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In re J.S.

Court of Appeals of Ohio, Fourth District, Meigs

December 3, 2019

IN THE MATTER OF: J.S.

          David J. Winkelmann, Millfield, Ohio, for Appellant.

          Robert W. Bright, Middleport, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Jason P. Smith, Presiding Judge

         {¶1} This an appeal from a judgment filed in the Juvenile Division of the Meigs County Common Pleas Court naming Appellee, D.S., as the residential custodian of the minor child, J.S., and awarding the Appellant, the child's mother, N.L., parenting time three weekends a month, along with the court's standard holiday and vacation parenting time schedule. Because the trial court's best interest determination as to the allocation of parental rights and responsibilities is supported by competent, credible evidence, and because the trial court did not abuse its discretion in the allocation of parental rights and responsibilities, Appellant's sole assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed.

         FACTS

         {¶2} The parties' initial involvement with the court began soon after J.S. was born on August 18, 2016. D.S. and N.L were not married at the time of the child's birth and have never since been married, however, they lived together with the child on property owned by D.S.'s grandparents in Meigs County. The Meigs County Child Support Agency filed a complaint seeking to determine the child's paternity on September 27, 2016. Because N.L. admitted D.S. was the child's father, which was also confirmed through genetic testing, a paternity order was filed on February 9, 2017. Thereafter, D.S. filed a complaint in the Juvenile Division of the Meigs County Court of Common Pleas seeking custody of the child on March 10, 2017. D.S. dismissed his complaint on March 17, 2017, but then filed another complaint seeking emergency custody of the child in November of 2017.

         {¶3} It appears from the record that the emergency motion was filed after N.L. made domestic violence allegations against D.S., which ultimately led to a safety plan being implemented by Meigs County Children's Services (hereinafter "MCCS"). Part of the safety plan required N.L. to move out of the residence due to the fact that a drug screen performed indicated marijuana was in her system. During the investigation conducted by MCCS, N.L. admitted to smoking marijuana and D.S. admitted that he provided it to her. N.L. moved out of the residence at that time and returned to Columbus, Ohio, where she was from originally. The trial court thereafter granted D.S.'s request for emergency custody on November 17, 2017 and the child has remained in his custody since that time. Temporary orders that were issued granted N.L. parenting time three weekends a month, as well as holiday and vacation time per the court's standard orders.

         {¶4} Several hearings were held during the course of the proceedings below. Both D.S. and N.L. testified, along with several family members of D.S., friends of N.L., the Guardian Ad Litem (Paul Koch), and an MCCS employee. The record before us indicates that J.S. was approximately two years old at the time of the final hearing and that during the course of the proceedings was diagnosed as having an Autism Spectrum Disorder. As a result, he receives multiple therapy services, including speech, hearing and language. His services are provided locally by a team of providers from Ohio University in Athens, Ohio and from Nationwide Children's Hospital in Columbus, Ohio that comes to the region where he lives to provide services. At the time of the final hearing J.S. had weekly therapy appointments every Monday and was getting ready to start receiving therapy twice a week, instead of once.

         {¶5} D.S. testified that he was currently and had always been the primary caretaker of J.S. He testified that his employer was flexible and allowed him to work around J.S.'s medical needs and appointments, and that when he needed assistance, he had a local network of family members that assisted in J.S.'s care. He also testified that J.S. is cared for by D.S.'s grandparents while he works and, thus, no one outside the family is needed to assist with J.S.'s care. D.S. testified that therapy appointments have always been weekly on Mondays but that N.L. has never attended. He also testified that since starting therapy, J.S. is improving. D.S. testified he wanted N.L.'s parenting time to be at his convenience and limited to no more than what she currently had.

         {¶6} While N.L.'s testimony indicated a strong desire to be named the residential parent of her child, it was clear that N.L. did not have family support or a strong network to assist her in the care of J.S. She testified that she had found an appropriate daycare facility where therapy services could be incorporated. She also testified to her belief that the Columbus area offered better care and more services for J.S. than could be provided in rural Meigs County. She testified that she had not attended therapy appointments thus far due to D.S.'s failure to communicate with her about the dates and times, and explained that if the child were to reside with her in Columbus, she could take him for evening therapy sessions or could take time off during her lunch hour to transport him to necessary appointments. However, she conceded that she had not confirmed evening therapy services were available.

         {¶7} Several of D.S.'s family members testified on his behalf regarding their opinion that he was the better parent and should be the primary custodian. In particular, D.S.'s sister, Shainna Sisler, testified that J.S. was happy and progressing and had made a lot of improvements since his diagnosis. Further, D.S.'s paternal aunt, Kellie Howes, testified that she has helped care for J.S. and that when he returns from weekend visits with his mother he does not want to be touched by women and takes a while to "warm up." She testified that J.S. is emotionally closest to his father and does well with him because there is a stable, set schedule.

         {¶8} MCCS employee, April Booth, also testified. She testified that although N.L. tested positive for drugs when the investigation was initially started, there had been no issues since that time and neither parent posed any risk to the child. Guardian Ad Litem, Paul Koch, testified and also filed a report. He noted that shared parenting was not an option in light of the poor relationship of the parties. N.L. conceded this fact in her testimony as well. Koch testified that he had consulted with J.S.'s team of therapy providers as to the extensive therapy J.S. is receiving for his autism diagnosis. He also testified that N.L. had failed to attend any of J.S.'s therapy appointments. However, Koch testified that the child appropriately interacted with both parents, that both residences were clean and well maintained, and that he did not believe either parent had any current substance abuse problems. Nevertheless, Koch recommended in his report that the custody arrangement remain the same, but that N.L.'s parenting time should be "maximized."

         (¶9) The trial court issued an eleven-page decision naming D.S. as the residential parent on October 12, 2018, after what the court described as an admittedly "difficult decision that the Court has spent weeks reviewing * * *." The Court noted that it was clear both parents loved the child, wanted to be the custodial parent and had the capability to provide for the child's needs. However, the court further noted that shared parenting was not an option due to the "toxic relationship" between D.S. and N.L., which the court attributed to both parents equally and even included a section its decision titled "Mutually Unsavory Conduct Allegations." In that section of its decision the court noted that both parents had made multiple accusations against one another, including stalking, sabotage, murder, narcissism and parental alienation, just to name a few. The trial court expressly considered the testimony of the parties and their witnesses, the report and testimony of the guardian ad litem, the MCCS investigation, as well as the fact the investigation had been remedied and closed, and the child's developmental issues.

         {¶10} Ultimately, the court ordered that legal custody should remain with D.S. and that N.L.'s parenting schedule should continue as previously ordered, which was three weekends a month as set forth above. In reaching its decision, the court noted that it was "significantly concerned * * * about mother's highly dramatic beliefs and opinions[, ]" which included allegations that D.S. murdered someone, stalked her, had improper relations with the judge, has Munchausen by Proxy and essentially "conjured up the autism diagnosis[, ]" but yet had never attended any of the child's appointments with his specialists. Thus, the trial court rejected the guardian ad litem's recommendation that ...


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