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In re Z.P.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 31, 2017

IN RE: Z.P. A Minor Child Appeal by B.J., Father

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 14106384

          ATTORNEY FOR APPELLANT David Bartos Bartos & Bartos, L.P.A.

          ATTORNEYS FOR APPELLEES For A.P., Grandmother James C. Lanigan Hahn, Loeser & Parks, L.L.P.

          For L.P., Mother L.P., pro se.

          For Guardian Ad Litem Linda M. Julian.

          BEFORE: Jones, J., McCormack, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} Appellant, Father, appeals the juvenile court's decision to grant legal custody of Z.P. to appellee, maternal grandmother ("Grandmother"). For the reasons that follow, we reverse and remand for a new trial.

         {¶2} The record and transcript reflect the following. Z.P. was born on January 1, 2013. In May 2014, Father filed an application to determine custody and a motion for temporary custody. The same month, Grandmother, who had been caring for Z.P. since birth, filed a motion for custody and a motion to intervene in the case. Grandmother subsequently filed a second motion to intervene and a motion for temporary custody. The court granted Grandmother's motion to intervene. The parties initially agreed that Grandmother would have temporary custody of the child.

         {¶3} Z.P. lived with her two half-siblings and Grandmother in a house owned by A.B., who had previously dated Mother, but was not the biological father of any of her children. Mother occasionally lived in the house. Grandmother and A.B. had cared for Z.P. since birth, except for two six-week periods during which Mother took her three children to stay somewhere else. A.B. provided basic needs for Z.P. and her siblings.

         {¶4} When Mother was not living with the family, she lived in several different places and Grandmother had concerns about Mother's stability, mental health, and ability to provide for Z.P.'s basic needs. Prior to obtaining temporary custody, Grandmother had a difficult time receiving permission from Mother to take Z.P. to the doctor. Z.P. has special needs.

         {¶5} Father was the biological father of Z.P., but not of Mother's other children. He visited with Z.P. often, including overnight and weekend visitation and would take Z.P. to his mother's house, where he lived. His mother was supportive of his relationship with Z.P. but could not provide a permanent home for Z.P. because she lived in senior housing and the child was not allowed to live there long term. During one seven-month period, Father estimated he had Z.P. 43 percent of the time. A.B. agreed that Father took care of Z.P. about that amount of time. After the court awarded temporary custody of Z.P. to Grandmother, Father had weekly visitation from Friday through Monday.

         {¶6} In March 2015, the guardian ad litem ("GAL") filed her report and recommendation, recommending that the court award legal custody of Z.P. to Father. The matter proceeded to trial before a magistrate at which the parties proceeded pro se. The magistrate awarded legal custody of Z.P.'s half-siblings to Grandmother; the decision was uncontested.

         {¶7} Grandmother testified that Z.P. was 28 months old at the time of trial. Grandmother did not believe Father was suitable to have custody of the child because although Father claimed to have just moved into his own place, Grandmother did not think the house had working utilities and she did not know where the child would sleep or if the father had food for the child. Grandmother believed Father still lived with his mother.

         {¶8} Mother testified that she wanted Grandmother to have custody of Z.P. to keep her children living together. Mother claimed Father had mental health problems, was "unstable, " did not support the child, did not have stable housing, and had a temper. Mother testified she was "okay" if visitation between Father and Z.P. continued.

         {¶9} Father testified he had stable housing. According to Father, "the lights are on, " but the gas was not yet hooked up because he had just moved in to his new place. Father testified that he had an appointment with a local agency and the gas should be on in a few days. Father testified he was employed, did not have a criminal history, and had not been treated for mental health issues. ...


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