In re M.S., 29441

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, J.
Citation2022 Ohio 3348
PartiesIN RE: M.S. and K.B
Docket Number29441
Decision Date23 September 2022


IN RE: M.S. and K.B

No. 29441

Court of Appeals of Ohio, Second District, Montgomery

September 23, 2022

Appeal from Common Pleas Court-Juvenile Division Trial Court Case Nos. G-2018-004061-0F,0I and G-2019-002912-0F,0I

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee, Montgomery County Children Services

TRAVIS KANE, Atty. Reg. No. 0088191, Attorney for Defendant-Appellant, Father




{¶ 1} Father appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which awarded legal custody of his children to their paternal grandmother. In support of his appeal, Father contends that the decision to award legal custody to paternal grandmother was not in the best interest of his children. Based on our review of the record, we see no abuse of discretion in the trial court's ruling. Accordingly, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} Father is the biological father of siblings M.S. and K.B., who are currently nine and seven years old. Before Montgomery County Children Services ("MCCS") became involved with the children, M.S. was in the custody of Father and K.B. was in the custody of the children's biological mother ("Mother").

{¶ 3} On August 15, 2018, MCCS filed a dependency complaint regarding M.S. when he was five years old, due to concerns of physical abuse occurring at his home. At the time the complaint was filed, M.S. was living with Father and Father's girlfriend, D.K., and with D.K.'s child, S.K. The complaint was filed because MCCS learned that D.K. and Father hit S.K. with a belt as a form of discipline. MCCS became aware of this information after S.K. presented at the hospital with linear bruising on her body. During MCCS's investigation of the matter, M.S. reported that both Father and D.K. had hit him with a belt as well. After the dependency complaint was filed, M.S. was placed in the temporary custody of his paternal grandmother, S.G., as the whereabouts of M.S.'s mother was unknown. On October 5, 2018, the trial court adjudicated M.S. a dependent


child and ordered M.S. to remain in the temporary custody of S.G.

{¶ 4} As for K.B., on July 18, 2018, K.B. was placed in the emergency custody of the Oklahoma Department of Human Services ("ODHS") when she was just under three years old. ODHS obtained emergency custody due to Mother's abandoning K.B. and K.B.'s half-sibling, A.B., at a family friend's house. On March 11, 2019, the District Court of Tulsa County adjudicated K.B. and A.B. as deprived children and awarded ODHS temporary custody of the children. Because it was later determined that K.B.'s mother and father resided in Montgomery County, Ohio, the District Court of Tulsa County made contact with Montgomery County's Juvenile Court Division in order to discuss transferring jurisdiction of the matter per the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). After the courts discussed the matter, the District Court of Tulsa County filed an order transferring jurisdiction to the trial court herein. The trial court accepted jurisdiction pursuant to the UCCJEA and then granted temporary custody of K.B. and A.B. to MCCS and then to S.G.

{¶ 5} On June 28, 2019, and July 30, 2019, MCCS filed motions for M.S. and K.B. to be placed in the legal custody of S.G. On October 9, 2019, the trial court awarded S.G. legal custody of the children's half-sibling, A.B. Thereafter, on December 13, 2019, and June 8, 2020, MCCS filed additional motions requesting that the trial court award S.G. legal custody of M.S. and K.B.

{¶ 6} The trial court held hearings on the legal custody motions on March 10 and 22, 2021. The witnesses who testified at the hearings were S.G., MCCS caseworker Deja Williams, Mother, and Father. Because Father wants custody of the children and


is the only party appealing from the trial court's legal custody determination, we will only discuss the testimony that is relevant to Father's appeal. The following is a summary of the relevant testimony of each witness.

S.G.'s Testimony

{¶ 7} S.G. is the paternal grandmother of M.S. and K.B. According to S.G., M.S. and K.B. refer to her as "Mama." Hearing Tr., Vol. I, p. 31. S.G. testified that in addition to caring for M.S. and K.B., she and her husband care for four other children. Those children include A.B. (of whom S.G. received legal custody in October 2019), S.G.'s two teenage stepsons, and S.G.'s maternal grandson. S.G. testified that her husband is a truck driver who owns his own company and that they have sufficient income to provide for all the children's needs. S.G. described her home as a three-bedroom trailer containing bunk-bed sets so that each child has his or her own bed. S.G. also testified that MCCS conducted and approved a home study at her residence.

{¶ 8} With regard to M.S. and K.B., S.G. testified that both children were doing great in school. According to S.G., the children were on target with their grade level and were not on individualized education plans. S.G. indicated that M.S. and K.B. were not up to date on their vaccinations and medical/dental appointments when they first came into her care, but that she had since been able to bring them up to date on everything. S.G. further testified that she had taken M.S. and K.B. to Butler County Behavioral Services, where counselors advised her that the children did not have any issues that required counseling. S.G., however, testified that the children did have occasional talks


with their school counselor, and that the school counselor had told S.G. that she could schedule counseling sessions in the future to make sure that the children continued to do well.

{¶ 9} Continuing, S.G. testified that Father and Mother are deaf and that, in 2020, she was ordered by the court to have M.S. and K.B. attend American Sign Language ("ASL") classes. S.G. testified that enrollment in the classes was to be handled by MCCS and that the agency had referred her to multiple places that could not offer classes due to the COVID-19 pandemic and due to the children's ages. S.G. testified that she was then taking a remote ASL class for adults via Zoom, during which the children sat and learned sign language with her.

{¶ 10} With regard to visitation, S.G. testified that she had and would continue to have an open-door policy when it came to Father's and Mother's visiting the children in her home. S.G. testified that Father's visits had been inconsistent and, until recently, Father had only been interested in visiting M.S. S.G. testified that Father treated M.S. like an only child and that Father had just started interacting with K.B. in the previous four or five months. As a result, S.G. testified that K.B. was not as close to Father as M.S.

{¶ 11} S.G. also testified that Father brought his girlfriend, D.K., when he visited the children. S.G. testified that she had no problem with D.K.'s being at the visits as long as there was no controversy between D.K. and Father. S.G. testified that just a few weeks before the custody hearing, she had had to kick Father and D.K. out of her home during a visit due to Father's physically abusing D.K. in front of the children. S.G. testified that the children told her that D.K. had called one of the children a "bitch" and that Father


had punched and kicked D.K. for speaking to the children in such a manner. S.G. testified that, although she did not witness the incident herself, she observed that D.K.'s tooth had been chipped and that the bridge of D.K.'s nose was bleeding and swollen. S.G. reported the incident to MCCS and to the police, but D.K. did not press any charges against Father. S.G. testified that D.K. and Father were still in a relationship and that D.K. showed no interest in M.S. or K.B. S.G. also testified that D.K. had had her own child taken away by MCCS.

{¶ 12} In addition to Father's hitting D.K., S.G. testified that Father had hit her on three occasions. S.G. testified that the third time Father hit her, she decided to report the incident to the police and to press charges against Father. As a result, S.G. testified that Father had a warrant for his arrest at the time of the hearing. When asked to describe Father's temperament, S.G. testified that Father got mad when he did not get his way and that "he flew off the handle" when she asked him how he planned on getting his children back. Hearing Tr., Vol. I, p. 78.

Deja Williams's Testimony

{¶ 13} Deja Williams was the MCCS caseworker assigned to M.S.'s and K.B.'s cases. Williams testified that S.G. had cared for M.S. since March 2018 and K.B. since July 2019. Williams also confirmed that S.G. had legal custody of M.S. and K.B.'s half sibling, A.B. Williams testified that both M.S. and K.B. had told her that they would like to continue living at S.G.'s house, where they can still have visits with Father and their older half-sibling.


{¶ 14} Williams testified that she had no concerns with S.G.'s home; she had visited the home and conducted a home study, which was approved. According to Williams, S.G.'s home was appropriate, clean, and had sufficient space and beds for all the children. Williams also testified that there was always food in the house and that S.G. and her husband had the financial means to provide for all the children.

{¶ 15} Continuing, Williams testified that neither child had any special medical needs and that S.G. kept her up to date on when the children had medical or dental appointments. Williams testified that, in 2020, the trial court had ordered M.S. and K.B. to take ASL classes and that she had worked on trying to get the children enrolled in a sign language program. Specifically,...

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