[Cite as In re J.T., 2020-Ohio-4246.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


In re J.T., A.T.                                 Court of Appeals Nos. OT-19-036
                                                                       OT-19-046

                                                 Trial Court No. 2018-JUV-138
                                                                 2018-JUV-139


                                                 DECISION AND JUDGMENT

                                                 Decided: August 28, 2020

                                          *****

        Angelina Wagner, for appellant.

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Dina Shenker, Assistant Prosecuting Attorney, for appellee.

                                          *****

        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal, mother-appellant, P.R., appeals the judgment of

the Ottawa County Court of Common Pleas, Juvenile Division, awarding legal custody of

her children, J.T. and A.T., to D.B. For the reasons that follow, we affirm.
                          I. Facts and Procedural Background

       {¶ 2} Appellant is the mother of four children. Ja.T. is the father of J.T. and A.T.,

and Ga.R. is the father of C.R. and G.R.1 On March 20, 2018, the children were removed

from mother’s care and placed into the temporary custody of the Ottawa County

Department of Job and Family Services (“OCDJFS”). On April 17, 2018, the children

were adjudicated to be neglected and dependent children. Case plan services were

provided to mother and Ga.R., with whom she was living. Ja.T. was incarcerated through

the pendency of the case.

       {¶ 3} On February 21, 2019, OCDJFS moved for permanent custody of C.R. and

G.R., and for legal custody of J.T. and A.T. to be given to D.B. A.R., the maternal

grandfather, later filed a motion for legal custody of all four children. A trial on all of the

motions for custody was held on June 24 and July 29, 2019.

       {¶ 4} At the trial, Betsy Gordon, a social service worker at OCDJFS, testified that

the agency received a series of reports beginning in November 2017 that the children

were being neglected, and that they were exposed to drugs and domestic violence in the

home. Upon investigation, mother and Ga.R. admitted to marijuana use, and later refused

drug screens. Mother also suffered a broken shoulder, and the children reported that

Ga.R. hit mother and threw her into the wall.




1
  This appeal concerns only the award of legal custody of J.T. and A.T. Thus, our
recitation of the facts will focus on those children.



2.
       {¶ 5} Gordon also testified that the allegations of neglect were substantiated in that

J.T., who at six years old was the oldest child, was performing the functions of a parent.

J.T. would wake herself and her little sister in the morning and cook breakfast for them.

She would then tidy up after breakfast before getting herself ready and going to school.

When she returned from school, she would watch all of her younger siblings while her

parents slept.

       {¶ 6} Regarding the conditions of the home, Gordon testified that the house was

not in bad condition at first, but by March 2018, there was a cockroach infestation.

Cockroaches were falling out of the cupboards and off of the shelves in the kitchen, there

were dead cockroaches in the refrigerator, and there were cockroaches in the living room,

hallway, and the children’s bedrooms.

       {¶ 7} As a result of OCDJFS’s involvement, mother and Ga.R. voluntarily placed

J.T. and A.T. with another relative, H.L., and C.R. and G.R. were placed with the

maternal grandmother. However, on March 20, 2018, OCDJFS filed an ex parte motion

for emergency custody of the children over fears that mother and Ga.R. were fleeing with

the children to Florida.

       {¶ 8} Connie North, the ongoing caseworker for the children at OCDJFS, testified

that following the grant of emergency custody, J.T. and A.T. continued in the care of

H.L.

       {¶ 9} Over the next several months, A.R., the maternal grandfather, would have all

four children at his home for day visitation. Those visitations progressed to overnight




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visitations. During that time, North expressed some concerns that A.R. was not requiring

C.R. to wear her glasses even though it was recommended that she wear them at all

times. Further, North expressed a concern that A.R. left the infant G.R. in his car seat on

the beach while A.R. went into the water with C.R. Also, North was concerned that

C.R.’s bed was in the family room next to the big screen television, hampering her ability

to sleep well, and A.R. refused to move the bed into the bedroom with J.T.

       {¶ 10} Visitations with A.R. stopped on July 27, 2018, when the foster parent

noticed bruising on G.R. after an overnight visitation. Shortly thereafter, the bruising

was found to be a type of birthmark, but regular visitation was never reestablished. From

July 2018 until February 2019, A.R. did not have individual visitation with the children,

but would instead occasionally accompany mother to supervised visitations at Joyful

Connections. A.R. also saw the children around the holidays at family gatherings. North

asked A.R. to complete an intake form at Joyful Connections so that he could have

individual visitations with the children, but he refused to do so until February 2019.

       {¶ 11} North testified that D.B. has had a long-term relationship with the paternal

grandfather of J.T. and A.T., and has been a grandmother figure to the children.

According to North, D.B. has been the main person to transport the children to doctor’s

appointments, even when they were placed with H.L. D.B. and the paternal grandfather

have gone on vacations with the children, and have had them for weekend visits often.

       {¶ 12} Throughout the case, D.B. has conveyed to North that she would be

interested in caring for J.T. and A.T. if the children ever needed a place to live. On




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March 30, 2019, H.L. contacted North and informed her that she was no longer able to

care for the children, so J.T. and A.T. were placed with D.B. Both mother and Ja.T.

supported placement of the children with D.B., although mother expressed her desire that

all four of her children stay together.

       {¶ 13} North testified that she believes D.B. is the most appropriate person to care

for J.T. and A.T. because D.B. has been involved in their lives since they were young.

Even through the placement process, D.B. has been active in their school activities, and

has been transporting them from her home in Perrysburg, Ohio, so that they could finish

the school year at Port Clinton City Schools. If awarded custody, D.B. would transfer the

children to Lake School District. North also testified that D.B. is willing to maintain the

children’s relationships with other family members. To that end, D.B. has hosted holiday

family gatherings including mother, A.R., Ga.R., and Ga.R.’s family members. D.B. has

also been in contact with C.R. and G.R.’s foster parents to plan activities together over

the summer.

       {¶ 14} Kay Washington, the court appointed special advocate, testified that she

has observed the children on a number of different occasions. Washington stated that the

children were happy with H.L., and expressed their desire to stay with her, but after they

were placed with D.B., Washington noticed that the children seemed very comfortable,

and appeared calmer than Washington had seen them for a long time. Washington also

was impressed at how well the children did at school even though they changed

placements in the middle of the year, and Washington credits that success in part to




5.
D.B.’s willingness to transport them the long distance so that they could finish the year in

the same school.

       {¶ 15} Regarding A.R., Washington testified that he was very laid back and easy

going, and had a kind heart, but that he was not overly receptive to changing his behavior

in regards to the children based on her suggestions. Washington also testified that

recently she stopped at A.R.’s house for an unannounced visit and mother was present at

the house with a number of her friends. Washington speculated that there was either drug

or alcohol use that was going on that day because mother’s eyes “were very wide and

very kind of glazed and dilated.”

       {¶ 16} Washington concluded by stating that it was her opinion that placement

with D.B. was in the best interests of J.T. and A.T.

       {¶ 17} A.R. also testified at the hearing. In addition, his testimony from a prior

hearing on his motion to intervene, which was held on April 12, 2019, was included in

the record. A.R. testified that he has a very good relationship with all four children, and

that the children are affectionate with him. A.R. has been a part of the children’s lives,

and has watched them and transported them to school and appointments on occasion.

A.R. testified that he does not see a problem having all four children, and he understands

that it would be a long-term arrangement.

       {¶ 18} The final witness to testify was D.B. D.B. testified that she has been in a

long-term, committed relationship with the children’s paternal grandfather, and that the

children view her as their grandmother. Although the paternal grandfather does not




6.
reside with D.B., he is over frequently. D.B. stated that she has been a big part of the

children’s lives, and that she has had them most weekends. D.B. also explained her

intentions and efforts to continue the relationship between all four of mother’s children,

and stated how she has become friends with the foster mom and they have made plans for

the children to be together. Finally, D.B. also described how she has worked to continue

the relationship between the children and the parents by having J.T. and A.T. call mother

almost every night, by hosting family holiday celebrations, and even by contacting the

prison warden so that the children could visit Ja.T.

       {¶ 19} Following the hearing, the trial court took the matter under advisement. On

August 16, 2019, the trial court entered its judgment awarding legal custody of J.T. and

A.T. to D.B.

                                  II. Assignment of Error

       {¶ 20} Mother has timely appealed the August 16, 2019 judgment entry, and now

asserts one assignment of error for our review:

               1. The trial court abused its discretion in failing to take into

       consideration the wishes of the children when determining that the award of

       legal custody was in their best interest.

                                        III. Analysis

       {¶ 21} We review the trial court’s dispositional award for an abuse of discretion.

In re A.B., 2018-Ohio-4206, 114 N.E.3d 421, ¶ 12 (6th Dist.). An abuse of discretion




7.
connotes that the trial court’s attitude was arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 22} “When an agency moves for legal custody pursuant to R.C. 2151.415(A)(3),

the juvenile court must base its order of disposition upon ‘the best interest of the child as

supported by the evidence presented at the dispositional hearing.’” In re A.B. at ¶ 10,

quoting R.C. 2151.415(B).

       In dispositional hearings involving motions for legal custody by

       nonparents, appellate courts have often held that the juvenile court must

       consider the best interest factors of either R.C. 2151.414(D) (applicable

       only to motions of an agency for permanent custody or a permanent living

       arrangement) or R.C. 3109.04(F) (as applied to custody disputes arising

       outside the domestic relations domain as habeas corpus actions or R.C.

       2151.23(A)(2) actions between parents and nonparents) under a

       preponderance of the evidence standard. In re G.M., [8th Dist. Cuyahoga

       No. 95410, 2011-Ohio-4090,] ¶ 15 (citations omitted); In re B.H., P.H., 6th

       Dist. Lucas Nos. L-17-1126, L-17-1127, 2018-Ohio-1238, ¶ 29; In re K.V.,

       6th Dist. Lucas No. L-11-1087, 2012-Ohio-190, ¶ 19. However, the

       General Assembly did not specify the factors to be considered for legal

       custody as it did for other dispositional orders. The absence of a specific

       requirement to consider statutory factors of best interest may be due to the

       fact that legal custody is not as extreme as an award of permanent custody.




8.
       In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 17.

       Therefore, we must presume the juvenile court is free to consider any best

       interest factors it deems appropriate. In re G.M. at ¶ 15-16. Furthermore,

       those findings must be supported by a preponderance of the evidence

       admitted at the dispositional hearing. In re B.L., 6th Dist. Lucas No.

       L-15-1030, 2016-Ohio-738, ¶ 7.

Id. at ¶ 11.

       {¶ 23} In support of her assignment of error, mother argues that the trial court

abused its discretion by not considering the wishes of the children as expressed in an

in-camera interview that was conducted on July 29, 2019. Mother contends that R.C.

3109.04(F)(1)(b) requires the trial court to consider those wishes, but the August 16,

2019 judgment entry does not reference the children’s wishes or note that the children’s

wishes were considered. Thus, mother concludes that the trial court’s award of legal

custody was an abuse of discretion. We disagree.

       {¶ 24} First, as noted above, although courts often look to R.C. 3109.04(F) for

guidance, those factors are not required for a “best interest” analysis under R.C.

2151.415(A)(3) and (B).

       {¶ 25} Second, by conducting an in-camera interview, the trial court demonstrated

that it considered the wishes of the children, whatever those may be. Nothing in R.C.

3109.04(F)—or R.C. 2151.414(D)—requires the trial court to comply with the children’s

wishes.




9.
       {¶ 26} Finally, there is ample evidence in the record that an award of legal custody

to D.B. is in the children’s best interest. D.B. has been involved in the children’s lives

since birth. Prior to OCDJFS’s involvement, D.B. cared for them and spent many

weekends together with them. After OCDJFS became involved, D.B. took the children to

all of their appointments, and offered her home as a placement for the children. D.B.

sacrificed by transporting the children so that they could finish the school year in Port

Clinton Schools. D.B. has proven to be a stable and loving presence in the children’s

lives, and the children feel very comfortable with her. D.B. has also demonstrated a

willingness and desire to allow the children to maintain their relationships with their

parents, siblings, and other relatives such as A.R. Therefore, we hold that the trial court’s

decision to award legal custody of J.T. and A.T. to D.B. is supported by the evidence and

is not an abuse of discretion.

       {¶ 27} Accordingly, mother’s assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 28} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Ottawa County Court of Common Pleas,

Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment affirmed.




10.
                                                               In re J.T.
                                                               C.A. Nos. OT-19-036
                                                                          OT-19-046




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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