In re A.D.B. , 2016 Ohio 7186 ( 2016 )

[Cite as In re A.D.B., 2016-Ohio-7186.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: A.D.B. :
CASE NO. CA2015-10-180
:
OPINION
: 10/3/2016
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JS2014-1056
Douglas Songer, 1029 Clinton Avenue, Hamilton, Ohio 45015, appellant, pro se
Moser Law, LLC, Donald Moser, 1040 Symmes Road, Fairfield, Ohio 45014, for appellee
S. POWELL, J.
{¶ 1} Appellant, a grandfather ("Grandfather"), appeals from the decision of the
Butler County Court of Common Pleas, Juvenile Division, denying his request for legal
custody of A.D.B., his granddaughter. For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} Grandfather is the paternal grandfather of A.D.B., born December 7, 2010.
A.D.B.'s mother ("Mother") and father ("Father") were never married. After beginning their
relationship in 2009, Mother and Father's relationship ended in June of 2012.
{¶ 3} On November 29, 2012, Grandfather filed a motion for an emergency ex parte
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hearing and a motion for custody of A.D.B. after A.D.B. sustained an injury to her neck while
in Mother's care. That same day, a magistrate granted Grandfather's request for an ex parte
hearing and placed A.D.B. in the temporary custody of Father. The matter was later resolved
after the trial court accepted a mediation agreement between Mother and Father that
restored Mother as the residential parent and legal custodian of A.D.B. Grandfather then
voluntarily dismissed his complaint seeking legal custody of A.D.B. on January 7, 2013.
{¶ 4} Approximately six months later, on July 9, 2013, Grandfather filed another
complaint seeking legal custody of A.D.B. As part of this complaint, Grandfather alleged
Mother had "engaged in the use of illegal drugs and substances, including, but not limited to
marijuana while the minor child was present." Grandfather also alleged that Mother's
apartment had recently been "raided by local police on belief that the residents were
engaging in illegal drug use and substance abuse." Grandfather later amended his complaint
to allege the police had actually raided A.D.B.'s maternal grandmother's residence.1
Grandfather voluntarily dismissed this complaint on March 27, 2014.
{¶ 5} Approximately seven months later, on October 22, 2014, Grandfather filed yet
another complaint seeking legal custody of A.D.B. As part of his complaint, Grandfather
again alleged that Mother had "engaged in the use of illegal drugs and substances, including,
but not limited to, marijuana while in the presence of the minor child." Arguing his most
recent complaint seeking legal custody of A.D.B. was frivolous, Mother filed a motion
requesting the trial court order Grandfather pay her attorney fees. In response, Grandfather
filed a motion requesting Mother be drug tested.
{¶ 6} A two-day hearing on these matters was heard on September 2 and September
1. The record indicates that the Fairfield Police Department conducted a search of maternal grandmother's
residence after receiving an anonymous tip that she was dealing drugs. It is undisputed that Grandfather made
the anonymous tip that led to the issuance of the search warrant. No charges were ever filed as a result of the
search of maternal grandmother's residence. According to maternal grandmother, Grandfather made the
anonymous tip as a form of retaliation.
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9, 2015. At this hearing, Grandfather called several witnesses to testify as to Mother's
alleged prior drug use, as well as the investigation into the incident where A.D.B. sustained
an injury to her neck. A report from Cincinnati Children's Hospital admitted into evidence
classified the injury as an "[a]brasion or friction burn of neck without infection" that could be
treated with cold water and antibiotic ointment. Mother, the only witness to the alleged
incident, testified that the injury occurred after A.D.B. "put a hangar over her head and was
dancing to Dora with it and kind of moved it back and forth on her own neck." No criminal
charges were ever brought against Mother regarding this incident as the investigation into
Grandfather's allegations of abuse were found to be unsubstantiated.
{¶ 7} Following this hearing, on September 16, 2015, the trial court issued a decision
denying Grandfather's complaint for legal custody of A.D.B. In so holding, the trial court
determined that Grandfather failed to prove the injury to A.D.B.'s neck "was the result of any
cause other than that which was concluded by the staff at Children's Hospital as well as local
law enforcement." The trial court also determined that Grandfather had "failed to present any
credible evidence as to the Mother's unsuitability." Instead, the trial court found
Grandfather's witnesses actually testified that "the Mother and the minor child have a positive
relationship, a close emotional bond, and that the Mother takes good care of the minor child."
The trial court further denied Grandfather's request to have Mother drug tested and ordered
Grandfather to pay Mother's attorney fees upon finding his most recent complaint seeking
custody of A.D.B. was frivolous.
{¶ 8} Grandfather now appeals from the trial court's decision, raising five
assignments of error for review.
Standard of Review
{¶ 9} Trial courts enjoy broad discretion in custody proceedings. In re E.L.C., 12th
Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 16. As a result, the standard of review
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in custody decisions is whether the trial court abused its discretion. C.D. v. D.L., 12th Dist.
Fayette No. CA2006-09-037, 2007-Ohio-2559, ¶ 14. An abuse of discretion implies that the
trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219 (1983). When applying the abuse of discretion standard,
a reviewing court must not substitute its judgment for that of the trial court. Morrison v.
Robinson, 12th Dist. Fayette No. CA2012-06-019, 2013-Ohio-453, ¶ 26.
{¶ 10} In determining whether a modification of custody is warranted, the trial court
must generally follow R.C. 3109.04(E)(1)(a). Pursuant to that statute:
The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds,
based on facts that have arisen since the prior decree or that
were unknown to the court at the time of the prior decree, that a
change has occurred in the circumstances of the child, the child's
residential parent, or either of the parents subject to a shared
parenting decree, and that the modification is necessary to serve
the best interest of the child.
{¶ 11} Although R.C. 3109.04 does not provide a definition of the phrase "change in
circumstances," 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." Preece v.
Stern, 12th Dist. Madison No. CA2009-09-019, 2010-Ohio-857, ¶ 10. Thus, in order to
warrant the abrupt disruption of the child's home life, the change in circumstances must be
one "of substance, not a slight or inconsequential change." Davis v. Flickinger, 77 Ohio St. 3d
415, 418 (1997).
{¶ 12} If a change in circumstances has occurred, "the trial court can modify custody
only if the modification is necessary to serve the best interest of the child." Hunter-June v.
Pitts, 12th Dist. Butler No. CA2013-09-178, 2014-Ohio-2473, ¶ 14. In determining the best
interest of a child, the trial court is required to consider all relevant factors listed in R.C.
3109.04(F)(1). These factors include, but are not limited to, the wishes of the child's parents
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regarding the child's care; the child's interaction and interrelationship with the child's parents,
siblings, and any other person who may significantly affect the child's best interest; the child's
adjustment to the child's home, school, and community; and the mental and physical health
of all persons involved. R.C. 3109.04(F)(1)(a), (c), (d), and (e).
{¶ 13} However, as this court recently stated, "the best interest standard in a child
custody proceeding between a parent and a nonparent applies only after a threshold
determination that the child's parents are deemed unsuitable." In re J.T.S., 12th Dist. Preble
No. CA2014-09-009, 2015-Ohio-364, ¶ 12, citing In re Perales, 52 Ohio St. 2d 89 (1977).
Thus, if a parent has custody of his or her child, and no custody award has previously been
made to a nonparent, "a custody dispute with a nonparent is determined under the Perales
standard." Purvis v. Hazelbaker, 181 Ohio App. 3d 167, 2009-Ohio-765, ¶ 10 (4th Dist.). This
requires the trial court to find by a preponderance of the evidence that the parent is
unsuitable in "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."
Robinson, 2013-Ohio-453 at ¶ 10. Nonparents seeking custody have the burden of
demonstrating a parent's unsuitability. In re D.C.J., 8th Dist. Cuyahoga Nos. 97681 and
97776, 2012-Ohio-4154, ¶ 57.
Grandfather's Assignments of Error
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR
DRUG TESTING.
{¶ 16} In his first assignment of error, Grandfather argues the trial court erred by
denying his motion to have Mother drug tested. In support of this claim, Grandfather alleges
that there is reason to believe Mother uses drugs based on "numerous examples with clear
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statements of evidence that [she] was involved in drug usage." However, while the record
does contain some testimony to support Grandfather's claims, there was also testimony that
Grandfather's allegations were either untrue or were in reference to events that may have
occurred many months if not years prior. This includes both affidavits attached to
Grandfather's motion requesting Mother be drug tested, documents that were dated and
signed over two years earlier on February 2, 2013 and May 10, 2013, respectively.
{¶ 17} It is well-established that the trial court, as the trier of fact, is free to believe all,
part, or none of the testimony of each witness. In re S.C.T., 12th Dist. Butler No. CA2004-
04-095, 2005-Ohio-2498, ¶ 24. That is because the trial judge is best able to view the
witnesses and observe their demeanor and use these observations in weighing the credibility
of the proffered testimony. Kohus v. Daly, 12th Dist. Clermont No. CA2015-05-042, 2016-
Ohio-73, ¶ 43. However, even assuming the trial court had accepted the testimony regarding
Mother's prior drug use as true, just as the trial court found, "there was not sufficient evidence
of current substance abuse on the part of the Mother to justify the expense associated
therewith." We find no error in the trial court's decision. In so holding, we note that Mother
explicitly denied drinking alcohol or smoking marijuana when A.D.B. was present. Mother
also denied Grandfather's allegations that she had taken Xanax and driven drunk while
A.D.B. was in the car with her. The trial court clearly found this testimony credible.
Accordingly, Grandfather's first assignment of error is overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT ERRED IN RELEASING THE FAIRFIELD POLICE CHIEF
MICHAEL DICKEY FROM APPEARING ON SEPTEMBER 9TH, 2015.
{¶ 20} In his second assignment of error, Grandfather argues the trial court erred by
releasing Fairfield Police Chief Michael Dickey from appearing as a witnesses on the second
day of the two-day hearing conducted on September 9, 2015. Yet, the record makes clear
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that Chief Dickey did appear and testify as part of Grandfather's case-in-chief on September
2, 2015, the first day of the two-day hearing. The record also indicates that when asked by
the trial court if he was going to conclude his case that day, Grandfather stated "Yes,
ma'am." Grandfather then notified the trial court that he would not be calling any additional
witnesses to testify besides Father.
{¶ 21} After a thorough review of the record, we fail to see how the trial court erred in
releasing Chief Dickey as a witness. In so holding, we note that Grandfather only provided
this court with a partial transcript of the two-day hearing before the trial court, which did not
include Chief Dickey's testimony, thereby limiting our review of this issue on appeal. "Absent
a full trial transcript, this court must presume the validity of the trial court's determinations[.]"
Bunnell Elec. Inc. v. Ameriwash, 12th Dist. Warren No. CA2004-01-009, 2005-Ohio-2502, ¶
9. This court is also unable to evaluate Grandfather's claim that he was not given sufficient
time to review Chief Dickey's investigatory file. Therefore, Grandfather's second assignment
of error is overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE TRIAL COURT ERRED IN NOT ALLOWING DANIEL COMPSTON TO
DISCUSS HIS INTERVIEW WITH DR. SHAPIRO CONCERNING THE PHOTOS OF THE
INJURIES TO MINOR CHILD [A.D.B.].
{¶ 24} In his third assignment of error, Grandfather argues the trial court erred by
precluding his witness, Daniel Compston, a former investigator with Butler County Children's
Services, from testifying as to statements made by Dr. Robert Shapiro, a physician with the
Cincinnati Children's Hospital, during an interview Compston conducted with Dr. Shapiro
regarding the injuries A.D.B. sustained to her neck. The statements Dr. Shapiro may have
made to Compston during this interview are clearly hearsay and were properly excluded by
the trial court. Therefore, Grandfather's third assignment of error is overruled.
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{¶ 25} Assignment of Error No. 4:
{¶ 26} THE TRIAL COURT ERRED BY IGNORING THE CLEAR AND CONCRETE
EVIDENCE AND/OR TESTIMONY AS PERTAINS TO THE UNFIT CHARACTER OF THE
DEFENDANT-APPELLEE.
{¶ 27} In his fourth assignment of error, Grandfather argues the trial court's decision
denying his complaint for legal custody of A.D.B. was against the manifest weight of the
evidence. We disagree.
{¶ 28} As it relates to a manifest weight of the evidence challenge, "a reviewing court
must determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost
his way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered." In re W.A., 5th Dist. Muskingum No. CT2013-0002, 2013-
Ohio-3444, ¶ 19. In making this determination, "'an appellate court is guided by the
presumption that the trial court's findings were correct.'" In re M.D., 12th Dist. Butler No.
CA2006-09-223, 2007-Ohio-4646, ¶ 28, quoting In re Peterson, 10th Dist. Franklin. No.
01AP-381, 2001 WL 988013, *3 (Aug. 28, 2001). Thus, "[w]here an award of custody is
supported by a substantial amount of credible and competent evidence, such an award will
not be reversed as being against the weight of the evidence by a reviewing court." In re T.M.,
12th Dist. Butler No. CA2007-01-019, 2007-Ohio-6034, ¶ 28, citing Flickinger, 77 Ohio St. 3d
at 418.
{¶ 29} As noted above, as part of its decision denying Grandfather's complaint for
legal custody, the trial court determined that Grandfather failed to prove the injury A.D.B.
sustained to her neck "was the result of any cause other than that which was concluded by
the staff at Children's Hospital as well as local law enforcement." The trial court also
determined that Grandfather had "failed to present any credible evidence as to the Mother's
unsuitability." Instead, the trial court found Grandfather's own witnesses actually testified
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"the Mother and the minor child have a positive relationship, a close emotional bond, and that
the Mother takes good care of the minor child." Again, Grandfather only provided this court
with a partial transcript of the two-day hearing before the trial court. Nevertheless, even
when reviewing these portions of the record that Grandfather deemed supportive of his
claims, we find no error in the trial court's decision.
{¶ 30} As a nonparent, Grandfather had the burden to prove by a preponderance of
the evidence that Mother was an unsuitable parent to A.D.B. However, although Grandfather
levied a variety of accusations against Mother in an attempt to call into question her fitness
as a mother, the trial court determined that none of Grandfather's accusations were credible.
Again, as the trier of fact, the trial court was free to believe all, part, or none of the testimony
of each witness. Moreover, just as the trial court found, Grandfather's own witnesses actually
testified that Mother was a suitable parent to A.D.B. This included testimony that Mother was
"good to [A.D.B.]" and that Mother and A.D.B. "love each other very much." Father also
testified that Mother was a "a loving caring mother" and that he did not believe Mother
caused the injury to A.D.B.'s neck. The trial court's decision was not against the manifest
weight of the evidence.2 Therefore, Grandfather's fourth assignment of error is overruled.
{¶ 31} Assignment of Error No. 5:
{¶ 32} THE TRIAL COURT ERRED IN GRANTING THE APPELLEE ATTORNEY
FEES.
{¶ 33} In his fifth assignment of error, Grandfather argues the trial court erred by
granting Mother's motion for attorney fees upon finding his most recent complaint seeking
custody of A.D.B. was frivolous. We disagree.
2. It should be noted, even if the trial court had found credible Grandfather's claim that Mother was an unsuitable
parent, that would not have automatically entitled Grandfather to custody of A.D.B as he now suggests. Rather,
the trial court would still have to find that granting custody of A.D.B. to Grandfather was in the child's best
interest.
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{¶ 34} R.C. 2323.51(B)(1) provides that a court may award costs, reasonable attorney
fees, and other reasonable expenses incurred in connection with a civil action to a party
adversely affected by frivolous conduct. As relevant here, pursuant to R.C. 2323.51(A)(2)(i)
and (iii), the term "frivolous conduct" includes conduct that satisfies either of the following:
(i) It obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another
improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of litigation.
***
(iii) The conduct consists of allegations or other factual
contentions that have no evidentiary support or, if specifically so
identified, are not likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
{¶ 35} Reviewing a trial court's decision regarding frivolous conduct involves mixed
questions of law and fact. Lucchesi v. Fischer, 12th Dist. Clermont No. CA2008-03-023,
2008-Ohio-5935, ¶ 4. A trial court's factual determinations are accorded a degree of
deference and will not be disturbed on appeal if there is competent, credible evidence in the
record to support them. State ex rel. Chrisman v. Clearcreek Twp., 12th Dist. Warren No.
CA2013-03-025, 2014-Ohio-252, ¶ 8. However, we review legal questions de novo, such as
whether a party's conduct satisfies the statutory definition of frivolous conduct. Dudley v.
Dudley, 196 Ohio App. 3d 671, 2011-Ohio-5870, ¶ 11 (12th Dist.). When an inquiry is purely
a question of law, an appellate court need not defer to the judgment of the trial court.
Wiltberger v. Davis, 110 Ohio App. 3d 46, 51-52 (10th Dist.1996).
{¶ 36} As noted above, the trial court granted Mother's motion for attorney fees upon
finding Grandfather's most recent complaint seeking custody of A.D.B. was frivolous. In so
holding, the trial court stated:
The Grandfather failed to provide any evidence to suggest that
the abrasion on the minor child's neck was caused in any way
other than what the Mother has maintained consistently since the
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date of the injury. Furthermore, he presented no evidence to
refute the testimony and exhibits which established a pattern of
harassment and intimidation, directed primarily at the Mother, but
also peripherally directed at law enforcement and other
professionals who were involved in the investigation. The Court
can reach no conclusion other than that the Grandfather * * *
engaged in intentional and malicious conduct in an effort to
harass and intimated the Mother and her family members.
{¶ 37} As stated previously, Grandfather only provided this court with a partial
transcript of the two-day hearing held before the trial court. However, the record before this
court clearly indicates that this case represents Grandfather's third attempt to obtain legal
custody of A.D.B. based on allegations that Mother is a drug user who abused A.D.B. Once
given the opportunity, the trial court determined that these claims had no evidentiary support
and served as nothing more than Grandfather's continued attempts to harass and intimidate
Mother. We find no error in the trial court's decision.
{¶ 38} While it may be true that Grandfather believes he has A.D.B.'s best interest at
heart, repeatedly forcing Mother to spend money on an attorney to defend herself against
such claims is improper and unnecessary. Again, while Grandfather may disagree with the
investigatory findings, the record clearly indicates that his claims alleging Mother had abused
A.D.B. and caused the injuries to her neck were unsubstantiated. Continually filing
complaints for legal custody will not change that fact. Therefore, finding no error in the trial
court's decision, Grandfather's fifth assignment of error is overruled.
Conclusion
{¶ 39} Having found no merit to any of Grandfather's five assignments of error, the trial
court's decision denying Grandfather's complaint for legal custody of A.D.B. and ordering
Grandfather to pay Mother's attorney fees is affirmed.
{¶ 40} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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