively involved in the child's
schooling or activities once he began living with Uncle. Nor did Mother acknowledge the
child's birthday or Christmas, and also did not allow the child to take past gifts she had given
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him to Uncle's home.1 Mother's visitation with the child had to be supervised, as she was
prone to having "inappropriate conversations" with the child about his removal from her
home. Within six months of the hearing, Mother refused to communicate with Uncle, and
often changed her phone number without notifying him of the change.
{¶ 16} Despite there being a no-contact order, Mother facilitated contact between the
child and his abuser. During Mother's testimony, she confirmed that she was fully aware of
the no-contact order, and in spite of it, she chose to marry the man despite knowing her new
husband could not have any contact with D.B. pursuant to court order. Mother continues to
live with her husband.
{¶ 17} Mother's husband, though he was fully aware of the no-contact order, directly
communicated with the child, and on one occasion, suggested that the child physically
assault another child with whom D.B. was having conflict. The court also heard testimony
from Mother's husband that his criminal history included aggravated burglary, aggravated
menacing, burglary, arson, and parole violations. Mother's husband, despite completing
alcohol and drug assessments, tested positive for marijuana during the pendency of the
proceedings. The magistrate specifically found that Mother's husband having contact with
the child was "overall detrimental to the child."
{¶ 18} Father has had little contact with the child during D.B.'s life, and only recently
began to establish a relationship with the child. Father acknowledged that when the child
was younger, he disciplined D.B. by smacking him in the mouth, causing his lip to split, bleed,
and bruise. The child stayed very briefly with Father before the Agency placed the child with
Uncle, but Father refused to keep the child permanently. Since that time, however, Father
1. On cross-examination, Mother testified that she did not get D.B. Christmas gifts, and stated, "I didn't get him
nothing because I didn't, I ain't have no money. I don't work." The record indicates that Mother receives Social
Security disability payments of $659 per month.
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tried to initiate a relationship with the child, and was granted supervised visitation. The
magistrate found that Father and D.B. are still in the process of "fully developing a bond."
Conversely, the child has thrived with Uncle, and has a loving bond with Uncle and Uncle's
girlfriend. The child acts as a member of Uncle's household and has adjusted well to life in
Uncle's care.
{¶ 19} The court also considered the child's adjustment to his home, school, and
community. The record demonstrated that D.B. is "very comfortable" in his home with Uncle,
and had done better in school than he had before. The child has also become involved in
activities and sports, and continues to receive tutoring in school. The child, who
demonstrated aggressive behaviors when first placed with Uncle, has shown improved
behavior, and interacts well with Uncle's son. According to Uncle's girlfriend, since joining
Uncle's household, the child "kind of enjoys life. He has a good time and he's not always
looking behind his, his [sic] back." Uncle's girlfriend also testified that D.B. has many friends
in the neighborhood. The Agency caseworker testified that when she visited D.B. in Uncle's
home, the child was "comfortable, talkative, friendly, polite."
{¶ 20} While Uncle's home is somewhat small and cluttered, the court specifically
determined that such did not create any safety concerns related to the child. The record also
demonstrates that Uncle passed a home study performed by the Agency. Conversely,
Mother had moved from her former residence to a location that the child had never visited.
The child had only recently begun overnight visits with Father.
{¶ 21} Regarding the mental and physical health of the parties, the court considered
that Mother's psychological evaluation indicated that she needed counseling. However,
Mother's reaction to the counseling suggestion demonstrated to the Agency that counseling
attempts would be unsuccessful due to Mother's "defensiveness," "basic unwillingness to
engage in those types of services," and "her lack of motivation and wiliness to participate."
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The Agency caseworker testified that when she tried to address counseling with Mother,
Mother "got angry," and "didn't want to continue talking."
{¶ 22} Mother's husband was diagnosed with Bipolar Disorder and suffers anxiety,
and Father suffers from post-traumatic stress disorder. Uncle is on dialysis and had only one
kidney that does not function property. However, he testified that his condition does not
interfere with his ability to parent D.B.
{¶ 23} The court also considered that while Uncle has facilitated visitation between
the child and Father, Mother did not. The record indicates that Mother does not
communicate with Father, and testified that she does not get along with others in D.B.'s life.
The magistrate found Mother's ability to honor and facilitate D.B.'s visitation with Father as
"questionable at best."
{¶ 24} The court gave consideration to other statutory factors, noting that the child
was adjudicated a dependent child after the Agency raised safety concerns specific to the
child's contact with Mother's husband. Mother's husband, who has a violent criminal history,
continued to have contact with the child despite the court's no-contact order. The child also
expressed his concerns to Uncle about domestic violence that he witnessed between Mother
and her husband. Mother and her husband continued to deny any domestic violence in their
relationship, and at the time of the hearing, Mother's husband continued to live with her.
{¶ 25} The court acknowledged that Mother and her husband did complete some of
the case plan actions set forth by the Agency. However, neither had shown the ability to
implement the lessons taught in the courses they attended. For example, Mother
demonstrated anger toward the Agency caseworker, yelled at the caseworker, and hung up
on her. Mother's husband was inappropriate with the caseworker, such as screaming in the
caseworker's face, using profanity with her, and displaying signs of aggression such that the
Agency refused to let the caseworker return to the residence due to concern for the
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caseworker's safety.
{¶ 26} Moreover, Mother refused to admit that any domestic violence occurred
between herself and her husband, or her husband and D.B. Mother's refusal was directly
contradicted by testimony that domestic violence between Mother and her husband was an
ongoing issue and that such concerns were never alleviated. Mother, despite knowing of the
no-contact order, chose to marry her husband, and continues to reside with him despite her
marriage and cohabitation being the barrier to reunification with her son. The magistrate
specifically found that Mother never abided by the no-contact order, and that she was
incapable of protecting D.B. "from harm." Further, the magistrate questioned Mother's ability
to make "good judgments in her life," and noted Mother's unwillingness to complete all case
plan actions intended to improve her life and move toward reunification with D.B.
{¶ 27} Despite Mother making some progress on her case plan, she refused to
complete the necessary actions to work toward reunification, and she continues to reside with
a man who has been ordered to have no contact with the child. Conversely, the child is
doing well while in Uncle's care, and is slowing building a relationship with Father. As such,
we find that the juvenile court did not abuse its discretion in finding that Uncle having custody
of D.B. was in the child's best interests. Mother's assignment of error is, therefore, overruled.
{¶ 28} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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