[Cite as In re M.M., 2018-Ohio-2034.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERYCOUNTY
IN RE: M.M. : : : C.A. CASE NOS. 27722 and 27724 : : T.C. NOS. JC-2015-6384 and : 2016-3599 : : (Civil Appeal from Juvenile Court) : : ...........
OPINION
Rendered on the 25th day of May, 2018.
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ALICE PETERS, Atty. Reg. No. 0093945, Montgomery County Prosecutor’s Office, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee – Montgomery County Children Services Board
ROBERT BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant - Father
MICHAEL BOOHER, Atty. Reg. No. 0007694, 120 West Second Street, Suite 1504, Dayton, Ohio 45402 Attorney for Minor Child
CHRISTOPHER DEAL, Atty. Reg. No. 0078510, Law Offices of Gump & Deal, 2541 -2-
Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Maternal Grandfather
THEODORE VALLEY, Atty. Reg. No. 0070867, Baldwin Valley Law, LLC, 854 East Franklin Street, Dayton, Ohio 45459 Attorney for Guardian Ad Litem
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DONOVAN, J.
{¶ 1} Petitioner-appellant Father appeals a decision of the Montgomery County
Court of Common Pleas, Juvenile Division, overruling his objections to the Magistrate’s
decision, finding M.M. to be a dependent child, granting temporary custody of M.M. to the
maternal aunt, and postponing Father’s visitation with M.M. until her therapist
recommends it. Father filed a timely notice of appeal with this Court on September 8,
2017.
{¶ 2} M.M. was born to Mother and Father in March of 2002. Mother and Father
divorced in December of 2009. After the divorce, Mother became M.M.’s primary
custodian, and Father was awarded standard visitation. As M.M. grew older, she would
often refuse to go to Father’s house when it became his time to exercise visitation.
During February of 2015, M.M. alleged that Father had sexually abused her. Law
enforcement in Clermont County, Ohio, investigated the allegations made by M.M. but
ultimately did not file charges against Father. In July of 2015, Mother sent M.M. to live
with the maternal grandfather, J.W., because of conflict between Mother’s boyfriend and
M.M.
{¶ 3} On October 6, 2015, Mother passed away as a result of suicide. During this
time M.M. continued to reside with the maternal grandfather. We note that at the time of -3-
the temporary custody hearing, Father had not seen M.M. since May of 2014, and had
not spoken with her since April of 2015. On October 20, 2015, the maternal grandfather
filed a petition for custody of M.M. in Case No. JC 2015-6384. On December 4, 2015,
Father filed a motion to dismiss the maternal grandfather’s petition for custody for lack of
jurisdiction. The juvenile magistrate overruled Father’s motion to dismiss on February 2,
2016. Thereafter on March 21, 2016, Father filed a motion for a psychological and
physical examination of M.M. which the magistrate later granted on May 4, 2016.
{¶ 4} On June 1, 2016, Montgomery County Children’s Services (MCCS) filed a
complaint in Case No. JC 2016-3599 alleging that M.M. was a dependent child and
requesting a disposition of temporary custody to the maternal grandfather, or, in the
alternative, temporary custody to MCCS. On June 13, 2016, an interim order hearing
was held before the magistrate who granted interim temporary custody of M.M. to MCCS.
On June 20, 2016, the juvenile court consolidated Case Nos. JC 2015-6384 and JC 2016-
3599. On July 21, 2016, the Court Appointed Special Advocate (CASA)/ Guardian ad
Litem (GAL) filed a motion requesting temporary custody of M.M. be granted to MCCS.
On July 26, 2016, MCCS filed an amended complaint requesting an alternative disposition
of temporary custody of M.M. to the maternal aunt, L.B. On August 4, 2016, the GAL
filed an amended motion requesting temporary custody of M.M. to MCCS, or, in the
alternative, temporary custody to the maternal aunt.
{¶ 5} On August 11, 2016, a temporary custody hearing was held before the
magistrate. On August 12, 2016, the magistrate issued a decision finding M.M. to be a
dependent child and awarded temporary custody of the child to the maternal aunt. The
magistrate also ordered that Father was not to have visitation with M.M. until her therapist -4-
recommended it. At the time of the hearing, M.M. had been removed from the maternal
grandfather’s home by MCCS and was living with a foster family.
{¶ 6} Father filed objections to the magistrate’s decision on August 25, 2016.
After receiving the transcript of the temporary custody hearing, Father filed supplemental
objections on March 28, 2017. MCCS filed its reply to Father’s supplemental objections
on April 27, 2017. Thereafter, on August 9, 2017, the juvenile court issued a decision
overruling Father’s objections and adopting the magistrate’s decision adjudicating M.M.
as a dependent child and granting temporary custody to the maternal aunt. The juvenile
court also granted a first extension of temporary custody to the maternal aunt since the
original award of temporary custody had expired on June 2, 2017.
{¶ 7} It is from this decision that Father now appeals.
{¶ 8} Father’s first assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRED BY FINDING M.M. TO BE A DEPENDENT
CHILD.”
{¶ 10} In his first assignment, Father contends that the juvenile court erred when
it adjudicated M.M. as a dependent child because he has affirmatively expressed his
desire to raise his daughter and is able to provide adequate parental care and support for
her.
{¶ 11} A “dependent child” includes one “[w]hose condition or environment is such
as to warrant the state, in the interests of the child, in assuming the child's guardianship
* * *.” R.C. 2151.04(C). A trial court's dependency finding must be supported by clear
and convincing evidence. In re P. G., 2d Dist. Montgomery No. 22706, 2008–Ohio–4015,
¶ 11. This Court's review is limited to determining whether the record contains sufficient, -5-
credible evidence to support the trial court's decision. Id.
{¶ 12} The focus in a dependency proceeding is on the child's condition, not on
parental fault or a lack thereof. In re A.W., 2d Dist. Montgomery No. 25039, 2012-Ohio-
2657, ¶ 11; see also In re Riddle, 79 Ohio St.3d 259, 263, 680 N.E.2d 1227 (1997)
(recognizing that a dependency case focuses on the condition or environment of the child
rather than parental fault); State v. Frazier, 2d Dist. Montgomery Nos. 15273, 15274, 1996
WL 517271, *3 (Sept. 13, 1996) (“Unlike a case involving neglect, fault on the part of a
parent is not necessary to a finding of dependency. * * * In dependency cases, the focus
is on the condition of the children, and not the fault of the parents.”). “This is not to say
that a parent's conduct is never relevant in a dependency proceeding. A parent's
problems and deficiencies certainly can affect a child's condition or environment and
necessitate state intervention.” In re A.W. at ¶ 11, citing In re Lannom, 2d Dist. Clark
No. 96–CA–64, 1997 WL 761323, *5 (Dec. 12, 1997). “But a finding of dependency does
not require a showing of parental fault because fault is not an issue in a dependency
proceeding.” In re A.W. at ¶ 11.
{¶ 13} “The conduct of a parent is relevant under [R.C. 2151.04(C)] solely insofar
as that parent's conduct forms a part of the environment of the child. As a part of the
child's environment such conduct is only significant if it can be demonstrated to have an
adverse impact upon the child sufficiently to warrant state intervention. That impact
cannot be simply inferred in general, but must be specifically demonstrated in a clear and
convincing manner.” In re Burrell, 58 Ohio St.2d 37, 39, 388 N.E.2d 738 (1979).
{¶ 14} M.M. was adjudicated as a dependent child pursuant to R.C. 2151.04(A)
and (C). R.C. 2151.04(A) defines “dependent child” as any child “[w]ho is homeless or -6-
destitute or without adequate parental care, through no fault of the child’s parents,
guardian, or custodian.” R.C. 2151.04(C) defines “dependent child” as any child
“[w]hose condition or environment is such as to warrant the state, in the interests of the
child, in assuming the child's guardianship.”
{¶ 15} As previously stated, Mother passed away as a result of suicide on October
6, 2015. Prior to her death, Mother arranged for M.M. to live with the maternal
grandfather beginning in July of 2015. The maternal grandfather testified that he
struggled to control M.M.’s behaviors and was unable to set rules and boundaries for her.
Dr. Elana Harris, a child psychiatrist at Cincinnati Children’s Hospital, testified that she
had been treating M.M. since September of 2015. Dr. Harris diagnosed M.M. with post-
traumatic stress disorder (PTSD), generalized anxiety disorder, major depression,
obsessive compulsive disorder (OCD), and Tourette’s Syndrome. Dr. Harris testified
that M.M. suffered from nightmares, intrusive thoughts and memories, flashbacks,
difficulty concentrating, suicidal ideation, and anxiety. M.M. also suffered from significant
medical issues, including severe headaches, insomnia, and abdominal issues, for which
she was receiving treatment.
{¶ 16} Dr. Harris testified that M.M.’s PTSD was caused by a number of traumas
that she had suffered throughout her life. Dr. Harris testified that M.M. recounted
memories of domestic violence perpetrated by Father against Mother which occurred
when she was approximately six years old. M.M. also told Dr. Harris that she had been
sexually molested by Father when she was a child. Dr. Harris testified that triggers for
M.M.’s PTSD include Father, talking about Father, himself, and thinking about living with
Father. Dr. Harris testified that she believed that M.M.’s perspectives about her Father -7-
were her own and that she was not malingering or being influenced by her Mother’s family
against Father. Dr. Harris concluded that visits with Father would be detrimental to
M.M.’s progress in treatment, and therefore, not in her best medical and mental health
interest.
{¶ 17} Dr. Antoinette Cordell, a clinical and developmental psychologist
independently hired by Father, performed a psychological evaluation of M.M. in June of
2016. Essentially echoing the findings made by Dr. Harris, Dr. Cordell testified that M.M.
suffered from PTSD as a result of the traumas she had suffered. Dr. Cordell testified
that M.M. indicated that “she was sexually, physically, and mentally abused, in her mind,
by her biological father.” Trans. 127-128. Dr. Cordell further testified that M.M. did not
appear to have been influenced against Father, nor did her statements seem coached.
Dr. Cordell testified that M.M.’s mental and physical issues were real and that she was
not malingering. Dr. Cordell testified that she did not recommend visitation with Father
because M.M. was not currently stable enough, and visitation would be detrimental to her
treatment.
{¶ 18} Melody Popp, M.M.’s caseworker at MCCS, testified that M.M. was
adamant that she did not want to have any contact with her Father. During a home visit
in May of 2016, Popp attempted to discuss the subject of visiting Father with M.M. Popp
testified that M.M. immediately became very upset, was shaking, and started
hyperventilating. M.M. informed Popp that “she did not want to live anywhere if she was
forced to live with her father.” Trans. 56. We note that Dr. Harris testified that during a
therapeutic session, M.M. stated that she “would not want to be alive if she were returned
to her father.” Trans. 25. -8-
{¶ 19} In contrast to the diagnoses of Drs. Harris and Cordell, Father testified that
he believed that M.M. was malingering and falsely reporting medical problems. Father
testified that M.M. was manipulating all of the adults in her life, including Drs. Harris and
Cordell. Father testified that everyone permitted M.M. to make decisions for herself, and
he was the only adult willing to make decisions on her behalf and not be manipulated by
her. Despite Dr. Harris and Popp’s testimony with respect to M.M.’s threatening suicide
if she returned to live with Father, he testified that she would not be in any physical harm
if she came to live with him. Popp testified that Father stated religion was very important
to him and that MCCS should force M.M. to go to church on the weekends. Popp further
testified that Father stated that if she refused to go, MCCS should call the police to come
and force her to attend church. Dr. Cordell testified that forcing religious participation on
M.M. would be detrimental to her mental and physical health.
{¶ 20} Upon review, we conclude that clear and convincing evidence was adduced
at the temporary custody hearing which established that M.M. is a dependent child
pursuant to R.C. 2151.04(A) and (C). The record establishes that the maternal
grandfather was unable to properly care for M.M. because of her special mental and
physical needs. Furthermore, both Dr. Harris and Dr. Cordell testified that based upon
their treatment of M.M., it would be detrimental for her to have visitation with Father, let
alone custody, and therefore, not in her best interests. Given M.M.’s existing mental and
physical problems, as well as her perception of Father, placement of M.M. in his home
would further exacerbate her existing issues. Accordingly, the trial court did not err when
it adopted the magistrate’s decision adjudicating M.M. a dependent child.
{¶ 21} Father’s first assignment of error is overruled. -9-
{¶ 22} Father’s second assignment of error is as follows:
{¶ 23} “THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A FIRST
EXTENSION OF TEMPORARY CUSTODY OF M.M TO HER MATERNAL AUNT.”
{¶ 24} In his second assignment or error, Father argues that the trial court abused
its discretion when it awarded temporary custody of M.M. to the maternal aunt.
Specifically, Father argues that the juvenile court relied too heavily on the testimony of
Dr. Harris and Dr. Cordell, whom he alleges have been manipulated by M.M. Father
further argues that the evidence established that he was able to properly care for M.M.
and address her mental health issues.
{¶ 25} A court may commit a dependent child to the temporary custody of a public
children services agency or a relative residing within or outside the state if the court finds
that this disposition is in the child's best interest. See In re A.W., 2d Dist. Montgomery
No. 25039, 2012–Ohio–2657, ¶ 17, citing R.C. 2151.353(A)(2) and In re S.M., 2d Dist.
Montgomery No. 24539, 2011–Ohio–6710, ¶ 3. The court's temporary custody decision
“must be supported by a preponderance of the evidence.” In re S.M. at ¶ 4. The decision
will not be overturned as against the manifest weight of the evidence if the record contains
competent, credible evidence supporting the decision. See In re A.U., 2d Dist.
Montgomery No. 22264, 2008–Ohio–186, ¶ 15.
{¶ 26} “While an award of temporary custody to a children-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.’ ” In re A.W. at ¶ 17, quoting In re S.M. at ¶ 4. A court determines a child's best
interest using the relevant factors in R.C. 3109.04(F)(1). In re D.S., 2d Dist. Clark No. -10-
2013 CA 51, 2014–Ohio–2444, ¶ 9. The factors pertinent to the instant case include: 1)
the parents' wishes; 2) the child's wishes, if the court has interviewed the child; 3) the
child's interaction with parents, siblings, and others who may significantly affect the child's
best interests; 4) adjustment of the child to home, school, and community; and 5) the
mental and physical health of all those involved.
{¶ 27} Initially, we note that before Mother passed away, she arranged to have
M.M. live with the maternal grandfather and executed a power of attorney for him to care
for her. Popp testified that Mother stated that she wanted M.M. to live with the maternal
grandfather.
{¶ 28} Father testified that he wanted custody of M.M. and was able to care for
her. At the time of the hearing, Father had not spoken with M.M. since April of 2015,
when he sent her a text message on her birthday. Father, however, did testify that he
wanted the opportunity to rebuild his relationship with M.M. Father also testified that if
he did not get custody of M.M., he still wanted to have visitation with her and would be
willing to engage in therapy with her.
{¶ 29} Pursuant to R.C. 2151.353(A)(2), if a child is adjudicated a dependent child,
the court may place him or her with a relative residing within or outside the state. Prior
to awarding temporary custody to the maternal aunt, the magistrate held an in camera
interview with M.M., and the interview is not part of the record. While the magistrate’s
decision does not disclose what was said during the interview, the record establishes that
M.M. has consistently stated that she does not want to live with Father nor have any
contact with him. Popp, Dr. Harris, and Dr. Cordell all testified that M.M. became very
upset at the suggestion that Father might get custody of her. As previously stated, M.M. -11-
threatened self-harm when she was asked about living with Father. M.M. told Dr. Harris
and Dr. Cordell that she wanted to live with the maternal aunt and was very comfortable
with her. In her report, the GAL stated that M.M. clearly expressed her desire to be
permanently placed with the maternal grandfather, but if that were not possible, she
wanted to be placed in the temporary custody of the maternal aunt.
{¶ 30} The record establishes that M.M. has a very positive relationship with the
maternal aunt. Prior to the temporary custody hearing, M.M. spent two weekends
staying with the maternal aunt at her residence. M.M. advised Dr. Harris that she did not
want to go back to foster care after staying with the maternal aunt. Based upon their
favorable interaction, Dr. Harris testified that she believed placement with the maternal
aunt would be in M.M.’s best interests. Popp testified that the maternal aunt had the
ability to calm M.M. down when she got upset and was also able to help her cope with
stressful situations. The maternal aunt testified that she would be able to provide a
stable home environment for M.M. as well as manage all of M.M.’s mental health needs.
{¶ 31} Furthermore, although M.M. had been designated as an emotionally
disturbed child in a recent Individualized Education Program (IEP), Dr. Cordell testified
that the local school district would provide the support necessary for M.M. to successfully
transition back into a regular school environment. The maternal aunt testified that she
was aware that school was back in session soon and that she was prepared to ensure
that all of M.M.’s special educational needs were met at the new school. Dr. Harris
testified that M.M. was very positive about her future if she were to be placed with the
maternal aunt.
{¶ 32} As previously stated, Father believed that M.M. was malingering and falsely -12-
reporting medical problems. Furthermore, Father testified that M.M. was manipulating
all of the adults in her life, including Drs. Harris and Cordell. Despite Dr. Harris and
Popp’s testimony with respect to M.M.’s threatening suicide if she returned to live with
Father, he testified that she would not be in any physical harm if she came to live with
him. Father also stated religion was very important to him, and he would insist that M.M.
go to church on the weekends. Dr. Cordell testified that forcing religion on M.M. would
be detrimental to her mental health. Father is also a trigger for M.M.’s PTSD. Dr. Harris
and Dr. Cordell both testified that visitation with Father would therefore have a very
negative effect on M.M.’s well-being.
{¶ 33} Finally, the primary reason for MCCS’s involvement in the instant case was
the mental and physical problems suffered by M.M. The record establishes that M.M.
suffered from PTSD, generalized anxiety disorder, major depression, OCD, and
Tourette’s Syndrome. Dr. Harris testified that M.M. experienced nightmares, intrusive
thoughts and memories, flashbacks, difficulty concentrating, suicidal ideation, and
anxiety. M.M. also had significant medical issues, including severe headaches,
insomnia, and abdominal issues, for which she was being treated by doctors. Both Dr.
Harris and Dr. Cordell testified that it would be detrimental to M.M.’s mental health if she
were to have any contact with her Father at this juncture.
{¶ 34} Despite all of the evidence to the contrary, Father testified that he believed
M.M. was falsely reporting her mental and physical problems. Father also testified that
M.M. was manipulating the adults in her life, and that he was the only adult willing to make
decisions on her behalf. Popp testified that Father was verbally aggressive with MCCS
staff and that every conversation she had with him ended in an argument with him yelling -13-
at her. Because of the concerns with Father’s mental health, MCCS amended his case
plan objectives and ordered him to receive a parenting and psychological assessment.
Father testified that he suffered from anxiety and had been on medication to treat his
condition since 2010. Furthermore, while their divorce was pending, Father called
Mother and threatened to kill himself by driving his truck into a telephone pole. As a
result, Father was taken into custody by the police and placed on psych-hold for seventy-
two hours.
{¶ 35} In light of the foregoing, we conclude that the trial court did not abuse its
discretion when it found that it was in M.M.’s best interests pursuant to R.C. 3109.04(F)(1)
to be placed in the temporary custody of the maternal aunt.
{¶ 36} Father’s second assignment of error is overruled.
{¶ 37} Father’s third and final assignment of error is as follows:
{¶ 38} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE
[FATHER]’S PARENTING TIME CONDITIONAL.”
{¶ 39} In his third assignment, Father contends that the trial court abused its
discretion when it granted him visitation with M.M. only when and if her therapist
recommends it.
{¶ 40} As previously stated, Dr. Harris testified that triggers for M.M.’s PTSD
include Father, talking about Father, and thinking about living with Father. Dr. Harris
testified that she believed that M.M.’s opinions regarding her Father were her own and
that she was not malingering or being influenced by her Mother’s family against Father.
Dr. Harris concluded that visits with Father would be detrimental to M.M.’s progress in
treatment, and therefore, not in her best interests. Echoing the findings made by Dr. -14-
Harris, Dr. Cordell testified that she did not recommend visitation with Father because
M.M. was not currently stable enough, and visitation would be detrimental to her
{¶ 41} Although Father seems genuinely willing to rebuild his relationship with his
daughter, we agree with the juvenile court and find that M.M. has clearly and
unequivocally maintained that she does not want to have any contact with him and that
forcing her to do so would have a negative effect on her. Additionally, the record
establishes that M.M. is not malingering nor faking her symptoms. Father’s claim that
M.M. has manipulated Dr. Harris and Dr. Cordell is simply not supported by the record.
Accordingly, we find that the juvenile court did not err when it granted Father visitation
with M.M. made contingent upon the recommendation of her therapist.
{¶ 42} Father’s third and final assignment of error is overruled.
{¶ 43} All of Father’s assignments of error having been overruled, the judgment of
the juvenile court is affirmed.
WELBAUM, P.J. and TUCKER, J. concur.
Copies mailed to:
Alice Peters Robert Brenner Michael Booher Christopher Deal Theodore Valley L.B. Montgomery County Juvenile Court, c/o Hon. Anthony Capizzi -15-