In re A.K.

2015 Ohio 29

Opinion

[Cite as In re A.K., 2015-Ohio-29.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

IN THE MATTER OF: A.K., C.K., and Z.K.

:

Appellate Case No. 2013-CA-63

Trial Court Case Nos. 2007-JI-08 2007-JI-09 2007-JI-10

(Appeal from Juvenile Court) ...........

OPINION

Rendered on the 9th day of January, 2015.

...........

MICHAEL EDWARDS, Atty. Reg. No. 0082030, 41 East Main Street, Enon, Ohio 45323 Attorney for Minor Children

BRIAN K. Appellant-Pro Se

JACOB JEFFRIES, 133 South Main Street, New Carlisle, Ohio 45344 Guardian Ad Litem

JENISE B. Appellee-Pro Se

............. 2

WELBAUM, J.

{¶ 1} In this case, Brian K. appeals from a judgment denying his motion for change of

custody of his three minor children, A.K., C.K., and Z.K., from their mother, Jenise B., to

himself.1 In support of his appeal, Brian raises several issues, including that: (1) the trial judge

erred by failing to recuse herself from trial due to a conflict of interest; (2) the trial court erred in

finding that no change of circumstances had occurred; (3) the court erred by conducting an in

camera interview of the children, by excluding attorneys from the interview, and by refusing to

allow Brian’s counsel to review a transcript of the interview; (4) the court erred in excluding

Brian’s expert as a witness; (5) the court erred in excluding evidence prior to May 2011; and (6)

the court’s decision was against the manifest weight of the evidence.

{¶ 2} We conclude that no error occurred in the trial court proceedings, with the

exception of the failure to qualify Brian’s expert as a witness. However, any error was harmless,

as the trial court allowed the expert to testify about factors relating to alienation, and the trial

court, as fact-finder, was responsible for reaching the ultimate conclusion on this issue.

Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} This case has a long and complicated history, and this is the fourth time the

parties have been before our court. The facts surrounding the parties’ initial custody battle are

set forth in the case of In re A.K., 2d Dist. Champaign No. 09-CA-32, 2010-Ohio-2913 (A.K. I).

1 For purposes of the minors’ privacy, the parents will be identified by their first names only, and initials will be used in place of the minors’ names. 3

Essentially, Brian and Jenise began their relationship in 1990 and separated in February 2007,

when Jenise left and took the parties’ three children to Pennsylvania. Id. at ¶ 3-4 and 7. A

prolonged and bitter custody dispute ensued, which included accusations of sexual abuse by

Brian of C.K. (that were not found to be substantiated); allegations about Brian’s controlling

behavior; motions for contempt filed against Jenise for denial of visitation; and allegations of

Jenise’s attempts to alienate the children from Brian. Id. at ¶ 12-15, 17, and 35-38. Ultimately,

Jenise was awarded sole custody of the children, and Brian was given visitation. Id. at ¶ 17.

We affirmed the judgment in June 2010, finding no abuse of discretion. Id. at ¶ 45.

{¶ 4} In December 2010, Brian filed a motion for relief from the judgment granting

Jenise legal custody, based on alleged fraud by Jenise and the trial court. See In re A.K., 2d Dist.

Champaign No. 2011 CA 4, 2011-Ohio-4536, ¶ 3 (A.K. II). The trial court held that the motion

was untimely, and we affirmed the court’s decision in September 2011. Id. at ¶ 4 and 17.

{¶ 5} Previously, in January 2011, Brian had filed a pro se motion for contempt, based

on Jenise’s denial of visitation on December 31, 2010. The trial court denied this motion in an

entry filed on May 23, 2011, and Brian appealed. See In re A.K., 2d Dist. Champaign No. 2011

CA 15, 2012-Ohio-412, ¶ 3 and 5 (A.K. III). We affirmed this decision in February 2012, based

on Brian’s failure to file a transcript of the evidence, which required that we presume the

regularity of the trial court proceeding. Id. at ¶ 16-17.

{¶ 6} In February 2011, Brian had also filed a pro se motion for change of custody,

based on Jenise’s alleged denial of visitation and campaign of alienation against him. However,

on February 28, 2011, the trial court placed the motion for change of custody on its inactive

docket, based on the fact that the same issues were currently before the court of appeals. In the 4

meantime, the trial court decided the contempt motion, as noted, on May 23, 2011. After we

overruled Brian’s motion for relief from the original custody judgment in September 2011, the

trial court returned the case to its active docket. Subsequently, in October 2011, the attorney for

the children, who had been appointed in February 2011, filed a motion asking the court to modify

Brian’s parenting time, based on allegations that Brian was mentally and physically abusive.

Brian also filed a show cause motion on October 13, 2011, based on Jenise’s alleged denial of

visitation on numerous occasions since July 2011.

{¶ 7} On October 14, 2011, the trial court conducted an in-camera interview with the

children and, on October 29, 2011, the court suspended all parenting time for Brian during the

pendency of the matter. The trial court did not offer any explanation for its decision, and

continued the matter until February 2012.

{¶ 8} In March 2012, Brian filed a notice that he had filed a federal court action

against various parties, including the juvenile judge presiding over Brian’s case in the Champaign

County Juvenile Court.2 The trial court continued the case due to the pending federal lawsuit.

Brian then filed an affidavit of disqualification against the trial judge in May 2012, contending

that the trial judge had previously recused herself from the case in an entry dated February 20,

2009, due to a conflict of interest. In June 2012, the Supreme Court of Ohio denied the affidavit

of disqualification, and also denied Brian’s request for reconsideration.

{¶ 9} Subsequently, in September 2012, Brian filed a request with the trial court,

asking the trial judge to recuse herself. The judge refused this request in October 2012. The

2 The federal action was dismissed by the federal district court in July 2012, based on lack of jurisdiction, judicial immunity, and failure to state a claim. See [K.] v. [B.], S.D. Ohio No. 3:12-CV-95, 2012 WL 2871623 (July 12, 2012). 5

trial court then filed an entry allowing Brian’s former counsel to withdraw. The court also denied

Brian’s new counsel’s request for a transcript of the in-camera interview. In addition, the court

appointed a guardian ad litem (GAL) for the children, and indicated that if the GAL

recommended parenting time for Brian, the court would consider modifying its temporary order.

{¶ 10} Based on the GAL’s recommendation, the trial court granted Brian parenting

time for three hours on December 22, 2012, at the Miami Valley Center Mall. The court further

provided that Brian would receive parenting time twice a month at the same location, and that the

parenting time status would be reviewed in March 2013.

{¶ 11} In March 2013, Brian filed a motion with the trial court, asking the court to hold

Jenise in contempt for failing to provide the children for appointments with Dr. Mason, who had

previously been disclosed as an expert witness by Brian. The court found Jenise in contempt,

and ordered that she produce the children for appointments on March 28, April 3, and April 11,

2013. Additionally, the court ordered that Brian would receive parenting time on the first and

third Saturdays of each month, from 10 to 5, with no restrictions on location.

{¶ 12} During a review hearing on June 13, 2013, Brian requested temporary custody,

and Jenise asked that his parenting time be supervised. The trial court ordered that Brian receive

parenting time every other weekend from Saturday at 10:00 a.m. to Sunday at 5:00 p.m.

Finally, the court ordered that a final evidentiary hearing on all pending issues would be held on

August 26 and 27, 2013.

{¶ 13} Shortly thereafter, the attorney for the children filed a motion seeking an ex

parte order restricting Brian’s parenting time, and asking the court to conduct another in-camera

interview with the children. The court denied the request for an ex parte order, but scheduled an 6

in-camera interview for August 8, 2013. The trial court also denied Brian’s motion for a stay of

the in-camera interview. Brian filed a notice of appeal from this decision, and also filed a

motion for stay of the proceedings, which was denied by the trial court on August 7, 2013.3 In

addition, Brian filed an affidavit of disqualification with the Supreme Court of Ohio, which was

rejected by the Supreme Court of Ohio on September 9, 2013.

{¶ 14} In the meantime, Brian filed a motion on August 22, 2013, again asking the

court to compel Jenise to participate in the psychological evaluation of the children. In the

motion, Brian alleged that he had sent a letter to counsel for the children on July 15, 2013,

requesting cooperation in scheduling a final interview with Dr. Mason, but had received no

response. Notably, the letter was apparently incorrectly sent by mail and fax instead to the

address and fax number of counsel for Jenise.

{¶ 15} At the beginning of the evidentiary hearing held on August 26, 2013, the trial

court denied Brian’s request to compel additional visits to Dr. Mason, based on the fact that the

request was filed only a few days before the evidentiary hearing. The trial court also refused to

allow Brian’s counsel to introduce an exhibit indicating that counsel for the children was named

on the letterhead of counsel for Jenise, i.e., indicating that the request for additional appointments

had been sent to a correct address.

{¶ 16} Ultimately, due to the number of witnesses, further trial dates were set for

October 9, 11, and 16, 2013, and Dr. Mason’s testimony was rescheduled for October 16, 2013.

The parties also agreed that Dr. Mason would provide a written report to the parties, court, and

GAL by October 2, 2013. A copy of Dr. Mason’s preliminary report was filed on October 2,

3 The record does not indicate what happened with respect to this particular appeal. 7

2013, together with a motion asking the court to compel Jenise to provide the children to Dr.

Mason so that he could finalize his report. The trial court denied the request on October 8, 2013,

noting that no specific dates for appointments had been submitted, other than the dates in August

2013 that had passed prior to the filing of the first motion to compel. At trial, the court allowed

Dr. Mason to testify, but refused to qualify him as an expert witness on alienation.

{¶ 17} After hearing the evidence, the trial court filed an entry finding no change in

circumstances, and denying Brian’s motion to reallocate parental rights and responsibilities. The

court also held Jenise in contempt of court for denying visitation between September 9, 2011 and

November 23, 2011. The court sentenced Jenise to a $500 fine and ten days in jail, but

suspended the jail time so long as Brian was given six additional weeks of parenting time

between the date of the entry and April 30, 2014.

{¶ 18} Brian appeals from the judgment denying his motion to reallocate parental rights

and responsibilities.

II. Failure to Recuse

{¶ 19} Brian’s First Assignment of Error states that:

The Trial Court Erred by Failing to Recuse Herself From the Trial Due to a

Conflict of Interest.

{¶ 20} Under this assignment of error, Brian contends that the trial judge should have

recused herself due to the pendency of a federal lawsuit in which she was at risk of suffering

money damages. Brian also argues that the trial judge demonstrated a clear bias against him by

her rulings and demeanor, including a refusal to recognize Brian’s witness as an expert, the 8

judge’s antagonistic tone of voice, a threat of arrest made to Brian’s counsel, and the reading of a

settlement offer into the record. Before addressing this argument, we note that Jenise failed to

file an appellate brief, and, thus, has not responded to any of Brian’s assignments of error.

{¶ 21} In Owais v. Costandinidis, 2d Dist. Greene No. 2014-CA-5, 2014-Ohio-4103,

we noted in a similar situation that:

We are without authority to address the issue of the trial court's alleged

bias against [Appellant], as her remedy would be the filing of an affidavit with the

Supreme Court of Ohio. Callison v. DuPuy, 2d Dist. Miami No.2002 CA 52,

2003-Ohio-3032, ¶ 22, citing R.C. 2701.03. “Pursuant to this procedure, the

Chief Justice of the Ohio Supreme Court or his designee determines whether the

judge is biased or prejudiced.” Id., citing Beer v. Griffith, 54 Ohio St.2d 440,

441, 377 N.E.2d 775 (1978), and Article IV, Section 5(C), Ohio Constitution.

“This is ‘the exclusive means by which a litigant may claim that a common pleas

judge is biased and prejudiced.’ ” Id., quoting Jones v. Billingham, 105 Ohio

App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995). Accord State v. Cook, 2d Dist.

Champaign No. 2013 CA 22, 2014-Ohio-3165, ¶ 15.

Owais at ¶ 70.

{¶ 22} In the case before us, Brian availed himself of that remedy at least twice, and the

Supreme Court of Ohio failed to find a basis for disqualifying the trial judge. However, even if

we were to consider Brian’s challenge, we would find it without merit.

{¶ 23} “Judicial bias is ‘ “a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory 9

judgment on the part of the judge, as contradistinguished from an open state of mind which will

be governed by the law and the facts.” ’ ” Weiner v. Kwait, 2d Dist. Montgomery No. 19289,

2003-Ohio-3409, ¶ 89, quoting State v. LaMar, 95 Ohio St.3d 181, 189, 767 N.E.2d 166 (2002).

“Trial judges are ‘ “presumed not to be biased or prejudiced, and the party alleging bias or

prejudice must set forth evidence to overcome the presumption of integrity.” ’ ” Id. at ¶ 90,

quoting Eller v. Wendy's Internatl., Inc., 142 Ohio App.3d 321, 340, 755 N.E.2d 906 (10th Dist.

2000). “In Eller, the court also noted that ‘ “[t]he existence of prejudice or bias against a party

is a matter that is particularly within the knowledge and reflection of each individual judge and is

difficult to question unless the judge specifically verbalizes personal bias or prejudice toward a

party.” ’ ” Id.

{¶ 24} For purposes of assessing this issue, we have reviewed the entirety of the docket

and transcript. There is no doubt that this was a bitterly contested matter, and the trial court was

required to deal with voluminous motions filed by both parties – some of which had merit, and

others that did not. At times during the five days of evidentiary hearings, the trial court

expressed frustration with Brian’s counsel, but the record indicates that counsel was, at times,

ill-prepared and was confused about exhibits, despite the court’s attempts to assist counsel and

clarify the record. See, e.g., Trial Transcript, Vol. VI (Oct. 13, 2013), pp. 808-810.

{¶ 25} As an additional matter, the federal lawsuit was dismissed well in advance of

trial, and there is no indication in the record that the trial judge was influenced by the fact that

Brian had sued her and others, including another Champaign County Juvenile Judge and various

Champaign County entities. See [K.], S.D. Ohio No. 3:12-CV-95, 2012 WL 2871623 (July 12,

2012), at * 1. 10

{¶ 26} Furthermore, with respect to the court’s alleged threat to arrest Brian’s counsel,

the record indicates that counsel was disrespectful to the judge, who responded by stating that she

would call a deputy if counsel pointed his pen at her anymore. Trial Transcript, Vol. II (Aug. 26,

2013), p. 363. The trial court could perhaps have been less officious in general during its

conduct of the trial, but the court’s duty to maintain order may have required assertive conduct

given the nature of these very contentious proceedings. It is difficult to measure from the record

whether a lesser level of control would have sufficed.

{¶ 27} Finally, with regard to settlement offers, we note that, at the end of the

evidentiary hearing, the trial court placed on the record the fact that Jenise had offered shared

parenting, but the offer had been rejected by Brian. The basis for admitting this fact was the

court’s belief that “The Supreme Court of Ohio has been – and appellate courts in Ohio have

been becoming very, very strict about making sure the parties know what is offered in the way of

a plea or settlement.” Trial Transcript, Vol. VI (Oct. 13, 2013), p. 899.

{¶ 28} The trial court did not cite any cases for this proposition. This may be true in

criminal cases, but it is not true in civil cases. In this regard, Evid.R. 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2)

accepting or offering or promising to accept, a valuable consideration in

compromising or attempting to compromise a claim which was disputed as to

either validity or amount, is not admissible to prove liability for or invalidity of

the claim or its amount. Evidence of conduct or statements made in compromise

negotiations is likewise not admissible. This rule does not require the exclusion

of any evidence otherwise discoverable merely because it is presented in the 11

course of compromise negotiations. This rule also does not require exclusion

when the evidence is offered for another purpose, such as proving bias or

prejudice of a witness, negativing a contention of undue delay, or proving an effort

to obstruct a criminal investigation or prosecution.

{¶ 29} In Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, the

defendant argued that the trial court had erred in admitting letters from his counsel that contained

offers to compromise. Id. at ¶ 54. The trial court allowed certain parts of the letters to be

admitted, but stated that references to compromise would be “redacted and excluded.” Id. at ¶

59. In this regard, the court of appeals found no error in the admission, stating that:

Counsel for the parties had the opportunity to confer about what parts of

these exhibits should be redacted, and anything that would be prohibited by

Evid.R. 408 was redacted. Evidence Rule 408 states, “This rule also does not

require exclusion when the evidence is offered for another purpose * * *.” It

would appear that the information contained in those exhibits was already before

the trial court, and the purpose in admitting them was to demonstrate the

difficulties in communications and working out shared parenting time that existed

between the parties; there was no discussion of “compromise” or “settlement” that

was not redacted. The trial court did not abuse its discretion concerning the

admission of these exhibits.

Id.

{¶ 30} As another example, the Tenth District Court of Appeals concluded that

admission of a proposed settlement agreement did not violate Evid.R. 408 where the evidence 12

was introduced to prove the appropriate venue, and was not admitted for purposes of the validity

or invalidity of the other party’s claim. Swearingen v. Swearingen, 10th Dist. Franklin No.

06AP-698, 2007-Ohio-1241, ¶ 15.

{¶ 31} We have also observed that:

The reason for excluding this type of evidence is that parties may offer to

compromise based on factors besides potential liability. Additionally, the rule is

designed to encourage settlement of disputes. Fireman's Fund Ins. Co. v. BPS

Co. (1985), 23 Ohio App.3d 56, 62, 23 OBR 101, 106-107, 491 N.E.2d 365, 372.

However, as the defendants point out, the rule makes an exception when evidence

is offered for another purpose, such as showing witness bias. As an example, we

have approved admission of a settlement proposal where it was offered to show a

lack of malice on the defendants' part. Hignite v. Trout (Apr. 28, 1989), Greene

App. No. 88CA5, unreported, at 14, 1989 WL 43035.

Schafer v. RMS Realty, 138 Ohio App.3d 244, 295, 741 N.E.2d 155 (2d Dist.2000).

{¶ 32} In Shafer, we concluded that the defendants were entitled to admit evidence of

offers to compromise because their motives were at issue. Id. However, in the case before us,

the trial court was not admitting evidence for some other purpose, nor was it, in fact, admitting

evidence at all. The court was reciting terms of a settlement offer after the close of evidence,

which would not be appropriate. However, neither party objected at the trial court level, and the

error, if any, was harmless. The trial court was obviously aware of the settlement proposal,

whether it mentioned the offer on the record or not, and there is, again, no indication in the record

that the court’s decision was influenced by the offer. 13

{¶ 33} Accordingly, the First Assignment of Error is overruled.

III. Change of Circumstances

{¶ 34} Brian’s Second Assignment of Error states that:

The Trial [Court] Erred in Finding that No Change of Circumstance Had

Occurred.

{¶ 35} Under this assignment of error, Brian contends that the trial court should have

found a change in circumstances justifying modification of custody, based on various events,

including C.K.’s rebellious behavior, depression, and absence from her mother’s home;

allegations of abuse that, again, have not been substantiated; barely adequate living conditions in

Jenise’s home; and Jenise’s continued failure to honor court-ordered visitation.

{¶ 36} In order to prevail on a motion for reallocation of parental rights and

responsibilities, the movant must establish: “(1) there had been a change in the circumstances of

[the child or the current custodian], (2) modification of the existing custody decree was necessary

to serve [the child’s] best interest, and (3) the harm likely to be caused by a change of

environment was outweighed by the advantages of the change of environment to [the child].”

Chaney v. Chaney, 2d Dist. Montgomery No. 24880, 2012-Ohio-626, ¶ 10, citing R.C.

3109.04(E)(1)(a). “[T]here must be a change of circumstances to warrant a change of custody,

and the change must be a change of substance, not a slight or inconsequential change.”

(Emphasis sic.) Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). In this

regard, the Supreme Court of Ohio has also stressed that:

In determining whether a “change” has occurred, we are mindful that 14

custody issues are some of the most difficult and agonizing decisions a trial judge

must make. Therefore, a trial judge must have wide latitude in considering all the

evidence before him or her * * * and such a decision must not be reversed absent

an abuse of discretion.

(Citation omitted.) Id.

{¶ 37} In rejecting Brian’s motion for reallocation of parental rights, the trial court

concluded that no change in circumstances had occurred “in the children or the residential parent

and no facts have arisen that are new or were unknown to the Court at the time of the prior

February 9, 2009 Magistrate’s Decision and Order and the Court’s Judgment and Order adopting

the Magistrate’s Decision and Orders dated July 24, 2009.” Full Evidentiary Hearing Decision,

Doc. #199, p. 2. In particular, the court noted that the mother and children still lived at the same

residence, the children attended the same school, and the children, while older, still expressed a

desire to live with their mother. Id. at p. 2. In addition, the court observed that:

The parents have continued to have a contentious relationship, each pulling

the children in a different direction and the allegations of abuse are still a topic but

there have been no new allegations. This is nothing new. The Court has been

involved with the family since 2007 and the issues presented never change. Even

Dr. Mason testified that his impressions and evaluation of both parents are still

very consistent with the psychological evaluation conducted prior to 2009.

Even in considering the possibility of alienation, the Court specifically

addressed this issue in 2009 and found that “both parents have taken actions that

would alienate the other parent from the children.” The Court does not find that 15

either parent has acted differently in the interim, and therefore, there are no new

facts or a change in circumstances based on this proposition.

Id. at p. 3.

{¶ 38} Brian argues that the court’s opinion is contradictory in view of the fact that the

court suspended his visitation in November 2011, after interviewing the children in-camera. He

contends that some “new” information must have been disclosed for this to happen.

{¶ 39} A transcript of the in-camera interview has not been submitted with the record,

and we, therefore, have no idea what the children said to the trial court.4 In this regard, we note

that the attorney for the children (not Jenise’s attorney) filed a motion in October 2011, asking

the trial court to modify Brian’s visitation with the children, based on the children’s contention

that Brian was abusive, both mentally and physically. The court then scheduled an in-camera

interview with the children, and after conducting the interview, suspended Brian’s visitation on

November 29, 2011.

{¶ 40} The fact that Brian’s visitation was suspended after the trial court talked to the

children does not mean that a change in circumstances favoring Brian’s request for custody had

occurred; in fact, it indicates the reverse. Furthermore, the in-camera interview in question was

not conducted in connection with the motion for reallocation of parental rights; it was conducted

in connection with a motion filed by the attorney for the minor children, asking that the court

4 In-camera interviews of children are confidential and are not disclosed to parents. However, appellate courts can review sealed transcripts of interviews. See, e.g., Willis v. Willis, 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d 878, ¶ 26 (12th Dist.). Although Brian asked that the trial court release the transcript to him (and the request was properly refused), he did not raise the court’s failure to file a sealed transcript in the trial court. Under the circumstances, any potential error in this regard has been waived. See, e.g., Moline v. Moline, 11th Dist. Ashtabula No. 2009-A-0013, 2010-Ohio-1799, ¶ 54, holding that “failure to object to an error constitutes a waiver of the issue on appeal since it denies the trial judge the opportunity of correcting the error.” 16

suspend visitation with the father.

{¶ 41} Brian further argues that events such as C.K.’s depression, failure to reside

full-time with her mother, and out-of-control behavior resulting in C.K. being taken to a police

station, constitute a change in circumstances warranting a change in custody. We disagree.

According to the record, allegations of sexual abuse of C.K. by Brian first surfaced in late 2007,

during the initial custody proceedings involving Jenise and Brian. See A.K. I, 2d Dist.

Champaign No. 09-CA-32, 2010-Ohio-2913, at ¶ 12. Brian’s visitation was temporarily

discontinued, but was restored after investigating agencies found that the sexual abuse allegations

were unfounded. Id. at ¶ 13. Our prior decision affirming the award of custody to Jenise,

stated that “[t]he trial court and magistrate acted appropriately, because the evidence failed to

establish that either parent acted improperly in connection with the alleged sexual abuse.” Id. at

¶ 44.

{¶ 42} Another sexual abuse investigation occurred in July 2011, according to Jenise,

as the result of a home visit done by an individual who was a mandated reporter in Hardin

County, where Jenise lived. After examining the records of Hardin County Children Services

during the trial proceedings, the trial court informed the parties that the referral to Children

Services was not made by Jenise, but was made by another individual, whose name was kept

confidential, as required by law. The trial court also stated that nothing new was in the records

that had not previously been placed on the record with the court.5

{¶ 43} After the abuse investigation was initiated, Jenise did not provide the children

5 The trial court made these comments when granting a motion to quash filed by Hardin County Children Services regarding its investigation of the abuse allegations in July 2011. 17

for visitation with Brian. Around September 6, 2011, Children Services notified Brian that the

case was being closed, as the allegations were considered unsubstantiated. The trial court

ultimately held that Jenise acted appropriately in withholding visitation during the investigation.

However, the court also found Jenise in contempt for failing to provide visitation between

September 6, 2011, and November 23, 2011, when the court suspended visitation based on the

request of the children’s attorney and the in-camera interview. The children testified in court

that their mother did not have anything to do with their request to suspend visitation.

{¶ 44} “An abuse of discretion means that the trial court's decision is unreasonable,

arbitrary or unconscionable.” Miller v. Remusat, 2d Dist. Miami No. 07-CA-20,

2008–Ohio–2558, ¶ 32, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 45} Based on this standard, the trial court did not act unreasonably in refusing to find

a change of circumstances due to the occurrence of another investigation for sexual abuse. The

record indicates that Jenise did not initiate the abuse investigation, and while the allegations were

classified as unsubstantiated, that does not necessarily mean that the allegations, in fact, were

untrue or that the person reporting the allegations had anything other than a duty to report an

issue to the appropriate agency. In this regard, Dr. Mason, Brian’s expert, indicated that C.K.

clearly believed something had happened with her father. This could have been the result of an

original implant of a false suggestion or a child’s misinterpretation of an event, as suggested by

Dr. Mason, but it could also have been the result of an actual act of abuse. While Dr. Mason

stated that no one, including C.K., told him about sexual abuse that had occurred in the last year

or two, this does not mean that C.K. would also automatically forget about what she believed had 18

happened in the past, or that she might not mention it to others.

{¶ 46} Furthermore, although C.K. displayed signs of depression and stated that she

could “choose to live or die,” the trial court did not act unreasonably in failing to find a change of

circumstances. The testimony of the parties, as well as C.K., indicates that C.K. was

uncomfortable staying overnight in her father’s house. On June 13, 2013, after a period of

successful daytime visitations, the trial court ordered that Brian be permitted visitation with the

children every other weekend, from Saturday at 10:00 a.m. until Sunday at 5:00 p.m.

{¶ 47} Jenise testified that C.K.’s behavior had changed after visitation with Brian was

ordered – that C.K. acted out more and was more out of control. On July 22, 2013, Jenise and

C.K. had an argument, during which Jenise threatened to make C.K. go live with her father if her

attitude did not improve. According to Jenise, the confrontation took place because Brian kept

telling C.K. that she did not have any right to make choices for herself, that C.K. could only do

what the court said and what Brian said. During this argument, C.K. stated that she had a

choice, that she could choose to live or to die. Jenise then took C.K. to the police station

because she was concerned that C.K. was suicidal. As a result of advice received at the police

station, Jenise then took C.K. to St. Rita’s Hospital, where C.K. was diagnosed with depression

and released the same evening.

{¶ 48} This set of events does not indicate that C.K.’s behavior worsened because of

her mother. A reasonable inference is that C.K. was upset because she did not want to stay

overnight at her father’s house – a not unexpected reaction if C.K. believed that she had been

abused in the past.6

6 In fact, C.K. testified that this is why she did not want to stay overnight at her father’s house. 19

{¶ 49} Again – whether this actually happened or was something that may have become

an honestly-held belief of C.K.’s, based on her history of having lived with the allegations for so

long – would basically have been irrelevant at that point. Although Jenise likely did not use the

best judgment in threatening to send C.K. to live with her father, the history of this case shows an

abundance of questionable judgment on the part of all the adults who were involved. For

example, Brian’s fiancee admitted during testimony that she had threatened to break C.K.’s neck

several years prior when C.K. was acting out. Brian also hit Z.K., the youngest child, in the

mouth on the weekend before trial began on August 26, 2013. Both A.K. and Z.K. indicated that

their parents had called each other names and said bad things about the other parent. As we

noted in our prior decision in 2010, “[t]he case before us presents yet another example of parents

who focus more on fighting with each other than on how their behavior affects their children. * *

* Brian and Jenise have never been married, but they have used their children as weapons during

a prolonged and bitter custody fight.” A.K. I,, 2d Dist. Champaign No. 09-CA-32,

2010-Ohio-2913, at ¶ 2. The magistrate who heard the evidence at that point observed that

“neither parent had been able to acknowledge anything positive about the other, and that each

parent had taken actions that would alienate the children from the other parent.” Id. at ¶ 32.

From this perspective, nothing has changed in the parties’ circumstances.

{¶ 50} With respect to the living conditions at Jenise’s house, the GAL did indicate that

they were “barely adequate.” However, Jenise had lived at that home for at least five years prior

to a report the GAL made in December 2012. See Plaintiff’s Ex. 21, p. 3. Therefore, there

would have been no change in living conditions since the trial court’s original custody decision in

July 2009. At the time of the custody hearings, the children were all doing well in school and 20

there was no evidence that they had any discipline or other problems in school.

{¶ 51} Finally, regarding the allegation that C.K. was not living with her mother, C.K.

testified in late August 2013 that she had been staying with her brother during week nights, while

her mother was working. Jenise worked a second-shift job and had been unable to secure a

different shift. On week nights, C.K. stayed with a baby-sitter or her brother. However, Jenise

testified in late October 2013 that this practice no longer continued; that sometimes C.K. stayed

overnight with her brother, who would then drop her off in the morning. Most of the time,

Jenise picked up C.K. on her way home from work. In addition, Jenise’s older son, Jason, had

moved in and was available in the evenings.

{¶ 52} The trial court was in the best position to judge credibility, and was entitled to

credit Jenise’s testimony that C.K. was not staying permanently at her brother’s house. As the

Supreme Court of Ohio has stressed, “[t]he discretion which a trial court enjoys in custody

matters should be accorded the utmost respect, given the nature of the proceeding and the impact

the court's determination will have on the lives of the parties concerned. The knowledge a trial

court gains through observing the witnesses and the parties in a custody proceeding cannot be

conveyed to a reviewing court by a printed record.” (Citation omitted.) Miller v. Miller, 37

Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Accord Hutchinson v. Hutchinson, 2d Dist.

Montgomery No. 26221, 2014-Ohio-4604, ¶ 30.

{¶ 53} Based on the preceding discussion, the trial court did not err in failing to find

that a change of circumstances had occurred sufficient to justify a change of custody under R.C.

3109.04(E)(1)(a). As was noted, nothing of substance changed in the circumstances and conduct

of the parties. Their relationship, while dysfunctional and at times harmful to their children, had 21

not changed.

{¶ 54} Accordingly, the Second Assignment of Error is overruled.

IV. In-Camera Review

{¶ 55} Brian’s Third Assignment of Error states that:

The Trial Court Erred in Conducting an In-camera Interview Excluding

Attorneys From the Interview and Refusing to Permit Counsel for Appellant to

Review the Transcript of the Interview.

{¶ 56} Under this assignment of error, Brian contends that the trial court erred in

interviewing the minor children in-camera and by refusing to permit Brian’s attorney to review

the transcript of the interview.

{¶ 57} The trial court interviewed the children in-camera on August 8, 2013, prior to

the custody hearings, at the request of the children’s attorney. The court then refused to allow

Brian’s attorney to review a transcript of the interview. Previously, the trial court had

interviewed the children in-camera in connection with their attorney’s request to suspend

visitation, and had denied Brian’s request for a copy of that interview to be released to his

attorney as well. See Trial Court Entries of October 11, 2012 and November 27, 2012.

According to Brian, these refusals denied his right to confront witnesses under the Sixth

Amendment of the United States Constitution.

{¶ 58} Under R.C. 3109.051(C), in-camera interviews are discretionary when the court

considers issues relating to parenting time. They are required, upon the request of either party,

when a court is considering the allocation or modification of parental rights and responsibilities 22

under R.C. 3109.04(B)(1). Mangan v. Mangan, 2d Dist. Greene No. 07-CA-100,

2008-Ohio-3622, ¶ 21.

{¶ 59} Both in-camera requests were made in connection with motions to suspend or

restrict Brian’s parenting time, not in connection with the allocation of parental rights and

responsibilities. Thus, the relevance of the interviews to the issue being appealed, i.e., the

decision on modification of parental rights, is questionable. Nonetheless, in-camera interviews

are confidential, and the parents do not have the right to access transcripts of the interview. See,

e.g., Willis, 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d 878, 885, at ¶ 26, and Chapman

v. Chapman, 2d Dist. Montgomery No. 21652, 2007-Ohio-2968, ¶ 27.

{¶ 60} Because Brian did not have a right to review the transcripts of the in-camera

interviews, the Third Assignment of Error is overruled.

V. Exclusion of a Witness

{¶ 61} Brian’s Fourth Assignment of Error states that:

The Trial Court Abused Her Discretion in Excluding Dr. Mason as

Appellant’s Expert Witness.

{¶ 62} Under this assignment of error, Brian contends that the trial court erred in

excluding Dr. Mason as an expert in alienation. As was noted above, Dr. Mason rendered only a

preliminary evaluation, due to the fact that he was not able to conduct sufficient visits with the

children. Brian has not assigned error on appeal to the court’s denial of a request for additional

visits, but he does argue that the court erred in failing to accept Dr. Mason’s qualifications as an

expert in alienation. 23

{¶ 63} A decision “whether a given witness is qualified to testify as an expert falls

within the sound discretion of the trial court and will not be reversed on appeal unless an abuse of

discretion is demonstrated.” State v. Harris, 2d Dist. Clark No. 94 CA 37, 1995 WL 614348, *

4 (Oct. 18, 1995), citing State v. Maupin, 42 Ohio St.2d 473, 479, 330 N.E.2d 70871 (1975).

(Other citations omitted.)

{¶ 64} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), citing Huffman v. Hair

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (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.” Id. “A decision is unreasonable if there is no

sound reasoning process that would support that decision. It is not enough that the reviewing

court, were it deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would support a contrary

result.” Id.

{¶ 65} After reviewing the record, we conclude that the trial court’s decision to exclude

Dr. Mason as an expert in alienation was not supported by sound reasoning. Dr. Mason was a

licensed psychologist who had been practicing for many years, had done many custodial

evaluations, and had testified over 100 times. According to Dr. Mason, in addition to the

matters listed in his curriculum vitae, he had taken classes in alienation during his last six

continuing education cycles. Dr. Mason also testified that he had been qualified as an expert in

both psychological evaluation and in alienation by other courts in central Ohio. 24

{¶ 66} In rejecting the request to qualify Dr. Mason as an expert in the area of

alienation, the trial court stated that:

The Court does not believe there’s sufficient foundation to qualify this individual

as an expert in alienation. I would concur that his CV is extensive as far as a

licensed psychologist and his skills and expertise with adolescents and families,

but the Court does not believe there’s sufficient foundation to qualify him as an

expert specifically in alienation.

Trial Transcript, Vol. VI (Oct.13, 2013), p. 779.

{¶ 67} Although we are limited to an abuse of discretion review, it is unclear what

more must have been done to qualify the doctor as an expert. The fact that other courts had

qualified Dr. Mason as an expert in this area is not dispositive, but in the absence of some

specific indication from the trial court regarding why Dr. Mason failed to qualify, we cannot

conclude that the trial court’s exclusion was reasonable.

{¶ 68} Nonetheless, even though the trial court erred in this regard, the error was

harmless. “An error is harmless where it does not affect substantial rights of the complaining

party, or where the court's action is not inconsistent with substantial justice.” Hofmeier v.

Cincinnati Institute of Plastic & Reconstructive Surgery, Inc, 1st Dist. Hamilton No. C-000274,

2002 WL 63432, * 3 (Jan. 18, 2002), citing O'Brien v. Angley, 63 Ohio St.2d 159, 164, 407

N.E.2d 490 (1980). (Other citations omitted.)

{¶ 69} Specifically, although the trial court refused to qualify Dr. Mason as an

alienation expert, the court did permit Dr. Mason to testify regarding various identifiers that are

recognized by people working in the parental alienation area. These factors included: permitting 25

a child to choose whether or not to visit a parent; blaming an ex-spouse for not having enough

money, causing changes in lifestyles, or causing other problems while in the children’s presence;

assuming an ex-spouse is dangerous due to threats in the past during an argument; false

allegations of sex abuse, drug abuse, and alcohol abuse or other illegal activities of a parent; and

a child’s refusal to spend time with a targeted parent.

{¶ 70} In view of Dr. Mason’s recitation of these factors, the trial court had the ability

to conclude, as the trier of fact, whether the children had been alienated. What the court

determined was that the parents “had continued to have a contentious relationship, each pulling

the children in a different direction,” and that the issues presented had never changed since the

court’s first involvement with the family in 2007. Full Evidentiary Hearing Decision, Doc.

#199, p. 3. The trial court’s decision in this regard is supported by the record.

{¶ 71} Furthermore, Dr. Mason stated that he was unable to hypothesize if the

alienating factors had occurred in this particular case, because he had not finished his evaluation.

Trial Transcript, Vol. VI (Oct. 13, 2013), at p. 825. As was noted, Brian has not raised Dr.

Mason’s inability to finish his evaluation on appeal.

{¶ 72} Based on the preceding discussion, the Fourth Assignment of Error is overruled.

VI. Restriction of Evidence

{¶ 73} Brian’s Fifth Assignment of Error states as follows:

The Trial Court Erred in Prohibiting Evidence Prior to May 2011.

{¶ 74} Under this assignment of error, Brian contends that the trial court erred in ruling

that no evidence would be permitted regarding time periods prior to May 23, 2011. The trial 26

court made this comment in an entry filed on April 12, 2012. The basis for the court’s ruling

was that “[a]ll issues prior to May 23, 2011, were litigated at various levels and were previously

decided at the trial and appellate levels.” Evidentiary Hearing Decision, Doc. #73, p. 2.

{¶ 75} Brian filed his motion for change of custody based on denial and interference

with visitation and a campaign of alienation, on May 11, 2011. In late February 2011, the trial

court placed the motion for change of custody on its inactive docket, in view of the fact that the

same issues were currently before the court of appeals. After we issued an opinion in September

2011, affirming the denial of Brian’s Civ.R. 60(B) motion for relief from judgment, the trial court

returned the custody motion to its active docket. See A.K. II, 2d Dist. Champaign No. 2011 CA

4, 2011-Ohio-4536.

{¶ 76} Brian notes that the last custody decision was rendered on February 9, 2011, and

that limiting the evidence to events after May 23, 2011, improperly restricted his ability to

address the severity of his children’s alienation. However, we disagree.

{¶ 77} R.C. 3104.09(E)(1)(a) states that a court “shall not modify a prior decree

allocating parental rights and responsibilities for the care of children unless it finds, based on

facts that have arisen since the prior decree or that were unknown to the court at the time of the

prior decree, that a change has occurred in the circumstances of the child, the child's residential

parent, or either of the parents subject to a shared parenting decree, and that the modification is

necessary to serve the best interest of the child.”

{¶ 78} The prior decree in this case was entered in late July 2009. A.K. II at ¶ 3. As a

result, the trial court could have considered events occurring after that date, including events that

occurred prior to February 11, 2011, i.e., the date upon which Brian filed the motion to reallocate 27

parental rights and responsibilities. The question is whether the trial court abused its discretion

by failing to hear evidence relating to that time period. As was noted, an abuse of discretion

requires that the trial court has acted arbitrarily, unreasonably, and unconscionably. AAAA Ents.,

Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597.

{¶ 79} Under the circumstances of this case, we cannot conclude that the trial court

abused its discretion. We have reviewed the entire record, including the docket, exhibits and

transcripts of the proceedings. We note that the trial court was well aware of the background

and events in this case, having been involved with the parties since 2007. In addition, the court

held an evidentiary hearing in May 2011, which addressed issues pertaining to visitation

problems and a contempt motion filed by Brian in December 2010. See A.K. III, 2d Dist.

Champaign No. 2011 CA 15, 2012-Ohio-412, at ¶ 3-5.

{¶ 80} During the evidentiary hearings on the motion for reallocation of parental rights,

which were held in August and October 2013, the parties also did present some evidence related

to events occurring before May 2011, and even before February 2011. Moreover, the GAL

reports included events that occurred prior to February 2011, including Brian’s allegation that he

had been investigated twelve times for sexual abuse, without the allegations having been found to

be substantiated. See, e.g., Plaintiff’s Ex. 21, p. 4. Brian additionally testified to this fact

during his testimony at the parental rights hearing. And finally, more than two years elapsed

between the time the motion was filed and the final hearing was held in October 2013 - during

which the trial court held many hearings and resolved many issues between the parties.

{¶ 81} The trial court’s decision was not made in a vacuum, and the court did not act

unreasonably in restricting its consideration to the more recent events surrounding the motion for 28

reallocation of parental rights. As a result, the Fifth Assignment of Error is without merit, and is

overruled.

VII. Use of an Independent Stenographer

{¶ 82} Brian’s Sixth Assignment of Error states that:

The Trial Court Erred in Failing to Permit Appellant to Independently

Have a Licensed Stenographer Record the Proceeding (Excluding Appellant).

{¶ 83} Under this assignment of error, Brian contends that he retained an independent

court stenographer on June 10, 2013, to record the hearing at counsel’s table, for the purpose of

allowing Brian to have a speedy review of the court proceedings. Brian contends that the trial

court abused its discretion by denying him the ability to use a private stenographer.

{¶ 84} Our review of the record does not show any request for a private stenographer to

be present at court proceedings. On the first day of the hearings, Brian’s counsel requested

permission to have his legal assistant in court to assist with documents, and the trial court granted

the request. Trial Transcript, Vol. I (Aug. 26, 2013), pp. 9-11. At that point, Jenise’s counsel

asked if the legal assistant were going to be recording or taking a transcription, and Brian’s

counsel stated that she would not be doing so. Id. at p. 11. Brian’s counsel then indicated that

he intended to make an audio recording, but the court rejected that request, based on Juv.R. 37.

{¶ 85} Juv.R. 37(A) provides that:

The juvenile court shall make a record of adjudicatory and dispositional

proceedings in abuse, neglect, dependent, unruly, and delinquent cases; permanent

custody cases; and proceedings before magistrates. In all other proceedings 29

governed by these rules, a record shall be made upon request of a party or upon

motion of the court. The record shall be taken in shorthand, stenotype, or by any

other adequate mechanical, electronic, or video recording device.

{¶ 86} “It is within the sound discretion of the juvenile court judge to determine which

method shall be used.” In the Matter of Glenn, 8th Dist. Cuyahoga No. 35352, 1977 WL

201117, * 1 (Jan. 20, 1977). In the case before us, the trial court provided a court reporter, who

later transcribed the proceedings for purposes of appeal. The court was not required to permit a

party to bring in his or her own stenographer, nor was the court required to allow a party to use

his or her own recording device. This would potentially run afoul of Juv.R. 37(B), which

prohibits any public use of juvenile court records, including recordings or transcripts of

proceedings, “except in the course of an appeal or as authorized by order of the court or by

statute.”

{¶ 87} Accordingly, the Sixth Assignment of Error is overruled.

VIII. Manifest Weight Challenge

{¶ 88} Brian’s Seventh Assignment of Error states that:

The Trial Court’s Decision Was Against the Manifest Weight of the

Evidence.

{¶ 89} Under this assignment of error, Brian contends that the evidence at trial

overwhelmingly supports the conclusion that Jenise has engaged in a systematic denial of his

companionship rights. Brian further contends that the trial court has ignored his requests for

protection of his right to his children, and has instead suspended his visitation on two separate 30

occasions, with the most recent occasion being between November 23, 2011 and December 22,

2012. According to Brian, the trial court’s custody decision, while accorded great deference,

was a decision based on passion or bias.

{¶ 90} “The weight of the evidence concerns ‘ “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.” ’

(Emphasis sic.)” Curtis v. Curtis, 2d Dist. Montgomery No. 25211, 2012-Ohio-4855, ¶ 15,

quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. (Other

citations omitted.) “In a review of the manifest weight of the evidence, ‘every reasonable

presumption must be made in favor of the judgment and the finding of facts.’ ” Id., quoting

Volkman at ¶ 21. “ ‘If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the verdict and judgment * *

*.’ ” Volkman at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N

.E.2d 1273 (1984), fn. 3, which in turn quotes 5 Ohio Jurisprudence 3d, Appellate Review,

Section 60, at 191-192 (1978).

{¶ 91} After reviewing the entirety of the evidence, we conclude that the judgment was

not against the weight of the evidence. In previously discussing the evidence as to the alleged

change in circumstances, we concluded that the trial court did not err in concluding that no

sufficient change of circumstances had occurred. For the same reasons, we conclude that the

trial court’s decision was not against the manifest weight of the evidence. The trial court, as the

fact-finder, was in the best position to judge credibility. Miller, 37 Ohio St.3d at 74, 523 N.E.2d

846. “This is not the exceptional case in which the evidence weighs heavily against the

judgment of the trial court, creating a manifest injustice.” Crawford v. Hawes, 2013-Ohio-3173, 31

995 N.E.2d 966, ¶ 39 (2d Dist.)

{¶ 92} Based on the preceding discussion, the Seventh Assignment of Error is

{¶ 93} As a final matter, we note that under App.R. 18(C):

If an appellee fails to file the appellee's brief within the time provided by

this rule, or within the time as extended, the appellee will not be heard at oral

argument except by permission of the court upon a showing of good cause

submitted in writing prior to argument; and in determining the appeal, the court

may accept the appellant's statement of the facts and issues as correct and reverse

the judgment if appellant's brief reasonably appears to sustain such action.

{¶ 94} As was noted, Jenise failed to file a brief. Nonetheless, the final provisions of

App.R.18(C) are permissive. If the appellee fails to file a brief, we “may” deem the appellant's

facts to be correct. But, we are not required to do so. We can review the record to see if the

appellant's version of the facts is correct, and in cases involving parental rights, this is an

appropriate procedure. After a review of the record, and a comparison of the facts with those

recited in Brian’s brief, we conclude that Brian’s brief does not reasonably appear to sustain

reversal of the trial court judgment.

VIII. Conclusion

{¶ 95} All of Brian’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

............. 32

FAIN, J. and HALL, J., concur.

Copies mailed to:

Michael Edwards Brian K. Jacob Jeffries Jenise B. Hon. Lori L. Reisinger