[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
