[Cite as In re M.W., 2019-Ohio-5012.]




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

                                              :
                                              :
 IN RE: M.W.                                  :   Appellate Case No. 28440
                                              :
                                              :   Trial Court Case No. 2016-3566
                                              :
                                              :   (Appeal from Common Pleas Court -
                                              :   Juvenile Division)
                                              :
                                              :

                                         ...........

                                        OPINION

                          Rendered on the 6th day of December, 2019.

                                         ...........

MATHIAS H. HECK JR. by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Appellee Montgomery County Children Services

SARA M. BARRY, Atty. Reg. No. 0090909, 1139 Holly Avenue, Dayton, Ohio 45410
     Attorney for Appellant Mother

                                        .............
                                                                                            -2-


HALL, J.

       {¶ 1} Mother appeals from the trial court’s decision and judgment entry overruling

her objections to a magistrate’s decision and awarding Father legal custody of their three-

year-old child, M.W.

       {¶ 2} In her sole assignment of error, Mother contends the trial court’s award of

legal custody to Father was “against the preponderance of the evidence and was an

abuse of discretion.”

       {¶ 3} The record reflects that M.W. was born in July 2015. Montgomery County

Children Services (“MCCS”) filed a complaint in May 2016 alleging that the child was

neglected and dependent due to Mother’s “untreated mental health concerns, her

substance abuse, her instability and her failure to provide for the basic needs of the child.”

(Doc. # 111 at 1.) MCCS later filed an amended complaint focusing on dependency. (Doc.

# 104.) It alleged, among other things, that Mother had cognitive delays and “a long history

of mental health problems and violent behavior.” (Id.) In July 2016, the trial court

adjudicated M.W. and the child’s siblings dependent and awarded MCCS protective

supervision. (Doc. # 102.) In its ruling, the trial court noted that the parties had stipulated

to the facts contained in the amended complaint and to the disposition. (Id.) Thereafter,

in June 2017, the trial court awarded legal custody of M.W. to a maternal aunt. (Doc. #

90.) The trial court then transferred temporary custody to a non-relative before later

transferring temporary custody to MCCS. (Doc. # 66.) Following an extension of that

temporary custody, MCCS moved for an award of legal custody to the paternal

grandmother. After she obtained interim temporary custody, MCCS amended its motion

and added a request for an award of legal custody to Father, who had established
                                                                                            -3-


paternity in January 2018. (Doc. # 28, 39, 50.) The matter proceeded to an August 2018

hearing before a magistrate. Based on the evidence presented, the magistrate filed an

August 9, 2018 decision awarding Father legal custody with an initial six months of

protective supervision. (Doc. # 17.) Mother filed objections and supplemental objections,

which the trial court overruled. (Doc. # 3, 8, 16.) In its May 31, 2019 ruling, the trial court

determined that awarding legal custody to Father, with parenting time for Mother, was in

M.W.’s best interest. (Doc. # 3 at 7.) After setting forth the testimony presented to the

magistrate and reciting the pertinent statutory best-interest factors, the trial court

reasoned:

              After an independent review of the record and consideration of the

       applicable statutory factors, the Court concludes that it is in the child’s best

       interest for legal custody to be granted to father, * * *. Mother has obtained

       employment, secured adequate housing, and has been engaged in mental

       health counseling. While Mother has made progress on her case plan

       objectives, concerns about Mother’s ability to provide adequate care for the

       child still remain. The child was previously adjudicated dependent, and has

       been outside of Mother’s home since April 2017. Mother’s visitation with the

       child has been inconsistent. Mother has missed numerous visits with the

       child due to her work schedule. However, even before Mother began her

       employment, she was placed on a stipulation to arrive an hour early to her

       visits as a result of being continually late to visits. Mother also arrived late

       to the hearing after oversleeping, which she claims was caused by the

       medication that she is taking. Both the MCCS caseworker and a Deputy
                                                                                          -4-


        testified about the inappropriate behaviors and outbursts that Mother has

        displayed at the Agency, in front of her children, as recently as a few weeks

        prior to the hearing. Mother has four children that are siblings to this child,

        none of which are in her care.

               Since establishing paternity, Father has acquired adequate housing

        and income to support the child. Further, Father has been visiting with the

        child regularly, including overnight visits in his home. There have been no

        concerns raised about the child’s visits with Father or her adaption to

        Father’s home. Father and the child are bonded and the child appears to be

        well taken care of in his home. Although a home study for Father was still

        pending approval at the time of the hearing, the Agency and GAL expressed

        that there was no reason to believe that it would not pass. The Court also

        notes that the GAL recommends legal custody to Father. (Tr. 7, II). The GAL

        stated that she has visited the child at Father’s house, the child has been

        there for a few months, and is doing well there. (Tr. 7, II). The GAL believes

        Father’s home is safe and appropriate. (Tr. 7, II). The child does not have

        any special needs. (Tr. 20, II).

(Id. at 7.)

        {¶ 4} In her assignment of error, Mother challenges the trial court’s best-interest

determination. The essence of her argument is that the trial court discounted her case-

plan progress while overemphasizing her mental health and emotional outbursts to justify

placing M.W. with Father, who only established a relationship with the child months

earlier, who only recently had obtained appropriate housing, who had a criminal record,
                                                                                        -5-


and who lived with people that MCCS had not fully investigated. With regard to the

statutory best-interest factors in R.C. 3109.04(F), Mother contends M.W. has expressed

a preference to be with her. She also asserts that the child is bonded with her, that she

cares for the child appropriately, that she has three other children who should be able to

bond with M.W., and that her emotional outbursts were related to her missed visitation

opportunities, which further demonstrates her bond with the child. Mother additionally

argues that an MCCS caseworker stated Father would be an appropriate custodian for

M.W. but had not completed a home-study or a thorough investigation. Mother also

asserts that M.W. never had “lived with” Father at the time of the hearing, having only

“done some in home visits.” With regard to her mental health, Mother stresses that she

has been in counseling and has been compliant with her medications. She again argues

that her emotional outbursts were related to not being able to see M.W. or her other

children. She contends the record contains no information about Father’s mental health

while also pointing out his criminal record. Finally, Mother claims the record is devoid of

evidence concerning which parent would be most likely to honor parenting time or

visitation.

       {¶ 5} The law governing the trial court’s legal-custody determination and our

review of that decision is as follows:

              R.C. 2151.353(A)(3) provides that if a child is adjudicated a

       dependent child, the court may award legal custody of the child “to either

       parent or to any other person who, prior to the dispositional hearing, files a

       motion requesting legal custody of the child[.]” An award of legal custody

       “vests in the custodian the right to have physical care and control of the
                                                                                      -6-


child and to determine where and with whom the child shall live, and the

right and duty to protect, train, and discipline the child and to provide the

child with food, shelter, education, and medical care, all subject to any

residual    parental    rights,   privileges,    and    responsibilities.”   R.C.

2151.011(B)(19).

       When a juvenile court makes a custody determination under R.C.

2151.353, it must do so in accordance with the “best interest of the child”

standard set forth in R.C. 3109.04(F)(1). See In re Poling, 64 Ohio St.3d

211, 594 N.E.2d 589, 1992-Ohio-144, paragraph two of the syllabus, and

R.C. 2151.23(F)(1) (requiring a juvenile court to exercise its jurisdiction in

accordance with R.C. 3109.04 as well as other sections of the Ohio Revised

Code). The factors a court must consider in determining a child’s best

interest include such things as the parents’ wishes; the child’s wishes, if the

court has interviewed the child; the child’s interaction with parents, siblings,

and others who may significantly affect the child’s best interes[t]; adjustment

of the child to home, school, and community; and the mental and physical

health of all involved persons. R.C. 3109.04(F)(1)(c). * * *

       “[W]hen determining whether or not to grant an individual or couple

legal custody of a dependent child, a court can do so if it finds by a

preponderance of the evidence that it is in the best interes[t] of the

concerned child. 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.’ ” (Internal citations omitted.) In re A. W., 2d Dist.
                                                                                              -7-


       Montgomery No. 21309, 2006-Ohio-2103, ¶ 6, citing [In re K.S.], 2d Dist.

       Darke No. 1646, 2005-Ohio-1912.

               We review the trial court’s judgment for an abuse of discretion. See

       In re C.F., 113 Ohio St.3d 73, 83, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48

       (applying abuse of discretion standard to trial court’s findings under R.C.

       2151.414); In re A.M., 2d Dist. Greene No. 2009 CA 41, 2009-Ohio-6002,

       ¶ 9. Abuse of discretion implies that the court’s attitude was unreasonable,

       arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

       219, 450 N.E.2d 1140 (1983).

In re D.S., 2d Dist. Clark No. 2013 CA 51, 2014-Ohio-2444, ¶ 8-11.

       {¶ 6} With the foregoing standards in mind, we find Mother’s assignment of error

to be unpersuasive. Having reviewed the record, including the hearing transcript, we see

no abuse of discretion in the trial court’s decision. The trial court’s ruling reflects that it

thoroughly and independently examined the testimony presented to the magistrate. (Doc.

# 3 at 3-6.) The trial court also cited the statutory best-interest factors. (Id. at 7.) Although

the trial court did not explicitly match each best-interest factor to the evidence pertaining

to it, the trial court had no such obligation. The record need only reflect that the trial court

“considered” the applicable best-interest factors. In re T.L.W., 2d Dist. Montgomery No.

28363, 2019-Ohio-3118, ¶ 5; In re G.B., 10th Dist. Franklin No. 04AP-1024, 2005-Ohio-

3141, ¶ 17. Here the trial court stated that it had considered the best-interest factors, its

analysis was consistent with its consideration of those factors, and the evidence

supported its decision to award Father legal custody.

       {¶ 7} MCCS caseworker Douglas Montgomery testified that he had been involved
                                                                                         -8-


with Mother and her family since January 2018. (Tr. Vol. II at 18-19.) He stated that

Mother’s case-plan objectives included obtaining/maintaining housing and income,

completing and following recommendations from a parenting/psychological evaluation,

obtaining counseling and treatment, and refraining from illegal drug use. (Id. at 23-24.) At

the time of the August 8, 2018 hearing, Mother had maintained adequate housing for

eight months. She also had maintained employment at McDonalds for one and one-half

or two months. (Id. at 24.) Mother also had completed a parenting/psychological

evaluation. (Id. at 26.) With regard to counseling and treatment, Mother began that

process in January 2018. At the time of the hearing, she remained engaged in counseling

and was taking medication. (Id. at 25-27.) She also had passed a random drug screen in

July 2018. (Id. at 29.)

       {¶ 8} Montgomery testified that one recommendation from the parenting and

psychological evaluation was for Mother to maintain regular visitation with M.W., who was

three years old at the time of the hearing. (Id. at 19, 27.) On that issue, Montgomery

testified that Mother had struggled over the last one and one-half to two months, which

coincided with her recent employment, an apparent source of some of the problem. (Id.

at 27, 39-40.) Although the visits remained “monitored” at an MCCS facility, Montgomery

described them as “appropriate.” (Id. at 28.) Montgomery opined that it was in M.W.’s best

interest for Father to have legal custody because the child had developed a “very good

relationship” with Father while Mother continued to struggle with “explosive behaviors and

getting overwhelmed.” (Id. at 30.) Montgomery added that the agency was worried about

Mother’s “overarching years of just explosive behavior and how that looks and manifests

in the future.” (Id. at 44.) Montgomery also recognized the existence of an “affection” and
                                                                                           -9-


“bonding” between M.W. and Father. (Id. at 32.) Montgomery noted that Father recently

had obtained custody of another daughter, who was “[v]ery well integrated” with M.W. to

the point that they seemed like sisters. (Id. at 32.)

       {¶ 9} Montgomery      testified   that   Father’s   case-plain   objectives   included

maintaining housing and income as well basic provisions for M.W. (Id. at 22.) At the time

of the hearing, M.W. had been placed with her paternal grandmother. But the child “quite

often” spent time with Father. (Id. at 19.) Father’s housing was sufficient, and M.W. had

been “doing overnights” with him there for several months. He also had maintained self-

employment with adequate income as a barber and had provided for all of M.W.’s needs.

(Id. at 21-23, 33.) According to Montgomery, MCCS had no concerns regarding Father.

(Id. at 23.) The agency still was waiting for approval of a home study for Father, but the

only problem was a delay in processing a fingerprint for Father’s girlfriend because “[t]he

system was down.” (Id. at 37.)

       {¶ 10} Another witness, Montgomery County Deputy Sheriff Jolene Holtz,

elaborated on Mother’s explosive behavior. Holtz testified that she was assigned to work

at MCCS. (Id. at 9.) As part of her job, she sometimes interacted with parents who came

to the facility to visit their children. (Id. at 10.) Holtz became aware of Mother because of

Mother’s erratic behavior. (Id. at 10-11.) The most recent incident involved Mother

becoming “overwhelmed” with all of her children when one of them fell and injured himself.

(Id. at 11.) Holtz recalled multiple other occasions when Mother was “erratic, and yelling

and screaming, and threatening.” (Id. at 11-12.) They most often occurred when Mother

arrived late and did not get her visit. (Id.) Holtz explained: “Whenever she’s late, she gets

angry and she demands to have her children. You can’t talk to her; she won’t listen. She
                                                                                          -10-


understands she has to be there on time. And she just—she’s very erratic, irrational, and

yells and screams.” On at least one occasion, Mother’s “outburst” lasted about 20 minutes

before she settled down and then “erupted a couple more times[.]” (Id. at 13.) Holtz added

that “[a]ny time she’s—she doesn’t get what she wants, she throws a tantrum and

screams and yells and threatens.” (Id. at 17.) In Holtz’s opinion, Mother “doesn’t have any

parenting skills[.]” (Id. at 15.)

       {¶ 11} In addition to MCCS caseworker Montgomery, guardian ad litem Amy

Ferguson also recommended awarding legal custody to Father. Before leaving the

hearing to appear at another proceeding, Ferguson stated: “I did have an opportunity to

investigate the case independently. I have visited the child at [Father’s] house. She’s been

there for a few months now. She is doing very well there. The home is safe and

appropriate, and my recommendation is legal custody to the father.” (Id. at 7.)

       {¶ 12} The final two witnesses at the hearing were Father and Mother. Father

expressed sadness at missing the first two years of M.W.’s life. He added: “And I refuse

to miss any more time. I have four girls. She’s my youngest. The things I’ve done for them

other three, she deserves as well. And I feel like she’s better off with me because I can

give it to her.” (Id. at 46.) Father testified that he loved M.W. and that he had toys for her

and a place to sleep. (Id. at 46-47.) With regard to MCCS’ delay in approving his home

study, Father explained that the agency was awaiting the processing and return of a

fingerprint card for his girlfriend to check for a criminal record. Father stated that his

girlfriend worked as a nurse and that she did not have a felony record. (Id. at 47-48.)

Father was unaware of her having any misdemeanors or traffic offenses either. (Id. at 48.)

As for his own record, Father acknowledged that he was on unsupervised parole or
                                                                                          -11-


probation for an out-of-state theft offense. (Id. at 49-50.) Father did not serve any prison

time for the theft, and he expected his probation or parole to end within two or three

months. (Id.) Father also had an older robbery conviction that occurred before he had any

children and for which he no longer was under any sanction. (Id.)

       {¶ 13} For her part, Mother testified that she had maintained appropriate housing

for eight months. She remained in a probationary period with her full-time job at

McDonalds because she had not yet completed 90 days. (Id. at 52-53.) Mother

acknowledged missing some visits with her children because she had to work. (Id. at 54.)

She expected to have more scheduling flexibility at work after her probationary period

ended. (Id. at 55.) Mother testified that she had been attending counseling for six or seven

months, missing only when she had to work. (Id. at 56.) She also had been compliant with

her medication and had passed a drug screen. (Id. at 56-57.) Mother agreed that M.W.

was doing well in Father’s care and that the child was spending every night with him. (Id.

at 74, 76.) Mother wanted legal custody of M.W., however, because of her bond with the

child. (Id. at 74.) Mother explained that she loved her children and had worked hard

toward regaining custody of them. Mother stated that she had done, or was trying to do,

everything MCCS had asked of her. (Id. at 66-67, 74-75.) Mother also discussed the most

recent incident at the MCCS visitation facility when one her children fell and cut his mouth.

Mother testified that she became “overwhelmed” and “panicked” because the child was

bleeding. (Id. at 62.)

       {¶ 14} Based on our review of the evidence, it appears that Mother and Father

both substantially had completed their case-plan objectives. Both also appear to have

established a bond with M.W. The record reflects that MCCS had no concerns about
                                                                                         -12-


Father’s ability to care for M.W., who had been spending the night with him and was doing

well. Mother herself testified that she did not believe Father was “not properly caring for

her or anything like that.” (Id. at 74.) It appears that MCCS’ primary lingering concern

about Mother was her continuing demonstrations of “erratic” and “explosive” behavior at

the visitation facility. Partly for this reason, MCCS recommended legal custody to Father.

As set forth above, the guardian ad litem did likewise. Although Mother attributed her

outbursts to her bond with her children and her frustration at visits being denied due to

tardiness, the trial court acted within its discretion in taking Mother’s behavior at the

visitation center into consideration when assessing her mental health and her ability to

handle the stress of caring for M.W. In short, we do not find that the trial court abused its

discretion in awarding Father legal custody with six months of protective supervision while

awarding Mother parenting time. (Doc. # 3 at 7-8.)

       {¶ 15} Mother’s assignment of error is overruled, and the judgment of the

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

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

FROELICH, J. and TUCKER, J., concur.


Copies sent to:

Mathias H. Heck Jr.
Sarah E. Hutnik
Sara M. Barry
Hon. Helen Wallace
