[Cite as In re A.F., 2019-Ohio-4627.]

                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY



IN RE:                                            :

        A.F. and J.F.                             :      CASE NO. CA2019-01-005

                                                  :               OPINION
                                                                  11/12/2019
                                                  :




              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                                 JUVENILE DIVISION
                       Case Nos. JN2016-0335 and JN2016-0336



Garrett Law Offices, Dawn S. Garrett, 9435 Waterstone Boulevard, Suite 140, Mason, Ohio
45249, for appellee

Caparella-Kraemer & Associates, LLC, Tyler W. Nagel, 4841-A Rialto Road, West Chester,
Ohio 45069, for appellant

Marcelina Woods, P.O. Box 922, Mason, Ohio 45040, guardian ad litem



         PIPER, J.

         {¶ 1} Father appeals the decision of the Butler County Court of Common Pleas,

Juvenile Division, which granted legal custody of his children to their maternal aunt. For the

reasons described below, this court affirms the juvenile court's decision.

         {¶ 2} In September 2016, Butler County Children Services ("BCCS" or "the agency")

filed complaints alleging that siblings A.F., age seven, and J.F., age six, were abused and

dependent children. The complaints alleged that the children were in the legal custody of
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Father who was living with his girlfriend ("Girlfriend"). Girlfriend was the mother of Father's

younger children. In total, there were 10 children living in the home.1

        {¶ 3} The children were believed to be present when Father allegedly attacked

Girlfriend while Girlfriend was holding an infant child. Father allegedly had firearms in the

home and had threatened to harm the children. The complaints alleged an extensive history

of domestic violence in the home. The agency requested that the court grant temporary

custody to the children's maternal aunt ("Aunt"). In an ex parte order, the court granted

temporary custody to Aunt.

        {¶ 4} The agency entered into case plans with Father and the children's biological

mother ("Mother"), who had previously lost custody of the children. The goal of each case

plan was reunification. Father's case plan required him to complete a domestic violence

batterer's assessment and follow all recommendations, obtain stable housing, and

demonstrate an ability to provide for his children. Mother's case plan required her to

complete a psychological and domestic violence victim assessment and follow all

recommendations, obtain stable housing, and demonstrate an ability to provide for her

children.

        {¶ 5} Shortly after removal, the agency moved the court to terminate Aunt's

temporary custody of the children based on a failed home study. The failure of the home

study was due to overcrowding at Aunt's home. The court removed the children from Aunt's

temporary custody and the agency placed the children in foster care.

        {¶ 6} Aunt thereafter made changes at the home relevant to the concerns raised in

the home study. The agency conducted a second home study in November 2016, which was

approved. The agency then moved the court to place the children back in Aunt's temporary

custody. The court granted the agency's motion and the children were returned to Aunt.


1. The other eight children are not the involved in this case.
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       {¶ 7} In March 2017, the court held an adjudicatory hearing and found the children

dependent. The court continued temporary custody with Aunt.

       {¶ 8} The children remained in Aunt's temporary custody for nearly two years. During

this time, Father obtained housing and employment and completed his parenting class.

Father also completed his domestic violence batterer assessment. However, during the

assessment he denied that he had ever been abusive towards a domestic partner. He was

therefore deemed unsuitable for further services regarding domestic violence. Nonetheless,

Father continued to have occasional police contact at his home, which involved calls for

alleged domestic incidents with females.

       {¶ 9} Mother did not complete her recommended services. She was unemployed

through most of the two-year period. She obtained rent-free housing and a monthly stipend

to pay toward utilities. However, she had to move out of her residence when the utilities were

turned off. At the time of the hearing, Mother was living with her mother and caring for a

younger daughter with significant special needs.

       {¶ 10} Both parents were eventually allowed to exercise unsupervised parenting time

with the children. Mother had the children on the weekends and Father had four hours each

Sunday. There were a few instances where the children acted out while visiting with Mother.

And there were concerns that Father was talking to the children about the custody case

during his parenting time.

       {¶ 11} In September 2017, Father moved for legal custody of the children. In March

2018, Mother submitted a proposed shared parenting plan which named both Mother and

Father as legal custodians. In March 2018, the agency moved the court to grant legal

custody of the children to Aunt.

       {¶ 12} The matter proceeded to a multiple day hearing in September 2018. Mother,

Father, Aunt, the children's guardian ad litem ("GAL"), Mother's family service worker, and an
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agency caseworker testified. The GAL agreed with the agency position and recommended

that the court grant legal custody to Aunt. The agency submitted numerous documents into

evidence, including social summaries, police records, the November 2016 home study at

Aunt's home, and the Aunt's statement of understanding concerning accepting legal custody.

         {¶ 13} At the conclusion of the hearing, the court interviewed the children in camera.

Subsequently, the juvenile court issued a written decision granting legal custody to Aunt and

awarding parenting time to Father and Mother. Father appeals, raising three assignments of

error.

         {¶ 14} Assignment of Error No. 1:

         {¶ 15} THE TRIAL COURT ERRED IN DENYING FATHER'S MOTION FOR LEGAL

CUSTODY.

         {¶ 16} Father contends that the juvenile court erred in denying his motion for legal

custody because he completed all case plan services, was employed, and the children

wanted to live with him. Father argues that the juvenile court premised its decision on

unproven allegations that he was guilty of committing domestic violence.

         {¶ 17} Legal custody proceedings vest in the custodian the right to have physical care

and control of the child, subject to any residual parental rights and responsibilities that remain

intact with the birth parents. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 14; R.C.

2151.011(B)(21). R.C. 2151.353(A)(3) provides that if a child has been adjudicated abused,

dependent, or neglected, a juvenile 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." A juvenile court "may award legal custody to a nonparent upon a

demonstration by a preponderance of the evidence that granting legal custody to the

nonparent is in the child's best interest." In re L.A.B., 12th Dist. Fayette No. CA2012-03-008,



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2012-Ohio-5010, ¶ 12. "A preponderance of the evidence is evidence which is of greater

weight or more convincing than the evidence which is offered in opposition to it." Id.

       {¶ 18} A juvenile court's custody determination under R.C. 2151.353 must be based

on the best interests of the child. In re K.B., 12th Dist. Butler No. CA2012-03-063, 2013-

Ohio-858, ¶ 11. In determining the best interests of the child, the juvenile court must

consider all relevant factors, including, but not limited to, the applicable factors set forth in

R.C. 3109.04(F). Id.

       {¶ 19} This court reviews the juvenile court's custody determination for an abuse of

discretion. In re S.K., 12th Dist. Butler No. CA2013-06-108, 2014-Ohio-563, ¶ 12. An abuse

of discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The discretion that a juvenile court

enjoys in custody matters "'should be accorded the utmost respect, given the nature of the

proceeding and the impact the court's determination will have on the lives of the parties

concerned.'" In re J.M., 12th Dist. Warren No. CA2008-12-148, 2009-Ohio-4824, ¶ 17,

quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

       {¶ 20} Moreover, a challenge to the manifest weight of the evidence involves the

inclination of the greater amount of credible evidence, offered in a trial, to support one side of

the issue rather than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶

12. In a manifest weight challenge "the reviewing court weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether, in

resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed and a new trial ordered."

Schneble v. Stark, 12th Dist. Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-

3130, ¶ 67.



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       {¶ 21} In denying Father's legal custody motion and granting legal custody to Aunt, the

juvenile court's written decision reflects that it considered the relevant statutory best interest

factors set forth in R.C. 3109.04(F)(1). With regard to R.C. 3109.04(F)(1)(a), the wishes of

the child's parents, the court found that Father agreed with Mother's request for shared

parenting and alternatively requested to be named sole legal custodian.

       {¶ 22} Concerning the (F)(1)(b) subsection, the wishes and concerns of the children,

the court noted it interviewed the children and had considered the GAL's recommendation to

grant legal custody to Aunt.

       {¶ 23} Concerning R.C. 3109.04(F)(1)(c), the children's interaction with those who may

affect their best interest, the court noted that the children had been removed from their

parents care on three occasions. In 2012, the children were living with Mother. They were

found unsupervised. Mother was charged with, and convicted of, child endangering. The

children were placed with Aunt and later returned to Mother's care. Three years later the

children were again removed from Mother's care due to unsanitary living conditions. The

children were placed in Father's care even though he had no contact with them for three

years. The third removal occurred in this case.

       {¶ 24} Mother exercised weekend visits with the children. However, Mother also was

taking care of a younger child with significant special needs. The agency had concerns over

whether Mother was providing the necessary care to that child. Mother had also recently lost

utilities at her rent-free apartment and currently owed $3,000 to the utility company.

       {¶ 25} Father exercised unsupervised visits with the children for four hours each

Sunday. The GAL expressed concerns that Father was making the children promises if they

would come live with him. Even more concerning, Father had custody of the children's half-

brother. The half-brother was the victim of rape by Girlfriend's brother. Following the rape,

the half-brother had allegedly perpetrated sexually on another child. Father testified that he
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was unconcerned with the possibility of the half-brother perpetrating sexually on either of the

children at issue in this case. He explained that the bedroom where J.F. would sleep was

across the hall from his bedroom and he could look in whenever he wanted.

       {¶ 26} The court found that Aunt was bonded with the children and had provided care

and support to both children at various points in their lives. Aunt was living with one adult

daughter and three other children. The agency reported that Aunt was providing for the

children's needs.

       {¶ 27} There had been reports that Aunt was using physical discipline against the

children. Aunt denied this and the agency investigated. The agency found the claims

unsubstantiated. Nevertheless, Aunt accepted education on physical discipline from the

Family Preservation Program. The agency and the GAL recommended that Aunt be granted

legal custody.

       {¶ 28} Regarding the (F)(1)(d) subsection, i.e., the children's adjustment to home,

school, and community, the juvenile court found that the children were attending school in a

school district where neither parent resided. Both children were doing well in school and both

were in special therapeutic programs to help them with their individual needs. Both were

attending weekly therapy and participating in school sports.

       {¶ 29} With regard to the (F)(1)(e) subsection, i.e., the mental and physical health of

all involved persons, the court noted that Mother underwent several diagnostic assessments,

including a domestic violence assessment at which Mother reported having suffered

domestic violence, both physical and emotional, during her relationship with Father. The

abuse included choking, hitting, and restraining her from leaving an apartment (telling her the

only way she could leave was over the rail of a balcony).            The treatment provider

recommended that Mother participate in a full psychological evaluation. However, she did

not do so for nearly a year. Mother had not engaged in various services on her case plan
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and was disinterested in participating in those services. She had not maintained employment

or stable housing and had not progressed in any of her treatment goals with the agency.

       {¶ 30} Father had participated in the domestic violence screenings recommended by

the agency but denied ever being abusive toward any partner. Therefore, he was found

ineligible for batterer's programming, either because he was not a batterer or because he

was in denial of being a batterer and would not accept treatment. The court noted that

Father's denials of being a domestic violence perpetrator were inconsistent with the reports

of his children as well as the domestic violence claims made by Mother. An evaluator for

domestic violence recommended that if the children in the case credibly reported observing

Father commit domestic violence then he was a threat to the children's safety and should not

have any contact with them.

       {¶ 31} A.F. had engaged in a diagnostic assessment and reported that Father hit

Girlfriend with a gun and choked her while she held a baby. A.F. was diagnosed with post-

traumatic stress disorder due to the trauma she had experienced at home. In addition to

reporting observing domestic violence, A.F. stated she had also been the victim of physical

abuse by her parents.

       {¶ 32} J.F. was in treatment related to his exposure to trauma. Treatment providers

diagnosed him with adjustment disorder. In May 2018, during Mother's parenting time, he

made a suicidal gesture by wrapping a cord around his neck and attempting to hang himself.

       {¶ 33} With respect to R.C. 3109.04(F)(1)(f), the parent more likely to honor and

facilitate parenting time, the juvenile court found that Aunt had facilitated visits with Mother

with no issue. The children had missed some visits with Father, which the Aunt indicated

were the result of issues with her work schedule. Mother and Father had been exchanging

the children without incident.



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      {¶ 34} Concerning the (F)(1)(h) subsection, the parent's history of criminal offenses or

involvement with children services cases, the court noted that both children had been found

dependent in the underlying case. The court reiterated its finding that Mother had twice been

found to be a perpetrator of neglect of the children. Mother currently had custody of a

younger child and the agency was concerned with that child's well-being.

      {¶ 35} In consideration of any other relevant factor, the juvenile court found that Father

had completed his parenting class but in doing so had challenged the information presented.

Throughout the pendency of the case he had avoided services, gave excuses, and blamed

others for his faults. Father refused to address whether he had any issues with domestic

violence. He became agitated when the subject was discussed. Father dismissed his

children's need for special assistance at school and testified that he only believed they

needed those services so that Aunt could get social security funds.

      {¶ 36} The court noted that the case had been initiated over concerns with Father's

alleged acts of domestic violence towards Girlfriend. Father and Girlfriend denied that any

domestic violence incident occurred in their home.

      {¶ 37} In August 2018, nearly two years after the case had initiated, Girlfriend

appeared at a police department with some of her children. There, Girlfriend's 12-year-old

son made a written report indicating that he had lied to the police in September 2016 when

he said that Father had assaulted Girlfriend. The Girlfriend told the police officer that she

needed the report to have a custody case closed. The court found that the circumstances

concerning this alleged recantation were not credible and gave it no weight.

      {¶ 38} Father denied Mother's allegations of prior abuse when the two were

romantically involved and called Mother a liar. However, Mother was consistent in her claims

of abuse by Father and continued to maintain that it was true despite her request for shared



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parenting. The court found that Mother was more credible than Father with respect to

whether domestic violence had occurred.

       {¶ 39} Mother explained her choice of legal custodian as "being between a rock and a

hard place." Mother indicated her belief that only Father's female partners could be harmed

by Father's actions. Thus, Mother did not recognize that children could also be harmed by

observing domestic violence perpetrated on others.

       {¶ 40} The court further noted that several police calls were made to Father's

residence in the two years the case was pending. Those calls involved Father arguing with a

woman at his residence, including one call to investigate the report of a female screaming

"stop hitting me." Father denied any responsibility for these incidents.

       {¶ 41} The court noted that it had some concerns with Aunt, specifically that she

indicated that she felt that Mother and Father should be responsible for arranging for

transportation for the children's parenting time. The court was also concerned with Aunt's

work hours. However, the court found that Aunt had demonstrated a genuine commitment to

the children and had ensured that their needs were met, and that, because of her, their lives

had stability.

       {¶ 42} After considering all factors, the court found that the preponderance of the

evidence favored granting legal custody to Aunt over shared parenting or granting legal

custody to Father. The court noted that both the GAL and agency recommended legal

custody to Aunt, who had an approved home study and had signed a statement of

understanding. On the other hand, the court noted numerous concerns with Father and

Mother, and that Father had not addressed the concerns that led to removal.

       {¶ 43} The court found that the children were doing well with Aunt and that maintaining

the status quo was in their best interest. The court also found that it would allow parenting

time with both parents on a regular basis.
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         {¶ 44} Having reviewed the record of the custody hearing, this court does not find that

the juvenile court abused its discretion in denying Father's motion for legal custody. The

juvenile court removed the children from Father's care based on allegations that he engaged

in acts of domestic violence against Girlfriend, which acts were witnessed by his children and

credibly reported to the authorities. That Father was not criminally convicted of these acts

appears to be the result of the Girlfriend's failure to support a prosecution rather than the

truth of the underlying matter. As noted by the juvenile court, the recantation by Girlfriend's

son, shortly before the motion hearing, lacks credibility.

         {¶ 45} Father's propensity for violence against his female partners was corroborated

by Mother, who consistently reported physical and emotional abuse while in a relationship

with Father. Father denied having any anger issues whatsoever and claimed he had never

abused Mother or any other female partner. However, the juvenile court found him not

credible. Father's testimony at the hearing, which could be described as repeated and

overbroad denials of any personal issues, support the conclusion that he lacks truthfulness.

         {¶ 46} For two years Father chose not to remedy the issues that led to the children's

removal. He took no meaningful steps to demonstrate to the agency or the court that he

placed his children's safety above his own self-interests. Even if he denied being a batterer,

he could have, like Aunt, accepted education to show the agency and juvenile court he was

willing to put forth effort to reunify with his children. He failed to do so. The greater weight of

the evidence supports the court's conclusion that a grant of legal custody to Aunt, rather than

Father, is in the children's best interest. This court overrules Father's first assignment of

error.

         {¶ 47} Assignment of Error No. 2:

         {¶ 48} THE TRIAL COURT ERRED IN DENYING MOTHER AND FATHER'S JOINT

REQUEST FOR SHARED PARENTING.
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       {¶ 49} Father argues that the court abused its discretion in not granting his joint

request with Mother for shared parenting. Father contends that the evidence showed that

both parents agreed to shared parenting and would cooperate with one another, that Mother

had exercised her parenting time without concern, and that there had been no issues with

exchanging the children.

       {¶ 50} With regard to whether shared parenting is in the child's best interest, the trial

court must consider the previously discussed best interest factors under R.C. 3109.04(F)(1)

and the specific factors pertaining to shared parenting set forth in R.C. 3109.04(F)(2). Adkins

v. Adkins, 12th Dist. Butler No. CA2016-12-227, 2017-Ohio-8636, ¶ 11. The juvenile court's

decision reflects that the court considered each of the shared parenting factors.

       {¶ 51} With respect to the (F)(2)(a) subsection, the ability of the parents to cooperate

and make joint decisions, the court noted that Mother and Father did not communicate with

one another and would not interact during parenting time exchanges. Additionally, Mother

and Father did not agree concerning their history. Mother reiterated her claims that Father

abused her during their relationship. Father denied Mother's claims and called her a liar.

       {¶ 52} Concerning the (F)(2)(b) subsection, the ability of each parent to encourage the

sharing of love between the child and the other parent, the court found that neither parent

had interfered with the other parent's parenting time and both Mother and Father had

acknowledged the other as having positive parenting skills.

       {¶ 53} With respect to R.C. 3109.04(F)(2)(c), the history of or potential for domestic

violence and child abuse, the court reiterated its findings concerning the history of domestic

violence between Mother and Father.

       {¶ 54} With regard to R.C. 3109.04(F)(2)(d), the geographic proximity of the parents to

each other, the court found that Father was living in Cincinnati and Mother was living in

Middletown. Mother had indicated she may move to either Dayton or Cincinnati. The
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distance between Mother and Father's residence was not so great as to cause the court

concern over the feasibility of shared parenting.

       {¶ 55} Concerning R.C. 3109.04(F)(2)(e), the GAL's recommendation, the juvenile

court noted that the GAL did not recommend shared parenting and instead recommended

legal custody to Aunt.

       {¶ 56} Based upon this court's review of the record, the juvenile court did not abuse its

discretion in declining to approve the joint request for shared parenting. The evidence

showed that the level of communication between Mother and Father concerning their children

was minimal and would have been inappropriate for a successful shared parenting

arrangement. Aunt corroborated Father's disinterest in communicating about his children.

He would not respond to her attempts to communicate and she would never know when to

expect him with the children after his parenting time.

       {¶ 57} Even if the parents had better communication skills, shared parenting would not

be appropriate for the reasons previously discussed in response to the first assignment of

error, i.e., a grant of legal custody to Father was not in the children's best interest. With

respect to Mother, she conceded that she was presently incapable of receiving legal custody

because of her circumstances. The greater weight of the evidence therefore supports the

conclusion that shared parenting was not in the children's best interest and the juvenile court

did not abuse its discretion. This court overrules Father's second assignment of error.

       {¶ 58} Assignment of Error No. 3:

       {¶ 59} THE TRIAL COURT ERRED AS A MATTER OF LAW IN PLACING THE

CHILDREN IN AUNT'S LEGAL CUSTODY IN CONTRAVENTION TO O.A.C. 5101:2.

       {¶ 60} Father argues that the juvenile court lacked authority to grant legal custody to

Aunt because the agency failed to submit an updated home study at Aunt's home. The

home study admitted into evidence at the September 2018 hearing was performed in
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November 2016. Father cites provisions of the Ohio Administrative Code, which he argues

required the home study to be updated annually. Whether a juvenile court has authority to

grant legal custody is a matter of law, which this court reviews de novo. See In re K.J.R.,

12th Dist. Clermont No. CA2010-01-012, 2010-Ohio-3953, ¶ 16.

       {¶ 61} Ohio Adm.Code 5101:2-42 sets forth the regulations applicable to public

children services agencies' ("PCSA") authority to place a child in a substitute home. Ohio

Adm.Code 5101:2-42-05(C)(1) provides that a PCSA shall only place a child in the home of

relatives or nonrelatives who are approved by the PCSA in accordance with the rules set

forth in Ohio Adm.Code 5101:2-42-18. In turn, Ohio Adm.Code 5101:2-42-18(M) requires

the PCSA to "[a]nnually, based on the date of the original approval, * * * complete a home

assessment to assure that the placement continues to meet the requirements of this rule for

approval of the placement."

       {¶ 62} BCCS may have failed to adhere to these regulations if it did not perform an

updated home study at Aunt's home. However, the failure of the agency to follow its own

administrative regulations would not restrict the legal authority of the juvenile court to award

legal custody of the children.

       {¶ 63} The juvenile court's statutory authority to grant legal custody of dependent

children is set forth in R.C. 2151.353(A)(3). Pursuant to that statute, the court may award

legal custody to any 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." In addition,

the court must determine that a grant of legal custody is in the child's best interest and the




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person receiving legal custody must sign a statement of understanding.                              R.C.

2151.353(A)(3); In re K.B., 2013-Ohio-858 at ¶ 11.2

       {¶ 64} These statutory requirements occurred and thus the juvenile court had the

authority to grant legal custody to Aunt.         While this court agrees than an updated home

study would have been beneficial to the juvenile court in assessing the children's best

interest, the lack of a more recent home study was not a bar to the authority of the juvenile

court to make a legal custody decision. Accordingly, this court overrules Father's third

assignment of error.

       {¶ 65} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




2. Father cites no Revised Code provision or case law authority that supports the argument that an updated
home study is required to grant legal custody.
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