[Cite as In re D.B., 2016-Ohio-7910.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

IN THE MATTER OF: : 

 

 D.B. : CASE NO. CA2016-04-067 

 : O P I N I O N 

 11/28/2016 

 : 

 : 

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. JN2013-0190 

D. Joseph Auciello, Jr. 306 South Third Street, Hamilton, Ohio 45011, for appellant, L.B.-I. 

Mary Lou Kusel, 6 South Second Street, Suite 317, Hamilton, Ohio 45011, for appellees, J.B. 

and A.G. 

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler 

County Department of Job & Family Services 

Carol Garner, 9435 Waterstone Blvd., Suite 140 Cincinnati, Ohio 45249, guardian ad litem 

 PIPER, J.

{¶ 1} Appellant, L.I.-B. ("Mother"), appeals a decision of the Butler County Court of 

Common Pleas, Juvenile Division, granting legal custody of her child to the child's maternal 

uncle ("Uncle"). 
Butler CA2016-04-067 

 - 2 - 

{¶ 2} Butler County Children Services ("the Agency") filed a complaint alleging that 

Mother's child, D.B., was an abused and dependent child. The Agency's allegations of abuse 

and dependency were predicated upon a report that D.B. and Mother were abused by 

Mother's boyfriend. The complaint alleged that D.B. witnessed an instance of domestic 

violence between Mother and her boyfriend, and that Mother asked D.B. to call 9-1-1. 

However, Mother's boyfriend threatened to "kill both of them," and the child did not call 9-1-1. 

The other allegations included that Mother's boyfriend threw the child against the wall during 

another instance of domestic violence. 

{¶ 3} After the child was adjudicated dependent, D.B. remained in Mother's care 

under protective supervision. As a condition of protective supervision, the court ordered no 

contact between D.B. and Mother's boyfriend. Subsequently, the Agency was forced to 

remove the child from Mother's care when she married her boyfriend, and allowed the 

contact previously prohibited by the court. 

{¶ 4} Mother's case plan with the Agency had included domestic violence and mental 

health assessments, and a requirement to follow any recommendations arising from the 

assessments. While Mother completed the mental health assessment, she did not initially 

complete the domestic violence assessment. Despite the child witnessing the event, Mother 

denied the claim that her then-boyfriend committed domestic violence against her. After D.B. 

was removed from her home, Mother completed a domestic violence course, as well as 

anger management. Mother also participated in a psychological evaluation. The results of 

the evaluation included a recommendation that Mother complete parenting classes. 

However, Mother became reluctant to complete the Agency's plan and finish the classes. 

The Agency made no any further referrals given Mother's reluctance and hesitancy to work at 

completing the Agency's plan. 

{¶ 5} Meanwhile, D.B. was placed with Uncle and did well in his care. His grades 
Butler CA2016-04-067 

 - 3 - 

improved, he started to receive tutoring, and he began participating in several extracurricular 

activities. Uncle also facilitated visitation between D.B. and his biological father ("Father"), 

with whom D.B. was beginning to form a relationship. After D.B. had lived with Uncle and his 

live-in girlfriend for approximately a year, Uncle moved for legal custody. 

{¶ 6} While the Agency supported Uncle's motion, Mother opposed Uncle having 

custody of D.B., indicting she wanted to reunify with her child. Father also opposed the 

motion, and asked the juvenile court to award him custody. Uncle's motion was heard by a 

magistrate. During the hearings, Mother testified that she was aware of the no-contact order, 

and that despite the order, she married the man with whom D.B. was to have no contact. 

Mother even had D.B. attend the wedding. Mother testified that she would divorce her 

husband if it meant that she could regain custody. The magistrate also heard testimony from 

an Agency caseworker who testified that Mother's husband did not complete the case plan 

items suggested by the Agency, and that he had a notable criminal history, which included 

violent crimes. 

{¶ 7} After the hearings, the magistrate granted Uncle legal custody, and Mother filed 

objections. The juvenile court held a hearing on Mother's objections, and overruled them. 

The juvenile court then adopted the magistrate's decision awarding Uncle legal custody. 

Mother now appeals the juvenile court's ruling, raising the following assignment of error. 

{¶ 8} THE TRIAL COURT ERRED BY FINDING CLEAR AND CONVINCING 

EVIDENCE TO SUPPORT TRANSFER OF LEGAL CUSTODY TO A RELATIVE FINDING 

THE FACTORS OF R.C. 3109.04(F)(1) PRESENT. 

{¶ 9} Mother argues in her assignment of error that the juvenile court erred in 

granting legal custody of D.B. to Uncle. 

{¶ 10} R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent child, 

the court may award legal custody of the child to either parent or to any other person who, 
Butler CA2016-04-067 

 - 4 - 

prior to the dispositional hearing, files a motion requesting legal custody of the child. Legal 

custody vests in the custodian the physical care and control of the child while residual 

parental rights and responsibilities remain intact. In re M.M., 12th Dist. Fayette No. CA2010-

12-034, 2011-Ohio-3913, ¶ 7. Unlike permanent custody, granting legal custody does not 

terminate the parent-child relationship. Id. A juvenile court "may award legal custody 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. A preponderance of the evidence is evidence that is 

of a greater weight or more convincing than the evidence which is in opposition to it. In re 

L.A.B., 12th Dist. Fayette No. CA2012-03-008, 2012-Ohio-5010, ¶ 12. 

{¶ 11} A juvenile court must base its custody determination on the best interest of the 

child. R.C. 3109.04. As pertinent to the case at bar, and in determining the best interest of 

the child, R.C. 3109.04(F)(1) requires the juvenile court to consider all relevant factors, which 

include: 

(a) The wishes of the child's parents regarding the child's care; 

(b) If the court has interviewed the child in chambers pursuant to 

division (B) of this section regarding the child's wishes and 

concerns as to the allocation of parental rights and 

responsibilities concerning the child, the wishes and concerns of 

the child, as expressed to the court; 

(c) The child's interaction and interrelationship with the child's 

parents, siblings, and any other person who may significantly 

affect the child's best interest; 

(d) The child's adjustment to the child's home, school, and 

community; 

(e) The mental and physical health of all persons involved in the 

situation; 

(f) The parent more likely to honor and facilitate court-approved 

parenting time rights or visitation and companionship rights; 
Butler CA2016-04-067 

 - 5 - 

(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that 

parent pursuant to a child support order under which that parent 

is an obligor; 

(h) Whether either parent or any member of the household of 

either parent previously has been convicted of or pleaded guilty 

to any criminal offense involving any act that resulted in a child 

being an abused child or a neglected child; whether either 

parent, in a case in which a child has been adjudicated an 

abused child or a neglected child, previously has been 

determined to be the perpetrator of the abusive or neglectful act 

that is the basis of an adjudication; whether either parent or any 

member of the household of either parent previously has been 

convicted of or pleaded guilty to a violation of section 2919.25 of 

the Revised Code or a sexually oriented offense involving a 

victim who at the time of the commission of the offense was a 

member of the family or household that is the subject of the 

current proceeding; whether either parent or any member of the 

household of either parent previously has been convicted of or 

pleaded guilty to any offense involving a victim who at the time of 

the commission of the offense was a member of the family or 

household that is the subject of the current proceeding and 

caused physical harm to the victim in the commission of the 

offense; and whether there is reason to believe that either parent 

has acted in a manner resulting in a child being an abused child 

or a neglected child; 

(i) Whether the residential parent or one of the parents subject to 

a shared parenting decree has continuously and willfully denied 

the other parent's right to parenting time in accordance with an 

order of the court; 

(j) Whether either parent has established a residence, or is 

planning to establish a residence, outside this state 

{¶ 12} An appellate court reviews a juvenile court's custody determination for an 

abuse of discretion. In re C.A., 2015-Ohio-1410 at ¶ 15. The juvenile court's exercise of its 

discretion in custody matters is entitled to the utmost respect, given the nature of the 

proceeding and the impact the court's determination will have on the lives of the parties 

concerned. Id. Thus, an appellate court will afford deference to the juvenile court's findings 

regarding the credibility of the witnesses. Id.

{¶ 13} In considering a claim that the juvenile court's decision is contrary to the 
Butler CA2016-04-067 

 - 6 - 

manifest weight of the evidence, "a reviewing court must determine whether the finder of fact, 

in resolving conflicts in the evidence, clearly lost his way and created such a manifest 

miscarriage of justice that the judgment must be reversed and a new trial ordered." In re 

X.B., 12th Dist. Butler No. CA2014-07-168, 2015-Ohio-1174, ¶ 21. The reviewing court is 

guided by the presumption that the juvenile court's findings are correct. Id. Thus, where an 

award of custody is supported by a substantial amount of credible and competent evidence, 

the reviewing court will not reverse the juvenile court's custody determination on the grounds 

that it is contrary to the manifest weight of the evidence. Id. 

{¶ 14} After reviewing the record, we find that the juvenile court's custody 

determination was supported by the preponderance of the evidence, and was not contrary to 

the manifest weight of the evidence. The magistrate fully reviewed and balanced the 

statutory factors. The magistrate gave consideration to the parent's wishes for the child. 

Mother asked the court to return D.B. to her custody, and opposed Uncle's motion for legal 

custody. While Father also asked for custody, he did not oppose Uncle having legal custody 

of D.B. Nor did Father deny that the child was "good" with Uncle. The child was not 

interviewed, and the court did not learn of the child's wishes. Even so, the child's guardian 

ad litem suggested that Uncle have legal custody.

{¶ 15} Regarding the child's interaction and interrelationship with the people in his life, 

the court considered that D.B. was in Mother's custody, even after being adjudicated 

dependent, until he was removed when Mother violated the no-contact order by having D.B. 

around the man who mistreated D.B. While the child loves Mother, and was happy in her 

care, the record also demonstrates that Mother was not actively involved in the child's 

schooling or activities once he began living with Uncle. Nor did Mother acknowledge the 

child's birthday or Christmas, and also did not allow the child to take past gifts she had given 
Butler CA2016-04-067 

 - 7 - 

him to Uncle's home.1 Mother's visitation with the child had to be supervised, as she was 

prone to having "inappropriate conversations" with the child about his removal from her 

home. Within six months of the hearing, Mother refused to communicate with Uncle, and 

often changed her phone number without notifying him of the change. 

{¶ 16} Despite there being a no-contact order, Mother facilitated contact between the 

child and his abuser. During Mother's testimony, she confirmed that she was fully aware of 

the no-contact order, and in spite of it, she chose to marry the man despite knowing her new 

husband could not have any contact with D.B. pursuant to court order. Mother continues to 

live with her husband. 

{¶ 17} Mother's husband, though he was fully aware of the no-contact order, directly 

communicated with the child, and on one occasion, suggested that the child physically 

assault another child with whom D.B. was having conflict. The court also heard testimony 

from Mother's husband that his criminal history included aggravated burglary, aggravated 

menacing, burglary, arson, and parole violations. Mother's husband, despite completing 

alcohol and drug assessments, tested positive for marijuana during the pendency of the 

proceedings. The magistrate specifically found that Mother's husband having contact with 

the child was "overall detrimental to the child." 

{¶ 18} Father has had little contact with the child during D.B.'s life, and only recently 

began to establish a relationship with the child. Father acknowledged that when the child 

was younger, he disciplined D.B. by smacking him in the mouth, causing his lip to split, bleed, 

and bruise. The child stayed very briefly with Father before the Agency placed the child with 

Uncle, but Father refused to keep the child permanently. Since that time, however, Father 

 

1. On cross-examination, Mother testified that she did not get D.B. Christmas gifts, and stated, "I didn't get him 

nothing because I didn't, I ain't have no money. I don't work." The record indicates that Mother receives Social 

Security disability payments of $659 per month. 
Butler CA2016-04-067 

 - 8 - 

tried to initiate a relationship with the child, and was granted supervised visitation. The 

magistrate found that Father and D.B. are still in the process of "fully developing a bond." 

Conversely, the child has thrived with Uncle, and has a loving bond with Uncle and Uncle's 

girlfriend. The child acts as a member of Uncle's household and has adjusted well to life in 

Uncle's care. 

{¶ 19} The court also considered the child's adjustment to his home, school, and 

community. The record demonstrated that D.B. is "very comfortable" in his home with Uncle, 

and had done better in school than he had before. The child has also become involved in 

activities and sports, and continues to receive tutoring in school. The child, who 

demonstrated aggressive behaviors when first placed with Uncle, has shown improved 

behavior, and interacts well with Uncle's son. According to Uncle's girlfriend, since joining 

Uncle's household, the child "kind of enjoys life. He has a good time and he's not always 

looking behind his, his [sic] back." Uncle's girlfriend also testified that D.B. has many friends 

in the neighborhood. The Agency caseworker testified that when she visited D.B. in Uncle's 

home, the child was "comfortable, talkative, friendly, polite." 

{¶ 20} While Uncle's home is somewhat small and cluttered, the court specifically 

determined that such did not create any safety concerns related to the child. The record also 

demonstrates that Uncle passed a home study performed by the Agency. Conversely, 

Mother had moved from her former residence to a location that the child had never visited. 

The child had only recently begun overnight visits with Father. 

{¶ 21} Regarding the mental and physical health of the parties, the court considered 

that Mother's psychological evaluation indicated that she needed counseling. However, 

Mother's reaction to the counseling suggestion demonstrated to the Agency that counseling 

attempts would be unsuccessful due to Mother's "defensiveness," "basic unwillingness to 

engage in those types of services," and "her lack of motivation and wiliness to participate." 
Butler CA2016-04-067 

 - 9 - 

The Agency caseworker testified that when she tried to address counseling with Mother, 

Mother "got angry," and "didn't want to continue talking." 

{¶ 22} Mother's husband was diagnosed with Bipolar Disorder and suffers anxiety, 

and Father suffers from post-traumatic stress disorder. Uncle is on dialysis and had only one 

kidney that does not function property. However, he testified that his condition does not 

interfere with his ability to parent D.B. 

{¶ 23} The court also considered that while Uncle has facilitated visitation between 

the child and Father, Mother did not. The record indicates that Mother does not 

communicate with Father, and testified that she does not get along with others in D.B.'s life. 

The magistrate found Mother's ability to honor and facilitate D.B.'s visitation with Father as 

"questionable at best." 

{¶ 24} The court gave consideration to other statutory factors, noting that the child 

was adjudicated a dependent child after the Agency raised safety concerns specific to the 

child's contact with Mother's husband. Mother's husband, who has a violent criminal history, 

continued to have contact with the child despite the court's no-contact order. The child also 

expressed his concerns to Uncle about domestic violence that he witnessed between Mother 

and her husband. Mother and her husband continued to deny any domestic violence in their 

relationship, and at the time of the hearing, Mother's husband continued to live with her. 

{¶ 25} The court acknowledged that Mother and her husband did complete some of 

the case plan actions set forth by the Agency. However, neither had shown the ability to 

implement the lessons taught in the courses they attended. For example, Mother 

demonstrated anger toward the Agency caseworker, yelled at the caseworker, and hung up 

on her. Mother's husband was inappropriate with the caseworker, such as screaming in the 

caseworker's face, using profanity with her, and displaying signs of aggression such that the 

Agency refused to let the caseworker return to the residence due to concern for the 
Butler CA2016-04-067 

 - 10 - 

caseworker's safety. 

{¶ 26} Moreover, Mother refused to admit that any domestic violence occurred 

between herself and her husband, or her husband and D.B. Mother's refusal was directly 

contradicted by testimony that domestic violence between Mother and her husband was an 

ongoing issue and that such concerns were never alleviated. Mother, despite knowing of the 

no-contact order, chose to marry her husband, and continues to reside with him despite her 

marriage and cohabitation being the barrier to reunification with her son. The magistrate 

specifically found that Mother never abided by the no-contact order, and that she was 

incapable of protecting D.B. "from harm." Further, the magistrate questioned Mother's ability 

to make "good judgments in her life," and noted Mother's unwillingness to complete all case 

plan actions intended to improve her life and move toward reunification with D.B. 

{¶ 27} Despite Mother making some progress on her case plan, she refused to 

complete the necessary actions to work toward reunification, and she continues to reside with 

a man who has been ordered to have no contact with the child. Conversely, the child is 

doing well while in Uncle's care, and is slowing building a relationship with Father. As such, 

we find that the juvenile court did not abuse its discretion in finding that Uncle having custody 

of D.B. was in the child's best interests. Mother's assignment of error is, therefore, overruled. 

{¶ 28} Judgment affirmed. 

 M. POWELL, P.J., and S. POWELL, J., concur.