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In re J.T.

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

IN RE: J.T.

         Juvenile Appeal from Common Pleas Court Trial Court Case No. JC-2014-7957

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Attorney for Appellee, Montgomery County Children Services Board

          JAMES S. ARMSTRONG, Attorney for Appellee, Father

          CHARLES W. SLICER, III, Attorney for Appellant, Mother

          KATHLEEN BISHOP, Guardian ad litem

          OPINION

          HALL, P.J.

         {¶ 1} T.T. ("Mother) appeals from the trial court's judgment entry awarding appellee D.T. ("Father") legal custody of their minor child following a dependency adjudication.

         {¶ 2} In her sole assignment of error, Mother contends the trial court erred in awarding Father legal custody where he failed to prove by clear and convincing evidence that such a disposition is in the child's best interest.

         {¶ 3} The record reflects that appellee Montgomery County Children Services ("MCCS") became involved with Mother and the child at issue following a September 2014 domestic-violence complaint at the home where they resided together. On that occasion, a police officer heard the child, who then was 13 years old, accuse Mother of hitting her and heard Mother cursing at the child. The officer described conditions inside the home as "horrible" and a "fire hazard." Mother ordered the officer out of the home, claimed there was no problem, and accused the child of lying. The child claimed, however, that Mother had slapped her and had tried to pepper-spray her. Mother was arrested for domestic violence, and the child was placed in the temporary care of Father. MCCS caseworker Melanie Hennessey subsequently visited Mother at her home. Hennessey described the interior as cluttered with trash and debris to the point that it was difficult to move and that no food could be prepared. Shortly thereafter, Mother removed a significant amount of trash and debris, and the child was returned to her.

         {¶ 4} The following month, Mother was arrested for shoplifting at a Wal-Mart store. At that time, Mother was accompanied by the child, who told police that Mother had asked her to carry some of the stolen merchandise out of the store. Mother was arrested for shoplifting and child endangering, and the child returned to Father's care. The child later went back to Mother after her release from jail.

         {¶ 5} In December 2014, MCCS filed a dependency complaint based on concerns about the foregoing issues and others. Following a hearing, the trial court adjudicated the child dependent and placed the child with Father with interim protective supervision to MCCS. In April 2015, a magistrate entered a dispositional order awarding Father temporary custody, again with protective supervision to MCCS, and with Mother receiving supervised visitation. The trial court overruled Mother's objections and adopted the magistrate's decision. Mother appealed. This court affirmed the award of temporary custody to Father in In re J.T., 2d Dist Montgomery No. 26839, 2016-Ohio-602. In so doing, we concluded, among other things, that the trial court properly had considered the appropriate best-interest factors and that its dispositional order was supported by competent, credible evidence.

         {¶ 6} In April 2016, Father moved for legal custody of the parties' child. Following a June 2016 hearing, a magistrate awarded Father legal custody with one year of protective supervision by MCCS. Mother filed objections, which the trial court overruled in October 2016. In its ruling, the trial court found, among other things, that an award of legal custody to Father is in the child's best interest. The trial court addressed the statutory best-interest factors and made detailed findings, with citations to the record, for each of them. (Doc. # 4 at 3-10).

         {¶ 7} In her present appeal, Mother contends Father failed to prove by clear and convincing evidence that awarding him legal custody is in the child's best interest. Mother addresses the best-interest factors found in both R.C. 3109.04(F)(1) and R.C. 2151.414(D)(1) and challenges the trial court's decision.

         {¶ 8} With regard to R.C. 3109.04(F)(1), Mother asserts (1) that the record does not reveal why the child wants to live with Father, (2) that the trial court did not interview the child, (3) that the child resided with her until the fall of 2014, (4) that her relationship with the child did not justify awarding Father legal custody, (5) that the evidence does not support a finding that the child's emotional condition improved while with Father, (6) that she had completed or was in the process of completing her case-plan ...


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