In re J.W.

[Cite as In re J.W., 2021-Ohio-2917.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
IN RE J.W. :
: Case No. 2021 CA 0007
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Juvenile Division,
Case No. 2018-DEP-00040
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 24, 2021
APPEARANCES:
For Appellant-Maternal Grandmother: For Appellee-Father:
JOHN A. BOYD JEFFREY R. STIFFLER
1 Marion Ave., Suite 204 The Heck Law Offices, Ltd.
Mansfield, OH 44903 One Marion Ave., Suite 215
Mansfield, OH 44903
For Appellee-RCCSB:
TIFFANY D. BIRD
731 Scholl Road
Mansfield, OH 44907
Richland County, Case No. 2021 CA 0007 2
Delaney, J.
{¶1} Appellant-Maternal Grandmother appeals the December 29, 2020 judgment
entry of the Richland County Court of Common Pleas, Juvenile Division awarding legal
custody of the minor child, J.W. to Paternal Grandparents.
FACTS AND PROCEDURAL HISTORY
The Relationships
{¶2} A.H. (“Mother”) and J.W. (“Father”) are the biological parents of J.W.
(“Child”), born on March 5, 2016. J.S. and S.S. are the Maternal Grandparents of the
Child. Prior to this appeal, Maternal Grandfather passed away. J.H. and D.H. are the
Parental Grandparents of the Child.
{¶3} Mother and Father were not married and never lived together. At the time
of the Child’s birth, Mother had three children and Father had one child. Mother’s oldest
child was already placed in the custody of Maternal Grandparents, but moved out when
she turned 18 years old. Mother’s other two children were placed in the legal custody of
their father. Mother was the custodial parent of the Child.
{¶4} The following is but a summary of the contentious relationship between
Mother and Father, which has impacted their families. The custodial history of the Child
demonstrates how the parties and the trial court have attempted to mitigate the
consequences of the parents’ choices in order to determine the best interests of the Child.
The Placements
{¶5} On February 15, 2018, the Richland County Children Services Board
(“RCCSB”) filed a complaint alleging the Child was a dependent child due to Mother’s
history of substance abuse and domestic violence between Mother and Father. Maternal
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Grandparents were willing to care for the Child because they were already caring for one
of Mother’s older children. The trial court placed the Child in the temporary custody of
Maternal Grandparents as an interim order on February 21, 2018. On May 29, 2018, the
Child was adjudicated a dependent child.
{¶6} On August 30, 2018, after an allegation of domestic violence in Maternal
Grandparents’ home, the trial court ordered the Child be placed with Father, placed in
daycare for at least 20 hours per week, or placed in foster care. Mother and Father both
filed motions to have the Child placed in their custody. The Child ultimately stayed in the
temporary custody of Maternal Grandparents.
{¶7} After a dispositional hearing, the trial court placed the Child in the temporary
custody of Maternal Grandparents with protective supervision to RCCSB. Mother was
granted visitation with the Child to be supervised by Maternal Grandparents. Father was
granted unsupervised parenting time. (Magistrate’s Decision, Oct. 30, 2018). Paternal
Grandparents facilitated visitation with Father due to the negative relationship between
Father and Maternal Grandparents.
{¶8} On March 1, 2019, RCCSB filed a motion for disposition. It requested the
trial court extend temporary custody of the Child to Maternal Grandparents and protective
supervision to RCCSB. After multiple hearings, the trial court extended temporary custody
with the Maternal Grandparents, protective supervision by RCCSB, and ordered a new
visitation plan for additional visitation with Paternal Grandparents.
{¶9} On August 7, 2019, RCCSB filed a motion for disposition requesting that
Maternal Grandparents be granted legal custody of the Child. Father opposed the motion
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and filed a motion for disposition that he or Paternal Grandparents be granted temporary
or legal custody of the Child.
{¶10} On September 23, 2019, the trial court placed the Child in the temporary
custody of Father. Maternal Grandparents filed a motion to intervene as a party to the
proceedings and a disposition of legal custody of the Child to them.
{¶11} The trial court permitted the Maternal Grandparents to intervene for the
purpose of seeking legal custody of the Child, but they were not made a party to the case.
{¶12} On April 22, 2020, the trial court terminated Father’s temporary custody of
the Child. The Child was placed back in the temporary custody of Maternal Grandparents.
The Hearing
{¶13} Starting on April 28, 2020, a five-day dispositional hearing was held before
the magistrate on the pending motions for legal custody filed by RCCSB, Maternal
Grandparents, and Father. The Child was four years old at the time of the hearing. We
note that Mother and Father have not appealed the judgment of the trial court to award
legal custody of the Child to Paternal Grandparents. The only party appealing the
judgment is Maternal Grandmother, arguing that she should have been awarded legal
custody of the Child. Below is a summary of the evidence presented at the hearing
relevant to Maternal Grandmother’s appeal.
Mother and Father
{¶14} At the time of the hearing, Mother was 42 years old. Tamika Jackson, AOD
Assistant with Family Life Counseling, testified as to Mother’s drug and alcohol treatment.
Mother had a history of illegal drug use and drug seeking behaviors. Mother had not
successfully completed a drug and alcohol treatment services during the pendency of the
Richland County, Case No. 2021 CA 0007 5
proceedings. Mother testified that she started drinking alcohol and smoking marijuana
around the age of 12 after she was given marijuana by her older brother, whom also
struggled with drug abuse and criminal activity. Mother was aware as a teenager that her
father used marijuana on a regular basis. Cheryl Purviance of Family Life Counseling
conducted a mental health assessment of Mother and agreed that Mother grew up in a
family culture of drug abuse, where the use of marijuana was normalized. Mother was
only permitted supervised visitation with the Child due to her drug activity. Mother visited
the Child at Maternal Grandparents’ home.
{¶15} Dr. Aimee Thomas, a licensed psychologist and Executive Director of the
Lighthouse Family Center, conducted a mental health assessment of Father. Father was
44 years old at the time of the hearing. Father was diagnosed with other specified
disruptive disorder, impulse control and conduct disorder, and cannabis use disorder. Dr.
Thomas’ concern for Father was his propensity for anger and domestic violence,
specifically towards Mother. There was a history of domestic violence between Mother
and Father to which both Father and Mother were evasive with details. A video recorded
on Mother’s cell phone was played at the hearing that showed Father confronting Mother
at her residence after the trial court ordered Father and Mother to have no contact. He
violently and repeatedly kicked and banged on Mother’s door, threatening Mother, and
calling her derogatory names. After witnessing the video, Dr. Thomas stated that while
Father had completed an anger management course, he had not internalized the skills.
Dr. Thomas described Father as very charming during his assessment and admitted
Father omitted pertinent information about his criminal history and relationship with
Mother. Dr. Thomas was concerned about Father’s relationships with women and how he
Richland County, Case No. 2021 CA 0007 6
would cope with a teenage daughter. She was concerned that Father did not understand
how his relationship with Mother could affect the Child. There was further testimony that
Father brought the Child to Mother’s home while armed, even though Father may not be
permitted to carry a firearm due to prior felonies.
{¶16} Father used marijuana daily for pain management. He did not have a
medical marijuana card and did not want to get one because it would prevent him from
getting a hunting license.
Maternal Grandparents
{¶17} Maternal Grandmother testified that she and Maternal Grandfather had
been the Child’s caregiver since February 2018. Maternal Grandmother and Maternal
Grandfather were 63 years old at the time of the hearing. Maternal Grandmother testified
she was in good health. She worked full time in a factory, but at the time of the hearing,
she was a temporary worker because of the pandemic. While she was at work, Maternal
Grandfather was the sole caretaker for the Child. The Child did not have any playmates
in their neighborhood and they did not testify if they brought the Child to preschool. When
Maternal Grandmother got home from work, she would care for the Child.
{¶18} Maternal Grandfather testified at the hearing; during his testimony, an
attorney asked if he felt okay because he was speaking very slowly. Maternal Grandfather
had been on disability since 2003 due to a work accident. Because of the work accident,
Maternal Grandfather suffered seizures that he controlled with daily medication, of which
he did not know the name. In April 2020, he neglected to take his medication and suffered
a seizure, resulting in a three-day hospitalization. During his hospital stay, the hospital
Richland County, Case No. 2021 CA 0007 7
staff discovered marijuana in his pocket. Maternal Grandfather was arrested and charged
with a first-degree misdemeanor for possession of drugs.
{¶19} Maternal Grandfather admitted to smoking marijuana two to three times a
day. He stated that he started using it for pain relief in 2007, but he was using it prior to
that time. He did not have a medical marijuana card because it was cheaper to purchase
illegal marijuana. He testified smoking marijuana eased his pain but did not make him
high. He said he did not smoke marijuana around the Child, but waited for an opportunity
when she was taking a nap. Paternal Grandmother testified that she once observed the
Child roll a dollar bill and lick the end like a joint. When she asked who showed the Child
how to do that, the Child responded that she observed Maternal Grandfather. Maternal
Grandmother was not concerned that he smoked marijuana.
{¶20} Both Maternal Grandparents smoked cigarettes around the Child. Paternal
Grandmother testified that the Child smelled like cigarette smoke so strongly after coming
from Maternal Grandparents, the Child needed a change of clothes and a bath. There
was a question whether the Child’s sinus and ear infection was exacerbated by the
Maternal Grandparents’ smoking. When asked if she would comply if the trial court
ordered her to stop smoking around the Child, Maternal Grandmother said she would but
it would infringe on her rights.
{¶21} Maternal Grandparents adapted to the changing custodial arrangements
during the pendency of the case. Mother exercised her parenting time in their home and
they provided Mother transportation. For 18 months, Father had weekend visitations, for
2 months the Child spent alternating weeks with Paternal Grandparents, during which
time the Maternal Grandparents had the Child on weekends. When the Child was placed
Richland County, Case No. 2021 CA 0007 8
in Father’s care in September 2019, the Maternal Grandparents had her for the weekends
to accommodate Mother’s visitations.
{¶22} Maternal Grandparents did not like Father because of the verbal and
physical abuse he had inflicted on Mother. Parental Grandparents did most of the
visitation exchanges due to the animosity. Paternal Grandparents reported that after
coming back from Maternal Grandparents, the Child said that Father was bad, Father hit
Mother, and the Child should not like Father. Maternal Grandparents had a good
relationship with Mother, in that they acknowledged her drug usage and related
behaviors. For example, Maternal Grandmother admitted that Mother had stolen items
from her home when she was over.
Paternal Grandparents
{¶23} Paternal Grandparents were both 67 years old at the time of the hearing.
Paternal Grandmother worked inside the home and Paternal Grandfather was retired and
elected as a Township Trustee. His former jobs included deputy sheriff with the Richland
County Sheriff’s Department, fire investigator with the State Fire Marshall, and a
corrections officer for the Department of Corrections. They were in relatively good health
but Paternal Grandfather had recovered from a complication from a 2016 prostate cancer
surgery. In July 2019, he required surgery and rehabilitation to remove a blood clot. He
was on blood thinners due to atrial fibrillation and blood pressure medication. Prior to the
hearing, Paternal Grandfather had slipped on wet grass and had possibly injured his
shoulder. Paternal Grandfather smoked three cigarettes per day but outside of the
presence of the child.
Richland County, Case No. 2021 CA 0007 9
{¶24} Paternal Grandparents did not meet the Child until she was six months old
and did not start caring for her until the trial court permitted their involvement. They picked
up the Child from Maternal Grandparents for Father’s visitation. For two months they had
the Child in their care on alternating weeks with the Maternal Grandparents. When the
Child was placed in Father’s care for seven months beginning September 2019, Paternal
Grandparents provided much of the care. Father and Paternal Grandparents lived close
to each other. When Father worked long days or was out of town, the Child stayed with
Paternal Grandparents.
{¶25} Paternal Grandparents took the Child to church at least twice a week where
the Child attended Sunday school with peers. Father enrolled the Child in daycare and
Paternal Grandparents transported her to the school. The Child had a friend in the
Paternal Grandparents’ neighborhood. While in their care, the Child fell and hit her
forehead on the coffee table. Paternal Grandparents could not reach Maternal
Grandparents to provide medical care, so they took the Child to an urgent care. The Child
was released from urgent care with instructions for ice and observation.
{¶26} Paternal Grandparents had a good relationship with Father but admitted
they intentionally did not question Father about his relationship with Mother because they
did not want to get involved with the drama. Paternal Grandfather acknowledged that he
learned about Father’s negative behaviors towards Mother for the first time during the trial
court proceedings. Father did not tell them he was attending anger management classes
when they watched the Child for him while he was at class. They were aware of Father’s
marijuana use and did not approve. The trial court asked Paternal Grandfather that if they
had legal custody, would Father work well with them in respecting any limitations that they
Richland County, Case No. 2021 CA 0007 10
placed on Father. Paternal Grandfather responded that Father would have no choice but
to do what he was told, with the approval of the trial court.
{¶27} At the time of the hearing, the Guardian ad Litem did not have an opinion
as to whom should have legal custody of the Child. The GAL admitted there was no clear-
cut answer. The GAL filed a supplemental report stating it would be in the best interests
of the Child to be placed in the legal custody of Maternal Grandparents, although she had
concerns about Maternal Grandfather’s ability to care for the Child. The GAL felt Paternal
Grandparents would be an option for legal custody but conjectured they could be bullied
by Father, so that he would be the de facto custodian of the Child.
The Magistrate’s Decision
{¶28} On June 18, 2020, the magistrate reconvened the parties and announced
the decision on the record. Based on the evidence presented at the hearing, the
magistrate recommended it was in the best interest of the Child if the Paternal
Grandparents were awarded legal custody. The magistrate first found that Mother and
Father were unsuitable due to Mother’s substance abuse issues and Father’s anger and
domestic violence towards Mother. The magistrate next found the Grandparents were
similarly qualified but not equally qualified. Paternal Grandparents, in the magistrate’s
estimation, had more to offer the Child in terms of safety as to her daily care. Unlike the
Maternal Grandparents where Maternal Grandfather provided for the Child’s daily care,
there were two relatively healthy adults to look after the Child, who did not smoke
cigarettes or marijuana in the Child’s presence, and offered the Child more stimulation
and activity. Both Father and Mother were to remain in the Child’s life and Maternal
Richland County, Case No. 2021 CA 0007 11
Grandparents had a negative relationship with Father. Paternal Grandparents would
better facilitate the Child’s relationships with Mother, Father, and Maternal Grandparents.
{¶29} Father was granted supervised visitation with the Child. Maternal
Grandparents and Mother were granted visitation with the Child. RCCSB was ordered to
have protective supervision over the Child for a limited period of time to assist the Paternal
Grandparents in accessing services and increase their understanding of the risks that
Father’s psychological problems and behaviors presented to the Child.
{¶30} The Magistrate’s Decision was journalized on June 17, 2020.
The Objections and Trial Court Judgment
{¶31} Mother and Father filed objections to the Magistrate’s Decision. Relevant to
this appeal, Maternal Grandmother filed objections and supplemental objections on June
30, 2020, October 15, 2020, and October 29, 2020. The crux of Maternal Grandmother’s
objections was that the magistrate did not consider the impact of Father’s criminal
behavior on the Child, of which the Paternal Grandparents testified they had no
knowledge until the hearing. She agreed with the GAL’s opinion that Paternal
Grandparents would be complacent with Father and allow him to become the de facto
custodian of the Child. Maternal Grandmother further notified the trial court that Maternal
Grandfather passed away after the hearing. She stated she was willing to retire
permanently or make schedule changes if granted legal custody.
{¶32} Upon review of the transcript and other evidence in the record, the trial court
found the magistrate’s decision was supported by the evidence. It found insufficient
evidence to demonstrate that Father would bully the Paternal Grandparents. It further
determined that Maternal Grandmother’s willingness to retire was irrelevant to the facts
Richland County, Case No. 2021 CA 0007 12
that existed before the magistrate. The magistrate’s decision was approved and adopted
on December 29, 2020.
{¶33} It is from this judgment that Maternal Grandmother now appeals.
ASSIGNMENT OF ERROR
{¶34} Maternal Grandmother raises one Assignment of Error:
{¶35} “THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, SO IT MUST BE REVERSED AND THE CASE
REMANDED FOR A NEW TRIAL.”
ANALYSIS
{¶36} In her sole Assignment of Error, Maternal Grandmother argues the trial
court erred when it granted legal custody of the Child to Paternal Grandparents. Mother
and Father did not appeal the judgment of the trial court to appoint Paternal Grandparents
as legal custodian. Father filed an appellee’s brief arguing the judgment of the trial court
was supported by the preponderance of the evidence. RCCSB also did not appeal the
judgment of the trial court; however, it filed an appellee’s brief supporting Maternal
Grandparent’s arguments that the trial court erred in granting legal custody of the Child
to Paternal Grandparents. RCCSB contends Maternal Grandmother should be named the
legal custodian. Accordingly, this appeal does not involve a parent appealing the award
of legal custody to a non-parent. In this case, it is a non-parent appealing the award of
legal custody to another non-parent.
{¶37} Before awarding legal custody to a non-parent, a trial court must ordinarily
make a finding that each parent is unsuitable. In re L.P., 5th Dist. Muskingum No.
CT2016-0045, 2017-Ohio-52, ¶ 18 citing In re L.M., 2nd Dist. Greene No. 2010–CA–76,
Richland County, Case No. 2021 CA 0007 13
2011–Ohio-3285, ¶ 18 citing In re Hockstock, 98 Ohio St.3d 238, 2002–Ohio–7208, 781
N.E.2d 971. This requirement does not apply, however, in cases involving abuse, neglect,
or dependency. Id. The Ohio Supreme Court in In re C.R. held “[a] juvenile court
adjudication of abuse, neglect, or dependency is a determination about the care and
condition of a child and implicitly involves a determination of the unsuitability of the child's
custodial and/or noncustodial parents.” 108 Ohio St.3d 369, 2006–Ohio–1191, 843
N.E.2d 1188, paragraph one of syllabus. Thus, “[w]hen a juvenile court adjudicates a child
to be abused, neglected, or dependent, it has no duty to make a separate finding at the
dispositional hearing that a noncustodial parent is unsuitable before awarding legal
custody to a nonparent.” In re L.M., 2011–Ohio–3285 quoting In re C.R., 108 Ohio St.3d
369, paragraph two of syllabus.
{¶38} In this case, the Child was adjudicated dependent.
{¶39} Custody issues are some of the most difficult and agonizing decisions a trial
court judge must make; for that reason, the trial court is given “wide latitude in considering
all the evidence.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
“A trial court has broad discretion in proceedings involving the care and custody of
children.” In re Mullen, 129 Ohio St.3d 417, 2011–Ohio–3361, ¶ 14. We review the award
of legal custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No.
03AP–445, 2003–Ohio–6309, ¶ 13; In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–
2986, ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455 (7th Dist.). Abuse of discretion
connotes more than an error of law or judgment; rather, it implies that the trial court's
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). We must presume that the trial court's findings are correct
Richland County, Case No. 2021 CA 0007 14
because the trial court is “best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). Therefore, deferential review in a child custody determination is
especially crucial “where there may be much evident in the parties’ demeanor and attitude
that does not translate to the record well.” Davis at 419.
{¶40} Unlike in a permanent custody proceeding where a juvenile court's standard
of review is by clear and convincing evidence, the standard of review in legal custody
proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
2013CA0081, 2013CA0082, 2013–Ohio–5752, ¶ 32; In re A.C., 12th Dist. No. CA2006–
12–105, 2007–Ohio–3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552(7th Dist.2001).
{¶41} In this type of dispositional hearing, the focus is on the best interest of the
child. In re T.B., 5th Dist. Muskingum No. CT2018-0065, 2019-Ohio-1747, 2019 WL
2041906, ¶ 26 citing In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188;
In re P.S., 5th Dist. No. 2012CA00007, 2012–Ohio–3431. Despite the differences
between a disposition of permanent custody and legal custody, some Ohio courts have
recognized “the statutory best interest test designed for the permanent custody situation
may provide some ‘guidance’ for trial courts making legal custody decisions.” In re A.F.,
9th Dist. No. 24317, 2009–Ohio–333 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006–
Ohio–4468 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081, 2013CA0082, 2013–
Ohio–5752, ¶ 33. R.C. 2151.414(D) sets forth factors to be considered in making a
determination regarding the best interest of the child.
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{¶42} In that regard, the juvenile court is guided by the best interest factors
enunciated in R.C. 2151.414(D) relating to permanent custody. In re M.T., 9th Dist.
Summit No. 29690, 2020-Ohio-5493, 2020 WL 7055379, ¶ 20 citing In re B.G., 9th Dist.
Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954,
2006-Ohio-4468, ¶ 17. Those factors include the interaction and interrelationships of the
child, the child's wishes, the custodial history of the child, the child's need for permanence,
and whether any of the factors in R.C. 2151.414(E)(7)-(11) are applicable. In re M.T. at ¶
20 citing R.C. 2151.414(D)(1)(a)-(e). In addition, the juvenile court may also look to the
best interest factors in R.C. 3109.04(F)(1) for guidance. In re M.T. at ¶ 20 citing In re K.A.,
9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. “While some factors
overlap with those above, others include the child's adjustment to his or her environment;
the mental and physical health of all persons involved; the parents’ history of providing
support and honoring companionship orders; whether a parent plans to or has established
a residence outside of Ohio; and certain indicia of violence, abuse, or neglect in any
household involved. R.C. 3109.04(F)(1). Such indicia include convictions relating to the
abuse or neglect of a child, as well as whether there exists any ‘reason to believe that
either parent has acted in a manner resulting in a child being an abused or a neglected
child[.]’ R.C. 3109.04(F)(1)(h).” Id. at ¶ 20.
{¶43} On appeal, Maternal Grandmother reiterates her objections to the
magistrate’s decision. The thrust of her argument is that Paternal Grandparents are
ignorant of and complacent to Father’s documented violent and aggressive behavior and
their ignorance will put the Child in harm’s way. She supports the GAL’s opinion that
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Father could bully the Paternal Grandparents into permitting him unsupervised contact
with the Child.
{¶44} The record in this case shows that while Mother and Father are the children
of Maternal Grandparents and Parental Grandparents, they are also adults over 40 years
of age who live and work independently from their parents. It does not belie belief that
Parental Grandparents would not know all the details of Father’s life, especially if Father
chose not to share those details as the record demonstrated, for example, he did not tell
them he was attending anger management classes. After hearing the testimony, however,
Parental Grandparents testified that they were aware of Father’s negative behaviors and
the aspects of his life that he did not share with his parents. For example, Dr. Thomas
testified that Father had failed to internalize the skills learned in anger management as
demonstrated by the video of him beating and kicking Mother’s door. Mother and Father
testified that while they were ordered to stay away from one another, they disobeyed that
order. Father brought the Child to Mother’s home while armed. Paternal Grandparents
testified they understood the trial court’s admonition that if they were the Child’s legal
custodian, they would be required to abide by the trial court’s orders, including limiting
Father to supervised visitation.
{¶45} As the trial court noted in its judgment overruling Maternal Grandmother’s
objections, there was no evidence in the record that Father had bullied Parental
Grandparents into violating the trial court’s orders as to the Child. It was the opinion of
the GAL that based on Father’s past behaviors and Parental Grandparents’ knowledge
of those behaviors, Father may take advantage of the Parental Grandparents in the
future. The trial court is tasked to examine the present circumstances of the child, not on
Richland County, Case No. 2021 CA 0007 17
what possibly may happen in the future. P.K. v. J.V., 2018-Ohio-5383, 128 N.E.3d 813, ¶
44 (5th Dist.) citing In re Davis, 7th Dist. No. 02-CA-95, 2003-Ohio-809, 2003 WL 405540,
¶ 19; Seibert v. Seibert, 66 Ohio App.3d 342, 584 N.E.2d 41 (12th Dist.1990). Further,
the trial court is not required to follow a GAL's recommendation; it has discretion to follow
or reject it. In re A.M., 5th Dist. Licking No. 18-CA-83, 2019-Ohio-1578, 2019 WL
1894488, ¶ 48 citing Pasco v. Pasco, 5th Dist. Delaware No. 2018 CAF 06 0047, 2019-
Ohio-1099, citing Clyburn v. Gregg, 4th Dist. Ross No. 11CA3211, 2011-Ohio-5239, ¶ 47;
Hammons v. Hammons, 5th Dist. Delaware No. 13 CAF 07 0053, 2014-Ohio-221, ¶ 12.
The record shows that the GAL struggled with this case as well, resulting in a delay of the
GAL’s recommendation for legal custody.
{¶46} Maternal Grandmother next contends that the issues concerning the care
of the Child by Maternal Grandfather are moot because he has since passed away.
Maternal Grandmother stated in her objections to the trial court and in her appeal to this
Court that she was willing to retire to be the full-time caretaker of the Child. The trial court
overruled that objection, finding that facts raised after the dispositional hearing were not
relevant to the magistrate’s decision.
{¶47} Pursuant to Civ.R. 53(D)(4)(d), “* * * In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the law.
Before so ruling, the court may hear additional evidence but may refuse to do so unless
the objecting party demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.” It was within the discretion
of the trial court to take new evidence. The trial court determined that the preponderance
Richland County, Case No. 2021 CA 0007 18
of the evidence demonstrated it was in the best interest of the child to be placed in the
custody of Paternal Grandparents despite the new evidence of Maternal Grandfather’s
death and Maternal Grandmother’s statement that she would be taking on the role of full-
time caretaker. The record in this case supports the trial court’s determination that
Paternal Grandparents were in relatively good health and both able to care for the Child.
Paternal Grandparents did not smoke cigarettes around the Child. When the Child
needed medical care, Paternal Grandparents responded. Paternal Grandparents took the
Child to church where she could engage with peers. The Child had a friend in their
neighborhood. The Child was happy with her Paternal Grandparents, as she was with all
her family members. We find the record supports the trial court’s findings that it was in
the best interest of the Child, based on the evidence presented, to be placed with Paternal
Grandparents.
{¶48} In its appellate brief, RCCSB accuses the trial court of acting as Solomon
to arbitrarily split the baby. There is no question that all parties love the Child and are
concerned for the Child’s welfare. All parties and the GAL presented compelling reasons
for custody and this was not an easy matter to resolve. In all custody matters, however,
the paramount concern is the best interest of the child. The breadth of the record in this
case demonstrates the trial court’s commitment to its duty to lessen the issues created
by Mother and Father and determine what would be in the best interests of this child.
Because custody decisions are some of the most difficult decisions to judge, the trial court
is given a great deal of discretion to make a determination. The role of the appellate court
is to review the proceedings and determine if the trial court abused its discretion.
Richland County, Case No. 2021 CA 0007 19
{¶49} In this case, we find no abuse of discretion to award legal custody of the
Child to Paternal Grandparents.
{¶50} Maternal Grandmother’s sole Assignment of Error is overruled.
CONCLUSION
{¶51} The judgment of the Richland County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.