[Cite as In re P.T., 2012-Ohio-4034.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                 JUDGES:
IN THE MATTER OF:                                Hon. W. Scott Gwin, P. J.
                                                 Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.

        P.T.                                     Case No. 2012 AP 02 0009

        ALLEGED DEPENDENT CHILD                  OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of
                                              Common Pleas, Juvenile Division,
                                              Case No. 2011 JN 00470


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       August 31, 2012



APPEARANCES:

For Appellants                                For Appellee

DEREK LOWRY
CRAWFORD, LOWRY & ASSOCIATES
116 Cleveland Avenue NW
Suite 800
Canton, Ohio 44702-1732
Tuscarawas County, Case No. 2012 AP 02 0009                                             2

Wise, J.

         {¶1}   Appellants Lewis and Nancy Stratton appeal the decision of the Court of

Common Pleas, Tuscarawas County, which denied their motion for custody of their

great-nephew in a dependency action filed by the Tuscarawas County Department of

Job and Family Services (“TCDJFS”). The relevant facts leading to this appeal are as

follows.

         {¶2}   The child at the center of this case is P.T., born to Hannah Tenney and an

unknown father in September 2011. Appellant Nancy Stratton is the maternal aunt of

Hannah, and the great aunt of P.T.

         {¶3}   Hannah Tenney has previously lost custody of three of her children in

TCDJFS cases. Two of these other children, both boys, are in the legal custody of Tom

Brown, their paternal grandfather; the third child, a girl, was ordered into the legal

custody of non-relatives Melissa and Tom Stevens.

         {¶4}   At the time of P.T.’s birth, he tested positive for cocaine and THC in his

system. Via an ex parte order, TCDJFS took emergency custody pursuant to Juv.R. 6,

and, on September 6, 2011, filed a complaint in the trial court alleging that P.T. was a

dependent child.

         {¶5}   On September 29, 2011, Appellants Lewis and Nancy Stratton filed a

motion to intervene and a complaint for custody. Following an adjudicatory hearing on

the agency’s complaint on October 5, 2011, the trial court found P.T. to be a dependent

child.
Tuscarawas County, Case No. 2012 AP 0009                                               3


      {¶6}    On November 1, 2011, the trial court conducted a dispositional hearing,

including a redress of appellants’ motion for legal custody of P.T. The child’s mother,

Hannah, did not appear for said hearing.

      {¶7}    On January 6, 2012, the trial court issued a dispositional judgment entry.

Characterizing the overall evidence in the case as a "convoluted collection of

information" that "dealt little with the best interest of [the] child," the court denied

appellants’ request for custody and ordered that the child remain in the temporary

custody of TCDJFS.

      {¶8}    Appellants filed a notice of appeal on February 3, 2012. They herein raise

the following sole Assignment of Error:

      {¶9}    “I. THE TRIAL COURTS DENIAL OF THE APPELLANT’S [SIC] MOTION

FOR CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                           I.

      {¶10} In their sole Assignment of Error, appellants contend that the trial court’s

denial of their motion for custody of P.T. was against the manifest weight of the

evidence. We disagree.

      {¶11} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an

abused, neglected, or dependent child, the court may make any of the following orders

of disposition:

      {¶12} “ * * *

      {¶13} “(3) 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
Tuscarawas County, Case No. 2012 AP 0009                                                  4


child or is identified as a proposed legal custodian in a complaint or motion filed prior to

the dispositional hearing by any party to the proceedings. * * *.”

      {¶14} A juvenile court's standard of review in legal custody proceedings is by the

preponderance of the evidence. In re Nice (2001), 141 Ohio App.3d 445, 455. Some

Ohio courts have recognized that “the statutory best interest test designed for the

permanent custody situation may provide some ‘guidance’ for trial courts making legal

custody decisions.” See In re A.F., Summit App.No. 24317, 2009–Ohio–333, ¶ 7, citing

In re T.A., Summit App.No. 22954, 2006–Ohio–4468, ¶ 17. These factors are set forth

in R.C. 2151.414(D)(1), which requires a court to consider the following:

      {¶15} “(a) the interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster care givers and out-of-home providers, and any other

person who may significantly affect the child;

      {¶16} “(b) The wishes of the child, as expressed directly by the child or through

the child's guardian ad litem, with due regard for the maturity of the child;

      {¶17} “(c) The custodial history of the child, including whether the child has been

in the temporary custody of one or more public children services agencies or private

child placing agencies for twelve or more months of a consecutive twenty-two-month

period * * *;

      {¶18} “(d) The child's need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of permanent custody

to the agency;

      {¶19} “(e) Whether any of the factors in division (E)(7) to (11) of this section

apply in relation to the parents and child.”
Tuscarawas County, Case No. 2012 AP 0009                                                 5


      {¶20} Furthermore, because custody issues are some of the most difficult and

agonizing decisions a trial judge must make, he or she must have wide latitude in

considering all the evidence and such a decision must not be reversed absent an abuse

of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159,

citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme

Court has also explained: “A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidence submitted before the trial court. 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. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273.

Likewise, “[e]very reasonable presumption must be made in favor of the judgment and

the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one

construction, we must give it that interpretation which is consistent with the verdict and

judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.”

In re: M.B., Summit App.No. 21812, 2004–Ohio–2666, ¶ 6, citing Karches v. Cincinnati

(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the fact finder is

free to believe all, part, or none of the testimony of each witness. See State v. Caldwell

(1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, as an appellate court,

we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to

determine whether there is relevant, competent and credible evidence upon which the

fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark

App.No. CA–5758.
Tuscarawas County, Case No. 2012 AP 0009                                                    6


      {¶21} In the case sub judice, the trial court, at the dispositional hearing of

November 1, 2011, had before it appellants’ motion for custody of P.T., as well as the

agency’s request that custody of the child be granted either to Tom and Melissa

Stevens or to appellants (Lewis and Nancy Stratton). See Judgment Entry, January 6,

2012, at 2. At the time of the dispositional hearing, the agency had placed the child in

foster care, although not with either the Stevens family or appellants. TCDJFS trial

counsel, at the beginning of the hearing, stated that “neither [the Stevens family nor

appellants] are perfect, but neither of them are inappropriate either, so, um, the court

has to decide, um, which of these two placements [sic] are in the best interest of this

child.” Tr. at 2. However, as indicated in our recitation of facts, the trial court ultimately

overrode the two change of custody options presented by the agency and instead

maintained the child in the temporary custody of TCDJFS. See Judgment Entry,

January 6, 2012, at 2-3.

      {¶22} The evidence before the trial court essentially consisted of (1) the

testimony of TCDJFS ongoing caseworker Elizabeth Benedetto, (2) the testimony of

Appellant Lewis Stratton, and (3) the written report of the guardian ad litem, Attorney

Karen Dummermuth.

      {¶23} According to Benedetto, both the Stevens family and appellants had

obtained “recommended” ratings on their agency home studies. Tr. at 6. She testified

that appellants’ home has “plenty of room for a child” and that appellants have adequate

income to care for a child. Tr. at 8. Benedetto noted that appellants have maintained a

visitation arrangement with P.T.’s sister, who is in the custody of the Stevens’. Id.

Appellants had also outlined a plan for babysitting P.T. while they were at work, utilizing
Tuscarawas County, Case No. 2012 AP 0009                                                   7


the services of Appellant Lewis’ sister. Tr. at 9. Benedetto was asked if she had any

concerns about placement or custody of the child with appellants, to which she

responded:

      {¶24} “Um, again, just the mere fact that there, there are no other siblings there

that if, if the siblings, you know, if he was placed I can facilitate as best I can while I’m

involved but once the Agency is out of it, it’s entirely up to the family when those siblings

have contact, so that would pretty much be my only concern and, again, going back to

some of those reports of things, you know, I appreciate people, you know, calling and

telling and reporting things, but sometimes there’s just, it’s a lot of he said, she said

things that I can’t make heads or tails of sometimes.”

      {¶25} Tr. at 11-12 (emphasis added).

      {¶26} Nonetheless, in terms of a recommendation as to custody, Benedetto

stated “*** at this point based on everything I, I guess I would have to go with Lewis and

Nancy Stratton, um because they don’t have Children Services [sic], there’s no criminal

history, there’s no history of marital issues that I’m aware of, um, and, you know, they

obviously have plenty, plenty of time to devote to [P.T.] as he would be the only child

there ***.” Tr. at 17.

      {¶27} Appellant Lewis Stratton, husband of P.T.’s great aunt, testified and

assured the trial court that he would be able to provide for the child’s well-being and that

he would do all he could to facilitate visitation with the child’s siblings. Tr. at 45-46.

However, Lewis effectively conceded that there had been communication problems

between appellants and Tom Brown, who has custody of P.T.’s two brothers:
Tuscarawas County, Case No. 2012 AP 0009                                                  8


      {¶28} “We, there was times we would call and we’d leave a message and, uh,

Tom Brown would never get back with us. Uh, we’d call back and leave a message,

and then there was times we would call that, uh, the number was no longer there, in

service.”

      {¶29} Tr. at 47.

      {¶30} Furthermore, although the details are not completely clear in the present

record, Lewis related that he and Nancy had made a report to children services

authorities in Stark County “regarding Tom Brown and the use of heroin.” Tr. at 61-62.1

      {¶31} Attorney Dummermuth’s written GAL report noted that both the Stevens

family’s home and appellant’s home have “a number of positive attributes” and “a

number of negative attributes.” GAL Report at 3. Ms. Dummermuth specifically noted:

      {¶32} “Nancy and Lewis would very much like the opportunity to raise a child but

the undersigned has concerns that they are motivated by this desire, not PT’s best

interest. Should PT be placed with Nancy and Lewis Stratton, the undersigned does not

believe PT would have an ongoing relationship with his siblings due to the broken

relationships between the Strattons and the rest of the family. In the previous case,

Nancy and Lewis were very interested in raising all of the children, but this interest has

dwindled and now there is only limited contact with the children or their caregivers. The

undersigned believes that if they were truly interested in the children, not just custody,

they would be in regular communication with someone regarding the children’s welfare,

regardless of the fact that they did not get custody. There is no communication

throughout the week regarding milestones or activities of any of the children.

1
   The GAL report suggests that this report was eventually found to be unsubstantiated
by Stark County DJFS. See GAL Report at 2.
Tuscarawas County, Case No. 2012 AP 0009                                                    9


      {¶33} “Finally, it appears to the undersigned that Nancy and Lewis have a

pattern of ‘tattle tailing’ (sic) in order to gain a perceived advantage in the court’s eye.

Certainly it is in the best interest of the children to report concerns, but reporting

unfounded rumors suggests a motive other than the best interest of the children.”

      {¶34} GAL Report at 3-4. (emphasis in original).

      {¶35} Appellants additionally maintain that the judgment entry contains several

misstatements of fact. For example, the trial court found that appellants “do not have

any contact” with P.T.’s brothers in the care of Tom Brown. Judgment Entry at para. 4.

Caseworker Benedetto, however, did testify that appellants had visited with P.T.’s

brothers “maybe six times.” Tr. at 21. The trial court also found that “no doubt [P.T.] has

bonded well with his foster parents.” Judgment Entry at para. 6. However, the only

significant evidence pertaining to the present foster placement was Benedetto’s

statements, in response to a question from the bench, that P.T. "seems to adjust pretty

well” and that the placement family consists of “very nice foster parents.” Tr. at 18.

Additionally, the court suggested "serious drawbacks" to placement with either the

Stevens family or appellants to be "issues of drug use and evidence of instability."

Judgment Entry at para. 8 and 9. We agree with appellants that any evidence regarding

drug use and instability was not related to their home. The court also confused the

identity of one of witnesses by finding in paragraph eleven that the only potential

caregiver to testify was Tom Stevens when, in fact, it was Appellant Lewis Stratton who

testified. See Judgment Entry at para. 11.

      {¶36} We note that TCDJFS has not filed a brief in response to this appeal.

App.R. 18(C) states in pertinent part: “If an appellee fails to file his brief within the time
Tuscarawas County, Case No. 2012 AP 0009                                                    10


provided by this rule, or within the time as extended, the appellee will not be heard at

oral argument * * * and in determining the appeal, the court may accept the appellant's

statement of the facts and issues as correct and reverse the judgment if appellant's brief

reasonably appears to sustain such action.”

      {¶37} However, even if we were to invoke App.R. 18(C), we would not be

persuaded upon review to substitute our judgment for that of the trial court in assessing

the best interests of the infant child in this case. Despite the generally favorable view of

appellants presented by TCDJFS and Ms. Benedetto, and notwithstanding the apparent

factual misstatements set forth above, the trial court, having heard the testimony, was

unable to ameliorate its concerns that unaddressed issues remained concerning

appellants’ ability to facilitate sibling visitation for P.T. and to overcome the tensions

between the various custodians of the siblings, thus warranting the status quo

maintenance of P.T. in foster placement. In such a situation, we are compelled to rely

on the well-established principle that the trier of fact is in a far superior position to gauge

the demeanor and credibility of the participants to the action. See In re F.M.,

Tuscarawas App.No. 2011 AP 07 0029, 2012–Ohio–1082, ¶ 46, citing State v. DeHass

(1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

      {¶38} We therefore hold the trial court’s denial of appellants’ motion for custody

of P.T. at this time was not against the manifest weight of the evidence.
Tuscarawas County, Case No. 2012 AP 0009                                     11


     {¶39} Appellants’ sole Assignment of Error is overruled.

     {¶40} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Tuscarawas County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                JUDGES
JWW/d 0729
Tuscarawas County, Case No. 2012 AP 02 0009                                 12


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                      :
                                       :
       P.T.                            :        JUDGMENT ENTRY
                                       :
       ALLEGED DEPENDENT CHILD         :        Case No. 2012 AP 02 0009




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, of Tuscarawas County,

Ohio, is affirmed.

       Costs assessed to appellants.




                                       ___________________________________


                                       ___________________________________


                                       ___________________________________

                                                        JUDGES
