[Cite as In re M.M., 2018-Ohio-2034.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERYCOUNTY 

IN RE: M.M. : 

: 

: 

: 

: 

: 

: 

: 

: 

:

C.A. CASE NOS. 27722 and 27724 

T.C. NOS. JC-2015-6384 and 

 2016-3599 

(Civil Appeal from Juvenile Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 25th day of May, 2018. 

. . . . . . . . . . . 

ALICE PETERS, Atty. Reg. No. 0093945, Montgomery County Prosecutor’s Office, 301 

West Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee – Montgomery County Children Services Board 

ROBERT BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 

45434 

 Attorney for Defendant-Appellant - Father 

MICHAEL BOOHER, Atty. Reg. No. 0007694, 120 West Second Street, Suite 1504, 

Dayton, Ohio 45402 

 Attorney for Minor Child 

 

CHRISTOPHER DEAL, Atty. Reg. No. 0078510, Law Offices of Gump & Deal, 2541 
-2- 

Shiloh Springs Road, Dayton, Ohio 45426 

 Attorney for Maternal Grandfather 

THEODORE VALLEY, Atty. Reg. No. 0070867, Baldwin Valley Law, LLC, 854 East 

Franklin Street, Dayton, Ohio 45459 

 Attorney for Guardian Ad Litem 

. . . . . . . . . . . . . 

 

DONOVAN, J. 

{¶ 1} Petitioner-appellant Father appeals a decision of the Montgomery County 

Court of Common Pleas, Juvenile Division, overruling his objections to the Magistrate’s 

decision, finding M.M. to be a dependent child, granting temporary custody of M.M. to the 

maternal aunt, and postponing Father’s visitation with M.M. until her therapist 

recommends it. Father filed a timely notice of appeal with this Court on September 8, 

2017. 

{¶ 2} M.M. was born to Mother and Father in March of 2002. Mother and Father 

divorced in December of 2009. After the divorce, Mother became M.M.’s primary 

custodian, and Father was awarded standard visitation. As M.M. grew older, she would 

often refuse to go to Father’s house when it became his time to exercise visitation. 

During February of 2015, M.M. alleged that Father had sexually abused her. Law 

enforcement in Clermont County, Ohio, investigated the allegations made by M.M. but 

ultimately did not file charges against Father. In July of 2015, Mother sent M.M. to live 

with the maternal grandfather, J.W., because of conflict between Mother’s boyfriend and 

M.M. 

{¶ 3} On October 6, 2015, Mother passed away as a result of suicide. During this 

time M.M. continued to reside with the maternal grandfather. We note that at the time of 
-3- 

the temporary custody hearing, Father had not seen M.M. since May of 2014, and had 

not spoken with her since April of 2015. On October 20, 2015, the maternal grandfather 

filed a petition for custody of M.M. in Case No. JC 2015-6384. On December 4, 2015, 

Father filed a motion to dismiss the maternal grandfather’s petition for custody for lack of 

jurisdiction. The juvenile magistrate overruled Father’s motion to dismiss on February 2, 

2016. Thereafter on March 21, 2016, Father filed a motion for a psychological and 

physical examination of M.M. which the magistrate later granted on May 4, 2016. 

{¶ 4} On June 1, 2016, Montgomery County Children’s Services (MCCS) filed a 

complaint in Case No. JC 2016-3599 alleging that M.M. was a dependent child and 

requesting a disposition of temporary custody to the maternal grandfather, or, in the 

alternative, temporary custody to MCCS. On June 13, 2016, an interim order hearing 

was held before the magistrate who granted interim temporary custody of M.M. to MCCS. 

On June 20, 2016, the juvenile court consolidated Case Nos. JC 2015-6384 and JC 2016-

3599. On July 21, 2016, the Court Appointed Special Advocate (CASA)/ Guardian ad 

Litem (GAL) filed a motion requesting temporary custody of M.M. be granted to MCCS. 

On July 26, 2016, MCCS filed an amended complaint requesting an alternative disposition 

of temporary custody of M.M. to the maternal aunt, L.B. On August 4, 2016, the GAL 

filed an amended motion requesting temporary custody of M.M. to MCCS, or, in the 

alternative, temporary custody to the maternal aunt. 

{¶ 5} On August 11, 2016, a temporary custody hearing was held before the 

magistrate. On August 12, 2016, the magistrate issued a decision finding M.M. to be a 

dependent child and awarded temporary custody of the child to the maternal aunt. The 

magistrate also ordered that Father was not to have visitation with M.M. until her therapist 
-4- 

recommended it. At the time of the hearing, M.M. had been removed from the maternal 

grandfather’s home by MCCS and was living with a foster family. 

{¶ 6} Father filed objections to the magistrate’s decision on August 25, 2016. 

After receiving the transcript of the temporary custody hearing, Father filed supplemental 

objections on March 28, 2017. MCCS filed its reply to Father’s supplemental objections 

on April 27, 2017. Thereafter, on August 9, 2017, the juvenile court issued a decision 

overruling Father’s objections and adopting the magistrate’s decision adjudicating M.M. 

as a dependent child and granting temporary custody to the maternal aunt. The juvenile 

court also granted a first extension of temporary custody to the maternal aunt since the 

original award of temporary custody had expired on June 2, 2017. 

{¶ 7} It is from this decision that Father now appeals. 

{¶ 8} Father’s first assignment of error is as follows: 

{¶ 9} “THE TRIAL COURT ERRED BY FINDING M.M. TO BE A DEPENDENT 

CHILD.” 

{¶ 10} In his first assignment, Father contends that the juvenile court erred when 

it adjudicated M.M. as a dependent child because he has affirmatively expressed his 

desire to raise his daughter and is able to provide adequate parental care and support for 

her. 

{¶ 11} A “dependent child” includes one “[w]hose condition or environment is such 

as to warrant the state, in the interests of the child, in assuming the child's guardianship 

* * *.” R.C. 2151.04(C). A trial court's dependency finding must be supported by clear 

and convincing evidence. In re P. G., 2d Dist. Montgomery No. 22706, 2008–Ohio–4015, 

¶ 11. This Court's review is limited to determining whether the record contains sufficient, 
-5- 

credible evidence to support the trial court's decision. Id. 

{¶ 12} The focus in a dependency proceeding is on the child's condition, not on 

parental fault or a lack thereof. In re A.W., 2d Dist. Montgomery No. 25039, 2012-Ohio2657, ¶ 11; see also In re Riddle, 79 Ohio St.3d 259, 263, 680 N.E.2d 1227 (1997) 

(recognizing that a dependency case focuses on the condition or environment of the child 

rather than parental fault); State v. Frazier, 2d Dist. Montgomery Nos. 15273, 15274, 1996 

WL 517271, *3 (Sept. 13, 1996) (“Unlike a case involving neglect, fault on the part of a 

parent is not necessary to a finding of dependency. * * * In dependency cases, the focus 

is on the condition of the children, and not the fault of the parents.”). “This is not to say 

that a parent's conduct is never relevant in a dependency proceeding. A parent's 

problems and deficiencies certainly can affect a child's condition or environment and 

necessitate state intervention.” In re A.W. at ¶ 11, citing In re Lannom, 2d Dist. Clark 

No. 96–CA–64, 1997 WL 761323, *5 (Dec. 12, 1997). “But a finding of dependency does 

not require a showing of parental fault because fault is not an issue in a dependency 

proceeding.” In re A.W. at ¶ 11. 

{¶ 13} “The conduct of a parent is relevant under [R.C. 2151.04(C)] solely insofar 

as that parent's conduct forms a part of the environment of the child. As a part of the 

child's environment such conduct is only significant if it can be demonstrated to have an 

adverse impact upon the child sufficiently to warrant state intervention. That impact 

cannot be simply inferred in general, but must be specifically demonstrated in a clear and 

convincing manner.” In re Burrell, 58 Ohio St.2d 37, 39, 388 N.E.2d 738 (1979). 

{¶ 14} M.M. was adjudicated as a dependent child pursuant to R.C. 2151.04(A) 

and (C). R.C. 2151.04(A) defines “dependent child” as any child “[w]ho is homeless or 
-6- 

destitute or without adequate parental care, through no fault of the child’s parents, 

guardian, or custodian.” R.C. 2151.04(C) defines “dependent child” as any child 

“[w]hose condition or environment is such as to warrant the state, in the interests of the 

child, in assuming the child's guardianship.” 

{¶ 15} As previously stated, Mother passed away as a result of suicide on October 

6, 2015. Prior to her death, Mother arranged for M.M. to live with the maternal 

grandfather beginning in July of 2015. The maternal grandfather testified that he 

struggled to control M.M.’s behaviors and was unable to set rules and boundaries for her. 

Dr. Elana Harris, a child psychiatrist at Cincinnati Children’s Hospital, testified that she 

had been treating M.M. since September of 2015. Dr. Harris diagnosed M.M. with posttraumatic stress disorder (PTSD), generalized anxiety disorder, major depression, 

obsessive compulsive disorder (OCD), and Tourette’s Syndrome. Dr. Harris testified 

that M.M. suffered from nightmares, intrusive thoughts and memories, flashbacks, 

difficulty concentrating, suicidal ideation, and anxiety. M.M. also suffered from significant 

medical issues, including severe headaches, insomnia, and abdominal issues, for which 

she was receiving treatment. 

{¶ 16} Dr. Harris testified that M.M.’s PTSD was caused by a number of traumas 

that she had suffered throughout her life. Dr. Harris testified that M.M. recounted 

memories of domestic violence perpetrated by Father against Mother which occurred 

when she was approximately six years old. M.M. also told Dr. Harris that she had been 

sexually molested by Father when she was a child. Dr. Harris testified that triggers for 

M.M.’s PTSD include Father, talking about Father, himself, and thinking about living with 

Father. Dr. Harris testified that she believed that M.M.’s perspectives about her Father 
-7- 

were her own and that she was not malingering or being influenced by her Mother’s family 

against Father. Dr. Harris concluded that visits with Father would be detrimental to 

M.M.’s progress in treatment, and therefore, not in her best medical and mental health 

interest. 

{¶ 17} Dr. Antoinette Cordell, a clinical and developmental psychologist 

independently hired by Father, performed a psychological evaluation of M.M. in June of 

2016. Essentially echoing the findings made by Dr. Harris, Dr. Cordell testified that M.M. 

suffered from PTSD as a result of the traumas she had suffered. Dr. Cordell testified 

that M.M. indicated that “she was sexually, physically, and mentally abused, in her mind, 

by her biological father.” Trans. 127-128. Dr. Cordell further testified that M.M. did not 

appear to have been influenced against Father, nor did her statements seem coached. 

Dr. Cordell testified that M.M.’s mental and physical issues were real and that she was 

not malingering. Dr. Cordell testified that she did not recommend visitation with Father 

because M.M. was not currently stable enough, and visitation would be detrimental to her 

treatment. 

{¶ 18} Melody Popp, M.M.’s caseworker at MCCS, testified that M.M. was 

adamant that she did not want to have any contact with her Father. During a home visit 

in May of 2016, Popp attempted to discuss the subject of visiting Father with M.M. Popp 

testified that M.M. immediately became very upset, was shaking, and started 

hyperventilating. M.M. informed Popp that “she did not want to live anywhere if she was 

forced to live with her father.” Trans. 56. We note that Dr. Harris testified that during a 

therapeutic session, M.M. stated that she “would not want to be alive if she were returned 

to her father.” Trans. 25. 
-8- 

{¶ 19} In contrast to the diagnoses of Drs. Harris and Cordell, Father testified that 

he believed that M.M. was malingering and falsely reporting medical problems. Father 

testified that M.M. was manipulating all of the adults in her life, including Drs. Harris and 

Cordell. Father testified that everyone permitted M.M. to make decisions for herself, and 

he was the only adult willing to make decisions on her behalf and not be manipulated by 

her. Despite Dr. Harris and Popp’s testimony with respect to M.M.’s threatening suicide 

if she returned to live with Father, he testified that she would not be in any physical harm 

if she came to live with him. Popp testified that Father stated religion was very important 

to him and that MCCS should force M.M. to go to church on the weekends. Popp further 

testified that Father stated that if she refused to go, MCCS should call the police to come 

and force her to attend church. Dr. Cordell testified that forcing religious participation on 

M.M. would be detrimental to her mental and physical health. 

{¶ 20} Upon review, we conclude that clear and convincing evidence was adduced 

at the temporary custody hearing which established that M.M. is a dependent child 

pursuant to R.C. 2151.04(A) and (C). The record establishes that the maternal 

grandfather was unable to properly care for M.M. because of her special mental and 

physical needs. Furthermore, both Dr. Harris and Dr. Cordell testified that based upon 

their treatment of M.M., it would be detrimental for her to have visitation with Father, let 

alone custody, and therefore, not in her best interests. Given M.M.’s existing mental and 

physical problems, as well as her perception of Father, placement of M.M. in his home 

would further exacerbate her existing issues. Accordingly, the trial court did not err when 

it adopted the magistrate’s decision adjudicating M.M. a dependent child. 

{¶ 21} Father’s first assignment of error is overruled. 
-9- 

{¶ 22} Father’s second assignment of error is as follows: 

{¶ 23} “THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A FIRST 

EXTENSION OF TEMPORARY CUSTODY OF M.M TO HER MATERNAL AUNT.” 

{¶ 24} In his second assignment or error, Father argues that the trial court abused 

its discretion when it awarded temporary custody of M.M. to the maternal aunt. 

Specifically, Father argues that the juvenile court relied too heavily on the testimony of 

Dr. Harris and Dr. Cordell, whom he alleges have been manipulated by M.M. Father 

further argues that the evidence established that he was able to properly care for M.M. 

and address her mental health issues. 

{¶ 25} A court may commit a dependent child to the temporary custody of a public 

children services agency or a relative residing within or outside the state if the court finds 

that this disposition is in the child's best interest. See In re A.W., 2d Dist. Montgomery 

No. 25039, 2012–Ohio–2657, ¶ 17, citing R.C. 2151.353(A)(2) and In re S.M., 2d Dist. 

Montgomery No. 24539, 2011–Ohio–6710, ¶ 3. The court's temporary custody decision 

“must be supported by a preponderance of the evidence.” In re S.M. at ¶ 4. The decision 

will not be overturned as against the manifest weight of the evidence if the record contains 

competent, credible evidence supporting the decision. See In re A.U., 2d Dist. 

Montgomery No. 22264, 2008–Ohio–186, ¶ 15. 

{¶ 26} “While an award of temporary custody to a children-services agency must 

be supported by the preponderance of the evidence, ‘a court has substantial discretion in 

weighing the considerations involved in making the determination regarding a child's best 

interest.’ ” In re A.W. at ¶ 17, quoting In re S.M. at ¶ 4. A court determines a child's best 

interest using the relevant factors in R.C. 3109.04(F)(1). In re D.S., 2d Dist. Clark No. 
-10-

2013 CA 51, 2014–Ohio–2444, ¶ 9. The factors pertinent to the instant case include: 1) 

the parents' wishes; 2) the child's wishes, if the court has interviewed the child; 3) the 

child's interaction with parents, siblings, and others who may significantly affect the child's 

best interests; 4) adjustment of the child to home, school, and community; and 5) the 

mental and physical health of all those involved. 

{¶ 27} Initially, we note that before Mother passed away, she arranged to have 

M.M. live with the maternal grandfather and executed a power of attorney for him to care 

for her. Popp testified that Mother stated that she wanted M.M. to live with the maternal 

grandfather. 

{¶ 28} Father testified that he wanted custody of M.M. and was able to care for 

her. At the time of the hearing, Father had not spoken with M.M. since April of 2015, 

when he sent her a text message on her birthday. Father, however, did testify that he 

wanted the opportunity to rebuild his relationship with M.M. Father also testified that if 

he did not get custody of M.M., he still wanted to have visitation with her and would be 

willing to engage in therapy with her. 

{¶ 29} Pursuant to R.C. 2151.353(A)(2), if a child is adjudicated a dependent child, 

the court may place him or her with a relative residing within or outside the state. Prior 

to awarding temporary custody to the maternal aunt, the magistrate held an in camera 

interview with M.M., and the interview is not part of the record. While the magistrate’s 

decision does not disclose what was said during the interview, the record establishes that 

M.M. has consistently stated that she does not want to live with Father nor have any 

contact with him. Popp, Dr. Harris, and Dr. Cordell all testified that M.M. became very 

upset at the suggestion that Father might get custody of her. As previously stated, M.M. 
-11-

threatened self-harm when she was asked about living with Father. M.M. told Dr. Harris 

and Dr. Cordell that she wanted to live with the maternal aunt and was very comfortable 

with her. In her report, the GAL stated that M.M. clearly expressed her desire to be 

permanently placed with the maternal grandfather, but if that were not possible, she 

wanted to be placed in the temporary custody of the maternal aunt. 

{¶ 30} The record establishes that M.M. has a very positive relationship with the 

maternal aunt. Prior to the temporary custody hearing, M.M. spent two weekends 

staying with the maternal aunt at her residence. M.M. advised Dr. Harris that she did not 

want to go back to foster care after staying with the maternal aunt. Based upon their 

favorable interaction, Dr. Harris testified that she believed placement with the maternal 

aunt would be in M.M.’s best interests. Popp testified that the maternal aunt had the 

ability to calm M.M. down when she got upset and was also able to help her cope with 

stressful situations. The maternal aunt testified that she would be able to provide a 

stable home environment for M.M. as well as manage all of M.M.’s mental health needs. 

{¶ 31} Furthermore, although M.M. had been designated as an emotionally 

disturbed child in a recent Individualized Education Program (IEP), Dr. Cordell testified 

that the local school district would provide the support necessary for M.M. to successfully 

transition back into a regular school environment. The maternal aunt testified that she 

was aware that school was back in session soon and that she was prepared to ensure 

that all of M.M.’s special educational needs were met at the new school. Dr. Harris 

testified that M.M. was very positive about her future if she were to be placed with the 

maternal aunt. 

{¶ 32} As previously stated, Father believed that M.M. was malingering and falsely 
-12-

reporting medical problems. Furthermore, Father testified that M.M. was manipulating 

all of the adults in her life, including Drs. Harris and Cordell. Despite Dr. Harris and 

Popp’s testimony with respect to M.M.’s threatening suicide if she returned to live with 

Father, he testified that she would not be in any physical harm if she came to live with 

him. Father also stated religion was very important to him, and he would insist that M.M. 

go to church on the weekends. Dr. Cordell testified that forcing religion on M.M. would 

be detrimental to her mental health. Father is also a trigger for M.M.’s PTSD. Dr. Harris 

and Dr. Cordell both testified that visitation with Father would therefore have a very 

negative effect on M.M.’s well-being. 

{¶ 33} Finally, the primary reason for MCCS’s involvement in the instant case was 

the mental and physical problems suffered by M.M. The record establishes that M.M. 

suffered from PTSD, generalized anxiety disorder, major depression, OCD, and 

Tourette’s Syndrome. Dr. Harris testified that M.M. experienced nightmares, intrusive 

thoughts and memories, flashbacks, difficulty concentrating, suicidal ideation, and 

anxiety. M.M. also had significant medical issues, including severe headaches, 

insomnia, and abdominal issues, for which she was being treated by doctors. Both Dr. 

Harris and Dr. Cordell testified that it would be detrimental to M.M.’s mental health if she 

were to have any contact with her Father at this juncture. 

{¶ 34} Despite all of the evidence to the contrary, Father testified that he believed 

M.M. was falsely reporting her mental and physical problems. Father also testified that 

M.M. was manipulating the adults in her life, and that he was the only adult willing to make 

decisions on her behalf. Popp testified that Father was verbally aggressive with MCCS 

staff and that every conversation she had with him ended in an argument with him yelling 
-13-

at her. Because of the concerns with Father’s mental health, MCCS amended his case 

plan objectives and ordered him to receive a parenting and psychological assessment. 

Father testified that he suffered from anxiety and had been on medication to treat his 

condition since 2010. Furthermore, while their divorce was pending, Father called 

Mother and threatened to kill himself by driving his truck into a telephone pole. As a 

result, Father was taken into custody by the police and placed on psych-hold for seventytwo hours. 

{¶ 35} In light of the foregoing, we conclude that the trial court did not abuse its 

discretion when it found that it was in M.M.’s best interests pursuant to R.C. 3109.04(F)(1) 

to be placed in the temporary custody of the maternal aunt. 

{¶ 36} Father’s second assignment of error is overruled. 

{¶ 37} Father’s third and final assignment of error is as follows: 

{¶ 38} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE 

[FATHER]’S PARENTING TIME CONDITIONAL.” 

{¶ 39} In his third assignment, Father contends that the trial court abused its 

discretion when it granted him visitation with M.M. only when and if her therapist 

recommends it. 

{¶ 40} As previously stated, Dr. Harris testified that triggers for M.M.’s PTSD 

include Father, talking about Father, and thinking about living with Father. Dr. Harris 

testified that she believed that M.M.’s opinions regarding her Father were her own and 

that she was not malingering or being influenced by her Mother’s family against Father. 

Dr. Harris concluded that visits with Father would be detrimental to M.M.’s progress in 

treatment, and therefore, not in her best interests. Echoing the findings made by Dr. 
-14-

Harris, Dr. Cordell testified that she did not recommend visitation with Father because 

M.M. was not currently stable enough, and visitation would be detrimental to her 

treatment. 

{¶ 41} Although Father seems genuinely willing to rebuild his relationship with his 

daughter, we agree with the juvenile court and find that M.M. has clearly and 

unequivocally maintained that she does not want to have any contact with him and that 

forcing her to do so would have a negative effect on her. Additionally, the record 

establishes that M.M. is not malingering nor faking her symptoms. Father’s claim that 

M.M. has manipulated Dr. Harris and Dr. Cordell is simply not supported by the record. 

Accordingly, we find that the juvenile court did not err when it granted Father visitation 

with M.M. made contingent upon the recommendation of her therapist. 

{¶ 42} Father’s third and final assignment of error is overruled. 

{¶ 43} All of Father’s assignments of error having been overruled, the judgment of 

the juvenile court is affirmed. 

. . . . . . . . . . . . . 

WELBAUM, P.J. and TUCKER, J. concur. 

Copies mailed to: 

Alice Peters 

Robert Brenner 

Michael Booher 

Christopher Deal 

Theodore Valley 

L.B. 

Montgomery County Juvenile Court, 

c/o Hon. Anthony Capizzi 

 
-15-