In re A.Z.

2022 Ohio 3943

• Court: Ohio Court of Appeals
• Decided: November 4, 2022
• Docket: 2022-CA-9
• Status: Published

Opinion

[Cite as In re A.Z., 2022-Ohio-3943.]

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

IN THE MATTER OF: A.Z. : : : Appellate Case No. 2022-CA-9 : : Trial Court Case No. 21130259 : : (Appeal from Common Pleas Court- : Juvenile Division) : :

...........

OPINION

Rendered on the 4th day of November, 2022.

TOM O. MERRITT, Atty. Reg. No. 0066661, 1480 West Main Street, Tipp City, Ohio 45371 Attorney for Appellant, Mother

PHILLIP D. HOOVER, Atty. Reg. No. 0034386, 77 West Main Street, Xenia, Ohio 45385 Attorney for Appellee, Father

.............

WELBAUM, J. -2-

{¶ 1} Mother appeals from a judgment naming Father as the legal and residential

parent of the parties’ minor child and granting Mother the standard order of parenting

time. Mother has not presented a specific assignment of error, but she contends that

the magistrate’s decision was an abuse of discretion. Father did not file an appellate

brief.

{¶ 2} Because Mother’s objections in the trial court were general, our review is for

plain error only. Applying that standard, and having reviewed the record, we conclude

that this is not the extremely rare case involving exceptional circumstances where error

has affected the legitimacy of the judicial process. Further, there was no plain error.

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

I. Facts and Course of Proceedings

{¶ 3} This case has a long history, beginning in February 2018, when Father filed

a complaint to allocate parental rights and responsibilities and a motion for temporary and

permanent custody, or in the alternative, shared parenting of the parties’ daughter, A.Z.,

who was born in December 2008. The complaint alleged that Mother had interfered with

Father’s visitation rights, that A.Z. had asked to live with Father, that Mother had mental

health issues, and that A.Z. had made allegations about Mother’s sexual conduct. In

March 2018, an agreed interim order was filed, granting Father standard parenting time

and appointing a guardian ad litem (“GAL”).

{¶ 4} In December 2018, Father dismissed the complaint and refiled it a week later.

In February 2019, the court again granted Father standard parenting time and -3-

reappointed the GAL. Mother then filed a motion in March 2019 seeking custody and to

establish Father’s parenting rights. She followed this in July 2019 with a motion to show

cause based on Father’s alleged violation of the parenting order and nonpayment of child

support which, at that point, had resulted in an alleged arrearage of more than $21,000.

Eventually, in August 2019, the parties filed an agreed entry disposing of the various

issues. Mother was made sole legal custodian and residential parent, and Father was

to have a standard weekend parenting schedule. Father stipulated to being in arrears

on child support but sentencing was deferred, and Mother’s motion to initiate sentence

was dismissed. (Throughout the action and previously, Father had been unemployed

and was seeking disability.)

{¶ 5} On January 6, 2020, Father filed an ex parte motion for temporary custody

based on the following allegations: (1) Mother had slapped A.Z. in the face on December

14, 2020, knocking her off a couch; (2) in the weeks that followed, A.Z. was subjected to

a pornographic video of Mother; (3) when Mother became aware of this, Mother said she

was contemplating suicide and indicated an intent to take A.Z. out at the same time; and

(4) Mother’s mental health history required that homicidal/suicidal ideations must be taken

seriously. The same day, the court granted Father’s ex parte motion and ordered

supervised visitation for Mother. After Mother filed a request for a full hearing, the court

set a continuing effects hearing for January 29, 2020.

{¶ 6} Based on various intervening motions, including Mother’s motion to suspend

parenting time due to Father’s alleged alienation of A.Z. and a show cause motion, the

full hearings did not finish until April 23, 2020. In the interim, Father had also filed a -4-

motion to reallocate parental rights and responsibilities in February 2020.

{¶ 7} After the hearings, the magistrate found A.Z. credible as to the slap allegation

and Mother’s threats. The magistrate therefore concluded that reasonable cause

existed to believe A.Z.’s best interest and welfare required immediate intervention when

the ex parte grant of custody was made and that continuing the order was in A.Z.’s best

interest. Due to the passage of time, the magistrate found supervised visitation was no

longer needed and gave Mother standard parenting time. Magistrate’s Order (June 2,

2020), p. 5.

{¶ 8} Mother filed objections and supplemental objections to the order, but the trial

court denied Mother’s objections and adopted the magistrate’s order on September 23,

2020. On September 25, 2020, the parties dismissed their pending motions and agreed

to preserve the orders then in effect. This was reflected in an agreed order filed on

October 27, 2020, in which the temporary parenting time was also preserved pending a

full hearing on custody motions. In the meantime, Father filed another motion to

reallocate parental rights and responsibilities on October 19, 2020. Mother then filed a

motion on October 26, 2020, seeking permanent custody, suspension of Father’s

parenting time, and reallocation of parental rights and responsibilities based on Father’s

unjust allegations and parental alienation. The GAL was again reappointed. In

November 2020, a final hearing was set for April 13, 2021.

{¶ 9} Further issues arose in December 2020 concerning allegations that Mother

and her boyfriend, T.D., had engaged in sexual intercourse in the same room as A.Z. and

another minor child. The allegations were being investigated by the police and Children -5-

Services. On December 21, 2020, Mother filed a show cause motion based on Father’s

alleged denial of parenting time due to the allegations. Father then filed a motion on

January 4, 2021, seeking to modify or terminate Mother’s visitation or for supervised

visitation based on the sexual conduct allegations. The magistrate set a hearing for

February 25, 2021.

{¶ 10} After that hearing, the magistrate filed a decision on March 1, 2021. The

magistrate noted that Mother had “admitted having sex; said she thought child was

asleep, when asked to stop, did. Mother also later denied it. Child described it in

graphic detail.” Magistrate’s Decision (Mar. 1, 2021), p. 3. The magistrate also noted

two other incidents, one where A.Z. had described seeing her mother having sex with

another man a year ago and one with the boyfriend (T.D.) a few months ago. Id.

{¶ 11} The magistrate found A.Z. very credible and also found the caseworker

credible concerning her interaction with Mother. Id. at p. 5. Due to the need to protect

A.Z., the court ordered Mother to address the issue in counseling and further ordered that

no men other than relatives were allowed at Mother’s residence during visitation or on

trips out of town. Id. Mother was allowed to petition the court for removal of the

restriction after her counselor determined that Mother understood the impact of her

behavior on A.Z. Id.

{¶ 12} Mother again objected to the magistrate’s decision. On May 5, 2021, the

trial court overruled Mother’s objections with respect to the parenting time orders. The

court found that A.Z. had experienced and was reporting trauma and needed to be

protected. The court found that restricting Mother’s parenting time was the best way to -6-

protect A.Z. pending a full evidentiary hearing. The court imposed the same conditions

as the magistrate had and added that Mother was not to expose A.Z. to any sexual

situations, including pornography from any source. Mother was also not allowed to have

A.Z. overnight and was to return her by 10:00 p.m. on visitation days.

{¶ 13} Various motions were filed prior to the final hearings in this matter, which

occurred over eight days (Sept. 21, Oct. 6, 12, and 27, Nov. 11, 22, and 23, and Dec. 6,

2021). During trial, the parties presented testimony from themselves and from numerous

witnesses, including a parental alienation expert; three Children Services’ caseworkers;

a police officer; Mother’s current husband (T.D., the boyfriend at the time of the alleged

sexual incident); Father’s partner, Tami; A.Z.’s maternal grandmother; a probation officer;

T.D.’s ex-wife; A.Z., and the GAL. The magistrate restricted testimony to events

occurring after early August 2019 but allowed the parties to ask the alienation expert

about events before that date, such as whether a party had disclosed a prior issue that

might pertain to his evaluation.

{¶ 14} After considering the evidence, the magistrate filed a decision on January

24, 2022, recommending that Father be named legal custodian and residential parent.

The magistrate further held that Mother was entitled to the standard order of visitation,

subject to several conditions, including that she engage in mental health counseling to

address appropriate sexual boundaries and to work on her relationship with A.Z. In

addition, the magistrate ordered that T.D. must engage in counseling, addressing

appropriate sexual boundaries and appropriate communication with children, and that

A.Z. must also be involved in counseling. T.D. was not permitted to be present for -7-

visitation until the court found that all three counselors believed it was appropriate. The

magistrate additionally ordered Father to obtain counseling to learn appropriate means of

dealing with Mother.

{¶ 15} On February 2, 2022, Mother filed general objections to the magistrate’s

decision and a motion for preparation of transcripts from the hearings. On February 3,

2022, the court ordered that a $9,450 deposit be paid for the transcripts and said that if

this was not done within 14 days, the request for a transcript would be deemed withdrawn.

Mother apparently did not pay the transcript deposit as ordered but paid $5 on February

9, 2022, for a compact disc of the hearings.

{¶ 16} In the meantime, Mother’s counsel filed a motion on February 7, 2022,

asking to withdraw because Mother had not retained counsel on any further matters and

said she was retaining other counsel. On the same day, Father filed a motion to

terminate visitation, based on the fact that Mother had declined visitation with A.Z. on

February 2, 4, 5, and 6, 2022. According to the motion, Mother told A.Z. that she would

not be exercising her parenting time “until there is a decision from a court that is workable,

as of now the magistrate has made it impossible for you to be in our home as a family.”

In addition, Father filed a motion seeking an order that Mother provide an insurance card

for A.Z., which had been sought for some time so that A.Z. could be scheduled for

counseling.

{¶ 17} An entry filed on February 9, 2022, indicated that Mother had failed to

appear for a February 8, 2022 hearing and had said she would not be appearing further

pending a decision on her objections. The court ordered Mother to furnish an insurance -8-

card within 24 hours and set a new hearing for February 17, 2022, on the pending

motions, including counsel’s motion to withdraw.

{¶ 18} The February 17, 2022 hearing was continued, since Mother was obtaining

new counsel. Mother did not object to the magistrate’s decision on the insurance card;

as a result, the court filed an order on February 24, 2022, giving Mother 24 hours to turn

over a copy of the card. Father then filed a contempt motion on March 2, 2022, noting

that Mother had said in a text that A.Z. had been removed from the insurance plan offered

by her husband’s employer. A hearing on that matter was set for April 13, 2022.

{¶ 19} New counsel entered an appearance for Mother on February 24, 2022.

Transcripts of the final custody hearings were then filed on March 2, 2022. On March

14, 2022, Mother filed a motion for leave of court to supplement her objections to the

magistrate’s decision. On March 16, 2022, the trial court filed a judgment entry

overruling Mother’s objections to the magistrate’s decision and named Father legal

custodian and residential parent for A.Z. The court also overruled Mother’s request to

file supplemental objections, “given the paucity of the general, nonspecific nature of her

objections.” Judgment Entry (Mar. 16, 2022), p. 2. Mother appeals from the trial court’s

judgment.

II. Discussion

{¶ 20} As noted, Mother has not asserted a specific assignment of error. From

reading her brief, we assume her assignment of error is that the magistrate’s decision

awarding custody to Father was an abuse of discretion. The alleged abuses include: (1) -9-

the magistrate’s acceptance of A.Z.’s testimony despite inconsistencies; (2) the

magistrate’s rejection of the opinion of Mother’s alienation expert, Dr. Palumbo; (3) the

magistrate’s (and judge’s) mischaracterization of Mother’s mental health, contrary to Dr.

Palumbo’s assessment; (4) the misstatement that Mother has “drug struggles”; (5) the

magistrate’s finding that the GAL was not “credible”; and (6) the magistrate’s (and judge’s)

reliance on the testimony of a Children Services’ caseworker who found A.Z.’s claims

credible.

{¶ 21} Before discussing these points, we note that, under Juv.R. 40(D)(3)(b)(iii),

“[i]f a party files timely objections prior to the date on which a transcript is prepared, the

party may seek leave of court to supplement the objections.” The trial court denied

Mother’s request to supplement her objections. However, Mother failed to raise any

error on appeal concerning the trial court’s rejection of her request.

{¶ 22} App.R. 12(b) requires an appellate court to decide an appeal “on its merits

on the assignments of error set forth in the briefs under App.R. 16.” In turn, App.R. 16

requires appellants to include in their briefs “[a] statement of the assignments of error

presented for review, with reference to the place in the record where each error is

reflected,” as well as “[a]n argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in support of

the contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies.” App.R. 16(A)(3) and (7). The law is well-settled that appellate courts

“ ‘will not address underdeveloped arguments that an appellant fails to separately assign

as error.’ ” State v. Franks, 2017-Ohio-7045, 95 N.E.3d 773, ¶ 12 (9th Dist.), quoting -10-

State v. Miller, 9th Dist. Summit No. 25200, 2010-Ohio-3580, ¶ 7. Here, Mother did not

even make an undeveloped argument about supplementing her objections; she made no

argument at all. Accordingly, we will not consider the issue of supplementation.

{¶ 23} Juv.R. 40(D)(3)(b)(ii) further states that “[a]n objection to a magistrate's

decision shall be specific and state with particularity all grounds for objection.” “ ‘Courts

have held that general objections do not meet [the Juv.R. 40(D)] standard.’ * * *. A

general objection, then, that alleges no particular error is effectively no objection at all.”

In re N.M., 2d Dist. Montgomery No. 26469, 2015-Ohio-2180, ¶ 8, quoting Ramsey v.

Ramsey, 7th Dist. Jefferson No. 13 JE 17, 2014-Ohio-1227, ¶ 16. In this situation, we

review for plain error only. Id., citing In re H.B., 2d Dist. Montgomery No. 21365, 2006-

Ohio-2124, ¶ 13. See also Juv.R. 40(D)(3)(b)(iv) (“Except for a claim of plain error, a

party shall not assign as error on appeal the court's adoption of any factual finding or legal

conclusion, whether or not specifically designated as a finding of fact or conclusion of law

under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as

required by Juv.R. 40(D)(3)(b).”).

{¶ 24} Mother’s objections in the trial court were very general, making only such

assertions as there were improper findings of fact and conclusions of law and that the

magistrate’s decision was an abuse of discretion. Therefore, plain error review is

appropriate here. “In appeals of civil cases, the plain error doctrine is not favored and

may be applied only in the extremely rare case involving exceptional circumstances

where error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the -11-

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d

116, 679 N.E.2d 1099 (1997), syllabus. After reviewing this matter, we find no plain error

that would warrant a reversal of the trial court’s decision. We also find no error.

A. Custody Standards

{¶ 25} As pertinent here, R.C. 3109.04(E)(1)(a) states that:

The 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. In applying these

standards, the court shall retain the residential parent designated by the

prior decree or the prior shared parenting decree, unless a modification is

in the best interest of the child and one of the following applies:

***

(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child.

{¶ 26} “Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may only

be made ‘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 -12-

of the child, the child's residential parent, or either of the parents subject to shared

parenting decree, and that the modification is necessary to serve the best interest of the

child.’ This is a high standard, as a ‘change’ must have occurred in the life of the child

or the parent before the court will consider whether the current designation of residential

parent and legal custodian should be altered.” Fisher v. Hasenjager, 116 Ohio St.3d 53,

2007-Ohio-5589, 876 N.E.2d 546, ¶ 33. Accord Gessner v. Gessner, 2d Dist. Miami No.

2017-CA-6, 2017-Ohio-7514, ¶ 28.

{¶ 27} “ ‘The clear intent of [R.C. 3109.04(E)(1)(a)] is to spare children from a

constant tug of war between their parents who would file a motion for change of custody

each time the parent out of custody thought he or she could provide the child a “better”

environment. The statute is an attempt to provide some stability to the custodial status

of the children, even though the parent out of custody may be able to prove that he or she

can provide a better environment.’ ” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674

N.E.2d 1159 (1977), quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153

(1982).

{¶ 28} In deciding that a change of custody was warranted, the magistrate

concluded that a change of circumstances had occurred “based on [the] totality of

circumstances, including but not limited to mother getting married, mother having another

child, as well as all of the allegations by child that mother denies.” Magistrate’s Decision

(Jan. 24, 2022), at p. 23. After making these findings, the magistrate addressed factors

pertaining to A.Z.’s best interest and found that granting custody to Father was in the

child’s best interest. Id. at p. 23-29. -13-

{¶ 29} The relevant factors for this analysis are found in R.C. 3109.04(F)(1), which

provides that:

In determining the best interest of a child pursuant to this section,

whether on an original decree allocating parental rights and responsibilities

for the care of children or a modification of a decree allocating those rights

and responsibilities, the court shall consider all relevant factors, including,

but not limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers pursuant to

division (B) of this section regarding the child's wishes and concerns as to

the allocation of parental rights and responsibilities concerning the child, the

wishes and concerns of the child, as expressed to the court;

(c) The child's interaction and interrelationship with the child's

parents, siblings, and any other person who may significantly affect the

child's best interest;

(d) The child's adjustment to the child's home, school, and

community;

(e) The mental and physical health of all persons involved in the

situation;

(f) The parent more likely to honor and facilitate court-approved

parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support -14-

payments, including all arrearages, that are required of that parent pursuant

to a child support order under which that parent is an obligor;

(i) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other

parent's right to parenting time in accordance with an order of the court.

{¶ 30} With these standards and factors in mind, we will consider Mother’s

arguments and whether the trial court committed plain error.

B. Acceptance of A.Z.’s Testimony

{¶ 31} Much of Mother’s argument is devoted to the claim that A.Z.’s story was not

credible and that Mother’s account of events should have been believed because she

was “equally as credible.” Appellant’s Brief, p. 10.

{¶ 32} In Davis, the Supreme Court of Ohio stressed that the reason for deferential

review in custody cases “is that the trial judge has the best opportunity to view the

demeanor, attitude, and credibility of each witness, something that does not translate well

on the written page.” Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159. The court further

remarked that “ ‘[a] reviewing court should not reverse a decision simply because it holds

a different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court. A finding of an error in law is a legitimate ground for reversal, but

a difference of opinion on credibility of witnesses and evidence is not.’ ” Id. at 419,

quoting Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 -15-

(1984).

{¶ 33} This custody case began in 2018 and ended in 2022, more than four years

later. It involved many motions and hearings as well as magistrate’s decisions that the

trial court reviewed and decided after objections had been filed. As a result, both the

magistrate and trial court were well familiar with the parties and facts of the case. The

magistrate’s decision was 35 pages long and considered the testimony and relevant

factors in great detail.

{¶ 34} Furthermore, while the parties had filed an agreed entry giving Mother

custody in August 2019 (and the court did not generally allow testimony about events

before that date), a number of troubling events occurred after the agreed order. As

noted, A.Z. alleged in December 2019 that Mother had slapped her. In addition, Father’s

motion alleged that Mother had expressed suicidal and harmful ideations during a car ride

after learning that A.Z. had seen a video on Mother’s phone that showed Mother

masturbating.

{¶ 35} After restricting Mother’s visitation on an ex parte basis, the magistrate

heard evidence (including A.Z.’s testimony) at a “continuing effects hearing” and then

found A.Z. was credible about the slap and the events during the car ride. Magistrate’s

Order (June 2, 2020), at p. 4. The magistrate noted that A.Z. had not wavered in her

claim and that the lack of a slap mark was not persuasive. Id. Additionally, the

magistrate remarked that Mother’s “answer as to whether she did slap [A.Z.] was not ‘no,’

but something to the effect that she would not want to interfere with her teaching which is

her bread and butter. An interesting way of not answering the question.” Id. -16-

{¶ 36} The magistrate also remarked that A.Z. did not waver in her description of

events in the car and that Mother was visibly shaking to the point that her own mother

(also present in the car) kept telling Mother to calm down. Id. at p. 5. Furthermore, the

magistrate found that the maternal grandmother lacked credibility and was of no help in

determining what happened in the car as far as suicidal threats, because she was so

protective of Mother. Id. The trial court rejected Mother’s objections to the decision in

September 2020 and adopted the temporary orders giving Father temporary custody.

{¶ 37} Further problems occurred in December 2020 with what Mother references

as “The Hotel Allegation.” A.Z. reported that she had witnessed her mother and T.D.

engaging in sexual intercourse in a hotel room while A.Z. and another minor child were

present. A.Z. testified about these matters during a February 25, 2021 hearing on

Father’s motion to modify or terminate visitation and during the final custody hearings

held later that year. At the custody hearings, the magistrate also heard testimony from

the original caseworker, Marissa Clark, who conducted a forensic interview with A.Z.

{¶ 38} In the initial decision restricting Mother’s visitation, the magistrate found A.Z.

“very credible” given the level of detail she supplied, and also found Clark credible.

Magistrate’s Decision (Mar. 1, 2021), p. 5. Again, the trial court reviewed the matter after

Mother objected, expressed concern over the trauma to which A.Z. was being exposed,

and agreed that Mother’s parenting time should be restricted in order to protect the child.

Trial Court Order (May 5, 2021).

{¶ 39} According to Clark, who was a certified forensic interviewer, A.Z. reported

seeing Mother and T.D. engaging in oral sex in the hotel room within a few feet of A.Z. -17-

September 21, 2021 Hearing Transcript (“Tr. 1”), p. 167. A.Z. also described being

forced to go with Mother to homes of other men and hearing sexual activity. Id. at p.

168.

{¶ 40} Clark and the investigating officer believed A.Z.’s account, and Clark felt

that A.Z.’s disclosure was very strong and was very reliable. Id. at p. 169 and 186.

However, when Clark contacted Mother about the allegations, Mother refused to

cooperate. Clark had a less than five-minute conversation with Mother and was referred

to Mother’s attorney. In addition, T.D. refused to cooperate, referred Clark to Mother’s

attorney, and refused to let her speak with his daughter, who was the other minor alleged

to have been in the hotel room. Id. at p. 171-172 and 174.

{¶ 41} Clark gave her supervisor a disposition about the charges as substantiated,

but Mother and T.D. subsequently objected to Clark’s findings, even though they had not

cooperated. While Clark was off work on medical leave, her supervisor changed the

disposition to unsubstantiated due to incomplete paperwork. Id. at p. 190-192, and Nov.

22, 2021 Hearing Transcript (“Tr. 6”), p. 37, 39, and 40. Part of the reason the paperwork

was incomplete was because there were no interviews of Mother or the other minor child.

Tr. 6 at p. 40. The failure to substantiate the allegations did not mean that A.Z. was not

telling the truth; it was just that there were three other people who would not cooperate

and give interviews to the caseworker. Id. at p. 44.

{¶ 42} According to Mother, the magistrate incorrectly stated in his final custody

decision that “ ‘Clark was credible when discussing the interaction with Mother in that

Mother did not deny the sexual activity.’ ” Mother argues that Clark, instead, had said -18-

that Mother denied A.Z.’s allegations. Appellant’s Brief at p. 8. However, what Clark

actually said was that on the phone, Mother had denied the allegations, “and then made

a comment that if she were to do that, it’s not against the law if they’re sleeping. Like it’s

not a problem if kids are sleeping and she’s doing that.” Tr. 6 at p. 220.

{¶ 43} Furthermore, in the same decision, the magistrate noted Clark’s testimony

that when she called Mother about the allegations, Mother said, “ ‘It’s not [a] crime to do

stuff with your boyfriend” and that she thought the kids were sleeping; she also said that

when A.Z. asked her to stop, they stopped because she “didn’t know that [A.Z.] was

awake.’ ” Magistrate’s Decision (Jan. 24, 2022), at p. 7. These comments were similar

to what the magistrate had previously said in the decision issued after hearing testimony

about the December 2020 hotel incident. See Magistrate’s Decision (March 1, 2021), at

p. 3. They were also consistent with Clark’s testimony about the hotel incident during

the February 25, 2021 hearing. See Exhibit AAA (Feb. 25, 2021 Hearing Tr.), p. 49.

{¶ 44} Notably, the magistrate stated in the final custody decision that he had

looked at testimony from the continuing effects hearings as well as the February 25, 2021

motion hearing. See Jan. 24, 2022 Decision at p. 3. The decision further noted Clark’s

statement that “Mother was upset during the conversation and at no time ever told her

that none of it happened.” Id. at p. 7. This was based on Clark’s testimony during the

February 25, 2021 hearing and correctly summarized the testimony. Id. See also Ex.

AAA at p. 50.

{¶ 45} In addition, matters that Mother presented as inconsistencies in A.Z.’s

testimony were either insignificant or were based on differences between what A.Z. said -19-

she saw and what others may have said. For example, Mother repeatedly said A.Z. was

not telling the truth about the allegations she made. This was not an inconsistency in

A.Z.’s testimony; it was a credibility issue for a fact-finder to resolve.

{¶ 46} As another example, A.Z. testified that the other child in the room (A.D.)

was asleep when the sexual events occurred, even though A.Z. made a few attempts to

rouse her. Nov. 11, 2021 Hearing Tr. (“Tr. 5”), p. 217 and 220. In contrast, A.D.

apparently told Mother’s alienation expert (with whom she was allowed to speak) that she

was the last person to fall asleep. Appellant’s Brief at p. 8. See also Oct. 6, 2021

Hearing Tr. (“Tr. 2”), p. 57. This was not an inconsistency in A.Z.’s testimony; it was a

difference in the statements of two people. A.D. also did not testify at trial and the court

had no chance to assess her credibility.

{¶ 47} Similarly, Mother asserts that A.Z.’s account was not credible because the

hotel room was too dark to see anything. A.Z. pointed out that while the lights in the

room were off, only the lighter curtains were drawn and lights from the parking lot provided

enough light to be able to see. Tr. 5 at p. 217-218. In contrast, T.D. testified that the

lights in the parking lot did not illuminate the room. October 27, 2021 Hearing Tr. (“Tr.

4”), p. 173. T.D. also submitted a video of the hotel room, which he made in June 2021

to show what the hotel room looked like in the dark. Id. at p. 174 and 190-191, and

Defendant’s Ex. B1.

{¶ 48} Again, the trial court was in the best position to evaluate credibility, having

had an opportunity to see and hear the witnesses, and we cannot substitute our judgment.

Moreover, our review of the record indicates that Mother had difficulty answering even -20-

simple questions with direct answers and much of her testimony appeared to lack

credibility. Therefore, there was no plain error in the trial court’s decision in this regard

that would present a basis for reversal. There was also no error.

C. Dr. Palumbo’s Testimony

{¶ 49} Mother further contends that the magistrate erred in disregarding the

testimony of Dr. Palumbo, who was an expert in parental alienation. Mother contends

that the magistrate misstated the doctor’s testimony to enhance the credibility of Father

and A.Z. and to discredit Mother and Dr. Palumbo. The magistrate rejected Dr.

Palumbo’s opinion because it was based on the conclusion that A.Z. was not credible,

when, in fact, the magistrate had found A.Z. credible and had also found that the things

A.Z. alleged had happened. Magistrate’s Decision (Jan. 24, 2022), at p. 10. The

magistrate also noted that the spreading of animosity to A.Z.’s grandparents was not

surprising, since the maternal grandmother had been present during at least one incident

that the court found had occurred, and she had supported Mother’s version of events.

Id. In addition, A.Z. had seen text messages between Mother and grandmother in which

they had discussed ways to upset A.Z. in order to bolster the parental alienation claim.

{¶ 50} “ ‘In its role as fact finder, a trial court may choose to believe or disbelieve

any witness, including an expert witness.’ ” Marinella v. Marinella, 2d Dist. Montgomery

No. 25449, 2013-Ohio-2932, ¶ 12, quoting H.R. v. L.R., 181 Ohio App.3d 837, 2009-Ohio-

1665, 911 N.E.2d 321, ¶ 15 (10th Dist.). “However, ‘expert opinion “may not be arbitrarily

ignored, and some reason must be objectively present for ignoring expert opinion -21-

testimony.” ’ ” H.R. at ¶ 15, quoting State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623,

885 N.E.2d 905, ¶ 71. (Other citation omitted.)

{¶ 51} In the case before us, the magistrate’s reason for rejecting Dr. Palumbo’s

testimony was supported by the evidence. As noted, Mother’s testimony lacked

credibility, and the magistrate found A.Z.’s account credible. Dr. Palumbo also stated

that much of the factual part of his report was based on his interview with A.Z.

(MOTHER??) Tr. 2 at p. 67.

{¶ 52} In addition, there were other objective reasons to reject Dr. Palumbo’s

testimony. Dr. Palumbo was retained by Mother as a parental alienation expert. The

first expert that Mother hired (who died during the case) found parental alienation after

talking only to Mother and no one else. Tr. 1 at p. 17; Tr. 2 at p. 147-148.

{¶ 53} While parties are certainly free to retain experts to support their claims, the

trial court could have reasonably concluded that the first doctor did not adequately

investigate, nor did Dr. Palumbo. Dr. Palumbo interviewed A.Z., Mother, T.D., T.D.’s two

children, the maternal grandparents, Mother’s therapist, the GAL, and Father. Id. at p.

41. See also Tr. 1 at p. 38. Seven of these people would have been inherently

favorable to Mother; Father was the only interviewee on his side. Dr. Palumbo gave no

weight to that fact. Tr. 2 at p. 103.

{¶ 54} Moreover, while Dr. Palumbo said that he gave Father the option of having

interviews done with anyone he wished, he also claimed that Father did not ask him to

interview anyone else, including Father’s partner, Tami, the Children’s Services’

caseworker (Clark), and T.D.’s ex-wife. Id. at p. 42 and Oct. 12, 2021 Hearing Tr. (“Tr. -22-

3”), p. 13-14. This was contradicted by Father, by Tami, and by Father’s attorney. Tr.

3 at p. 12-13; Tr. 2 at p. 99; Tr. 5 at p. 27; and Nov. 23, 2021 Hearing Tr. (“Tr. 7”), p. 44.

Tami indicated that Dr. Palumbo was asked to talk to those three people as well as A.Z.’s

school counselor and A.Z.’s therapist. Tr. 5 at p. 26-28.

{¶ 55} Having met with A.Z. only once, and for less than 30 minutes, Dr. Palumbo

described her allegations against Mother as “absurd and ridiculous.” Tr. 2 at p. 47; Tr. 5

at p. 211. Dr. Palumbo even spent significantly less time with A.Z., the most important

individual in the case, than he did with her maternal grandmother, whom he interviewed

for an hour and a half. Tr. 3 at p. 106.

{¶ 56} Dr. Palumbo also did not review the forensic tape of the hotel sex incident

but concluded, without watching it, that A.Z.’s statements to the investigator were not

credible “on their face.” Id. at p. 66. In addition, no matter what information was brought

to his attention concerning Mother’s misstatements or misrepresentations, prior domestic

violence with her own parents, discussion with her mother on how to establish parental

alienation, attempts to tell her parents how to testify in court; prior mental health history,

including being on disability for a “mood disorder,” being diagnosed as schizophrenic, and

having received drug treatment, Dr. Palumbo repeatedly indicated that essentially nothing

that he heard would affect his opinion. See Tr. 2 at p. 117, 139-140, 156-157, 162-163,

167, 169, 187-188, and 192-193; Tr. 3 at p. 7 and 30-32. While Dr. Palumbo stated at

times that certain things might “concern” him, such as Mother’s past difficulty with drugs,

he never indicated that any of these matters would affect or change his opinion. E.g.,

Tr. 3 at p. 36. -23-

{¶ 57} The same thing was true concerning information about T.D., including that

T.D.’s relationship with his ex-wife was not “amicable,” as Dr. Palumbo had reported; that

T.D. had been found lacking in credibility in post-decree divorce proceedings with his ex-

wife; that T.D. had been involved in multiple domestic violence situations with his ex-wife;

and that T.D. had made threats while Mother was with A.Z. and had her phone on speaker

so that A.Z. was able to hear. These comments included that he would “bash in the

faces” of A.Z. and her family (Father and Tami) and that A.Z. was a “f*cking psycho.” Tr.

2 at p. 110-112, 129-130, 132, and 184-185; Tr. 3 at p. 30-32 and 43. Dr. Palumbo’s

comment about this last disturbing incident was that, while it was “not appropriate,” he

could not say that T.D. was threatening A.Z. Tr. 2 at p. 132, and Tr. 3 at p. 43. To the

doctor, “It just sounded like [T.D.] was very frustrated and verbally exploding.” Id. at p.

43.

{¶ 58} Mother points out that Dr. Palumbo found her to be “completely honest”

based on an MMPI test and that he had no concerns about her mental health based on

his experience and discussions with Mother and her former therapist. Appellant’s Brief

at p. 13. See also Tr. 2 at p. 59, 74-75, and 116. Mother therefore argues that Dr.

Palumbo’s opinion was not only a result of his conclusion that A.Z. was not credible.

Mother further argues that the magistrate and judge had conjured up their own

conclusions about her mental health.

{¶ 59} As indicated, a fact-finder is free to reject expert opinion. The record here

is replete with evidence of Mother’s mental health issues, ranging from two suicide

attempts, diagnoses of schizophrenia, bipolar disorder, and depression, treatment at -24-

Dayton Recovery Center and long-term use of Suboxone, receipt of Social Security

disability benefits for a number of years because of a mood or personality disorder and

reapplication for disability benefits thereafter, the fact that Mother’s parents attempted to

take custody from her, and that Mother committed domestic violence against her own

mother. Tr. 1 at p. 21-22, 25, 28, and 29-30; Tr. 2 at p. 116, 138, 139, and 166; Tr. 3 at

p. 5, 23, 30, 33-34, 36, and 118; Tr. 5 at p. 8-9; and Tr. 7 at p. 241.

{¶ 60} Although Dr. Palumbo gave Mother a psychological bill of good health, his

report did not address Mother’s major psychiatric and mood disorders or her disability.

Tr. 2 at p. 144. In fact, Dr. Palumbo indicated that he did not put stock in a psychiatric

diagnosis from someone he did not know. Id. at p. 139. Dr. Palumbo also discounted

Mother’s 2013 domestic violence against her own mother because there was no

conviction. Tr. 3 at p. 26. He commented that he viewed it as “more of a mental health

issue, that she was going through emotional issues that had parental involvement in it

she had to work through.” Id.

{¶ 61} In view of the preceding discussion, we find no plain error in the trial court’s

rejection of Dr. Palumbo’s opinion and evaluation, and we do not find that the court

misstated the testimony. There was also no error.

D. Testimony of the GAL

{¶ 62} Mother’s next point is that the court erred in finding that the GAL was not

credible, and again she contends that the court’s discussion was based on

mischaracterizations and misstatements. The magistrate said that he did not agree with -25-

the GAL’s findings (which were that Mother should receive custody of A.Z.) and

articulated various ways in which it disagreed with the GAL’s assessment of the evidence.

Magistrate’s Decision (Jan. 24, 2022), p. 11-12. Again, we review only for plain error.

N.M., 2d Dist. Montgomery No. 26469, 2015-Ohio-2180, at ¶ 8.

{¶ 63} As a general rule, a guardian ad litem’s role “is to investigate the ward's

situation and then to ask the court to do what the guardian feels is in the ward's best

interest.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985).

However, “ ‘[a] trial court is not bound to follow a guardian ad litem's recommendation.’ ”

Bomberger-Cronin v. Cronin, 2d Dist. Greene No. 2014-CA-4, 2014-Ohio-2302, ¶ 27,

quoting Lumley v. Lumley, 10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, ¶ 46.

{¶ 64} “As the fact finder, the trial court determines the guardian ad litem's

credibility and the weight to be given to the guardian ad litem's recommendation.” Id.

“ ‘Because assessment of the credibility and weight of the evidence is reserved for the

trial court, we will not second guess the court's decision to disregard the guardian ad

litem's recommendation.’ ” Id., quoting Davis, 77 Ohio St.3d at 419, 674 N.E.2d 1159.

As we have said, the trial court had dealt with this case for a number of years; the court

was also very familiar with the GAL and her reports and involvement in the case.

{¶ 65} Although Mother’s discussion on this point is confusing, she implies that the

magistrate improperly criticized the GAL for being less concerned about Mother’s drug

struggles than Father’s drug struggles. It was the duty of the magistrate to assess and

weigh the GAL’s memory and interpretation of the facts.

{¶ 66} During trial, the GAL testified that she did not recall A.Z. telling her that she -26-

had observed Mother buying and selling drugs. November 22, 2021 Hearing Tr. (“Tr.

6”), p. 150. The magistrate’s decision correctly noted this. Magistrate’s Decision (Jan.

24, 2022), at p. 11. Mother argues that the GAL “probed further to get the underlying

facts, but * * * stated that ‘[A.Z.] really didn’t know what she was concerned about

necessarily, there really weren’t facts that supported that.’ ” Appellant’s Brief at p. 15,

quoting the GAL, Tr. 6 at p. 154.

{¶ 67} The evidence indicates that A.Z. had told the GAL around August 2019 that

she had personally witnessed Mother buying and selling drugs and that Father told the

GAL about this as well. Tr. 5 at p. 43 and Tr. 7 at p. 51. Exhibits of text messages

were also submitted indicating that Mother was seeking to purchase Adderall and to sell

Suboxone strips when she was on Suboxone. See Plaintiff’s Ex. 8 and 9. In addition,

A.Z. testified during a final custody hearing that she told the GAL that she had seen

Mother using illegal drugs. Tr. 6 at p. 140. The magistrate was free to find this evidence

inconsistent with the GAL’s testimony that she did not recall A.Z. telling her that Mother

had been buying and selling drugs. See Tr. 5 at p. 150. Thus, the magistrate did not

commit plain error in disagreeing with the GAL’s conclusions.

{¶ 68} It was within the province of the magistrate to consider that, like Dr.

Palumbo, the GAL appeared to give less weight to some negative information about

Mother and T.D. than what the magistrate found appropriate. The magistrate was free to

disagree with the GAL when she indicated that she placed equal relevance on Mother’s

failure to disclose that she had been treated for years with Suboxone for an addiction as -27-

she did on father’s failure to disclose a prescription medicine. Id. at p. 169. 1 The

magistrate did not commit error or plain error by disagreeing with the GAL’s conclusion

that these situations were “on par.” Magistrate’s Decision (Jan. 24, 2022), at p. 12.

{¶ 69} Furthermore, the GAL also said that if all the facts concerning T.D.’s

domestic violence against his ex-wife and T.D.’s threats to Father, Tami, and A.Z. were

true (bashing in their heads and calling A.Z. a “f*cking psycho”), the GAL would not have

a difference of opinion. Tr. 6 at p. 181-182. Again, the magistrate was permitted to

disagree with the GAL.

{¶ 70} Accordingly, we find no plain error nor any error in the decision to reject the

GAL’s recommendations.

E. Testimony of Marissa Clark

{¶ 71} Mother’s final argument concerns Marissa Clark, the caseworker who

investigated the hotel incident as well as suicidal thoughts that A.Z. was having in April

2021. According to Mother, the court incorrectly relied on Clark’s testimony, which was

based on A.Z.’s statements and many “unsubstantiated claims.” Appellant’s Brief at p.

18.

{¶ 72} We have already discussed the hotel incident. As to A.Z.’s suicidal

thoughts, Father and Tami received a call in April 2021 from a school counselor due to

an alleged incident in which A.Z. was talking about cutting herself. Tr. 5 at p. 19; Tr. 7

1 Father tested positive for amphetamines in June 2021, as an apparent result of a false positive result is caused by a prescription he had for weight control. Tr. 5 at p. 39-40 and 117 and Ex. 30; Tr. 6 at p. 6, 8, and 10; Tr. 7 at p. 59-62. Father did not disclose this medication during discovery, because he was not on it at that time. Tr. 5 at p. 116. -28-

at p. 58. They took A.Z. to her therapist that day. Tr. 5 at p. 19-20; Tr. 7 at p. 58.

{¶ 73} According to Clark, Children Services received a report in April 2021 of

concerns about A.Z.’s mental health. A.Z. was having suicidal thoughts because of the

way Mother was treating her. Tr. 1 at p. 162. Clark obviously did not identify who made

the referral; it could have been made by a mandated reporter like the school counselor or

A.Z.’s therapists. See R.C. 2151.421. Subsequently, Clark talked to A.Z., Father,

Mother, and T.D. Tr. 1 at p. 163.

{¶ 74} During the interview, A.Z. told Clark the same thing that had been reported,

i.e., that she was very unhappy at her mother’s house and that she did have thoughts of

harming herself because of the way her mother talked to her and treated her. Id. at p.

165. Ultimately, Clark found that the charge was not substantiated because it was

emotional maltreatment, and she could not prove that Mother had emotionally or verbally

abusing A.Z. solely based on her interview with A.Z. Id. at p. 166. Clark described it as

a “he said, she said thing.” Id. Furthermore, Clark was impacted by a psychologist (Dr.

Palumbo), who did not report that A.Z. was having suicidal thoughts; he had reported

instead that A.Z. was “fine.” Id. at p. 163.

{¶ 75} At trial, A.Z. stated that Dr. Palumbo had asked her a question about

whether she was having thoughts about harming herself, and she said no at the time

because she was nervous and did not know what to say because she did not really like

talking about that. Tr. 5 at 211. A.Z. said everything she had told Dr. Palumbo was

true except this. In fact, at the time, A.Z. was actually thinking about harming herself.

However, the counseling she had helped. Id. at p. 211. -29-

{¶ 76} Dr. Palumbo’s interview with A.Z. occurred in May 2021, not too long after

the school incident. Tr. 2 at p. 39. As noted, Dr. Palumbo did not talk with the school

counselor, A.Z.’s therapist, or Clark. He was also unaware that A.Z. had reported feeling

suicidal at school a few weeks before their interview. Id. at p. 48.

{¶ 77} Contrary to Mother’s claims, Clark’s conclusions were not based simply on

A.Z.’s statements and unsubstantiated claims. An incident obviously did occur at school

which caused a counselor to call Father and caused Father to immediately take A.Z. to

her therapist. The fact that the agency did not substantiate the charge did not mean that

A.Z.’s statements were untrue.

{¶ 78} The Ohio Administrative Code contains definitions that specifically apply to

Children Services investigations. An “allegation” is defined as “a described set of

circumstances which asserts the occurrence of child abuse, neglect, or dependency.”

Ohio Adm.Code 5101:2-1-01(B)(18). A “case disposition” “means the determination of

whether or not abuse or neglect has occurred or is occurring.” Ohio Adm.Code 5101:2-

1-01(B)(46). In addition, case report dispositions are ranked in six categories, with

“substantiated” being the highest and “unable to locate” being the lowest. Id. at 1-

01(B)(46)(a)-(f).

{¶ 79} “ ‘Substantiated report’ means the report disposition in which there is an

admission of child abuse or neglect by the person(s) responsible; an adjudication of child

abuse or neglect; or other forms of confirmation deemed valid by the PCSA.” Ohio

Adm.Code 5101:2-1-01(B)(310. “ ‘Unsubstantiated report’ means the report disposition

in which the assessment/ investigation determined no occurrence of child abuse or -30-

neglect.” Ohio Adm.Code 5101:2-1-01(B)(341). “Neglected child” and “abused child”

have special statutory definitions and statutory procedures govern what agencies must

do when receiving referrals concerning alleged abuse or neglect. See R.C. 2151.03;

R.C. 2151.031; R.C. 2151.421(E)(2), (G), and (H). Charging a parent with neglect or

child abuse (and invoking the machinery of the State, which can lead to serious

consequences like termination of parental rights) is something that agencies would

approach with a good degree of caution. Again, the fact that an agency was unable to

substantiate an allegation, particularly in cases where parties gave conflicting accounts,

would not mean that an incident did not happen.

{¶ 80} From Clark’s testimony, it is clear that she believed A.Z.’s allegations, both

as to the hotel incident and as to the fact that A.Z. was unhappy and thought of harming

herself at times. In fact, Clark said so. Tr. 1 at p. 169, 189, and 193. As we have

stressed, the trial court was in the best position to determine the credibility of the

witnesses.

{¶ 81} As another reason for rejecting Clark’s testimony, Mother cites the fact that

Clark’s supervisor “questioned her methodology in conducting forensic interviews.”

Appellant’s Brief at p. 18. Clark’s supervisor stated that Clark’s interviewing techniques

were not the same as what she would do, but she did not “think necessarily that it was

incorrect.” Tr. 6 at 47.

{¶ 82} Clark had a bachelor’s degree in psychology and a masters’ degree in social

work. She was also a certified forensic interviewer for sex abuse and physical abuse

cases who had handled more than 100 sex abuse cases. Tr. 1 at 157-158. Again, the -31-

trial court had an opportunity to see and hear these witnesses and judge their credibility.

We cannot substitute our judgment. Having reviewed the record, we find no plain error,

nor any error.

{¶ 83} Accordingly, Mother’s assignment of error is overruled.

III. Conclusion

{¶ 84} Mother’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Tom O. Merritt Phillip D. Hoover Kathryn Maher Huffman, GAL Hon. Scott Altenburger