In re M.W., 29413

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtTUCKER, P.J.
Citation2022 Ohio 2054
PartiesIN RE: M.W., JR.
Decision Date17 June 2022
Docket Number29413

2022-Ohio-2054

IN RE: M.W., JR.

No. 29413

Court of Appeals of Ohio, Second District, Montgomery

June 17, 2022


Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. G-2019-002613-0J, 0N

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Appellee, Montgomery County Children Services

ALANA VAN GUNDY, Atty. Reg. No. 0100651, Attorney for Appellant, Father

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Appellee, Mother

OPINION

TUCKER, P.J.

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{¶ 1} Father appeals from the trial court's judgment entry overruling his objections to a magistrate's decision and awarding Mother legal custody of the parties' minor child.

{¶ 2} Father contends the trial court erred in finding that reunifying Mother with the child was in the child's best interest. Based on our review of the record, we see no abuse of discretion in the trial court's ruling. Accordingly, the trial court's judgment will be affirmed.

I. Background

{¶ 3} Montgomery County Children Services (MCCS) filed a June 2019 neglect and dependency complaint regarding Mother's two children, M.W. and G.B. At the time of the complaint, M.W. was nearly four years old and G.B. recently had turned five. Mother and Father are the biological parents of M.W. Mother's other child, G.B., has a different father. At the time of the complaint, both children resided with Mother. MCCS became involved after Mother began leaving the children with Father or other individuals unannounced for indeterminate periods of time without any reliable way for Mother to be contacted.

{¶ 4} Following an August 2019 dependency and neglect adjudication, an award of temporary custody was made to a maternal cousin. Father later obtained interim temporary custody of both children. Thereafter, Mother and Father filed competing legal-custody motions. Citing both parties' satisfaction of case-plan objectives, MCCS later moved for reunification of the children with Mother or, alternatively, an award of legal

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custody to Father. The various custody motions proceeded to evidentiary hearings before a magistrate on February 11, 2021 and June 24, 2021.[1] G.B.'s biological father did not participate in the hearings. Mother, Father, and MCCS agreed to reunify G.B. with Mother. The magistrate filed an August 5, 2021 decision that also ordered Mother to be reunified with M.W. As a result, the magistrate sustained Mother's legal-custody motion and overruled Father's competing motion. Father filed objections challenging the magistrate's decision.

{¶ 5} The trial court overruled Father's objections in a February 24, 2022 final judgment entry. After conducting its own review, the trial court found that awarding Mother legal custody of M.W. was in the child's best interest. The trial court also found that MCCS had made reasonable efforts to return the child home and that those efforts had been successful. Finally, the trial court found Father entitled to parenting time. This appeal followed.

II. Analysis

{¶ 6} Father's sole assignment of error states:

THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO MOTHER BECAUSE MONTGOMERY COUNTY CHILDREN'S SERVICES AND THE STATE FAILED TO PROVE BY PREPONDERANCE OF THE EVIDENCE THAT LEGAL CUSTODY TO MOTHER WAS IN THE BEST INTEREST OF THE MINOR CHILD
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{¶ 7} Father argues that the record does not support the trial court's analysis of the statutory best-interest factors. He raises various issues, arguing that they demonstrate an abuse of discretion in the trial court's best-interest analysis.

{¶ 8} Although both parents desired custody of M.W., Father contends Mother once offered to compromise by taking custody of G.B. and giving him custody of M.W. He also notes that Mother originally abandoned both children on his doorstep, resulting in a finding of dependency and neglect. Father stresses that both children were doing well in his care, and he claims M.W. expressed a desire to live with him. Father criticizes the trial court for elevating the importance of the siblings' relationship over his own relationship with M.W.

{¶ 9} Father next asserts that the guardian ad litem recommended M.W. remain with him. He contends M.W. was bullied by G.B. and that the two children fought all the time. Father claims the trial court inappropriately found these issues to be part of a normal sibling relationship. Father notes that M.W. was doing well in school and receiving occupational and speech therapy while in his care.

{¶ 10} Father also contends Mother has a history of mental-health issues and being involved in "violent relationships" that caused fear in her children. Specifically, he cites her diagnosed history of anxiety, which once caused her to state that she would rather kill M.W. than allow the child to live with Father. Father claims Mother has a history of substance abuse as evidenced by positive tests for marijuana and cocaine. He also asserts that she expressed an intent to move to Indiana following termination of the case. Father claims he has no intent to relocate and will keep the child in the same home and

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school.

{¶ 11} Father next asserts that various concerns expressed about him by MCCS or Mother were unwarranted. In particular, he denies not considering M.W.'s special needs. Father insists that he did address those needs even though they were less pronounced with the child in his care. Father notes too that his having one bedroom and bed available was not an issue given that he consented to Mother's having custody of the other child. He also discounts any concern about his prior felony domestic-violence conviction. Father notes that the conviction occurred five years before M.W. was born, that the incident did not occur in the home with Mother and the child, and that he had no subsequent criminal record.

{¶ 12} Finally, Father contends the trial court erred in not recognizing his "fundamental liberty and parental interest in the custody of his child." Father notes that he was caring for the child successfully and argues that did not "deserve" to lose "legal custody." In connection with this argument, Father reasons that the trial court did not find him to be an unsuitable parent, thereby "evincing that there was no reason that legal custody should have been removed from Father based upon suitability." That being so, he claims he "retains a paramount right to the custody his of child."

{¶ 13} When considering whether to...

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