In re I.V. , 2022 Ohio 118 ( 2022 )

[Cite as In re I.V., 2022-Ohio-118.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: I.V. AND X.M. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case Nos. 2021-AP-06-0014
: 2021-AP-06-0015
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 20
JN 00192
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 14, 2022
APPEARANCES:
For Appellants For Appellee
DAN GUINN PAUL HERVEY
232 West 3rd Street 4700 Dressler Avenue, NW
Suite 312 Canton, OH 44718
Dover, OH 44622
For Tuscarawas County Job and
Guardian ad Litem Family Services
NICHOLAS DOUGHTY LISA VITALE ARNOLD
401 Tuscarawas Avenue 389 16th Street, SW
Suite 201 New Philadelphia, OH 44663
Canton, OH 44702
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 2
Wise, Earle, J.
{¶ 1} Appellants, Samantha and Greg Beyer, appeal the May 27, 2021 judgment
entry of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division,
awarding legal custody of two children to appellee, Tosha Clark.
FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves two children, I.V. born in March 2017 and X.M. born in
May 2020. Mother of the children is M.M.; father of I.V. is W.V., and he is the presumed
father of X.M. although paternity has not been established. Father passed away prior to
X.M.'s birth. In July 2020, the children were removed from mother's care and placed with
appellee Clark pursuant to a "safety plan." Clark was the fiancé of mother's half-brother
Max. They had two children together. Max is also deceased. In August 2020,
Tuscarawas County Job and Family Services filed a complaint alleging the children to be
neglected and dependent. The agency was granted temporary custody of the children
and they remained in Clark's care.
{¶ 3} On September 1, 2020, the children's paternal aunt and uncle, appellants,
the Beyers, filed a motion to intervene and a motion for temporary custody. On
September 18, 2020, Clark filed her own motion to intervene along with a motion for legal
custody of the children.
{¶ 4} On October 15, 2020, mother stipulated to a finding of neglect and
dependency. By judgment entry nunc pro tunc filed October 27, 2020, the trial court
granted both motions to intervene.
{¶ 5} Hearings on the custody motions were held on April 6, and 13, 2021. The
Beyers orally moved to amend their motion for temporary custody to one for legal custody.
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 3
The trial court granted the motion. By judgment entry filed May 27, 2021, the trial court
granted legal custody of the children to Clark, with visitation to the Beyers.
{¶ 6} The Beyers filed appeals and this matter is now before this court for
consideration. The assignment of error in each appeal is identical and is as follows:
I
{¶ 7} "THE COURT ERRED IN DETERMINING THAT THE APPELLANTS
SHOULD NOT BE NAMED THE LEGAL CUSTODIANS OF THE MINOR CHILDREN."
I
{¶ 8} In their sole assignment of error, the Beyers claim the trial court erred in
granting legal custody to appellee. We disagree.
{¶ 9} R.C. 2151.353(A)(3) states the following in pertinent part:
(A) If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
(3) 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 or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings.
{¶ 10} We agree with the following analysis set forth by our colleagues from the
Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-
4818, ¶ 19-22:
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 4
Legal custody is significantly different than the termination of
parental rights in that, despite losing legal custody of a child, the parent of
the child retains residual parental rights, privileges, and responsibilities. In
re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.
2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not
permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130, 2010-
Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses in
making its determination is the less restrictive "preponderance of the
evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751
N.E.2d 552 (7th Dist.2001). "Preponderance of the evidence" means
evidence that is more probable, more persuasive, or of greater probative
value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
Unlike permanent custody cases in which the trial court is guided by
the factors outlined in R.C. 2151.414(D) before terminating parental rights
and granting permanent custody, R.C. 2151.353(A)(3) does not provide
factors the court should consider in determining the child's best interest in
a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in
the absence of best interest factors in a legal custody case, "the legislature
did not intend to require the consideration of certain factors as a predicate
for granting legal custody." Id. at ¶ 16. Such factors, however, are
instructive when making a determination as to the child's best interest. In
re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13.
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 5
The best interest factors include, for example, the interaction of the
child with the child's parents, relatives, and caregivers; the custodial history
of the child; the child's need for a legally secure permanent placement; and
whether a parent has continuously and repeatedly failed to substantially
remedy the conditions causing the child to be placed outside the child's
home. R.C. 2151.414(D).
Because custody determinations " 'are some of the most difficult and
agonizing decisions a trial judge must make,' " a trial judge must have broad
discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We
therefore review a trial court's determination of legal custody for an abuse
of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
An abuse of discretion implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland
County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-738.
{¶ 11} As noted by the trial court in its judgment entry, it was faced "with two
equally suitable placement options" for the children. The trial court did not base its
decision on "who has the 'best' house, or who has the 'best' finances, but what is in the
'best interests' of these children." The trial court determined, "[w]hat is 'best' for these
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 6
children is the continued stability in placement and services. [X.] has only bonded with
Ms. Clark." After making extensive findings, the trial court granted legal custody of the
children to Clark and granted visitation to the Beyers. Both the agency and the children's
guardian ad litem favored legal custody to Clark.
{¶ 12} The Beyers argue as paternal aunt and uncle, they are actual relatives of
the children and Clark is not; therefore, they should have been granted legal custody.
Although Clark is not a blood relative to the subject children, her two older children are
their first cousins. While relative placement may be favored, it is not a sole determining
factor.
{¶ 13} As quoted above, custody determinations " 'are some of the most difficult
and agonizing decisions a trial judge must make,' " and this case is a prime example. All
parties are suitable and want to step up and raise these children. All parties are to be
commended. However, the trial court was required to make a decision, and chose Clark.
A review of the transcript supports the trial court's extensive findings. T. at 26-32, 34-37,
48, 57, 62-66, 68-69, 81-82, 84-85, 88, 92-93, 98-100, 108-109, 113, 130, 142, 152, 161-
162, 182, 191-192, 194, 211-212, 219-220, 222-223, 237, 266, 278-279. We cannot say
the trial court abused its discretion in determining the children would have continued
stability with Clark which is in the best interests of the children.
{¶ 14} We note mother has not lost custody of her children and reunification with
mother is still a possibility. Mother agreed to place her children with Clark under the safety
plan, and Clark lives closer to mother which would aid with visitations if granted in the
future.
Tuscarawas County, Case Nos. 2021-AP-06-0014 & 2021-AP-06-0015 7
{¶ 15} Upon review, based upon a preponderance of the evidence presented, we
cannot say the trial court abused its discretion in granting legal custody to Clark.
{¶ 16} The sole assignment of error is denied.
{¶ 17} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Baldwin, J. concur.
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