[Cite as In re A.W., 2025-Ohio-3198.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
IN THE MATTER OF: CASE NO. 2025-T-0011
A.W. Civil Appeal from the Court of Common Pleas, Juvenile Division
Trial Court No. 2024 CH 00008
OPINION AND JUDGMENT ENTRY
Decided: September 8, 2025 Judgment: Reversed and remanded
James E. Lanzo, 4126 Youngstown-Poland Road, Youngstown, OH 44514 (For Appellee, Harry Wynn).
Tammy S. Richardson Rilley and Michael P. Walton, Trumbull County Children Services, 2282 Reeves Road, N.E., Warren, OH 44483 (For Appellant, Trumbull County Children Services Board).
JOHN J. EKLUND, J.
{¶1} On March 6, 2024, the Trumbull County Court of Common Pleas, Juvenile
Division, held a Dispositional Hearing on the issue of A.W.’s (DOB 2-11-24) dependency
status. The magistrate held that she was dependent and ordered placement in the
temporary custody of A.W.’s maternal aunt, Yolanda DeBlasis (Aunt), who already had
custody of four of A.W.’s siblings. All parties present stipulated to that order. No objections
to it were filed, and the trial court adopted it on March 15, 2024.
{¶2} Also on March 6, 2024, Appellee, Harry Wynn (Father), filed a Motion for
Custody and/or Visitation. Over eight months later, on November 18, 2024, the trial court held a Dispositional Hearing on Father’s motion before the magistrate. On November 20,
2024, the magistrate issued a decision to award legal custody of A.W. to Aunt with
supervised visitation awarded to Father.
{¶3} Father objected to the Magistrate’s Decision. On March 13, 2025, the trial
court sustained Father’s objection. It is from that judgment that Appellant, Trumbull
County Children Services (TCCS), appeals.
{¶4} TCCS raises four assignments of error. It argues that the trial court
misapplied the controlling legal standard in dependency cases because it considered
Father’s wishes to parent even though A.W. had been adjudicated dependent. TCCS also
argues that the trial court abused its discretion because the facts demonstrated that
Father was not a suitable placement for A.W. Finally, it contends that placement with Aunt
was in A.W.’s best interest.
{¶5} Having reviewed the record and the applicable caselaw, we find TCCS’s
assignments of error to have merit. The trial court erred as a matter of law by applying an
incorrect legal standard in its ruling. The trial court’s misapplication of the law resulted in
heavily relying on Father’s wish to parent in determining A.W.’s best interests. The record
demonstrates that placement with Aunt is in A.W.’s best interest. Accordingly, custody of
A.W. shall return to Aunt.
{¶6} Therefore, the judgment of the Trumbull County Court of Common Pleas,
Juvenile Division, is reversed, and the matter is remanded for further proceedings
consistent with this opinion.
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Case No. 2025-T-0011 Substantive and Procedural History
{¶7} On February 16, 2024, TCCS filed a Complaint in the Trumbull County
Court of Common Pleas, Juvenile Division, alleging that A.W. was a dependent and/or
abused child pursuant to R.C. 2151.04(C) and 2151.031, such that her condition and/or
environment warranted the State assuming guardianship. In that Complaint, TCCS
alleged that A.W.’s mother was Amanda DeBlasis (Mother) and her father was Harry
Wynn, both residing at the same address in Hubbard, Ohio. A.W.’s maternal aunt was
also identified as Yolanda DeBlasis.
{¶8} The Complaint alleged that Mother had an open case with TCCS, a pending
child endangering charge in Girard Municipal Court, and that four of her other children
were already in custody with Aunt, with a fifth in the custody of another party. The
Complaint alleged that Mother (who was alleged to be residing with Father) did “not have
safe, stable, drug free housing for” A.W. and that Mother had tested positive for drugs at
A.W.’s birth. The Complaint alleged that Father “tested positive for fentanyl and cocaine
as well as his prescribed medications. Father has a medical marijuana card.”
{¶9} On the basis of these allegations, TCCS asked the trial court to place A.W.
in Aunt’s custody and hold a dispositional hearing on the issue of A.W.’s dependency
status.
{¶10} The trial court granted an ex parte order of temporary custody to Aunt
pending a dispositional hearing. Father was served with all relevant filings and judgment
entries.
{¶11} On February 20, 2024, the trial court held a shelter care hearing. Father
was present for the hearing. The trial court’s judgment entry stated that Father was the
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Case No. 2025-T-0011 “putative father” and that “paternity has not yet been established.” The parties stipulated
to continue the ex parte custody order pending the Dispositional Hearing.
{¶12} The matter was set for a Dispositional Hearing on March 6, 2024. The
Magistrate’s Decision from that hearing said that Father was represented by Attorney
Richard Montgomery/Attorney James Lanzo. Attorney Lanzo filed a Notice of Appearance
the morning of the hearing. The decision stated that parentage had not been established
for A.W. and that Mother’s residence was not established. The decision stated that the
basis for the determination of dependency was “Mother’s substance use, housing issues.”
There was no finding regarding Father. However, all parties, including Father, stipulated
to the trial court’s dispositional order placing A.W. in the temporary custody of Aunt.
{¶13} There was no objection filed to the magistrate’s March 6, 2024 decision. On
March 15, 2024, the trial court adopted the Magistrate’s Decision.
{¶14} Also on March 6, 2024, Father filed a Motion for Custody or in the Alternative
Establish Visitation. Father stated that he was A.W.’s natural father and was “ready willing
and able to care for the minor child and that it is in the best interest of the minor child if
[Father] were to be awarded custody” of A.W. Father also filed a Parenting Proceeding
Affidavit pursuant to R.C. 3127.23(A) which stated that he had a drug possession
conviction and two theft convictions. However, the affidavit did not provide case numbers,
offense levels, or the dates of these convictions.
{¶15} On June 24, 2024, Father filed a certified copy of A.W.’s birth certificate that
listed him as the natural father.
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Case No. 2025-T-0011 {¶16} On July 26, 2024, the trial court entered a judgment entry stating that Father
had established paternity by DNA and granted supervised visitation. The trial court
ordered a home study for Father.
{¶17} On August 13, 2024, the Ohio Department of Job and Family Services filed
a Semiannual Administrative Review, which stated that the trial court-ordered home study
was not yet completed because Father had not completed BCI/FBI fingerprinting and that
Father was “not responding to attempts to reach him to schedule fingerprinting.”
{¶18} On November 18, 2024, the trial court held a Dispositional Hearing on
Father’s Motion for Custody before the magistrate. The following facts and evidence were
adduced at the hearing:
{¶19} Melissa Pennell, a caseworker for TCCS, testified that she was assigned to
A.W.’s case. She said that A.W. had been placed with Aunt and that there were substance
abuse concerns for both Mother and Father. She also said that Father and Mother were
residing together when Mother overdosed at the time that TCCS filed its Complaint for
dependency. She said that Mother had pending charges for Child Endangering. She said
that Father tested positive for MDMA on September 20 and September 25, 2024.
{¶20} Pennell testified that she tried to contact Father to get fingerprinting done,
which is a necessary first step for doing a home study. However, she said that she was
not able to contact him and eventually called his attorney to make contact. Father then
called and scheduled a time to get his fingerprinting done. However, Father failed to
appear. Father appeared four days later unannounced to fingerprint, but the agency was
unable to complete the process because Father did not have identification. Father called
to schedule a new date to appear on August 22, 2024. He reported that Mother was
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Case No. 2025-T-0011 currently living with him. He told Pennell that “we didn’t think it would look good since she
lost custody of her other kids.” Father appeared for fingerprinting on August 29, 2024.
{¶21} After the fingerprinting, the home study was still not able to be completed
because Father was residing with Mother, and Mother had pending Child Endangering
charges. Nevertheless, Pennell said that she attempted to view the house and had been
to Father’s residence seven or eight times and left business cards but that no one ever
called her back. She said that Father had not informed her that he was residing at any
other location but she was aware that Father may have been living with his mother. No
case study had been done at either home.
{¶22} Pennell testified that Father was notified that he can initiate visitation with
A.W. on July 26, 2024. However, as of August 29, 2024, Father had not taken any steps
to arrange any visits.
{¶23} Pennell testified that Father had criminal convictions for Possession of
Cocaine in 2005, Drug Trafficking in 2006, and unspecified Carrying Concealed Weapons
and Operating a Vehicle While Intoxicated convictions. Father’s most recent conviction
was in 2017 for Possession of Drugs. Pennell said that Father’s recent drug use was also
a concern for her.
{¶24} Pennell said that Aunt had a loving bond with A.W. and was able to care for
her special physical needs. In speaking about Father’s paternity, Pennell said that Father
was not originally part of the case plan until he established paternity. However, Father did
not remember that he had established paternity at the time A.W. was born by signing the
birth certificate.
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Case No. 2025-T-0011 {¶25} Aunt testified that she has custody of five of Mother’s children, including
A.W. She said that she has had zero contact with Father and that he has never asked for
pictures or to make contact with A.W.
{¶26} Attorney Chloe Bucher testified as the Guardian Ad Litem (GAL). She said
that she visited with Aunt and all of the children via Zoom and spoke with Pennell and
Aunt in person extensively. She said that she had “not heard from” Mother or Father. She
later explained that she did not attempt to contact them and leaves the onus on the parties
to contact her. She said that she had not been to Father’s house.
{¶27} She said that Father’s drug use and uncertainty about his housing were the
two main concerns she had about his ability to parent A.W. She also said that Father’s
lack of contact with A.W. was a concern. She said that it was her position that custody
with Aunt was in A.W.’s best interests.
{¶28} Susan Wynn testified that Father is her son. She said that Father moved
into her home in Hubbard, Ohio, a “couple” of weeks before the hearing.
{¶29} Father testified that he moved in with his mother about a month before the
hearing. He said he moved in with her “[b]ecause they were giving us [Mother and Father]
a hard time about having us being together, sending the baby with us both, so I . . . moved
all my stuff back to Hubbard and said, you know, I’m doing whatever I can to see my kid,
whatever I gotta do.” He also said that if he and Mother were together, “they weren’t going
to give us the baby. So, naturally, I said, well, let me get out of there then because, you
know, I want to be in my kid’s life regardless where she’s at.” He said that he would not
move back in with Mother and that “[i]f they’re gonna give us a hard time about being
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Case No. 2025-T-0011 together, then we won’t be. It’s not a big deal either way, I mean.” Father said that he
notified children services that he had moved into his mother’s house.
{¶30} Father acknowledged his drug use and described himself as “an addict.” He
said that he “screwed up” and that he has gone to treatment in the past and regularly
attends Alcoholics Anonymous meetings, although the date of his last attendance was
not clear. He also said that he has a medical marijuana card and a suboxone prescription.
He admitted to using fentanyl and cocaine shortly after A.W. was born and admitted to
using MDMA twice in September 2024. He said his longest period of sobriety was “almost
a year” right before A.W. was born.
{¶31} On November 20, 2024, the magistrate issued a Magistrate’s Decision,
finding that the parents did not work the case plan, did not participate in the semi-annual
administrative review, and that “[t]he parents were not co-operative in engaging the
required services to obtain CSB approval of [A.W.’s] placement with parents.”
{¶32} The magistrate said that Father had not submitted for fingerprinting and that
as a result, the home study could not begin. Further, Father did not submit to drug and
alcohol assessments and tested positive for illegal/unprescribed substances. Further, the
parents failed to respond to messages from children services, the GAL, and the
caseworker. The Magistrate’s Decision awarded legal custody to Aunt with supervised
visitation to Father.
{¶33} On December 3, 2024, Father filed an Objection to the magistrate’s
November 18, 2024 decision and filed a supplement to the Objection on February 11,
2025, arguing that the Magistrate’s Decision was in error as Father was never explicitly
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Case No. 2025-T-0011 deemed to be an unsuitable parent at the March 6, 2024 Dispositional Hearing because
Father had not yet established paternity.
{¶34} The trial court sustained Father’s Objection on February 14, 2025. However,
TCCS filed a Motion for Reconsideration and Motion to Vacate on the basis that Father
had not properly served his Objection on TCCS and it did not have an opportunity to
respond to the Objection. The trial court granted relief pursuant to Civ.R. 60(B) and
vacated its judgment entry and afforded TCCS an opportunity to respond.
{¶35} On March 13, 2025, the trial court again sustained Father’s Objection. The
trial court’s judgment entry said “[t]here was a claim that Father had a criminal history, but
no records were introduced and it later was testified by Father that the most recent
criminal charge was in 2017. Father had tested positive for MDMA in September, but
explained that he was working a N[arcotics] A[nonymous] program, taking suboxone and
that the positive test was a failure that he corrected.”
{¶36} The trial court said that the caseworker had never gone into either of father’s
residences.
{¶37} The trial court found that Aunt had bonded with A.W. and that she had
provided “a loving and safe environment.”
{¶38} The trial court found that the GAL had submitted a report in June 2024 that
listed Father as the putative father but had not updated her report before the November
2024 hearing. The trial court noted that the GAL had attempted to update her report in
February 2025 but did not seek leave of the trial court to do so. The trial court struck the
updated report in its entirety. The trial court determined that the GAL did not provide any
testimony as to Father’s unsuitability but that she did provide testimony “[a]s a matter of
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Case No. 2025-T-0011 a best interest test” that Father had a drug history and that there was a concern about his
housing status.
{¶39} The trial court concluded that as a matter of law, Father’s fundamental rights
had been abridged because he was known to the agency from A.W.’s birth, he “had
acknowledged paternity at the hospital, despite Father’s confusion at the March 6, 2024
hearing as to whether he had established paternity, his acknowledgement of paternity
was readily available to the Agency. . . . The Father was never deemed unsuitable and
as such, he should not be denied custody of his own child.”
{¶40} However, the trial court also made a best-interest finding pursuant to R.C.
3109.04(F)(1)(a) through (j) that “both” Aunt and Father have to prove “that custody with
one or the other would be in the child’s best interest.” Although the trial court
acknowledged that A.W. was bonded with Aunt, the first best-interest factor listed in R.C.
3109.04(F)(1)(a) considered the wishes of the parent. The trial court said that Aunt’s
“possession of the baby came as a result of Father’s due process rights to be heard at
the adjudicatory hearing being denied.” (Emphasis added). The trial court noted its
concerns about Father’s illegal drug use and “a tremendous concern if Father would allow
Mother to be present.” However, the trial court determined that “[t]here simply was not
enough evidence introduced to overcome a parent’s wish to parent.” The trial court
determined that it was in A.W.’s best interest to be placed with Father and ordered a “site
and safety inspection” of Father’s residence, a drug test, and two random drug screens
over the 90 days following its judgment.
{¶41} TCCS timely appealed raising four assignments of error.
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Case No. 2025-T-0011 Standard of Review
{¶42} A juvenile court's grant of legal custody pursuant to R.C. 2151.353 is
reviewed under an abuse of discretion standard. In re Yates, 2008-Ohio-6775, ¶ 32 (11th
Dist.). An abuse of discretion may be found when the trial court “‘applies the wrong legal
standard, misapplies the correct legal standard, or relies on clearly erroneous findings of
fact.’” In re L.L.S., 2017-Ohio-7450, ¶ 20 (11th Dist.), quoting Thomas v. Cleveland, 2008-
Ohio-1720, ¶ 15 (8th Dist.).
{¶43} An award of legal custody to a third party at the dispositional phase requires
a finding that the statutory elements have been met by a preponderance of the evidence.
In re P.V.A., 2023-Ohio-1622, ¶ 13 (11th Dist.); In re J.F., 2011-Ohio-3295, ¶ 40 (11th
Dist.). A trial court determines the appropriateness of legal custody “in accordance with
the best interest of the child as supported by the evidence presented at the dispositional
hearing.” R.C. 2151.415(B).
{¶44} If a parent is a suitable person, the parent has a “‘paramount’ right to the
custody of their minor children.’” In re Murray, 52 Ohio St.3d 155, 157 (1990). “However,
when a child is adjudicated a dependent child, the juvenile court may, as its dispositional
order, place the child under the protective supervision or temporary custody of a children
services agency, or award legal custody of the child to a third party.” In re P.V.A. at ¶ 14;
R.C. 2151.353(A)(1), (2), and (3).
{¶45} Accordingly, “‘the fundamental or primary inquiry at the dispositional phase
of . . . juvenile proceedings is not whether the parents of a previously adjudicated
‘dependent’ child are either fit or unfit,’ rather, it is ‘the best interests and welfare of the
child [that] are of paramount importance.’” (Emphasis in original.) In re J.F. at ¶ 39,
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Case No. 2025-T-0011 quoting In re Cunningham, 59 Ohio St.2d 100, 106 (1979). “Once the case reaches the
disposition phase, the best interest of the child controls.” In re D.A., 2007-Ohio-1105, ¶
11.
{¶46} R.C. 2151.353(A)(3) does not set forth best interest factors for the court to
consider. In re P.V.A., 2023-Ohio-1622, at ¶ 16 (11th Dist.). Some appellate courts have
held that trial courts should apply the factors set forth in R.C. 2151.414(D), while others
have suggested that the factors set forth in R.C. 3109.04(F) should control. Id. (collecting
cases). This Court has not adopted a position on whether one statute or the other should
control. Id. Instead, we have held that the different statutes “are merely instructive on the
question of a child’s best interests.” Id. at ¶ 17. Because the General Assembly did not
include specific factors to consider in R.C. 2151.353, we “presume that the legislature did
not intend to require the consideration of certain factors as a predicate for granting legal
custody.” (Emphasis added). Id. In other words, a trial court has discretion when deciding
the child’s best interests.
Assignments of Error and Analysis
{¶47} Appellant’s first assignment of error states: “THE TRIAL COURT ERRED
AS A MATTER OF LAW BY MISAPPLYING THE CONTROLLING LEGAL STANDARD
IN A DEPENDENCY CASE, SPECIFICALLY BY REQUIRING TRUMBULL COUNTY
CHILDREN SERVICES TO OVERCOME A PARENT’S WISH TO PARENT AFTER A.W.
HAD BEEN ADJUDICATED DEPENDENT.”
{¶48} Appellant’s second assignment of error states: “THE TRIAL COURT
ABUSED ITS DISCRETION BY GRANTING CUSTODY TO THE FATHER, HARRY
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Case No. 2025-T-0011 WYNN, DESPITE OVERWHELMING EVIDENCE DEMONSTRATING HIS
UNSUITABILITY AS A CUSTODIAL PARENT.”
{¶49} Appellant’s third assignment of error states: “THE TRIAL COURT ABUSED
ITS DISCRETION BY GRANTING CUSTODY TO THE FATHER, DESPITE
COMPELLING EVIDENCE OF THE MOTHER’S UNSUITABILITY AND HER
CONTINUED COHABITING RELATIONSHIP WITH THE FATHER, WHICH POSES AN
ONGOING RISK TO A.W.’S WELL-BEING.”
{¶50} Appellant’s fourth assignment of error states: “THE TRIAL COURT
ABUSED ITS DISCRETION BY REMOVING A.W. FROM THE LEGAL CUSTODY OF
HER MATERNAL AUNT, YOLANDA DEBLASIS, DESPITE OVERWHELMING
EVIDENCE THAT CONTINUED PLACEMENT WITH THE AUNT IS IN A.W.’S BEST
INTEREST, PARTICULARLY GIVEN THE CHILD’S COMPLEX MEDICAL NEEDS AND
THE AUNT’S DEMONSTRATED CAPACITY FOR CARE.”
{¶51} TCCS relies on In re C.R., 2006-Ohio-1191, and argues that the trial court
erred as a matter of law by not considering A.W.’s best interest as the controlling legal
standard for determining whether to grant Father custody.
{¶52} In re C.R. held that a juvenile court’s “adjudication of abuse, neglect, or
dependency is a determination about the care and condition of a child and implicitly
involves a determination of the unsuitability of the child's custodial and/or noncustodial
parents.” (Emphasis added.) Id. at paragraph two of the syllabus. Consequently, when a
child has been adjudicated abused, neglected, or dependent, the juvenile court does not
need to make a finding that a non-custodial parent is unsuitable before awarding legal
custody to a nonparent. Id. at paragraph three of the syllabus.
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Case No. 2025-T-0011 {¶53} In re C.R. involved a mother who gave birth to a drug dependent child, C.R.
Id. at ¶ 2. The mother denied that the natural father was indeed the father. Id. After the
child was born, children services filed a complaint alleging C.R. to be a neglected child.
Id. at ¶ 3. The complaint named “John Doe” as the child’s father, and children services
filed an affidavit for publication seeking to identify the identity and location of C.R.’s father.
Id.
{¶54} Two months after the probable cause hearing, Jesse Crowder began to
receive notices from the court regarding the child-neglect proceedings. Id. at ¶ 5. Crowder
filed a motion seeking legal custody and confirmed that he was the natural father. Id. In
July 2002, the juvenile court made its final adjudication that C.R. was a neglected child.
{¶55} Crowder and others filed for custody of C.R. Id. at ¶ 6. After the Dispositional
Hearing, the trial court determined that placement with Crowder was not in C.R.’s best
interests. Id.
{¶56} The Supreme Court of Ohio emphasized that C.R.’s case dealt with a
judgment relating to “legal custody” as defined in what is now R.C. 2151.011(B)(21) as
opposed to matters of “permanent custody” as defined in what is now R.C.
2151.011(B)(31). Id. at ¶ 14-15, 17. “The important distinction is that an award of legal
custody of a child does not divest parents of their residual parental rights, privileges, and
responsibilities.” Id. at ¶ 17. Because of this, either parent had the ability to petition for a
modification of custody. Id.
{¶57} The Court also distinguished In re C.R., 2006-Ohio-1191, from In re
Hockstok, 2002-Ohio-7208, and In re Perales, 52 Ohio St.2d 89 (1977), where the
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Case No. 2025-T-0011 Supreme Court of Ohio said that a court “must make a parental unsuitability
determination” as to abuse, neglect, or dependency in a case arising from private custody
disputes in both domestic relations court and juvenile court. In re C.R. at ¶ 18-19.
{¶58} Therefore, the Court said that
[a] juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents. It does not, however, permanently foreclose the right of either parent to regain custody, because it is not a termination of all residual parental rights, privileges, and responsibilities, and therefore a motion for a change of custody could be filed in a proper case in accordance with law.
Id. at ¶ 23.
{¶59} TCCS argues that under In re C.R., Father was implicitly found to be an
unsuitable parent when the trial court found A.W. to be a dependent child and gave
temporary custody to Aunt. TCCS takes issue with the trial court’s judgment entry
because the trial court considered Father’s “‘wish to parent’” over A.W.’s “adjudicated
status and best interest.” In addition, TCCS acknowledges that Father can petition for
modification of parental rights in the future and be awarded custody or visitation if the
juvenile court determines that such an order would be in A.W’s best interest.
{¶60} TCCS is correct that the trial court used an incorrect legal standard to
determine A.W.’s custody. The trial court relied heavily on Father’s constitutional and
parental rights in its judgment and focused on due process concerns arising from Father
not being identified appropriately at the outset of the proceedings as A.W.’s natural father.
{¶61} The trial court placed a great deal of emphasis on the fundamental fairness
of the procedures and held that In re C.R., 2006-Ohio-1191, was distinguishable because
Father was known to TCCS from A.W.’s birth, Father acknowledged paternity at the
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Case No. 2025-T-0011 hospital, was readily available to the agency despite his confusion at the March 6, 2024
hearing about whether he had established paternity, was present for the adjudicatory
hearing, and suffered an abridgment of his fundamental rights. The trial court said that
“father was present at every stage of these proceedings” and held that Father “was never
deemed unsuitable and as such, he should not be denied custody of his own child.”
{¶62} The trial court misapplied the law and misread In re C.R. The primary flaw
with how the trial court has addressed this issue is that Father was indeed present for the
entire process and attended the March 6, 2024 Dispositional Hearing. While there was
confusion about Father’s paternity—from both Father and TCCS—Father was present at
all stages of A.W.’s adjudication. Father did not object to the magistrate’s March 6, 2024
decision adjudicating A.W. dependent. The trial court properly entered judgment
adjudicating A.W. dependent and placed her in the temporary custody of Aunt. When
Father filed his March 6, 2024 Motion for Custody, the trial court was asked to modify its
valid, unchallenged order.
{¶63} The trial court incorrectly determined that Father “was never deemed
unsuitable and as such, he should not be denied custody of his own child.” But he was
so found. The Ohio Supreme Court in In re C.R. held definitively that after a child has
been found to be abused, neglected, or dependent, there is no need to find a parent
unsuitable before awarding legal custody to a non-parent.
{¶64} Pursuant to In re C.R., 2006-Ohio-1191, when the trial court adjudicated
A.W. dependent, that determination implicitly involved a determination that Father was
also unsuitable. This is especially applicable here because Father was present at all
stages of the adjudication process, was represented by counsel, and could have
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Case No. 2025-T-0011 vindicated the rights the trial court suggests were abridged. As an additional point, the
record indicates that Father and Mother were residing together when the trial court
adjudicated A.W. dependent. Whether implicitly or explicitly, Father’s residence with
Mother rendered him unsuitable.
{¶65} The correct legal question before the trial court, paramount above Father’s
parental rights, was what was in the best interest and welfare of A.W. See In re J.F., 2011-
Ohio-3295, at ¶ 39 (11th Dist.). However, the trial court’s failure to follow and apply In re
C.R. led to additional errors. First, it led to a misapplication of the standard for deciding
the best interests of the child in a dependency case that we articulated in In re P.V.A.
2023-Ohio-1622 (11th Dist.). It was the foundation upon which the court based its
conclusion that “[t]here simply was not enough evidence introduced to overcome a
parent's wish to parent.” This implies that a parent’s wish to parent trumps everything in
determining legal custody of a child that has been adjudicated dependent (indeed it was
the only ground asserted in support of Father’s original motion). No single factor should
determine the best interest of the child in these circumstances.
{¶66} In making its best interest analysis, the trial court relied on the factors set
forth in R.C. 3109.04(F)(1)(a) through (j). These factors, while not controlling, are
instructive. However, in analyzing these factors, the trial court determined that the first
factor, “the wishes of the child’s parents regarding the child’s care,” weighed heavily in
favor of Father. In emphasizing this factor above any other factor, the trial court continued
to incorrectly ground its judgment in the parent’s wishes rather than the child’s best
interest.
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Case No. 2025-T-0011 {¶67} The trial court’s best interest analysis also noted that A.W. was bonded with
and in the care of Aunt when commenting on the child’s interaction with “any other person
who may significantly affect the child’s best interest.” As to the remaining factors, the trial
court stated that they were inapplicable or that no evidence was presented.
{¶68} Because the trial court continued to dwell on Father’s wishes and focused
little on what placement would be in A.W.’s best interests, the trial court stated that Aunt
only had custody of A.W. “as a result of Father’s due process rights to be heard at the
adjudicatory hearing being denied.” This statement, in particular, demonstrates how the
trial court misapplied the law because “[o]nce the case reaches the disposition phase, the
best interest of the child controls.” In re D.A., 2007-Ohio-1105, at ¶ 11. However, the trial
court was not focused on A.W.’s best interests. Instead, it was preoccupied with revisiting
the original determination of dependency.
{¶69} The Court discounted the unrefuted facts that A.W. was bonded to Aunt and
in a safe, secure setting with four of her siblings, saying that Aunt’s “possession of the
baby came as a result of Father's due process rights to be heard at the adjudicatory
hearing being denied.” Yet Father had notice of the adjudicatory hearing and attended it
with counsel. Moreover, he was not denied his parental rights; he retained the
fundamental ones within the parameters of Ohio law.
{¶70} The trial court concluded that “[t]here simply was not enough evidence
introduced to overcome a parent’s wish to parent.” The trial court said that TCCS, the
GAL, and Aunt did not provide evidence it “was best for the child to be placed with
Maternal Aunt. Father’s role was largely ignored. It was deemed by this Court that it is in
the ‘best interest’ of the child to be placed with Father.” The trial court placed the burden
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Case No. 2025-T-0011 on TCCS, the GAL, and Aunt to provide evidence that placement with Father was not in
A.W.’s best interest. However, in doing so, the trial court misapplied the law. The trial
court’s misapplication of the law resulted in heavily relying on Father’s wish to parent in
determining A.W.’s best interests. The trial court should have determined, based on the
evidence before it, whether placement with Father was in A.W.’s best interests.
{¶71} Our review of the evidence indicates the answer to that question is a clear
“no.”
{¶72} First, A.W. was in a demonstrably safe, loving, and secure environment with
Aunt. Pennell and Aunt both testified that Aunt would be able to care for A.W. and that
she was able to care for A.W.’s special physical needs.
{¶73} Second, Father’s action and inaction made it impossible for TCCS to
adequately investigate his living conditions. Father was supposed to submit to a home
study, but Pennel testified that the home study was delayed because Father was dilatory
in first submitting for a background check. Pennell also said that it was not possible to
perform a home study while Father was still living with Mother, as Mother had pending
Child Endangering charges. By Father’s own admission, he continued to live with Mother
until approximately one month before the November 18, 2024 Dispositional Hearing.
Pennell said that Father had not notified her that he moved in with his mother. This
conduct made it impossible for TCCS to perform a home study to evaluate whether Father
would be able to provide a safe and healthy home environment.
{¶74} Third, Father was continually derelict in his responsibilities. Father failed to
set up visitation with A.W. Pennell testified that Father was notified that he could initiate
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Case No. 2025-T-0011 visitation with A.W. on July 26, 2024. However, Father had not taken steps to initiate
visitation or make contact with A.W.
{¶75} Pennell testified that she tried to contact Father on repeated occasions. She
said that Father did not make an appointment to schedule his background check until she
called his attorney. Pennell said that she attempted to view Father’s house and left
business cards at the residence seven or eight times. She said she never received a call
back and was never informed that Father had moved.
{¶76} Father himself was a large cause of any confusion about his paternity.
Despite signing the birth certificate, his confusion about paternity caused significant
hurdles in his case.
{¶77} The GAL said that she does not contact the parties and leaves the onus on
them to contact her. Father said that he did not know there was a GAL and never made
contact with her. The GAL had been in contact with Aunt and communicated with her
several times.
{¶78} Fourth, Father’s criminal history and continuing drug use are serious cause
for concern. The trial court’s judgment entry stated that “[t]here was a claim that Father
had a criminal history, but no records were introduced and it was later testified by Father
that the most recent criminal charge was in 2017.” However, Pennell credibly testified that
she reviewed Father’s criminal history based on his background check. She said that he
had multiple convictions for Drug Possession, one conviction for Drug Trafficking, a
weapons conviction, and an OVI conviction. The most recent conviction (not merely a
charge as the trial court’s judgment entry described) was for Possession of Drugs in 2017.
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Case No. 2025-T-0011 {¶79} More troubling by far are Father’s recent positive drug screens. In two drugs
screens in September 2024, Father tested positive for MDMA, an illegal substance. He
said that he was an “addict” and had “screwed up.” His longest period of sobriety was
approximately one year and ended with the use of fentanyl and cocaine shortly after A.W.
was born. At most, Father had six months of sobriety between A.W.’s birth and the
November Dispositional Hearing. The trial court’s judgment entry noted that “[n]o one
introduced record of his attendance at NA.” The obligation to demonstrate Father’s steps
toward recovery was squarely on Father, and he failed to provide any evidence beyond
his word.
{¶80} The trial court was correct in stating that there simply was not enough
evidence introduced at the hearing, but we come to the opposite conclusion. Father failed
to establish by a preponderance of the evidence that A.W.’s placement with him would
be in her best interest. In contrast, the preponderance of the evidence plainly
demonstrates that placement with Aunt would be in A.W.’s best interest. The evidence at
the Dispositional Hearing did not support the finding that it was in A.W.’s best interest to
remove her from Aunt and place her with Father.
{¶81} In making this conclusion, we note that Father can move for custody in the
future. This case does not deal with the termination of parental rights, and our ruling is
not meant to suggest that Father has no future avenues to being awarded custody of
A.W.
{¶82} Accordingly, TCCS’s assignments of error have merit.
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Case No. 2025-T-0011 {¶83} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, Juvenile Division, is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Custody of A.W. shall return to Aunt.
ROBERT J. PATTON, P.J.,
EUGENE A. LUCCI, J.,
concur.
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Case No. 2025-T-0011 JUDGMENT ENTRY
For the reasons stated in the opinion of this court, it is the judgment and order of
this court that the judgment of the Trumbull County Court of Common Pleas, Juvenile
Division, is reversed, and this matter is remanded to the trial court for further proceedings
consistent with this opinion. Custody of A.W. shall return to Aunt.
Costs to be taxed against Appellee, Harry Wynn.
JUDGE JOHN J. EKLUND
PRESIDING JUDGE ROBERT J. PATTON, concurs
JUDGE EUGENE A. LUCCI, concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case No. 2025-T-0011