In re M.G.

[Cite as In re M.G., 2019-Ohio-906.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN RE:
CASE NO. 1-18-54
M.G.,
ADJUDICATED DEPENDENT CHILD.
OPINION
[MARCUS GANT - APPELLANT]
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2017-JG-34159
Judgment Affirmed
Date of Decision: March 18, 2019
APPEARANCES:
F. Stephen Chamberlain for Appellant
Sarah N. Newland for Appellee
Case No. 1-18-54
WILLAMOWSKI, J.
{¶1} Father-appellant Marcus Gant (“Marcus”) appeals the judgment of the
Juvenile Division of the Allen County Court of Common Pleas, arguing that the trial
court erred by not awarding legal custody of his child, MG, to MG’s paternal
grandmother. For the reasons set forth below, the judgment of the trial court is
affirmed.
Facts and Procedural History
{¶2} Both of MG’s parents are currently incarcerated. Doc. 116. Her mother
was sentenced to six years in prison for the crimes of conspiracy to trafficking in
persons and promoting prostitution. Doc. 116. Her father, Marcus, was sentenced
to four years in prison for conspiracy to trafficking in persons and promoting
prostitution. Doc. 116. Consequently, on January 4, 2017, the trial court issued a
shelter care order that placed MG with the Allen County Children Services Board
(“ACCSB”). Doc. 1. The magistrate found that “it is not in the best interest of
[MG] to remain in the Mother’s custody, and the minor child cannot be placed in
the Alleged Father’s custody.” Doc. 1. The magistrate further found that MG’s
half-sibling had already been removed from the custody of MG’s mother and placed
into the permanent custody of the ACCSB in 2016. Doc. 1.
{¶3} Subsequent to an adjudicatory hearing on February 13, 2017, the trial
court found MG to be a dependent child. Doc. 39. The trial court then placed MG
into the temporary custody of the ACCSB after a dispositional hearing on March
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20, 2017. Doc. 43. On August 22, 2017, Marcus’s mother, Gina Gant (“Gina”),
filed a motion to intervene that was later denied on March 27, 2018. Doc. 52, 54,
107. On August 23, 2017, the ACCSB filed a motion requesting the modification
of the prior order of temporary custody; the termination of the court ordered services
of the ACCSB; and the award of legal custody to MG’s foster parents, Amanda and
Joshua Crouch (“the Crouches”), who have custody of MG’s half-sibling. Doc. 56.
Tr. 11. On January 8, 2018, Marcus filed a motion for legal custody. Doc. 81.
{¶4} Both of MG’s parents requested that MG be placed with Gina. Doc.
116. On April 13, 2018, the Juvenile Division held an annual review hearing and
addressed the issues raised by these motions. Tr. 1. Doc. 131. Following the
hearing, the magistrate issued a decision that granted the ACCSB’s motion to
modify the prior dispositional order of the trial court; added the Crouches as parties
to this action; and dismissed Marcus’s motion for legal custody. Doc. 116. On June
22, 2018, Marcus filed his objections to the magistrate’s decision, arguing that the
foster parents were not more likely than Gina to honor the court-approved guidelines
for parental visitation and that permanent placement with Gina was a legally secure
option before the trial court. Doc. 119. On September 18, 2018, the trial court
overruled Marcus’s objections to the magistrate’s decision. Doc. 130.
Assignment of Error
{¶5} Appellant filed his notice of appeal on September 28, 2018. Doc. 132.
On appeal, Marcus raises the following assignment of error:
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The court below did not have sufficient evidence before it, on the
record, to award legal custody of a child to a foster parent instead
of the paternal grandmother.
He requests that this Court reverse the trial court’s decision and order the trial court
to place MG in the legal custody of Gina.
Legal Standard
{¶6} The Ohio Revised Code defines “legal custody” as a
legal status that vests in the custodian the right to have physical
care and control of the child and to determine where and with
whom the child shall live, and the right and duty to protect, train,
and discipline the child and to provide the child with food, shelter,
education, and medical care, all subject to any residual parental
rights, privileges, and responsibilities. * * *
R.C. 2151.011(B)(21). Thus, an award of legal custody does not divest a parent of
his or her residual parental rights and does not “permanently foreclose[]” the
possibility of a parent regaining legal custody in the future. In re B.P., 3d Dist.
Logan Nos. 8-15-07, 8-15-08, 2015-Ohio-5445, ¶ 19.
{¶7} For this reason, an “award of legal custody is ‘not as drastic a remedy
as permanent custody.’” Id. at ¶ 18, quoting In re L.D., 10th Dist. No. 12AP-985,
2013-Ohio-3214, ¶ 7. “Therefore, the trial court’s standard of review in legal
custody proceedings is not clear and convincing evidence, as it is in permanent
custody proceedings, but is merely a preponderance of the evidence.” In re Bixler,
3d Dist. Seneca Nos. 13-05-41, 13-05-42, 2006-Ohio-3533, ¶ 24. “‘Preponderance
of the evidence’ means evidence that is more probable, more persuasive, or of
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greater probative value.” In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-2670,
¶ 33.
{¶8} R.C. 2151.353(A) governs the disposition of children determined to be
abused, neglected, or dependent and reads, in its relevant part, as follows:
(A) If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition:
***
(2) Commit the child to the temporary custody of any of the
following:
(a) A public children services agency;
***
(3) 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 or is identified as a proposed
legal custodian in a complaint or motion filed prior to the
dispositional hearing by any party to the proceedings. * * *.
R.C. 2151.353(A)(3). After a court has issued a dispositional order pursuant to R.C.
2151.353(A), the court may later modify that order pursuant to R.C. 2151.353(F),
which reads, in its relevant part, as follows:
(F)(1) The court shall retain jurisdiction over any child for whom
the court issues an order of disposition pursuant to division (A) of
this section * * * of the Revised Code until the child attains the
age of eighteen years * * *.
(2) Any public children services agency * * * or any party * * *,
by filing a motion with the court, may at any time request the
court to modify or terminate any order of disposition issued
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pursuant to division (A) of this section * * *. The court shall hold
a hearing upon the motion as if the hearing were the original
dispositional hearing and shall give all parties to the action and
the guardian ad litem notice of the hearing pursuant to the
Juvenile Rules. If applicable, the court shall comply with section
2151.42 of the Revised Code.
R.C. 2151.353(F). When “a court is asked to modify or terminate an order of
disposition,” the court is to consider what “is in the best interest of the child.” R.C.
2151.42(A).
Although there is no specific test or set of criteria that must be
followed in determining what is in a child’s best interest in a legal
custody case, other appellate courts have held that the R.C.
2151.414(D) factors may be “instructive.” See, e.g., In re Howland
Children, 5th Dist. Stark No.2015CA00113, 2015-Ohio-3862, ¶ 7;
In re D.T., 8th Dist. Cuyahoga Nos. 100970, 100971, 2014-Ohio-
4818, ¶ 20. These factors include: the interaction of the child with
the child’s parents, relatives and caregivers; the wishes of the
child, as expressed directly by the child or through the child’s
GAL; the custodial history of the child; and the child’s need for a
legally secure permanent placement. R.C. 2151.414(D).
In re J.B. at ¶ 34. “The court is required to consider all other relevant circumstances
in making its determination.” In re K.S., 3d Dist. Seneca No. 13-15-11, 2015-Ohio-
3814, ¶ 5.
{¶9} “A juvenile court has broad discretion in the disposition of an abused,
neglected, or dependent child.” In re C. W., 3d Dist. Wyandot No. 16-09-26, 2010-
Ohio-2157, ¶ 10. For this reason, an award of legal custody will not be reversed on
appeal absent an abuse of discretion. Bixler at ¶ 24. An abuse of discretion is not
merely an error of judgment. Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339,
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¶ 7 (3d Dist.). Rather, an abuse of discretion is present where the trial court’s
decision is unreasonable, arbitrary, or capricious. Southern v. Scheu, 3d Dist.
Shelby No. 17-17-16, 2018-Ohio-1440, ¶ 10.
Legal Analysis
{¶10} In this case, the ACCSB considered placing MG with Gina. Doc. 116.
However, the ACCSB determined that the best interests of the child would be served
by leaving MG in the custody of the Crouches. Tr. 13-14. The Crouches had
custody of MG’s half-sibling and had been caring for MG since the time of her birth.
Tr. 11. A caseworker for the ACCSB, Tiffany Geren (“Geren”) testified at the
hearing that MG was integrated into the Crouch home; that MG has not had any
other placements since being with the Crouches; and that the Crouches provided a
stable environment for MG. Tr. 13-14.
{¶11} Geren also testified that Gina indicated that she was willing to allow
MG to have contact with Marcus after he was released from prison. Tr. 15. When
Geren asked whether Gina “would be able to protect [MG]” from any harm that
might come to her from Marcus, Gina said that “she felt * * * that the parents
actually did nothing wrong and * * * blam[ed] the victim for * * * their
incarceration.” Tr. 15. Gina also did not see MG retaining a relationship with her
half-sibling as important whereas the Crouches were willing for Gina to have
visitation with Gina each week. Tr. 17, 22. Further, in a recorded conversation with
Marcus at the prison, Gina stated repeatedly that she did not believe that she was
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able to care for MG at that time. Tr. 16. In this call, Marcus told Gina that she
would only have to care for MG until he was released from prison. Doc. 116.
However, Geren testified that MG’s mother had, in a previous case, reported Marcus
for allowing “sex offenders” and active drug users into his home. Tr. 20.
{¶12} At the hearing, Gina testified that she was on disability. Tr. 100.
However, Gina did not explain what her disability was and refused to explain how
her disability affected her daily life. Tr. 100-101. She also denied that she had prior
involvement with children services when she, in fact, was the alleged perpetrator in
an emotional maltreatment case in 2003. Tr. 101. She later admitted that Marcus
had gotten into trouble at the age of fourteen and had been removed from her
custody. Tr. 102. Gina testified that she “didn’t know how to deal with him.” Tr.
102. She testified that Marcus was then placed in a group home and never again
lived with her. Tr. 104. As a minor, Marcus had “sexually-related charges” against
him. Tr. 106. Gina also claimed that Marcus was “coerced” into committing the
crimes for which he was serving time in prison. Tr. 112.
{¶13} Based on the evidence presented at the hearing, the magistrate found
that Gina would likely return MG to her parents upon their release from prison.
Doc. 116. The magistrate determined that this would not be in the child’s best
interests because MG’s mother has had all of her children removed from her custody
and because MG’s father has not complied with ACCSB’s instructions that enjoined
him from allowing sex offenders in his home. Doc. 116. The magistrate also found
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that Gina did not believe Marcus had committed the crimes for which he was
incarcerated and had been coerced into committing these offenses. Doc. 116.
{¶14} In this case, the trial court considered a variety of factors in reaching
the decision that MG’s best interests were served in this modification of the
dispositional order. We do not find any indications in the record that the trial court
abused its discretion in awarding legal custody to the Crouches. For these reasons,
Marcus’s sole assignment of error is overruled.
Conclusion
{¶15} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Juvenile Division of the Allen County
Court of Common Pleas is affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/hls
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