In re L.B.

2018 Ohio 1957

• Court: Ohio Court of Appeals
• Decided: May 18, 2018
• Docket: S-17-028
• Status: Published

Opinion

[Cite as In re L.B., 2018-Ohio-1957.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

In re L.B. Court of Appeals No. S-17-028

Trial Court No. 21130108

DECISION AND JUDGMENT

Decided: May 18, 2018

*****

Amanda A. Andrews, for appellant.

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Sandusky County Court of

Common Pleas, Juvenile Division, which denied appellant-mother’s, T.B., motion to

change custody of her minor child, L.B. For the reasons that follow, we affirm. I. Facts and Procedural Background

{¶ 2} This case began with a complaint in dependency and neglect filed by the

Sandusky County Department of Job and Family Services (“the agency”). The complaint

alleged that in the spring of 2011, appellant tried to commit suicide on a couple of

occasions as she and appellee-father, B.B., were going through a divorce. In addition, the

complaint alleged an occasion where appellee was drunk and became aggressive and

violent. Appellee was arrested for domestic violence as a result of the incident, but

ultimately was not convicted.

{¶ 3} The parties consented to a finding of dependency. On October 3, 2011,

following a dispositional hearing, the trial court awarded temporary custody of L.B. to

the paternal grandmother, J.R., under the protective supervision of the agency.1 Effective

July 24, 2012, protective supervision of L.B. was terminated, and appellee was awarded

legal custody of L.B.

{¶ 4} On November 17, 2014, appellant filed the present motion for emergency

and full custody. Appellant alleged that appellee contacted her and told her to come and

get L.B. because he could not care for the child.

{¶ 5} A hearing on the motion was held on August 28, 2015. At the hearing, the

guardian ad litem, appellant, and appellee testified.

1 Temporary custody of appellant’s other child, J.B., was awarded to maternal aunt, B.G. J.B. is not the subject of these proceedings.

2. {¶ 6} The guardian ad litem testified that it was her recommendation that custody

be awarded to appellant, with appellee to have liberal visitation. The guardian ad litem

described appellant’s home as appropriate, and stated that there were no safety concerns

regarding the housing. She also testified that L.B. would be sharing a room with his

older brother, J.B., with whom there had been inappropriate interactions in the past.

However, the guardian ad litem testified that J.B. has matured, and that the two now

enjoy spending time together. Regarding appellant’s emotional stability, the guardian ad

litem testified that based on her discussions with appellant, she feels that those issues

have been resolved and would not prevent appellant from adequately caring for L.B. On

cross-examination, the guardian ad litem admitted that she did not investigate what, if

any, treatments or professional assistance appellant has engaged in to deal with her

mental health issues.

{¶ 7} The guardian ad litem next expressed concern with appellee’s personal

relationships, in that he has lived with, and had volatile relationships with, a number of

women that resulted in him and L.B. having to move frequently. The guardian ad litem

counted that appellee has moved six times in the last two to three years. L.B., however,

has only attended two different schools. In kindergarten, he was in the Lakota School

District, and in first and second grade, he has been in the Clyde School District. The

guardian ad litem acknowledged that L.B. was well-adjusted to his school, and was

performing well. If custody of L.B. were to be awarded to appellant, L.B. would then

3. attend school in the Port Clinton School District. The guardian ad litem also commented

on appellee’s alcohol usage, noting that while appellee still drinks alcohol, it no longer

prevents him from going to work, and there have been no legal issues involving the use

of alcohol.

{¶ 8} The guardian ad litem concluded that it would be in L.B.’s best interest to

live with appellant. The guardian ad litem described L.B. as a sensitive and very loving

child, and she wished for him to be in a stress-free environment, without arguing and

fighting, which she believed would be with appellant. The guardian ad litem did

comment, however, that she could not predict the future, and both parents have a history

of instability.

{¶ 9} Appellant testified next. She testified that the main reason the court should

award her custody of L.B. is that her home is more stable. Appellant testified that she has

a close, loving relationship with L.B., and she described the activities they enjoy doing

together and L.B.’s interests. She also described that when he is with her, L.B. enjoys the

fact that he knows what the agenda is and what the expectations are for each day.

Appellant further explained that there is not any fighting at her house, and that any issues

are discussed instead of argued with raised voices.

{¶ 10} In contrast, appellant testified that appellee has had six different residences

since he has had custody of L.B., and she was not always certain where she would be

dropping off or picking up L.B. In addition, appellant testified that L.B. would become

4. attached to the different women in appellee’s life, and it impacts L.B. when those

relationships end. Appellant then testified that as recently as the prior summer, appellee

has called her on several occasions when he was drunk, and asked her to come take care

of L.B. because he could not take care of him.

{¶ 11} Concerning her own mental health, appellant testified that she attempted

suicide four or five years ago, but she is no longer in that state of mind or suffering from

mental instability. Appellant explained that, at the time, she was going through a messy

divorce, her father was sick with two different kinds of cancer, and her family did not get

along because of the divorce. She stated that none of those issues were currently present

in her life.

{¶ 12} Finally, appellant called appellee as a witness as upon cross-examination.

Appellee described that he has dated a number of women in the past few years, and has

stayed with them on occasion, but he has also had a permanent address where he lived.

Appellee listed five different places where he has lived since being married to appellant,

each one lasting for less than a year. Appellee testified that regardless of where they

were, L.B. has always had his own bed in which to sleep. Appellee agreed that it

probably was not appropriate parenting to have six women in his minor child’s life in a

two-year period.

{¶ 13} In addition, appellee testified regarding appellant’s scheduled phone calls

with L.B. Appellee stated that while he does not always answer appellant’s calls because

5. he may be at work, he does not ignore appellant’s time to talk with L.B., and reschedules

or works out a different arrangement for L.B. to talk with his mother.

{¶ 14} Appellee also acknowledged that he has called appellant and asked her to

come pick up L.B. because he had been drinking. Appellee was not positive if he has

done that on more than one occasion. He conceded that, at the time, it was probably not a

stable environment for L.B. Relatedly, appellee testified that he had concerns that

appellant may put L.B. in harm’s way given her past suicide attempt, which occurred

while the child was in the home. Appellee explained that he was not aware of any steps

that appellant has taken to address the problem, and that he still feels concern that it may

happen again.

{¶ 15} Following appellee’s testimony on cross-examination, appellant moved to

admit the guardian ad litem’s report, and then rested.

{¶ 16} Appellee then testified on his own behalf. Appellee described his current

living arrangement as a five-bedroom house on an acre of land. Appellee explained that

he works in the construction industry, and there are times when there is a lot of work, and

times when there is not as much work. When things got tight, appellee testified that he

would move in with family members or friends to make sure that he could still provide

for L.B. Appellee noted that appellant has not consistently paid child support, and that

she owes over $2,700.

6. {¶ 17} Appellee also testified that he does not believe that appellant would follow

court orders regarding parenting time if she were awarded legal custody of L.B. Appellee

described a recent event where he was returning from vacation, and appellant refused to

give L.B. back to him, and the police became involved. Appellee also testified to an

event in November 2014, where appellant picked up L.B. from school in the middle of

the day and did not return him for two days.

{¶ 18} Regarding appellant’s mental health, appellee testified that based on his 11

years of being married to her, he observed that appellant would self-medicate with

prescription drugs and recreational drugs when things were not going the way she wanted

them to go. Appellee further testified that appellant had attempted to commit suicide on

three occasions between 2011 and 2012, and that the children were present on two of

those occasions. Appellee expressed his concern over whether appellant has received any

treatment, or how she could now determine that she does not have any mental health

issues.

{¶ 19} Appellee concluded that it would be in L.B.’s best interests not to modify

custody. Appellee explained that L.B. was well-adjusted to his school and community,

and is active in school and has friends there. Appellee testified that he would be willing,

and it would be in L.B.’s best interests, to allow appellant to have visitation one week on

and one week off, provided that L.B. could remain in the same school.

7. {¶ 20} Thereafter, appellee moved to admit L.B.’s report cards, and appellant’s

child support payment information. Appellee then rested.

{¶ 21} Following the hearing, the magistrate entered his decision on September 4,

2015. The magistrate found that, under R.C. 3109.04, there had been no change in

circumstances regarding appellee or L.B. Specifically, the magistrate found that moving

residences alone was not sufficient to demonstrate a change in circumstances, and that

there was no testimony of any other change in circumstances. Therefore, the magistrate

denied appellant’s motion.

{¶ 22} On September 14, 2015, appellant objected to the magistrate’s decision,

arguing that it was contrary to law, against the manifest weight of the evidence, and an

abuse of discretion. Further, appellant moved for leave to supplement her objection once

the transcript from the hearing was filed. The trial court granted the motion for an

extension, and allowed appellant 30 days after the transcript was filed to supplement her

objection.

{¶ 23} The transcript was filed on December 10, 2015. On January 12, 2016,

appellant filed her revised objection to the magistrate’s decision, in which she argued that

the magistrate’s decision failed to consider the guardian ad litem’s recommendation,

incorrectly found that moving residences alone is not sufficient for a finding of change of

circumstances, and erroneously concluded that there had been no change of

circumstances.

8. {¶ 24} On August 4, 2017, the trial court entered a judgment in response to

appellant’s subsequent “Motion for Emergency Temporary Custody of the Minor Child

During the Pendency of this Action.” Included in that judgment was a reference to

appellant’s objection to the magistrate’s September 14, 2015 decision. The trial court

stated that since the transcript was filed on December 10, 2015, appellant’s objection was

due on January 9, 2016. Because appellant did not file her objection until January 12,

2016, the objection was denied.2 The trial court noted that it failed to document that

decision in a standard fashion, and therefore clarified that “this Court does hereby

formally deny the objection.”

II. Assignment of Error

{¶ 25} Appellant has timely appealed the trial court’s judgment denying her

objection to the magistrate’s decision, and now asserts one assignment of error for our

review:

1. The trial court abused its discretion in denying appellant’s motion

to modify the allocation of parental rights and responsibilities.

2 Appellee claims that she filed her supplemental objection on Monday, January 11, 2016, which would have been timely because January 9, 2016, was a Saturday. However, the fax filing that she sent to the clerk’s office was timestamped at 6:49 p.m., after the close of normal business hours.

9. III. Analysis

{¶ 26} Appellant and the trial court treated appellant’s November 17, 2014

motion for emergency and full custody as arising under R.C. 3109.04, thus we will

do the same. Pursuant to R.C. 3109.04(E)(1)(a),

The court shall not modify a prior decree allocating parental rights

and responsibilities for the care of the 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.

{¶ 27} Before analyzing whether a modification to the allocation of parental rights

and responsibilities is in the child’s best interest, the court must first determine whether a

change in circumstances has occurred. Perz v. Perz, 85 Ohio App.3d 374, 376, 619

10. N.E.2d 1094 (6th Dist.1993). “The clear intent of [this requirement] 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 children

a ‘better’ environment.” Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th

Dist.1982).

{¶ 28} The Supreme Court of Ohio has held that the change of circumstances

“must be a change of substance, not a slight or inconsequential change.” Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Further, the phrase

“change in circumstances,” generally denotes “an event occurrence, or situation which

has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio

App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000). “In determining whether a

‘change’ has occurred * * * 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.” Flickinger at 418, citing Miller v. Miller, 37 Ohio St.3d 71, 523

N.E.2d 846 (1988).

{¶ 29} In support of her argument that there was a change of circumstances,

appellant cites “[a]ppellee’s interference with parenting time, appellee’s deplorable living

conditions, as well as numerous women in and out of the minor child’s life, appellee’s

job instability, the child’s absence(s) and tardies from school,” as well as appellee’s

“inability to financially care for the minor child,” “the constant moving of residences,”

11. appellee’s “failure to participate in any manner in the minor child’s life,” and the fact that

appellee has contacted appellant on several occasions when he had been drinking to come

and get the child. We will briefly address each contention in turn.

{¶ 30} Appellant cites appellee’s interference with parenting time, however,

appellee testified that although appellant’s calls with L.B. are sometimes missed, they are

not ignored, and other arrangements are made. Further, there was no testimony that

appellant’s physical visits with L.B. were frustrated by appellee. To the contrary, the

testimony adduced at trial pertained to two occasions where appellant interfered with

appellee’s parenting time.

{¶ 31} Appellant next cites appellee’s “deplorable living conditions.” There is

simply no evidence from the hearing to support this statement. Appellee testified that he

is currently living in a five-bedroom house with plenty of room for L.B. To the extent

that appellant is referencing appellee’s previous residences, appellee testified that while

L.B. may have had to share a room sometimes, he always had his own bed. Additionally,

there was no testimony that any of the residences were unsafe or unsanitary.

{¶ 32} Regarding appellant’s contention of job instability and inability to

financially care for L.B., the record shows that while appellee has had up and downs as

far as his volume of work, he has always been employed. Further, he testified that he has

been able to financially care for L.B. despite appellant failing to make her child support

payments.

12. {¶ 33} Appellant also lists L.B.’s numerous absences and tardies from school as a

change of circumstances. Again, the record does not support appellant’s position. L.B.’s

school records show that in kindergarten he was absent three days and tardy zero days, in

first grade he was absent five and one-half days and tardy two days, and in second grade

he was absent four days and tardy four days. Relatedly, appellant cites appellee’s failure

to participate in any manner in L.B.’s life. In support, appellant points to appellee’s

failure to attend any parent-teacher conferences. Appellee testified, however, that he did

not physically attend the conferences, but that he spoke with the school and teachers on

the phone.

{¶ 34} Finally, appellant cites appellee’s numerous relationships with women, the

constant switching of residences, and the fact that appellee has contacted appellant to

come and get the child when he had been drinking. Here, the record supports appellant’s

assertions, as it is undisputed that appellee has had multiple relationships and has moved

in and out of residences as those relationships have begun and ended. In addition, the

guardian ad litem testified that the constant moving and conflict between appellee and

these women have upset L.B. Finally, appellee admitted that, on at least one occasion, he

has contacted appellant to come and pick up L.B. in the middle of the night because he

had been drinking and could not take care of the child.

{¶ 35} However, the trial court found that these facts alone did not amount to a

sufficient change of circumstances to warrant reexamining the custody determination.

13. Ohio courts have routinely held that, “[A] relocation, by itself, does not constitute a

change of circumstances.” E.g., Valentine v. Valentine, 12th Dist. Butler No. CA2004-

01-024, 2005-Ohio-2366, ¶ 44. “A proposed move along with a finding that the move

will harm the welfare of the children involved, however, can constitute a change of

circumstances.” Id. Here, the trial court did not find that the numerous moves materially

affected L.B. Further, the trial court did not find that calling appellant to come and get

the child on a couple of occasions constituted a change of circumstances. Given the wide

latitude afforded to the trial court in these matters, we cannot say that the trial court’s

determination was an abuse of discretion.

{¶ 36} Accordingly, appellant’s assignment of error is not well-taken.

IV. Conclusion

{¶ 37} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Sandusky County Court of Common Pleas,

Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

14. In re L.B. Case No. S-17-028

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Arlene Singer, J. ____________________________ Thomas J. Osowik, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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