[Cite as In re Howland Children, 2015-Ohio-3862.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                                   :   JUDGES:
                                                    :   Hon. W. Scott Gwin, P.J.
HOWLAND CHILDREN                                    :   Hon. Sheila G. Farmer, J.
                                                    :   Hon. Patricia A. Delaney, J.
                                                    :
                                                    :
                                                    :   Case No. 2015CA00113
                                                    :
                                                    :   OPINION



CHARACTER OF PROCEEDING:                                Appeal from Court of Common
                                                        Pleas, Juvenile Division, Case No.
                                                        2013JCV00968



JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       September 21, 2015




APPEARANCES:

For Appellant                                           For Appellee

JOHN JAKMIDES                                           BRANDON J. WALTENBAUGH
325 East Main Street                                    300 Market Avenue North
Alliance, OH 44601                                      Canton, OH 44702
Stark County, Case No. 2015CA00113                                                   2

Farmer, J.

      {¶1}   On September 18, 2013, appellee, Stark County Job and Family Services,

filed a complaint alleging two children, M.H. born December 29, 2007, and M.H. born

February 23, 2009, to be neglected and/or dependent children. Mother of the children is

Tina Ibrahim nka Stremo; father is Marcello Howland.

      {¶2}   On December 4, 2013, the children were found to be dependent and were

placed in the custody of Ms. Ibrahim's mother, appellant herein, Jennifer Lawson. The

children were removed from this home due to improper disciplinary methods, and

temporary custody was granted to appellee on April 23, 2014.

      {¶1}   On October 9, 2014, appellee filed a motion for permanent custody. A

hearing was held on April 30, 2015. By judgment entry filed May 14, 2015, the trial

court terminated parental rights and granted appellee permanent custody of the

children. Findings of fact and conclusions of law were filed contemporaneously with the

judgment entry.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE TRIAL COURT ERRED IN REFUSING TO GRANT MATERNAL

GRANDMOTHER CUSTODY OF THE CHILDREN.                   THE DECISION WAS BASED

ALMOST EXCLUSIVELY ON THE DISCIPLINE METHODS EMPLOYED AS SHE

ADJUSTED TO PARENTING SPECIAL NEEDS CHILDREN FOR THE FIRST TIME."
Stark County, Case No. 2015CA00113                                                       3


                                             I

      {¶5}   Appellant claims the trial court erred in not granting her legal custody of

the children as she completed parenting classes at her own expense and was learning

to adapt to new disciplinary methods. We disagree.

      {¶6}   R.C. 2151.353(A)(3) states the following in pertinent part:



             (A) If a child is adjudicated an abused, neglected, or dependent

      child, the court may make any of the following orders of disposition:

             (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 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.



      {¶7}   We agree with the following analysis set forth by our brethren from the

Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-

4818, ¶ 19-22:



             Legal custody is significantly different than the termination of

      parental rights in that, despite losing legal custody of a child, the parent of

      the child retains residual parental rights, privileges, and responsibilities. In

      re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.

      2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not
Stark County, Case No. 2015CA00113                                                   4

     permanently foreclosed.    In re M.J.M. [8th Dist. Cuyahoga No. 94130,

     2010-Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses

     in making its determination is the less restrictive "preponderance of the

     evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751

     N.E.2d 552 (7th Dist.2001).     "Preponderance of the evidence" means

     evidence that is more probable, more persuasive, or of greater probative

     value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.

           Unlike permanent custody cases in which the trial court is guided

     by the factors outlined in R.C. 2151.414(D) before terminating parental

     rights and granting permanent custody, R.C. 2151.353(A)(3) does not

     provide factors the court should consider in determining the child's best

     interest in a motion for legal custody.    In re G.M. at ¶ 15. We must

     presume that, in the absence of best interest factors in a legal custody

     case, "the legislature did not intend to require the consideration of certain

     factors as a predicate for granting legal custody."     Id. at ¶ 16.   Such

     factors, however, are instructive when making a determination as to the

     child's best interest. In re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-

     1193] at ¶ 13.

           The best interest factors include, for example, the interaction of the

     child with the child's parents, relatives, and caregivers; the custodial

     history of the child; the child's need for a legally secure permanent

     placement; and whether a parent has continuously and repeatedly failed
Stark County, Case No. 2015CA00113                                                     5


        to substantially remedy the conditions causing the child to be placed

        outside the child's home. R.C. 2151.414(D).

               Because custody determinations " 'are some of the most difficult

        and agonizing decisions a trial judge must make,' " a trial judge must have

        broad discretion in considering all of the evidence. In re E.A. at ¶ 10,

        quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159

        (1997). We therefore review a trial court's determination of legal custody

        for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523

        N.E.2d 846 (1988). An abuse of discretion implies that the court's attitude

        is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

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



Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland

County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-

738.



        {¶8}   Appellant passed a home study and was granted temporary custody of the

children on December 4, 2013. T. at 10, 24. Appellant was cautioned by several

individuals prior to receiving temporary custody of the children not to use physical

discipline because the children had "already suffered some damage in their lives." T. at

31.    After a few months, the children were removed because of appellant's use of

corporal punishment with a belt against the children, leaving the children in their rooms
Stark County, Case No. 2015CA00113                                                         6


all day, and permitting a male friend, "Big Mike," to also discipline the children. T. at 11,

31, 58. Appellant did not object to the removal, but assented to it. T. at 12, 32.

       {¶9}   Appellant participated in parenting assessment and Goodwill Parenting

and has paid for the services out of her own pocket. T. at 27-28, 33. However, the

caseworker opined "I don't think that anything's going to make a difference" given her

psychological evaluation and "this later date, she's still going in, trying to figure out

when she can use physical discipline."         T. at 27.      After receiving education on

disciplinary methods, appellant asked "if it would be acceptable to spank the children

with an open hand and not with a fist or object." T. at 56.

       {¶10} There was constant friction and conflict between appellant and her

daughter, the mother of the children. T. at 17, 33. They have spoken "horribly about

each other to the children." T. at 33. Mother perceived appellant as having an alcohol

problem, and reported she had been sexually abused by one of appellant's boyfriends,

disclosed the abuse to appellant, and appellant "did not believe her allegations." T. at

43-44, 57.

       {¶11} Based upon appellant's poor choices of discipline with admittedly very

emotionally troubled children, her on-going difficulties with the mother of the children,

and her permitting her male friend to also discipline the children, the experts opined

appellant was not a good placement. T. at 25, 38, 55-59, 108-110, 122-123.

       {¶12} The children are placed together in an "Agency foster to adopt home" and

are doing very well and their needs are being met. T. at 106-108, 124. The children are

bonded to one another and their foster family. T. at 108.
Stark County, Case No. 2015CA00113                                                 7


       {¶13} Based upon the testimony and evidence presented, we concur with the

trial court's following finding of fact filed on May 14, 2015:



              10. On December 04, 2013, the children were placed in the

       temporary custody of maternal grandmother Jennifer Lawson.           The

       children were removed from the care of Ms. Lawson in April 2014 due to

       concerns that Ms. Lawson and her live in boyfriend were punishing the

       children using belts and other forms of corporal punishment. There were

       also concerns that Ms. Lawson was leaving the children in their rooms all

       day without food until dinner. Reasonable efforts were made to keep the

       children with maternal grandmother but despite removal and education on

       the inappropriateness of Ms. Lawson's use of corporal punishment; she

       was unable to grasp the fact that she could not hit the children.

              Ms. Lawson's relationship with her daughter was described by Dr.

       Aimee Thomas, psychologist from Northeast Ohio Behavioral Health

       (NEOBH), as not a positive one. Dr. Thomas testified that Ms. Lawson

       was not supportive of her daughter and that Ms. Ibrahim felt that her

       mother was always at the bar and never around to care for her as a child.

       As a minor, Ms. Lawson let her daughter live with an unrelated adult male

       much older than Ms. Ibrahim at the time.

              Given the foregoing facts, the Court cannot find at this time that

       placement of the children with Ms. Lawson would be appropriate.
Stark County, Case No. 2015CA00113                                                         8


       {¶14} Upon review, we find the trial court did not abuse its discretion in not

granting legal custody to appellant, and find the trial court did not err in finding the best

interest of the children was best served with permanent custody to appellee (see this

court's opinion in Stark County Case No. 2015CA00109).

       {¶15} The sole assignment of error is denied.

       {¶16} The judgment of the Court of Common Pleas of Stark County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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