In re M.V.P.

2023 Ohio 4778

• Court: Ohio Court of Appeals
• Decided: December 28, 2023
• Docket: CA2023-03-028
• Status: Published

Opinion

[Cite as In re M.V.P., 2023-Ohio-4778.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN RE: :

M.V.P., et al. : CASE NO. CA2023-03-028 CA2023-03-029 : OPINION : 12/28/2023

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 19-D000057

Tyrone P. Borger, for appellant.

Traci M. Carr, for appellee Mother.

Paris K. Ellis, for appellee, Father.

PIPER, J.

{¶ 1} Appellant, the paternal grandmother ("Grandmother") of two children, appeals

a decision of the Warren County Court of Common Pleas, Juvenile Division, granting legal

custody of the children to their mother ("Mother").

{¶ 2} The two children in this case were the subjects of a Warren County Children Warren CA2023-03-028 CA2023-03-029

Services case. Both children were adjudicated as neglected based in part on the domestic

violence between Mother and Father ("Father"). The children were placed in the temporary

custody of the paternal grandparents while Mother and Father worked on case plans to

reunite with the children. The parents made insufficient progress towards reunification.

Father did not adequately address his anger issues or drug usage. Mother, despite several

attempts, was unable to end her volatile relationship with Father. Legal custody was

granted to the paternal grandparents in June 2021.

{¶ 3} At the time it awarded legal custody to the grandparents, the court indicated

that Mother was a loving parent who would not harm her children, but she was trapped in a

dangerous cycle of domestic violence and as long as she kept going back to Father, she

and the children were in danger. The court granted Mother a significant amount of visitation

time with the children and Father was not to be present at any of Mother's visitations.

Mother was granted visitation every week from 6:00 p.m. on Tuesday until 9:00 a.m. on

Thursday, along with every other weekend. Mother, who at the time of the hearing stated

she had been separated from Father for two days, did not resume her relationship with

Father.

{¶ 4} Problems arose when Grandmother began enrolling the older child in

preschool and activities. Some of these activities occurred during Mother's parenting time

and Grandmother failed to first discuss or approve her plans with Mother. Mother, who was

in nursing school and working nights, objected to some of Grandmother plans and

Grandmother had to adjust preschool days and team activity days.

{¶ 5} Grandmother filed a motion to modify parenting time, requesting that the court

remove Mother's mid-week visitations. Mother then filed a motion for legal custody of the

children. Father also filed a motion for custody, but withdrew the motion and instead asked

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for increased visitation along with some unsupervised visitation.

{¶ 6} A magistrate held a hearing on the motions. At the time of the hearing, the

children were four years old and almost three years old. The magistrate considered the

evidence and issued a decision awarding legal custody to Mother. The decision also

provided for visitation with Grandmother and for unlimited supervised visitation for Father

during Grandmother's visitation time, but no unsupervised visitation. The trial court adopted

the magistrate's decision after considering Grandmother's objections. Grandmother now

appeals the trial court's decision granting legal custody to Mother and raises three

assignments of error for our review.

{¶ 7} First Assignment of Error:

{¶ 8} THE TRIAL COURT COMMITTED ERROR BY OVERRULING

APPELLANT'S OBJECTION REGARDING THE ADMISSIBILITY OF THE VIDEO

RECORDING OF THE CHILDREN PRESENTED BY MOTHER SHOULD BE SUSTAINED

[SIC]

{¶ 9} In her first assignment of error, Grandmother challenges the trial court's

decision to admit two videos presented at the hearing by Mother. The videos were taken

of the children in the backseat of a vehicle while Mother was driving. The older child is

purportedly hitting himself and Mother questions him and instructs that "we do not hit."

During the video, Mother asks her son "who hits?" and the child responds "Daddy hits" and

"Daddy hit my face."

{¶ 10} Grandmother argues that admission of the video is prohibited by R.C.

3109.04(B)(3). This statute provides the following:

No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining

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the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child's wishes and concerns regarding those matters.

{¶ 11} Grandmother argues that the plain language of the statute prohibits admission

of the video and based on the language, the trial court should not have admitted Mother's

exhibit and it should not have been considered in the trial court's decision considering the

parties' positions regarding custody of the children. At the hearing, the trial court took the

matter under advisement and in the written decision, determined that the videos were

admissible. The court found that the videos do not refer to the proceedings and do not

indicate the child's preference for where he wanted to reside. The trial court further noted

that the questions Mother asked the child about the hitting behavior were appropriate and

it was unlikely that the child even knew the camera was on.

{¶ 12} The Ohio Supreme Court has stated that "[t]his statute was obviously intended

to protect children from unsupervised demands that they choose between their parents, and

the harm such demands may cause is a valid concern in any proceeding." The court

continued by stating that the statute, however, does not prohibit all written or recorded

statements or affidavits of a child, but only those that purport to set forth the child's wishes

and concerns regarding the allocation of parental rights. State ex rel. Papp v. James, 69

Ohio St.3d 373, 376 (1994).

{¶ 13} We find, under the particular facts of this case, that the trial court did not err

in determining that admission of the videos did not violate R.C. 3109. 04(B)(3). As the trial

court found, the child is not questioned regarding his wishes of who he would like to reside

with. Instead, the videos document concerning behavior by the child and the mother

questioning where the behavior originated. The videos also document Mother instructing

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correct behavior. The statute Grandmother relies on is one that prohibits a party from

creating circumstances wherein a child's wishes are elicited for the purposes of having

parental rights allocated. The trial court found those were not the circumstances

surrounding the evidence herein and neither do we. Grandmother's first assignment of error

is overruled.

{¶ 14} Second assignment of error:

{¶ 15} THE TRIAL COURT COMMITTED ERROR BY DETERMINING THAT

MOTHER DEMONSTRATED A CHANGE IN CIRCUMSTANCES ALLOWING FOR THE

CHANGE IN CUSTODY.

{¶ 16} Third Assignment of error:

{¶ 17} THE JUVENILE COURT'S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND FAILED TO MEET THE CLEAR AND CONVINCING

STANDARD

{¶ 18} In her second and third assignments of error, Grandmother argues that

Mother failed to establish a change in circumstances sufficient to warrant a change in

custody and that the change of custody was not in the best interest of the children.

{¶ 19} We begin our analysis of this case by noting that both parties, along with the

trial court, cite R.C. 3109.04 as providing the applicable standard in this case. However,

because Grandmother was awarded legal custody of the children in a dependency case

under R.C. 2151.353, the applicable standard is provided in R.C. 2151.42. See R.C.

2151.42(A). Under this provision,

[a] court shall not modify or terminate an order granting legal custody of a child unless it finds, based on facts that have arisen since the order was issued or that were unknown to the court at that time, that a change has occurred in the circumstances of the child or the person that was granted legal custody, and that the modification or termination of the order is necessary to serve

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the best interest of the child.

{¶ 20} Although the court applied R.C. 3109.04, we find that the trial court

nonetheless engaged in the appropriate analysis, as both this court and the Ohio Supreme

Court have noted that the analysis under either statute is similar as both require a change

in circumstances and a consideration of the best interest of the child. See In re James, 113

Ohio St.3d 420, 2007-Ohio-2335, ¶ 26; Wren v. Hawkins, 12th Dist. Madison No. CA2021-

03-005, 2021-Ohio-3287, ¶ 13-14. See also In re A.S., 2d Dist. Montgomery No. 27156,

2016-Ohio-7622, ¶ 11.

{¶ 21} We therefore turn to the issue of whether Mother demonstrated a change in

circumstances sufficient to warrant a change in custody. The term "change in

circumstance" is not defined in the Revised Code. However, "Ohio courts have held that

the phrase is intended to denote 'an event, occurrence, or situation which has a material

and adverse effect upon a child.'" Jones v. Wall, 12th Dist. Warren No. CA2015-10-088,

2016-Ohio-2780, ¶ 17, quoting Preece v. Stern, 12th Dist. Madison No. CA2009-09-019,

2010-Ohio-857, ¶ 10. This means that, "[i]n order to warrant a change of custody, the

change in circumstances must be one 'of substance, not a slight or inconsequential

change.'" Heath v. Heath, 12th Dist. Fayette No. CA2016-08-011, 2017-Ohio-5506, ¶ 37,

quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997). The change, however, need

not be "substantial." Nagel v. Hogue, 12th Dist. Brown No. CA2007-06-011, 2008-Ohio-

3073, ¶ 17

{¶ 22} "In determining whether a change in circumstances has occurred so as to

warrant a change in custody, a trial judge, as the trier of fact, must be given wide latitude to

consider all issues which support such a change." Davis at 415, paragraph two of the

syllabus. Accordingly, such a decision must not be reversed absent an abuse of discretion.

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Id. at 418; Heath v. Heath, 12th Dist. Fayette No. CA2016-08-011, 2017-Ohio-5506, ¶ 37.

{¶ 23} In the trial court's previous decision awarding legal custody to Grandmother,

the court noted that Mother was a loving parent who would not harm her children, but she

was trapped in a dangerous cycle of domestic violence. However, the court noted it was

unable to award custody because of Mother's inability to sever her toxic relationship with

Father. The court found that the children benefit from a relationship with Mother and

therefore awarded substantial parenting time so that Mother could continue to be an integral

part of the children's lives. In fact, in its decision awarding custody to Mother, the magistrate

noted that this order granted Mother "liberal parenting time" which was "nearly fifty percent."

{¶ 24} The trial court determined that Mother established a change in circumstances

because Grandmother interfered with Mother's parenting time, excluded Mother from key

events, such as holidays, and failed to advise Mother of appointments, enrollments and

other important activities.

{¶ 25} Mother testified to the issues regarding preschool and activities for the older

child. She also testified that she has not been informed of medical visits and other important

appointments for the children, including the fact that the older child was placed in

counseling. Mother further indicated that since the time Grandmother was granted legal

custody, Mother has never had the children for their birthdays or holidays and Grandmother

denies these requests when asked. In addition, Mother testified that she has concerns with

Grandmother keeping the children safe because the children have had bruises, marks and

black eyes. She was also concerned with the aggressive behavior of her older child and

discussed the behavior she had seen from the child, including the video recordings.

Because of the hostility and issues between Mother and Grandmother, Mother's fiancé now

conducts visitation transfers while Mother waits in the car.

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{¶ 26} "Ohio courts have frequently held that a custodial [party's] interference with a

noncustodial parent's visitation, and the [parties'] inability to communicate and cooperate

may constitute a change in circumstances which would allow for a modification of custody."

In re E.R., 1st Dist. Hamilton No. C-180615, 2019-Ohio-4491, ¶ 7-8 (citing cases in which

interference with custody constituted a change in circumstances). Likewise, this court has

held that "Increased hostility between the [parties] and the frustration of visitation are factors

which can support a finding of a change in circumstances." Pierson v. Gorrell, 12th Dist.

Butler No. CA2011-11-216, 2012-Ohio-3878, ¶ 26. While age alone is not a sufficient factor

to establish a change in circumstances, even a small change in age when combined with

hostility between caregivers that adversely affects visitation or the custody arrangement,

may constitute a sufficient change in circumstances to warrant a change in custody. See,

e.g., Davis, 77 Ohio St.3d at 420; In re E.R., 2019-Ohio-4491 at ¶ 10; Green v. Green, 11th

Dist. Lake No. 96-L-145, 1998 Ohio App. LEXIS 1434, 1998 WL 258434 (Mar. 31, 1998)

{¶ 27} We find the trial court did not err in finding a change of circumstances was

established in this case. When the trial court granted legal custody to Grandmother, it did

so with the expectation that Mother would continue to be an integral part of the children's

lives. However, as the older child became old enough to be involved in activities, problems

arose between Grandmother and Mother regarding the timing of these activities. In fact,

both Grandmother and Mother filed motions requesting a change in the custodial

arrangement because of the inability of the two to agree on these issues, which will only

increase as the children become older. In addition, Grandmother failed to allow Mother to

spend time with the children on birthdays and holidays, depriving Mother of important

parenting time. Grandmother's second assignment of error is therefore overruled.

{¶ 28} In her third assignment of error, Grandmother argues that the trial court erred

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in determining that a change in custody was in the children's best interest. We note that

while Grandmother argues the decision was against the manifest weight of the evidence, a

trial court's decision on a change of custody will not be disturbed on appeal absent an abuse

of discretion. In re R.L.S., 12th Dist. Warren No. CA2013-12-117, 2014-Ohio-3294, ¶ 9.

"When applying the abuse-of-discretion standard, an appellate court's role is to ascertain

whether the award of custody is supported by competent and credible evidence." In re

D.M., 196 Ohio App.3d 50, 2011-Ohio-3918, ¶ 25 (12th Dist.), citing Davis, 77 Ohio St.3d

at 415; see also In re J.L.C., 12th Dist. Butler No. CA2022-05-046, 2023-Ohio-4081, ¶ 50.

{¶ 29} We further note that while Grandmother argues that the trial court's decision

is not supported by clear and convincing evidence, the case she cites for this proposition is

a permanent custody case. Unlike a permanent custody case where a juvenile court's

standard of proof is clear and convincing evidence, a trial court's decision in a legal custody

proceeding must be supported by a preponderance of the evidence. In re A.W.-G., 12th

Dist. Butler No. CA2003-04-099, 2004-Ohio-2298, ¶ 7.

{¶ 30} While R.C. 2151.42(B) requires the court determine whether a change in

custody is in the best interest of the child when determining whether to modify an order of

legal custody, there are no specific factors enumerated for the court to consider. A juvenile

court considering the best interests of the child in a legal custody matter must consider all

relevant factors and may consider the relevant best interest factors set forth in R.C.

3109.04(F) or R.C. 2151.414(D). In re X.L.L., 12th Dist. Brown No. CA2022-03-003, 2023-

Ohio-751.

{¶ 31} The trial court indicated that Mother has always exercised her parenting time

and has been very bonded to the children and they benefit from time spent with her. On

the other hand, Grandmother interfered with Mother's parenting time and failed to

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communicate important information to Mother. At the hearing, both Mother and

Grandmother agreed that there were conflicts between the two regarding the children. As

the children age these conflicts will only increase. There were also concerns that

Grandmother was allowing Father unsupervised contact with the children, contrary to the

court's orders.

{¶ 32} Mother testified that she ended her relationship with Father, does not have

any contact with him, and is finished with the domestic violence cycle. She is engaged to

a man who she described as "totally different" from Father. Mother and her fiancé bought

a home and at the time of the hearing, Mother had almost completed schooling to become

a Licensed Practical Nurse. Her current employer indicated that it would hire her as a nurse

when she graduated.

{¶ 33} We find no error in the trial court's determination that granting legal custody

to Mother is in the children's best interest. As mentioned above, when granting legal

custody to the grandparents, the trial court's primary concern with Mother was inability to

remove herself from the domestic violence situation. Mother has resolved the situation and

is in a better position to safely parent the children. Grandmother, on the other hand, has

shown an inability to communicate and ensure that Mother remains an important part of the

children's lives. Grandmother's third assignment of error is overruled.

{¶ 34} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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