[Cite as In re L.C. , 2020-Ohio-4629.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN RE:

L.C. :

:

:

: CASE NO. CA2019-08-086

O P I N I O N

9/28/2020

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 17-D000192

Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for appellant Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for appe llee, B.H. David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee, Warren County Childre n Services Ostrowski Law Firm Co., L.P.A., Andrea G. Ostrowski, 20 South M ain Street, Springboro, Ohio 45066, for CASA Brooke Logsdon, 223 North Broadway Street, Lebanon, Ohio 45036, for mother

HENDRICKSON, P.J. {¶1} Appellant, H.C. ("Father"), appeals the decision of the Warren County Court of Common Pleas, Juvenile Division, granting legal custody of h is minor son, L.C., to appellee, B.H., the child's maternal grandmother ("Maternal Gra ndmother"). For theWarren CA2019-08-086

- 2 - reasons that follow, we affirm the juvenile court's decision. {¶2} L.C. was born on May 14, 2015 to Father and S.H. ("Mother"), wh o were not married. Mother, who has abused marijuana, methamphetamine, he roin, and cocaine, met Father around 2011 when she purchased drugs from him. The two entered into a relationship that lasted approximately four years. During thei r relationship, Mother and Father used drugs and Father continued to sell drugs until 2015

. {¶3} In 2014, Mother became pregnant with L.C. At this time, Father was residing in a hotel in Akron. Mother briefly lived with Father in Akron , but moved to Franklin to be closer to Maternal Grandmother. When L.C. was born in May 2015 , Father briefly visited the child, but he did not sign L.C.'s birth certificate. {¶4} Father moved to Franklin in August 2016 upon Maternal Grandmoth er's request that Father help care for L.C. while Mother entered a d rug rehabilitation program.

Father lived with Mother and L.C. at Maternal Grandmother's res idence for a period of time before he, Mother, and L.C. moved into an apartment. Mother an d Father ended their relationship shortly thereafter and Father moved into a hotel. Father left L.C. in Mother's care, despite knowing Mother had a drug abuse problem and was c ontinuing to use drugs. Father provided financial support for L.C. following his breaku p with Mother. Once a week, Mother visited Father at his place of employment, a gentleman's club, and Father would give Mother cash. {¶5} On November 7, 2017, Warren County Children Services (WCCS) fil ed a complaint with the juvenile court alleging that L.C. was a depe ndent child based on Mother's drug use. L.C. was placed in the temporary custody of Maternal Grandmother, and Father was ordered to take a DNA test to establish his paternity of L. C. On December 27, 2017, the juvenile court adjudicated L.C. a dependent child and order ed that temporary custody of L.C. remain with Maternal Grandmother, with protective super vision given to WCCS.Warren CA2019-08-086

- 3 - Father was granted supervised parenting time with L.C., and bot h Father and Mother were put on a case plan with the goal of reunification with the chil d. In April 2018, Mother was removed from the case plan for non-compliance. Father's girlfr iend, with whom he lived with in Hamilton, was put on the case plan in June 2018. {¶6} Father made progress on his case plan, but his visitation with L.C. was sporadic. On October 23, 2018, Maternal Grandmother filed a mo tion for legal custody of L.C. Shortly thereafter, on November 5, 2018, Father filed a m otion for legal custody, or, in the alternative, for a six-month extension. A hearing on the c ompeting motions was held before a magistrate on May 2, 2019. By this time, Father had c ompleted his case plan services and his visitation with L.C. had become more regular a nd frequent. At the hearing, the magistrate heard testimony from Father, Father's girlfriend , Maternal Grandmother, Mother, and a WCCS caseworker who had been involved in L.C.'s c ase since December

2017. {¶7} On May 17, 2019, the magistrate issued a decision denying Fathe r's motion for legal custody or, in the alternative, a six-month extension , granting Maternal Grandmother's motion for legal custody, and awarding Father par enting time pursuant to the court's model parenting schedule. The magistrate concluded it was in L.C.'s best interest to be placed in Maternal Grandmother's legal custody a s "Maternal Grandmother has shown that she is able to provide [L.C.] the stability that he needs; whereas Father has not." The magistrate noted that Maternal Grandmother had rearr anged her life in order to properly care for L.C. Father, on the other hand, had "simply never made [L.C.] a priority when [L.C.] should have been the only thing that mattered all a long." The magistrate noted that Father had exercised poor decision making with respect to L.C.'s care, "choos[ing] to leave [L.C.] in the care of his drug addicted Mother to go off and live his own life" and giving Mother, a known drug addict, substantial amounts of cash each w eek after leaving L.C. inWarren CA2019-08-086

- 4 - her care. Additionally, until Maternal Grandmother filed her m otion for legal custody, Father only had sporadic visitation with the child, even though he had the opportunity for unlimited

contact with L.C. since the start of the case. Father also fai led to take the necessary steps to obtain his driver's license so that he could provide transpo rtation for L.C. {¶8} Father filed timely objections to the magistrate's decision, ar guing the magistrate erred in denying his motion for legal custody and gr anting Maternal Grandmother legal custody of L.C. where the evidence presented at the heari ng demonstrated he had completed his case plan services, maintained steady employment and housing, had not tested positive for an illegal substance in more than a year, a nd had been having extended and successful parenting time with L.C. Father contended that these facts, combined with the fact that Maternal Grandmother had significant health issue s, demonstrated that it was in L.C.'s best interest for Father to be granted legal custody of the child. On August 6, 2019, the juvenile court overruled Father's objections and adopted th e magistrate's decision. {¶9} Father appealed the juvenile court's decision, raising the foll owing as his only assignment of error: {¶10} THE TRIAL COURT'S FINDING THAT A GRANT OF LEGAL CUSTODY TO MINOR'S MATERNAL GRANDMOTHER IS IN L.C.'S BEST INTEREST, AND FA ILING TO

GRANT FATHER'S MOTION FOR CUSTODY OR IN THE ALTERNATIVE GRANT A SIX

MONTH EXTENSION SO THAT FATHER COULD SUCCESSFULLY REUNITE WITH HIS SON, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶11} Father argues the juvenile court's decision to grant Maternal G randmother legal custody of L.C. was against the manifest weight of the ev idence. Citing R.C. 2151.414(B)(1), Father contends the juvenile court's best inter est finding was not supported by clear and convincing evidence. Father fails, however, to of fer any explanation, analysis,Warren CA2019-08-086

- 5 - or citation to the record to support his assertion that grantin g Maternal Grandmother legal custody was not in L.C.'s best interest and was against the man ifest weight of the evidence. {¶12} App.R. 16 provides that an appellant's brief "shall include * * * [a]n argument containing the contentions of the appellant with respect to eac h assignment of error presented for review and the reasons in support of the contenti ons, with citations to the authorities, statutes, and parts of the record on which appella nt relies." App.R. 16(A)(7). App.R. 12 provides an appellate court with the discretion to "d isregard an assignment of error presented for review if the party raising it fails to ide ntify in the record the error on which the assignment of error is based or fails to argue the as signment separately in the brief, as required under App.R. 16(A)." App.R. 12(A)(2). Alth ough this court is entitled to disregard Father's assigned error due to his noncompliance with App.R. 16(A)(7); see In re

C.S. , 12th Dist. Butler Nos. CA2005-06-152 and CA2005-06-153, 2006- Ohio-5198, ¶ 19- 21; we find it appropriate, in this instance, to address his ar guments. {¶13} As an initial matter, we note that the statute cited by Father, R.C. 2151.414(B)(1), is inapplicable as that statute governs the awa rd of permanent custody , not legal custody. Legal custody is not as drastic of a remedy as permanent custody because it "does not divest parents of their residual parental rights, privileges, and responsibilities."

In re C.R. , 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. Unlike permanent c ustody, granting legal custody does not terminate the parent-child relationship, and a parent retains the ability to petition the court for a modification of custody at a later date. In re A.B. , Brown No. CA2016-11-021, 2017-Ohio-5776, ¶ 10; In re C.R. at ¶ 17. {¶14} "Pursuant to R.C. 2151.353(A)(3), if a child is adjudicated an abused, neglected, or dependent child, the juvenile court may award leg al custody of the child 'to either parent or to any person who, prior to the dispositional hearing, files a motion requesting legal custody of the child[.]'" In re A.B. at ¶ 10. Legal custody may be awardedWarren CA2019-08-086

- 6 - to a nonparent "upon a demonstration by a preponderance of the evidence that granting legal custody to the nonparent is in the child's best interest. " In re C.A. , 12th Dist. Butler No. CA2014-07-165, 2015-Ohio-1410, ¶ 13. See also In re L.T. , 12th Dist. Butler Nos. CA2016-03-048 and CA2016-03-058, ¶ 60 ("A juvenile court must b ase its custody

determination under R.C. 2151.353 on the best interest of the c hild"). {¶15} To determine the best interest of a child, the juvenile court i s required to consider all relevant factors, including applicable factors set forth in R.C. 3109.04(F). In re

A.B. at ¶ 11. These factors include, but are not limited to: (1) t he wishes of the child's parents regarding the child's care; (2) the wishes and concerns of the child, as expressed to the juvenile court, (3) the child's interaction and interrel ationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to the child's home, school, and community; (5) the mental and physical health of all persons involved; and (6) the parent more likely to honor and facilitate courtapproved parenting time rights or visitation and companionship rights. R.C. 3109.04(F)(1)(a) thru (f). {¶16} When reviewing custody issues, a juvenile court's decision is g ranted great deference and will not be disturbed on appeal absent an abuse o f discretion. In re A.C.C. , 12th Dist. Warren No. CA2018-03-028, 2018-Ohio-4719, ¶ 40. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, o r unconscionably. Id. When applying an abuse-of-discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Id. The discretion afforded to a juvenile court in custody matters "should be accorded the utmost respect, given t he nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned."

Miller v. Miller , 37 Ohio St.3d 71, 74 (1988). A deferential review in a child custody case is appropriate because much may be evident in the parties' demeano r and attitude that doesWarren CA2019-08-086

- 7 - not translate well to the record. Davis v. Flickinger , 77 Ohio St.3d 415, 419 (1997). Furthermore, "[w]here an award of custody is supported by a sub stantial amount of credible and competent evidence, such an award will not be reversed as b eing against the weight of the evidence by a reviewing court." In re T.M. , 12th Dist. Butler No. CA2007-01-019, 2007-Ohio-6034, ¶ 28, citing Flickinger at 418. {¶17} After reviewing the transcripts and exhibits admitted into evid ence at the May 2, 2019 hearing, we find that the juvenile court did not abuse its discretion in denying Father's motion for legal custody and granting legal custody of L.C. to Maternal Grandmother. The record reveals that L.C., who was four years old at the time the court issued its decision, has been in Maternal Grandmother's care si nce November 2017, when he was approximately two-and-one-half years old. By all accoun ts, L.C. has done very well in Maternal Grandmother's care and is thriving. L.C. is very b onded to Maternal Grandmother and the two enjoy gardening together, working on fl ashcards, feeding the neighbor's chickens, and attending church together. {¶18} The record demonstrates that Maternal Grandmother puts L.C.'s b est interests first. She enrolled him in a Head Start school progr am and, when it became apparent that his speech was not progressing as it should, enga ged a speech therapist to improve L.C.'s communication skills. Maternal Grandmother volu nteers in L.C.'s classroom and is the vice-president of the school board. In addition to Maternal Grandmother's active involvement in L.C.'s education, Maternal Grandmother also made sure L.C. was engaged in his community and that he had the opportunity for socializat ion with his peers. Maternal Grandmother takes L.C. to an interactive reading program at the library and to Sunday

school at their church. {¶19} As L.C.'s caseworker testified, WCCS has no concerns about L.C. being in Maternal Grandmother's custody. Maternal Grandmother is able t o financially care for L.C.,Warren CA2019-08-086

- 8 - as she receives social security benefits, her husband is employ ed fulltime, and they live in a house owned by her husband. Although Grandmother has a crimi nal record consisting of convictions for passing a bad check in the early 1990s, assa ult in 2002, and two OVI offenses from 2003 and 2005, all of these offenses occurred mor e than a decade before L.C.'s birth. Maternal Grandmother had straightened out her li fe. She had no positive drug screenings during the pendency of the case and WCCS does not ha ve any mental health, drug, or alcohol concerns as it relates to Maternal Grandmother

. {¶20} At the time L.C. was placed in her care, Maternal Grandmother h ad been without her driver's license for ten years. Within a few month s of being granted temporary custody, she obtained her license. She then saved for seven mo nths to purchase a car to ensure that she could transport L.C. to school, medical appoint ments, and anywhere else he may need to go. Maternal Grandmother used her license and n ew vehicle to transport L.C. to Father's home for visitations when Father could not pro vide transportation due to his

lack of a license. Maternal Grandmother testified that she wou ld continue to facilitate a relationship between L.C. and Father and would abide by any vis itation orders imposed by the juvenile court as it related to Father's or Mother's parent ing time. {¶21} Although 59 years old with some underlying health conditions, M aternal Grandmother has the energy to keep up with L.C. In 2008, Mater nal Grandmother had Graves disease, which ultimately caused her to lose her vision in one eye and necessitated the removal of her thyroid. However, her condition stabilized after the surgery and she has been able to control all of her underlying health issues, inclu ding diabetes, since then. Maternal Grandmother's health issues have not prevented her fro m obtaining her driver's license, participating in L.C.'s school and church activities, or caring for L.C. {¶22} L.C.'s caseworker testified that WCCS completed a background ch eck and home study on Maternal Grandmother and the agency had no concer ns about her ability toWarren CA2019-08-086

- 9 - provide a safe, stable home for L.C. Regarding Father's concer ns about a mouse trap on the kitchen floor of Maternal Grandmother's home, Maternal Gran dmother explained that the mousetrap was in an area where L.C. does not play and she h ad educated L.C. on the trap's potential for harm. As for knives that Father was conce rned Maternal Grandmother left sitting out, Maternal Grandmother explained the knives wer e sitting on a cutting board that she was using while cooking. Finally, while Maternal Gran dmother allowed Mother to stay two nights in her home after a car accident, Maternal Gran dmother had Mother immediately leave when advised by WCCS that Mother could not re side in the same home as L.C. Maternal Grandmother testified she has, and will, cont inue to abide by court orders as it relates to Mother's ability to see and interact with L.C. and would prevent Mother from interacting with L.C. if Mother was intoxicated or under the in fluence of drugs. {¶23} L.C.'s caseworker recommended that Maternal Grandmother and Fat her have shared parenting. However, the caseworker testified that if sh ared parenting was not going to be ordered by the court, the caseworker felt Maternal Grandm other should be named legal custodian as Maternal Grandmother had been consistent in caring for L.C. The caseworker noted that while Father had completed the case plan and taken many positive strides in establishing a relationship with L.C., including inc reasing his visitation with L.C. and maintaining stable housing and employment, Father had not b een a constant presence in L.C.'s life. The amount of time it took for Father to progr ess on his case plan demonstrated L.C. was not always a priority in Father's life an d it allowed L.C. to become

established in Maternal Grandmother's home. {¶24} The record reflects that Father has a troubled past and has not always acted

in L.C.'s best interests. Father has been convicted of traffic king in drugs, attempted possession of cocaine, and theft. Father was aware of Mother's drug addiction, as he sold her drugs and used drugs with her. Father knew Mother was cont inuing to abuse drugsWarren CA2019-08-086

- 10 - after L.C.'s birth, but he left L.C. in Mother's care after end ing his romantic relationship with Mother. Father then provided Mother, a known drug user, with l arge sums of cash on a weekly basis. Father continued to use drugs after ending his r elationship with Mother. He tested positive for marijuana on multiple occasions, with his l ast positive drug test occurring on February 8, 2018. {¶25} The record further reflects that Father has not been as active in L.C.'s life as he could have been. When the case was initiated, Father was pe rmitted unlimited supervised visitation with L.C. Despite this, Father's visitat ion was infrequent and sporadic. From November 2017 through January 2018, Father only visited L. C. one time. Between January and April of 2018, Father only visited L.C. three times . He had one 15-minute visit in May 2018, did not visit with L.C. at all in June 2018, and h ad sporadic visitation in July and August 2018. Father's visitation began to improve around S eptember 2018. After Maternal Grandmother filed her motion for legal custody of L.C. , Father's visitation become more frequent and regular, and in February 2019, Father was app roved for home visits. The visitations went well and in April 2019, Father was approved fo r overnight visitations with

L.C. {¶26} Part of the delay in Father being approved for home and overnig ht visitations was caused by Father's girlfriend's failure to timely obtain a background check. Father resides in a home with his girlfriend, her 15-year-old son, and her 8-year-old daughter. Father's girlfriend, who is a part-time police officer, was add ed to the case plan in June 2018. She was informed then that she was required to have a ba ckground check. Despite this, Father and his girlfriend waited until January 2019 to ha ve the girlfriend's background check completed. {¶27} As the juvenile court noted, Father's lack of transportation is problematic. Like Maternal Grandmother, Father has not had a license for a number of years. FatherWarren CA2019-08-086

- 11 - indicated he looked into what it would take to get his license reinstated and was advised that he would need to pay off certain fees. Father has not pai d the fees and instead relies on his girlfriend or others to transport him to his visitations with L.C. or anywhere else he needs to go. Father's girlfriend, however, does not have her o wn vehicle and instead relies on her ability to borrow her mother's vehicle in order to have transportation. L.C.'s caseworker testified it was concerning to WCCS that Father did not have a license or reliable transportation, as Father could not be depended on to transport L.C. to his medical appointments or other activities. {¶28} In addition to failing to prioritize obtaining his license and exercising visitation with his son, the record reflects that Father has failed to tak e an active role in L.C.'s schooling. Despite acknowledging that Maternal Grandmother has kept him informed of L.C.'s school events, Father has not attended any school functi ons and could not be counted on to complete or return work sent with L.C. on visitat ions. Furthermore, although

Father indicated he would enroll L.C. in a school near his home in Hamilton, Father had not visited any schools or daycares to secure enrollment. {¶29} Accordingly, given the record before us, we find that the juven ile court did not abuse its discretion in denying Father's motion for legal custo dy and granting Maternal Grandmother's motion for legal custody as the court's decision was supported by the manifest weight of the evidence. The juvenile court properly c onsidered all relevant factors, including those set forth in R.C. 3109.04(F), in determining th at it was in L.C.'s best interest to award Maternal Grandmother legal custody. Father's sole ass ignment of error is, therefore, overruled. {¶30} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.