[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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Case No. 1-18-54


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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Case No. 1-18-54


       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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