In re R.V.

I
      [Cite as In re R.V., 

2021-Ohio-1830

.]
                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO




IN RE: R.V.                                   :   APPEAL NO. C-200170
                                                  TRIAL NO. F18-1548Z

                                              :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 28, 2021




Law Office of Laurie B. Gibson, LLC, and Laurie B. Gibson for Appellant
Father.
                 OHIO FIRST DISTRICT COURT OF APPEALS




W INKLER , Judge.

       {¶1}   Appellant father appeals a decision of the Hamilton County Juvenile

Court granting custody of his daughter R.V. to appellee the child’s maternal great-

aunt. Great-aunt did not appear in this court. We find merit in father’s single

assignment of error, and we reverse the juvenile court’s judgment.

       {¶2}   R.V. was born on July 17, 2013. She lived with her mother and her

half-sister until the three of them moved in with great-aunt due to mother’s illness.

Mother passed away on October 17, 2018, after a failed heart transplant.

       {¶3}   On October 23, 2018, great-aunt filed a petition for custody and a

petition for emergency custody. The juvenile court denied the petition for emergency

custody because the child was already living with great-aunt and there was no risk of

imminent harm. The court ordered a custody investigation and set the matter for

hearing on January 14, 2019.       It further stated that paternity had not been

established but that there was an alleged father who had to be served.

       {¶4}   At the January 14, 2019 hearing, the court granted interim custody to

great-aunt. Father appeared at the hearing. The court ordered him to establish

paternity. On June 28, 2019, father presented the results of genetic testing. The

juvenile court adjudicated him the child’s father, and ordered visitation with father.

Interim custody remained with great-aunt. Father filed a petition for custody on

October 14, 2019.

       {¶5}   Hearings on the petitions for custody were held on October 28, 2019,

and February 12, 2020.      The evidence showed that the court investigator had

recommended that the court grant custody to great-aunt. The investigator’s primary

concern was the child’s relationship with her half-sister.     The sisters had gone

through a lot of trauma together due to their mother’s illness and death. They were




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                 OHIO FIRST DISTRICT COURT OF APPEALS



very close and did everything together. They had a stable home and routine while

living with great-aunt. The investigator believed that it would be traumatizing to

separate the sisters and that separation was not in the child’s best interest.

       {¶6}   Great-aunt stated that under the interim order of visitation, father

should have had 57 visits, but he only visited 13 times. Nevertheless, the investigator

stated that great-aunt “was very open about the fact that [father] visits R.V. as much

as he can.” Additionally great-aunt said that she “turned him away” three times

because the child had a birthday party or other event planned.

       {¶7}   Father stated that when he missed visiting on specific days, he would

make arrangements to see the child at other times. According to the investigator,

great-aunt stated that “he has always been a great father in her life.” There were

“never any concerns” about father other than the fact that he works a lot. The

investigator also stated that “I do know that [father] wants to be a dad and wants to

be a good father to R.V., and it’s just how do you divvy up your time.”

       {¶8}   At the time of the investigation, father worked Monday through Friday

from 6:45 a.m. to 6:00 p.m. He had to work a mandatory 50 hours per week. He

also worked part time on weekends for his own moving company. Later in the

proceedings, father stated that he was able to cut down on his hours at work. Father

stated that if he obtains custody, he has a cousin who could watch the child in the

mornings when he goes to work.

       {¶9}   Father has five other children that he visits and supports. At the start

of the proceedings, he lived with his girlfriend and two of his other children. He did

not have an apartment in his own name because he had difficulty getting an

apartment due to his lack of a rental history. Later, he obtained a two-bedroom

apartment in his own name that had room for R.V. to live with him.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Father believes that as the child’s only living parent, he has a

responsibility to take care of his daughter. He acknowledged that great-aunt has

done “a great job” caring for the child. He testified that he and his daughter have a

good time when they are together and that he believes R.V. loves him. Father

observed that R.V. does not always seem like she wants to be around him, and he

feels that he needs custody so that he and R.V. can continue to build a stronger bond.

       {¶11} Great-aunt testified that father was a “great man.” She stated that

when father brought dinner for R.V., he also brought food to feed the other children

and relatives living in great-aunt’s home. When asked why she thought father should

not have custody of the child, she stated that she felt that father did not have the time

for her, and “it’s all about keeping the girls together.” She added that shortly after

the child’s mother had died, her grandmother also passed away. Given the support

system the child had at home with great-aunt, her half-sister, and her school, great-

aunt believed that such a big transition would be “devastating” for the child.

       {¶12} The magistrate issued a decision finding father to be unsuitable. The

magistrate stated that “[it] is unclear when and how much time Father has spent in

the child’s life since she was born in 2013.” The magistrate further stated that

“Father’s work schedule prevents him from even establishing a relationship with

[R.V.]. Father has been honest about his situation as to doing what is right for

[R.V.].” The magistrate found that father had “abandoned the care of his child to

[great-aunt] for at least from the time of Mother’s death up until the date he filed for

custody.” The magistrate determined that it was in R.V.’s best interest to grant

custody to great-aunt.

       {¶13} Father objected to the magistrate’s finding that he was not a suitable

parent. At a hearing on the objection, the juvenile court heard further testimony.

Father argued that there was insufficient evidence to support the magistrate’s finding



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                 OHIO FIRST DISTRICT COURT OF APPEALS



that he was unsuitable. His counsel stated that he is “very grateful” for all that great-

aunt has done, and he wanted great-aunt to continue to be a part of R.V.’s life. But

father had “no legal say whatsoever in his child’s life. He has no legal decision-

making rights * * *.” His counsel further said that father “is interested in proposing

some type of * * * a joint-custody situation acknowledging the love and the nurturing

and the relationship with the [great-aunt] and the child.”

       {¶14} The juvenile court rejected the magistrate’s finding that father had

abandoned the child, stating it was not supported by sufficient evidence. But it

determined that father was unsuitable because placement of the child with father

would be detrimental to her well-being. It reasoned that placement with father

would (1) subject the child to “the additional trauma of being separated from a

sibling to whom she has bonded”; (2) upset “the balanced routine that has helped her

remain safe and healthy” since her mother’s death; (3) mean that R.V. would be

“routinely cared for by people who will largely be strangers to her; and (3) force R.V.

to transfer schools.

       {¶15} The juvenile court determined that it was in the child’s best interest to

grant custody to great-aunt and affirmed the magistrate’s decision. Nevertheless, it

added that “given the positive nature of the relationships in this instance, the Court

would strongly urge Father and Maternal [great] Aunt to talk and come up with a

private parenting time agreement.” This appeal followed.

       {¶16} In his sole assignment of error, father contends that the trial court

erred in granting custody to a nonparent. He argues that evidence was insufficient to

show that he was not a suitable parent. This assignment of error is well taken.

       {¶17} We review a juvenile court’s decision to grant legal custody under an

abuse-of-discretion standard. In re H.J.H., 1st Dist. Hamilton No. C-180019, 2019-

Ohio-116, ¶ 3. An abuse of discretion is more than an error of law or judgment. It is



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                  OHIO FIRST DISTRICT COURT OF APPEALS



a decision that is unreasonable, arbitrary or unconscionable.            Blakemore v.

Blakemore, 

5 Ohio St.3d 217

, 219, 

450 N.E.2d 1140

 (1983); In re H.J.H. at ¶ 3. A

trial court’s decision that is not supported by competent, credible evidence is

unreasonable and may be reversed. In re H.J.H. at ¶ 3; In re Wilkenson, 1st Dist.

Hamilton Nos. C-010402 and C-010408, 

2001 WL 1220026

, *1 (Oct. 12, 2001).

       {¶18} Because parents have a fundamental interest in the care, custody and

management of their children, a finding of parental unsuitability is a necessary first

step in child-custody proceedings between a natural parent and a nonparent. In re

Hockstock, 

98 Ohio St.3d 238

, 

2002-Ohio-7208

, 

781 N.E.2d 971

, ¶ 16-18; In re

Perales, 

52 Ohio St.2d 89

, 97-99, 

369 N.E.2d 1047

 (1977); In re H.J.H. at ¶ 3. Only if

the trial court determines that the parent is unsuitable, should it then examine which

custodial placement would be in the best interest of the child. In re H.J.H. at ¶ 4.

       {¶19} Unsuitability as a parent is established if (1) the parent has abandoned

the child, (2) the parent contractually relinquished custody of the child, (3) the

parent has become incapable of supporting or caring for the child, or (4) an award of

custody would be detrimental to the child. In re Hockstock at ¶ 17; In re Perales at

syllabus. If the court determines that any one of these circumstances describes a

parent’s conduct, the parent may be adjudged unsuitable. In re Hockstock at ¶ 17.

       {¶20} Nevertheless, “[b]iological parents have a fundamental liberty interest

in the care, custody and management of their children and a finding of parental

unsuitability is not to be made lightly.” In re H.J.H., 1st Dist. Hamilton No. C-

180019, 

2019-Ohio-116

, at ¶ 5, quoting In re Z.P., 

2017-Ohio-7397

, 

96 N.E.3d 1115

, ¶

31 (8th Dist.). The nonparent bears the burden to show parental unsuitability. In re

H.J.H. at ¶ 10.

       {¶21} The juvenile court determined that father was unsuitable because an

award of custody to him would be detrimental to the child. Courts have found



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                    OHIO FIRST DISTRICT COURT OF APPEALS



detriment to the child in cases of serious problems with a parent, such as where a

parent has exposed a child to verbal and physical abuse, the parent has a history of

psychological and behavioral problems, the child was in a chaotic environment filled

with domestic violence, and where the child had animosity towards the parent that

caused mental and physical problems. In re H.J.H. at ¶ 7; In re Davis, 7th Dist.

Mahoning No. 02-CA-95, 

2003-Ohio-809

, ¶ 27. “While an award of custody may

have a detrimental effect on a child, a child being moved from her home, by itself, is

not the sort of detriment that rises to the level of rendering a parent unsuitable.” In

re H.J.H. at ¶ 7.

       {¶22} The evidence in this case does not rise to the level to show that father

was unsuitable. He loves his daughter and clearly wants what is best for her. He has

stable housing and income, and even great-aunt acknowledged he was a good father.

She “repeatedly emphasized Father’s kind heart and willingness to help with the

child.” Father visits and supports his other children. Though his work schedule

presented problems, he stated that he had reduced his hours at work, and he had the

support of his family.

       {¶23} Both the magistrate and the juvenile court judge relied heavily on

father’s statement to the custody investigator to the effect that it was in the child’s

best interest to remain with great-aunt. But the record shows, and the investigator

acknowledged that, father desired custody of his daughter. The court misinterpreted

father’s desire for R.V. to maintain contact with great-aunt and her half-sibling as

indicating that he wanted great-aunt to have custody.

       {¶24} The juvenile court actually engaged in a best-interest analysis under

the guise of finding father unsuitable. “Simply because one situation or environment

is the ‘better’ situation does not mean that the other is detrimental or harmful to the

child.” In re H.J.H., 1st Dist. Hamilton No. C-180019, 

2019-Ohio-116

, at ¶ 13. The



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                  OHIO FIRST DISTRICT COURT OF APPEALS



trial court’s main concern was separating R.V. from her half-sister.           But father

recognized it would be harmful to separate the siblings.

       {¶25} Given the good relationship between the parties, we encourage them to

determine a way to transition the child so that the change of custody would not be

traumatic for the child and that her relationship with her sister would be continued.

We echo the trial court’s statement encouraging the parties to continue their good

relationship and come to an agreement about parenting time.

       {¶26}    The juvenile court’s finding that awarding custody to father would be

detrimental to the child so as to render father unsuitable was not supported by

competent, credible evidence. See Eastley v. Volkman, 

132 Ohio St.3d 328

, 2012-

Ohio-2179, 

972 N.E.2d 517

, ¶ 12; In re H.J.H. at ¶ 16. Consequently, the juvenile

court abused its discretion in awarding custody to great-aunt. We sustain father’s

assignment of error, reverse the juvenile court’s judgment, and remand the cause for

the court to award custody to father and to determine an appropriate visitation

schedule.

                                               Judgment reversed and cause remanded.



M YERS , P.J., and H ENDON , J., concur.

SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.



Please note:
       The court has recorded its own entry this date.




                                         8

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