In re S.A.

2019 Ohio 4161

• Court: Ohio Court of Appeals
• Decided: October 10, 2019
• Docket: 107965
• Status: Published

Opinion

[Cite as In re S.A., 2019-Ohio-4161.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE S.A. : : No. 107965 A Minor Child : : [Appeal by S.L., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 10, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU16102196

Appearances:

Tyresha Brown-O’Neal, for appellant.

Michael E. Stinn; and Alix Ann Wintner, for appellee.

SEAN C. GALLAGHER, P.J.:

Appellant S.L. appeals from the judgment entry of the Cuyahoga

County Court of Common Pleas, Juvenile Division, that was entered November 15,

2018, which designated father as the residential parent and legal custodian of the

child and provided mother visitation. Upon review, we affirm the decision of the trial

court. Background

Appellant S.L. (“mother”) and appellee D.A. (“father”) are the parents

of S.A. (“the child”), who was born on August 5, 2014. On February 16, 2016, father

filed an application to determine custody and to establish a shared parenting plan of

the child. Father claimed that he had not seen the child since September 2015, that

he had spent less than 12 hours alone with the child since birth, that he was able to

see the child only if he sat at mother’s home to visit the child, and that there was no

protection order in effect preventing him from having contact with the child. Father

also claimed the living environment provided by mother was unsafe and unstable.

Mother filed an answer denying father’s allegations. Mother claimed,

among other assertions, that she and father had been in a long-term relationship,

that their physical relationship ended in October 2015, and that she had a protection

order against father. The record reflects that father was subject to a domestic-

violence civil protection order with mother as the protected party and that order

expired on November 16, 2016.

The trial court appointed a guardian ad litem (“GAL”) for the child.

The court magistrate issued pretrial orders that provided father with parenting time.

On May 1, 2017, mother filed a motion to terminate visitation.

Mother claimed that father was aggressive and argumentative during an exchange of

the child and also expressed safety concerns. Thereafter, the magistrate issued an

order that required the parties to exchange the child at the Warrensville Heights

Police Department. In June 2017, mother filed a request for a domestic-violence civil

protection order on behalf of the child. Mother alleged that she had observed

bruising and swelling on the child, as well as behavioral problems, after the child’s

visits with father. Mother also claimed she observed blood on the child’s vagina.

The Cuyahoga County Division of Children and Family Services

completed an investigation and found the allegations unsubstantiated. The

Brunswick Police Department completed an investigation, and no charges were filed.

The detective who investigated the matter testified that she found no probable cause

to believe a crime was committed and “no evidence substantiating any kind of sexual

assault at all.” The detective testified that she noticed several inconsistencies in

mother’s accounts of what took place.

Mother and father were referred to the court’s diagnostic clinic for a

child-custody evaluation. The evaluator found that the child showed no fear of her

father, that father appeared appropriately attentive to the child, and that it appeared

father posed no threat to the child.

On December 1, 2017, the GAL for the child filed a detailed report and

recommendation. The GAL discussed background information and the various

investigations in the matter. She noted that although father had originally requested

shared parenting, he since changed his request to be designated the sole residential

parent and legal custodian of the child because he did not believe he would be

permitted to have a normal relationship with the child if mother remained the child’s

legal custodian. The GAL expressed concern that mother had reported that after every visit with father, she takes the child into the restroom at the police station

where the exchange takes place and does a full examination of the child, including

her private parts. The GAL recommended that father be designated as the residential

parent and legal custodian of the child, with standard parenting time afforded to

mother. The GAL stated her belief that “it is detrimental to [the child] to continue to

be exposed to Mother’s constant fear and suspicion in relation to Father.”

In December 2017, mother made another sexual-abuse allegation

against father, which also was found unsubstantiated. The investigator testified that

he had concerns about the information mother was providing and when she was

providing it.

On January 23, 2018, father filed an emergency motion for temporary

custody of the child and requested an order for a psychiatric assessment of mother.

Father expressed concern for psychological harm being caused to the child by

mother’s pattern of conduct. The trial court held an emergency custody hearing on

February 8, 2018. The court removed the child from mother’s custody and placed

the child in father’s custody with visitation given to mother. On March 8, 2018,

mother filed a motion for reconsideration.

On September 13, 2018, the GAL filed a supplemental report. The

GAL indicated that the child had adjusted well in father’s home and appeared happy

and bonded to everyone in the home. She discussed additional details of the case.

The GAL again recommended that father be designated as the residential parent and

legal custodian of the child, but modified the recommendation that mother be given standard parenting time. The GAL expressed concern regarding mother’s continued

allegations against father. She recommended mother receive parenting time for six

hours each week and that mother engage in individual counseling to address her fears

and insecurities regarding father and how her reactions have impacted her child. The

GAL also recommended that there be a gradual increase in mother’s parenting time

to the court’s standard parenting time order, including overnights.

The trial court held a hearing on father’s application and on mother’s

motion for reconsideration on September 20, 2018, and October 4, 2018. Various

witnesses testified in the matter. The trial court issued a judgment entry, journalized

on November 15, 2018, that designated father as the residential parent and legal

custodian of the child and provided mother visitation every other weekend, with

provisions for an increase with overnights and eventual adoption of the court’s

standard order of visitation upon recommendation of the GAL. The trial court found

in part as follows:

The Child has been in the care and custody of Father for some time. A change was made and the child taken from Mother when it appeared to the GAL and the Court that the parenting procedure of the Mother and Mother’s actions were not in the best interests of the child.

Since the child has been in the care and custody of the Father, things have been going well and it is the opinion of the GAL and the counsellor that the child now enjoys a life of considerably less stress.

Mother has appealed the trial court’s decision. She raises four

assignments of error for our review.

Law and Analysis Under her first assignment of error, mother claims the trial court

abused its discretion when it awarded father emergency temporary custody pursuant

to Juv.R. 13. She claims the facts that existed did not warrant the immediate removal

of the child from her custody. She further argues that she was not represented by

counsel at the time of the hearing and was not given a full hearing.

We note that mother has not filed a transcript of the hearing on

father’s motion for emergency temporary custody, nor has she submitted any

statement of evidence as permitted under Civ.R. 9(C). Although mother claims no

hearing occurred, the record contains references to an emergency custody hearing

held on February 8, 2018. The juvenile court was permitted to conduct this hearing

in an informal manner. See Juv.R. 27; R.C. 2151.35(A)(1).

Furthermore, the record reflects that mother was represented by

counsel through much of the trial court proceedings, yet she did not raise these

arguments in her motion for reconsideration or at the time of the hearing on father’s

application and her motion for reconsideration. Because mother did not raise these

objections with the trial court, she has waived her argument on appeal. See In re

Z.P., 2017-Ohio-7397, 96 N.E.3d 1115, ¶ 23 (8th Dist.); In re Hammons, 3d Dist.

Defiance Nos. 4-08-04, 4-08-05, and 4-08-06, 2008-Ohio-3598, ¶ 24. Additionally,

mother has not argued, nor does the record demonstrate, that this is a case in which

exceptional circumstances require the application of the plain-error doctrine to

prevent a manifest miscarriage of justice. Accordingly, mother’s first assignment of

error is overruled. Under her second assignment of error, mother claims the trial court

abused its discretion when it ruled in favor of the GAL’s recommendation because

she claims the GAL did not complete an appropriate and thorough investigation.

Although mother disagrees with the GAL’s recommendations and challenges the

investigation that was made, the record reflects that the GAL conducted an extensive

and appropriate investigation in this matter and made an informed recommendation

regarding the best interest of the child.

Although mother questions compliance with certain standards

outlined in Sup.R. 48(D), the rule has been interpreted as a general guideline for the

conduct of the courts that does not create substantive rights. In re K.W., 2018-Ohio-

1933, 111 N.E.3d 368, ¶ 100 (4th Dist.). The GAL is responsible for providing the

court “with relevant information and an informed recommendation regarding the

child’s best interest.” Sup.R. 48(D). Here, the GAL provided a detailed report and

recommendation, as well as a supplemental report and recommendation for the trial

court’s consideration. The GAL met with mother and father, members of the parents’

families and households, and the child. The GAL also spoke to the child’s

pediatrician, the child’s counselor, social workers involved in the case, and the

detective who investigated the allegations that were made. The GAL reviewed the

case file, including reports and other documents in the matter. The GAL also

participated in the proceedings and was available for cross-examination. Upon the

GAL’s investigation and considering the statutory factors used to determine the best interests of children, the GAL recommended it was in the best interest of the child

for father to be designated the residential parent and legal custodian of the child.

The trial court was not bound by the GAL’s recommendations. In re

A.B.M., 8th Dist. Cuyahoga No. 107556, 2019-Ohio-3183, ¶ 49. As expressed in the

trial court’s judgment entry, the court reached its decision “[a]fter considering the

testimony of the parties and witnesses, the argument of counsel and their written

closing arguments, the Reports from the GAL, and the Diagnostic Clinic, and the

various ORC statutory factors.”

Upon the record before us, we are unable to find that the trial court

abused its discretion in considering the GAL’s testimony and recommendations. The

second assignment of error is overruled.

Under her third assignment of error, mother claims the trial court

abused its discretion when it awarded father sole legal custody and awarded mother

only six-hour visits biweekly. She claims there was no evidence to support a finding

that mother was unsuitable to parent the child and there was testimony establishing

that mother is an appropriate and suitable parent. She again asserts that several

witnesses in the case, as well as the trial court, were biased against mother. She

claims that there is no factual evidence that supports awarding full custody to father

and mother receiving six-hour visits every other week, or that this would be in the

best interest of the child.

Decisions concerning the allocation of parental rights and

responsibilities are within the sound discretion of the trial court. In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 17. Ordinarily, an appellate court will

not find an abuse of discretion when there is competent, credible evidence to support

the trial court’s custody decision. Id. at ¶ 18, citing In re L.S., 152 Ohio App.3d 500,

2003-Ohio-2045, 788 N.E.2d 696 (8th Dist.).

R.C. 2151.23(A)(2) grants juvenile courts jurisdiction “to determine

the custody of any child not a ward of another court of this state.” Pursuant to R.C.

2151.23(F)(1), the best interest standard set forth in R.C. 3109.04 applies in making

the determination. In determining the best interest of a child in custody matters, the

trial court is to consider all relevant factors, including, but not limited to those set

forth under R.C. 3109.04(F)(1). Nicely v. Weaver, 5th Dist. Stark No. 2012 CA

00134, 2013-Ohio-1621, ¶ 29. However, there is no requirement that a trial court

separately address each factor enumerated in R.C. 3109.04(F)(1) and absent

evidence to the contrary, an appellate court will presume the trial court considered

all of the relevant “best interest” factors. Id.

In In re D.J.R., 8th Dist. Cuyahoga No. 96792, 2012-Ohio-698, this

court reviewed a decision that granted a father’s application to determine custody of

his child in a case involving comparable circumstances. In that case, the mother had

lodged many allegations that were determined to be unsubstantiated and she had

thwarted father’s visitation with his child. Id. at ¶ 20. Also, the guardian ad litem

opined that the mother appeared to be in need of counseling and the child was doing

well living with his father, who appeared better able to care for him. Id. The decision

awarding custody of the child to the father was upheld. Id. In this case, there was evidence presented that showed mother made

continued allegations against father that were found unsubstantiated. Also, there

were inconsistencies in her accounts. Mother was reportedly subjecting the child to

physical examinations for signs of abuse after every visit with father. Both the GAL

and the trial court believed that the parenting procedure of mother and mother’s

actions were not in the best interest of the child. There was evidence that the child

was adjusted to father’s home, was not expressing any fear, and was doing well while

living with father. The GAL investigated the issues and made a recommendation as

to the best interest of the child. The GAL recommended that mother was in need of

counseling, and the trial court’s order affords mother an opportunity to obtain a

gradual increase in visitation. The trial court considered the recommendation in

addition to other testimony and evidence that was presented, as well as the

arguments of counsel. The trial court stated in its judgment entry that it had

considered the various statutory factors.

Upon our review in this case, we conclude that the trial court did not

abuse its discretion in awarding legal custody of the child to father or with regard to

limiting mother’s visitation. The record contains competent, credible evidence to

support the trial court’s determination. Although mother has a meaningful and

loving relationship with her child, ultimately the paramount consideration in

allocating parental rights and responsibilities is the best interest of the child. See

Jillian F. v. Curtis C., 5th Dist. Tuscarawas No. 2018 AP 04 0016, 2018-Ohio-5373, ¶ 29. The trial court’s decision affords mother the opportunity to gradually achieve

an increase in visitation. Mother’s third assignment of error is overruled.

Under her fourth assignment of error, mother claims the trial court

abused its discretion when it failed to timely produce the recordings from the first

day of trial. Mother also claims the trial court failed to timely rule on pending

motions before the court.

We recognize that Ohio law acknowledges a principle of urgency in

resolving child-custody cases. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-

Ohio-5477, 3 N.E.3d 1184, ¶ 25. Although a juvenile court should resolve legal

custody proceedings expeditiously, the court retains control over its own docket and

appellant has not shown any prejudice. Mother’s fourth assignment of error is

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and RAYMOND C. HEADEN, J., CONCUR