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In re F.B.D.

Court of Appeals of Ohio, First District, Hamilton

June 26, 2019


          Appeal From: Hamilton County Juvenile Court Trial No. F-05-1955X

          Victor Dwayne Sims, for Appellant Father,

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jonathan Halvonik, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

          Jeffrey J. Cutcher, for Appellee Mother.


          Myers, Judge.

         {¶1} Father has appealed from the trial court's entry granting legal custody of his daughter F.B.D. to mother. Because the trial court did not abuse its discretion in determining that a grant of legal custody to mother was in F.B.D.'s best interest, we affirm its judgment.

         Factual Background

         {¶2} In June of 2014, the Hamilton County Department of Job and Family Services ("HCJFS") filed a complaint for temporary custody of F.B.D., as well as five of F.B.D.'s half-siblings, alleging that they were neglected, abused, and dependent. The children had been living with mother and mother's boyfriend J.C., who was the father of several of F.B.D.'s half-siblings. HCJFS alleged that the children had witnessed domestic violence between mother and J.C. and that the children's home was infested with snakes, mice, and bed bugs. The allegation of abuse was dismissed, but the children were adjudicated dependent and neglected, and in October of 2014, HCJFS was granted temporary custody of F.B.D. and her half-siblings. The entry granting temporary custody noted that the parties had no concerns involving F.B.D's father, and that they were working on establishing a better relationship between father and F.B.D. so that F.B.D. could be placed in his legal custody.

         {¶3} Father and F.B.D. continued to have regular visitation, and in February of 2016, upon father's petition for custody and HCJFS's motion to terminate temporary custody of F.B.D. and award legal custody to father, legal custody of F.B.D. was granted to father.

         {¶4} Several months later, in July of 2016, the temporary custody of four of F.B.D.'s half-siblings was terminated, and their custody was remanded to mother. The magistrate's entry awarding custody to mother noted that mother and J.C. had made great strides in the case, and that there were no identified concerns with the stability and safety of the children when in the home of mother and J.C.

         {¶5} In December of 2016, F.B.D. was placed in mother's home on a safety plan after father left her in the care of a friend while he went to work on a fishing boat in Alaska and F.B.D. reported that the caregiver whom she had been left with hit her. HCJFS filed an amended complaint alleging that F.B.D. was neglected and dependent, and in February of 2017, interim custody of F.B.D. was granted to mother.

         {¶6} In September of 2017, F.B.D. was adjudicated dependent. A dispositional hearing to determine custody of F.B.D began in November of 2017 and was continued in progress until January of 2018. Both HCJFS and F.B.D.'s guardian ad litem supported an award of legal custody to mother.

         {¶7} HCJFS caseworker Marian Stark-Davis testified that F.B.D. desired to live with mother but to continue visits with father, whom she had stayed with and visited at times since being returned to mother's care. Stark-Davis had concerns that father continued to place F.B.D. with the caregiver whom F.B.D. alleged had hit her, as F.B.D. expressed that she was not comfortable in that caregiver's home. Stark-Davis explained that father had difficulty setting limits with F.B.D., and she described F.B.D. as being manipulative towards father, whereas she felt that mother tried to limit that type of behavior from F.B.D. She testified that F.B.D. was doing well in general since being placed with mother. F.B.D. had poor hygiene and was failing classes while living with father. But since returning to mother's home, her attendance and grades had improved and she was admitted to Walnut Hills. Stark-Davis felt that mother's parenting had improved following her participation in services, and that mother was able to provide for all of F.B.D.'s basic needs. Stark-Davis conceded that she had thoroughly investigated father's home before he was initially awarded custody of F.B.D., but explained that despite her prior approval of father, she had concerns that he would leave again for months at a time and place F.B.D. with other caregivers.

         {¶8} Father testified that he was not aware of any court order preventing him from going to work in another state, and that he had made arrangements for F.B.D. before he left to work in Alaska. He left her in the care of Niame Drame and provided an ATM card for use on behalf of F.B.D. Father felt that he was in a better position than mother to give F.B.D. a good education, and he wanted to be able to teach F.B.D. in matters of culture, religion, and socialization. Drame testified that she had cared for F.B.D. while father was in Alaska, and that father had made ...

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