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In re M.W.

Court of Appeals of Ohio, Second District, Montgomery

December 6, 2019

IN RE: M.W.

          Appeal from Common Pleas Court -Juvenile Division, Trial Court Case No. 2016-3566

          MATHIAS H. HECK JR. by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor's Office, Attorney for Appellee Montgomery County Children Services

          SARA M. BARRY, Atty. Reg. No. 0090909, Attorney for Appellant Mother.

          OPINION

          HALL, J.

         {¶ 1} Mother appeals from the trial court's decision and judgment entry overruling her objections to a magistrate's decision and awarding Father legal custody of their three-year-old child, M.W.

         {¶ 2} In her sole assignment of error, Mother contends the trial court's award of legal custody to Father was "against the preponderance of the evidence and was an abuse of discretion."

         {¶ 3} The record reflects that M.W. was born in July 2015. Montgomery County Children Services ("MCCS") filed a complaint in May 2016 alleging that the child was neglected and dependent due to Mother's "untreated mental health concerns, her substance abuse, her instability and her failure to provide for the basic needs of the child." (Doc. # 111 at 1.) MCCS later filed an amended complaint focusing on dependency. (Doc. # 104.) It alleged, among other things, that Mother had cognitive delays and "a long history of mental health problems and violent behavior." (Id.) In July 2016, the trial court adjudicated M.W. and the child's siblings dependent and awarded MCCS protective supervision. (Doc. # 102.) In its ruling, the trial court noted that the parties had stipulated to the facts contained in the amended complaint and to the disposition. (Id.) Thereafter, in June 2017, the trial court awarded legal custody of M.W. to a maternal aunt. (Doc. # 90.) The trial court then transferred temporary custody to a non-relative before later transferring temporary custody to MCCS. (Doc. # 66.) Following an extension of that temporary custody, MCCS moved for an award of legal custody to the paternal grandmother. After she obtained interim temporary custody, MCCS amended its motion and added a request for an award of legal custody to Father, who had established paternity in January 2018. (Doc. # 28, 39, 50.) The matter proceeded to an August 2018 hearing before a magistrate. Based on the evidence presented, the magistrate filed an August 9, 2018 decision awarding Father legal custody with an initial six months of protective supervision. (Doc. # 17.) Mother filed objections and supplemental objections, which the trial court overruled. (Doc. # 3, 8, 16.) In its May 31, 2019 ruling, the trial court determined that awarding legal custody to Father, with parenting time for Mother, was in M.W.'s best interest. (Doc. # 3 at 7.) After setting forth the testimony presented to the magistrate and reciting the pertinent statutory best-interest factors, the trial court reasoned:

After an independent review of the record and consideration of the applicable statutory factors, the Court concludes that it is in the child's best interest for legal custody to be granted to father, * * *. Mother has obtained employment, secured adequate housing, and has been engaged in mental health counseling. While Mother has made progress on her case plan objectives, concerns about Mother's ability to provide adequate care for the child still remain. The child was previously adjudicated dependent, and has been outside of Mother's home since April 2017. Mother's visitation with the child has been inconsistent. Mother has missed numerous visits with the child due to her work schedule. However, even before Mother began her employment, she was placed on a stipulation to arrive an hour early to her visits as a result of being continually late to visits. Mother also arrived late to the hearing after oversleeping, which she claims was caused by the medication that she is taking. Both the MCCS caseworker and a Deputy testified about the inappropriate behaviors and outbursts that Mother has displayed at the Agency, in front of her children, as recently as a few weeks prior to the hearing. Mother has four children that are siblings to this child, none of which are in her care.
Since establishing paternity, Father has acquired adequate housing and income to support the child. Further, Father has been visiting with the child regularly, including overnight visits in his home. There have been no concerns raised about the child's visits with Father or her adaption to Father's home. Father and the child are bonded and the child appears to be well taken care of in his home. Although a home study for Father was still pending approval at the time of the hearing, the Agency and GAL expressed that there was no reason to believe that it would not pass. The Court also notes that the GAL recommends legal custody to Father. (Tr. 7, II). The GAL stated that she has visited the child at Father's house, the child has been there for a few months, and is doing well there. (Tr. 7, II). The GAL believes Father's home is safe and appropriate. (Tr. 7, II). The child does not have any special needs. (Tr. 20, II).

(Id. at 7.)

         {¶ 4} In her assignment of error, Mother challenges the trial court's best-interest determination. The essence of her argument is that the trial court discounted her case-plan progress while overemphasizing her mental health and emotional outbursts to justify placing M.W. with Father, who only established a relationship with the child months earlier, who only recently had obtained appropriate housing, who had a criminal record, and who lived with people that MCCS had not fully investigated. With regard to the statutory best-interest factors in R.C. 3109.04(F), Mother contends M.W. has expressed a preference to be with her. She also asserts that the child is bonded with her, that she cares for the child appropriately, that she has three other children who should be able to bond with M.W., and that her emotional outbursts were related to her missed visitation opportunities, which further demonstrates her bond with the child. Mother additionally argues that an MCCS caseworker stated Father would be an appropriate custodian for M.W. but had not completed a home-study or a thorough investigation. Mother also asserts that M.W. never had "lived with" Father at the time of the hearing, having only "done some in home visits." With regard to her mental health, Mother stresses that she has been in counseling and has been compliant with her medications. She again argues that her emotional outbursts were related to not being able to see M.W. or her other children. She contends the record contains no information about Father's mental health while also pointing out his criminal record. Finally, Mother claims the record is devoid of evidence concerning which parent would be most likely to honor parenting time or visitation.

         {¶ 5} The law governing the trial court's legal-custody determination and our review of that decision is as follows:

R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent child, the court may award legal custody of the child "to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child[.]" An award of legal custody "vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities." R.C. 2151.011(B)(19).
When a juvenile court makes a custody determination under R.C. 2151.353, it must do so in accordance with the "best interest of the child" standard set forth in R.C. 3109.04(F)(1). See In re Poling, 64 Ohio St.3d 211, 594 N.E.2d 589, 1992-Ohio-144, paragraph two of the syllabus, and R.C. 2151.23(F)(1) (requiring a juvenile court to exercise its jurisdiction in accordance with R.C. 3109.04 as well as other sections of the Ohio Revised Code). The factors a court must consider in determining a child's best interest include such things as the parents' wishes; the child's wishes, if the court has interviewed the child; the child's interaction with parents, siblings, and others who may significantly affect the ...

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