[Cite as C.A. v. H.S , 2020-Ohio-4352.]

IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY

C.A., Appellee,

- vs -

H.S., Appellant. :

:

:

:

:

: CASE NO. CA2019-09-021 O P I N I O N 9/8/2020

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. AD20140173

Aaron M. McHenry, 2 W est Main Street, Chillicothe, Ohio 45601, for appellant W.S. and C.S., 734 Broadway Street, Washington Court House, Ohi o 43160, appellees, pro se

M. POWELL, J. {¶ 1} Appellant ("Mother") appeals a decision of the Fayette County C ourt of Common Pleas, Juvenile Division, granting legal custody of her minor son, C.A., to appellees, the child's maternal grandfather ("Grandfather") and his wife ("Grandmother") (appellees will be collectively referred to as "Grandparents").Fayette CA2019-09-021

- 2 - {¶ 2} Mother and Father are the parents of C.A. who was born in Febru ary 2013. Mother has custody of the child. On April 16, 2019, Grandparen ts moved for legal custody of C.A. A hearing on the motion was held before the juvenile c ourt on May 30, 2019, and July 18, 2019. The juvenile court heard testimony from Grandpa rents, Mother, Father, and three other witnesses. Neither Grandparents nor Mother were re presented by counsel at the hearing. Father was represented by counsel on the second d ay of the hearing. {¶ 3} On August 2, 2019, the juvenile court granted legal custody of C.A. to Grandparents and parenting time to Mother and Father. The juve nile court found both parents to be unsuitable. 1 Specifically, the juvenile court found that Mother had repeat edly moved C.A. and frequently left him with Grandparents; as a resu lt, C.A. attended three different schools while in kindergarten; and Mother had been "i n and out of multiple relationships with a variety of men, many of whom ha[d] treated her and the child poorly." The juvenile court noted that some of the men had criminal back grounds and one was a registered sex offender. The court further noted that Mother h ad met some of the men online and moved in with them within a matter of days. Upon co nsidering the factors set forth in R.C. 3109.04(F)(1), the juvenile court further found i t was in the best interest of C.A. to grant legal custody to Grandparents. {¶ 4} Mother now appeals, raising one assignment of error: {¶ 5} THE TRIAL COURT ERRED IN AWARDING CUSTODY OF APPELLANT'S CHILD TO APPELLEES. {¶ 6} Mother argues the juvenile court erred in awarding legal custod y of C.A. to Grandparents because the record does not support the court's fi nding she is an unsuitable

1. The juvenile court found that Father was an unsuitable pare nt based upon his testimony he was currently unemployed due to injury, his acknowledgment he was not in a po sition to take custody of C.A. at that time, and the fact he supported Grandparents' motion for legal custod y of C.A.Fayette CA2019-09-021

- 3 - parent or that granting legal custody to Grandparents is in C.A .'s best interest. {¶ 7} Legal custody is not as drastic a remedy as permanent custody b ecause parents retain residual rights, privileges, and responsibilitie s. In re C.R. , 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. Nonetheless, "the overriding princi ple in custody cases between a parent and nonparent is that natural parents have a f undamental liberty interest in the care, custody, and management of their children." In re Hockstok , 98 Ohio St.3d 238, 2002-Ohio-7208, ¶ 16. "Ohio courts have sought to effectuate t he fundamental rights of parents by severely limiting the circumstances under which the state may deny parents the custody of their children." Id. at ¶ 17. {¶ 8} Where a juvenile court is determining child custody in a custod y proceeding between a parent and a nonparent, the court may not award custo dy to the nonparent without first making a finding of parental unsuitability, that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the paren t has become totally incapable of supporting or caring for the child, or that an award of cust ody to the parent would be detrimental to the child. Id. ; Morrison v. Robinson , 12th Dist. Fayette No. CA2012-06-019, 2013-Ohio-453, ¶ 10. The record indicates that the juvenile co urt found Mother unsuitable as custodian of C.A. because such custody would be detrimental to the child. {¶ 9} When reviewing custody issues, a juvenile court's decision is g ranted great deference and will not be disturbed on appeal absent an abuse o f discretion. In re A.C.C. , 12th Dist. Warren No. CA2018-03-028, 2018-Ohio-4719, ¶ 40. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, o r unconscionably. Id. When applying an abuse-of-discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Id. The discretion afforded to a juvenile court in custody matters "should be accorded the utmost respect, given t he nature of the proceedingFayette CA2019-09-021

- 4 - and the impact the court's determination will have on the lives of the parties concerned." Miller v. Miller , 37 Ohio St.3d 71, 74 (1988). A deferential review in a child custody case is appropriate because much may be evident in the parties' demeano r and attitude that does not translate well to the record. Davis v. Flickinger, 77 Ohio St.3d 415, 419, 1997-Ohio260; Morrison at ¶ 27. {¶ 10} Mother challenges the juvenile court's finding she is an unsuit able parent, arguing that there is no evidence her housing situation was uns table and that the only evidence Mother had multiple partners over a short period of ti me was based solely upon Grandmother's questioning during the hearing, allegations Mothe r repeatedly denied. {¶ 11} After a thorough review of the record, we find that testimony a t the hearing supports the juvenile court's finding of unsuitability. Mother 's testimony shows that between August 2018 and the May 2019 hearing, Mother lived two weeks in Tennessee where she intended to relocate and where she enrolled C.A. in school. Th en, upon returning to Ohio, Mother lived in Jeffersonville, Bloomingburg, Toledo, Bloomingb urg again for a couple of days, Jeffersonville again, and now Fostoria where she is waiti ng on an apartment to become available for her to move into. Residing in seven diffe rent places in the span of nine months hardly qualifies as stable housing. Mother admitte d that as a result of her frequent moves, C.A. attended three different schools while in kindergarten. To wit, C.A. started kindergarten in Tennessee and spent two and one-half da ys in class, then attended kindergarten in a school in Washington Court House, and ultimat ely finished the year in Fostoria. {¶ 12} In support of its unsuitability finding, the juvenile court als o noted that Mother was involved in relationships with 11 different men in the span of one year. The juvenile court described the character of the majority of these men, not ed when they had a criminal history, and described how many had treated Mother and C.A. poo rly. While Father andFayette CA2019-09-021

- 5 - one of his relatives both testified seeing Mother with differen t men during visitation exchanges, this list of men was mostly based upon Grandfather's testimony. None of the men with whom Mother was allegedly romantically involved testif ied and Grandparents did not provide any physical evidence of her multiple relationships . Mother testified that all but one of the men were just friends. {¶ 13} However, the testimony of Mother and an acquaintance of hers sh ows that at the very least, Mother engaged in relationships with three of t he men identified by the juvenile court (hereinafter referred to as Boyfriend 1, Boyfrie nd 2, and Boyfriend 3). Grandfather personally knew Boyfriend 1, had known him since he was a child, and described him as having a terrible temper and a severe drinking problem. Grandfather testified that upon picking up Mother's possessions at the home of Boyfriend 1, the latter pulled a weapon on Grandfather and subsequently went to jail. Mother testified that she stayed at the apartment of Boyfriend 2 for "a couple of days or so," yet changed her mailing address to his. Boyfriend 3 lives in Fostoria; Mother lives wi th his mother while waiting for an apartment to become available. {¶ 14} Another man identified by the juvenile court is a registered se x offender. Grandfather testified he has known the man since he was a child and described him as a "very violent" individual who has been to prison for drugs, the ft, "beating up his own mother," and sexual misconduct with a minor. Mother testified she knew the man had been to prison for drugs but denied knowing he was a registered sex offender. When asked whether she had put this man's name on C.A.'s emergency contact list at sch ool, Mother replied, "Not that I know of." {¶ 15} In discussing Mother's multiple relationships with men and her frequent moves, the juvenile court noted that Mother had serious credibi lity issues in that she had "omitted several items where the child has lived and with whom" on her R.C. 3127.23Fayette CA2019-09-021

- 6 - affidavit, including the fact C.A. has lived with Grandparents for extensive periods of time throughout his life, and had claimed to only have gone to Tenne ssee on vacation (and not lived there) despite filing a Notice of Intent to Relocate to T ennessee and enrolling C.A. in kindergarten there in August 2018. {¶ 16} Credibility issues are critical in custody cases, and the demea nor and attitude of the witnesses may not translate into the record. Miller , 37 Ohio St.3d at 74. Therefore, an appellate court affords deference to a judge's findings rega rding witness credibility. In re J.D. , 12th Dist. Butler No. CA2005-09-375, 2006-Ohio-3468, ¶ 33. {¶ 17} In light of the foregoing, we find that the juvenile court did not err in finding that Mother is unsuitable as custodian of A.C. {¶ 18} Mother next asserts the record does not support the juvenile co urt's finding that granting legal custody to Grandparents is in C.A.'s best i nterest, especially since the court did not interview the child or appoint a guardian ad lite m. {¶ 19} In ruling that C.A.'s best interest would be served by granting legal custody to Grandparents, the juvenile court made the following findings. The court noted that Mother wished to retain custody of C.A. while Father wanted Grandparen ts to have custody of the child. The court found that C.A. had a lot of interaction with Mother and Grandparents, has regularly visited Father, and is well-adjusted in Grandparents' home. The court further found that Mother has repeatedly moved and lived with a variety of men, resulting in C.A. attending three different schools in the past school year. The court noted it was "unclear how the child could adjust to this constant change." At the ti me of the hearing, C.A. was six years old. Finally, the court noted Mother's history of vi olating court orders regarding Father's visitation with C.A. {¶ 20} Upon a thorough review of the record, we find that the juvenile court did not abuse its discretion when it determined that legal custody to Grandparents was in C. A.'sFayette CA2019-09-021

- 7 - best interest. As stated above, Mother repeatedly moved C.A. a nd as a result, had him attend three different schools in two different states while in kindergarten. Mother ultimately moved to Fostoria without filing a Notice of Intent to Relocate there. Boyfriend 1, with whom Mother lived for several months, was described as an individual with a terrible temper and a severe drinking problem who ultimately pulled a weapon on Gra ndfather when the latter went to pick up Mother's possessions at the home of Boyfriend 1 . Another man involved with Mother is a registered sex offender, a matter Mother did n ot know. {¶ 21} A parent of Boyfriend 3 described Mother and C.A. as a very lov ing family and testified that C.A. loves Mother, school, and life. However, t he witness admitted she had only known Mother and C.A. "for a short while." Mother general ly testified she takes great care of C.A. and denied having men around the child. Mother fu rther testified that the several men identified as her boyfriends were just friends of h ers, and that Grandparents lied through most of their testimony to make her look bad. {¶ 22} Grandparents testified that Mother has been involved with sever al unsavory men, that she has a tendency to move in with men within a matte r of days of meeting them and in fact moved to Fostoria with C.A. within seven days of me eting Boyfriend 3, and that they had to rescue Mother "from the men she had hooked up with" on four occasions. Grandfather testified that Mother has left C.A. with them for l ong periods of time without calling or spending time with the child, and that C.A. has live d with and been cared for by Grandparents for the majority of C.A.'s life. In fact, Grandfa ther estimated that they had had C.A. for 150 of the last 180 days. Grandfather stated that C.A. has his own bedroom at Grandparents' house. Grandfather testified C.A. is very rel axed, happy, and calm whenever he stays at Grandparents' house whereas he shows distr ess "from the constant moving and jumping from men to men." {¶ 23} In light of the foregoing, we find that the juvenile court did not err in grantingFayette CA2019-09-021

- 8 - legal custody of C.A. to Grandparents. Mother's assignment of e rror is overruled. {¶ 24} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.