IN RE: J.T.
C.A. CASE NO. 26839
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 19, 2016
[Cite as In re J.T., 2016-Ohio-602.]
T.C. NO. 2014-7957 (Civil аppeal from Common Pleas Court, Juvenile Division)
Rendered on the 19th day of February, 2016.
MICHELE D. PHIPPS, Atty, Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee Montgomery County Children‘s Services
JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386 Talbott Tower, Dayton, Ohio 45402 Attorney for Appellee Father
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Appellant Mother
DONOVAN, P.J.
{¶ 1} Defendant-appellant T.T. (hereinafter “Mother“) appeals a decision of the Montgomery County Court of Common Pleas, Juvenile Division, which adopted the
{¶ 2} The magistrate‘s decision awarding Father legal custody of J.T. was issued on April 17, 2015. On August 13, 2015, the trial court issued its judgment adopting the decision of the magistrate. Mother filed a timely notice of appeal with this Court on September 11, 2015.
{¶ 3} On September 7, 2014, at approximately 9:16 p.m., Officer Jerome Klemmensen of the Moraine Police Department responded to a domestic violence complaint involving J.T. and Mother at the trailer park where they lived together. Upon his arrival, Officer Klemmensen stood outside Mother‘s trailer for a moment before announcing his presence. Officer Klemmensen testified that he heard crying and yelling as he stood outside. Specifically, Officer Klemmensen testified that he heard J.T. say, “Why are you always hitting me?” Officer Klemmensen testified that he heard Mother respond, “Shut up, bitch.” Officer Klemmensen then knocked on the door. J.T. answered the door and let him inside. Officer Klemmensen described the conditions insidе the trailer as “horrible” and a “fire hazard.” Officer Klemmensen testified that the trailer was filled with debris and furniture, and entry into some of the rooms was blocked with boxes and trash. J.T. was thirteen years old at this time.
{¶ 4} Officer Klemmensen informed Mother that there had been a complaint of domestic violence that he had been sent to investigate. Officer Klemmensen testified that Mother ordered him to get out of her trailer. Mother also told Officer Klemmensen that there was no problem and that J.T. was lying. Officer Klemmensen took J.T. outside the trailer and asked her what happened. J.T. informed Officer Klemmensen that Mother
{¶ 5} Shortly thereafter, MCCS Caseworker Melanie Hennessey visited Mother at her trailer. Hennessey testified that the interior of the trailer was very cluttered with trash and furniture and there was very little space in which to move. Hennessey further testified that upon inspection, the kitchen was so cluttered that no one could prepare food in that area of the trailer. Hennessey testified that Mother informed her that she wanted J.T. to come back to her home. Hennessey told Mother that she had to improve the condition of her trailer before J.T. would be allowed to move back in with her. Hennessey also testified that Mother was completely against J.T. living with Father.
{¶ 6} Hennessey returned to Mother‘s trailer approximately a week later on September 26, 2014. Hennessey noted that Mother had removed a significant amount of the debris and furniture from the trailer. As a result, Hennessey testified that the trailer was in a livable condition. During the second visit, Hennessey also suggested that Mother and J.T. begin attending a Parent-Teen Conflict Program in order to address their difficulties with each other. Initially, Mother seemed receptive to attending the program so Hennessey made a referral for them. Based on Hennessey‘s positive report, J.T. was permitted to return to Mother‘s trailer.
{¶ 7} In early October, 2014, Hennessey returned to Mother‘s trailer again to check
{¶ 8} On October 20, 2014, Moraine Police Officer John Howard was dispatched to a Wal-Mart store at 1701 West Dorothy Lane in Moraine, Ohio, in order to investigate a shoplifting complaint. Upon his arrival at the store, Officer Howard spoke with a loss prevention employee who statеd that she witnessed Mother, who was accompanied by J.T., shoplifting store merchandise. The theft was also recorded by video surveillance inside the store. In addition to capturing the theft, the video depicted Mother and J.T. arguing as they tried to leave the store. Officer Howard testified that J.T. told him that they were arguing because Mother had asked her to carry some of the stolen merchandise out of the store, but J.T. had refused. Mother was subsequently arrested for shoplifting and child endangering. The police сontacted Father, and J.T. was released into his custody. J.T. remained in Father‘s temporary custody for only a few days. Upon her release from jail, Mother regained custody of J.T., and the two returned
{¶ 9} In November of 2014, MCCS arranged a meeting in order to discuss placement options for J.T. with Mother and Father. Hennessey attempted to discuss issues with respect to the cleanliness of Mother‘s home and the constant arguing between J.T. and Mother. Hennessey also attempted to get Mother to sign a safety plаn that would allow J.T. to live with Father or another appropriate person until Mother chose to address her personal issues. Mother, however, became angry and blamed Father for all of the problems surrounding J.T. Mother refused to sign the safety plan and left the meeting, taking J.T. with her.
{¶ 10} Thereafter, on December 10, 2014, MCCS filed a dependency complaint for J.T. with alternative dispositions of protective supervision to MCCS or temporary custody to Mother‘s sister, A.C. On March 2, 2015, Father filed a motion for alternаtive disposition of temporary custody of J.T. In the alternative, Father requested that temporary custody of J.T. be granted to A.C.
{¶ 11} The first half of an adjudicatory hearing was held before a magistrate on March 3, 2015. At the conclusion of the hearing, the magistrate adjudicated J.T. as a dependent child and placed her in the temporary custody of Father, with interim protective supervision granted to MCCS. The magistrate also ordered that a guardian ad litem (GAL) and an attorney be appointed to reрresent J.T. The adjudicatory hearing was resumed on April 7, 2015. Mother was present in the courthouse, but she refused to enter the courtroom and participate in the proceedings. Mother‘s counsel informed the magistrate that the attorney-client relationship had broken down, and she asked for a continuance. The magistrate denied the motion for continuance, and the hearing was
{¶ 12} On April 17, 2015, the magistrate issued a decision in which it ordered that Father be granted temporary custody of J.T., with protective supervision to MCCS. The magistrate also ordered that Mother receive supervised visitation in accordance with the recommendations of J.T.‘s therapist. Mother filed a general objection to the magistrate‘s decision on April 29, 2015. On July 23, 2015, Mother filed supplemental objections to the magistrate‘s decision. On August 12, 2015, Father filed his response to Mother‘s supplemental objections. One day later on August 13, 2015, the trial court adopted the magistrate‘s decision in its entirety, and J.T. remained in the temporary custody of Father.
{¶ 13} It is from this decision that Mother now appeals.
{¶ 14} Mother‘s sole assignment of error is as follows:
{¶ 15} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED THE OBJECTIONS TO THE MAGISTRATE‘S DECISION BY FAILING TO PROPERLY CONSIDER THE MANDATORY FACTORS, AND BY FAILING TO CONDUCT AN INDEPENDENT REVIEW OF THE RECORD.”
{¶ 16} In her first assignment, Mother contends that the trial court abused its discretion by failing to properly consider all of the relevant statutory factors before granting temporary custody of J.T. to Father. Specifically, Mother argues that the trial court did not cоnsider all of the factors in
{¶ 17} When a juvenile court rules on objections to a magistrate‘s decision, “the сourt shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Juv.R. 40(D)(4)(d).
{¶ 18} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Best-Interest Analysis
{¶ 19} A juvenile court has broad discretion in the disposition of an abused,
{¶ 20} Where an award of custody is supported by substantial competent, credible evidence in the record, that award will not be reversed as being against the manifest weight of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
{¶ 21}
- The wishes of the сhild‘s parents regarding the child‘s care;
- If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
- The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
- The child‘s adjustment to the child‘s home, school, and community;
- The mentаl and physical health of all persons involved in the situation;
- The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; - Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; * * *;
- Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
- Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{¶ 22} On appeal, Mother argues that the trial court failed to consider several of the factors in
{¶ 23} Significantly, Hennessey testified that J.T. is very calm and relaxed with Father. Hennessey testified that J.T. and Father converse well together and joke around with each other. Unlike at Mother‘s house, there is no yelling or name-cаlling when J.T. and Father are together. The record establishes that J.T. and Father possess a positive bond with one another, and Father has stated his willingness to take custody of her. See
{¶ 25} At the time of the hearing on April 7, 2015, J.T. had resided in Father‘s home for approximately one month. Hennessey testified that based upon her observations, J.T. had adjusted very well to living in Father‘s house. Hennessey testified that she performed an inspection of Father‘s house and found it to be safe, clean, and well-maintained. J.T. shares a room with another child, but she has her own bed in which to sleep.
{¶ 26} Additionally, Hennessey testified that J.T. was also showing significant improvement in school since the move. When J.T. was living with Mother, her school attendance was sporadic, and when she did go to school, she was often late. Hennessey testified that while she was living with Mother, J.T. would miss several consecutive days of school, thereby resulting in poor grades. J.T. also reported that she had trouble doing her homework because Mother would often interrupt her and make her perform chores and clean the trailer. J.T. also informed Hennessey that Mother would often wake her up in the middle of the night to perform chores around the trailer. Hennessey testified that Mother‘s trailer was “extremely cluttered” and not a “healthy environment for a child [J.T.]‘s age.”
{¶ 28} No evidence was adduced that any member of Father‘s household suffered from any type of physical or mental problems. See
{¶ 29} Father reported that while he had substance abuse issues in the past, he was currently attending a weekly meeting to help reinforce his sobriety. Moreover, Father completed a rehabilitation program at NOVA House on March 17, 2015. Father was regularly drug-tested while at NOVA House, and he always tested negative.
{¶ 30} Mother also argues that Father has a child support arrearage, but has reported several different figures. See
{¶ 32} Mother also argues that the trial court failed to consider her report that Father was mentally and physically abusive to her while they were married. Mother further asserts that the trial court ignored the fact that Father has a criminal history, namely thаt he had been convicted of misdemeanor assault offense involving another woman. Hennessey testified that Father had successfully completed probation or community control for the assault conviction. Hennessey also testified that Father had been incarcerated a few years back for a drug-related conviction and was on federal parole at the time of the hearing. The record establishes that the trial court considered Father‘s entire criminal record befоre awarding him custody of J.T. Moreover, there have never been any accusations that Father has mistreated or been abusive towards J.T. Conversely, Mother has been convicted for domestic violence against J.T. Mother also attempted to coerce J.T. into shoplifting clothing items from Wal-Mart. J.T. reported to Hennessey that Mother regularly slapped her and called her names. Mother failed to
{¶ 33} A court must make its custody decision in accordance with the best interests of the child. In re G.F., 2d Dist. Montgomery No. 24193, 2011-Ohio-1823, ¶ 16. The trial court concluded, based upon the evidence presented, that it was in J.T.‘s best interest to award temporary custody of her to Father. In addition to the testimony presented at the hearing that we have already discussed, we note that the guardian ad litem filed a detailed report in this case reсommending temporary custody be awarded to Father. Upon review, we conclude that the record contains substantial competent, credible evidence supporting the trial court‘s decision finding the award of temporary custody to Father to be in J.T.‘s best interests.
Mother‘s Visitation
{¶ 34} Mother also argues that the trial court abused its discretion when it ordered that Mother could not have visitation with J.T. until her therapist deemed it appropriate. Specifically, Mother asserts that this was error because the thеrapist did not testify nor submit a report. Mother also points out that no evidence was submitted regarding the therapist‘s qualifications.
{¶ 35} We will not reverse a trial court‘s decision on a motion for modification of visitation rights absent an abuse of discretion. Quint v. Lomakoski, 167 Ohio App.3d 124, 2006-Ohio-3041, 854 N.E.2d 225, ¶ 12 (2d Dist.). When applying the abuse of discretion standard of review, we must not substitute our judgment for that of the trial court. In re Jane Doe I, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991). We must
{¶ 36}
{¶ 37} As previously discussed, Mother and J.T. had a very strained and volatile relationship. Mother has been convicted for domestic violence against J.T. Mother attempted to coerce J.T. into shoplifting clothing items from Wal-Mart. J.T. reported to Hennessey that Mother regularly slapped her and called her names. Mother failed to provide a suitable home for J.T. J.T. told Hennessey that she and Mother argued constantly when they live together. J.T. stated that she did not want any visitation or
{¶ 38} Hennessey testified that Mother blames J.T. “for a lot of things.” Hennessey suggested that any visitation between J.T. and Mother be supervised to insure that the interaction is appropriate. The GAL informed the trial court that any visitation between Mother and J.T. should be supervised by a counselor until their relationship improves.
{¶ 39} The evidence adduced at the hearing establishes that since J.T. began living with Father, her grades and school attendance have significantly improved. In fact, the evidence establishes that J.T.‘s entire outlook on life has become better. Accordingly, the trial court‘s order that Mother cannot have visitation with J.T. until her therapist deems such contact appropriate is supported by competent, credible evidence and was not an abuse of discretion.
Child Support Order
{¶ 40} Lastly, Mother argues that it was error for the trial court to order her to pay Father child support in the amount of $50.00 per month. Mother also contends that the trial court erred when it awarded Father the dependency exemptiоn for J.T. for tax purposes.
{¶ 41} A “trial court‘s decision regarding child support obligations falls within the discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Johnson v. McConnell, 2d Dist. Montgomery No. 24115, 2010–Ohio-5900, ¶ 13. When modifying a child support order, a trial court must follow the procedures set forth in
{¶ 42} In the instant case, the trial court ordered Mother to pay $50.00 per month in child support to Father. Althоugh she initially challenged the amount of the child support award in her brief, Mother failed to provide any further argument regarding how the trial court abused its discretion by ordering her to pay the statutory minimum amount. See
{¶ 43} Mother‘s sole assignment of error is overruled.
{¶ 44} Mother‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
James S. Armstrong
Christopher A. Deal
Hon. Nick Kuntz