[Cite as In re M.G., 2019-Ohio-906.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

IN RE: 

 CASE NO. 1-18-54 

 M.G., 

ADJUDICATED DEPENDENT CHILD. 

 O P I N I O N 

[MARCUS GANT - APPELLANT] 

 

Appeal from Allen County Common Pleas Court 

Juvenile Division 

Trial Court No. 2017-JG-34159 

Judgment Affirmed 

Date of Decision: March 18, 2019 

 

APPEARANCES: 

F. Stephen Chamberlain for Appellant 

Sarah N. Newland for Appellee 

 
Case No. 1-18-54 

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WILLAMOWSKI, J. 

{¶1} Father-appellant Marcus Gant (“Marcus”) appeals the judgment of the 

Juvenile Division of the Allen County Court of Common Pleas, arguing that the trial 

court erred by not awarding legal custody of his child, MG, to MG’s paternal 

grandmother. For the reasons set forth below, the judgment of the trial court is 

affirmed. 

Facts and Procedural History 

{¶2} Both of MG’s parents are currently incarcerated. Doc. 116. Her mother 

was sentenced to six years in prison for the crimes of conspiracy to trafficking in 

persons and promoting prostitution. Doc. 116. Her father, Marcus, was sentenced 

to four years in prison for conspiracy to trafficking in persons and promoting 

prostitution. Doc. 116. Consequently, on January 4, 2017, the trial court issued a 

shelter care order that placed MG with the Allen County Children Services Board 

(“ACCSB”). Doc. 1. The magistrate found that “it is not in the best interest of 

[MG] to remain in the Mother’s custody, and the minor child cannot be placed in 

the Alleged Father’s custody.” Doc. 1. The magistrate further found that MG’s 

half-sibling had already been removed from the custody of MG’s mother and placed 

into the permanent custody of the ACCSB in 2016. Doc. 1. 

{¶3} Subsequent to an adjudicatory hearing on February 13, 2017, the trial 

court found MG to be a dependent child. Doc. 39. The trial court then placed MG 

into the temporary custody of the ACCSB after a dispositional hearing on March 
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20, 2017. Doc. 43. On August 22, 2017, Marcus’s mother, Gina Gant (“Gina”), 

filed a motion to intervene that was later denied on March 27, 2018. Doc. 52, 54, 

107. On August 23, 2017, the ACCSB filed a motion requesting the modification 

of the prior order of temporary custody; the termination of the court ordered services 

of the ACCSB; and the award of legal custody to MG’s foster parents, Amanda and 

Joshua Crouch (“the Crouches”), who have custody of MG’s half-sibling. Doc. 56. 

Tr. 11. On January 8, 2018, Marcus filed a motion for legal custody. Doc. 81. 

{¶4} Both of MG’s parents requested that MG be placed with Gina. Doc. 

116. On April 13, 2018, the Juvenile Division held an annual review hearing and 

addressed the issues raised by these motions. Tr. 1. Doc. 131. Following the 

hearing, the magistrate issued a decision that granted the ACCSB’s motion to 

modify the prior dispositional order of the trial court; added the Crouches as parties 

to this action; and dismissed Marcus’s motion for legal custody. Doc. 116. On June 

22, 2018, Marcus filed his objections to the magistrate’s decision, arguing that the 

foster parents were not more likely than Gina to honor the court-approved guidelines 

for parental visitation and that permanent placement with Gina was a legally secure 

option before the trial court. Doc. 119. On September 18, 2018, the trial court 

overruled Marcus’s objections to the magistrate’s decision. Doc. 130. 

Assignment of Error 

{¶5} Appellant filed his notice of appeal on September 28, 2018. Doc. 132. 

On appeal, Marcus raises the following assignment of error: 
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The court below did not have sufficient evidence before it, on the 

record, to award legal custody of a child to a foster parent instead 

of the paternal grandmother. 

He requests that this Court reverse the trial court’s decision and order the trial court 

to place MG in the legal custody of Gina. 

Legal Standard 

{¶6} The Ohio Revised Code defines “legal custody” as a 

legal status that vests in the custodian the right to have physical 

care and control of the child and to determine where and with 

whom the child shall live, and the right and duty to protect, train, 

and discipline the child and to provide the child with food, shelter, 

education, and medical care, all subject to any residual parental 

rights, privileges, and responsibilities. * * * 

R.C. 2151.011(B)(21). Thus, an award of legal custody does not divest a parent of 

his or her residual parental rights and does not “permanently foreclose[]” the 

possibility of a parent regaining legal custody in the future. In re B.P., 3d Dist. 

Logan Nos. 8-15-07, 8-15-08, 2015-Ohio-5445, ¶ 19. 

{¶7} For this reason, an “award of legal custody is ‘not as drastic a remedy 

as permanent custody.’” Id. at ¶ 18, quoting In re L.D., 10th Dist. No. 12AP-985, 

2013-Ohio-3214, ¶ 7. “Therefore, the trial court’s standard of review in legal 

custody proceedings is not clear and convincing evidence, as it is in permanent 

custody proceedings, but is merely a preponderance of the evidence.” In re Bixler, 

3d Dist. Seneca Nos. 13-05-41, 13-05-42, 2006-Ohio-3533, ¶ 24. “‘Preponderance 

of the evidence’ means evidence that is more probable, more persuasive, or of 
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greater probative value.” In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-2670, 

¶ 33. 

{¶8} R.C. 2151.353(A) governs the disposition of children determined to be 

abused, neglected, or dependent and reads, in its relevant part, as follows: 

(A) If a child is adjudicated an abused, neglected, or dependent 

child, the court may make any of the following orders of 

disposition: 

* * * 

(2) Commit the child to the temporary custody of any of the 

following: 

(a) A public children services agency; 

* * * 

(3) Award legal custody of the child to either parent or to any 

other person who, prior to the dispositional hearing, files a motion 

requesting legal custody of the child or is identified as a proposed 

legal custodian in a complaint or motion filed prior to the 

dispositional hearing by any party to the proceedings. * * *. 

R.C. 2151.353(A)(3). After a court has issued a dispositional order pursuant to R.C. 

2151.353(A), the court may later modify that order pursuant to R.C. 2151.353(F), 

which reads, in its relevant part, as follows: 

(F)(1) The court shall retain jurisdiction over any child for whom 

the court issues an order of disposition pursuant to division (A) of 

this section * * * of the Revised Code until the child attains the 

age of eighteen years * * *. 

(2) Any public children services agency * * * or any party * * *, 

by filing a motion with the court, may at any time request the 

court to modify or terminate any order of disposition issued 
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pursuant to division (A) of this section * * *. The court shall hold 

a hearing upon the motion as if the hearing were the original 

dispositional hearing and shall give all parties to the action and 

the guardian ad litem notice of the hearing pursuant to the 

Juvenile Rules. If applicable, the court shall comply with section 

2151.42 of the Revised Code. 

R.C. 2151.353(F). When “a court is asked to modify or terminate an order of 

disposition,” the court is to consider what “is in the best interest of the child.” R.C. 

2151.42(A). 

Although there is no specific test or set of criteria that must be 

followed in determining what is in a child’s best interest in a legal 

custody case, other appellate courts have held that the R.C. 

2151.414(D) factors may be “instructive.” See, e.g., In re Howland

Children, 5th Dist. Stark No.2015CA00113, 2015-Ohio-3862, ¶ 7; 

In re D.T., 8th Dist. Cuyahoga Nos. 100970, 100971, 2014-Ohio4818, ¶ 20. These factors include: the interaction of the child with 

the child’s parents, relatives and caregivers; the wishes of the 

child, as expressed directly by the child or through the child’s 

GAL; the custodial history of the child; and the child’s need for a 

legally secure permanent placement. R.C. 2151.414(D). 

In re J.B. at ¶ 34. “The court is required to consider all other relevant circumstances 

in making its determination.” In re K.S., 3d Dist. Seneca No. 13-15-11, 2015-Ohio3814, ¶ 5. 

{¶9} “A juvenile court has broad discretion in the disposition of an abused, 

neglected, or dependent child.” In re C. W., 3d Dist. Wyandot No. 16-09-26, 2010-

Ohio-2157, ¶ 10. For this reason, an award of legal custody will not be reversed on 

appeal absent an abuse of discretion. Bixler at ¶ 24. An abuse of discretion is not 

merely an error of judgment. Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339, 
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¶ 7 (3d Dist.). Rather, an abuse of discretion is present where the trial court’s 

decision is unreasonable, arbitrary, or capricious. Southern v. Scheu, 3d Dist. 

Shelby No. 17-17-16, 2018-Ohio-1440, ¶ 10. 

Legal Analysis 

{¶10} In this case, the ACCSB considered placing MG with Gina. Doc. 116. 

However, the ACCSB determined that the best interests of the child would be served 

by leaving MG in the custody of the Crouches. Tr. 13-14. The Crouches had 

custody of MG’s half-sibling and had been caring for MG since the time of her birth. 

Tr. 11. A caseworker for the ACCSB, Tiffany Geren (“Geren”) testified at the 

hearing that MG was integrated into the Crouch home; that MG has not had any 

other placements since being with the Crouches; and that the Crouches provided a 

stable environment for MG. Tr. 13-14. 

{¶11} Geren also testified that Gina indicated that she was willing to allow 

MG to have contact with Marcus after he was released from prison. Tr. 15. When 

Geren asked whether Gina “would be able to protect [MG]” from any harm that 

might come to her from Marcus, Gina said that “she felt * * * that the parents 

actually did nothing wrong and * * * blam[ed] the victim for * * * their 

incarceration.” Tr. 15. Gina also did not see MG retaining a relationship with her 

half-sibling as important whereas the Crouches were willing for Gina to have 

visitation with Gina each week. Tr. 17, 22. Further, in a recorded conversation with 

Marcus at the prison, Gina stated repeatedly that she did not believe that she was 
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able to care for MG at that time. Tr. 16. In this call, Marcus told Gina that she 

would only have to care for MG until he was released from prison. Doc. 116. 

However, Geren testified that MG’s mother had, in a previous case, reported Marcus 

for allowing “sex offenders” and active drug users into his home. Tr. 20. 

{¶12} At the hearing, Gina testified that she was on disability. Tr. 100. 

However, Gina did not explain what her disability was and refused to explain how 

her disability affected her daily life. Tr. 100-101. She also denied that she had prior 

involvement with children services when she, in fact, was the alleged perpetrator in 

an emotional maltreatment case in 2003. Tr. 101. She later admitted that Marcus 

had gotten into trouble at the age of fourteen and had been removed from her 

custody. Tr. 102. Gina testified that she “didn’t know how to deal with him.” Tr. 

102. She testified that Marcus was then placed in a group home and never again 

lived with her. Tr. 104. As a minor, Marcus had “sexually-related charges” against 

him. Tr. 106. Gina also claimed that Marcus was “coerced” into committing the 

crimes for which he was serving time in prison. Tr. 112. 

{¶13} Based on the evidence presented at the hearing, the magistrate found 

that Gina would likely return MG to her parents upon their release from prison. 

Doc. 116. The magistrate determined that this would not be in the child’s best 

interests because MG’s mother has had all of her children removed from her custody 

and because MG’s father has not complied with ACCSB’s instructions that enjoined 

him from allowing sex offenders in his home. Doc. 116. The magistrate also found 
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that Gina did not believe Marcus had committed the crimes for which he was 

incarcerated and had been coerced into committing these offenses. Doc. 116. 

{¶14} In this case, the trial court considered a variety of factors in reaching 

the decision that MG’s best interests were served in this modification of the 

dispositional order. We do not find any indications in the record that the trial court 

abused its discretion in awarding legal custody to the Crouches. For these reasons, 

Marcus’s sole assignment of error is overruled. 

Conclusion 

{¶15} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Juvenile Division of the Allen County 

Court of Common Pleas is affirmed. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/hls