Opinion
2023 CA 0006
08-25-2023
IN RE G.B.
FOR FATHER-APPELLANT: DARIN AVERY FOR CUSTODIAN-APPELLEE: NICHOLAS J. HANEK KATHRYN E. MELONI
Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2020-DEP-00107
JUDGMENT: AFFIRMED
FOR FATHER-APPELLANT: DARIN AVERY
FOR CUSTODIAN-APPELLEE: NICHOLAS J. HANEK KATHRYN E. MELONI
Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
Delaney, J.
{¶1} Father-Appellant A.B. appeals the January 11, 2023 judgment entry of the Richland County Court of Common Pleas, Juvenile Division.
FACTS AND PROCEDURAL HISTORY Birth of G.B.
{¶2} Minor child G.B. was born in December 2019 to Mother J.F. and Father-Appellant A.B. Mother and Father were not married and had ended their relationship about six months prior to G.B.'s birth. Father was aware that Mother was pregnant with G.B. After G.B. was born, Father visited Mother and the child in the hospital. He took photographs of the child and showed the photos of the child to his family members. Father, however, did not claim paternity of the child.
{¶3} In November 2019 while pregnant with G.B., Mother tested positive for opiates. Mother tested negative for drugs on the day of G.B.'s birth, but the meconium test results for G.B. were positive for fentanyl. G.B. was treated with morphine to manage her withdrawal symptoms. Father was aware of Mother's drug usage but not to its full extent.
{¶4} Due to Mother's continued drug use, G.B. could not leave the hospital with Mother. There were no paternal placement options because G.B.'s paternity was unknown. The Richland County Children Services Board ("RCCSB") contacted maternal relatives for placement and G.B.'s maternal second cousin, Custodian-Appellee N.W. and her spouse, Co-Custodian-Appellee M.M., agreed to care for G.B. Custodians reside in Cleveland, Ohio where they prepared their home for G.B.'s placement. Ten days after her birth, G.B. left the hospital into the Custodians' care.
Complaint for Dependency
{¶5} On July 10, 2020, the RCCSB filed a complaint with the Richland County Court of Common Pleas, Juvenile Division, alleging G.B. was an abused and dependent child. The complaint named Father as the alleged father of G.B. RCCSB requested Father submit to paternity testing to determine G.B.'s paternity. RCCSB also filed a motion for temporary order of temporary custody of G.B. to Custodian and Co-Custodian. On August 12, 2022, the juvenile court granted the motion for temporary custody and placed G.B. in the care of Custodian and Co-Custodian.
{¶6} A hearing was held on July 22, 2020. Father attended the hearing and scheduled paternity testing. The juvenile court appointed a CASA/Guardian ad Litem for the child. The adjudicatory hearing was continued to August 7, 2020. Prior the August hearing, Custodian filed a motion for party status and to continue temporary placement of G.B. Via judgment entry filed on August 11, 2020, the juvenile court denied the Custodian's motion for party status. Father attended the August hearing where the juvenile court continued the full adjudicatory hearing to September 2020.
{¶7} On August 15, 2020, Mother filed a motion for disposition, requesting that G.B. be placed in the temporary or legal custody of Father. Father's paternity had not yet been established.
{¶8} A hearing was held on August 25, 2020, which Father attended. Via judgment entry filed September 11, 2020, the juvenile court found G.B. to be a dependent child.
{¶9} The adjudicatory hearing was held on September 21, 2020. Father and Custodians attended the hearing. The juvenile court issued a judgment entry on September 30, 2020, stating that while at the hearing and under oath, Father admitted G.B. was a dependent child. Father had not yet admitted paternity of the child. The juvenile court continued temporary custody of the child with Custodians under the protective supervision of RCCSB.
Paternity Established
{¶10} On October 5, 2020, the juvenile court issued a judgment entry stating a paternity test established Father was the natural Father of G.B. RCCSB amended its case plan to increase Father's supervised visitation with G.B. to two weekly, two-hour visits. Father filed a motion for disposition on January 7, 2021, requesting legal custody or temporary custody of G.B. On June 1, 2021, RCCSB filed a motion for disposition requesting the juvenile court terminate the Custodians' temporary custody of G.B. and grant temporary custody of G.B. to Father, with protective supervision to RCCSB.
Custodians Intervene
{¶11} On June 14, 2021, Custodians filed a motion to intervene, arguing it was in the best interests of G.B. that they be permitted to intervene in the action. Father objected to the motion to intervene. By magistrate's decision on July 8, 2021, the juvenile court maintained all temporary orders until resolution of the pending motions. After a hearing on September 3, 2021, the juvenile court filed its order on September 14, 2021 that it was in the best interests of G.B. and within the court's discretion to permit the Custodians intervene as parties to the action. On September 17, 2021, the Custodians filed a motion for disposition or a motion to extend temporary custody of G.B.
Potential Shared Custody Plan
{¶12} Father and Custodians returned to court on December 2, 2021. They presented a proposed Shared Custody Plan for G.B. Via judgment entry issued December 15, 2021, the juvenile court determined it was without jurisdiction to consider a Shared Custody Plan, but would transfer jurisdiction to the Domestic Relations Division, if approved by that court. The juvenile court extended temporary custody of G.B. to the Custodians. On January 4, 2022, the juvenile court transferred jurisdiction of the matter to the Domestic Relations Division, which agreed to accept jurisdiction if the parties completed the required paperwork.
{¶13} RCCSB amended G.B.'s case plan to allow Father a 30-day visit with G.B. beginning on January 3, 2022 to February 2, 2022. Father would then have two-day weekly visitation with G.B.
{¶14} By judgment entry issued on February 23, 2022, the Domestic Relations Division denied the transfer of jurisdiction for the parties' failure to complete the paperwork and other requirements of that division. On March 3, 2022, the juvenile court ordered that the matter would move to a dispositional hearing.
Dispositional Hearing
{¶15} On April 1, 2022, RCCSB moved to terminate temporary custody of Custodians and grant temporary custody of G.B. to Father. Father also filed a motion to allocate sole legal custody or temporary custody of G.B. to him. The Custodians filed a motion to grant them legal custody of G.B.
{¶16} The CASA/GAL filed her report on May 31, 2022, recommending the juvenile court grant legal custody of G.B. to Custodians.
{¶17} The dispositional hearing went forward on June 7, 2022 and June 23, 2022. The following facts were adduced from the hearings. Kathy McGlone, Director of Bridges for Better Living where Father took parenting classes and exercised supervised visitation, testified that Father's visitations with G.B. went very well. Father was attentive to G.B.'s needs and listened to recommendations. She noted the visitation site did not have a highchair so Father brought his own highchair to visitation so he could feed G.B. her meal. McGlone observed there was a parent-child bond between Father and G.B. Candace Giess, RCCSB caseworker, testified that Father's home in Mansfield, Ohio was clean and appropriate for G.B. He lived in the same apartment complex as his Aunt, who was approximately 70 years old and provided childcare for G.B. when Father was working.
{¶18} Father had been employed at a glass manufacturing company for over eight years. Due to an employee shortage, at the time of the hearing he was working twelve-hour shifts from 7:00 p.m. to 7:00 a.m., Monday through Friday. When asked how he would care for G.B. when he was working those hours, he testified that he would have assistance from his family and daycare. G.B. would sleep at his Aunt's home while he was working. He stated he would sleep when G.B. took naps and when she woke up, he would bring her to the Aunt's home so he could go back to sleep.
{¶19} Father was in a relationship with Mother for two years prior to G.B.'s birth, but their relationship ended six months before G.B. was born. Father no longer had a relationship with Mother, but he had contact with Mother. He testified that if Mother wanted to visit with G.B., the visitations would be supervised. He testified that he was not aware of the level of Mother's drug usage during their relationship. He was also not aware that Mother was pregnant for some time because she did not appear to be pregnant and when he learned that she was pregnant, he was not sure the child was his based on her history. After G.B. was born, he visited Mother in the hospital. Paternal Grandfather testified that shortly after G.B. was born, Father showed him a video of his granddaughter and communicated with him about the child.
{¶20} Father had an outstanding warrant for marijuana use in another Ohio county. RCCSB conducted random drug testing on Father, who would consistently test positive for marijuana. Father did not have a card for medical marijuana but did not see the concern for his usage because he felt marijuana would eventually be legal in Ohio.
{¶21} Father raised two concerns about G.B. remaining in the Custodians' care. First, G.B. appeared to be afraid of men. Custodians also noted G.B.'s anxiety around men and had to change G.B.'s pediatrician from a male to a female provider. Second, G.B. is biracial. Custodians are Caucasian and Father is Black. Father was concerned that Custodians did not know how to properly care for G.B.'s hair and could not provide her cultural support.
{¶22} When RCCSB contacted the Custodians for G.B.'s placement, they were hesitant at first. G.B.'s two half-siblings are placed with Custodian's relative. After meeting G.B. in the hospital, the Custodians agreed to placement. Co-Custodian was employed as a licensed practical nurse in a nursing home. She left her employment to stay at home with G.B. Custodian is a licensed mental health therapist and owns her own practice. Custodians are married and live in a three-bedroom home in Cleveland, Ohio. Due to G.B.'s in vitro exposure to fentanyl, Custodians obtained developmental, occupational, and mental health therapy for G.B. G.B. did not display any serious developmental issues. She was bonded with Custodians and integrated into their family.
{¶23} During the pendency of the case, Custodians and Father cooperated with visitation. Two conflicts arose during visitations. First, G.B. was diagnosed with diaper rash due to G.B.'s extremely sensitive skin. After visitation with Father, who had been informed of the diaper rash and how to manage it with frequent diaper changes, the diaper rash developed into a fungal and bacterial infection. G.B. was in pain and required medication to treat the infection. G.B.'s diaper rash and fungal infections were still occurring. Second, G.B. was diagnosed with COVID and her pediatrician stated she must be quarantined for 10 days. Custodian testified that Father aggressively voiced to her his objections to the quarantine and how it impacted his visitation. Custodian felt she had no choice but to follow the orders of the medical provider and they adjusted visitation to allow Father make up that missed time.
{¶24} The CASA/GAL testified as to her report that recommended legal custody of G.B. be granted to Custodians with liberal visitation for Father. The CASA/GAL's concern was Father's continued usage of marijuana.
Judgment
{¶25} On August 5, 2022, the magistrate issued his decision. He found there were two issues in this case necessitating a finding that it was in the best interests of G.B. to be placed in the legal custody of Custodians. First, Father delayed in establishing his paternity of G.B. RCCSB could not consider paternal familial placements at G.B.'s birth because Father did not claim paternity of the child. Father visited Mother and G.B. in the hospital after her birth, showed his family pictures of G.B. after she was born, and attended all custodial hearings related to G.B., but Father's paternity was not established until October 5, 2020 pursuant to genetic testing requested by RCCSB. Father entered an appearance in the action in November 2020. By the time Father accepted paternity of G.B., G.B. had been adjudicated a dependent child and in the temporary custody of Custodians for 11 months. The second consideration of the juvenile court was Father's work schedule. Father was a single parent. His current work schedule was 12 hours a day for 5 days a week. G.B. would be primarily in the care of Father's Aunt or in day care.
{¶26} Protective supervision by RCCSB was terminated. The magistrate ordered a visitation schedule pursuant to Domestic Relations Rule 24.
{¶27} An amended magistrate's decision was filed on August 24, 2022.
Objections and Final Judgment
{¶28} Father filed objections to the August 5, 2022 and August 24, 2022 magistrate's decisions. In his objections, he argued the magistrate considered the incorrect best interest factors, Father's delay in establishing paternity was irrelevant, Father's claim of custody was superior to that of Custodians, G.B. required a father-figure, and Custodians resided too far away. In their responsive brief, Custodians argued the magistrate's decision was based on G.B.'s custodial history, one of the best interest factors. Further, if G.B. was placed with Father, a single male parent, it could be argued that G.B. would lack a mother-figure in her life.
{¶29} On January 11, 2023, the juvenile court overruled Father's objections and adopted the magistrate's decision to grant legal custody to Custodians. In its judgment entry, the juvenile court noted it "was presented with a close custody contest between suitable caregivers. The child is affectionate towards and received affection from all three individuals." (Judgment Entry, Jan. 11, 2023, ¶ 7). The juvenile court found that considering the custodial history of the child, however, it was in the best interests of G.B. to be in the legal custody of Custodians. First, it found Father's delay in establishing paternity resulted in G.B. being placed with and becoming bonded with Custodians. The juvenile court noted there was no evidence in the record to show where Father was after G.B.'s birth, that Father did not know how to establish paternity, or that he was prevented from doing so. The juvenile court found that if Father had not delayed in establishing his paternity, Father could have managed G.B.'s socialization from birth. Second, the juvenile court found that Father's work schedule severely limited availability to care for G.B. to only weekends.
{¶30} It is from this judgment entry that Father now appeals.
ASSIGNMENTS OF ERROR
{¶31} Father raises three Assignments of Error:
I. THE COURT APPLIED THE WRONG LEGAL STANDARDS IN DETERMINING G.B.'S BEST INTERESTS.
II.THE COURT ERRED IN GRANTING LEGAL CUSTODY TO THE AUNT AND DENYING LEGAL CUSTODY TO FATHER.
III.THE COURT ERRED IN MAKING NUMEROUS FINDINGS RELATING TO FATHER'S EARLY INVOLVEMENT IN G.B.'S LIFE.
ANALYSIS
{¶32} In his three Assignments of Error, Father contends the trial court erred in granting legal custody of G.B. to Custodians. We consider his three Assignments of Error together because they require us to analyze the arguments utilizing the same rules of law.
{¶33} Custodians are non-parents. Before awarding legal custody to a non-parent, a trial court must ordinarily make a finding that each parent is unsuitable. In re A.J.K., 5th Dist. No. 2022CA0014, 2022-Ohio-4336, 202 N.E.3d 857, 2022 WL 17413728, ¶¶ 46-47 citing In re L.P., 5th Dist. Muskingum No. CT2016-0045, 2017-Ohio-52, 2017 WL 74719, ¶ 18 citing In re L.M., 2nd Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, 2011 WL 2584195, ¶ 18 citing In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971. This requirement does not apply, however, in cases involving abuse, neglect, or dependency. Id. The Ohio Supreme Court in In re C.R. held "[a] juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents." 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, paragraph one of syllabus. Thus, "[w]hen a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty to make a separate finding at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal custody to a nonparent." In re L.M., 2011-Ohio-3285 quoting In re C.R., 108 Ohio St.3d 369, 2006 -Ohio- 1191, 843 N.E.2d 1188, paragraph two of syllabus.
{¶34} In this case, G.B. was adjudicated a dependent child.
Standard of Review
{¶35} Custody issues are some of the most difficult and agonizing decisions a trial court judge must make; for that reason, the trial court is given "wide latitude in considering all the evidence." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). "A trial court has broad discretion in proceedings involving the care and custody of children." In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 14. We review the award of legal custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No. 03AP-445, 2003-Ohio-6309, 2003 WL 22785029, ¶ 13; In re N.F., 10th Dist. No. 08AP-1038, 2009-Ohio-2986, 2009 WL 1798146, ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001). Abuse of discretion connotes more than an error of law or judgment; rather, it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We must presume that the trial court's findings are correct because the trial court is "best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Therefore, deferential review in a child custody determination is especially crucial "where there may be much evident in the parties' demeanor and attitude that does not translate to the record well." Davis at 419, 674 N.E.2d 1159.
{¶36} Unlike a permanent custody proceeding where a juvenile court's standard of review is by clear and convincing evidence, the standard of review in legal custody proceedings is a preponderance of the evidence. In re J.W., 5th Dist. Richland No. 2021 CA 0007, 2021-Ohio-2917, 2021 WL 3747036, ¶ 40; In re S.D., 5th Dist. Stark Nos. 2013CA0081, 2013-Ohio-5752, 2013 WL 6844490, ¶ 32; In re A.C., 12th Dist. No. CA2006-12-105, 2007-Ohio-3350, 2007 WL 1880600 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001).
Best Interests of the Child
{¶37} In this type of dispositional hearing, the focus is on the best interest of the child. In re T.B., 5th Dist. Muskingum No. CT2018-0065, 2019-Ohio-1747, 2019 WL 2041906, ¶ 26 citing In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188; In re P.S., 5th Dist. No. 2012CA00007, 2012-Ohio-3431, 2012 WL 3068423. Despite the differences between a disposition of permanent custody and legal custody, some Ohio courts have recognized "the statutory best interest test designed for the permanent custody situation may provide some 'guidance' for trial courts making legal custody decisions." In re A.F., 9th Dist. No. 24317, 2009-Ohio-333, 2009 WL 187959 at ¶ 7, citing In re T.A., 9th Dist. No. 22954, 2006-Ohio-4468, 2006 WL 2484165 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081, 2013-Ohio-5752, 2013 WL 6844490, ¶ 33. R.C. 2151.414(D) sets forth factors to be considered in making a determination regarding the best interest of the child.
{¶38} In that regard, the juvenile court is guided by the best interest factors enunciated in R.C. 2151.414(D) relating to permanent custody. In re J.W., 2021-Ohio-2917, ¶ 42 citing In re M.T., 9th Dist. Summit No. 29690, 2020-Ohio-5493, 2020 WL 7055379, ¶ 20 citing In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, 2008 WL 4409464, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those factors include the interaction and interrelationships of the child, the child's wishes, the custodial history of the child, the child's need for permanence, and whether any of the factors in R.C. 2151.414(E)(7)-(11) are applicable. In re M.T. at ¶ 20 citing R.C. 2151.414(D)(1)(a)-(e). In addition, the juvenile court may also look to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re M.T. at ¶ 20 citing In re K.A., 9th Dist. Lorain Nos. 15CA010850, 2017-Ohio-1, 2017 WL 27378, ¶ 17. "While some factors overlap with those above, others include the child's adjustment to his or her environment; the mental and physical health of all persons involved; the parents' history of providing support and honoring companionship orders; whether a parent plans to or has established a residence outside of Ohio; and certain indicia of violence, abuse, or neglect in any household involved. R.C. 3109.04(F)(1). Such indicia include convictions relating to the abuse or neglect of a child, as well as whether there exists any 'reason to believe that either parent has acted in a manner resulting in a child being an abused or a neglected child[.]' R.C. 3109.04(F)(1)(h)." Id. at ¶ 20.
{¶39} Father contends in his Assignments of Error that the juvenile court abused its discretion when it awarded legal custody of G.B. to Custodians. Before we begin our analysis, we acknowledge the nature of this case and the role of the court, as succinctly stated by the magistrate at the conclusion of the dispositional hearing:
I know one thing for sure, and that is, you are going to be in this child's life, and you are going to be in this child's life, probably till the day that each of you leaves this earth; because each of you have a deep and abiding relationship with this child. I'm the unfortunate who has to go back to my office and sort out what that relationship is going to look like. I'm going to give everything you have done full and fair consideration. I'm going to give everything that the two of you have done full and fair consideration. And I am going to my darndest to do the one job that I have in there, and that is to make the best decision that I can possibly make on behalf of the best interest of [G.B.].(T. 308). G.B. has two families asking to care for her. Our job is to consider what is in the best interests of G.B. Upon our review of the record, we find the juvenile court correctly considered the best interest factors and did not abuse its discretion to grant legal custody to Custodians.
{¶40} The main focus of the juvenile court's decision was the best interest factor relating to G.B.'s custodial history. When G.B. was born, there is no factual dispute that Father did not claim parentage of G.B. Because Father was unknown and G.B. could not be placed with Mother, RCCSB was required to look for maternal familial placements. RCCSB contacted Custodians and they agreed to care for G.B. when she was released from the hospital, ten days after her birth in December 2019.
{¶41} Father knew that Mother was pregnant, he was aware of G.B.'s birth, he visited Mother and child in the hospital, and he showed pictures of the child to his father. The record shows that RCCSB moved for genetic testing of Father. Genetic testing was not completed until October 2020 where it was confirmed that Father was the biological parent of G.B. While genetic testing was pending, Father attended the juvenile court custodial proceedings, but still did not claim parentage of G.B.
{¶42} From December 2019 to October 2020, G.B. developed a relationship with Custodians. When it overruled Father's objections, the juvenile court noted that by Father's choice not to establish parentage at the time of her birth, Father created the circumstances where Custodians provided the primary care of G.B. for almost 10 months before Father's parentage was confirmed. There was no evidence in the record that Father did not know how to establish paternity or that he was prevented from doing so. At the time of the dispositional hearing, G.B. was three years old.
{¶43} G.B.'s custodial history led to the other best interest considerations such as her interactions with parents, siblings, relatives, foster caregivers, and out-of-home providers. The evidence demonstrated that G.B. was fully integrated with the Custodians. The Custodians were appropriate with the child and were providing her medical and psychological care. The evidence showed that G.B. was bonded with Father. His visitations went so well they were extended to a 30-day visit and weekends.
{¶44} The ability to provide care for G.B. was an issue at the hearing. Co-Custodian left her employment and provided full-time care to G.B. Father worked 60-hour weeks, from 7:00 p.m. to 7:00 a.m., five days a week. If Father had custody of G.B., she would sleep at the Aunt's home during the night. During the day, Father would rely on day care, his Aunt, and sleeping when G.B. took a nap.
{¶45} In all custody matters, the paramount concern is the best interest of the child. P.K. v. J.V., 5th Dist. No. 2018CA00050, 2018-Ohio-5383, 128 N.E.3d 813, 2018 WL 6925513, ¶ 39 citing In re Adoption of Kreyche, 15 Ohio St.3d 159, 162, 472 N.E.2d 1106 (1984). Because the best interest of the child is the paramount concern, the juvenile court should consider the totality of the circumstances affecting the best interests of the child. In re P.G., 12th Dist. Warren Nos. CA2015-01-009, CA2015-01-010, 2016-Ohio-1433, 2016 WL 1296770, ¶ 64 citing In re M.A., 12th Dist. Butler No. CA2011-02-030, 2012-Ohio-545, 2012 WL 441142, ¶ 16. In this case, the juvenile court found that both parties were suitable caregivers, but it could only consider what was in the best interests of G.B. The preponderance of the evidence demonstrated the custodial history of G.B., her integration into the Custodians' family, and the appropriateness of Custodians' care for G.B. weighed more towards G.B.'s best interests to be placed with Custodians. There was no abuse of discretion to determine it was in the best interest of G.B. to be placed in the legal custody of Custodians.
{¶46} Father's three Assignments of Error are overruled.
CONCLUSION
{¶47} The judgment of the Richland County Court of Common Pleas, Juvenile Division, is affirmed.
Delaney, J., Wise, P.J. and Baldwin, J., concur.