[Cite as In re M.F., 2013-Ohio-1755.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF M.F.                            JUDGES:
  AN ALLEGED DEPENDENT /                         Hon. William B. Hoffman, P.J.
  NEGLECTED CHILD                                Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.


                                                 Case No. 12-COA-036


                                                 OPINION



CHARACTER OF PROCEEDING:                         Appeal from the Ashland County Court
                                                 of Common Pleas, Juvenile Division,
                                                 Case No. 20113011



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT ENTRY:                          April 11, 2013




APPEARANCES:

For Appellant:                                   For Appellee:

JOSEPH P. KEARNS, JR.                            FRED M. OXLEY
Mason, Mason & Kearns                            Oxley & Associates
P.O. Box 345                                     1636 Eagle Way
153 West Main Street                             Ashland, Ohio 44805
Ashland, Ohio 44805
Baldwin, J.

      {¶1} Appellant P.A. appeals from the September 5, 2012 Opinion and

Judgment Entry of the Ashland County Court of Common Pleas, Juvenile Division,

finding her unsuitable as a parent and granting legal custody of M.F. to appellee

Michael McPherran, Jr.

                      STATEMENT OF THE FACTS AND CASE

      {¶2} M.F.(DOB 2/2/11) is the child of appellant P.A. Both appellant and the

child’s father were minors at the time of M.F.’s birth. Appellee Michael McPherran, Jr.

is the maternal uncle of appellant.

      {¶3} On April 13, 2011, appellee filed a complaint pursuant to R.C. 2151.27

alleging that M.F. was a dependent and/or neglected child and seeking temporary

custody of her. At the time the complaint was filed, appellant was 15 years old. On the

same date, appellee filed a motion for ex parte orders. Appellee, in his motion, alleged

that M.F. was currently in his care and that appellant was on probation and suffered

from various mental health issues. Appellee further alleged that appellant’s mother,

with whom appellant resided, was in jail and thus unavailable to care for both

appellant and M.F. As memorialized in a Judgment Entry filed on April 26, 2011, M.F.

was placed into the temporary custody of appellee.

      {¶4} Subsequently, on May 10, 2011, Michael McPherran, Sr., appellant’s

grandfather, filed a motion seeking legal custody of M.F. and asking for immediate

visitation. On May 13, 2011, appellee filed a motion seeking legal custody of M.F.

      {¶5} Appellant, on June 9, 2011, filed a motion asking that the temporary

orders be modified and that she be permitted to have extended parenting time with
M.F. Pursuant to a Judgment Entry filed on June 17, 2011, the trial court granted

appellant parenting time with M.F. and also ordered that Michael McPherran, Sr. have

visitation with her.

       {¶6} Megan McPherran, appellant’s mother and M.F‘s grandmother, also filed

a motion seeking legal custody of M.F.

       {¶7} A hearing was held on August 30, 2011 and August 31, 2011. The trial

court, pursuant to an Opinion and Judgment Entry filed on November 29, 2011, found

that M.F. was not neglected or dependent as alleged in the complaint.

       {¶8} Subsequently, a hearing on the issue of custody of M.F. was held on

March 13, 2012.        At the hearing, the trial court took judicial notice of all prior

proceedings and all evidence previously presented in this case. At the previous

hearing on the complaint, appellee testified that he was M.F.’s great uncle and that

Megan McPharren was his sister.         He testified that he and his wife had minimal

contact with appellant, Megan and M.F. until he took M.F. into his home on April 9,

2011. Appellee testified that, on April 9, 2011, he received a telephone call from

appellant’s older sister, Jessica, stating that Megan McPharren was in jail and that she

was taking care of appellant and M.F. and was frustrated. Prior to Megan’s jailing,

appellant had cared for M.F. with assistance from her mother. On April 8, 2011,

appellant and M.F. and appellant’s sister, Taylor, had gone to stay with Mick

McPharren, their grandfather,      but only stayed there one day before returning to

Megan McPharren’s house.

       {¶9} Appellee testified that he spoke with appellant about taking care of M.F.

while appellant’s mother was in jail. On April 9, 2011, appellant voluntarily gave M.F.
to appellee. According to appellee, he invited appellant to live with them also, but she

indicated that she did not want to leave Taylor, her younger sister, by herself.

Appellant chose to remain with Taylor and to visit M.F. at appelle’s house. M.F. was

still residing with appellee, his wife and his children as of March 13, 2012 and was

doing well in their home. Both appellee and his wife worked during the day and fully

supported M.F., who was in daycare.

      {¶10} At the previous hearing, Jessica McPharren, appellant’s older sister who

was born in 1992, testified that their mother, Megan McPharren, asked her to move

back into the house with appellant, M.F. and Taylor while Megan was in jail for

approximately one month. Jessica moved into Megan’s house for two or three weeks.

Jessica testified that before Megan was jailed,     Megan would tell appellant, who

wanted to go out with her friends, that she needed to stay home and take care of M.F.

Appellant would “stay with an attitude” and, according to Jessica, wanted nothing to do

with M.F. if she was angry with M.F.’s father. Transcript of August 30, 2011 trial at

120. Jessica further testified that before the time she moved back in, she noticed that

appellant was awkward with M.F. She testified that her mother, Megan, took care of

M.F. most of the time.

      {¶11} Jessica McPharren was next questioned about the period after she

moved into Megan’s home while Megan was in jail. She testified that appellant had

problems handling M.F. at night and could only handle M.F. at night if she was taking

her ADHD medicine. She also testified that the first few days she was there, she took

care of M.F. day and night until she told appellant that she had to start taking care of

M.F. during the day. During the day, M.F. would sometimes go to Taco Bell or meet up
with her friends. After such time, appellant took care of M.F. during the day and did

okay, other than needing help with bathing her.

      {¶12} Jessica McPharren also testified at the hearing that, after she had to

take her own child to the emergency room, she returned home and Jody Myer, who

was then a family friend, offered to take M.F. overnight to help Jessica out. Appellant,

according to Jessica, threw a fit and said no but later brought M.F. out of her room and

“said, Here, you can take her overnight because obviously I’m not going to deal with

her tonight.” Transcript of August 30, 2011 hearing at 128. Appellant, M.F. and Taylor

then both ended up at their grandfather’s house for one night. When Jessica called

her grandfather to see how he was doing, he indicated that he had been up with M.F.

since 3:00 a.m. The grandfather then dropped M.F., appellant and Taylor back off at

Megan’s house.

      {¶13} Jessica McPharren also testified at the hearing that, during one incident

at appellee’s house during June of 2011, appellant was upset that she could not get

M.F. to smile and got angry. According to Jessica, appellant roughly passed M.F. off

to Jody Myer .

      {¶14} On cross-examination, Jessica McPharren testified that she helped take

care of M.F. with help from Jody Myer while appellant was in school. She admitted

that, during the period of time from M.F.’s birth until appellee filed his motion during

the second week of April, M.F. was fed, provided with proper clothing and received

medical care. She testified that appellant was upset that her daughter was taken from

her by appellee. Jessica agreed that, up until the time her mother was incarcerated,

she never had any issues with M.F.’s care. On cross-examination, Jessica also
testified that, just a week or so prior, her mother had texted her and asked her to pick

up appellant at school because appellant was going to get into a fight with another girl.

She testified that appellant had been in altercations more than four or five times at

school.

      {¶15} When questioned by the court at the August 2011 hearing about what

she meant when she said that appellant beats herself up, Jessica testified that

appellant actually hit herself in the face and gave herself a black eye. She testified

that this usually happened when appellant was angry or upset with M.F.’s father.

Jessica further testified that appellant and M.F. were never left alone overnight or for

a long period of time because of concerns that appellant would get frustrated.

      {¶16} At the August 2011 hearing, Jody Myer testified that Megan McPharren

was the one who usually cared for M.F. and that Megan would have to tell appellant

what to do. She testified that appellant was usually more worried about M.F.s father.

Myer further testified that she saw appellant interact with M.F. after M.F. was living

with appellee and that appellant was ready to leave in five or ten minutes after

arriving. During these visits, appellant would text while holding M.F. and, during one

visit, tossed M.F. to Myer. According to Myer, during the month or so that appellant

stayed with her while M.F. was living with appellee, appellant, in the beginning, asked

to go over and see M.F. However, once M.F.’s father was back in the picture,

appellant initiated contact less often and became more focused on M.F.’s father.

When asked, Myer stated that she did not think that appellant had the parenting skills

to raise M.F.
      {¶17} At the August 2011 hearing, the Guardian ad Litem testified that

appellant was not mature and had the demeanor of a young girl. He testified that,

during her interview, she sat on the couch across from him eating ice cream while

texting her friends. He testified that he could tell that she was more interested in

M.F.’s father than with M.F. and that he was concerned with her ability to control her

emotions.

      {¶18} At the March 2012 hearing, Mick McPherran, appellant’s grandfather,

testified that he had legal custody of appellant and that she was doing well in school.

He testified that appellant’s grades had improved considerably since school started in

the fall and that appellant came to visit M.F. when M.F. was with him, which was twice

a week. According to Mick McPharren, appellant and M.F. had a good mother-child

relationship and appellant acted appropriately as a parent.

      {¶19} On cross-examination, Mick McPharren testified that, although he had

legal custody of appellant, appellant went back to live with her mother, Megan, and

became pregnant while living with Megan. He admitted that, approximately a year

earlier, he had signed an affidavit stating that M.F. was without good parental care. At

the time, Megan was in jail for a couple of weeks. He indicated that he believed that

was true on May 10, 2011 and testified that he still believed that appellant was unable

to provide proper care for M.F. only because she was still in school.   When asked, he

testified that appellant was not able to care for M.F. by herself, but that she had

matured over the last year.
      {¶20} During his testimony, Mick McPharren, who is Megan’s father, testified

that he knew that Megan had filed for disability because of her fibromyalgia and

migraines. He further testified that he was aware that she had had a stroke in 2000.

      {¶21} At the March 2012 hearing, Andrea Hysell, a service coordinator and

home visitor with Ashland County Help Me Grow, testified that appellant had been

there for every in home visit that Hysell attended and that appellant played on the floor

with M.F. when she was there. Appellant had never cancelled any appointments.

Hysell testified that she went to Mick McPharren’s home to visit with appellant and that

the interaction between appellant and M.F. was appropriate. According to Hysell,

appellant helped M.F. with her walking and responded to her. She testified that she

observed love and affection between the two and that she had no concerns with

appellant being a mother because appellant listened to advice.         Hysell had been

observing appellant with her daughter a couple of times a month since July 1, 2011.

      {¶22} At the March 13, 2012 hearing, appellant testified that she was 16 years

old and that she knew that she could take care of M.F. According to appellant, she

had some complications after M.F.’s birth and post-partum depression and, for such

reasons, her mother sometimes had M.F. Appellant testified that she was still involved

with Help Me Grow. She further testified that she thought that appellee was going to

take M.F. only until they figured out where appellant was going to go with her daughter

and did not think that “it was going to be forever.” Transcript of March 13, 2012

hearing at 124. Appellant indicated that appellee told her that she could have her

daughter back once Megan McPharren, appellant’s mother, got out of jail.
       {¶23} Appellant further testified that she intended to finish high school and get

a good job and that she was involved in track. She planned on getting her driver’s

license.   She testified that she visited with her daughter at appellee’s house, but did

not feel comfortable there because she had issues with appellee and because M.F.

acted differently towards her when appellant visited her at appellee’s house. Appellant

voiced her concerns that appellee and his wife had M.F. refer to them as mom and

dad and encouraged M.F. to refer to their children as brother and sister. Appellant

stated that she believed that she could manage to care for M.F. and indicated that if

she was told that she could have her daughter if she lived with her grandfather, she

would do so and would not run back to her mother’s house. She further indicated that

she intended to stay with the Help Me Grow program.

       {¶24} On cross-examination, appellant testified that her mother would provide

financial support for M.F. if M.F. lived with appellant. Appellant’s mother was not

employed. Appellant admitted that when she had M.F., there was usually an adult

present.

       {¶25} As memorialized in an Opinion and Judgment Entry filed on September

5, 2012, the trial court found that appellant was not suitable to be designated M.F.’s

legal custodian and that it was in M.F.’s best interest to remain with appellee. The trial

court granted appellee legal custody of the child.

       {¶26} Appellant now raises the following assignment of error on appeal:

       {¶27} “I. THE TRAIL (SIC) COURT ABUSED ITS DISCRETION WHEN IT

GRANTED CUSTODY OF A CHILD TO A NON-PARENT WITHOUT SUFFICIENT

CAUSE.”
                                           I.


      {¶28} Appellant, in her sole assignment of error, argues that the trial court

abused its discretion when it awarded legal custody of M.F. to appellee, a non-parent.

Appellant specifically contends that the trial court erred in finding that she was

unsuitable as a parent. We disagree.

      {¶29} A trial court enjoys broad discretion in custody proceedings because

“custody issues are some of the most difficult and agonizing decisions a trial judge

must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d

1159. A trial court's custody determination will not be disturbed unless the court

abused that discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).

An “abuse of discretion” connotes that the court's attitude is “unreasonable, arbitrary,

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

(1983). When applying an abuse of discretion standard, we are not free to merely

substitute our judgment for that of the trial court. In re Jane Doe 1, 57 Ohio St.3d 135,

137-138, 566 N.E.2d 1181 (1991).

      {¶30} R.C. 2151.23 gives juvenile courts exclusive jurisdiction to “determine the

custody of any child not a ward of another court of this state.” The Ohio Supreme Court

addressed the issue of when a trial court may award custody of a child such as M.F. to

a nonparent in In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977). In Perales, the

Supreme Court held as follows: “In [a] child custody proceeding between a parent and a

nonparent, the hearing officer may not award custody to the nonparent without first

making a finding of parental unsuitability-that is, without first determining that a

preponderance of the evidence shows that the parent abandoned the child, that the
parent 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.” Id. at syllabus.

       {¶31} The paramount right of a parent to custody can be forfeited by

demonstrating unsuitability by a preponderance of the evidence. In Re: Porter, 113 Ohio

App.3d 580, 588, 681 N.E.2d 954 (3rd Dist. 1996). Once the paramount right to custody

is forfeited, the court will look to the best interest of the child when determining custody.

Id. “Preponderance of the evidence” means “evidence that's more probable, more

persuasive or of greater probative value.” State v. Finkes, 10th Dist. No. 01AP–310,

2002-Ohio-1439.

       {¶32} In the case sub judice, the trial court specifically found that appellant was

“not presently capable of supporting or caring for the child”, that an award of custody

to appellant would be detrimental to M.F. and that appellant was not suitable to be

designated M.F.’s legal custodian.

       {¶33} As is discussed above in detail in the statement of facts, Mick

McPharren, appellant’s grandfather, opined that appellant could not care for M.F.

alone. In addition, Jessica McPharren and Jody Myer testified that appellant was not

capable of caring for M.F. without assistance from others. There was testimony that

appellant sometimes became frustrated and would “beat up” herself, that she had

been involved in physical fights in the past, and that, at times, she showed insufficient

interest in parenting. Appellant’s own mother, Megan McPharren, did not want

appellant left alone with M.F. Moreover, the Guardian ad Litem, at the August 2011

hearing, testified that appellant was immature for her age and spent the time eating
ice cream and texting. He was of the opinion that appellant could not adequately

parent her daughter without help from others. In his August 2011 report, he stated that

he was concerned about appellant’s ability to control her emotions after reading text

messages that she sent to appellee as well as her Facebook postings.

       {¶34} Based on the foregoing, we cannot find that the trial court abused its

discretion in finding that appellant was unsuitable to be designated M.F.’s legal

custodian and in granting legal custody of M.F. to appellee rather than appellant.

       {¶35} Appellant’s sole assignment of error is, therefore, overruled.

       {¶36} Accordingly, the judgment of the Ashland County Court of Common

Pleas, Juvenile Division, is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.



                                         HON. CRAIG R. BALDWIN



                                         HON. WILLIAM B. HOFFMAN



                                         HON. JOHN W. WISE


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


                                    :
IN THE MATTER OF: M.F.,             :
AN ALLEGED                          :
DEPENDENT/NEGLECTED CHILD           :       JUDGMENT ENTRY
                                    :
                                    :
                                    :
                                    :       Case No.   12-COA-036
                                    :
                                    :
                                    :
                                    :


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

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

assessed to appellant.




                                    HON. CRAIG R. BALDWIN



                                    HON. WILLIAM B. HOFFMAN



                                    HON. JOHN W. WISE
