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In re A.B.M.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

IN RE A.B.M. A Minor Child [Appeal by T.M., Father]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU16117933


          Stafford Law Co., L.P A., Joseph G. Stafford, and Nicole A Cruz, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Daniel A. Starett and Marilyn Weinberg, Assistant County Prosecutors; and Eric J. Cherry, for appellee.



         {¶ 1} Appellant T.M., the established father ("Father") of minor child A.B.M., appeals the custody determination by the Cuyahoga County Court of Common Pleas, Juvenile Division. We affirm the judgment of the trial court.

         I. Background and Facts

         {¶ 2} A.B.M. was born to appellee M.R., a single mother ("Mother"), shortly after Mother's high school graduation. Father was also a recent high school graduate. On March 11, 2014, Father was established as the biological father by the Cuyahoga County Department of Job and Family Services ("CCDJFS"). The parties never married but lived together sporadically.

         {¶ 3} After several moves from Florida to Ohio, Father decided to remain in Ohio. Mother decided to remain in Florida. On December 12, 2016, Father filed an application to determine custody of A.B.M. and a motion to restrain Mother from returning to Florida after Mother's visit to Ohio. Father alleged that Mother: (1) was unable to provide stable living conditions, (2) had not maintained stable employment for more than three months in the past two years, and (3) A.B.M., who was four years of age at the time, had not been in a structured school environment.

         {¶4} The trial court granted the ex parte motion filed by Father on March 17, 2017, to restrain Mother from returning to Florida where she and A.B.M. were residing. An interim parenting order was issued governing visitation.

         {¶ 5} On March 29, 2019, the trial court denied Mother's motion to dismiss the complaint for lack of subject matter jurisdiction that claimed Ohio lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") because Mother was a Florida resident. The trial court determined that Mother

failed to demonstrate by clear and convincing, credible evidence that she has established or otherwise maintained residency in another [s]tate, and thereby establishing another [s]tate as the home state of the child. Both parents demonstrated a rather transient lifestyle with the child prior to the filing of the application.

         Journal entry No. 0911060800 (Mar. 29, 2019).

         {¶ 6} The trial was held on April 25, 2018. Father, Mother, the maternal grandmother ("Grandmother") and the GAL testified.

         {¶ 7} Father stated that he, Mother, and AB.M. resided together before he moved in with a friend in Florida in January 2015, and secured employment. Mother and A.B.M. joined him shortly afterward. Father testified that he paid all of the expenses and assisted with AB.M.'s care. Father returned to Ohio in August or September 2015, without Mother and A.B.M., but gave Mother $400 per month to support A.B.M. when he obtained employment.

         {¶ 8} Father visited A.B.M. in Florida during the fall 2015 and during Mother's visit to Ohio to see her mother in March 2016. A.B.M. stayed with Father and his new fiancé in Cleveland for about two months later that year with Mother's consent.

         {¶ 9} Father testified that Mother was pregnant with the child of her fiancé whom she lived with in Florida and that Father paid for Mother and A.B.M. to come to Ohio in December 2016. Mother stayed alternately with Father's sister and her sister. Father filed the custody application and the trial court ordered interim visitation. Father requested equal parenting time and designation as the residential parent if Mother relocated out-of-state.

         {¶ 10} Father admitted that A.B.M. was four years old at the time the case was initiated and was not required to attend school. Mother selected AB.M.'s current school where she is learning to speak Mandarin and Spanish and A.B.M. enjoys attending school with her cousins. Father states that he assists A.B.M. with homework during his visitation time and maintains contact with the school regarding A.B.M.

         {¶ 11} Father testified that A.B.M. said that Mother told her not to discuss Mother's life and activities with Father. He claimed that Mother did not obtain stable housing until April 2017, though he admitted that she was in Florida and subsequently stayed with relatives until she secured a place to live. Father confirmed that he had also moved and purchased his home in 2017 where he lives with his fiancé.

         {¶ 12} Exhibits were also introduced during Father's testimony indicating that, at the time the complaint was filed, he had contact with A.B.M., that actions were in process for AB.M.'s school enrollment, and that he stopped paying the $400 per month that he indicated he had been paying to Mother. The 2015 W-2 forms did not support Father's claim that Mother and Father resided together in 2015.

         {¶ 13} Mother testified that she and her family moved to Ohio from Florida during her sophomore year and that she has extended family in Florida. During the pregnancy and after the birth, Mother lived primarily with Grandmother but sometimes stayed with Father who frequently "kick[ed] [Mother] out" of the house. (Tr. 100.) Mother said that she always planned to return to Florida and moved in with her brother in February 2015. Father resided about 30 minutes away, they were not dating, and they did not live together at that time.

         {¶ 14} Mother drove A.B.M. to visit Father but Father did not ask to see A.B.M. or pick her up. Father's move to Florida provided an opportunity for her to return to her family in Florida. In May 2015, Mother secured employment and, in June, an apartment. Father had returned to Ohio by that time but returned to Florida to live with Mother on the condition that he obtain employment.

         {¶ 15} Father worked for about a month and the parties ended the living arrangement after an argument that involved police presence. Father returned to Ohio and Mother moved back in with family in Florida. Father talked with A.B.M. by telephone, video chat, and visited A.B.M. in Florida. Mother ended her employment because of the one-hour commute and said that she supported herself with savings, a tax refund, and subsequent employment that allowed her to meet AB.M.'s needs.

         {¶ 16} Mother and her current fiancé began living together about one month after meeting and they planned to marry in January 2019. The fiancé is the father of the second child and has a good relationship with A.B.M. Mother returned to Ohio to help Grandmother move back to Florida but remained due to the custody case and began taking classes at a local college.

         {¶ 17} Mother testified that the only violation of the current parenting order occurred on July 4, 2017. A.B.M. was usually happy to see Father but was cranky and did not want to go with Father. Father began yelling and AB.M. was crying and did not want to leave. Mother denied attempting to hinder the father-child relationship.

         {¶ 18} Mother also testified that, in December 2016, when Mother was residing at Father's sister's house, Father attempted to have Mother perform a sexual act. Mother did not report it. Mother continued to allow visitation pursuant to the parenting order but had other family members take A.B.M. to meet Father. Also, in December 2016, A.B.M. told Mother that she observed a gun laying on a kitchen chair at the Father's home, but that Father quickly removed it.

         {¶ 19} Mother testified that, after the gun incident, she allowed A.B.M. to talk with Father by telephone but she was concerned for AB.M.'s safety as well as for her own. Since the interim parenting order was entered, A.B.M. visits Father and is sometimes excited and other times reluctant to go. Mother also said that A.B.M. is very close to her younger sister.

         {¶20} During cross-examination, Mother explained the reasons for changing residences and employment relocations and stressed that she always made sure that AB.M.'s needs were met. Though Mother's family and fiancé are in Florida and Grandmother was also moving to Florida, Mother declared that she would remain in Ohio if Father was appointed as the residential parent because she did not want to be away from A.B.M. Mother testified that her current employer, Cleveland Clinic, would allow her to continue to work for them in a home-based position if she relocates to Florida. If forced to remain in Ohio, her relationship with her fiancé probably would end because he has a special needs child in Florida and is unable to relocate.

         {¶ 21} Grandmother testified that Mother and Father had a sporadic and somewhat contentious relationship that Mother attributed to their youth and the stress of parenting an infant. Grandmother was diagnosed with fibromyalgia and was advised by her physician to move to a warmer climate. Mother returned to Cleveland to assist Grandmother's move to Florida.

         {¶ 22} After the order was issued preventing Mother from returning to Florida, Mother secured an apartment in the complex where Grandmother resides and Grandmother cares for both children. Grandmother advised that A.B.M. and her younger sister are very close and that separating them would be devastating.

         {¶ 23} The GAL was the final witness. The GAL issued a report on November 29, 2017, that did not contain a parenting recommendation. On December 7, 2017, only eight days later, she issued a longer report that recommended naming the Father as the residential parent for school purposes and for a split-week parenting plan with exchanges at the school. The GAL did not file an updated or supplemental report prior to the April 2018 trial.

         {¶24} The GAL testified,

I've done a number of visits with the child. Both homes are appropriate. The child is very comfortable with both parents, very affectionate. She clearly loves her mom and her dad.
She gets along well with father's fiancé. She clearly adores her little sister.
She I think wants to spend time with everybody, to love everybody, like any other six-year-old.
I think the big issue in this case is how we handle the relocation, which is very, very tricky.
I am hesitant to recommend that and I think that's clear in my report, based on mom's difficulty dealing with dad throughout this case.
I will note that it has improved significantly since I was appointed. When this case began, mother * * * did not want any interaction with [Father]. (Tr. 164-165.)

         {¶ 25} The GAL opined that both parents are competent to care for A.B.M. However, "[m]y concerns are their ability to work together to facilitate positive relationships for [A.B.M.] with everyone." (Tr. 168.) In light of the strained communication between the parents, the GAL suggested that visitation exchanges take place through the school to avoid interaction between the parents and that the parties continue to communicate through the Our Family Wizard database that facilitates shared parenting communications.

         {¶ 26} The GAL concluded that spending time with both parents is in AB.M.'s best interest, but A.B.M. should not hear negative things from either parent about the other parent. The GAL suggested that A.B.M. had been coached by Mother about the gun incident because the child recalled the situation even though she was only five. The GAL did not think that seeing a gun sitting on a kitchen chair at her Father's home would be ...

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