In re A.C.

2012 Ohio 5916

• Court: Ohio Court of Appeals
• Decided: December 14, 2012
• Docket: 25233
• Status: Published

Opinion

[Cite as In re A.C., 2012-Ohio-5916.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

IN RE: A.C. :

: C.A. CASE NO. 25233

: T.C. CASE NO. C 2011-1079

: (Appeal from the Common Pleas Court - Juvenile : Division)

.........

OPINION

Rendered on the 14th day of December, 2012.

Jeffrey A. Rezabek, Atty. Reg. No. 0069117, 111 West First Street, Suite 519, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant G.C.

Mathias H. Heck, Jr., Prosecuting Attorney, by Michele D. Phipps, Assistant Prosecuting Attorney, Atty. Reg. No. 0069829, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Defendant-Appellee State of Ohio

GRADY, P.J.: {¶ 1} This appeal is brought by G.C., the father of A.C., from a judgment by the

juvenile court that granted temporary custody of A.C. to Montgomery County Children’s

Services (MCCS).

{¶ 2} In February 2011, MCCS filed an abuse and dependency complaint after A.C.

reported to school officials that G.C., her adoptive father, had physically abused her.

{¶ 3} Although the court found that the State failed to prove by clear and convincing

evidence that A.C. was an abused child, the court found that the State did prove that she is a

dependent child. A.C. was almost 16 years of age at the time of the adjudicating hearing.

Additionally, the court found that it was in A.C.’s best interest to be placed in the temporary

custody of MCCS. The court made the following findings:

(1) the Agency has made reasonable efforts to prevent the removal of the child

from the child’s home, to eliminate the continued removal of the child from the

child’s home, or to make it possible for the child to return home; (2) the

relevant services provided by the Agency to the family of the child are : case

management, substitute foster care and information referral; (3) those services

did not prevent the removal of the child from the child’s home or enable the

child to return home because the father has been unable to demonstrate

parenting skills; (4) a relative or non relative is not willing, able and suitable

for the care of the child; (5) there is reasonable cause to believe that the child

will be reunified with [the parent] * * *.

{¶ 4} The court found that A.C. was doing well in foster care, and that her needs

were being met in that home. She resumed counseling and completed the school year without

problems. [Cite as In re A.C., 2012-Ohio-5916.] {¶ 5} Additionally, the court conducted an in camera interview with A.C., finding

that A.C. “was very clear with the Court that she does not want to return to her adoptive

father’s home.” A.C. explained that she did not feel bonded to G.C., who had adopted her in

2010. She did not feel welcome in his home, feeling like a babysitter for her younger

siblings, whom G.C. also adopted.

{¶ 6} For the same reasons, A.C. did not want to visit with G.C. In fact, A.C.

repeatedly expressed the same sentiments to the MCCS case workers and to her guardian ad

litem (GAL).

{¶ 7} A.C.’s GAL filed two reports and recommendations with the trial court. On

neither occasion did the GAL recommend that A.C. return to her father’s custody.

Furthermore, neither the GAL nor A.C.’s therapist recommended visitation between A.C. and

G.C.

{¶ 8} The primary objectives of the case plan were for G.C. to obtain both a

parenting assessment and an anger management assessment. However, G.C. refused to

comply with either portion of the case plan because he believed that the assessments were not

necessary.

{¶ 9} G.C. filed objections to the magistrate’s decision. The trial court overruled

those objections and adopted the magistrate’s decision. G.C. appeals, raising one assignment

of error.

{¶ 10} G.C.’s assignment of error:

“THE COURT’S FINDINGS AND DECISION ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE AND AMOUNT TO AN ABUSE OF DISCRETION.” 4

{¶ 11} If a child is adjudicated an abused, neglected, or dependent child, the court may

commit the child to the temporary custody of a public children’s services agency, a private

child placement agency, either parent, another relative, a probation officer for placement in a

certified foster home, or in any other home approved by the court. R.C. 2151.353(A)(2). In

choosing among those alternatives, the best interest of the child is the court’s primary

consideration. In re S.M., C.M., & D.M., 2d Dist. Montgomery No. 24539, 2011-Ohio-6710,

¶ 3.

{¶ 12} While an award of temporary custody to a children’s 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.” Id. at ¶ 4. Accord, In re Willmann, 24 Ohio App.3d 191, 198, 493 N.E.2d 1380

(1st Dist. 1986). An “[a]buse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83,

87, 482 N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of

discretion will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

{¶ 13} A review of this record reveals substantial, competent, credible evidence that

supports the trial court’s “best interest of the child” finding. The trial court relied in part on

A.C.’s adamant stance that she neither wanted to visit with, nor return to the custody of, her

adoptive father. Moreover, neither A.C.’s therapist nor her GAL recommended a return of

A.C. to her adoptive father’s custody at that time. The court considered G.C.’s failure to

make any progress on the case plan after his refusal to obtain either a parenting assessment or 5

an anger management assessment. In light of these factors, we conclude that the trial court

did not abuse its discretion in awarding temporary custody of A.C. to MCCS.

{¶ 14} G.C.’s sole assignment of error is overruled. The judgment of the trial court

will be affirmed.

Donovan, J., and Froelich, J., concur.

Copies mailed to:

Jeffrey S. Rezabek, Esq. Michele D. Phipps, Esq. Hon. Anthony Capizzi