In re A.L.M.
| Citation | 2022 Ohio 3347 |
| Decision Date | 23 September 2022 |
| Docket Number | 29472 |
| Court | Ohio Court of Appeals |
| Parties | IN RE: A.L.M. & A.S. |
Appeal from Common Pleas Court - Juvenile Division Trial Court Case Nos. G-2020-1448-0F, 0K; G-2020-1450-0E, 0K
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No 0069384, Assistant Prosecuting Attorney, Attorney for Appellee, MCCS
P.J CONBOY, II, Atty. Reg. No. 0070073, Attorney for Appellee Father J.N.
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Appellant, Mother
TRAVIS KANE, Atty. Reg. No. 0088191, Attorney for Appellee, Father R.M.
{¶ 1} Appellant Mother appeals from the judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which awarded legal custody of her two daughters, A.L.M. and A.S., to their fathers R.M. and J.N., respectively. For the reasons that follow, the trial court's judgment will be affirmed.
{¶ 2} In early April 2020, Mother left three of her four young children (aged 6 years, 5 years, and 10 months) home alone all night while she evidently partied. Mother's absence was reported to Montgomery County Children Services ("MCCS"), which came and took the children. When Mother returned home the next morning, the children were gone. On April 6, 2020, MCCS filed a complaint alleging abuse, neglect, and dependency and, following hearings, interim temporary custody and then temporary custody of A.L.M. and A.S. was granted to their fathers. Criminal charges were also filed against Mother.
{¶ 3} To be reunited with her children, Mother was given a case plan with the following objectives: (1) get drug, alcohol, and mental health assessments; (2) attend all group and individual counseling and therapy sessions; (3) submit to random drug and alcohol screenings and demonstrate sobriety; (4) maintain safe and stable housing; (5) maintain verifiable income; (6) engage in weekly visitation with the children; (7) comply with all agency visits; and (8) comply with the child endangering investigation. According to testimony at trial from MCCS, Mother was mostly successful with her case plan, although there was other evidence presented to the contrary.
{¶ 4} In March 2021, the children's fathers R.M. and J.N. filed separate motions for legal custody of their daughters. Around that same time, MCCS filed a motion for reunification, asking that Mother be given custody of her children. As a result of the competing motions, a hearing was held on June 24, 2021, at which the magistrate heard testimony from Mother, Robert Brun (MCCS caseworker), and Christine Powers, the guardian ad litem ("GAL"). The court also considered the GAL report.
{¶ 5} Even though MCCS advocated for the reunification of A.L.M. and A.S. with their mother, the magistrate followed the recommendation of the GAL and granted legal custody of the girls to their fathers on July 13, 2021. Mother filed objections to the decision, but the trial court overruled the objections and adopted the magistrate's decision.
{¶ 6} Mother has appealed and raises a single assignment of error.
THE TRIAL COURT DID NOT ERR IN GRANTING LEGAL CUSTODY TO THE FATHERS OF A.L.M. AND AS.
{¶ 7} Mother asserts that the juvenile court erred when it awarded legal custody to the fathers of A.L.M. and A.S. instead of reunifying the girls with her and their other siblings.
{¶ 8} If a child is adjudicated a "dependent child," the court may grant 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[.]" R.C. 2151.353(A)(3); In re M.W., 2d Dist. Montgomery No. 28440, 2019-Ohio-5012, ¶ 5. An award of legal custody gives the custodian the right to have physical care and control of the child, to determine where the child lives, "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).
{¶ 9} A custody determination under R.C. 2151.353 is made in accordance with the "best interest of the child" standard described in R.C. 3109.04(F)(1). The factors which must be considered include things like the "parents' wishes; the child's wishes, if the court has interviewed the child; the child's interaction with parents, siblings, and any other person who may significantly affect the child's best interest; adjustment of the child to home, school, and community; and the mental and physical health of all involved persons." R.C. 3109.04(F)(1); In re M.J.S., 2d Dist. Montgomery No. 29292, 2022-Ohio-1114, ¶ 9. Additional factors include whether the parent has failed to make child support payments; whether the parent has a criminal history involving child abuse or neglect; whether the residential parent has denied parenting time; and whether either parent plans to move outside of the state. Id. R.C. 2151.414(D)(1) provides a similar, non-exhaustive list.
{¶ 10} (Citations omitted.) In re A.W., 2d Dist. Montgomery No. 21309, 2006-Ohio-2103, ¶ 6, citing In re K.S., 2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶ 15.
{¶ 11} We review the trial court's judgment for an abuse of discretion. In re M.W. at ¶ 5. Abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 12} At the June 2021 custody hearing, the magistrate first heard from Robert Brun, the MCCS caseworker, who testified on direct examination that Mother had completed treatment and parenting classes, was employed, was doing well, and had substantially completed the case plan. Accordingly, Brun stated that the position of MCCS was that reunification (with six months of protective supervision) was in the best interest of the children.
{¶ 13} On Brun's cross-examination and during Mother's testimony, however, many facts came to light that countered MCCS's position. First, Brun admitted that Mother had had several previous Children Services referrals, including one incident where she dropped a child off on her grandmother's doorstep, rang the doorbell, and then drove off; child endangering charges followed. Another referral alleged Mother was leaving the children with people (including other children) to go party. Finally, Mother was referred to Children Services in 2019 after testing positive for marijuana at the birth of her son.
{¶ 14} In addition to the many Children Services referrals, testimony was elicited that Mother had failed to follow through on treatment as required by her case plan. Testimony indicated that since September 2020, Mother had not gone to any group treatment sessions. Further, between January and ...
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