In re A.L.M., 29472

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtEPLEY, J.
Citation2022 Ohio 3347
PartiesIN RE: A.L.M. & A.S.
Docket Number29472
Decision Date23 September 2022

2022-Ohio-3347

IN RE: A.L.M. & A.S.

No. 29472

Court of Appeals of Ohio, Second District, Montgomery

September 23, 2022


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.

OPINION

EPLEY, J.

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{¶ 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.

I. Facts and Procedural History

{¶ 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

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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.

II. Issue on Appeal

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

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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...

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