[Cite as In re M.O., 2011-Ohio-5141.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

In the Matter of:                       :              Case No. 10CA37

M. O.                                   :              DECISION AND
                                                       JUDGMENT ENTRY

                                           RELEASED: 09/14/11
______________________________________________________________________
                            APPEARANCES:

Joseph H. Brockwell, Marietta, Ohio, for appellant.

James E. Schneider, Washington County Prosecutor, and Susan L. Vessels,
Washington County Assistant Prosecutor, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}    Mother appeals the decision that removed her daughter from the

temporary custody of the Washington County Juvenile Center and granted temporary

custody to the Father. She contends that the court abused its discretion because

granting temporary custody to the Father was not in M.O.’s best interests.

        {¶2}    The court found M.O., who had been living at Mother’s home, delinquent

for habitual truancy and sent her to the Juvenile Center. Later, counselors at the

Juvenile Center felt that she was not benefiting from the experience and recommended

she leave the Center. After a hearing, the court agreed, removed M.O. from the

Juvenile Center, and granted temporary custody to Father. Mother argues that the

court should have returned custody to her.

        {¶3}      When M.O. attended school, children teased her about her body odor,

which was attributable to the pervasive smell of cat urine in Mother’s home. This

teasing and embarrassment apparently led to the truancy problems. Mother argues that
Washington App. No. 10CA37                                                          2


she took steps to remedy the cat urine problem at her home by removing cats from the

residence, painting, and cleaning. However, a probation officer who visited Mother’s

home the day before the hearing reported that the odor of cat urine remained

“horrendous.” Moreover, Father testified that he had a suitable home, did not have a

history of Children’s Services investigations, and was raising two stepchildren without

truancy issues.   Thus, the trial court did not abuse its discretion by deciding that it was

in M.O.’s best interests to grant Father temporary custody.

                                 I. Summary of the Facts

      {¶4}   The state alleged that M.O. was a delinquent child for habitual truancy,

having been absent from school 62 cumulative days from kindergarten through the

eighth grade. Days later, the juvenile court issued an order committing her to the

temporary custody of the Washington County Juvenile Center.

      {¶5}   After an adjudicatory hearing, the court issued an order finding M.O.

delinquent for habitual truancy. The court then ordered M.O. to remain in the temporary

custody of the Washington County Juvenile Center and to participate in its rehabilitation

programs. However, the state subsequently filed a motion asking the court to

reconsider M.O.’s placement at the Washington County Juvenile Center. The state

attached the statements of several of M.O’s Juvenile Center counselors who felt that

M.O. was not benefiting from being at the Juvenile Center and participating in its

counseling and rehabilitation programs.

      {¶6}   At a hearing on the state’s motion, all parties agreed that the court should

remove M.O. from the Juvenile Center. The central issue therefore was whether the
Washington App. No. 10CA37                                                        3


court should grant Mother or Father temporary custody. The court made its decision

based upon the testimony of Mother, Father, and M.O.’s probation officer.

      {¶7}   Mother admitted that her home had an odor issue, which was the result of

nine male cats living inside. And she acknowledged that classmates of M.O. were

teasing her because of the odor and that M.O. acted “withdrawn.” Mother removed

about half of the cats from the home in response. However, M.O.’s truancy issues

persisted.

      {¶8}   After the court placed M.O. in the Juvenile Center, Mother removed the

remainder of male cats, but kept a female cat and three dogs. Mother testified that she

and M.O.’s younger sister cleaned and painted the house, which she claimed resolved

the odor issue.

      {¶9}   Father testified that he lived with his new wife and her two children, neither

of whom had truancy issues. Children’s Services had not investigated his home or

stepchildren. And there were no issues of substance abuse or violence in the home.

Father testified that he had spent time with M.O. at the Juvenile Center during

counseling sessions.

      {¶10} The Washington County juvenile probation officer assigned to M.O.’s

truancy case testified about the date when she transported M.O. to the Juvenile Center.

She and other law enforcement could smell the stench of cat urine from outside the

home. The probation officer described the odor on M.O.’s body and clothing as

“horrific.” They drove M.O. to the Juvenile Center with the windows down.

      {¶11} The probation officer also visited Mother’s home the day prior to the

hearing. Although the home had newly painted walls, she could still smell the odor of
Washington App. No. 10CA37                                                                     4


cat urine from outside the home. While inside, the odor was still so intense that she felt

a burning sensation in the back of her throat. Ultimately, the probation officer

recommended that the court place M.O. with Father.

        {¶12} The court issued a written decision granting temporary custody of M.O. to

the Father, with visitation for the Mother, who then filed this appeal.

                                           II. Assignment of Error

        {¶13} Mother presents a single assignment of error:

        THE JUVENILE COURT ABUSED ITS DISCRETION, AND ITS JUDGMENT

        WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHEN IT FOUND THAT IT

        WAS NOT IN THE BEST INTEREST OF THE CHILD TO RETURN HER TO

        HER MOTHER’S CUSTODY.

                             III. The Grant of Temporary Custody to Father

        {¶14} Mother argues that the court abused its discretion by placing M.O. in the

temporary custody of Father. Mother admits that issues remain at her house

concerning an odor of cat urine but argues that she has taken steps to remedy that

problem, including painting the house. Mother also contends that her testimony showed

that her behavior was not “causing or encouraging” M.O.’s truancy problems.

                                           A. Standard of Review

        {¶15} A trial court has broad discretion in determining custody matters. Reynolds

v. Goll, 75 Ohio St.3d 121, 124, 1996-Ohio-153, 661 N.E.2d 1008. Consequently, we

can sustain a challenge to a trial court's custody decision only upon a finding that the

trial court abused its discretion.1 Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-


1
 Mother also included within her statement of the assignment of error a claim that the court’s decision
was “against the weight of the evidence.” However, Mother did not challenge factual findings by the court
Washington App. No. 10CA37                                                                        5


260, 674 N.E.2d 1159. An abuse of discretion implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140. When applying an abuse of discretion standard, we

are not free to substitute our judgment for that of the trial court. In re Jane Doe 1 (1991),

57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. A deferential review in a child-custody

case is appropriate because much may be evident in the parties' demeanor and attitude

that does not translate to the record well. Davis, supra, at 419.

                      B. Custody Decisions Involving Delinquent Children

        {¶16} The trial court found M.O. delinquent for habitual truancy. R.C. Chapter

2152 addresses children found delinquent and R.C. Chapter 2151 provides the rules for

children found abused, neglected, or dependent. The provisions of these code chapters

intersect in custodial matters as R.C. 2152.01(C) provides: “[t]o the extent they do not

conflict with this chapter, the provisions of Chapter 2151. of the Revised Code apply to

the proceedings under this chapter.”

        {¶17} R.C. 2152.19 (A)(1), provides that a court may order any disposition

authorized under R.C. 2151.353, which provides dispositional alternatives for

dependent, abused, or neglected children. Among those dispositional alternatives, a

court may: “[c]ommit the child to the temporary custody of a public children services

agency, a private child placing agency, either parent, a relative residing within or outside

the state, or a probation officer for placement in a certified foster home, or in any other

home approved by the court[.]” R.C. 2151.353(A)(2).




in her brief’s argument section. Therefore, we apply only the traditional abuse of discretion analysis to
this appeal.
Washington App. No. 10CA37                                                           6


       {¶18} R.C. Chapter 2151 provides no explicit set of criteria for a court to

consider in determining a custody order. However, we have held that “the primary, if

not only, consideration in the disposition of all children’s cases is the best interests and

welfare of the child.” In re Pryor (1993), 86 Ohio App.3d 327, 332, 620 N.E.2d 973.

Therefore, in custody proceedings incident to a delinquency action, the juvenile court

must consider the totality of circumstances as they relate to the child’s best interests. Id.

at 336. The court may consider the explicit factors set forth in R.C. 3109.04(F), the

general custody provision, for guidance. Id.

       {¶19} Here, the court based its decision granting temporary custody of M.O. to

Father on the following: (1) the unsuitability of Mother’s home because of the stench of

cat urine; (2) a probation officer’s testimony that the smell at the home remained

“horrendous” the day before the hearing, despite Mother’s testimony that she took

measures to eliminate the smell by reducing the number of cats at the home, by

painting, and by cleaning; (3) M.O.’s persistent truancy problems while living at Mother’s

home and her depression due to teasing from children at the school about her body

odor; and (4) the suitability of Father’s home and Father’s lack of a criminal record or

any negative interaction with Children’s Services.

       {¶20} We perceive no abuse of discretion in the trial court’s decision to grant

Father temporary custody of M.O. The court properly concluded that it was not in

M.O.’s best interest to place her back in a home with a pervasive stench of cat urine.

The record indicates that Mother attempted to remedy the cat urine odor by reducing

the number of cats in the home, by cleaning, by painting the walls, and installing new

carpeting in M.O.’s room. Regardless, the probation officer’s testimony revealed that
Washington App. No. 10CA37                                                         7


the odor remained so severe that it caused a burning sensation in the back of her

throat.

          {¶21} The evidence in the record suggests a correlation between the stench at

the home and M.O.’s truancy issues. M.O. experienced teasing at school because of

the odor. A school bus driver even refused to allow her to ride the bus. M.O. became

withdrawn and depressed while living with Mother. And she would stay alone in her

room for long periods.

          {¶22} Mother argues that her behavior did not “cause or encourage” M.O.’s

truancy. However, the record reflects that M.O. experienced truancy problems from

kindergarten through the eighth grade, all while in Mother’s care. Thus, regardless of

the primary factor causing M.O.’s truancy, it is apparent that Mother has long had

difficulty in ensuring her daughter’s attendance at school.

          {¶23} We are confident that the court’s decision to place M.O. in Father’s

temporary custody serves her best interests. Father can provide a home environment

free of odor related issues. His stepchildren have had no truancy issues. And he has

had no negative interactions with Children’s Services. Mother’s home still has a

“horrendous” odor issue and M.O. has been habitually truant from school while under

her care. The court thoughtfully considered the totality of circumstances as they relate

to M.O.’s best interests before arriving at the conclusion to grant Father temporary

custody. This assignment of error is meritless.

                                                                  JUDGMENT AFFIRMED.
Washington App. No. 10CA37                                                       8


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas, Juvenile Division, to carry this judgment
into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Presiding Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
