[Cite as In re J.W., 2020-Ohio-322.]




                                       IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




 IN RE:                                           :

          J.W.                                    :        CASE NO. CA2019-07-108

                                                  :              OPINION
                                                                  2/3/2020
                                                  :

                                                  :

                                                  :




             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. JN2018-0339


Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Dawn S. Garrett, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for
appellant

Jamie Landvatter, 10 Journal Square, Suite 300, Hamilton Ohio 45011, guardian ad litem
for child

Jeannine Barbeau, P.O. Box 42324, Cincinnati, Ohio 45242, guardian ad litem for appellant


        S. POWELL, J.

        {¶ 1} Appellant, the mother of J.W. ("Mother"), appeals the decision of the Butler

County Court of Common Pleas, Juvenile Division, granting legal custody of J.W. to K.D.,
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a nonrelative. For the reasons outlined below, we affirm the juvenile court's decision.

       {¶ 2} On April 27, 2018, J.W. was removed from Mother's care by appellee, Butler

County Children Services ("BCCS"). The removal occurred after the police were dispatched

to K.D's home in reference to a disturbance.1 Upon their arrival, the police learned that

J.W. had been residing with K.D. for several months with Mother's approval, but that Mother

now wanted J.W. to be returned back home to her. J.W., however, advised the police that

she did not want to return home to Mother due to the unlivable and unsafe condition of

Mother's home. This included animal feces and trash strewn throughout Mother's home,

as well as a toilet laying in the middle of J.W.'s bedroom. The unlivable and unsafe

conditions of Mother's home were thereafter confirmed by police, thus prompting J.W.'s

removal from Mother's care.

       {¶ 3} On April 30, 2018, BCCS established a safety plan that placed J.W. in K.D.'s

home, which BCCS found to be clean and uncluttered with plenty of food for J.W. and a

bed for J.W. to sleep. The safety plan was established by BCCS due to the condition of

Mother's home discussed above, as well as allegations that J.W. had suffered physical

harm while in Mother's care. This was in addition to BCCS' ongoing concerns regarding

Mother's mental health. These concerns manifested themselves in Mother's erratic and

animated behavior while meeting with BCCS shortly after J.W.'s removal from her care.

Specifically, as BCCS later stated in a social summary submitted to the juvenile court:

               On 4/30/18, [BCCS] met with [Mother] at her residence * * *.
               [Mother's] behavior was erratic and animated throughout this
               entire home visit. She was pacing around and speaking very
               loudly. At one point, she got down on her knees and prayed to
               Jesus. She stated that [K.D.] was her fiancé. She stated she
               gave her a ring and they were together. She denied ever living
               with [K.D.]


1. The record indicates that BCCS had a history with Mother dating back to late 2004 that resulted in J.W
being placed in foster care due to Mother's neglect. BCCS had additional contact with Mother in 2009 and
2014 after it was alleged J.W. was being sexually abused while in Mother's care.
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        {¶ 4} On September 28, 2018, Mother was arrested and charged with conspiring to

have K.D. murdered. As alleged in the indictment, the charges arose after Mother solicited

a person to commission a "hitman" to kill K.D. Four days later, on October 2, 2018, BCCS

filed a complaint with the juvenile court alleging J.W. was a dependent child. Later that day,

the juvenile court issued an emergency ex parte order placing J.W. in the temporary custody

of K.D. The juvenile court also ordered protective supervision of J.W. to BCCS and

appointed J.W. a guardian ad litem. The following day, October 3, 2018, a shelter care

hearing was held before a juvenile court magistrate. At the conclusion of this hearing, the

magistrate continued all prior orders and scheduled the matter for a pretrial hearing.

        {¶ 5} On April 30, 2019, the magistrate held an adjudication hearing and

adjudicated J.W. a dependent child. During this hearing, the magistrate noted that Mother

had been involuntarily hospitalized as a result of her being found incompetent to stand trial

for conspiring to have K.D. murdered. After adjudicating J.W. a dependent child, the

magistrate then scheduled the matter for a dispositional hearing on May 22, 2019 with a

"fallback" date of June 11, 2019. The magistrate explained that this "fallback" date was

being placed on the docket "just in case" the dispositional hearing scheduled for May 22,

2019 could not proceed as scheduled due to a "bunch of emergency orders that come in."

        {¶ 6} On May 22, 2019, the magistrate conducted the originally scheduled

dispositional hearing. During this hearing, Mother's trial counsel moved the magistrate to

continue the hearing to the "fallback" date so that Mother could attend the dispositional

hearing in person.2 Mother's trial counsel also moved the magistrate to continue the

dispositional hearing based on a letter counsel had received from Mother the previous day,



2. The record indicates that Mother did not attend the dispositional hearing due to her still being involuntarily
hospitalized.


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May 21, 2019. In this letter, Mother asked her trial counsel to contact a witness who Mother

believed would testify to having previously purchased drugs from K.D. Mother also alleged

that this witness, who Mother claimed was then serving time in the Butler County Jail, would

testify that K.D. had earlier provoked some unidentified man into committing suicide.

      {¶ 7} When asked about Mother's allegations contained in this letter, Mother's trial

counsel had the following exchange with the magistrate:

             [MOTHER'S TRIAL COUNSEL]: I think the allegation is that this
             [witness] has bought drugs from the current custodian.

             [MAGISTRATE]: Ah. And [Mother's] of the opinion that [the
             witness] would come to court and then swear under oath that
             she had been buying drugs from somebody.

             [MOTHER'S TRIAL           COUNSEL]:        That    would    be    my
             understanding.

             [MAGISTRATE]: Okay. But you don't know where [the witness]
             is?

             [MOTHER'S TRIAL COUNSEL]: I checked in the jail based on
             that letter. Apparently [the witness is] not in the Butler County
             Jail, so I don't know where, where she would be.

      {¶ 8} Following this exchange, the magistrate heard arguments from BCCS and

J.W.'s guardian ad litem. Both BCCS and J.W.'s guardian ad litem agreed that it would be

in J.W.'s best interest to deny Mother's motion for a continuance and grant legal custody to

K.D. without any further delay. Specifically, as J.W.'s guardian ad litem stated:

             I just really believe that it is in [J.W.'s] best interest to go ahead
             and grant legal custody today. She wants to get out of
             Middletown. She had to stop attending school, regular school
             in Middletown and start doing online school, because she's
             embarrassed because the kids in school all know what
             happened with her family and she's… she was mortified and
             had to stop attending regular school, and I think that it would be
             in her best interest to be able to move to a different area with
             [K.D.]

      {¶ 9} The magistrate agreed. In reaching this decision, the magistrate stated:


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              Okay. What I'm going to do, I'm going to deny the request to
              delay this any further. I don't think there's any purpose in it. We
              wouldn't transport mother from [the institution where she is
              involuntarily hospitalized], and she's presented the Court with
              her letter. Don't have any reason to believe that this person
              would be locatable, or even if they would that it would be likely
              they'd testify consistent with what mother is saying and come in
              and incriminate themselves, which is essentially what they
              would be doing.

       {¶ 10} On June 4, 2019, Mother filed an objection to the magistrate's decision. In

support of her objection, Mother argued that the magistrate erred by finding it was in J.W.'s

best interest to grant legal custody of J.W. to K.D. Mother also argued that the magistrate

erred by denying her motion to continue the dispositional hearing until the "fallback" date,

June 11, 2019. Mother further moved the juvenile court for a transcript of the dispositional

hearing and requested the juvenile court hold a hearing on the matter.

       {¶ 11} On June 6, 2019, the juvenile court issued a decision overruling Mother's

objection to the magistrate's decision in its entirety. The juvenile court issued this decision

without holding a hearing on Mother's objection as Mother requested. The juvenile court

also denied Mother's motion for a transcript of the dispositional hearing. In so holding, the

juvenile court specifically stated that it had conducted a "review of the record" prior to finding

Mother's objection to be "not well taken." Mother now appeals the juvenile court's decision,

raising three assignments of error for review.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE DENIAL OF A CONTINUANCE WAS AN ABUSE OF DISCRETION.

       {¶ 14} In her first assignment of error, Mother argues the juvenile court erred and

abused its discretion by denying her motion to continue the dispositional hearing since there

was "already another hearing date set." However, contrary to Mother's claims, the juvenile

court had not already scheduled the dispositional hearing for another date. The juvenile

court had instead reserved a "fallback" date on its docket "just in case" the disposition

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hearing could not proceed as originally scheduled due to a "bunch of emergency orders

that come in." After hearing arguments from BCCS and J.W.'s guardian ad litem, the

juvenile court denied Mother's motion upon finding there was no reason to delay the matter

any further. As noted by the juvenile court, this was because "[w]e wouldn't transport

mother from [the institution where she is involuntarily hospitalized], and she's presented the

Court with her letter." We find no abuse of discretion in the juvenile court's decision.

Therefore, finding no error in the juvenile court's decision, Mother's first assignment of error

lacks merit and is overruled.

       {¶ 15} Assignment of Error No. 2:

       {¶ 16} THE DENIAL OF A TRANSCRIPT OR HEARING AND OVERRULING

MOTHER'S OBJECTIONS CONSTITUTES BOTH AN ERROR AND AN ABUSE OF

DISCRETION.

       {¶ 17} In her second assignment of error, Mother argues the juvenile erred by failing

to conduct a full review of the record prior to issuing its decision overruling her objection to

the magistrate's decision. Mother supports this claim by arguing that since the juvenile

court denied her motion for a transcript of the dispositional hearing that it was impossible

for the juvenile court to conduct a full review of the record. However, simply because the

juvenile court denied Mother's motion for a transcript in no way indicates the juvenile court

did not conduct a full and thorough review of that hearing via some other means. Juv.R.

40(C)(7) requires "all proceedings before a magistrate shall be recorded in accordance with

procedures established by the court." This would include the dispositional hearing Mother

claims the juvenile court failed to review. Therefore, because there is nothing in the record

to indicate the juvenile court did not conduct a full review of the record prior to issuing its

decision, Mother's argument claiming the juvenile court failed to conduct such a review

lacks merit.

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       {¶ 18} Also lacking merit is Mother's argument claiming the juvenile court erred by

failing to conduct a hearing prior to issuing its decision overruling her objection to the

magistrate's decision. It is well established that a juvenile court is generally not required to

hold a hearing prior to ruling on a party's objections to a magistrate's decision. In re T.L.C.,

12th Dist. Butler No. CA2014-01-008, 2014-Ohio-3995, ¶ 31, citing Juv.R. 40(D)(4)(d). The

only time a juvenile court is required to hold a hearing and hear additional evidence is where

the "objecting party demonstrates that the party could not, with reasonable diligence, have

produced that evidence for consideration by the magistrate." Juv.R. 40(D)(4)(d). The fact

that Mother believes there are "serious concerns" regarding K.D.'s fitness to serve as J.W.'s

legal custodian falls well short of what is needed to force the juvenile court to hold a hearing.

Therefore, finding no merit to either of Mother's arguments raised herein, Mother's second

assignment of error is overruled.

       {¶ 19} Assignment of Error No. 3:

       {¶ 20} THE GRANTING OF LEGAL CUSTODY WAS CONTRARY TO THE

MANIFEST WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT

EVIDENCE.

       {¶ 21} In her third assignment of error, Mother argues the juvenile court's decision

granting legal custody of J.W. to K.D. was not supported by sufficient evidence and was

against the manifest weight of the evidence. We disagree.

       {¶ 22} A juvenile court "may award legal custody to a nonparent upon a

demonstration by a preponderance of the evidence that granting legal custody to the

nonparent is in the child's best interest." In re C.A., 12th Dist. Butler No. CA2014-07-165,

2015-Ohio-1410, ¶ 13. Similarly, "[w]here an award of custody is supported by a substantial

amount of credible and competent evidence, such an award will not be reversed as being

against the weight of the evidence by a reviewing court." In re T.M., 12th Dist. Butler No.

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CA2007-01-019, 2007-Ohio-6034, ¶ 28, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418

(1997). The presumption in weighing the evidence is in favor of the finder of fact, which we

are especially mindful of in custody cases. In re C.Y., 12th Dist. Butler Nos. CA2014-11-

231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. Therefore, "'[i]f the

evidence is susceptible to more than one construction, the reviewing court is bound to give

it that interpretation which is consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment.'" In re A.B., 12th Dist. Brown No. CA2016-11-021,

2017-Ohio-5776, ¶ 13, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

¶ 21.

        {¶ 23} The juvenile court enjoys broad discretion in custody proceedings. In re

E.L.C., 12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 16. The standard of

review in custody decisions is whether the juvenile court abused its discretion. C.D. v. D.L.,

12th Dist. Fayette No. CA2006-09-037, 2007-Ohio-2559, ¶ 14. An abuse of discretion

implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "The discretion that a trial court

enjoys 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." In re A.B., 2017-Ohio-5776 at ¶ 12, citing In re C.A., 2015-Ohio-1410 at ¶ 15.

A reviewing court must not substitute its judgment for that of the juvenile court when

applying the abuse of discretion standard. Morrison v. Robinson, 12th Dist. Fayette No.

CA2012-06-019, 2013-Ohio-453, ¶ 26.

        {¶ 24} Mother claims the trial court erred by granting legal custody of J.W. to K.D.

due to there being "serious concerns" regarding J.W.'s schooling and mental health

treatment while in K.D.'s care. This is in addition to Mother's "serious concerns" that "a

witness had purchased drugs" from K.D. and K.D. having "driven a man to commit suicide."

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But, as the record indicates, the juvenile court took all of this into consideration when issuing

its decision finding it was in J.W.'s best interest to grant legal custody of J.W. to K.D. A

review of the record, including the transcript of the disposition hearing prepared and filed

with the juvenile court for purposes of this appeal, fully supports the juvenile court's

decision. J.W.'s best interest is the paramount concern for both the juvenile court and this

court on appeal. Considering J.W. reports being happy and comfortable in her placement

with K.D., the juvenile court's decision granting legal custody of J.W. to K.D. serves J.W.'s

best interests. Therefore, because the juvenile court's decision granting legal custody of

J.W. to K.D. was supported by sufficient evidence and not against the manifest weight of

the evidence, Mother's third assignment of error lacks merit and is overruled.

       {¶ 25} Judgment affirmed.


       M. POWELL, P.J., and RINGLAND, J., concur.




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