[Cite as In re A.R., 2013-Ohio-1413.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

IN THE MATTER OF:                                 JUDGES:
                                                  Hon. William B. Hoffman, P.J.
A.R.,                                             Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
A DEPENDENT CHILD
                                                  Case No. 12-COA-039


                                                  OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Ashland County Court of
                                               Common Pleas, Juvenile Court, Case No.
                                               20123003


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 5, 2013


APPEARANCES:


For Appellee - Ashland County                  For Appellant - Father
Department of Jobs and Family
Services


JOSHUA A. NEWTON                               DEBORAH E. WOODWARD
Staff Attorney, Children Services              10 E. Main Street
Ashland County DJFS                            Ashland, Ohio 44805
15 W. Fourth St.
Ashland, Ohio 44805
Ashland County, Case No. 12-COA-039                                                       2

Hoffman, P.J.


       {¶1}   Appellant Kenneth Bister (“Father”) appeals the September 27, 2012

Opinion and Judgment Entry entered by the Ashland County Court of Common Pleas,

Juvenile Division, which denied his motion for legal custody of his minor daughter, and

granted temporary custody of the child to Appellee Ashland County Department of Jobs

and Family Services (“the Agency”).

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Father and Sarah Reynolds are the biological parents of A.R. (DOB

8/11/09). A.R. was removed from Reynolds’ home on February 29, 2012. On March 1,

2012, the Agency filed a complaint alleging A.R. was a dependent child. Father filed a

motion for sole custody on March 12, 2012.

       {¶3}   The trial court conducted an adjudicatory hearing on May 4, 2012.

Reynolds entered a plea of admission to a finding of dependency. Father was not

required to enter a plea as he did not have custody of A.R. at the time of the filing of the

action. The trial court conducted a dispositional hearing and a hearing on Father’s

motion for sole custody on June 18, 2012. Via Opinion and Judgment Entry filed

September 27, 2012, the trial court ordered A.R. be placed in the temporary custody of

the Agency. The trial court found it was not in the best interest of A.R. to be placed in

the legal custody of Father, either with or without protective supervision orders.

       {¶4}   It is from this judgment entry Father appeals, raising the following

assignment of error:

       {¶5}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

FATHER-APPELLANT’S MOTION FOR LEGAL CUSTODY AND GRANTING AN
Ashland County, Case No. 12-COA-039                                                       3


AWARD OF TEMPORARY LEGAL CUSTODY OF THE CHILD TO THE ASHLAND

COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES.

       {¶6}   “II. THE TRIAL COURT’S DECISION DENYING FATHER-APPELLANT’S

MOTION FOR LEGAL CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE CONCERNING THE BEST INTERESTS OF THE CHILD.”

                                                   I

       {¶7}   In his first assignment of error, Father contends the trial court abused its

discretion in denying his motion for legal custody and in granting temporary legal

custody of A.R. to the Agency.

       {¶8}   It is important to note this case involves a grant of temporary legal

custody, not one of permanent custody. Legal custody does not divest parents of

residual parental rights, privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369,

2006–Ohio–1191, 843 N.E.2d 1188, at ¶ 17. This means Father may petition the court

for a modification of custody in the future. Id.

       {¶9}   In this type of dispositional hearing, the focus must be the best interest of

the child. In re C.R., 108 Ohio St .3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re

Nawrocki, 5th Dist. No.2004–CA–0028, 2004–Ohio–4208.

       {¶10} R.C. 2151.414(D) provides factors to be considered in making a best-

interest-of-the-child determination:

              In determining the best interest of a child at a hearing held pursuant

       to division (A) of this section or for the purposes of division (A)(4) or (5) of

       section 2151.353 or division (C) of section 2151.415 of the Revised Code,
Ashland County, Case No. 12-COA-039                                                    4


      the court shall consider all relevant factors, including, but not limited to,

      the following:

             (a) The interaction and interrelationship of the child with the child's

      parents, siblings, relatives, foster caregivers and out-of-home providers,

      and any other person who may significantly affect the child;

             (b) The wishes of the child, as expressed directly by the child or

      through the child's guardian ad litem, with due regard for the maturity of

      the child;

             (c) The custodial history of the child, including whether the child has

      been in the temporary custody of one or more public children services

      agencies or private child placing agencies for twelve or more months of a

      consecutive twenty-two month period ending on or after March 18, 1999;

             (d) The child's need for a legally secure permanent placement and

      whether that type of placement can be achieved without a grant of

      permanent custody to the agency;

             (e) Whether any of the factors in divisions (E)(7) to (11) of this

      section apply in relation to the parents and child.

      {¶11} A trial court's determination on legal custody should not be overruled

absent a showing of an abuse of discretion. Stull v. Richland Cty. Children Services, 5th

Dist. Nos. 11 CA47, 11 CA48, 2012–Ohio–738. An abuse of discretion is when the trial

court's judgment is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Ashland County, Case No. 12-COA-039                                                        5


        {¶12} The trial court in the instant action heard evidence Father resided with his

grandmother, Patricia Lawhorn, who provided care for and assistance to Father. The

home was described as safe and appropriate.            Father had been diagnosed with

agoraphobia as well as a seizure related condition. A.R. visited Father at Lawhorn’s

home on a routine schedule of three unsupervised overnights each week. During these

visits, Lawhorn and Father shared the care of A.R.               Father testified his medical

conditions did not adversely affect his ability to care for A.R., and although he and

Lawhorn shared the care of the child during visits, Father was able to independently

provide for A.R. The Agency caseworker questioned Father’s ability to properly care for

A.R. without Lawhorn’s assistance. The caseworker opined, based upon her

observations, Lawhorn was the primary caretaker of A.R. when A.R. was at Lawhorn’s

home.

        {¶13} We find the trial court did not abuse its discretion in denying Father’s

motion for legal custody of A.R., and granting temporary custody of the child to the

Agency.     The trial court weighed the competing arguments in light of A.R.’s best

interest, and determined custody with the Agency was in A.R.’s best interest.

        {¶14} Father’s first assignment of error is overruled.

                                                 II

        {¶15} In his second assignment of error, Father challenges, as against the

manifest weight of the evidence, the trial court’s decision to deny his motion for legal

custody.

        {¶16} Judgments supported by some competent, credible evidence going to all

essential elements of the case will not be reversed as being against the manifest weight
Ashland County, Case No. 12-COA-039                                                       6

of the evidence. In re Pieper Children, 85 Ohio App.3d 318, 327, 619 N.E.2d 1059

(1993). When reviewing a trial court's decision on a manifest weight of the evidence

basis, an appellate court is guided by the presumption that the findings of the trial court

were correct; reversing a judgment on manifest weight grounds should only be done in

exceptional circumstances, when the evidence weighs heavily against the judgment. In

re G.S., Franklin App. No. 05AP–1321, 2006–Ohio–2530, ¶ 4.

       {¶17} “Every reasonable presumption must be made in favor of the judgment

and the findings of facts [of the juvenile court].” Karches v. Cincinnati, 38 Ohio St.3d 12,

19, 526 N.E.2d 1350 (1988). Moreover, “if the evidence is susceptible of more than one

construction, we must give it that interpretation which is consistent with the verdict and

judgment, most favorable to sustaining the [juvenile] court's verdict and judgment.” Id.

Accordingly, before an appellate court will reverse a judgment as against the manifest

weight of the evidence, the court must determine whether the trier of fact, in resolving

evidentiary conflicts and making credibility determinations, clearly lost its way and

created a manifest miscarriage of justice.

       {¶18} The trial court heard evidence Father resided with his grandmother who

provided for and assisted him as well as the child. Father suffers from a severe anxiety

disorder and a seizure-related condition. Father had never lived on his own. The

Agency had concerns regarding his ability to independently care for and support A.R.

       {¶19} After a thorough review of the record, we cannot conclude the trial court,

as the trier of fact, clearly lost its way and created a manifest miscarriage of justice

when it denied Father's motions for legal custody of A.R. Consequently, we find the trial

court’s decision was not against the manifest weight of the evidence.
Ashland County, Case No. 12-COA-039                                              7


       {¶20} Father’s second assignment of error is overruled.

       {¶21} The judgment of the Ashland County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur                         s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Craig R. Baldwin ___________________
                                           HON. CRAIG R. BALDWIN
Ashland County, Case No. 12-COA-039                                           8


             IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                       :
                                        :
A.R.,                                   :
                                        :
A DEPENDENT CHILD                       :
                                        :        JUDGMENT ENTRY
                                        :
                                        :
                                        :        Case No. 12-COA-039



        For the reasons stated in our accompanying Opinion, the judgment of the

Ashland County Court of Common Pleas, Juvenile Division, is affirmed.   Costs to

Appellant.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ John W. Wise _____________________
                                        HON. JOHN W. WISE


                                        s/ Criag R. Baldwin___________________
                                        HON. CRAIG R. BALDWIN
