[Cite as In re R.H.B., 2016-Ohio-729.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 IN THE MATTER OF:                              :   Appellate Case Nos. 2015-CA-12
                                                :   Appellate Case Nos. 2015-CA-14
            R.H.B., L.M.B, AND L.M.B.           :
                                                :   Trial Court Case Nos. 2014-542
                                                :   Trial Court Case Nos. 2014-543
                                                :   Trial Court Case Nos. 2014-544
                                                :
                                                :   (Civil/Domestic Relations Appeal
                                                :    From Common Pleas Court)
                                                :

                                          ...........

                                          OPINION

                           Rendered on the 26th day of February, 2016.

                                          ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Springfield, Ohio 45502
     Attorney for Appellee, Clark County Dept. Of Job & Family Services

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, Freund, Freeze & Arnold, Fifth-Third
Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402
      Attorney for Mother, J.B.

JENNIFER S. GETTY, Atty. Reg. No. 0074317, The Law Office of Jennifer S. Getty, LLC,
7501 Paragon Road, Dayton, Ohio 45459
      Attorney for Father, R.H.

                                         .............

HALL, J.

        {¶ 1} In this consolidated appeal, Mother appeals the trial court’s order awarding
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legal custody of two of her children to their paternal aunt and appeals the order awarding

legal custody of another one of her children to the child’s father. Finding no error in either

order, we affirm.

                                I. Procedural Background

       {¶ 2} Mother has five children by three different fathers. The youngest three are

the subjects of this appeal—two-year-old twins and baby “Regan.”1 In April 2014, all of

the children were removed from Mother’s home when she was arrested and charged with

endangering children. In May, Mother pleaded guilty to this charge and a prior charge of

assault. Her children were found to be dependent, under R.C. 2151.04(C). Mother went

to jail, and the children were placed in temporary legal custody. The twins were placed

with their paternal aunt (hereinafter “Aunt”), and Regan was placed with her father.

       {¶ 3} The Clark County Department of Job and Family Services (CCDJFS) filed a

motion in September 2014 to modify the order of temporary legal custody to legal custody

with the current temporary legal custodians. Mother contested the motion, but the

temporary legal custodians and the children’s guardian ad litem (GAL) supported the

modification. A two-day hearing was held in December 2014 that was attended by, among

others, Mother and her counsel, Father and his counsel, and the GAL. A number of

witnesses testified, including Mother, Father, and Aunt.

       {¶ 4} The trial court granted the CCDJFS’s motion in January 2015 and awarded

legal custody of the twins to Aunt and legal custody of Regan to Father.

       {¶ 5} Mother appealed.


   1  For clarity, we use the pseudonym “Regan” to refer to R.H.B., a minor child. There
is no need to refer to either of the other two minor children individually, so we refer to
L.M.B. and L.M.B. as simply “the twins.”
                                                                                            -3-




                                         II. Analysis

       {¶ 6} The sole assignment of error alleges that the trial court erred by awarding

legal custody of the three children to others. Mother contends that the trial court’s decision

is against the weight of the evidence and is not in the children’s best interest.

       {¶ 7} A court may award legal custody of a dependent child to a parent or to any

other person who asks for legal custody or is proposed as a legal custodian. R.C.

2151.353(A)(3). In making this custody decision, “the best interest of the child is the

court’s primary consideration.” In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066,

¶ 13. In determining the best interest of a child, “R.C. 3109.04(F)(1) requires the trial court

to consider all relevant factors * * *. These factors include, but are not limited to: the

wishes of the parents; the child’s interactions and interrelationships with parents, siblings,

and other persons who may significantly affect the child’s best interest; the child’s

adjustment to home, school and community; and the mental and physical health of all

persons involved in the situation.” In re J.W., 2d Dist. Greene No. 2009 CA 8, 2009-Ohio-

4605, ¶ 15. The trial court here found the following facts.

       {¶ 8} Mother was unmarried at the time of the hearing and was not married when

she gave birth to each of the children. Since their births, Mother has been the children’s

legal custodian. But the children have not spent much time with her. The oldest two

children have lived with their father for significant periods of time. The twins have spent

much of their lives—likely more than half—with other people, primarily their paternal aunt.

Regan has spent almost her entire life with her father.

       {¶ 9} Mother reluctantly admitted that Aunt and Father do a good job caring for the
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children. Mother acknowledged that, before the children were removed, she would ask

Father and Aunt to care for them, often leaving the children for longer than she had

requested. Mother apparently felt so comfortable with their care that she would frequently

go days or weeks without asking for the children to come home. At the time of the

dispositional hearing, Mother was in jail, where she had spent most of her time since the

children were removed from her home.

       {¶ 10} Mother admitted that she was an alcoholic. She admitted that her addiction

had significantly and detrimentally affected her care for the children. She was released

from jail to attend an in-patient drug and alcohol treatment program at the Women’s

Recovery Center in Xenia, Ohio. But she was kicked out for violating the program’s rules,

which the court found she did knowingly and knowing that expulsion would be the

consequence for rule violations. Mother returned to jail, where she remained at the time

of the hearing, for at least another month.

       {¶ 11} Mother was out of jail for a brief time after the children had been removed,

but she did not request or obtain any significant visitation with them. Mother had very little

contact with the children during the eight to ten months before the hearing, and had gone

for more than 90 days without visiting all of them. Mother said at the hearing that she was

interested in being the children’s legal custodian, and the court said that she appeared to

have some interest in their well-being. But ultimately, the court found that Mother was not

particularly credible or involved. She appeared to be more interested, said the court, in

getting out of jail than hearing about her children. She never tried to convince the court

not to grant the custody motion. The court said that it seemed several times as if she was

on the verge of admitting that the children should stay where they are. The court found
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that Mother never expressed a strong emotional desire to be with her children nor

exhibited the empathy, love, and concern for them that one would expect from a loving

and concerned parent. The court said that Mother was either unable or unwilling to

change her situation in order to get her children back.

       {¶ 12} Before she went to jail, Mother had great difficulty providing for the

children’s needs. The court said that she did not show that she can hold a job. She

subsisted on government benefits, depending on the aid of various governmental

programs just to meet the children’s minimum needs. The court said that Mother is now,

and for the next year, ineligible for monetary government benefits because she committed

welfare fraud. There is no indication, said the court, that she can meet her own needs let

alone the needs of her children without help. The court also noted that Mother suffers

from an adjustment disorder and panic problems but has failed to seek the necessary

care. Right now, said the court, she has no home, no job, and no benefits. “It is unlikely

that she will land on her feet if her past behavior is the best indicator of her future

behavior.” Judgment Entry, 3 (Jan. 13, 2015).

       {¶ 13} In its decision on Regan’s custody, the court found that Regan’s father lives

in Springfield, Ohio, with his girlfriend of eight years, her child, and their two children

together. Father is an appropriate custodian and can meet Regan’s needs. The court

noted that Regan has spent virtually her entire life with Father, who was given temporary

legal custody shortly after her birth. Regan does not know her mother, said the court, as

Mother has been in jail or in a residential drug and alcohol treatment during most of the

child’s life. Father provides Regan a home that is appropriate in every way, offering

routine, stability, predictability, and accountability. His girlfriend works full-time outside the
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home, and he is the caregiver. Father has no current problems with drugs or alcohol, no

mental-health problems, no instances of violent or criminal behavior. He has family

support for himself and the child. The court found that Father is bright and capable and

that he asked to be Regan’s custodian. “When one contrasts his abilities and care for the

child since birth, with that of a mother that has had almost no contact with the child since

birth, it is an easy choice to make.” Judgment Entry, 4 (Jan. 13, 2015) (Trial Court Case

No. 2014-542).

        {¶ 14} The trial court found that it is clearly in Regan’s best interest to be placed in

Father’s custody. The court noted that she has no relationship with her siblings or mother,

and that she has adjusted to Father’s home, community, and family. Father is mentally

and physically healthy and able to help Regan achieve the same good health and good

development. He has a respectful relationship with Mother, and Mother acknowledges

that he is doing a good job with Regan. Also, the GAL recommended that the court award

Father legal custody of Regan. Perhaps most tellingly, Mother “acknowledged in open

court that the child would be best served with legal custody being granted to the father *

* *.” Id.

        {¶ 15} In its decision on the twins’ custody, the court said that the twins’ paternal

aunt asked to be their legal custodian and that they have been living with her since April

2014. The court found that Aunt is committed and quite capable. She is employed and

supplements her income with some governmental benefits. Aunt is a single mother with

a six- and seven-year-old of her own. The court said that her concern for the children

along with appropriate child care allows her to meet the children’s needs. The twins are

well-cared for in her home. And Aunt can get along with Mother and can cooperate with
                                                                                             -7-


her for purposes of visitation. The court noted that the GAL recommended that the twins

would be best served by staying with Aunt. “It would not be appropriate,” said the court,

“to interrupt that situation, when the father has no interest in the children and the mother

is not able to meet the needs of the children.” Judgment Entry, 4 (Jan. 13, 2015) (Trial

Court Case Nos. 2014-543, 2014-544).2

       {¶ 16} Citing the factors in R.C. 3109.04(F), the trial court found that it is clearly in

the best interest of the children to live in the homes of their respective temporary legal

custodians, who can offer the children stability, safety, love, and support. Mother

disagrees. She does not dispute any of the trial court’s findings of fact. Rather, she

contends that the custody decisions are not in the children’s best interest and are against

the manifest weight of the evidence.

       {¶ 17} Mother points out that she completed a mental-health assessment as

required by her case plan and that while she was in jail she attended group meetings and

AA meetings weekly. Also, says Mother, during her final period of incarceration she

sought mental health services. Mother testified that when she is released from jail she will

get a job and seek substance-abuse treatment and mental-health services. She said that

she plans to apply for a job at a staffing company. She also plans to attend group sessions

for substance abuse. Mother said that she will engage in weekly counseling and will seek

treatment from a psychiatrist and take her medicine. She said that she will live in her

sister’s home. The sister testified and said that Mother could live with her in her three-

bedroom home. But the sister also testified that she has her own case plan and is


   2 The court found that the twins’ father plainly wants nothing to do with them. He has
had practically nothing to do with them since they were born. And he did not appear at
the hearing.
                                                                                             -8-


undergoing intensive outpatient treatment for drug problems.

       {¶ 18} Mother contends that the successful completion of a case plan is not

dispositive of the issue of reunification, that it is only one factor for the court to consider.

Mother says that at the time of the dispositional hearing her open case plan was less than

a year old, and because she spent a significant amount of time in jail she “never really

got the chance to do her case plan,” (Day 2 Tr. 57). Mother testified that she wants to

work on and complete her plan objectives so that her children can be returned to her. She

says that the fact that she entered inpatient treatment shows her attempt to remedy the

problems that caused the children to be removed. She says that her commitment to

mental-health services and inpatient treatment and her strong desire to be with her

children all show her commitment to her children.

       {¶ 19} In a legal custody dispute, as opposed to a more drastic termination of

parental rights, a court must find by a preponderance of the evidence that its decision is

in the child’s best interest. In re A.W., 2d Dist. Montgomery No. 21309, 2006-Ohio-2103,

¶ 6. “Preponderance of the evidence simply means ‘evidence which is of a greater weight

or more convincing than the evidence which is offered in opposition to it.’ ” In re Starks,

2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶ 15, quoting Black’s Law Dictionary 1182 (6th

Ed.1998). The standard that a reviewing court uses to evaluate a manifest-weight

challenge is familiar: “ ‘The court * * * weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage

of justice that the [judgment] must be reversed and a new trial ordered.’ ” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
                                                                                              -9-

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20 (saying that this standard applies in

civil cases). “A finding of an error in law is a legitimate ground for reversal, but a difference

of opinion on credibility of witnesses and evidence is not.” Seasons Coal Co. v. City of

Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).

       {¶ 20} Here, the weight of the evidence presented at the dispositional hearing

plainly supports the trial court’s decisions. The trial court’s decisions are not only based

on Mother’s failure to complete her case plan. The decisions are based on all the evidence

showing that it is in the children’s best interest to remain with Father and Aunt. As the trial

court said, “The Court does not know where the mother would live due to her drug and

alcohol use and mental health concerns. The mother needs to help herself before she

can help her children. She has failed to follow through with the rules of drug and alcohol

treatment, causing the Court to question whether she would honor and facilitate court

approved parenting time. * * * From all indications, the children are well-served and would

be best served where they currently reside.” Judgment Entry, 3 (Jan. 13, 2015).

                                       III. Conclusion

       {¶ 21} The sole assignment of error is overruled. Therefore the trial court’s

judgment is affirmed.

                                       .............

DONOVAN, P.J., and FROELICH, J., concur.


Copies mailed to:

Ryan A. Saunders
Jennifer S. Getty
Jennifer D. Brumby
                         -10-


Christopher Smith, GAL
D.J.
J.F.
M.J.
Hon. Joseph N. Monnin
