[Cite as In re K.B., 2013-Ohio-858.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

IN RE: : 

 CASE NO. CA2012-03-063 

 K.B. : 

 O P I N I O N 

 : 3/11/2013 

 

 : 

 : 

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. JN2009-0090 

Jeannine Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, Guardian Ad Litem 

John D. Treleven, 810 Sycamore Street, 2nd Floor, Cincinnati, Ohio 45202, for appellant 

Fred Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for appellee, 

Virginia Sharp 

Michael T. Gmoser, Butler County Prosecuting Attorney, Shannon Haferkamp, Government 

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

County Department of Job and Family Services, Children Services Division 

Heather Felerski, P.O. Box 181342, Fairfield, Ohio 45018, for Misty Paul 

Richard Koehler II, 205 Society Bank Building, 6 South Second Street, Hamilton, Ohio 

45011-2729, for Misty Paul 

 M. POWELL, J.

{¶ 1} Appellant, J.B. (Father), appeals a decision of the Butler County Common 
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Pleas Court, Juvenile Division, granting legal custody of his daughter, K.B., to appellee, 

Virginia Sharp, a nonrelative friend of the child's mother (Mother). 

{¶ 2} K.B. was born in June 2006. At the time, her parents were married to one 

another. They separated in September 2007 and subsequently co-parented K.B. In July 

2008, following an incident during which Father "slammed" Mother against a wall and K.B.'s 

"hair got pulled out," Father was charged with domestic violence. The charges were 

dismissed when, according to Mother, the police officer did not appear for the hearing. 

Mother subsequently obtained a Civil Protection Order (CPO). It is in effect until July 28, 

2013. The CPO initially forbade any contact between Father on one hand and Mother and 

K.B. on the other hand. However, in September 2009, Father successfully moved to remove 

K.B. from the CPO. The child's parents were divorced in July 2009. 

{¶ 3} Mother has a long history of mental health and substance abuse issues. As a 

result, in September 2008, Mother and K.B. went to live with Sharp so that Mother could get 

back on her feet and take care of K.B. The child was 27 months old when she came to live 

with Sharp and Sharp's mother. 

{¶ 4} On March 26, 2009, the Butler County Department of Job and Family Services, 

Children Services Division (the Agency), filed a complaint alleging that K.B. was a dependent 

child. The Agency filed the complaint because of Mother's serious and unresolved mental 

health issues, including suicidal ideation and attempts, and her substance abuse issues. The 

complaint also stated that physical abuse of K.B. had been indicated in 2008 as a result of 

domestic violence between Father and Mother, and referred to the CPO in place "preventing 

[Father] from having contact with [K.B.] and [Mother]." By ex parte order, the juvenile court 

granted temporary custody of K.B. to Sharp. K.B. was two and one-half years old. 

{¶ 5} On March 30, 2009, Father moved for legal custody of his daughter but 

withdrew his motion in November 2009. K.B. was adjudicated a dependent child in April 
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2009. A case plan was developed for Father and Mother. Following the removal of K.B. 

from the CPO in September 2009, Father was granted supervised visitation. Temporary 

custody of K.B. remained with Sharp. In December 2010, Sharp moved for legal custody of 

K.B. Custody hearings were held from November 2010 to August 2011. During the 

proceedings, Father was granted unsupervised visitation in March 2011. The child's 

attorney/Court Appointed Special Advocate (CASA), the child's guardian ad litem, and 

Mother recommended that K.B. be placed in the legal custody of Sharp. Father opposed 

Sharp's motion for legal custody and testified he wanted to be awarded custody of K.B. 

{¶ 6} On November 7, 2011, the magistrate issued a decision awarding legal custody 

of K.B. to Sharp and granting visitation to Mother and Father. The magistrate found that: 

[T]he court finds it is in [K.B.'s] best interest to be placed in the 

legal custody of Virginia Sharp. Mother has recognized that she 

is not in a position to care for [K.B.] at this time, and therefore 

supports Ms. Sharp in her request for custody. 

Father's circumstances are concerning to the court. On one 

hand, the court finds that father has the potential to become a full 

time parent for [K.B.]. Father and [K.B.] clearly are bonded. 

[K.B.] loves her visits with father, and has a good relationship 

with father's girlfriend. Father co-parented [K.B.] with mother 

when [K.B.] was younger. However, father has lived in four or 

five separate residences during the two and half years this case 

has been open. Father was unemployed until June 2011, over 

two years after this case started; and his job is with a temporary 

service with the possibility of a permanent hire at the end of his 

probationary period. His job evaluation shows only average 

performance levels. Finally, and most troubling, father has 

shown a lack of insight into his behavior that has resulted in 

domestic violence charges being filed by three separate women. 

Nevertheless, father should be and remain actively engaged in 

[K.B.'s] life. 

[K.B.] is still an emotionally fragile child. She has been 

diagnosed with Attachment Disorder. Her counselor testified 

repeatedly that [K.B.] needs consistency and stability in her life. 

[K.B.] has been in the custody of Ms. Sharp for two and a half 

years in her five years of life. The court finds that Ms. Sharp is 

best able at this time to provide [K.B.] with the consistency and 

stability [K.B.] needs. 
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The juvenile court overruled Father's objections to the magistrate's decision and affirmed the 

decision in its entirety. 

{¶ 7} Father appeals, raising one assignment of error: 

{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, FATHER, 

WHEN IT AWARDED CUSTODY OF THE CHILD TO APPELLEE, WHO IS A LEGAL 

STRANGER TO THE CHILD. 

{¶ 9} Father argues the juvenile court abused its discretion when it granted legal 

custody of K.B. to Sharp, a nonrelative. Specifically, Father argues the juvenile court (1) 

improperly considered mere allegations of domestic violence against Father, (2) did not give 

sufficient weight to the fact he remedied all the conditions brought forth by the dependency 

complaint, (3) ignored Sharp's tenuous financial situation, and (4) failed to address the fact 

Father is K.B.'s blood relative, whereas Sharp is not. 

{¶ 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, 

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. * * * Unlike permanent custody, granting 

legal custody does not terminate the parent-child relationship." In re M.M., 12th Dist. No. 

CA2010-12-034, 2011-Ohio-3913, ¶ 7; R.C. 2151.011(B)(19). 

{¶ 11} A juvenile court's custody determination under R.C. 2151.353 must be based 

on the best interest of the child. In re J.D.E., 12th Dist. No. CA2012-01-016, 2012-Ohio4223, ¶ 7. In order to determine the best interest of the child, R.C. 3109.04(F)(1) requires 

that the juvenile court consider all relevant factors, including, but not limited to, any applicable 

factors set forth in R.C. 3109.04(F). Id. at ¶ 8. 
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{¶ 12} An appellate court reviews a juvenile court's custody determination for an abuse 

of discretion. In re M.A., 12th Dist. No. CA2011-02-030, 2012-Ohio-545, ¶ 19. An abuse of 

discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "As 'custody issues are some of the 

most difficult and agonizing decisions a trial judge must make,' the judge must be given 'wide 

latitude in considering all the evidence' and the decision must not be reversed absent an 

abuse of discretion." In re J.E.D. at ¶ 9, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418 

(1997). The discretion which a trial court enjoys in custody matters should be accorded 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. In re M.A. at ¶ 19. 

{¶ 13} Before we address Father's arguments under his assignment of error, we must 

first determine whether he has waived them. 

{¶ 14} Juv.R. 40(D)(3)(b)(iv) provides that "[e]xcept for a claim of plain error, a party 

shall not assign as error on appeal the court's adoption of any factual finding or legal 

conclusion * * * unless the party has objected to that finding as required by Juv.R. 

40(D)(3)(b)." This waiver under the rule embodies the long-recognized principle that the 

failure to draw the trial court's attention to possible error when the error could have been 

corrected results in a waiver of the issue for purposes of appeal. In re K.P.R., 197 Ohio 

App.3d 193, 2011-Ohio-6114, ¶ 9 (12th Dist.). The objections must be "specific and state 

with particularity all grounds for objection." Juv.R. 40(D)(3)(b)(ii). "The failure to file specific 

objections is treated the same as the failure to file any objections." In re D.R., 12th Dist. No. 

CA2009-01-018, 2009-Ohio-2805, ¶ 29. 

{¶ 15} "This court previously ruled that unless the appellant argues a 'claim of plain 

error,' the appellant has waived the claimed errors not objected to below." In re K.P.R. at ¶ 

10, citing, inter alia, In re D.R. at ¶ 30 (appellant did not specifically object to the magistrate's 
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foregoing finding and does not claim plain error here and is thereby precluded from raising 

this issue on appeal), and In re C.P., 12th Dist. No. CA2010-12-025, 2011-Ohio-4563, ¶ 35 

(by failing to raise specific objections regarding custody granted to relatives, or argue plain 

error in her brief, appellant is precluded from raising this issue on appeal and from 

challenging the juvenile court's adoption of the magistrate's finding). 

{¶ 16} Although Father filed objections to the magistrate's decision, he did not 

specifically raise the issues of Sharp's financial situation or Father's blood relationship (and 

Sharp's lack of same) to K.B. Further, Father does not claim plain error here. He is therefore 

precluded from raising these issues on appeal. 

{¶ 17} We now address Father's remaining two issues. Father first argues that the 

juvenile court erred when it considered mere allegations of domestic violence against Father 

in its analysis of the best interest factors under R.C. 3109.04(F)(1). Father asserts that 

absent a conviction, allegations of domestic violence cannot be considered under R.C. 

3109.04(F)(1)(h), and cites Clark v. Clark, 7th Dist. No. 03 NO 308, 2004-Ohio-1577, in 

support.1 

{¶ 18} In Clark, Karen Clark repeatedly kicked Darin Clark in the groin on March 27, 

2003. In discussing the incident under R.C. 3109.04(F)(1)(h), the Seventh Appellate District 

held that the March 27, 2003 incident could not be used against Karen under R.C. 

3109.04(F)(1)(h) because she had not been convicted of domestic violence: 

The eighth factor involves the determination of whether either 

party has been convicted of a criminal offense involving child 

abuse or of domestic violence. R.C. 3109.04(F)(1)(h). Karen's 

actions on that day do not weigh against her under this factor 

because the language of the statute requires a conviction. Since 

 

1. R.C. 3109.04(F)(1)(h) provides in relevant part that "In determining the best interest of a child pursuant to this 

section, whether on an original decree allocating parental rights and responsibilities for the care of children or a 

modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, 

including, but not limited to, 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 [domestic 

violence]." 
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she was not convicted (a complaint was never filed), this factor is 

inapplicable. 

Clark at ¶ 46. The appellate court held, however, that the trial court was not limited to 

considering only the factors in R.C. 3109.04(F)(1), and that "the trial court would not have 

abused its discretion" in considering the incident and "weighing [it] against Karen being 

named as a residential parent." Id. at ¶ 47. 

{¶ 19} A review of the juvenile court's decision shows that in its analysis of the factor 

under R.C. 3109.04(F)(1)(e) (the mental health of all persons involved), the court noted that 

although Father completed a domestic violence intervention program, "father felt that he was 

the victim of abuse and did nothing wrong. Father has been the respondent in domestic 

violence cases filed by three separate women with whom he has had a relationship." 

{¶ 20} In its analysis of the R.C. 3109.04(F)(1)(h) factor, the juvenile court did not cite 

the foregoing allegations of domestic violence. Rather, the court noted that as a result of the 

2008 domestic violence incident between Mother and Father, Mother filed domestic violence 

charges against Father. The court also referred to the CPO and noted that both Mother and 

K.B. were initially protected parties. 

{¶ 21} It is undisputed that Father was never convicted of domestic violence. The 

record shows, however, and Father admitted during the custody hearings, that over the 

years, three different women – Mother, a former wife, and the mother of one of his sons – 

filed protection orders against Father.2 The CPO filed by Mother is in effect until July 28, 

2013, and was in place during the proceedings below. Nonetheless, Father testified that all 

the protection orders, including the CPO filed by Mother, were based on false allegations. 

Father also touted the fact he had never been convicted of domestic violence, and denied 

 

2. The record indicates that Father's former wife filed protection orders against him in 1991 and 1998; the 

mother of his son filed a protection order in 2001; and Mother filed the CPO in 2008. A protection order was also 

filed against Father in 2000. 
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"victimizing" any women. 

{¶ 22} The record shows that Father successfully completed a batterer's intervention 

program and that he participated in individual counseling. However, Father testified that the 

batterer's program taught him he was the victim in the relationships and "the one being 

abused." Further, he did not benefit from the counseling because he did not need 

counseling. A caseworker from the Agency testified that Father's participation in the 

batterer's program was minimal, Father gained little insight from the program, and Father 

refused to accept responsibility for any violent actions on his part because he denied ever 

committing domestic violence. 

{¶ 23} In light of the foregoing, we find the juvenile court did not err in considering the 

several allegations of domestic violence made against Father in determining what was in the 

best interest of K.B. See Heilman v. Heilman, 3rd Dist. No. 6-12-08, 2012-Ohio-5133 (citing 

R.C. 3109.04(F)(1)(h), the appellate court held that the trial court did not abuse its discretion 

in holding that father's shared parenting plan was not in the best interest of the child where, 

inter alia, there was an incident of physical violence between the parents giving rise to a 

CPO). 

{¶ 24} Father next argues the juvenile court did not give sufficient weight to the fact he 

remedied all the conditions set forth in the dependency complaint. Father asserts that 

because he is employed, has lived in the same residence for over a year, and has 

successfully completed the batterer's program, all requirements under his case plan, he has 

successfully remedied all the problems that resulted in the filing of the dependency 

complaint. We disagree. 

{¶ 25} It is well-established that a parent's completion of case plan services does not 

equate to, or compel a finding that the parent has substantially remedied the conditions that 

caused the removal of the child from the home. In re E.B., 12th Dist. Nos. CA2009-10-139 
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and CA2009-11-146, 2010-Ohio-1122, citing In re Mraz, 12th Dist. Nos. CA2002-05-011 and 

CA2002-07-014, 2002-Ohio-7278. "A parent can successfully complete the requirements of 

a case plan, but not substantially remedy the conditions that caused the children to be 

removed, as the case plan is 'simply a means to a goal, but not the goal itself.'" In re E.B. at 

¶ 30, quoting In re C.C., 8th Dist. Nos. 94013 and 94014, 2010-Ohio-780, ¶ 25.3 

{¶ 26} The record shows, and the juvenile court found, that Father and K.B. are clearly 

bonded, love one another, and enjoy their visits. The record also shows, however, that while 

Father is employed and has a residence, these goals were only recently reached. This case 

began in March 2009. Since then, Father has lived in four separate residences. While he 

has been renting his current apartment since August 2010, he did not have any furniture until 

March 2011 and as a result, had been living with his girlfriend. In her September 2011 final 

report, the child's guardian ad litem noted that while the apartment has a bedroom for K.B. 

with a bed, toys, and clothes, the toys were not age-appropriate and the clothes no longer fit 

as they appeared to be primarily the clothes and toys K.B. had before March 2009. 

{¶ 27} During the August 16, 2011 hearing, Father testified he was employed in a 

"temp-to-hire job" as a machine operator, started the job on June 13, 2011, and was hoping 

to be permanently hired at the end of his probationary period. However, his job evaluation 

showed only average performance levels in the areas of job ability, productivity, and safety. 

Father testified that between March 2009 and June 2011, he was unemployed most of the 

time and was doing odd jobs here and there. During the March 2011 hearing, the 

caseworker for the Agency testified that to her knowledge, Father did not have any disability 

that would prevent him from working. 

 

3. Both In re Mraz and In re E.B. were permanent custody cases. Nonetheless, we find that their holding 

regarding the connection between successfully remedying the conditions that caused a child to be removed from 

home and completing a case plan equally applies to legal custody cases involving case plans under R.C. 

Chapter 2151.01. 
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{¶ 28} With regard to the batterer's program, the record shows that while Father 

successfully completed it, he gained very little insight from it and denied committing domestic 

violence against any woman. As stated earlier, Father asserts that all the protection orders 

were based on false allegations. The caseworker testified that in addition to the three 

women, a man had also filed for a protection order against Father. 

{¶ 29} K.B.'s therapist testified that consistency and structure were the most important 

things in K.B.'s life. K.B. has been in the temporary custody of Sharp since March 2009 and 

has continuously lived with her since September 2008. The record shows that Sharp has 

consistently met all of K.B.'s needs and has provided stability, structure, and consistency in 

K.B.'s life. K.B. and Sharp have a bonded relationship and K.B. is quite attached to Sharp's 

mother who resides with Sharp and K.B. K.B. is well-adjusted in Sharp's home. 

{¶ 30} Father's love and desire to parent K.B. is apparent. Nonetheless, upon 

thoroughly reviewing the record, we find no abuse of discretion by the juvenile court in 

granting legal custody of K.B. to Sharp rather than to Father. Leaving K.B. in the care of 

Sharp minimizes the disruption to the child and allows her to maintain the strong bond she 

has forged with Sharp and Sharp's mother for the last two and one-half years, while also 

allowing her to maintain the bond she has with Father. As noted earlier, a grant of legal 

custody does not terminate the parent-child relationship. In re M.M., 2011-Ohio-3913 at ¶ 7. 

In the present case, Father's parental rights were not terminated. He has retained residual 

parental rights and responsibilities with K.B., including contact and visitation and a duty to 

support. Id. 

{¶ 31} Father's assignment of error is accordingly overruled. 

{¶ 32} Judgment affirmed. 

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