[Cite as In re N.W., 2024-Ohio-2104.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
In re N.W. Court of Appeals No. H-23-014
Trial Court No. DNA 2020 00101
DECISION AND JUDGMENT
Decided: May 31, 2024
*****
Richard H. Palau, for appellee.
W. Alex Smith, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} Appellant L.H. (“Grandmother”) appeals the Huron County Court of
Common Pleas, Juvenile Division’s June 26, 2023 judgment granting legal custody of
N.W. (“Child”) to N.C. (“Father”). For the following reasons, we affirm the trial court’s
judgment. A. Facts and Procedural Background
{¶ 2} The facts relevant to our resolution of this appeal are undisputed. On
September 7, 2020, Child was born to G.W. (“Mother”)1 in Toledo, Ohio. Mother was a
minor at the time of Child’s birth and had previously been adjudicated a dependent child
in Huron County Court of Common Pleas, Juvenile Division Case No. DNA 2019
00009. Initially, Mother intended to give Child up for adoption. Upon Child’s birth,
however, Mother changed her mind and asked Grandmother to help her raise Child.
Upon Mother and Child’s discharge from the hospital, Mother arranged for Grandmother
to care for Child at her residence in Huron County, Ohio.
{¶ 3} On September 9, 2020, the Huron County Department of Job & Family
Service (“Department”) filed a complaint in the Huron County Court of Common Pleas,
Juvenile Division, alleging that Child was a dependent child, as defined by R.C.
2151.04(C), due to Mother having been adjudicated dependent. That same day, the court
ordered Child to be placed in the temporary custody of Grandmother pending
adjudication. The trial court also appointed Carrie Kimmet as the guardian-ad-litem
(“GAL”) to represent Child’s interests. At the November 12, 2020 adjudication hearing,
Mother admitted the allegations in the Department’s complaint and the trial court
1 Mother is not a party to this appeal.
2. determined that Child was a dependent child pursuant to R.C. 2151.04(C). Father was
not present at that hearing.
{¶ 4} Grandmother filed a motion for legal custody of Child on March 8, 2021.
Father initially opposed Grandmother’s motion. However, at a hearing on July 6, 2022,
Father consented to Grandmother’s motion and the trial court granted her legal custody of
Child. In its order, the trial court granted Father unsupervised visitation with Child from
Thursday to Sunday every other week until Child began attending kindergarten. At that
time, the visitation periods would commence on Fridays. The trial court also granted
Father visitation with Child for 7 consecutive days following his second weekend visit in
June, July, and August each year.
{¶ 5} On September 9, 2022, Father filed a motion asking the trial court to find
Grandmother in contempt for her failure to allow him to participate in the court-ordered
visitation. Specifically, Father alleged that Grandmother had not allowed him any
visitation with Child after she was granted legal custody. The motion was set for hearing
on December 13, 2022. That hearing was continued to January 6, 2023, at
Grandmother’s request. Father then filed a motion for legal custody on January 4, 2023.
Following another continuance, the hearing on Father’s motion for contempt and his
motion for legal custody was held on February 28, 2023.
{¶ 6} At the hearing, Grandmother admitted that she had not permitted Father to
visit with Child in accordance with the trial court’s prior order. She attributed this denial
to Child’s recent autism diagnosis and Grandmother’s concern that Father would not be
3. able to care for Child. She also testified that Child had anxiety associated with being
separated from Grandmother when Father attempted to pick Child up at the appointed
times. As to Father’s motion for legal custody, Grandmother testified that it was in
Child’s best interest that Father’s request be denied. Father testified that it was in Child’s
best interest that he be granted legal custody based on Grandmother’s failure to obey the
trial court’s order, Grandmother’s alleged drug use, and Grandmother’s alleged lying
about Child’s condition. The GAL testified that it was her opinion that the child should
be placed in Father’s legal custody. At the conclusion of the hearing, the trial court found
Grandmother to be in contempt and stated that it would impose a written judgment,
including sanctions, at a later time.2 Grandmother requested that the parties be permitted
to file written closing arguments. The trial court granted Grandmother’s request and
ordered her to file her closing argument within seven days, with Father’s closing
argument to be filed within fourteen days.
{¶ 7} Grandmother filed her written closing argument on March 7, 2023. In her
argument, she conceded that either the trial court’s ruling on her contempt or Child’s
autism diagnosis “could be a change of circumstances that materially affects the welfare
of [Child]” to permit the trial court to consider a modification to its prior custody order, a
predicate finding required under R.C. 2151.42(B). She argued, however, that Father
2 The trial court’s contempt finding is not part of the present appeal.
4. failed to present sufficient evidence to show that a change in custody was in Child’s best
interest. Father filed his closing argument on March 14, 2023. In his argument, Father
reiterated his hearing testimony that he believed it was in Child’s best interest that he be
granted legal custody.3
{¶ 8} On June 23, 2023, the trial court granted Father’s motion for an award of
legal custody. The trial court’s judgment was memorialized on June 26, 2023.
B. Assignments of Error
{¶ 9} Grandmother timely appealed and asserts the following error for our review:
1. The trial court abused its discretion by granting [F]ather’s motion for custody in violation of R.C. 2151.42.
II. Law and Analysis
{¶ 10} In her single assignment of error, Grandmother alleges that the trial court
abused its discretion in granting Father’s motion for legal custody. Specifically,
Grandmother argues that R.C. 2151.42 requires that there be a change in either Child or
Grandmother’s circumstances before the trial court could consider whether it was in
Child’s best interest to modify its prior grant of legal custody to Grandmother. She
argues that the only potential change in circumstances was her failure to comply with the
court’s order regarding visitation, but that her contempt “does not meet the requirements
3 The Department and the GAL each filed closing arguments related to the Child’s best interests in determining custody. Because appellant’s argument on appeal does not challenge the trial court’s best interest determination, we omit a summary of their respective positions.
5. of a change in circumstances.” Instead, she argues, “the correct action would have been
to grant the contempt motion and admonish [Grandmother].” By granting Father’s
motion, she concludes, the trial court elected an “extreme remedy [for her contempt] that
rose to the level of abuse of discretion.”
{¶ 11} Grandmother correctly notes that we review a trial court’s modification of a
prior order granting legal custody of a minor for an abuse of discretion. In re. E.H.,
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[Cite as In re N.W., 2024-Ohio-2104.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
In re N.W. Court of Appeals No. H-23-014
Trial Court No. DNA 2020 00101
DECISION AND JUDGMENT
Decided: May 31, 2024
*****
Richard H. Palau, for appellee.
W. Alex Smith, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} Appellant L.H. (“Grandmother”) appeals the Huron County Court of
Common Pleas, Juvenile Division’s June 26, 2023 judgment granting legal custody of
N.W. (“Child”) to N.C. (“Father”). For the following reasons, we affirm the trial court’s
judgment. A. Facts and Procedural Background
{¶ 2} The facts relevant to our resolution of this appeal are undisputed. On
September 7, 2020, Child was born to G.W. (“Mother”)1 in Toledo, Ohio. Mother was a
minor at the time of Child’s birth and had previously been adjudicated a dependent child
in Huron County Court of Common Pleas, Juvenile Division Case No. DNA 2019
00009. Initially, Mother intended to give Child up for adoption. Upon Child’s birth,
however, Mother changed her mind and asked Grandmother to help her raise Child.
Upon Mother and Child’s discharge from the hospital, Mother arranged for Grandmother
to care for Child at her residence in Huron County, Ohio.
{¶ 3} On September 9, 2020, the Huron County Department of Job & Family
Service (“Department”) filed a complaint in the Huron County Court of Common Pleas,
Juvenile Division, alleging that Child was a dependent child, as defined by R.C.
2151.04(C), due to Mother having been adjudicated dependent. That same day, the court
ordered Child to be placed in the temporary custody of Grandmother pending
adjudication. The trial court also appointed Carrie Kimmet as the guardian-ad-litem
(“GAL”) to represent Child’s interests. At the November 12, 2020 adjudication hearing,
Mother admitted the allegations in the Department’s complaint and the trial court
1 Mother is not a party to this appeal.
2. determined that Child was a dependent child pursuant to R.C. 2151.04(C). Father was
not present at that hearing.
{¶ 4} Grandmother filed a motion for legal custody of Child on March 8, 2021.
Father initially opposed Grandmother’s motion. However, at a hearing on July 6, 2022,
Father consented to Grandmother’s motion and the trial court granted her legal custody of
Child. In its order, the trial court granted Father unsupervised visitation with Child from
Thursday to Sunday every other week until Child began attending kindergarten. At that
time, the visitation periods would commence on Fridays. The trial court also granted
Father visitation with Child for 7 consecutive days following his second weekend visit in
June, July, and August each year.
{¶ 5} On September 9, 2022, Father filed a motion asking the trial court to find
Grandmother in contempt for her failure to allow him to participate in the court-ordered
visitation. Specifically, Father alleged that Grandmother had not allowed him any
visitation with Child after she was granted legal custody. The motion was set for hearing
on December 13, 2022. That hearing was continued to January 6, 2023, at
Grandmother’s request. Father then filed a motion for legal custody on January 4, 2023.
Following another continuance, the hearing on Father’s motion for contempt and his
motion for legal custody was held on February 28, 2023.
{¶ 6} At the hearing, Grandmother admitted that she had not permitted Father to
visit with Child in accordance with the trial court’s prior order. She attributed this denial
to Child’s recent autism diagnosis and Grandmother’s concern that Father would not be
3. able to care for Child. She also testified that Child had anxiety associated with being
separated from Grandmother when Father attempted to pick Child up at the appointed
times. As to Father’s motion for legal custody, Grandmother testified that it was in
Child’s best interest that Father’s request be denied. Father testified that it was in Child’s
best interest that he be granted legal custody based on Grandmother’s failure to obey the
trial court’s order, Grandmother’s alleged drug use, and Grandmother’s alleged lying
about Child’s condition. The GAL testified that it was her opinion that the child should
be placed in Father’s legal custody. At the conclusion of the hearing, the trial court found
Grandmother to be in contempt and stated that it would impose a written judgment,
including sanctions, at a later time.2 Grandmother requested that the parties be permitted
to file written closing arguments. The trial court granted Grandmother’s request and
ordered her to file her closing argument within seven days, with Father’s closing
argument to be filed within fourteen days.
{¶ 7} Grandmother filed her written closing argument on March 7, 2023. In her
argument, she conceded that either the trial court’s ruling on her contempt or Child’s
autism diagnosis “could be a change of circumstances that materially affects the welfare
of [Child]” to permit the trial court to consider a modification to its prior custody order, a
predicate finding required under R.C. 2151.42(B). She argued, however, that Father
2 The trial court’s contempt finding is not part of the present appeal.
4. failed to present sufficient evidence to show that a change in custody was in Child’s best
interest. Father filed his closing argument on March 14, 2023. In his argument, Father
reiterated his hearing testimony that he believed it was in Child’s best interest that he be
granted legal custody.3
{¶ 8} On June 23, 2023, the trial court granted Father’s motion for an award of
legal custody. The trial court’s judgment was memorialized on June 26, 2023.
B. Assignments of Error
{¶ 9} Grandmother timely appealed and asserts the following error for our review:
1. The trial court abused its discretion by granting [F]ather’s motion for custody in violation of R.C. 2151.42.
II. Law and Analysis
{¶ 10} In her single assignment of error, Grandmother alleges that the trial court
abused its discretion in granting Father’s motion for legal custody. Specifically,
Grandmother argues that R.C. 2151.42 requires that there be a change in either Child or
Grandmother’s circumstances before the trial court could consider whether it was in
Child’s best interest to modify its prior grant of legal custody to Grandmother. She
argues that the only potential change in circumstances was her failure to comply with the
court’s order regarding visitation, but that her contempt “does not meet the requirements
3 The Department and the GAL each filed closing arguments related to the Child’s best interests in determining custody. Because appellant’s argument on appeal does not challenge the trial court’s best interest determination, we omit a summary of their respective positions.
5. of a change in circumstances.” Instead, she argues, “the correct action would have been
to grant the contempt motion and admonish [Grandmother].” By granting Father’s
motion, she concludes, the trial court elected an “extreme remedy [for her contempt] that
rose to the level of abuse of discretion.”
{¶ 11} Grandmother correctly notes that we review a trial court’s modification of a
prior order granting legal custody of a minor for an abuse of discretion. In re. E.H.,
2016-Ohio-8170, ¶ 15 (6th Dist.). However, when a party raises an argument for the first
time on appeal, they waive all but plain error review. In re. A.G. and J.G., 2004-Ohio-
5665, ¶ 6 (6th Dist.). Here, not only did Grandmother not argue at trial that her being in
contempt of the trial court’s prior custody order did not constitute a change of
circumstances that would permit modification of its prior order, she expressly identified
her contempt as one of two changes of circumstances4 that permitted the trial court to
consider Child’s best interest to resolve Father’s motion for legal custody. Now, on
appeal, she argues that no such change of circumstances occurred. By conceding this
point at trial, she has waived this argument and is barred from raising it for the first time
in this appeal. Therefore, our review is limited to determining whether the trial court
committed plain error in granting Father’s motion. Id.
{¶ 12} “Plain errors or defects affecting substantial rights may be noticed although
the were not brought to the attention of the court.” Id. at ¶ 7. Plain error is only found in
4 Grandmother also identified Child’s autism diagnosis as a change in circumstances.
6. “extremely rare civil cases ‘where exceptional circumstances require its application to
prevent a manifest miscarriage of justice and, where the error complained of, if left
uncorrected, would have a material adverse effect on the character and public confidence
in judicial proceedings.” Id., citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 119-120
(1997). “It is well-established that interference with the noncustodial parent’s visitation
rights may constitute a change of circumstances warranting a change of custody.”
Jackson v. Herron, 2005-Ohio-4046, ¶ 26 (11th Dist.), citing In re. Seitz, 2003-Ohio-
5218, ¶ 39 (11th Dist.) and Hinton v. Hintton, 2003-Ohio-2785, ¶ 13 (4th Dist.); See also
Holm v. Smilowitz, 83 Ohio App.3d 757, (4th Dis.1992), citing Lenzer v. Lenzer, 115
Ohio App. 442 (1st Dist. 1962). As it is “well-established” that Grandmother’s
interference with Father’s visitation rights may constitute a change in circumstances as
described in R.C. 2151.42 for the modification of a legal custody order, we cannot say
that the trial court reaching this conclusion constitutes a manifest miscarriage of justice.
Therefore, the trial court did not commit plain error in granting Father’s motion and
Grandmother’s single assignment of error is found not well-taken.
7. III. Conclusion
{¶ 13} For the foregoing reasons, we find Grandmother’s assignment of error not
well-taken and we affirm the Huron County Court of Common Pleas, Juvenile Division’s
June 26, 2023 judgment granting Father legal custody.
{¶ 14} Grandmother is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, 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/.
8.