In re A.M.W.

[Cite as In re A.M.W., 2022-Ohio-2913.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
A.M.W. : CASE NO. CA2021-12-159
: OPINION
8/22/2022
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2019-0325
Mark W. Raines, for appellant, R.W.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee, Butler County Children Services.
Harrison Legal Services, and Brian K. Harrison, for appellees, A.K. and C.K.
Amy R. Ashcraft, for CASA.
Marcelina Woods, guardian ad litem.
PIPER, J.
{¶ 1} Appellant is the biological father ("Father") of A.W. who appeals the decision
of the Butler County Court of Common Pleas, Juvenile Division, granting legal custody of
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his son to foster parents. The child's biological mother ("Mother") did not appeal. For the
reasons detailed below, we affirm.
{¶ 2} On July 29, 2019, the Butler County Department of Job and Family Services
("BCDJFS") filed a complaint alleging A.W. was an abused and dependent child. Among
other things, the complaint alleged that Mother and A.W. both tested positive for cocaine at
the time of A.W.'s birth. Mother later admitted to using cocaine during her pregnancy. The
complaint also stated that Mother had two open cases with the agency and those children
were placed with a relative.1 At the time, the identity of A.W.'s father was unknown.
{¶ 3} BCDJFS was granted ex parte temporary custody of A.W. and he was
immediately placed in the care of his foster parents, where he has remained since his
discharge from the hospital. A.W. was subsequently adjudicated an abused child and the
agency was granted temporary custody. On May 8, 2020, BCDJFS filed a motion for
permanent custody of A.W.
{¶ 4} During the pendency of this case, Mother struggled to maintain her sobriety
and failed to participate in any services. As relevant to this case, Mother testified that she
lied to Father and told him that A.W. was not his son.
{¶ 5} In April 2020, Father testified that his niece and his sister told him that Mother
had a child, A.W., and that the child looked like him. Father understood it was a possibility
that the child was his because he had been sexually active with Mother. However, Father
did not immediately contact the agency.
{¶ 6} On August 7, 2020, Father filed a financial disclosure form to obtain appointed
counsel, which was subsequently approved. Father was confirmed to be the biological
parent of A.W. in October 2020 following paternity testing. On January 12, 2021, the
1. At a later hearing, Mother testified that her two older children were placed in the permanent custody of the
agency. Mother had another child after A.W. who was later placed in the legal custody of another individual.
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juvenile court ratified the results of the testing and found Father to be A.W.'s parent. Father
was then included in the case plan.
{¶ 7} On January 28, 2021, Mother's aunt and uncle moved to intervene and filed
a motion for legal custody of A.W. Prior to the final hearing, Mother's aunt and uncle
withdrew their motion for custody and supported the foster parents' motion for legal custody.
Because they ultimately dismissed their motion for legal custody and supported the foster
parents, we need not discuss their limited involvement in much detail.
{¶ 8} On March 3, 2021, the foster parents also filed motions to intervene and for
legal custody of A.W. The pending motions for legal custody were heard on July 12, August
10, and November 18, 2021.2 Although Father did not file a motion for custody, he asked
that custody be granted in his favor during the final hearing.
{¶ 9} During the hearings, a caseworker from BCDJFS testified that A.W. was doing
great in his continued placement with his foster parents. The caseworker testified that
A.W.'s needs are being met, including his specialized needs as a result of having been
exposed to cocaine in utero. The caseworker described A.W. as happy and bonded with
his foster family. The caseworker further testified that it was in A.W.'s best interests to have
his foster parents awarded legal custody and noted that he had continuously lived with them
since he was four days old and is therefore bonded with them as his caregivers.
{¶ 10} During his testimony Father admitted that he only had supervised visits with
A.W. three or four times. Father also admitted at the November 8, 2021 hearing that he
had not visited A.W. the entire year of 2021. Despite the very limited interactions with A.W.,
Father requested custody of A.W. at the final hearing. Throughout his testimony Father
stated that he had raised two grown children, had income in the form of social security
2. Although the state initially moved for permanent custody, the record shows that the state did not prosecute
that matter and therefore the only pending issues for the court involved the granting of legal custody.
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disability payments, and had all the necessary items and supplies to take A.W. home that
day. In essence, Father argued and testified that he was never given the opportunity to
parent or establish a relationship with A.W. and therefore custody should be given to him
rather than to the foster parents. As relevant to that point, the record reveals that Father
had issues maintaining his sobriety. In January 2021, visitations with A.W. were
conditionally suspended until Father could pass three consecutive drug screens.3 Father
did not provide the necessary clean drug screens until October 2021. Shortly thereafter,
the juvenile court held its final hearing on the pending motions.
{¶ 11} The foster parents testified at length about A.W., as he has been in their
continuous care since he was discharged from the hospital. The foster parents testified
about A.W.'s medical needs, their unconditional love for him, as well as his relationships
with their family members. There was also evidence that the foster parents have gone to
great lengths to develop bonds with A.W.'s biological siblings and extended family.
{¶ 12} On November 12, 2021, the magistrate issued a written decision addressing
each of the requisite best interest factors and found it was in A.W.'s best interest that he be
placed in the legal custody of his foster parents. Father filed objections to the magistrate's
decision, which the juvenile court overruled. Father timely appeals, raising two assignments
of error for review.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED WHEN AWARDED [sic] LEGAL CUSTODY TO
THE [FOSTER PARENTS].
{¶ 15} Father argues the juvenile court erred by awarding legal custody of A.W. to
his foster parents. Father asserts that a court is required to analyze and apply the best
3. Father cancelled his last visit with A.W. scheduled for December 29, 2020.
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interest factors in R.C. 3109.04(F) before granting custody of a minor child to a party. Yet,
review of the record reveals that the juvenile court did conduct a thorough analysis of those
factors in granting legal custody to the foster parents. Therefore, Father's argument is more
appropriately characterized as a challenge to the juvenile court's weighing of the evidence,
including its consideration of the best interest factors.
{¶ 16} Unlike a grant of permanent custody, an award of legal custody does not
terminate the parent-child relationship. In re L.C., 12th Dist. Warren No. CA2019-08-086,
2020-Ohio-4629, ¶ 13; In re Fulton, 12th Dist. Butler No. CA2002-09-236, 2003-Ohio-5984,
¶ 7 ("granting legal custody does not terminate the parent-child relationship"). Rather, an
award of legal custody merely vests in the custodian the physical care and control of the
child while the residual parental rights and responsibilities remain intact with the child's
parent(s). In re A.B., 12th Dist. Brown No. CA2016-11-021, 2017-Ohio-5776, ¶ 10. This
includes, for instance, "contact and visitation rights and a duty of support." In re M.M., 12th
Dist. Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7. This also includes the ability to
petition the juvenile court for a custody modification in the future. In re T.B., 5th Dist.
Muskingum No. CT2018-0065, 2019-Ohio-1747, ¶ 21. An award of legal custody, therefore,
is not as drastic a remedy as a grant of permanent custody because such an award "does
not divest parents of their residual parental rights, privileges, and responsibilities." In re
K.G., 12th Dist. Clinton No. CA2020-11-017, 2021-Ohio-2154, ¶ 17, citing In re C.R., 108
Ohio St.3d 369, 2006-Ohio-1191, ¶ 17.
{¶ 17} R.C. 2151.353(A)(3) provides that if a child has been adjudicated abused,
dependent, or neglected, a juvenile court may award legal custody of the child "to either
parent or to any other person who, prior to the dispositional hearing, files a motion
requesting legal custody of the child." After a child has been adjudicated abused,
neglected, or dependent, such as the case here, a juvenile court "may award legal custody
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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.L.T., 12th Dist. Butler
No. CA2011-04-073, 2012-Ohio-427, ¶ 10. "A preponderance of the evidence is evidence
which is of greater weight or more convincing than the evidence which is offered in
opposition to it." Id.{¶ 18} A juvenile court's custody determination under R.C. 2151.353 must be based
on the best interests of the child. In re K.B., 12th Dist. Butler No. CA2012-03-063, 2013-
Ohio-858, ¶ 11. In determining the best interests of the child, the juvenile court must
consider all relevant factors, including, but not limited to, the applicable factors set forth in
R.C. 3109.04(F). Id.{¶ 19} This court reviews the juvenile court's custody determination for an abuse of
discretion. In re S.K., 12th Dist. Butler No. CA2013-06-108, 2014-Ohio-563, ¶ 12. An abuse
of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The discretion
that a juvenile court enjoys in custody matters "'should be accorded 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.'" In re J.M., 12th Dist. Warren No. CA2008-12-148, 2009-
Ohio-4824, ¶ 17, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
{¶ 20} Moreover, a challenge to the manifest weight of the evidence involves the
inclination of the greater amount of credible evidence, offered in a trial, to support one side
of the issue rather than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, ¶ 12. In a manifest weight challenge "the reviewing court weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether, in
resolving conflicts in the evidence, the finder 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."
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In re A.F., 12th Dist. Butler No. CA2019-01-005, 2019-Ohio-4627, ¶ 20.
{¶ 21} On appeal, Father argues the juvenile court failed to appropriately consider
and balance the evidence in this case prior to awarding legal custody of A.W. to his foster
parents. According to Father, BCDJFS and the GAL never viewed him as a "true option"
for custody of A.W. He further maintains that he has raised two grown children of his own
and, although he is disabled, there was no evidence that his mental or physical health would
prevent him from raising A.W. He maintains that the best interest factors should be
reweighed and emphasizes that many of the factors not in his favor are the result of the
agency's failures to allow him to build a relationship with A.W.
{¶ 22} However, while Father may weigh the best factors differently, we find the
juvenile court's decision finding it was in A.W.'s best interest to grant legal custody to his
foster parents was not an abuse of discretion. A.W., who was two-and-one-half years old
at the time of the last hearing, had been in the continuous and exclusive custody of his
foster parents since he was discharged from the hospital when he was four days old. As
noted above, the record reflects that the juvenile court thoroughly and completely
considered the best interest factors in R.C. 3109.04(F).
{¶ 23} The juvenile court considered the wishes of Mother, who was not opposed to
A.W. remaining in the care of the foster parents. The juvenile court noted that Father
wanted A.W. to be placed with him immediately. Considering A.W.'s tender age, the
juvenile court did not interview him, but the juvenile court found A.W.'s wishes were best
presented through the GAL who recommended that the foster parents be granted legal
custody.
{¶ 24} The juvenile court considered A.W.'s best interests in light of his interactions
and interrelationships. The juvenile court found that neither Mother nor Father had any
practical relationship with A.W. Father had no relationship with A.W. until paternity testing
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and was slow or unwilling to abide by the conditions necessary to continue visitation with
the child. When Father tested positive for drugs, he needed three consecutive clean drug
screens to visit A.W. It took Father approximately 10 months to do so. As to the foster
parents, the court found that they have been A.W.'s de facto parents all of his life. They are
committed to meeting his best interests and have incorporated him into their family. They
have also taken the initiative to establish bonds between A.W. and other members of his
biological family.
{¶ 25} The juvenile court found that A.W. is well adjusted in his home with the foster
family. The juvenile court went on to discuss Father's mental and physical health, including
the fact that he was less than forthcoming about his health conditions. The juvenile court
then discussed Father's substance abuse and that he ceased participation in his case plan
services.
{¶ 26} As to who was more likely to honor and facilitate parenting time or other
visitation rights, the juvenile court found no evidence that Father would honor visitation
orders. Meanwhile, the foster parents only stipulated that they wanted to make sure the
visits were "safe." Although the juvenile court noted that BCDJFS could have been more
helpful to Father or offered him more encouragement, the juvenile court ultimately
concluded that it was Father's own actions and inactions that left him in the current situation.
{¶ 27} In further argument on appeal, Father alleges the GAL failed to satisfy her
responsibilities under Sup.R. 48 because she failed to adequately investigate the case.
Specifically, he claims that the GAL had little information about his housing situation,
criminal record, income source, and "failed to make any effort looking into a specific party
seeking custody." However, the GAL correctly notes that when the trial started, Father had
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not filed a motion for custody.4 In fact, Father never filed a motion for custody but requested
that custody be granted to him during his testimony, which occurred at the final hearing
date. When the GAL testified, the court had only two pending motions for legal custody
involving the mother's aunt and uncle and the foster parents. During her testimony, the
GAL testified about her interactions with A.W., the foster parents, and mother's aunt and
uncle. Since she also served as the GAL for A.W.'s older siblings, she was also able to
testify about how the foster family was facilitating those relationships. From review of the
record, we can discern no inadequacy in the GAL's investigation. Nor do we discern any
inappropriate or unfair prejudicial impact of her recommendation. Father was given the
opportunity to address those areas he claims the GAL neglected. We further note that the
Rules of Superintendence do not have the same force of statute or case law but are rather
purely internal housekeeping rules which do not create substantive rights in individuals or
procedural law. In re J.S., 12th Dist. Butler Nos. CA2016-07-141 and CA2016-07-142,
2016-Ohio-7833, ¶ 12. Therefore, the degree of compliance with any such rule is generally
not grounds for reversal. In re B.J., 12th Dist. Warren Nos. CA2016-05-036 and CA2016-
05-038, 2016-Ohio-7440, ¶ 57.
{¶ 28} Father further argues that his failure to complete case plan services should
not prevent reunification with A.W. because he is able to provide A.W. with a secure home
and there was no evidence that his drug use had any negative impact on his ability to parent,
citing a case where this court reversed a grant of permanent custody to an agency. In re
Knuckles, 12th Dist. Butler Nos. CA2003-01-004 and CA2003-01-005, 2003-Ohio-4418, ¶
21. However, that case is easily distinguishable. In re K.G., 2021-Ohio-2154, ¶ 17
4. The GAL testified at the August 10, 2021 hearing. It was not until the final November 8, 2021 hearing that
Father's counsel first indicated "my client intends to testify today asking for legal custody to be granted to
him." Up until that point, Father's counsel was focused on whether the parties were amenable to providing
him with visitation rights in the event legal custody was granted.
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(discussing the different ramifications of a grant of permanent custody as opposed to legal
custody). In addition, Knuckles involved children of a much more mature age, and a family
that was "well bonded." Additionally, the caseworker in Knuckles had the advantage of in-
home visits and interviews with the children involved. These are not the circumstances
herein. We have previously distinguished Knuckles as other appellants have also
mischaracterized its application. In re B.T.H., 12th Dist. Butler No. CA2017-06-080, 2017-
Ohio-8358, ¶ 46. Father's reliance on Knuckles is misplaced. While it is true that Father's
drug use had some impact on his conduct, most notably his inability to visit with A.W. due
to failure to pass three clean drug screens, we find that Father's drug use and parental
abilities were not dispositive considerations. Rather, the juvenile court's primary
consideration lies with A.W.'s best interests. In re L.A.B., 2012-Ohio-5010 at ¶ 12.
{¶ 29} It is admirable that Father eventually took action to ascertain and legally
establish himself as the biological father of A.W. However, Father's decision not to file a
motion requesting custody earlier in the proceedings, and not expressing his commitment
to be a custodial parent until actually at the hearing, suggests indecision. Yet Father's
desire and commitment to be a significant person in A.W.'s life can still be manifested by
Father's positive interactions and ongoing conduct.
{¶ 30} After a thorough review of the record, we find the juvenile court did not abuse
its discretion by balancing the factors as it did and awarding legal custody to the foster
parents, nor do we find the juvenile court's decision is against the manifest weight of the
evidence. The record firmly establishes that A.W. is in a safe and stable home and has
thrived in his placement with his foster family. The juvenile court focused appropriately on
the best interest factors with A.W.'s developmental well-being and environmental stability
in mind. The juvenile court's decision awarding legal custody to the foster parents is
supported by the record. Accordingly, Father's first assignment of error is without merit.
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{¶ 31} Assignment of Error No. 2:
{¶ 32} THE TRIAL COURT ERRED IN NOT GRANTING FATHER A SPECIFIC
VISITATION SCHEDULE.
{¶ 33} In his second assignment of error, Father alleges the juvenile court erred by
not granting him a specific visitation schedule. Father's residual parenting rights do include,
among other things, "the privilege of reasonable visitation." R.C. 2151.011(B)(50).
However, as this court has previously stated "R.C. Chapter 21 does not require the
reasonable parenting time order to be specific." In re C.A., 12th Dist. Butler No. CA2014-
07-165, 2015-Ohio-1410, ¶ 29.
{¶ 34} In this case, the juvenile court provided Father with visitation which is to be
arranged and scheduled at the discretion of the foster parents. The foster parents can
determine if those visits should be supervised. We note that during the hearing, foster
father testified that he was "very open" to facilitating any visits and stated that his only
condition was that such visits be done safely and in a safe environment, citing concerns of
mental health and potential drug abuse from anyone interacting with A.W.
{¶ 35} Upon review of the record, we find the juvenile court did not abuse its
discretion in not crafting a more specific visitation schedule. As discussed in more detail
above, Father has had limited contact with A.W. which renders Father practically a stranger
to the young child. The juvenile court's order allows Father to exercise visitation rights in a
manner that satisfies the foster parents' concerns. Based upon the evidence, we find the
juvenile court did not err in its decision regarding visitation. Father's second assignment of
error is overruled.
{¶ 36} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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