In re P.T. , 2012 Ohio 4034 ( 2012 )

[Cite as In re P.T., 2012-Ohio-4034.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
P.T. Case No. 2012 AP 02 0009
ALLEGED DEPENDENT CHILD OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of
Common Pleas, Juvenile Division,
Case No. 2011 JN 00470
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 31, 2012
APPEARANCES:
For Appellants For Appellee
DEREK LOWRY
CRAWFORD, LOWRY & ASSOCIATES
116 Cleveland Avenue NW
Suite 800
Canton, Ohio 44702-1732
Tuscarawas County, Case No. 2012 AP 02 0009 2
Wise, J.
{¶1} Appellants Lewis and Nancy Stratton appeal the decision of the Court of
Common Pleas, Tuscarawas County, which denied their motion for custody of their
great-nephew in a dependency action filed by the Tuscarawas County Department of
Job and Family Services (“TCDJFS”). The relevant facts leading to this appeal are as
follows.
{¶2} The child at the center of this case is P.T., born to Hannah Tenney and an
unknown father in September 2011. Appellant Nancy Stratton is the maternal aunt of
Hannah, and the great aunt of P.T.
{¶3} Hannah Tenney has previously lost custody of three of her children in
TCDJFS cases. Two of these other children, both boys, are in the legal custody of Tom
Brown, their paternal grandfather; the third child, a girl, was ordered into the legal
custody of non-relatives Melissa and Tom Stevens.
{¶4} At the time of P.T.’s birth, he tested positive for cocaine and THC in his
system. Via an ex parte order, TCDJFS took emergency custody pursuant to Juv.R. 6,
and, on September 6, 2011, filed a complaint in the trial court alleging that P.T. was a
dependent child.
{¶5} On September 29, 2011, Appellants Lewis and Nancy Stratton filed a
motion to intervene and a complaint for custody. Following an adjudicatory hearing on
the agency’s complaint on October 5, 2011, the trial court found P.T. to be a dependent
child.
Tuscarawas County, Case No. 2012 AP 0009 3
{¶6} On November 1, 2011, the trial court conducted a dispositional hearing,
including a redress of appellants’ motion for legal custody of P.T. The child’s mother,
Hannah, did not appear for said hearing.
{¶7} On January 6, 2012, the trial court issued a dispositional judgment entry.
Characterizing the overall evidence in the case as a "convoluted collection of
information" that "dealt little with the best interest of [the] child," the court denied
appellants’ request for custody and ordered that the child remain in the temporary
custody of TCDJFS.
{¶8} Appellants filed a notice of appeal on February 3, 2012. They herein raise
the following sole Assignment of Error:
{¶9} “I. THE TRIAL COURTS DENIAL OF THE APPELLANT’S [SIC] MOTION
FOR CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶10} In their sole Assignment of Error, appellants contend that the trial court’s
denial of their motion for custody of P.T. was against the manifest weight of the
evidence. We disagree.
{¶11} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an
abused, neglected, or dependent child, the court may make any of the following orders
of disposition:
{¶12} “ * * *
{¶13} “(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
Tuscarawas County, Case No. 2012 AP 0009 4
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. * * *.”
{¶14} A juvenile court's standard of review in legal custody proceedings is by the
preponderance of the evidence. In re Nice (2001), 141 Ohio App.3d 445, 455. Some
Ohio courts have recognized that “the statutory best interest test designed for the
permanent custody situation may provide some ‘guidance’ for trial courts making legal
custody decisions.” See In re A.F., Summit App.No. 24317, 2009–Ohio–333, ¶ 7, citing
In re T.A., Summit App.No. 22954, 2006–Ohio–4468, ¶ 17. These factors are set forth
in R.C. 2151.414(D)(1), which requires a court to consider the following:
{¶15} “(a) the interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers and out-of-home providers, and any other
person who may significantly affect the child;
{¶16} “(b) The wishes of the child, as expressed directly by the child or through
the child's guardian ad litem, with due regard for the maturity of the child;
{¶17} “(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two-month
period * * *;
{¶18} “(d) The child's need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of permanent custody
to the agency;
{¶19} “(e) Whether any of the factors in division (E)(7) to (11) of this section
apply in relation to the parents and child.”
Tuscarawas County, Case No. 2012 AP 0009 5
{¶20} Furthermore, because custody issues are some of the most difficult and
agonizing decisions a trial judge must make, he or she must have wide latitude in
considering all the evidence and such a decision must not be reversed absent an abuse
of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159,
citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme
Court has also explained: “A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a legitimate
ground for reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273.
Likewise, “[e]very reasonable presumption must be made in favor of the judgment and
the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one
construction, we must give it that interpretation which is consistent with the verdict and
judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.”
In re: M.B., Summit App.No. 21812, 2004–Ohio–2666, ¶ 6, citing Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the fact finder is
free to believe all, part, or none of the testimony of each witness. See State v. Caldwell
(1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, as an appellate court,
we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to
determine whether there is relevant, competent and credible evidence upon which the
fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark
App.No. CA–5758.
Tuscarawas County, Case No. 2012 AP 0009 6
{¶21} In the case sub judice, the trial court, at the dispositional hearing of
November 1, 2011, had before it appellants’ motion for custody of P.T., as well as the
agency’s request that custody of the child be granted either to Tom and Melissa
Stevens or to appellants (Lewis and Nancy Stratton). See Judgment Entry, January 6,
2012, at 2. At the time of the dispositional hearing, the agency had placed the child in
foster care, although not with either the Stevens family or appellants. TCDJFS trial
counsel, at the beginning of the hearing, stated that “neither [the Stevens family nor
appellants] are perfect, but neither of them are inappropriate either, so, um, the court
has to decide, um, which of these two placements [sic] are in the best interest of this
child.” Tr. at 2. However, as indicated in our recitation of facts, the trial court ultimately
overrode the two change of custody options presented by the agency and instead
maintained the child in the temporary custody of TCDJFS. See Judgment Entry,
January 6, 2012, at 2-3.
{¶22} The evidence before the trial court essentially consisted of (1) the
testimony of TCDJFS ongoing caseworker Elizabeth Benedetto, (2) the testimony of
Appellant Lewis Stratton, and (3) the written report of the guardian ad litem, Attorney
Karen Dummermuth.
{¶23} According to Benedetto, both the Stevens family and appellants had
obtained “recommended” ratings on their agency home studies. Tr. at 6. She testified
that appellants’ home has “plenty of room for a child” and that appellants have adequate
income to care for a child. Tr. at 8. Benedetto noted that appellants have maintained a
visitation arrangement with P.T.’s sister, who is in the custody of the Stevens’. Id.Appellants had also outlined a plan for babysitting P.T. while they were at work, utilizing
Tuscarawas County, Case No. 2012 AP 0009 7
the services of Appellant Lewis’ sister. Tr. at 9. Benedetto was asked if she had any
concerns about placement or custody of the child with appellants, to which she
responded:
{¶24} “Um, again, just the mere fact that there, there are no other siblings there
that if, if the siblings, you know, if he was placed I can facilitate as best I can while I’m
involved but once the Agency is out of it, it’s entirely up to the family when those siblings
have contact, so that would pretty much be my only concern and, again, going back to
some of those reports of things, you know, I appreciate people, you know, calling and
telling and reporting things, but sometimes there’s just, it’s a lot of he said, she said
things that I can’t make heads or tails of sometimes.”
{¶25} Tr. at 11-12 (emphasis added).
{¶26} Nonetheless, in terms of a recommendation as to custody, Benedetto
stated “*** at this point based on everything I, I guess I would have to go with Lewis and
Nancy Stratton, um because they don’t have Children Services [sic], there’s no criminal
history, there’s no history of marital issues that I’m aware of, um, and, you know, they
obviously have plenty, plenty of time to devote to [P.T.] as he would be the only child
there ***.” Tr. at 17.
{¶27} Appellant Lewis Stratton, husband of P.T.’s great aunt, testified and
assured the trial court that he would be able to provide for the child’s well-being and that
he would do all he could to facilitate visitation with the child’s siblings. Tr. at 45-46.
However, Lewis effectively conceded that there had been communication problems
between appellants and Tom Brown, who has custody of P.T.’s two brothers:
Tuscarawas County, Case No. 2012 AP 0009 8
{¶28} “We, there was times we would call and we’d leave a message and, uh,
Tom Brown would never get back with us. Uh, we’d call back and leave a message,
and then there was times we would call that, uh, the number was no longer there, in
service.”
{¶29} Tr. at 47.
{¶30} Furthermore, although the details are not completely clear in the present
record, Lewis related that he and Nancy had made a report to children services
authorities in Stark County “regarding Tom Brown and the use of heroin.” Tr. at 61-62.1
{¶31} Attorney Dummermuth’s written GAL report noted that both the Stevens
family’s home and appellant’s home have “a number of positive attributes” and “a
number of negative attributes.” GAL Report at 3. Ms. Dummermuth specifically noted:
{¶32} “Nancy and Lewis would very much like the opportunity to raise a child but
the undersigned has concerns that they are motivated by this desire, not PT’s best
interest. Should PT be placed with Nancy and Lewis Stratton, the undersigned does not
believe PT would have an ongoing relationship with his siblings due to the broken
relationships between the Strattons and the rest of the family. In the previous case,
Nancy and Lewis were very interested in raising all of the children, but this interest has
dwindled and now there is only limited contact with the children or their caregivers. The
undersigned believes that if they were truly interested in the children, not just custody,
they would be in regular communication with someone regarding the children’s welfare,
regardless of the fact that they did not get custody. There is no communication
throughout the week regarding milestones or activities of any of the children.
1
The GAL report suggests that this report was eventually found to be unsubstantiated
by Stark County DJFS. See GAL Report at 2.
Tuscarawas County, Case No. 2012 AP 0009 9
{¶33} “Finally, it appears to the undersigned that Nancy and Lewis have a
pattern of ‘tattle tailing’ (sic) in order to gain a perceived advantage in the court’s eye.
Certainly it is in the best interest of the children to report concerns, but reporting
unfounded rumors suggests a motive other than the best interest of the children.”
{¶34} GAL Report at 3-4. (emphasis in original).
{¶35} Appellants additionally maintain that the judgment entry contains several
misstatements of fact. For example, the trial court found that appellants “do not have
any contact” with P.T.’s brothers in the care of Tom Brown. Judgment Entry at para. 4.
Caseworker Benedetto, however, did testify that appellants had visited with P.T.’s
brothers “maybe six times.” Tr. at 21. The trial court also found that “no doubt [P.T.] has
bonded well with his foster parents.” Judgment Entry at para. 6. However, the only
significant evidence pertaining to the present foster placement was Benedetto’s
statements, in response to a question from the bench, that P.T. "seems to adjust pretty
well” and that the placement family consists of “very nice foster parents.” Tr. at 18.
Additionally, the court suggested "serious drawbacks" to placement with either the
Stevens family or appellants to be "issues of drug use and evidence of instability."
Judgment Entry at para. 8 and 9. We agree with appellants that any evidence regarding
drug use and instability was not related to their home. The court also confused the
identity of one of witnesses by finding in paragraph eleven that the only potential
caregiver to testify was Tom Stevens when, in fact, it was Appellant Lewis Stratton who
testified. See Judgment Entry at para. 11.
{¶36} We note that TCDJFS has not filed a brief in response to this appeal.
App.R. 18(C) states in pertinent part: “If an appellee fails to file his brief within the time
Tuscarawas County, Case No. 2012 AP 0009 10
provided by this rule, or within the time as extended, the appellee will not be heard at
oral argument * * * and in determining the appeal, the court may accept the appellant's
statement of the facts and issues as correct and reverse the judgment if appellant's brief
reasonably appears to sustain such action.”
{¶37} However, even if we were to invoke App.R. 18(C), we would not be
persuaded upon review to substitute our judgment for that of the trial court in assessing
the best interests of the infant child in this case. Despite the generally favorable view of
appellants presented by TCDJFS and Ms. Benedetto, and notwithstanding the apparent
factual misstatements set forth above, the trial court, having heard the testimony, was
unable to ameliorate its concerns that unaddressed issues remained concerning
appellants’ ability to facilitate sibling visitation for P.T. and to overcome the tensions
between the various custodians of the siblings, thus warranting the status quo
maintenance of P.T. in foster placement. In such a situation, we are compelled to rely
on the well-established principle that the trier of fact is in a far superior position to gauge
the demeanor and credibility of the participants to the action. See In re F.M.,
Tuscarawas App.No. 2011 AP 07 0029, 2012–Ohio–1082, ¶ 46, citing State v. DeHass
(1967), 10 Ohio St.2d 230, 227 N.E.2d 212.
{¶38} We therefore hold the trial court’s denial of appellants’ motion for custody
of P.T. at this time was not against the manifest weight of the evidence.
Tuscarawas County, Case No. 2012 AP 0009 11
{¶39} Appellants’ sole Assignment of Error is overruled.
{¶40} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0729
Tuscarawas County, Case No. 2012 AP 02 0009 12
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
P.T. : JUDGMENT ENTRY
:
ALLEGED DEPENDENT CHILD : Case No. 2012 AP 02 0009
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, of Tuscarawas County,
Ohio, is affirmed.
Costs assessed to appellants.
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JUDGES