[Cite as Thompson v. Downing, 2013-Ohio-1051.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
EMILY ELISABETH THOMPSON, ET AL. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : DARREN RAY DOWNING : Case No. 2011 AP 10 0038 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2008 PA 00256
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 18, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
DAN GUINN MARK EDWARD STONE 118 West High Avenue 3836 Dayton-Xenia Road New Philadelphia, OH 44663 Beavercreek, OH 45432 Tuscarawas County, Case No. 2011 AP 10 0038 2
Farmer, J.
{¶1} Appellant, Emily Thompson, and appellee, Darren Downing, have a child
together, A.T., born April 29, 2008. The parties were never married. Since 2011,
appellee has had temporary custody of the child.
{¶2} On May 19, 2011, appellee filed a motion for change of custody. On June
14, 2011, the child's maternal grandmother, appellant, Gayle Thompson, filed a motion
for custody. Hearings before a magistrate and the trial court were held on July 22 and
26, 2011 and September 1, 2011. By judgment entry filed September 2, 2011, the trial
court granted appellee legal custody of the child.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANTS WERE DENIED DUE PROCESS OF LAW AND THE
RIGHT TO A FAIR TRIAL WHERE THE COURT EXHIBITED BIAS TOWARDS THEM
THROUGHOUT THE PROCEEDINGS."
II
{¶5} "THE COURT ABUSED ITS DISCRETION IN AWARDING THE
APPELLEE CUSTODY OF THE MINOR CHILD."
{¶6} Appellants claim they were denied a fair hearing on the issue of legal
custody because the magistrate at the July 22, 2011 exhibited bias and shaped the
case in favor of appellee. We disagree. Tuscarawas County, Case No. 2011 AP 10 0038 3
{¶7} First, we note a request to the Chief Justice of the Supreme Court of Ohio
to recuse the trial court was never made. See, Section 5(C) of Article IV of the Ohio
Constitution. Second, the testimony taken during the July 22, 2011 hearing never
resulted in a final order. In fact, based upon various motions filed by appellant Gayle
Thompson and her boyfriend, Richard Lanzer, on July 25 and 26, 2011, the magistrate
stayed the proceedings on July 29, 2011. By judgment entry filed August 5, 2011, the
trial court ruled on the various motions and set a trial court hearing on the issue of
custody for September 1, 2011, thereby relieving the magistrate from ruling. The trial
court gave each party a transcript of the July 22, 2011 hearing and considered the
testimony therein. September 1, 2011 T. at 1. During the September 1, 2011 hearing,
appellant Gayle Thompson and a witness, Tommy Cannon, an investigator for
Tuscarawas County Job and Family Services, both testified.
{¶8} The thrust of appellants' claims of bias during the July 22, 2011 hearing
centered around the mode of questioning. Appellants claim the magistrate assisted
appellee by asking additional questions and shaping the case in his favor and did not
assist them.
{¶9} Upon review of the questioning in the transcript as argued by appellants,
we find no showing of bias. In fact, one exchange between appellant Gayle Thompson
and the magistrate illustrates an attempt by the magistrate to explain the rules of
evidence and to assist her in her testimony. July 22, 2011 T. at 39-40.
{¶10} During appellant Gayle Thompson's testimony, the magistrate expressed
concern over "scream therapy" Mr. Lanzer used with the child. Id. at 55-56. However, Tuscarawas County, Case No. 2011 AP 10 0038 4
the magistrate permitted appellant to proceed into a long discourse on the care and
treatment of the child in her home.
{¶11} After appellant Gayle Thompson's testimony about "scream therapy" and
its value, the magistrate questioned Mr. Lanzer about the therapy he performs and his
qualifications. Id. at 90-92. As a result of the testimony regarding "scream therapy," the
magistrate ordered supervised visitation and Mr. Lanzer proceeded to interrupt and
argue with the magistrate. Id. at 92-93.
{¶12} Upon review, we fail to find that any of the dialogue between the
magistrate and appellant Gayle Thompson and her witnesses had any substantial
outcome on the trial court's final order.
{¶13} Appellants also argue the trial court was biased in setting down ground
rules at the beginning of the September 1, 2011 hearing at 3:
COURT: Okay, just, Ma'am, here's, we're going to lay down some ground
rules, okay? Now you and I, um, as we go on, you and I aren't going to
argue about anything, okay? You're not going to interrupt me when I'm
speaking, you're going to let me finish. I'm going to let you present
whatever evidence you want to present today, um, but you need to
understand that when I indicate a decision about something you're going
to have to accept that. Your recourse for any legal decision you do not
like lies in your ability to file an appeal with an appellate court, and you're
certainly free to do that, and I certainly would encourage you to take
advantage, uh, of that appellate process on your behalf. Now listen to Tuscarawas County, Case No. 2011 AP 10 0038 5
what I'm saying, okay? That's what you have to do to get a transcript. If
you do no longer want the transcript that's fine too, but you're going to
have to indicate that in writing, alright? Do you understand what I'm
saying about the transcript?
{¶14} Upon review, we find the trial court's statements are consistent with
Evid.R. 611(A) which states, "[t]he court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment."
{¶15} Assignment of Error I is denied.
{¶16} Appellants claim the trial court erred in awarding appellee legal custody of
the child. We disagree.
{¶17} During the July 22, 2011 hearing at 6, appellant Emily Thompson
stipulated to a change of circumstances and the hearing proceeded to best interests of
the child.
{¶18} The trial court had before it two motions for change of custody, one filed
by the child's natural father, appellee herein, and the other filed by the child's maternal
grandmother, appellant Gayle Thompson. In In re Perales, 52 Ohio St.2d 89 (1977),
syllabus, the Supreme Court of Ohio held the following: Tuscarawas County, Case No. 2011 AP 10 0038 6
In an R.C. 2151.23(A)(2) child custody proceeding between a
parent and a nonparent, the hearing officer may not award custody to the
nonparent without first making a finding of parental unsuitability that is,
without first determining that a preponderance of the evidence shows that
the parent abandoned the child, that the parent contractually relinquished
custody of the child, that the parent has become totally incapable of
supporting or caring for the child, or that an award of custody to the parent
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[Cite as Thompson v. Downing, 2013-Ohio-1051.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
EMILY ELISABETH THOMPSON, ET AL. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : DARREN RAY DOWNING : Case No. 2011 AP 10 0038 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2008 PA 00256
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 18, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
DAN GUINN MARK EDWARD STONE 118 West High Avenue 3836 Dayton-Xenia Road New Philadelphia, OH 44663 Beavercreek, OH 45432 Tuscarawas County, Case No. 2011 AP 10 0038 2
Farmer, J.
{¶1} Appellant, Emily Thompson, and appellee, Darren Downing, have a child
together, A.T., born April 29, 2008. The parties were never married. Since 2011,
appellee has had temporary custody of the child.
{¶2} On May 19, 2011, appellee filed a motion for change of custody. On June
14, 2011, the child's maternal grandmother, appellant, Gayle Thompson, filed a motion
for custody. Hearings before a magistrate and the trial court were held on July 22 and
26, 2011 and September 1, 2011. By judgment entry filed September 2, 2011, the trial
court granted appellee legal custody of the child.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANTS WERE DENIED DUE PROCESS OF LAW AND THE
RIGHT TO A FAIR TRIAL WHERE THE COURT EXHIBITED BIAS TOWARDS THEM
THROUGHOUT THE PROCEEDINGS."
II
{¶5} "THE COURT ABUSED ITS DISCRETION IN AWARDING THE
APPELLEE CUSTODY OF THE MINOR CHILD."
{¶6} Appellants claim they were denied a fair hearing on the issue of legal
custody because the magistrate at the July 22, 2011 exhibited bias and shaped the
case in favor of appellee. We disagree. Tuscarawas County, Case No. 2011 AP 10 0038 3
{¶7} First, we note a request to the Chief Justice of the Supreme Court of Ohio
to recuse the trial court was never made. See, Section 5(C) of Article IV of the Ohio
Constitution. Second, the testimony taken during the July 22, 2011 hearing never
resulted in a final order. In fact, based upon various motions filed by appellant Gayle
Thompson and her boyfriend, Richard Lanzer, on July 25 and 26, 2011, the magistrate
stayed the proceedings on July 29, 2011. By judgment entry filed August 5, 2011, the
trial court ruled on the various motions and set a trial court hearing on the issue of
custody for September 1, 2011, thereby relieving the magistrate from ruling. The trial
court gave each party a transcript of the July 22, 2011 hearing and considered the
testimony therein. September 1, 2011 T. at 1. During the September 1, 2011 hearing,
appellant Gayle Thompson and a witness, Tommy Cannon, an investigator for
Tuscarawas County Job and Family Services, both testified.
{¶8} The thrust of appellants' claims of bias during the July 22, 2011 hearing
centered around the mode of questioning. Appellants claim the magistrate assisted
appellee by asking additional questions and shaping the case in his favor and did not
assist them.
{¶9} Upon review of the questioning in the transcript as argued by appellants,
we find no showing of bias. In fact, one exchange between appellant Gayle Thompson
and the magistrate illustrates an attempt by the magistrate to explain the rules of
evidence and to assist her in her testimony. July 22, 2011 T. at 39-40.
{¶10} During appellant Gayle Thompson's testimony, the magistrate expressed
concern over "scream therapy" Mr. Lanzer used with the child. Id. at 55-56. However, Tuscarawas County, Case No. 2011 AP 10 0038 4
the magistrate permitted appellant to proceed into a long discourse on the care and
treatment of the child in her home.
{¶11} After appellant Gayle Thompson's testimony about "scream therapy" and
its value, the magistrate questioned Mr. Lanzer about the therapy he performs and his
qualifications. Id. at 90-92. As a result of the testimony regarding "scream therapy," the
magistrate ordered supervised visitation and Mr. Lanzer proceeded to interrupt and
argue with the magistrate. Id. at 92-93.
{¶12} Upon review, we fail to find that any of the dialogue between the
magistrate and appellant Gayle Thompson and her witnesses had any substantial
outcome on the trial court's final order.
{¶13} Appellants also argue the trial court was biased in setting down ground
rules at the beginning of the September 1, 2011 hearing at 3:
COURT: Okay, just, Ma'am, here's, we're going to lay down some ground
rules, okay? Now you and I, um, as we go on, you and I aren't going to
argue about anything, okay? You're not going to interrupt me when I'm
speaking, you're going to let me finish. I'm going to let you present
whatever evidence you want to present today, um, but you need to
understand that when I indicate a decision about something you're going
to have to accept that. Your recourse for any legal decision you do not
like lies in your ability to file an appeal with an appellate court, and you're
certainly free to do that, and I certainly would encourage you to take
advantage, uh, of that appellate process on your behalf. Now listen to Tuscarawas County, Case No. 2011 AP 10 0038 5
what I'm saying, okay? That's what you have to do to get a transcript. If
you do no longer want the transcript that's fine too, but you're going to
have to indicate that in writing, alright? Do you understand what I'm
saying about the transcript?
{¶14} Upon review, we find the trial court's statements are consistent with
Evid.R. 611(A) which states, "[t]he court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment."
{¶15} Assignment of Error I is denied.
{¶16} Appellants claim the trial court erred in awarding appellee legal custody of
the child. We disagree.
{¶17} During the July 22, 2011 hearing at 6, appellant Emily Thompson
stipulated to a change of circumstances and the hearing proceeded to best interests of
the child.
{¶18} The trial court had before it two motions for change of custody, one filed
by the child's natural father, appellee herein, and the other filed by the child's maternal
grandmother, appellant Gayle Thompson. In In re Perales, 52 Ohio St.2d 89 (1977),
syllabus, the Supreme Court of Ohio held the following: Tuscarawas County, Case No. 2011 AP 10 0038 6
In an R.C. 2151.23(A)(2) child custody proceeding between a
parent and a nonparent, the hearing officer may not award custody to the
nonparent without first making a finding of parental unsuitability that is,
without first determining that a preponderance of the evidence shows that
the parent abandoned the child, that the parent contractually relinquished
custody of the child, that the parent has become totally incapable of
supporting or caring for the child, or that an award of custody to the parent
would be detrimental to the child.
{¶19} The choice of taking custody away from a natural parent in favor of a non-
parent, albeit a grandmother, has a very high bar. The issue of unsuitability of the
natural parent is an extreme burden.
{¶20} In this case, the trial court was faced with two different and divergent
stories by appellant Gayle Thompson and appellee. The claims of abuse of the child at
the hands of appellee were investigated by Tommy Cannon of Tuscarawas County Job
and Family Services and were found to be unsubstantiated. September 1, 2011 T. at
25-27. There were no concerns about appellee being the custodian of the child. Id. at
27.
{¶21} Undoubtedly, appellant Gayle Thompson is a caring and loving
grandmother who in her own mind has the best interests of the child at heart. She
explained at length the loving and caring relationship she has with the child, who she
calls her "heartbeat." July 22, 2011 T. at 54. However, appellee also presented
testimony via his brother and father that he has a good and loving relationship with his Tuscarawas County, Case No. 2011 AP 10 0038 7
child. Id. at 10-11, 14-15. Appellee's interaction with his child and his disciplining of his
child are appropriate. Id. at 15-18.
{¶22} Each party presented arguments that the child was aggressive after being
with the other. However, Mr. Lanzer, appellant Gayle Thompson's live-in boyfriend,
claims he is a practitioner of holistic medicine and is a "Nemenhah Medicine Man by
adoption." Id. at 57; Petitions filed August 17, 2011. He uses "scream therapy" to
adjust any problem areas perceived by him. July 22, 2011 T. at 90-93.
{¶23} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,
certiorari denied (1990), 498 U.S. 881. The trier of fact "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 v. Flickinger, 77 Ohio St.3d 415, 418, 1997-
Ohio-260.
{¶24} The guardian ad litem filed a written report on September 1, 2012. The
report is minimal as to appellant Gayle Thompson as she refused to cooperate once
she was informed she could not record the conversation. The guardian noted
appellee's parenting abilities would be limited given that he was in the National Guard
and was scheduled to be deployed overseas for at least one year. The guardian also
noted appellee appears to be a very stable person although his lifestyle would suggest
otherwise (parenting three children with three different mothers). The guardian
recommended the paternal grandparents "are the best custodians at this time and this
can and has been accomplished by the Power of Attorney." Tuscarawas County, Case No. 2011 AP 10 0038 8
{¶25} Upon review, we find the trial court's decision as to the best interests of
the child is substantiated by the record, and the failure to continue custody with appellee
would have a detrimental effect on the child.
{¶26} Assignment of Error II is denied.
{¶27} The judgment of the Court of Common Pleas of Tuscarawas County,
Ohio, Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer______________
s/ W. Scott Gwin ________________
s/ William B. Hoffman____________
JUDGES
SGF/sg 305 [Cite as Thompson v. Downing, 2013-Ohio-1051.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EMILY ELISABETH THOMPSON, ET AL. : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : DARREN RAY DOWNING : : Defendant-Appellee : CASE NO. 2011 AP 10 0038
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division
is affirmed. Costs to appellants.