[Cite as B.A. v. C.C., 2021-Ohio-3719.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

B. A. 

 Plaintiff-Appellee 

-vsC. C. 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. Patricia A. Delaney, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2021 AP 02 0006 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Juvenile Division, Case No. 2019 CC 

00080 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 18, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAMES J. ONG DAN GUINN 

201 North Main Street GUINN LAW FIRM, LLC 

Uhrichsville, Ohio 44683 232 West 3rd Street, Suite 312 

 Dover, Ohio 44622 
Tuscarawas County, Case No. 2021 AP 02 0006 2

Wise, John, P. J. 

{¶1} Appellant C.C. appeals the decision of the Tuscarawas County Court of 

Common Pleas, Juvenile Division, which granted legal custody of Appellant’s minor 

children. Appellee is B.A., the minor children’s paternal grandmother. The relevant facts 

leading to this appeal are as follows. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellant and J.A. are the biological parents of minor children H.A. and H.A. 

Appellee is paternal grandmother of the minor children. 

{¶3} On April 2, 2019, Appellee filed a Complaint for Custody of the minor 

children with the trial court. Appellee moved the trial court to designate her as legal 

custodian of the minor children. 

{¶4} On September 21, 2020, Appellee’s Complaint proceeded to trial.

{¶5} At trial Mary Beth Markley, a supervisor of community counseling at Ohio 

Guidestones, testified Appellant completed parenting classes starting in June of 2019. 

Markley continued she remembered nothing negative about Appellant. She only 

remembered her attendance at the program. 

{¶6} Next, Samantha Barone, a probation officer with the Tuscarawas County 

Southern District Court, testified Appellant was on probation in 2019 for a disorderly 

conduct charge. As part of probation, Appellant was required to complete random drug 

screens, participate in review hearings, complete thirty hours of community service, and 

complete a mental health evaluation. Appellant completed her one-year probation in four 

months. 
Tuscarawas County, Case No. 2021 AP 02 0006 3

{¶7} On cross-examination, Barone noted she never observed Appellant with her 

children. Barone also noted that the disorderly conduct charge had been amended from 

a child endangerment charge. 

{¶8} Next, Appellant testified H.A. was born on November 16, 2016, and H.A. 

was born on October 18, 2018. J.A. is the father of both minor children. 

{¶9} In early 2019, the minor children were placed with Appellee by Job and 

Family Services because Appellant was arrested for endangering her children by leaving 

marijuana within reach of the children. Appellant confirmed she was under the influence 

of marijuana when her children were removed. 

{¶10} At the time of removal, one child was current on doctor’s appointments and 

vaccines and one was behind. Appellee followed through on medical care for the children, 

and both are current on doctor’s appointments and vaccinations. Appellee keeps 

Appellant apprised of medical updates with her children. 

{¶11} Appellant has the children from Tuesday at 9 a.m. through Thursday at noon 

each week. On Wednesdays, when Appellant is at work, Appellant’s mother watches the 

children. 

{¶12} Appellant has been living with her parents since April of 2019, when she 

was evicted from her apartment for drugs. 

{¶13} Appellant works thirty-four hours a week and pays Appellee child support. 

On top of the child support, Appellee has refused any other monetary support from 

Appellant. 

{¶14} Appellant testified her children are developing well in Appellee’s care. She 

has expressed concern that sometimes the children have greasy hair and dirt behind their 
Tuscarawas County, Case No. 2021 AP 02 0006 4

ears. Appellant testified she would like her children back, and that Appellee should get 

visitation rights. 

{¶15} Next, J.A. testified his children are developing well while living with 

Appellee. They are learning more and are better behaved. 

{¶16} Joyce Brown then testified she worked for forty years at Harrison County 

Job and Family Services in administration. Brown is friends with Appellee. Appellee has 

contacted Brown to baby sit the minor children. 

{¶17} Brown testified the children are developing well under Appellee’s care and 

that the children are well adjusted to living with Appellee. 

{¶18} After Brown testified, the court drug screened both Appellant and J.A. J.A. 

tested positive for THC and Appellant was negative for all substances. 

{¶19} Next, Rindy Brace, a former children services worker at the Welfare 

Department in Harrison County, testified. Brace and Appellee became friends while 

working together. Brace met Appellant’s minor children in 2019. When she met the 

children, Brace noted the older of the children, H.A., was developmentally behind with 

speech and language. Since that time, Brace noted H.A.’s language skills have improved 

dramatically, even though he can be difficult to understand at times. Brace continued that 

Appellee relates well to the minor children, and the children are safe and healthy living 

with Appellee. Brace does not know Appellant and has never observed Appellant with her 

minor children. 

{¶20} Next, Appellee testified the minor children are currently living with her. 

Appellee confirmed her son, J.A., does not reside with her. Appellee was previously 

employed with Harrison County Department of Job and Family Services and then was 
Tuscarawas County, Case No. 2021 AP 02 0006 5

hired by the State as Acting Assistant District Director for the Canton District Office. 

Appellee retired on July 1, 2008, and is sixty-five years old. 

{¶21} Appellee described H.A. as being behind developmentally, looked

unhealthy, and had a very restrictive diet when the minor children began living with her. 

Appellee discovered Appellant and J.A. were giving H.A. spoiled milk to drink. Appellee 

said she has worked with H.A. on vocabulary, counting, reading, playing outside, and his 

colors. When the children started living with Appellee, H.A. needed a flu shot, and 

Appellee took him to get a flu shot. H.A. is hard to understand and was recommended for 

speech therapy a week before the hearing. Appellee also testified the younger of the two 

minor children, H.A. is developmentally on track. Appellee believes that both children 

have bonded with her. 

{¶22} On cross-examination, Appellee said she received the minor children 

because of criminal issues with Appellant. Appellee admitted that she was worried about 

having a relationship with the minor children after Appellant and J.A. broke up. Appellee 

continues that she does not know if Appellant is a good parent, as she has not seen her 

with her minor children. 

{¶23} Appellant again took the witness stand and testified she started a 

relationship with J.A. in December of 2015. Appellant began residing with Appellee in 

early 2017 for financial reasons. Appellant testified that while living with Appellee, 

Appellee was controlling. Appellee would try to take over while Appellant was feeding 

H.A. In October of 2017, Appellant and J.A. moved out because the stress became too 

much. 
Tuscarawas County, Case No. 2021 AP 02 0006 6

{¶24} Appellant testified that she is aware of H.A.’s developmental delays. 

Appellant helps him by practicing ABCs, numbers, and vocabulary. Appellant stated that 

both she and J.A. have learning disabilities. 

{¶25} In November of 2018, Appellant’s relationship ended with J.A., but J.A. 

continued living with Appellant and the children. In early 2019, there was a domestic 

violence incident, and J.A. left the residence. 

{¶26} Appellant testified that after J.A. left the residence, she continued to let 

Appellee see the children, even watching them for two days. Appellant started dating 

Cody Richmond after J.A. moved out. During their relationship he was using marijuana, 

but she was not aware if he used drugs around her kids. Richmond left Appellant when 

her legal problems with marijuana started. 

{¶27} One night while preparing dinner the police arrived at the residence to do a 

wellness check on the children. They found marijuana on the table. Appellant testified it 

was Richmond’s marijuana and she hadn’t seen it on the table. The police placed the 

children with Appellee; Appellant tested positive for marijuana. 

{¶28} Appellant was charged with possession of marijuana and child 

endangerment. The possession charge was dismissed, and the child endangerment 

charge was reduced to disorderly conduct. Appellant was placed on probation for a year. 

{¶29} Since being placed on probation, Appellant has passed every drug test. 

Appellant has completed parenting classes and attends counseling. During her visits with 

her children, she says the kids are happy to see her, they play outside, work on ABCs, 

and do activities. Appellee has not complained to Appellant about how the children have 

been cared for when they visit Appellant. 
Tuscarawas County, Case No. 2021 AP 02 0006 7

{¶30} Since Appellee has had the children, Appellant has not attended any 

doctor’s appointments but gets updates from Appellee. Appellant has access to the 

medical records through My Chart. Appellant has stated that the children are not kept 

clean when Appellee is taking care of them. There have been a few times that H.A. has 

not been wiped clean after going to the bathroom and that his face and ears have not 

been washed. 

{¶31} The hearing was then continued to October 2, 2020. Appellant continued 

testifying that she had concerns about safety at Appellee’s house. Appellee has a 

swimming pool without a fence around it. 

{¶32} On cross-examination, Appellant testified Appellee has not failed to get the 

children medical treatment, keeps Appellant informed of their visits, and that Appellee has 

set up speech therapy for H.A. Appellant testified that while she was watching H.A., he 

received a bruise on his eye from carrying sticks and was burned on a space heater. 

{¶33} Next, Appellee was called back to the witness stand to testify she added a 

safety cover to her pool, that the pool hasn’t been opened since 2018, and that she has 

no plans to open the pool back up. The cover can hold up to 500 pounds. Appellee 

continued that the children are active children and can get bruises just from playing. While 

under Appellant’s care, H.A. has come back with bruises to his ear, scratches from 

running through a rose bush, and got his arm caught between rungs on a space heater. 

Appellee testified that when Appellant and J.A. lived with her, they did not clean up the 

house, and that Appellee is still concerned with Appellant’s ability to provide a clean home 

for the children. 
Tuscarawas County, Case No. 2021 AP 02 0006 8

{¶34} On November 6, 2020, the magistrate issued its decision finding Appellant 

and J.A. were unsuitable to parent their minor children. Appellant and Richmond used 

marijuana during their relationship. Appellant, while under the influence of marijuana was 

cooking dinner for her children leaving marijuana on a table, in reach of her minor children. 

This was discovered by the police during a wellness check. Appellant has completed her 

probation and attended parenting classes and counseling. The children were placed with 

Appellee when the incident occurred. Appellant is currently residing with her mother, D.L. 

When Appellant was younger, she was removed from D.L.’s care at the age of three 

following numerous sexual abuse cases in which Appellant was the victim. The 

magistrate’s decision also provided that the minor children are to have no contact with 

Scott Sanders, Nathanial Coverdale, Timothy Coverdale, Jr. or Timothy Coverdale, Sr. 

{¶35} On January 27, 2021, the trial court overruled Appellant’s objections to the 

magistrate’s decision and granted legal custody of the minor children to Appellee 

ASSIGNMENT OF ERROR 

{¶36} Thereafter, Appellant timely filed a notice of appeal. She herein raises the 

following Assignment of Error: 

{¶37} “I. THE COURT ERRED IN DETERMINING THAT THE APPELLANT WAS 

UNSUITABLE AS A PARENT AND SHOULD NOT HAVE CUSTODY OF HER MINOR

CHILDREN.” 

I. 

{¶38} In Appellant’s sole Assignment of Error, Appellant argues the trial court 

abused its discretion regarding its determination that Appellant was not a suitable parent. 

We disagree. 
Tuscarawas County, Case No. 2021 AP 02 0006 9

{¶39} An appellate court reviews disposition of child custody matters for an abuse 

of discretion on the part of the trial court. Miller v. Miller (1988), 37 Ohio St.3d 71, 73-74. 

In order to find an abuse of discretion, we must determine the trial court’s decision was 

unreasonable, arbitrary, or unconscionable, not merely an error of law or judgment. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Appellate courts 

reviewing evidence in custody matters do not function as fact finders; we neither weigh 

the evidence nor judge credibility of witnesses. Dinger v. Dinger, 5th Dist. Stark No. 

2001CA00039, 2001-Ohio-1386. Our role is to determine whether there is relevant, 

competent, and credible evidence upon which the fact finder could base his or her 

judgment. Id. As custody issues are some of the most difficult and agonizing decisions a 

trial court judge must make, the trial court judge is given wide latitude in considering all 

the evidence. Girdlestone v. Girdlestone, 5th Dist. Stark No. 2016CA00019, 2016-Ohio8073, ¶12 citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). 

However, granting legal custody, where parental rights are not terminated, is not as 

drastic a remedy as permanent custody. In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio2272, ¶9. 

{¶40} R.C. 2151.23(A)(2) gives exclusive jurisdiction to the juvenile court “to 

determine the custody of any child not a ward of another court of this state.” In In re 

Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047, syllabus, the Supreme Court of Ohio held: 

In an R.C. 2151.23 child custody proceeding between a parent and 

a nonparent, the hearing officer may not award custody to the nonparent 

without first making a finding of parental unsuitability that is, without first 

determining that a preponderance of the evidence shows that the parent 
Tuscarawas County, Case No. 2021 AP 02 0006 10

abandoned the child, that the parent contractually relinquished custody of 

the child, that the parent has become totally incapable of supporting or 

caring for the child, or that an award of custody to the parent would be 

detrimental to the child. 

{¶41} Therefore, before awarding legal custody to a non-parent, a trial court must 

ordinarily make a finding that each parent is unsuitable. In re L.P., 5th Dist. Muskingum 

No. CT2016-0045, 2017-Ohio-52, ¶18. 

{¶42} In its journal entry filed January 27, 2021, the trial court concluded through 

adopting the magistrate’s decision that both J.A. and Appellant are unsuitable to parent 

the minor children. This finding was based upon several findings of fact about Appellant 

which were all supported by the record including, that while doing a wellness check on 

the children, the police discovered Appellant and children were home, Appellant was 

cooking dinner under the influence of marijuana, and that there was marijuana on the 

kitchen table accessible by the children. The trial court also found that Appellant had been 

charged with child endangerment and possession of drugs (though the charges were 

reduced to disorderly conduct) in relation to the incident. Appellant lives with her mother 

and when Appellant was a child, Appellant was removed from her mother’s care because 

of sexual abuse cases in which Appellant was the victim. During Appellant’s first overnight 

visit with the children, H.A. was burned by a space heater. The minor children are bruised 

while in Appellant’s care. H.A. was behind on his shots when the children were placed 

with Appellee. Appellee now has H.A. up to date and has kept Appellant apprised of the 

children’s medical care. H.A. has been diagnosed with a speech delay, and Appellee has 

enrolled H.A. in speech therapy. The children are developing well in Appellee’s care. J.A. 
Tuscarawas County, Case No. 2021 AP 02 0006 11

has little contact with the children. J.A. has been kicked out of Appellee’s house multiple 

times due to J.A.’s behavior. Appellant and J.A. were giving H.A. spoiled milk to drink. 

Appellee has spent significant time with the minor children. They have bonded with 

Appellee. The children are vulnerable, both under age five, and are unable to protect 

themselves. They rely on adults to provide their daily needs. 

{¶43} Upon review of the evidence presented, we cannot say the trial court 

abused its discretion in finding Appellant and J.A. unsuitable to parent the minor children. 

We find the record contains substantial credible and competent evidence to support the 

decision. 

{¶44} Appellant’s sole Assignment of Error is overruled. 

{¶45} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Juvenile Division, Tuscarawas County, Ohio, is hereby, affirmed. 

By: Wise, John, P. J. 

Delaney, J., and 

Wise, Earle, J. concur. 

 

JWW/br 1006