[Cite as In re C.V.M., 2013-Ohio-3361.]


            Court of Appeals of Ohio
                          EIGHTH APPELLATE DISTRICT
                             COUNTY OF CUYAHOGA



                         JOURNAL ENTRY AND OPINION
                                 No. 99426



                                IN RE: C.V.M., JR.
                                  A Minor Child

                          [Appeal by C.V.M., Sr., Father]



                                          JUDGMENT:
                                           AFFIRMED



                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                   Juvenile Division
                               Case No. AD 03902263

        BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                 August 1, 2013
ATTORNEY FOR APPELLANT, FATHER

Mark S. O’Brien
Heights Medical Center Building
2460 Fairmount Blvd.
Suite 301B
Cleveland Heights, OH 44106


FOR APPELLEES

FOR STEPMOTHER

A.W., pro se
1822 Walford Road
Apt. 309
Warrensville Heights, OH 44128


FOR MOTHER

L.S.M., pro se
4889 Banbury Court #2
Warrensville Heights, OH 44128

GUARDIAN AD LITEM

Michael B. Granito
24400 Highland Road
Suite 162
Richmond Heights, OH 44143
EILEEN A. GALLAGHER, J.:

      {¶1} Father-appellant appeals the trial court’s decision that found him to

be an unsuitable parent and awarded legal custody of his son, C.V.M., to

appellee-custodian (hereinafter “stepmother”), a nonparent. For the reasons that

follow, we affirm.

      {¶2} The pertinent background facts of this case were stated by this court

in In Re: C.V.M., Jr., 8th Dist. No. 98340, 2012-Ohio-5514 (“C.V.M. I”) as

follows:

      Appellant is the natural father of C.V.M., who was born in 2003. In
      2004, the juvenile court granted custody of C.V.M. to father and his
      wife, who is not C.V.M.’s biological mother. Both father and wife
      acted as parents to the child. In 2010, wife filed for divorce against
      father. In May 2010, father filed a motion with the juvenile court
      for sole legal custody of C.V.M.; however, wife (hereinafter referred
      to as “custodian”) obtained physical custody of the child. In
      August 2010, custodian was granted temporary custody of the child
      and was granted a divorce from father. Thereafter, a myriad of
      contentious motions were filed, and allegations were made by the
      parties against each other. Ultimately, motions were filed by
      custodian for sole legal custody of C.V.M. and by father for
      modification of the temporary custody order.

      The trial court held a hearing on all pending motions, including the
      motions affecting the sole legal custody of C.V.M. The crux of the
      hearing was to determine who would be the child’s legal custodian.
      The trial court took testimony from father, custodian, C.V.M.’s
      guardian ad litem, C.V.M.’s birth mother, and five character
      witnesses called on behalf of father. Following the hearing, the
      trial court issued a judgment entry and written opinion granting legal
       custody to custodian after finding that an award of custody to father
       would be detrimental to the child.

Id. at ¶ 2-3.

       {¶3} In C.V.M. I, this court reversed the judgment of the trial court

awarding sole custody to stepmother and remanded the case for the trial court to

apply the correct legal standard of parental unsuitability to the facts elicited at the

hearing.    Upon remand, the trial court issued a new judgment entry finding

appellant to be an unsuitable parent because an award of custody to appellant

would be detrimental to C.V.M.        The trial court again awarded legal custody of

C.V.M. to stepmother.       Appellant appeals from this judgment, asserting the

following sole assignment of error:

       The trial court abused its discretion in determining that [appellant]
       was an unsuitable parent.

       {¶4} 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).
       {¶5} While the trial court has discretion in custody proceedings, the

record must contain sufficient factual evidence to support the court’s findings.

C.V.M. I, 8th Dist. No. 98340, 2012-Ohio-5514, citing In re Schwendeman, 4th

Dist. Nos. 05CA18 and 05CA25, 2006-Ohio-636.               We will not reverse a

judgment as being against the manifest weight of the evidence when the record

contains some competent, credible evidence going to all the essential elements of

the case. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978), syllabus. In conducting our review, we must make every reasonable

presumption in favor of the trial court’s findings of fact. C.V.M. I, citing Myers

v. Garson, 66 Ohio St.3d 610, 614, 1993-Ohio-9, 614 N.E.2d 742. We give

deference to the trial court as the trier of fact because it is “best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.”

C.V.M. I, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d

1273 (1984).

       {¶6} Because legal custody where parental rights are not terminated is not

as drastic a remedy as permanent custody, the trial court’s standard of review in a

legal custody proceeding is not clear and convincing evidence as in permanent

custody proceedings, but merely preponderance of the evidence. C.V.M. I, citing

In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097. “Preponderance
of the evidence” means “evidence that’s more probable, more persuasive, or of

greater probative value.”    In re M.F., 5th Dist. Ashland No. 12-COA-036,

2013-Ohio-1755, quoting State v. Finkes, 10th Dist. Franklin No. 01AP-310,

2002-Ohio-1439.

       {¶7} In a child custody proceeding between a parent and nonparent not

arising from an abuse, neglect or dependency determination, a court may not

award custody to the nonparent without first making a finding of parental

unsuitability — that is, without first determining by a preponderance of the

evidence 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. In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047

(1977), syllabus; In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d

971.   The Perales test, however, requires that some detriment to the child be

shown before he is taken away from an otherwise suitable parent. Thrasher v.

Thrasher, 3 Ohio App.3d 210, 213, 444 N.E.2d 431 (9th Dist.1981).

       {¶8} On remand, the trial court in this case found by a preponderance of

the evidence that appellant was unsuitable because “an award of the child’s

custody to the [appellant] would be detrimental to the child.”     The trial court

based this finding on the fact that appellant has a history of substance abuse, has
spent minimal time with C.V.M. since appellant and stepmother separated, has

provided minimal emotional support or guidance for C.V.M., has failed to be

supportive       of   C.V.M.’s    schooling,     has   consistently    missed     C.V.M.’s

extracurricular activities, consistently failed to provide any financial support for

C.V.M., has stated that he would only allow C.V.M. to interact with stepmother on

his own terms and has mental health problems. While we do not agree with

every detail of each of the specific reasons espoused by the trial court or the

relative weight the trial court may have assigned to them, in light of the entire

record we cannot say that the trial court abused its discretion in finding that an

award of custody to appellant would be detrimental to C.V.M.

           {¶9} Appellant argues that the trial court abused its discretion by relying,

in part, on evidence concerning appellant’s suitability that existed prior to the

juvenile court’s original grant of custody to appellant in 2004. Specifically, the

trial court found that appellant had a “history of substance abuse,” 1 felony

convictions and possible mental health problems.            The record reflects that each

of these factors existed prior to 2003 when appellant was investigated by an


        We note that the trial court found appellant to have a “history of substance abuse”
       1


based on a single positive urine screen in 2003. The record reflects that appellant completed
a drug and alcohol assessment with no recommendation being made and agreed to participate
and follow all recommendations of the assessment including treatment, but the record is
unclear as to whether he actually participated in or completed treatment or whether he
submitted any subsequent urine specimens.
assigned social worker, was “deemed an appropriate [caregiver] for his child” and

was granted custody of C.V.M.

       {¶10}   While we agree with appellant’s proposition that it would generally

be inappropriate for a trial court to declare a parent unsuitable based solely on

negative information that the court was aware of prior to the original grant of

custody in favor of that parent, such is not the case before us. First, the trial

court’s unsuitability determination was based on far more information than just the

above pre-existing conditions. Second, the record reflects that in 2003 the court

did not grant sole custody of C.V.M. to appellant originally, but rather the

complaint for legal custody for C.V.M. was amended to include stepmother.

Appellant explained at the trial court’s hearing that stepmother was added because

she “conned” or tricked him into including her in the complaint for custody and he

relented in hopes of appeasing her.      Stepmother testified that after appellant

failed a drug test, the Cuyahoga County Department of Children and Family

Services (“CCDCFS”) would not allow sole custody to appellant. She testified

that the complaint was amended to include her as a co-custodian after she took,

and passed, a drug test.   The complaint refers to her as “step mother.”   Although

we agree that the weight to be given to appellant’s felony conviction, failed drug

test and prior mental health concerns is slight, we note that the record does not

reflect that these factors were a non-concern in the original custody decision.   To
the contrary. The record reflects that appellant may not have gained custody

without stepmother joining in the complaint.

       {¶11}      We cannot fault the trial court for accepting the testimony of

stepmother as more credible than the testimony of appellant.     The record reveals

appellant’s credibility to be highly suspect.     During the trial court’s hearing,

appellant was repeatedly confronted with reports of negative behavior on his part

and in each instance appellant asserted that the reporting party was lying and/or

had fabricated the incidents in question.       If one were to accept appellant’s

testimony as true, fellow Cleveland police officers fabricated and lied about events

that led to his felony convictions and the end of his police career; the principal of

C.V.M.’s former school lied about being cursed at by appellant that led to the

school seeking a no trespassing order against him; Warrensville Heights police

lied about his aggressive conduct at a visitation pick up that occurred at the

Warrensville Heights Police Department; CCDCFS lied about his positive drug

test in 2003; the Cuyahoga County Juvenile Court’s clinical psychologist lied in

her report regarding a discussion of his mental health; and both stepmother and

C.V.M.’s biological mother lied about a plethora of issues to which they testified

at the hearing.

       {¶12}      The evidence indicating that appellant is presently an unsuitable

parent is of far greater concern to this court than felony convictions and a failed
drug test from a decade in the past.   The trial court noted that appellant has spent

minimal time with C.V.M. since appellant and stepmother separated.         We agree

with appellant’s criticism of this factor as a product, in part, of the trial court’s

own temporary visitation schedule whereby appellant was only alotted four hours

each Wednesday and three and one-half hours each Friday to spend with C.V.M.

However, beyond this limited visitation schedule, the record supports the trial

court’s finding that appellant has “not availed himself of the court-ordered

companionship time.” Significant testimony was introduced regarding incidents

at C.V.M.’s bus stop, stepmother’s home and the Warrensville Heights Police

Department where appellant failed to make use of his visitation time due to his

own conduct and his failure to communicate in a civil manner with stepmother.

Consistent with this pattern of behavior, the record reflects that appellant was

barred from C.V.M.’s former school, has had problems with C.V.M.’s present

school and caused one daycare center to decline care of C.V.M. while another

daycare center called the police and banned him from their property. Stepmother

also testified that when she initially separated from appellant she had asked

appellant to watch C.V.M. while she worked and he declined.

       {¶13}    Appellant failed to attend C.V.M.’s extra-curricular activities

including his participation in organized youth football wherein he won a local

championship as the team’s quarterback.         Appellant blamed stepmother and
 C.V.M. for failing to make him aware of such opportunities to be a part of

 C.V.M.’s life.      Stepmother testified that she did make appellant aware of

 C.V.M.’s extracurricular activities.

           {¶14}   The record supports the trial court’s finding that appellant has

 failed to provide any financial or medical support for C.V.M. in the time since

 appellant and stepmother separated.2 Appellant did not deny this at the hearing

 despite the presentation of evidence that he had ample capability to provide such

 support.     There is no explanation for this failure other than that appellant chose to

 withhold support for C.V.M. due to his negative feelings towards stepmother and

 the fact that during the pendency of this case she retained custody of C.V.M.

           {¶15}   The Guardian ad litem (“GAL”) report and the juvenile court’s

 child custody / visitation evaluation performed by Dr. A. Justice raise the greatest

 concerns regarding appellant’s unsuitability.          We are mindful that the test for

 parental “suitability” is different from the “best interest” test.             A pure “best

 interest” test looks totally to the best situation available to the child and places the

 child in that situation. Thrasher v. Thrasher, 3 Ohio App.3d 210, 213, 3 Ohio B.

 240, 444 N.E.2d 431 (9th Dist.1981). The Perales test, however, requires that



         The record reflects that the sole item that appellant provided C.V.M. in the time since
       2


appellant and stepmother separated was a pair of hand-me-down shoes, which were many sizes
too large for C.V.M.
some detriment to the child be shown before he is taken away from an otherwise

suitable parent.     Simply because one situation or environment is the “better”

situation does not mean that the other is detrimental or harmful to the child. In re

Porter, 113 Ohio App.3d 580, 589, 681 N.E.2d 954 (3d Dist.1996). Our task is

not to weigh whether custody in favor of stepmother would be a better situation

for C.V.M. than custody in favor of appellant.         However, we must consider

whether placement of C.V.M. in the custody of appellant would be detrimental to

the child. We find that in addition to the previously discussed factors, the GAL

report and the child custody / visitation evaluation strongly support the trial court’s

conclusion that such custody would be detrimental.

       {¶16}    The child custody / visitation evaluation performed by Dr. Justice

reported that appellant demonstrated “delusional ideation involving religious and

persecutory themes.”      Appellant’s personality assessment inventory suggested

“suspicion, hostility, and quick anger responses.” Dr. Justice observed C.V.M.

and appellant interacting and described C.V.M. as being uncomfortable and

possessing a “reserved demeanor with his eyes downcast.”         C.V.M. was “sullen

and reserved” when in the company of appellant.          Dr. Justice did not observe

such uncomfortable behavior in C.V.M.’s interactions with others.

       {¶17}       Dr. Justice also noted that appellant spoke in vagaries that

appeared to have no effect upon C.V.M. and which C.V.M. later confirmed
privately that he did not understand. C.V.M. told Dr. Justice that he spends just

about the right amount of time with appellant and would like to spend even more

time with stepmother.       The record, including appellant’s own testimony,

indicated that when appellant does have visitation time with C.V.M., the child

spends significant time alone in his room bouncing a basketball.           Dr. Justice

testified that C.V.M.’s responses showed that “he is a sad child who frequently

feels like crying and who looks upon his future with a sense of uncertainty and

apprehension” and noted that C.V.M.’s mental health records indicated that he

possessed adjustment disorder with anxiety and individual counseling had been

recommended to address fear and anxiety about his father.          Dr. Justice further

testified that C.V.M. was afraid of appellant because he is mean.

      {¶18}    In regards to appellant’s mental health, Dr. Justice concluded:

      [Appellant] likely has a psychotic condition. He is highly defensive
      and has a history of providing little information upon clinical
      evaluation, necessarily making precise diagnosis difficult.
      [Appellant] has consistently had problems in conforming his
      behavior to meet societal standards. He presently demonstrated a
      stilted, overly intellectualized style of interacting that is often seen in
      individuals suffering schizophrenia. He was pushy and insistent
      when interacting with [C.V.M.] for purposes of the present
      evaluation. He clearly prioritized his own needs over those of the
      child.

      {¶19}    The GAL testified that C.V.M. prefers to live with stepmother but

to have contact with appellant.    The GAL noted that C.V.M. viewed stepmother
as “mom.”      In fact, the record reflects that C.V.M. was unaware of the fact that

stepmother was not his biological mother until the pendency of this custody

dispute when appellant informed him of that fact.

       {¶20}    The GAL further testified that C.V.M. has nightmares of people

breaking into his home and kidnapping him and is fearful that he won’t see

stepmother again should appellant gain custody. C.V.M reported that he was also

fearful that should custody be awarded to appellant, he would no longer have

contact with his biological mother and siblings, at least one of whom C.V.M. has

developed a close relationship with.

       {¶21}    Consistent with these concerns, appellant testified at the hearing

that should he gain custody of C.V.M., he would “probably” allow C.V.M. to see

stepmother but only “on his terms.” Appellant had no idea what his terms would

be and stated that he would raise his son as he saw fit.    The record reflects that

appellant sent a threatening text message to stepmother intimating that she would

not see C.V.M. in the future.

       {¶22}    The GAL testified that custody in favor of appellant would be

detrimental to C.V.M. This court has previously found such an opinion to carry

significant weight.       See, e.g., In Re: S.M., 160 Ohio App.3d 794,

2005-Ohio-2187, 828 N.E.2d 1044 (8th Dist.). The GAL based his opinion in

large part on appellant’s own position that C.V.M. would only be allowed contact
with stepmother on his terms.       The record reflects that appellant’s behavior

towards stepmother has created a hostile environment in which the parties are

unable to adequately communicate in regard to parenting and visitation issues,

even in the face of a court-ordered visitation schedule.           Appellant’s own

testimony at the hearing confirms his inability to establish the necessary

cooperation with stepmother to facilitate court-ordered visitation.     The GAL’s

concern that appellant would frustrate or terminate contact between C.V.M. and

stepmother to the detriment of C.V.M. is supported by the record. Dr. Justice’s

evaluation of C.V.M. demonstrates the detriment that the mere threat of the

severance or disruption of C.V.M.’s relationship with stepmother has had on

C.V.M.’s mental health during this custody dispute.

       {¶23}    The GAL also expressed his concerns regarding appellant’s

inability to interact appropriately with others, particularly C.V.M.’s school and

daycare staff. We share the GAL’s concern on this point.       The record is replete

with evidence of appellant’s inability to interact in a civilized manner with others,

much less stepmother, and the testimony of all parties including appellant,

revealed that he treats her with open hostility.   Even if we were to disregard the

mental health evaluation of Dr. Justice, it is firmly established in the record that

appellant is unable to conduct himself in a reasonable and appropriate manner

when interacting with third parties involved in C.V.M.’s life and that his failure to
do so is detrimental to C.V.M.

      {¶24}    Although natural parents have a fundamental liberty interest in the

care, custody and management of their children and a finding of parental

unsuitability is not to be made lightly, considering the above record we cannot say

that the trial court abused its discretion in finding appellant to be unsuitable. A

preponderance of the evidence demonstrated that appellant is an unsuitable parent

and that an award of the custody to the appellant would be detrimental to C.V.M.

      {¶25}    Appellant’s sole assignment of error is overruled.

      {¶26}    The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
