[Cite as In re J.R., 2016-Ohio-5054.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 IN RE:                                         :  Appellate Case No. 26894
                                                :
             J.R.                               :  Trial Court Case No. 2011-1712
                                                :
                                                :  (Juvenile Appeal from
                                                :   Common Pleas Court)
                                                :
                                                :
                                                :
                                                :
                                           ...........

                                           OPINION

                              Rendered on the 22nd day of July, 2016.

                                           ...........

C. RALPH WILCOXSON, Atty. Reg. No. 0061974, 211 Kenbrook Drive, Suite 5, Vandalia,
Ohio 45377
      Attorney for Appellant

B.H. and T.R.
      Appellees, pro se
                                         .............



HALL, J.

        {¶ 1} C.W. (“W.”) appeals the Montgomery County Juvenile Court’s decision

denying him legal custody of his godson “Jack1.” The court concluded that W. failed to


        1   We will use this name as a pseudonym for the minor child.
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prove that the child’s mother is an unsuitable parent, a necessary preliminary finding in a

child-custody proceeding between a parent and a nonparent. Finding no error with the

court’s conclusion, we affirm.

                                       I. Background

       {¶ 2} On August 1, 2014, W. filed a complaint for legal custody of Jack, then almost

four-and-a-half years old. Two weeks later W. moved for ex parte custody, and the trial

court granted him interim temporary custody. A hearing before a magistrate was held in

March 2015 at which testified W., Jack’s mother, and four witnesses presented by W.,

including W.’s aunt, mother, and godmother. The magistrate later issued a decision

denying the motion for legal custody, saying that W. had failed to prove that Mother is an

unsuitable parent. The magistrate terminated interim temporary custody and granted W.’s

visitation rights.

       {¶ 3} W. filed objections to the magistrate’s decision with the juvenile court. The

court overruled the objections and adopted the magistrate’s decision.

       {¶ 4} W. appealed.

                                            II. Analysis

       {¶ 5} W. assigns two errors to the juvenile court. The first alleges that the “[c]ourt

failed to make a finding of parental unsuitability” and argues that the court should have

found that Mother was unsuitable. The second assignment states, “Manifest Weight of

the Evidence” and argues that the juvenile court’s decision denying W. legal custody is

not supported by the weight of the evidence.

       {¶ 6} Mother did not file a brief.

       {¶ 7} R.C. 2151.23(A)(2) “grants juvenile courts exclusive original jurisdiction ‘to
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determine the custody of any child not a ward of another court of this state.’ This includes

‘custodial claims brought by the persons considered nonparents at law.’ ” Rowell v. Smith,

133 Ohio St.3d 288, 2012-Ohio-4313, 978 N.E.2d 146, ¶ 14, quoting In re Bonfield, 97

Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 43. “A juvenile court’s custody

decision will not be reversed absent an abuse of discretion.” (Citation omitted.) In re A.C.,

12th Dist. Butler No. CA2006-12-105, 2007-Ohio-3350, ¶ 15. See also In re M.O., 2d Dist.

Montgomery No. 26457, 2015-Ohio-2430, ¶ 7 (saying that “we will not reverse an award

of legal custody absent an abuse of discretion”).

       {¶ 8} “[T]he overriding principle in custody cases between a parent and nonparent

is that natural parents have a fundamental liberty interest in the care, custody, and

management of their children.” Hockstok v. Hockstok, 98 Ohio St.3d 238, 2002-Ohio-

7208, 781 N.E.2d 971, ¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982). Consequently, before awarding legal custody of a child to

a nonparent, a court must determine that the parent is unsuitable. Id. at the syllabus. This

determination is “a necessary first step in child custody proceedings between a natural

parent and nonparent.” Id. at ¶ 18. A court may find that a parent is unsuitable if it finds,

by a preponderance of the evidence, that the parent “abandoned the child; contractually

relinquished custody of the child; that the parent 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.” In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977),

syllabus. “Nonparents seeking custody have the burden of demonstrating a parent’s

unsuitability.” (Citation omitted.) In re D.C.J., 2012-Ohio-4154, 976 N.E.2d 931, ¶ 58

(8th Dist.).
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       {¶ 9} Here, the magistrate found W.’s testimony “inconsistent and incredible.”

Magistrate’s Decision and Judge’s Order (Mar. 31, 2015). The magistrate noted that W.

first testified that he had sole possession of Jack from the time the child left the hospital

after he was born until the custody hearing. But later W. said that he attended the

University of Toledo in 2012 and 2013 and that Jack was not with him. The magistrate

also noted that W. admitted to telling his mother, aunt, and godmother that he was Jack’s

father when he knew that he was not. But more important, said the magistrate, was W.’s

failure to present evidence proving that Mother is unsuitable to raise Jack.

       {¶ 10} W. objected, contending that Mother had abandoned Jack, has been unable

or unwilling to care for him, or was otherwise unsuitable to parent him. The juvenile court,

after independently reviewing the evidence, rejected these contentions. W. testified, said

the court, that Jack lived with him from the time he was two weeks old until August 2012,

when he left to attend the University of Toledo, where he was until May 2013. W. said

that when Jack was born Mother was going through some tough times and that she told

him that she could not care for Jack and was going to give him away. The juvenile court

noted that three of W.’s witnesses also testified that Jack came to live with W. soon after

his birth. While he was at the university, said W., Jack lived with either his parents or

Mother. The day W. returned home from the university, both W. and W.’s mother testified,

he picked up Jack. W.’s mother also testified that, at one time, W. and Jack lived with her

for five or six months. Mother disputed much of this testimony, the court noted. Mother

testified that Jack lived with her from birth until August 2014. Before then, she said, Jack

would often visit W. and stay with him for usually a couple of days. Around August, Mother
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said, her home was broken into and electric cords were cut, pipe was taken out of the

walls, and many items were stolen. Mother said that she asked W. if Jack could stay with

him while repairs were made, and W. agreed. According to Mother, she left Jack with W.

for two weeks, the longest time that he was ever with W. It was when she tried to get Jack

back after those two weeks, said Mother, that she learned W. had sought legal custody.

       {¶ 11} The juvenile court found that Mother has three other children (ages seven

years, one year, and two months) who all live with her. She said that she intended to

enroll Jack in summer school. Mother also said that Jack was enrolled in CareSource and

that the last time that she took him to see a doctor was in 2013. Mother testified that she

had taken Jack to see a doctor for his asthma and that she had a suction machine and a

breathing machine in her home. The court said that Mother testified that she does not

smoke marijuana, drink alcohol, take drugs, or get into fights in Jack’s presence. While

Mother admitted that she has been in fights—the last a couple of years ago—she said

that she has matured. The court noted that while W.’s mother testified that Jack told her

that he saw Mother being arrested, there is no corroborating evidence of this arrest.

       {¶ 12} Ultimately, the juvenile court agreed with the magistrate and concluded that

“[t]here was no testimony or other evidence presented to prove that [Mother] is not

suitable to raise the child.” Decision and Judgment Concerning Objections to the Decision

of the Magistrate, 4 (Oct. 20, 2015). It is “undisputed,” said the court, that Mother “has

custody of and provides for the needs of her three other children” and that she “attempted

to see to the educational needs of the subject child by enrolling him in school, and she

provides medical care for the subject child.” Id.

       {¶ 13} W. argues in the first assignment of error that Mother is unsuitable because
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she has abandoned Jack, constructively abandoned him, and has been unable or

unwilling to care for him. W. begins his argument by saying that “R.C. 2151.412 & R.C.

2151.353(A)(3) mandate[] the process in a child custody proceeding between a parent

and a nonparent.” Brief of Appellant, 5. But neither of these statutes applies here. R.C.

2151.412 concerns case plans prepared by public children services agencies and private

child placing agencies. But no case plan was required in this case, because no agency

was involved. Compare R.C. 2151.412(A) (providing that an agency is required to develop

a plan only if the agency is providing services to the child and one of four enumerated

situations exists). R.C. 2151.353 concerns the disposition of an abused, neglected, or

dependent child,2 but Jack has not been adjudicated abused, neglected, or dependent.

       {¶ 14} Later in argument, W. says that R.C. 2151.412(H) and R.C. 3109.04(F) list

factors that a court is to consider when making custody decisions involving nonparents.

R.C. 2151.412(H) lists “general priorities” that should guide the development of a case

plan and a court’s review of the plan. As we have already said, R.C. 2151.412 does not

apply in this case. R.C. 3109.04(F) lists factors that a court should consider, when

deciding how to apportion parental rights and responsibilities, “[i]n determining the best

interest of a child.” W.’s argument ends by talking about best interests: “The best interests

of the child may require placement with a third person even though parents have the

primary right to custody. Ohio is a Best Interests of the child state and thusly a parent’s

right to custody and control is not absolute and bends to the child’s best interests. While



       2 R.C. 2151.353(A)(3) pertinently states that “[i]f a child is adjudicated an abused,
neglected, or dependent child, the court may * * * [a]ward 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.”
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the child’s best interests will normally be served by placing a child in the parent’s home,

the right of a parent to custody cannot control if the circumstances show that a non-parent

can better serve the child’s interest.” Brief of Appellant, 8. But the question of Jack’s best

interest is not relevant unless Mother is determined to be unsuitable. “Where a parent is

found suitable for custody and the parent has not previously lost custody of the child to a

nonparent, there is no need to further determine that a change in circumstances has

occurred or that custody is in the best interest of the child.” (Citations omitted.) In re

D.C.J., 2012-Ohio-4154, 976 N.E.2d 931, at ¶ 59. Because the juvenile court determined

that Mother was suitable for custody, Jack’s best interest is not relevant and the court did

not consider it.3

       {¶ 15} W. argues in the second assignment of error that the trial court’s decision

denying him legal custody is contrary to the manifest weight of the evidence. He contends

that the trial court should have found Mother unsuitable because ample evidence shows

that she has been absent during Jack’s life and shows that giving custody to Mother would

be to Jack’s detriment. W. also contends that the evidence overwhelmingly favors him

and that the court disregarded his close relationship with Jack.

       {¶ 16} W. says he took Jack to doctors appointments and that Mother testified that

she did not accompany them. Mother, says W., was unaware of Jack’s medications, could



       3  If the court had reached the best-interest question, R.C. 3109.04 might apply.
“R.C. 3109.04 * * * typically deals with custody disputes arising out of divorce actions; the
opposing parties in R.C. 3109.04 custody disputes are usually the children's parents, who
may have nearly equal emotional, financial and educational advantages to offer the
children and who are on an equal footing before the law.” In re A.J., 2d Dist. Miami
No. 2014-CA-28, 2015-Ohio-543, ¶ 10. Nevertheless, R.C. 2151.23(F)(1) states that
“[t]he juvenile court shall exercise its jurisdiction in child custody matters in accordance
with sections 3109.04 * * *.”
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not identify his medical-care providers, and could not explain Jack’s diagnosis or

treatment. Elsewhere in his argument, W. says that Mother testified that she was aware

of his medical problems and has a breathing machine but has never given Jack a

breathing treatment. W. says that Mother’s living conditions are unstable and that she is

unable to provide consistent stable housing for Jack. Although Mother received child

support and welfare, says W., she failed to assist financially with Jack’s care and has

failed to provide medical coverage. W. says that Mother admitted to having smoked

marijuana in her children’s presence, though he concedes that she said that she does not

do it anymore. Mother also admitted to several convictions for theft, W. points out, though

he also concedes that she said that she no longer steals.

       {¶ 17} According to W., after the magistrate’s hearing Mother was arrested for theft

and falsification and is currently serving an 80-day jail sentence. W. also asserts that

Mother has a detainer out of Sugarcreek Police Department, has been arrested at least

three times since the hearing, and has fraudulently collected welfare benefits. W. attached

to his appellate brief a copy of Mother’s recent arrest record. But it does not appear from

the appellate record that the arrest record was presented to the juvenile court. Nor does

it appear that the court knew about the jail sentence, detainer, recent arrests, or welfare-

fraud claim. Certainly no evidence of these matters was presented and the court made

no related findings. Therefore we will not consider these unsupported criminal allegations.

       {¶ 18} Much of the testimony that W. cites to indicate that he should have custody

of Jack goes to the best-interest question. The only question here, though, is whether

Mother is a suitable custodian, “ ‘not whether someone else is more suitable.’ ” (Emphasis

sic.) In re D.C.J., 2012-Ohio-4154, 976 N.E.2d 931, at ¶ 58, quoting In re S.M., 160 Ohio
                                                                                         -9-


App.3d 794, 2005-Ohio-2187, 828 N.E.2d 1044, ¶ 31 (8th Dist.) (McMonagle, J.,

concurring). A juvenile court’s discretion 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. The knowledge a trial court

gains through observing the witnesses and the parties in a custody proceeding cannot be

conveyed to a reviewing court by a printed record.’ Thus, an appellate court affords

deference to a judge or magistrate’s findings regarding witnesses’ credibility.” (Citation

omitted.) In re A.C., 2007-Ohio-3350, at ¶ 15, quoting In re A. W.-G., 12th Dist. Butler No.

CA2003-04-099, 2004-Ohio-2298, ¶ 6. We are not persuaded to disturb the findings here.

Deferring to those findings, we conclude that the weight of the evidence is not contrary to

the determination that Mother is a suitable parent. Thus the juvenile court did not abuse

its discretion by denying W. legal custody of Jack.

       {¶ 19} The first and second assignments of error are overruled.

                                     III. Conclusion

       {¶ 20} We have overruled each of the assignments of error presented. The juvenile

court’s judgment is affirmed.

                                     .............



DONOVAN, P.J., and FAIN, J., concur.


Copies mailed to:

C. Ralph Wilcoxson
B.H.
T.R.
Hon. Anthony Capizzi
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