[Cite as In re H.O., 2019-Ohio-1082.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: H.O.                                          C.A. No.       29231
       K.O.


                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE Nos. DN 17-02-0115
                                                                DN 17-02-0116

                                 DECISION AND JOURNAL ENTRY

Dated: March 27, 2019



        CARR, Judge.

        {¶1}     Appellant Father appeals the judgment of the Summit County Court of Common

Pleas, Juvenile Division, that awarded legal custody of the children, H.O. and K.O., to appellee

Mother. This Court affirms.

                                                I.

        {¶2}     Mother and Father are the biological parents of H.O. (d.o.b. 12/29/09) and K.O.

(d.o.b. 4/18/11). Based on a prior dependency action in 2011, the children were placed in the

legal custody of Father. In early 2017, Father left the children with Mother after telling her that

he had a construction job out of state. In truth, Father was required to attend alcohol dependence

treatment at the Interval Brotherhood Home (“IBH”) during that time. While in Mother’s care,

the children were taken into custody pursuant to Juv.R. 6, after Mother was arrested on an

outstanding felony warrant. Based on Father’s unavailability, a history of substance abuse issues

for both parents, and a multi-county history for both parents with child welfare agencies, Summit
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County Children Services Board (“CSB” or “the agency”) filed complaints alleging that H.O.

and K.O. were neglected and dependent children.

       {¶3}    At the adjudicatory hearing, CSB withdrew one allegation of neglect and one

allegation of dependency, leaving an additional allegation of both neglect and dependency

remaining for each child. Mother and Father waived their rights to a hearing and stipulated to

the allegations in the complaints. Based on those stipulations, the juvenile court found H.O. and

K.O. to be dependent children pursuant to R.C. 2151.04(C), but dismissed the remaining

allegations of neglect pursuant to Juv.R. 29.

       {¶4}    At the dispositional hearing, the parents again waived their rights to a hearing,

and all parties agreed to an award of temporary custody of the children to CSB and that Mother

and Father would have supervised visitation. The juvenile court adopted the agency’s case plan

as the order of the court. A month later, the parties agreed to an order of temporary custody of

the children to their paternal aunt under an order of protective supervision by CSB.

       {¶5}    Subsequently, CSB filed a motion to modify temporary custody to legal custody

to Father, and to terminate the agency’s protective supervision.         Father and Mother filed

competing motions, each seeking legal custody of the children.

       {¶6}    The guardian ad litem for the children filed three reports regarding disposition

based on her ongoing investigation. In her first report, she opined that it was in the best interest

of the children to remain in the temporary custody of the paternal aunt with protective

supervision by the agency based on Father’s limited period of sobriety after his release from

IBH. In her second report, the guardian ad litem recommended an award of legal custody to

Father and a termination of the agency’s protective supervision. In her third report, filed after

the second day of the dispositional hearing but before the magistrate issued a decision, the
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guardian ad litem recommended an award of legal custody to Mother based on recent allegations,

incidents, and changes in Father’s circumstances.

       {¶7}    After consideration, the magistrate found that an award of legal custody to Mother

was in the best interest of the children. Father filed timely objections to the magistrate’s

decision. The juvenile court overruled Father’s objections and granted Mother’s motion for legal

custody. The trial court terminated the agency’s protective supervision and issued visitation and

child support orders for Father. Father filed a timely appeal in which he raises one assignment of

error for review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT’S FINDING THAT LEGAL CUSTODY TO [MOTHER]
       WAS IN THE BEST INTEREST OF THE CHILDREN IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE[.]

       {¶8}    Father argues that the juvenile court’s award of legal custody to Mother was

against the manifest weight of the evidence. This Court disagrees.

       On appeal, an award of legal custody will not be reversed if the judgment is
       supported by a preponderance of the evidence. Preponderance of the evidence
       entails the greater weight of the evidence, evidence that is more probable,
       persuasive, and possesses greater probative value. In other words, when the best
       interest of the child is established by the greater weight of the evidence, the trial
       court does not have discretion to enter a judgment that is adverse to that interest.
       Thus, our standard of review is whether a legal custody decision is against the
       manifest weight of the evidence.

(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-

Ohio-2685, ¶ 7.

       {¶9}    In considering whether the juvenile court’s judgment is against the manifest

weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
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[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new [hearing] ordered.”            (Internal quotations omitted.)

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,

this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶10} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s

determination of whether to place a child in the legal custody of a parent or a relative is based

solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-

1330, ¶ 12. The statutory scheme regarding an award of legal custody does not include a specific

test or set of criteria, but Ohio courts agree that the juvenile court must base its decision to award

legal custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880,

2016-Ohio-7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In

that regard, the juvenile court is guided by the best interest factors enunciated in R.C.

2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-

Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those

factors include the interaction and interrelationships of the child, the child’s wishes, the custodial

history of the child, the child’s need for permanence, and whether any of the factors in R.C.

2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist.

Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 16. In addition, the juvenile court may also look

to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos.

15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. While some factors overlap with those above,

others include the child’s adjustment to his or her environment; the mental and physical health of

all persons involved; the parents’ history of providing support and honoring companionship
                                                5


orders; certain indicia of violence, abuse, or neglect in any household involved; and whether a

parent plans to or has established a residence outside of Ohio. R.C. 3109.04(F)(1).

       {¶11} Throughout the proceedings below, CSB supported an award of legal custody of

the children to Father. On appeal, however, the agency argues that the juvenile court’s award of

legal custody to Mother was not against the manifest weight of the evidence.

       {¶12} Mother and Father both have a significant substance abuse history, and each had a

case plan objective requiring drug and alcohol assessments, follow up care, and random urine

screens. The CSB caseworker testified that both parents were compliant and consistently tested

negative for illegal drugs. Father completed treatment at IBH and an aftercare program, while

Mother participated in ongoing Suboxone treatment. Although Father admitted to a long history

of using cocaine and methamphetamine, he reported that his main problem was with alcohol.

Upon questioning by the magistrate, the caseworker conceded that, although Father was subject

to random urine screens, the 24-hour submission window would have allowed him to test

negative for alcohol use, given the limited time that alcohol remains detectable in a person’s

system.

       {¶13} Father obtained legal custody of the children in early 2013. He admitted that he

used cocaine and methamphetamine “[o]ff and on” the whole time he had custody of the girls.

The caseworker expressed a concern that Mother allowed her brother to stay in her home for a

few days and the brother overdosed on heroin during that time. Mother denied knowing that her

brother was using drugs. Mother’s counselor verified that Mother told her that she was not

aware of her brother’s current drug use. The caseworker did not believe Mother and testified

that the counselor reported that Mother admitted she knew of her brother’s drug use, despite the

counselor’s testimony to the contrary. Nevertheless, the agency expressed no similar concerns
                                                 6


about Father, despite his admission that he had regularly used drugs with Mother’s brother.

Father admitted that he last used cocaine and methamphetamine two days before entering court-

ordered drug treatment at IBH. He purposefully lied to Mother about his commitments to, first,

Oriana House, and second, IBH, instead telling her that he was leaving the area to work so that

he would not have to fight to retain custody of the children.

       {¶14} The kindergarten teacher for both H.O. and K.O. testified that she was concerned

about certain disclosures made to her by the children. The children reported that there were

multiple men living in their home with Father, and that the children and Father slept in the

basement. It was later determined that the children were not sleeping in their own bedroom

because of a pest infestation. One of the girls also told her teacher that she was upset because

Father had thrown an outfit that Mother had given the child in the mud.

       {¶15} Father later lied to the teacher about the reason for his leaving the children with

Mother. He sent a note to the teacher indicating that he was going to Florida to work, rather than

informing the school that he would really be nearby at Oriana House and IBH. After Father left

the children with Mother to enter drug treatment, both the teacher and the school resource officer

noticed a marked change in the demeanors and appearance of the children. They testified that

the girls were cleaner, calmer, more rested, and happier when living with Mother who

established a routine for them. In addition, the teacher noticed that the children had rarely

completed their homework when in Father’s care, while Mother ensured the children’s

completion of all assigned, as well as additional, work.

       {¶16} Father owns a home but it was not habitable at the time of the hearing, as he was

in the process of renovating it for sale. Instead, he was living with his sister who had temporary

custody of the children. The paternal aunt’s husband and another young girl also lived in the
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home. The aunt’s teenage son lives with his father in Seattle, but came for a visit while the

children were in the home. The son sexually abused the aunt’s daughter and was adjudicated

delinquent by reason of that act. H.O. reported to Mother and the child’s counselor that the son

also touched her inappropriately. Because the child would not discuss the matter with an intake

worker at CSB, the agency closed the matter as unsubstantiated. Father refused to believe the

child, asserting that he does not consider either child honest at the present time.

       {¶17} Father and the guardian ad litem both testified that Father was welcome to remain

in the paternal aunt’s home indefinitely. After the hearing concluded, however, the guardian ad

litem submitted a supplemental report raising concerns about Father’s housing stability.

Specifically, the guardian ad litem reported that Father and the paternal aunt’s husband got into

an altercation necessitating the intervention of the police. Alcohol use was a factor in the

altercation. Based on that incident, Father was no longer welcome in the paternal aunt’s home.

He thereafter went to stay in his girlfriend’s home and took the children with him, despite the

paternal aunt’s temporary custody.       There is no evidence in the record regarding Father’s

girlfriend and whether she would provide an appropriate environment for the children.

       {¶18} The guardian ad litem also reported that both Mother and H.O. separately told her

that Father had been sleeping in the same bed as H.O. and telling the child to touch him

inappropriately. Although the guardian ad litem reported the allegations to CSB, she was unable

to communicate with the caseworker despite multiple attempts. Due to Father’s hostility towards

the guardian ad litem via text messages after the conclusion of the hearing, the guardian did not

visit Father and could not report his side of the story.

       {¶19} Mother lives in a home with her fiancé and their four-year old child. Despite the

dependency action involving H.O. and K.O., CSB never initiated a case or other intervention
                                                 8


regarding that child. Mother is a homemaker. Her fiancé is employed and supports the family.

Mother’s name is on the lease for their home.

       {¶20} Father is employed as a construction subcontractor.                  His employment

opportunities are somewhat limited during the winter months. Father must rely on coworkers for

rides to work sites, because he does not have a valid driver’s license.

       {¶21} During the hearing, both the caseworker and the guardian ad litem testified that

both Mother and Father were suitable custodians for the children. Both had completed their case

plan objectives and appeared to have remedied the conditions which led to the removal of the

children. While the guardian ad litem initially supported returning the children to the legal

custody of Father, she changed her recommendation based on the testimony of other witnesses

during the hearing.     The guardian ad litem opined that Mother provided a more stable

environment for the children. Based on her observations of the interaction between the children

and their parents, the guardian ad litem recognized a stronger bond between the children and

Mother.   In addition, Mother possessed a valid driver’s license which would allow her to

transport the children in both routine and emergency situations. Father, on the other hand, had

not had a valid license for fifteen years, and he was still not in a financial position to have his

license reinstated. He relied on his sister’s husband for transportation for the children. After the

incident between Father and the paternal aunt’s husband after the hearing, however, that

arrangement for transportation was questionable. The multiple allegations regarding Father’s

behavior subsequent to the hearing only bolstered the recommendation of the guardian ad litem

that the juvenile court award legal custody to Mother in the best interest of the children.

       {¶22} The guardian ad litem opined that the children were mature enough to express

genuine desires regarding their custody. Although eight-year old H.O.’s wishes had fluctuated,
                                                 9


she told the guardian ad litem that she wanted to live with Mother and see Father on the

weekends. Six-year old K.O. stated that she wanted to alternate week-long stays with Mother

and Father.

       {¶23} Based on a review of the record, this is not the exceptional case where the finder

of fact clearly lost its way and created a manifest miscarriage of justice in awarding legal custody

of H.O. and K.O. to Mother. The evidence demonstrates that Mother’s home environment offers

the children stability, safety, and consistency. The girls have a strong bond with Mother and

have developed a close relationship with their younger half-sister and Mother’s fiancé. Mother

has demonstrated the ability to meet all of the children’s basic needs. School employees familiar

with the children have noted that H.O. and K.O. are calmer and more prepared for school when

in Mother’s care. On the other hand, although Father had earlier been able to provide a stable

and secure environment for the children, there was evidence that his circumstances had changed.

His own home had become uninhabitable due to ongoing renovations. It was unlikely that he

would be able to remain in his sister’s home due to an altercation with his brother in law.

Although Father had completed his substance abuse case plan objective, recent allegations

indicated that he had relapsed. Mother, however, had consistently demonstrated a commitment

to sobriety. Significantly, Mother took seriously the children’s concerns and allegations. Father,

however, only chose to believe the children when they said things with which he agreed. Of

concern is Father’s dismissal of H.O.’s allegations of inappropriate touching by the paternal

aunt’s teenage son, who was adjudicated delinquent by reason of the same conduct involving his

half-sister. Under the circumstances, the juvenile court’s finding that an award of legal custody

of H.O. and K.O. to Mother was in the best interest of the children was not against the manifest

weight of the evidence. Accordingly, Father’s assignment of error is overruled.
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                                                III.

       {¶24} Father’s sole assignment of error is overruled. The judgment of the Summit

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

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



CALLAHAN, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.

DENISE FERGUSON, Attorney at Law, for Appellee.
