[Cite as In re J.T., 2017-Ohio-1303.]




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

                                                  :
                                                  :
 IN RE:                                           :   Appellate Case No. 27343
                                                  :
               J.T.                               :   Trial Court Case No. JC-2014-7957
                                                  :
                                                  :   (Juvenile Appeal from
                                                  :    Common Pleas Court)
                                                  :
                                                  :

                                           ...........

                                           OPINION

                               Rendered on the 7th day of April, 2017.

                                           ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Appellee, Montgomery County Children Services Board

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 North Ludlow Street, Suite 386
Talbott Tower, Dayton, Ohio 45402
       Attorney for Appellee, Father

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 West First Street, Suite 518,
Dayton, Ohio 45402
      Attorney for Appellant, Mother


KATHLEEN BISHOP, Post Office Box 49202, West Carrollton, Ohio 45449
     Guardian ad litem
                               .............
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HALL, P.J.

       {¶ 1} T.T. (“Mother”) appeals from the trial court’s judgment entry awarding

appellee D.T. (“Father”) legal custody of their minor child following a dependency

adjudication.

       {¶ 2} In her sole assignment of error, Mother contends the trial court erred in

awarding Father legal custody where he failed to prove by clear and convincing evidence

that such a disposition is in the child’s best interest.

       {¶ 3} The record reflects that appellee Montgomery County Children Services

(“MCCS”) became involved with Mother and the child at issue following a September 2014

domestic-violence complaint at the home where they resided together. On that occasion,

a police officer heard the child, who then was 13 years old, accuse Mother of hitting her

and heard Mother cursing at the child. The officer described conditions inside the home

as “horrible” and a “fire hazard.” Mother ordered the officer out of the home, claimed there

was no problem, and accused the child of lying. The child claimed, however, that Mother

had slapped her and had tried to pepper-spray her. Mother was arrested for domestic

violence, and the child was placed in the temporary care of Father. MCCS caseworker

Melanie Hennessey subsequently visited Mother at her home. Hennessey described the

interior as cluttered with trash and debris to the point that it was difficult to move and that

no food could be prepared. Shortly thereafter, Mother removed a significant amount of

trash and debris, and the child was returned to her.

       {¶ 4} The following month, Mother was arrested for shoplifting at a Wal-Mart

store. At that time, Mother was accompanied by the child, who told police that Mother had

asked her to carry some of the stolen merchandise out of the store. Mother was arrested
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for shoplifting and child endangering, and the child returned to Father’s care. The child

later went back to Mother after her release from jail.

       {¶ 5} In December 2014, MCCS filed a dependency complaint based on concerns

about the foregoing issues and others. Following a hearing, the trial court adjudicated the

child dependent and placed the child with Father with interim protective supervision to

MCCS. In April 2015, a magistrate entered a dispositional order awarding Father

temporary custody, again with protective supervision to MCCS, and with Mother receiving

supervised visitation. The trial court overruled Mother’s objections and adopted the

magistrate’s decision. Mother appealed. This court affirmed the award of temporary

custody to Father in In re J.T., 2d Dist. Montgomery No. 26839, 2016-Ohio-602. In so

doing, we concluded, among other things, that the trial court properly had considered the

appropriate best-interest factors and that its dispositional order was supported by

competent, credible evidence.

       {¶ 6} In April 2016, Father moved for legal custody of the parties’ child. Following

a June 2016 hearing, a magistrate awarded Father legal custody with one year of

protective supervision by MCCS. Mother filed objections, which the trial court overruled

in October 2016. In its ruling, the trial court found, among other things, that an award of

legal custody to Father is in the child’s best interest. The trial court addressed the statutory

best-interest factors and made detailed findings, with citations to the record, for each of

them. (Doc. # 4 at 3-10).

       {¶ 7} In her present appeal, Mother contends Father failed to prove by clear and

convincing evidence that awarding him legal custody is in the child’s best interest. Mother

addresses the best-interest factors found in both R.C. 3109.04(F)(1) and R.C.
                                                                                             -4-


2151.414(D)(1) and challenges the trial court’s decision.

       {¶ 8} With regard to R.C. 3109.04(F)(1), Mother asserts (1) that the record does

not reveal why the child wants to live with Father, (2) that the trial court did not interview

the child, (3) that the child resided with her until the fall of 2014, (4) that her relationship

with the child did not justify awarding Father legal custody, (5) that the evidence does not

support a finding that the child’s emotional condition improved while with Father, (6) that

she had completed or was in the process of completing her case-plan requirements, (7)

that she would facilitate parenting time by Father if he did not have custody, and (8) that

Father has a substantial child-support arrearage.

       {¶ 9} With regard to the similar factors found in R.C. 2151.414(D)(1), Mother

asserts that the record lacks evidence of her having a “strained” relationship with the child.

She then repeats some of her earlier points, arguing (1) that the child was not interviewed,

and the child’s wishes were conveyed by the guardian ad litem, (2) that the child resided

with her until the fall of 2014, and (3) that she had completed most, if not all, of her case-

plan objectives. Rather than granting Father legal custody, Mother asserts that the trial

court should have ordered a second extension of temporary custody, either to Father or

to MCCS, to give her an opportunity to reunite with the child within a reasonable time.

       {¶ 10} Upon review, we find Mother’s assignment of error to be unpersuasive. As

a threshold matter, her argument about a lack of “clear and convincing evidence” is

misplaced. The trial court awarded Father legal custody of the parties’ child. Mother’s

parental rights were not terminated. Therefore, the trial court’s best-interest finding must

be supported by the preponderance of the evidence, not by clear and convincing

evidence. In re Starks, 2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶ 11-16. Moreover, we
                                                                                          -5-


will not reverse the trial court’s award of legal custody to Father absent an abuse of

discretion. In re M.O., 2d Dist. Montgomery No. 26457, 2015-Ohio-2430, ¶ 7. The phrase

“abuse of discretion” implies that the trial court’s decision is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 11} We see no abuse of discretion here because the evidence overwhelmingly

supports a determination that awarding legal custody to Father is in the child’s best

interest. The pertinent best-interest factors are found in R.C. 3109.04(F)(1). In re D.S., 2d

Dist. Clark No. 2013 CA 51, 2014-Ohio-2444, ¶ 8-9. As relevant here, they include (1) the

parents’ wishes, (2) the child’s wishes, (3) the child’s interaction with parents, siblings,

and others, (4) the child’s adjustment to home, school, and community, (5) the mental

and physical health of all persons involved, (6) the parent more likely to honor visitation,

and (7) whether either parent has failed to make required child-support payments.

       {¶ 12} The trial court properly considered the parents’ wishes and the wishes of

their child, who made clear that she wants to reside with Father.1 The record reflects that

Father has a good relationship with the child. At the time of the most recent hearing, the

child was 15 years old and had been living with Father for well over a year. She is happy,

comfortable, and thriving with Father. The child also has a good relationship with the

paternal grandmother and two half-siblings who reside in the home. The child’s

relationship with Mother, however, is quite poor. Their interaction is volatile and their

conversations are argumentative. In the six months prior to the June 2016 hearing,


1 Although Mother contends the child was not interviewed, the magistrate’s decision
indicates that an in-camera interview did occur. Regardless, the child’s wishes were
conveyed through the caseworker and the guardian ad litem.
                                                                                            -6-


Mother and the child did not visit each other in person. Moreover, the record contains

evidence that their relationship did not improve during the roughly 15 months that the

child was out of Mother’s house. MCCS caseworker Hennessey saw no reasonable

possibility that the child could be placed with Mother during a second extension of

temporary custody if it were ordered. The guardian ad litem, Kathy Bishop, likewise

recommended legal custody to Father and opined that a second extension of temporary

custody would be “futile.” The child’s adjustment to home, school, and community also

supports awarding Father legal custody. The record reflects that the child is much happier

with Father and that her school attendance and performance have improved.

       {¶ 13} With regard to the mental and physical health of all persons involved, the

child has no special needs but does participate in counseling, which is going well. Father

has participated in at least one counseling session with the child, but Mother has not yet

done so. Mother has participated in her own counseling sessions. She takes various

medications to treat mental and physical health problems, which include a personality

disorder, anxiety disorder, and depression disorder. As for facilitating visitation, the record

reflects that Father is very cooperative and is willing to take the child to visit Mother

whenever the child wants to go. The trial court found that he has not done anything to

restrict or interfere with Mother’s parenting time. Visitation simply has been at the child’s

discretion. The trial court also properly took into consideration the fact that Father has a

significant child-support arrearage. It noted, however, that he is employed and is making

payments toward it.2


2 As noted above, Mother’s appellate brief also mentions the best-interest factors found
in R.C. 2151.414(D)(1). Those factors apply to permanent-custody motions. In re C.N.,
2d Dist. Montgomery No. 27119, 2016-Ohio-7322, ¶ 50. In any event, to the extent that
                                                                                       -7-


       {¶ 14} Although Mother contends she has completed, or substantially completed,

her case-plan objectives, the trial court found otherwise. It found her objectives

incomplete, most notably with regard to verifiable income and housing, both of which were

lacking at the time of the June 2016 hearing. The trial court also noted her ongoing

relationship problems with the child. Conversely, the trial court found that Father had

completed his case-plan objectives. Among other things, he had obtained safe, stable

housing and had a history of full-time employment. The record does reflect that Father

had prior drug-related criminal convictions and had served prison time. The record also

indicates, however, that he has complied with the requirements of his probation and

parole, that he has passed random drug tests, that he has stayed out of additional legal

trouble, and that he is providing for all of the child’s needs.

       {¶ 15} Having reviewed the record, we see no error in the trial court’s award of

legal custody to Father. The evidence overwhelmingly supports that disposition, which is

not an abuse of discretion. Mother’s assignment of error is overruled, and the judgment

of the Montgomery County Common Pleas Court, Juvenile Division, is affirmed.

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




WELBAUM, J. and TUCKER, J., concur.




those permanent-custody factors may be relevant to a legal-custody determination
(based on R.C. 3109.04(F)(1)’s catch-all “all relevant factors” language), Mother’s
analysis of the R.C. 2151.414(D)(1) factors is repetitive of her analysis under R.C.
3109.04(F)(1). Based on our own review, we see nothing in the R.C. 2151.414(D)(1)
factors that would change our opinion or the outcome herein.
                         -8-




Copies mailed to:

Mathias H. Heck
Alice B. Peters
Charles W. Slicer, III
James S. Armstrong
Kathleen Bishop
Hon. Nick Kuntz
