[Cite as In re J.T. , 2020-Ohio-4246.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

In re J.T., A.T. Court of Appeals Nos. OT-19-036 OT-19-046

Trial Court No. 2018-JUV-138 2018-JUV-139

DECISION AND JUDGMENT Decided: August 28, 2020

* * * * * Angelina Wagner, for appellant. James J. VanEerten, Ottawa County Prosecuting Attorney, and Dina Shenker, Assistant Prosecuting Attorney, for appellee.

* * * * * PIETRYKOWSKI, J. {¶ 1} In this consolidated appeal, mother-appellant, P.R., appeals th e judgment of the Ottawa County Court of Common Pleas, Juvenile Division, awa rding legal custody of her children, J.T. and A.T., to D.B. For the reasons that foll ow, we affirm.2. I. Facts and Procedural Background {¶ 2} Appellant is the mother of four children. Ja.T. is the father of J.T. and A.T.,

and Ga.R. is the father of C.R. and G.R. 1 On March 20, 2018, the children were removed from mother’s care and placed into the temporary custody of the Ottawa County Department of Job and Family Services (“OCDJFS”). On April 17, 2018, the children were adjudicated to be neglected and dependent children. Case plan services were provided to mother and Ga.R., with whom she was living. Ja.T. was incarcerated through the pendency of the case. {¶ 3} On February 21, 2019, OCDJFS moved for permanent custody of C.R . and G.R., and for legal custody of J.T. and A.T. to be given to D.B . A.R., the maternal grandfather, later filed a motion for legal custody of all four children. A trial on all of the motions for custody was held on June 24 and July 29, 2019. {¶ 4} At the trial, Betsy Gordon, a social service worker at OCDJFS, testified that the agency received a series of reports beginning in November 2 017 that the children were being neglected, and that they were exposed to drugs and d omestic violence in the home. Upon investigation, mother and Ga.R. admitted to marijua na use, and later refused drug screens. Mother also suffered a broken shoulder, and the children reported that

Ga.R. hit mother and threw her into the wall.

1 This appeal concerns only the award of legal custody of J.T. a nd A.T. Thus, our recitation of the facts will focus on those children.3. {¶ 5} Gordon also testified that the allegations of neglect were subs tantiated in that J.T., who at six years old was the oldest child, was performing the functions of a parent. J.T. would wake herself and her little sister in the morning an d cook breakfast for them. She would then tidy up after breakfast before getting herself r eady and going to school. When she returned from school, she would watch all of her young er siblings while her parents slept. {¶ 6} Regarding the conditions of the home, Gordon testified that the house was not in bad condition at first, but by March 2018, there was a c ockroach infestation. Cockroaches were falling out of the cupboards and off of the sh elves in the kitchen, there were dead cockroaches in the refrigerator, and there were cockr oaches in the living room, hallway, and the children’s bedrooms. {¶ 7} As a result of OCDJFS’s involvement, mother and Ga.R. voluntari ly placed J.T. and A.T. with another relative, H.L., and C.R. and G.R. we re placed with the maternal grandmother. However, on March 20, 2018, OCDJFS filed an ex parte motion for emergency custody of the children over fears that mother an d Ga.R. were fleeing with

the children to Florida. {¶ 8} Connie North, the ongoing caseworker for the children at OCDJFS , testified that following the grant of emergency custody, J.T. and A.T. co ntinued in the care of

H.L. {¶ 9} Over the next several months, A.R., the maternal grandfather, w ould have all four children at his home for day visitation. Those visitation s progressed to overnight4. visitations. During that time, North expressed some concerns t hat A.R. was not requiring C.R. to wear her glasses even though it was recommended that sh e wear them at all times. Further, North expressed a concern that A.R. left the i nfant G.R. in his car seat on the beach while A.R. went into the water with C.R. Also, North was concerned that C.R.’s bed was in the family room next to the big screen televi sion, hampering her ability to sleep well, and A.R. refused to move the bed into the bedroo m with J.T. {¶ 10} Visitations with A.R. stopped on July 27, 2018, when the foster parent noticed bruising on G.R. after an overnight visitation. Shortl y thereafter, the bruising was found to be a type of birthmark, but regular visitation was never reestablished. From July 2018 until February 2019, A.R. did not have individual vis itation with the children, but would instead occasionally accompany mother to supervised v isitations at Joyful Connections. A.R. also saw the children around the holidays at family gatherings. North asked A.R. to complete an intake form at Joyful Connections so that he could have individual visitations with the children, but he refused to do so until February 2019. {¶ 11} North testified that D.B. has had a long-term relationship with the paternal grandfather of J.T. and A.T., and has been a grandmother figure to the children. According to North, D.B. has been the main person to transport the children to doctor’s appointments, even when they were placed with H.L. D.B. and th e paternal grandfather have gone on vacations with the children, and have had them for weekend visits often. {¶ 12} Throughout the case, D.B. has conveyed to North that she would be interested in caring for J.T. and A.T. if the children ever nee ded a place to live. On5. March 30, 2019, H.L. contacted North and informed her that she was no longer able to care for the children, so J.T. and A.T. were placed with D.B. Both mother and Ja.T. supported placement of the children with D.B., although mother expressed her desire that all four of her children stay together. {¶ 13} North testified that she believes D.B. is the most appropriate person to care

for J.T. and A.T. because D.B. has been involved in their lives since they were young. Even through the placement process, D.B. has been active in the ir school activities, and has been transporting them from her home in Perrysburg, Ohio, s o that they could finish the school year at Port Clinton City Schools. If awarded custo dy, D.B. would transfer the

children to Lake School District. North also testified that D. B. is willing to maintain the children’s relationships with other family members. To that en d, D.B. has hosted holiday family gatherings including mother, A.R., Ga.R., and Ga.R.’s fa mily members. D.B. has also been in contact with C.R. and G.R.’s foster parents to pla n activities together over

the summer. {¶ 14} Kay Washington, the court appointed special advocate, testified that she

has observed the children on a number of different occasions. Washington stated that the children were happy with H.L., and expressed their desire to st ay with her, but after they were placed with D.B., Washington noticed that the children see med very comfortable, and appeared calmer than Washington had seen them for a long ti me. Washington also was impressed at how well the children did at school even thoug h they changed placements in the middle of the year, and Washington credits th at success in part to6. D.B.’s willingness to transport them the long distance so that they could finish the year in

the same school. {¶ 15} Regarding A.R., Washington testified that he was very laid back and easy going, and had a kind heart, but that he was not overly recepti ve to changing his behavior in regards to the children based on her suggestions. Washingto n also testified that recently she stopped at A.R.’s house for an unannounced visit a nd mother was present at the house with a number of her friends. Washington speculated that there was either drug or alcohol use that was going on that day because mother’s eyes “were very wide and very kind of glazed and dilated.” {¶ 16} Washington concluded by stating that it was her opinion that pl acement

with D.B. was in the best interests of J.T. and A.T. {¶ 17} A.R. also testified at the hearing. In addition, his testimony from a prior hearing on his motion to intervene, which was held on April 12, 2019, was included in the record. A.R. testified that he has a very good relationshi p with all four children, and that the children are affectionate with him. A.R. has been a p art of the children’s lives, and has watched them and transported them to school and appoint ments on occasion. A.R. testified that he does not see a problem having all four c hildren, and he understands that it would be a long-term arrangement. {¶ 18} The final witness to testify was D.B. D.B. testified that she has been in a long-term, committed relationship with the children’s paternal grandfather, and that the children view her as their grandmother. Although the paternal grandfather does not7. reside with D.B., he is over frequently. D.B. stated that she has been a big part of the children’s lives, and that she has had them most weekends. D.B . also explained her intentions and efforts to continue the relationship between all four of mother’s children,

and stated how she has become friends with the foster mom and t hey have made plans for the children to be together. Finally, D.B. also described how she has worked to continue the relationship between the children and the parents by having J.T. and A.T. call mother almost every night, by hosting family holiday celebrations, and even by contacting the prison warden so that the children could visit Ja.T. {¶ 19} Following the hearing, the trial court took the matter under ad visement. On August 16, 2019, the trial court entered its judgment awarding legal custody of J.T. and

A.T. to D.B. II. Assignment of Error {¶ 20} Mother has timely appealed the August 16, 2019 judgment entry, and now asserts one assignment of error for our review: 1. The trial court abused its discretion in failing to take in to consideration the wishes of the children when determining that the award of legal custody was in their best interest. III. Analysis {¶ 21} We review the trial court’s dispositional award for an abuse of discretion.

In re A.B. , 2018-Ohio-4206, 114 N.E.3d 421, ¶ 12 (6th Dist.). An abuse o f discretion8. connotes that the trial court’s attitude was arbitrary, unreaso nable, or unconscionable.

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 22} “When an agency moves for legal custody pursuant to R.C. 2151.4 15(A)(3), the juvenile court must base its order of disposition upon ‘the best interest of the child as supported by the evidence presented at the dispositional hearin g.’” In re A.B. at ¶ 10, quoting R.C. 2151.415(B). In dispositional hearings involving motions for legal custody b y nonparents, appellate courts have often held that the juvenile court must consider the best interest factors of either R.C. 2151.414(D) ( applicable only to motions of an agency for permanent custody or a permane nt living arrangement) or R.C. 3109.04(F) (as applied to custody disputes arising outside the domestic relations domain as habeas corpus actions or R.C. 2151.23(A)(2) actions between parents and nonparents) under a preponderance of the evidence standard. In re G.M. , [8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090,] ¶ 15 (citations omitted); In re B.H., P.H. , 6th Dist. Lucas Nos. L-17-1126, L-17-1127, 2018-Ohio-1238, ¶ 29; In re K.V. , 6th Dist. Lucas No. L-11-1087, 2012-Ohio-190, ¶ 19. However, t he General Assembly did not specify the factors to be considered f or legal custody as it did for other dispositional orders. The absence of a specific requirement to consider statutory factors of best interest may be due to the fact that legal custody is not as extreme as an award of perman ent custody.9. In re C.R. , 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 17. Therefore, we must presume the juvenile court is free to consid er any best interest factors it deems appropriate. In re G.M. at ¶ 15-16. Furthermore, those findings must be supported by a preponderance of the evid ence admitted at the dispositional hearing. In re B.L. , 6th Dist. Lucas No. L-15-1030, 2016-Ohio-738, ¶ 7.

Id. at ¶ 11. {¶ 23} In support of her assignment of error, mother argues that the t rial court abused its discretion by not considering the wishes of the chil dren as expressed in an in-camera interview that was conducted on July 29, 2019. Mothe r contends that R.C. 3109.04(F)(1)(b) requires the trial court to consider those wis hes, but the August 16, 2019 judgment entry does not reference the children’s wishes or note that the children’s wishes were considered. Thus, mother concludes that the trial court’s award of legal custody was an abuse of discretion. We disagree. {¶ 24} First, as noted above, although courts often look to R.C. 3109. 04(F) for guidance, those factors are not required for a “best interest” analysis under R.C. 2151.415(A)(3) and (B). {¶ 25} Second, by conducting an in-camera interview, the trial court d emonstrated that it considered the wishes of the children, whatever those m ay be. Nothing in R.C. 3109.04(F)—or R.C. 2151.414(D)—requires the trial court to comp ly with the children’s

wishes.10. {¶ 26} Finally, there is ample evidence in the record that an award of legal custody

to D.B. is in the children’s best interest. D.B. has been invo lved in the children’s lives since birth. Prior to OCDJFS’s involvement, D.B. cared for the m and spent many weekends together with them. After OCDJFS became involved, D.B . took the children to all of their appointments, and offered her home as a placement for the children. D.B. sacrificed by transporting the children so that they could fini sh the school year in Port Clinton Schools. D.B. has proven to be a stable and loving pre sence in the children’s lives, and the children feel very comfortable with her. D.B. h as also demonstrated a willingness and desire to allow the children to maintain their relationships with their parents, siblings, and other relatives such as A.R. Therefore, we hold that the trial court’s decision to award legal custody of J.T. and A.T. to D.B. is sup ported by the evidence and

is not an abuse of discretion. {¶ 27} Accordingly, mother’s assignment of error is not well-taken.

IV. Conclusion {¶ 28} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Ottawa County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the c osts of this appeal pursuant to App.R. 24.

Judgment affirmed.11. In re J.T. C.A. Nos. OT-19-036 OT-19-046

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.