[Cite as In re S.P. , 2021-Ohio-4335.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

IN RE: S.P. : : : : : : : : : : Appellate Case No. 2021-CA-15

Trial Court Case No. 2020-JC-03 (Appeal from Family Court)

. . . . . . . . . . . O P I N I O N Rendered on the 10th day of December, 2021.

. . . . . . . . . . . SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Champaign Coun ty Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Appellee, Champaign County Dept. of Job and Family Services BRENT E. RAMBO, Atty. Reg. No. 0076969, 101 North Ludlow Street , Suite 200, Dayton, Ohio 45402 Attorney for Appellant, Father

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

TUCKER, P.J.-2-

{¶ 1} Appellant Father appeals a from judgment of the Champaign Count y Family Court, which granted legal custody of Father’s daughter, S.P., to the child’s maternal great-grandparents. For the reasons set forth below, we affirm

.

I. Facts and Procedural History {¶ 2} S.P. was born out of wedlock to Mother on in July 2018. On Feb ruary 26, 2020, the Champaign County Department of Job and Family Service s (“CCDJFS”), filed a complaint alleging that S.P. was an abused and dependent chil d. 1 Specifically, the complaint alleged that Mother had overdosed while babysitting h er two young cousins at a home located in St. Paris, Ohio; S.P. was also present in the home. The children discovered Mother unconscious in the living room. Following an investigation, it was determined that Mother, who had a history of substance abuse pr oblems, had relapsed and had been using drugs for several months. A drug screen was positive for tramadol, fentanyl, opiates and cocaine. {¶ 3} A pre-adjudication hearing was conducted on March 13, 2020. Mo ther did not appear, but her attorney was present. Father, who was iden tified as the putative father, was present and represented by counsel. Father submitt ed to a drug screen, which was positive for cocaine. The court granted temporary cu stody of S.P. to the great-grandparents and ordered genetic testing to establish whe ther Father was S.P.’s

father.

1 CCDJFS first became involved with Mother in 2016 when she overd osed in a car while her older child was in the backse at. That child was adjudicate d dependent in 2017.-3- {¶ 4} An adjudication hearing was set for June 17, 2020. On that dat e, neither Father nor Mother appeared, although their attorneys were prese nt. It was determined that Father had not appeared for his genetic testing. The cour t reset the adjudication hearing date. On July 16, 2020, the great-grandparents filed a complaint for custody of

S.P. {¶ 5} The adjudication hearing was conducted on August 24, 2020. Mot her did not appear, but her counsel was present. Evidence of genetic t esting was presented,

which established that Father was the father of S.P. The court adjudicated S.P. dependent but dismissed the charge of abuse. All parties agree d to proceed immediately to disposition. The court awarded temporary custod y to the greatgrandparents, and Father was awarded parenting time. No appeal was taken from this

order. {¶ 6} A review hearing was conducted on November 23, 2020. Neither p arent appeared, but their respective attorneys were present. On Dece mber 20, 2020, CCDJFS filed a motion seeking to modify the disposition and to award legal custody to the great-grandparents. The following day, Father filed a moti on for custody. {¶ 7} A hearing was conducted on March 23, 2021. Father was more tha n an hour late for the hearing because he had been stopped for a tra ffic violation following which it was discovered that he was driving without a license. However, the court delayed the hearing until Father was able to make his appearanc e. Father submitted to a drug screen, which was negative. The court then heard testim ony from the guardian ad litem (“GAL”), the caseworker, the great-grandmother, and Fa ther. The court subsequently entered a judgment granting legal custody of S.P. to the great--4- grandparents. The court also granted supervised parenting time to Father. {¶ 8} Father appeals.

II. Custody Decision {¶ 9} Father asserts the following as his first assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [FATHER]

THE RIGHT TO BE A PAR ENT TO HIS CHILD. {¶ 10} Although not directly stated, Father’s argument in this assignm ent of error challenges the family court’s dispositional decision as being a gainst the weight of the evidence. In support, Father first argues that the family cour t did not properly consider the best interest of S.P. when awarding custody to the great-gr andparents. He further claims the court did not follow the findings and recommendation of the GAL. {¶ 11} As stated above, the court originally awarded temporary custody of S.P. to the great-grandparents. No appeal was taken from that order; h owever, both CCDJFS and Father filed motions seeking to modify that disposition. {¶ 12} The “modification or termination of dispositional orders involv ing abused, neglected, or dependent children [is governed by] R.C. 2151.353 (F)(1) and (2) and R.C. 2151.42(A) and (B) govern the modification or termination of di spositional orders.” (Citations omitted.) In re I.E. , 2d Dist. Montgomery No. 28646, 2020-Ohio-3477, ¶ 10. “R.C. 2151.353(F)(1) grants the juvenile court continuing juris diction over any child for

whom the court had entered an ord er of disposition, and R.C. 21 51.353(F)(2) allows any party (other than a parent whose parental rights have been term inated) to ‘request the court to modify or terminate any order of disposition.’” Id. “If such a motion is filed, the-5- court must hold a hearing on the motion as if the hearing were the original dispositional hearing.” Id. at ¶ 11, citing R.C. 2151.353(F)(2). {¶ 13} CCDJFS filed a motion in which it requested a modification of t he disposition of temporary custody and an order granting legal custody to the great-grandparents. Father filed a motion asking that he be awarded legal custody. A juvenile court may award legal custody of a child to a non-parent upon a finding t hat doing so is in the child’s

best interest. In re A.F. , 2018-Ohio-310, 103 N.E.3d 1260, ¶ 51 (2d Dist.), citing R.C. 2151.353(A)(3); In re J.M. , 2d Dist. Montgomery No. 28508, 2020-Ohio-822, ¶ 6. Legal custody is significantly different from, and not as drastic a r emedy as, the termination of parental rights, because the parent still retains residual righ ts “including, but not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and t he responsibility for support.” R.C. 2151.011(B)(50); R.C. 2151.353(A)(3)(c). For this reason, the court applies the “preponderance of the evidence” standard to the court's factual findings. In re S.E. , 8th Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 14, citing In re Nice , 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.). “Preponderanc e of the evidence simply means ‘evidence which is of a greater weight or more con vincing than the evidence which is offered in opposition to it.’ ” In re Starks , 2d Dist. Darke No. 1646, 2005-Ohio1912, ¶ 15, quoting Black's Law Dictionary 1182 (6th Ed.1998). {¶ 14} At the hearing, it was established that Father wished to have l egal custody

of S.P. 2 Mother had previously expressed her desire that the child rem ain with the great2 Father asserts that the family court failed to acknowledge his wish to have legal custody of S.P. However, the court’s judgment expressly notes that Fat her was seeking custody of the child. Thus, it can be inferred that the court was awar e of his wishes.-6- grandparents. As S.P. was only two years old at the time of th e hearing, her wishes

could not be ascertained. {¶ 15} The evidence supported a finding that S.P. and Father were bond ed and had a loving relationship. However, the evidence also demonstr ated that S.P. was doing well in her great-grandparents’ care. She had resided with the m since March 2020. According to the ongoing caseworker, S.P. was bonded to the gre at-grandparents as well as her half-sibling, of whom they also had legal custody. The caseworker testified that the great-grandparents were able to provide for all of S.P.’s n eeds and that she was thriving in their care. The guardian ad litem concurred and re commended that the greatgrandparents be awarded legal custody. {¶ 16} The record demonstrates CCDJFS prepared a case plan for Father which included drug, alcohol, and mental health screening and treatme nt. The plan also required him to obtain and maintain suitable housing and to sub mit to drug screens. {¶ 17} According to the record, in the six months prior to the hearing , Father had lived in three different places. According to his testimony, F ather did not have his own residence, and thus he stayed in the homes of friends. During the pendency of this case, he had lived in Columbus, Chillicothe and Urbana. He also test ified that after he tested positive for cocaine in March 2020, he admitted himself to an i npatient drug rehabilitation facility in Portsmouth, Ohio where he stayed for almost three m onths. At the time of the hearing, Father had been living in a home with family friends w ho resided in Bloomfield, Ohio for approximately one week. He testified that he had been invited to reside there for as long as he needed. Father testified he did not have to pay rent for this housing. He admitted that he did not have a lease guaranteeing the housi ng. Both the GAL and-7- the caseworker testified that Father had not met the case plan goal of obtaining stable housing. {¶ 18} The record also demonstrated that Father was employed at a gutt er company owned by the person with whom he was then residing. He testified that he had worked for this company since he was 18 years old, that the pos ition was full-time, and that he earned more than $18 per hour. However, his testimony also indicated that the work was seasonal and that he usually got a temporary job when the gutter business was idle. Despite his claim that he had steady employment and inco me, Father admitted he did not pay child support, rent, or utilities. He also testifi ed that he had not gotten his driver’s license, in part because he had not been able to pay a pproximately $200 in fines.

Both the caseworker and the GAL testified that Father had faile d to meet the requirement for stable employment. {¶ 19} Father further testified that he had remained drug-free since h is initial positive drug screen. He testified that he had checked himself into a rehabilitation program but admitted that he had left without completing the pr ogram. The evidence also demonstrated that he failed to undergo mental health treat ment. Father noted that he had tested negative on two of his drug screens, including th e one taken the day of the hearing. However, the caseworker noted that he had been unable to screen Father for the four months prior to the hearing because Father would not d isclose his location to

CCDJFS. {¶ 20} The record also demonstrated that Father’s visitation with S.P. had been spotty. He had not exercised his visitation in the three weeks prior to the hearing and had had no visitation or contact with the child from October 3, 2020 until December 27,-8- 2020, at which time he spent 45 minutes with the child. Additi onally, there was evidence that Father had never exercised visitation for longer than two hours. Indeed, one of his visits lasted only 12 minutes. Also, despite being offered vis itation in addition to the regularly scheduled visitation, Father had not exercised any ad ditional visitation time with

the child. Neither the caseworker nor the GAL considered the c ase plan requirement for visitation to be completed. {¶ 21} Based upon this evidence, the family court concluded Father had failed to complete his case plan. The court further found that awarding legal custody to the greatgrandparents was in S.P.’s best interest. {¶ 22} A trial court has broad discretion regarding its disposition of a dependent child, and thus we review the court's award of legal custody fo r an abuse of that discretion.

In re. S.A. , 2012-Ohio-3394, 974 N.E.2d 1261, ¶ 41 (2d Dist.). A court ab uses its discretion when its decision is unreasonable, arbitrary, or unc onscionable. Blakemore

v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 23} Upon review of the record, we find competent, credible evidence in the record to support the family court's determination of S.P.’s be st interest by a preponderance of the evidence. Given this conclusion, the cour t did not abuse its discretion in awarding the legal custody to the great-grandpare nts. {¶ 24} Father’s first assignment of error is overruled.

III. Visitation Order {¶ 25} The second assignment of error states as follows:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE-9- FATHER UNSUPERVISED VISITATION. {¶ 26} Father asserts that the court abused its discretion when it awa rded visitation to him but included the provision that visitation had to be con ducted in the presence of the great-grandparents. {¶ 27} In ordering visitation, the trial court must consider the “tota lity of the circumstances as they relate to the child's best interest.” In re M.E. , 10th Dist. Franklin No. 12AP-684, 2013-Ohio-2562, ¶ 25, quoting In re C.J ., 4th Dist. Vinton No. 10CA681, 2011-Ohio-3366, ¶ 15. Unless the court has abused its discreti on, its orders regarding visitation will be upheld on review. In re Timberlake , 10th Dist. Franklin No. 02AP-792, 2003-Ohio-1183, ¶ 26. {¶ 28} As set forth above, the record established that Father had a hi story of substance abuse and that he had not complied with the terms of his case plan to address the issue. He further lacked stable employment and housing. M oreover, Father had had inconsistent contact with S.P. during the course of the pro ceedings; at times, he had failed to exercise his regular visitation, and he had not accep ted the offer of additional visitation. Although he admitted to driving, he did not have a drivers’ license. {¶ 29} Based upon the evidence in this record, we cannot say that the court abused its discretion in ordering visitation to take place in t he presence of the greatgrandparents. 3 Therefore, the second assignment of error is overruled.

IV. Conclusion

3 Should Father address his case plan, he is free to petition the court for a modification of visitation in the future.-10- {¶ 30} Both of Father’s assignments of error being overruled, the judg ment of the family court is affirmed.

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

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Samantha B. Whetherholt Brent E. Rambo Miranda Warren L.C. and J.C. Vincent L. Foulk Hon. Lori L. Reisinger