In re M.A.
Fran Sweeney, 7723 Tylers Place Blvd., #129, West Chester, Ohio 45069-4684, for appellant N.S.
Billy Guinigundo, 5331 South Gilmore Road, Fairfield, Ohio 45014, for A.V.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Department of Job and Family Services
O P I N I O N
HENDRICKSON, J.
{¶ 1} Appellant (Father), appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, granting legal custody of his children, M.A. and N.S., to their
{¶ 2} M.A. and N.S. are the biological children of Father, an undocumented alien. N.S. was born on December 12, 2005, and M.A. was born on April 26, 2008. From their respective dates of birth until August 25, 2009, both M.A. and N.S were in mother‘s care. Mother and Father were not married, and Father did not reside in the home with mother and the children. On August 25, 2009, the Hamilton police removed M.A. and N.S. from their home after it began an investigation into the death of the children‘s five-week-old half brother.1 On that same day, the Butler County Department of Jobs and Family Services, Children Services Division (the Agency), filed complaints alleging that M.A. and N.S. were abused, neglected, and dependent children. The complaint stated that the removal of M.A. and N.S. occurred after it was reported that the children‘s deceased brother was found in a garbage can in the alley beside the children‘s home. At the time of the complaint, it was believed that Father was residing in Guatemala. The children were placed in the temporary custody of Aunt and Uncle. On October 28, 2009, M.A. and N.S. were adjudicated dependent children; the neglect and abuse allegations were withdrawn. Temporary custody of both M.A. and N.S. remained with Aunt and Uncle. The court granted Father supervised visitation.
{¶ 3} The Agency moved for legal custody of M.A. and N.S. on behalf of Aunt and Uncle on October 20, 2009, because it believed Father had agreed to Aunt and Uncle receiving legal custody of the children. In February 2010, Father requested the court continue the hearing on the Agency‘s motion for legal custody, stating that he intended to seek custody of his children. As a result, the court continued the custody hearing and the
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT‘S DECISION TO GRANT LEGAL CUSTODY OF M.A. AND N.S. TO THEIR MATERNAL AUNT AND UNCLE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 6} Assignment of Error No. 2:
{¶ 7} APPLYING THE BEST INTEREST FACTORS UNDER
{¶ 8} For ease of discussion, we address Father‘s assignments of error out of order.
{¶ 9} In his second assignment of error, Father contends that in granting legal custody of the children to Aunt and Uncle, the trial court erred by applying the best interest factors found in
{¶ 10} Father argues that the factors found in
{¶ 11} Father further argues that the best interest factors in
{¶ 12} First, we note that the statute at issue in In re B.S.,
{¶ 13} In In re B.S. at ¶ 18 we stated:
R.C. 3109.04(E)(1)(a) governs the modification of a prior order allocating parental rights and responsibilities. Thus, by its very language,R.C. 3109.04(E)(1)(a) only applies to a modification of a custodial order between the two parents of a child, whether or not the child‘s parents are married. The case at bar involves custodial proceedings in juvenile court between a parent and nonparent.R.C. 3109.04(E)(1)(a) , therefore, does not apply here.
{¶ 15} Turning to the case at bar, we find, contrary to Father‘s assertion, the trial court did not err in applying the best interest factors found in
{¶ 16} Because the best interest of the child is the paramount concern, the juvenile court should consider the totality of the circumstances affecting the best interests of the child. In re Cunningham, 59 Ohio St. 2d 100, 105 (1979); In re Fulton at ¶ 11. Although there is no statutory mandate that the factors in
{¶ 17} Given that those factors expressly referenced in
{¶ 18} In his first assignment of error, Father argues that the trial court erred in awarding legal custody of M.A. and N.S. to Aunt and Uncle. He asserts that the trial court‘s
{¶ 19} Generally, an appellate court reviews a juvenile court‘s custody decision for an abuse of discretion. In re A.C., 12th Dist. No. CA2006-12-105, 2007-Ohio-3350, ¶ 15. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). The discretion afforded to a juvenile court in custody matters “should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record.” In re A.W.-G., 12th Dist. No. CA2003-04-099, 2004-Ohio-2298, ¶ 6, quoting Miller v. Miller, 37 Ohio St. 3d 71, 74 (1988). Accordingly, an appellate court will not reverse a judgment as being against the manifest weight where the “award of custody is supported by a substantial amount of credible and competent evidence.” In re T.M., 12th Dist. No. CA2007-01-019, 2007-Ohio-6034, ¶ 28, citing Davis v. Flickinger, 77 Ohio St. 3d 415, 418 (1997).
{¶ 20} A review of the record indicates that the juvenile court considered all of the factors relevant to the best interest of the children, including the applicable factors set forth in
{¶ 21} Further, the evidence demonstrated that the children are doing well in Aunt and Uncle‘s care. At the time of the hearing, the children had been in the temporary custody of Aunt and Uncle for 1 year and 21 days. It appears that in this time a positive bond has formed between Aunt and the children. Aunt testified that she was bonded to both M.A. and N.S. In fact, M.A. refers to her as “mom“. Aunt further testified that she and Uncle love M.A. and N.S., want custody, and want to provide a good life for the children. Aunt further explained that M.A. and N.S.‘s two older sisters also live in her home under the custody of another family member. The ongoing caseworker with the Agency, Scott Cole, testified that “the children have been placed with [Aunt and Uncle] for a year now, they are bonded, they‘re with their two older sisters and I feel like if they‘re removed from there right now it would probably be more traumatic for them.”
{¶ 22} There was also testimony that both M.A. and N.S. are bonded to Father. Kelly Hurley, a family resource worker with the Agency, testified that N.S. was probably more bonded to Father than M.A. However, the record indicates that Father‘s attendance at his scheduled visitation has been sporadic. He attended 19 supervised visits and cancelled 15 visits. In addition, Hurley began transporting the children to the visits in April 2009 so that visitation could occur on more regular basis. Although the Agency often accommodated Father‘s work schedule, he still missed several visits. According to Hurley, although Father made improvements such as letting the Agency know when he would miss a visit, she explained that his attendance was still a consistent problem throughout the case. Work was often cited as the reason for Father‘s absence.
{¶ 23} The record also demonstrates that each child has adjusted well to Aunt and Uncle‘s home. M.A. and N.S. have their own rooms at the home. N.S. attends a nearby pre-school. Aunt testified that N.S. loves school, and Aunt stated she often helps N.S. with her school work. During the day while Aunt and Uncle are at work, M.A. is cared for by a family
{¶ 24} In contrast, Father was unsure where N.S. would go to school if placed in his custody. As to child care, Father stated that his boss‘s wife would care for the children while he was at work. The Agency never met this proposed babysitter. There was also concern as to how Father would transport the children to school or to the babysitter‘s home given that Father does not have a valid driver‘s license or car seats for the children.
{¶ 25} The Agency and the guardian ad litem also expressed concerns over Father‘s living arrangements as housing was an on-going concern throughout this case. According to Father‘s case plan, Father was to maintain stable housing. At the time of the hearing, Father lived in a home with five other males. The Agency was unable to complete background checks on any of the occupants of the home, including Father, because they did not have social security numbers. Consequently, Father‘s home study was denied. Father himself admitted that this home was unsuitable for his children. Although Father received a list of possible houses and apartments that might be appropriate for the children, Father did not pursue housing from any place on this list. Instead, Father sought to purchase a mobile home. This proved to be difficult because the seller of the home refused to sell it to an undocumented alien. Father testified that he is not working towards becoming a legal resident of the United States, but rather, he was going to purchase the mobile home under another person‘s name. When questioned who this person was, Father was only able to provide the man‘s first name. Father failed to complete this part of the case plan as he does not have appropriate housing for the children at this time.
{¶ 26} Father suggests that he would be able to provide better support and care for the children because he has more disposable income than Aunt and Uncle. The evidence presented at the hearing suggests otherwise. Cole testified that Aunt and Uncle are meeting the children‘s basic needs. Although Aunt and Uncle have sought out charitable
{¶ 27} There were also concerns regarding Father‘s mental and physical health. Father participated in individual counseling sessions focusing on domestic violence based on his prior arrest and conviction for domestic violence against the children‘s mother. Father‘s progress in this program was reported as “good” and “guarded.” There were also concerns that Father may abuse alcohol. Father indeed tested positive for alcohol metabolites on two occasions. Additionally, two different caseworkers reported finding empty beer cans and bottles on the porch at Father‘s home. Father testified, however, that he only drinks alcohol socially.
{¶ 28} As to the children‘s mental and physical health, there was testimony regarding N.S.‘s dental problems. The record indicates that Aunt obtained dental care for N.S. and limited N.S.‘s consumption of sweets and other junk food. Father, on the other hand, reportedly continued to provide N.S. with sweets after being told that N.S. needed to avoid these foods. Father asserts that the court improperly weighed this factor as there was evidence that N.S. was struggling with the absence of her mother. Father suggests that his home would be a “sanctuary from the turmoil” at Aunt and Uncle‘s house due to mother‘s
{¶ 29} Both Father and Aunt testified that they would allow the other to have contact and visitation with M.A. and N.S. Father, however, contends that Aunt will not in fact facilitate visitation between him and the children because she has been negative towards him. Despite any negative attitude towards Father, it does not appear from the record that Aunt has previously denied Father visitation. Rather, Aunt initially facilitated visits between Father and the children at her home, and when visits occurred outside of Aunt‘s home, Aunt and Uncle often transported the children to visit Father. Additionally, the guardian ad litem stated in her report that she believed both Father and Aunt‘s statements that they would facilitate visitation.
{¶ 30} Finally, Father asserts that Aunt and Uncle may relocate to California to be near other relatives. He suggests that this fact favors placing the children in his care. There is no evidence to suggest that Aunt and Uncle may move to California. Aunt testified that her mother and sister live in California, but that she has never thought about moving there. As noted by the juvenile court, although Father testified that he intends to reside in the area, he was previously deported to Mexico in 2008. Father testified that he was deported after pleading guilty to a domestic violence charge.
{¶ 31} After a thorough review of the record, we find the trial court‘s decision granting legal custody of the children to Aunt and Uncle was supported by a substantial amount of credible and competent evidence. As noted above, since being placed with Aunt and Uncle over a year ago, M.A. and N.S have adjusted well. The children have their own rooms, M.A.
{¶ 32} Father‘s first assignment of error is overruled.
{¶ 33} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.