[Cite as In re A.E., 2014-Ohio-691.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: A.E., MINOR CHILD : JUDGES:
: Hon. William B. Hoffman, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 2013CA00189
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Family
Court, Case No. 2012JCV01107
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 24, 2014
APPEARANCES:
For Appellees - For Appellant-Father C.P.
Bryan and Rhonda Knowles
REGINA M. FRANK
ROBERT G. ABNEY Stark County Public Defender
Abney Law Office, LLC 201 Cleveland Ave., S.W., Suite 104
116 Cleveland Avenue, NW, Suite 500 Canton, OH 44702
Canton, OH 44702
For Mother A.E.
For Guardian Ad Litem Joseph Leeson
HEATHER SMITH
AARON KOVALCHIK 401 Tuscarawas St. W., Suite 300
116 Cleveland Ave. NW, Suite 808 Canton, OH 44702
Canton, OH 44702
For Stark County Dept. of Job
and Family Services
JERRY COLEMAN
110 Central Plaza South, Suite 400
Canton, OH 44702
Stark County, Case No. 2013CA00189 2
Baldwin, J.
{¶1} Appellant C.P., the natural father of A.E., appeals a judgment of the Stark
County Family Court overruling his motion to transfer legal custody of A.E. to his aunt,
Terry Jennings, and granting the motion filed by the guardian ad litem, Joseph Leeson,
to transfer legal custody of A.E. to appellees Bryan and Rhonda Knowles. A brief in
support of the judgment has also been filed by Joseph Leeson, the guardian ad litem,
who is represented by legal counsel.
STATEMENT OF FACTS AND CASE
{¶2} A.E. was born on April 16, 2010. A complaint alleging dependency and
neglect was filed by the Stark County Department of Job and Family Services
(hereinafter “SCDJFS”) on November 9, 2012. The complaint was based on prior
history, current living conditions, lack of supervision, mental health concerns for mother,
and the criminal history of appellant. A.E. was found to be a dependent child on
January 30, 2013.
{¶3} Previously, SCDJFS had been granted permanent custody of mother’s
four other children. Appellant is the natural father of one of these children. These four
children have been adopted by Bryan and Rhonda Knowles.
{¶4} A.E. was placed in the Knowles home after she was removed from
mother’s care. Appellant and A.E.’s mother each filed a motion to change legal custody
of A.E. to Terry Jennings, appellant’s aunt. The Knowles filed a motion to intervene and
a motion for legal custody. The motion to intervene was denied. The guardian ad litem
filed a motion to change legal custody to Bryan and Rhonda Knowles.
Stark County, Case No. 2013CA00189 3
{¶5} The case proceeded to a hearing in the Stark County Family Court. A.E.’s
mother did not appear, but was represented by counsel and by her guardian ad litem.
Appellant did not testify, but he appeared for the hearing and was represented by
counsel.
{¶6} Anita Young, the ongoing caseworker for SCDJFS for A.E., testified that
she took over the case in December of 2012, after A.E. had been placed with the
Knowles family. Appellant indicated to her in December or January that he wanted
custody of A.E. to go to his aunt, Terry Jennings. Because Mrs. Jennings resided in
Steubenville, Young asked Jefferson County to complete a home study. There were
paperwork delays, but verbal confirmation of an approved home study was received at
the end of the six month review hearing. At this review hearing, Mrs. Jennings was
asked to participate in visits with A.E. Mrs. Jennings participated in supervised
visitation along with the parents and had A.E. in her home for a three-day visit, all of
which went well. Young recommended that custody be awarded to Mrs. Jennings
because A.E. would then be connected with her extended family and because Young
felt Mrs. Jennings would facilitate visits and involvement with the parents more so than
the Knowles.
{¶7} Terry Jennings testified at the hearing that she was 66 years old and in
good health. Her husband Riley is in a wheelchair after suffering a stroke, and she is
his primary caregiver. She and Riley fostered over 50 children. Prior to retirement, she
worked as a licensed social worker. She has an extensive support system that includes
family, friends and adult foster children to help with A.E. She testified that she intended
Stark County, Case No. 2013CA00189 4
to maintain contact with the Knowles so they and their children could visit with A.E. and
A.E. could maintain a relationship with her natural siblings.
{¶8} Bryan and Rhonda Knowles testified that they have four biological
children, ages 23, 21, 17, and 15, and four adopted children, ages 12, 9, 7, and 6. They
testified that A.E. has bonded with their family and they want legal custody of her so that
she can grow up with her biological siblings. They testified that they felt blessed to have
met Terry Jennings and A.E.’s extended family and plan to have regular, consistent
visits. They felt that A.E.’s siblings are her family who will be there for the rest of her
life, while her great-aunt will not be there for her 20 or 30 years down the road, and
therefore it is important that she remain in the same home with her siblings.
{¶9} The guardian ad litem, Joseph Leeson, testified that he found Mrs.
Jennings to be a very loving, caring, and intelligent woman who could provide for A.E.
He did express concerns that Mrs. Jennings is already the primary caregiver for her
husband, and that when A.E. is a young adult and needs family, Mrs. Jennings will no
longer be around. He also expressed concerns that Mrs. Jennings’ desire for custody
sprang from her commitment to appellant rather than from a love for A.E. and a desire
to provide a home for A.E.
{¶10} The trial court granted the guardian ad litem’s motion to transfer legal
custody to Bryan and Rhonda Knowles, finding:
{¶11} “In this case, the Court must decide between two good and loving homes,
each with biological relatives; should [A.E.] live and be raised with her biological
siblings, or be raised by a great aunt. The Court has continuing jurisdiction over [A.E.],
and may issue orders in her best interest regarding her visitation with caregivers,
Stark County, Case No. 2013CA00189 5
parents or relatives. However, this court has no jurisdiction over the Knowles children
or family to require them to visit [A.E.] at their home or in Steubenville if Ms. Jennings
were granted custody. While Mrs. Jennings and the extended family are adults and can
determine and facilitate visits with [A.E.], the Knowles children cannot make that
determination on their own. Sibling contact can only be maintained through the wishes
of the Knowles, and not through court orders, if custody were granted to Mrs. Jennings.
However, if custody is granted to the Knowles, sibling contact is guaranteed and the
court can order frequent and consistent contact with Mrs. Jennings and extended family
to insure that [A.E.] knows her family and is exposed to their unique traditions, routines
and culture.”
{¶12} The court made the Knowles parties to the action and terminated the
involvement of SCDJFS. The court gave the parents supervised visitation upon one
week advance notice to the custodians, and visitation with Mrs. Jennings a minimum of
one weekend each month, holiday visitation pursuant to a schedule, and summer
vacation time with 60 days notice.
{¶13} Appellant assigns a single error to this Court on appeal:
{¶14} “THE TRIAL COURT ERRED IN GRANTING THE CHANGE OF LEGAL
CUSTODY FILED BY THE GUARDIAN AD LITEM.”
{¶15} R.C. 2151.353(A)(3) provides in pertinent part:
{¶16} “(A) If a child is adjudicated an abused, neglected, or dependent child, the
court may make any of the following orders of disposition:
{¶17} “(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
Stark County, Case No. 2013CA00189 6
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.”
{¶18} On appeal, we will not reverse an award of legal custody absent an abuse
of discretion. In re R.D.J., 5th Dist. Delaware No. 12 CAF 07 0046, 2013-Ohio-1999, ¶
29, citing In re Gales, 10th Dist. No. 03AP–445, 2003–Ohio–6309; In re Nice, 141 Ohio
App.3d 445, 455, 751 N.E.2d 552 (2001). Abuse of discretion implies that the trial
court's decision was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Legal custody, where
parental rights are not terminated, is not as drastic a remedy as permanent custody,
which terminates parental rights. In re A. W.-G., 12th Dist. No. CA2003–04–099, 2004–
Ohio–2298, at ¶ 7, quoting Nice at 455, 751 N.E.2d 552. Therefore, the trial court's
standard of proof 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.
Nice at 455, 751 N.E.2d 552; In re A. W.-G, supra; In re Law, 5th Dist. Tuscarawas
No.2003 AP 06 45, 2004–Ohio–117.
{¶19} Based on the evidence presented at the hearing, the trial court did not
abuse its discretion in awarding legal custody to the Knowles. The trial court
recognized that the case presented a choice between two loving, appropriate homes for
A.E. However, the court noted that A.E. had established a loving and bonded
relationship with her siblings and the Knowles family. At three years old, she was too
young to express her wishes and desires as to her placement. While Mrs. Jennings
testified that she has a close family, her testimony reflected that A.E. had not been
close to this extended family. During the two and one half years that A.E. spent in her
Stark County, Case No. 2013CA00189 7
parents’ custody, Mrs. Jennings only saw A.E. on two occasions, and no family member
had notified Mrs. Jennings previously when appellant had a child removed from his care
by permanent custody proceedings and eventually adopted by the Knowles family.
Further, the Knowles are younger and both able to physically care for A.E., while only
Mrs. Jennings would be able to care for A.E. in her household due to her husband’s
physical condition. The court further expressed concerns that Mrs. Jennings did not
acknowledge concerns about appellant’s parenting ability despite her knowledge that he
lost a prior child by permanent custody proceedings. Finally, the court noted that the
only way to ensure a continued relationship between A.E. and her biological sibling and
half-siblings who have been adopted by the Knowles is if she remains in the Knowles’
home. The evidence reflected that she was bonded to the family and to the other
children in the home.
{¶20} Appellant also argues that the guardian ad litem did not handle the case
properly, as he did not attempt to talk to A.E. about her mother and father and did not
truly understand the people in the case. The record reflects that A.E. was only three
years old at the time of the hearing and thus too young to express her wishes as to
placement. Further, the guardian had conducted home visits with the Knowles family,
had regular contact with the caseworker, had spoken to the parents and observed
supervised visits with the parents, met with Mrs. Jennings in Steubenville, and observed
visits between A.E. and Mrs. Jennings. The record does not support appellant’s claims
that the guardian was not sufficiently involved in the case to render a credible opinion;
rather, faced with two appropriate homes for A.E., he believed a change of legal
custody to the Knowles was in A.E.’s best interest.
Stark County, Case No. 2013CA00189 8
{¶21} The assignment of error is overruled. The judgment of the Stark County
Common Pleas Court, Family Court Division, is affirmed. Costs are assessed to
appellant.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.