In re E.S. , 2023 Ohio 1009 ( 2023 )

[Cite as In re E.S., 2023-Ohio-1009.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: E.S., : Hon. W. Scott Gwin, P.J.
DEPENDENT CHILD : Hon. John W. Wise, J.
: Hon Andrew J. King, J.
:
:
: Case No. 2022 CA 0064
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court
of Common Pleas, Juvenile Division, Case
No. 2019-DEP-00051
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 28, 2023
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
BENJAMIN D. KITZLER DARIN AVERY
3 North Main St., Ste., 803 105 Sturges Ave.
Mansfield, OH 44902 Mansfield, OH 44903
Richland County, Case No. 2022 CA 0064 2
Gwin, P.J.
{¶1} Appellants C.J. and T.J. (“Custodians”) appeal the August 22, 2022
judgment entry of the Richland County Court of Common Pleas, Juvenile Division, ruling
on their objections to the magistrate’s decision.
Facts & Procedural History
{¶2} In 2019, Richland County Children Services (“RCCS”) filed a complaint
alleging E.S., born on April 30, 2018, was a dependent and neglected child due to the
drug use of both of her parents. Appellee R.S. is the mother (“Mother”) of E.S. and
appellee D.S. is the father (“Father”) of E.S. Upon motion by RCCS, temporary custody
of E.S. was given to her maternal great-aunt, C.J.
{¶3} On June 5, 2019, the magistrate issued an order finding E.S. to be a
dependent and neglected child. The trial court adopted and approved the magistrate’s
order on June 25, 2019. RCCS filed a motion for disposition on November 5, 2019,
requesting the trial court grant legal custody of E.S. to C.J. and her husband T.J. Father
filed a motion requesting visitation on January 13, 2020. On February 12, 2020, the
magistrate issued a decision granting RCCS’ motion for legal custody to Custodians and
denying Father’s motion for visitation. Custodians each signed a “Statement of
Understanding for Legal Custody,” which provides, in part, “I understand that the parents
of the child have residual parental rights, privileges, and responsibilities, including, but
not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to
determine the child’s religious affiliation, and the responsibility for support.”
{¶4} On July 12, 2021, Mother and Father filed a motion for parenting time. The
trial court set the matter for hearing on August 18, 2021. On August 17, 2021, Attorney
Richland County, Case No. 2022 CA 0064 3
Beth Allen Owens filed a notice of appearance notifying the trial court she was
representing Custodians. Also, on August 17th, Custodians filed a motion to continue the
August 18th hearing due to a conflict in their attorney’s schedule. The trial court granted
the motion, and rescheduled the hearing for August 30, 2021. Several minutes prior to
the scheduled August 30th hearing, Custodians filed a motion to stay the proceedings
pending a decision by the Richland County Probate Court on an adoption petition they
filed with regards to E.S.
{¶5} In an order issued by the magistrate after the August 30th hearing, the
magistrate ordered the parties to brief the issue of whether the case should be stayed
due to the filing of the adoption petition. The magistrate held additional hearings on
October 12, 2021 and December 8, 2021.
{¶6} During the hearing on December 8, 2021, the magistrate noted the court
learned that Custodians moved out of state because a notice sent to Custodians’ address
in Ohio was returned to the court stating their forwarding address was in Tennessee. The
magistrate asked Custodians if they wanted to share anything with the court about their
relocation to Tennessee. T.J. stated, “when we decided to move uh, of course, we wanted
to adopt.” T.J. noted he wanted to move to Tennessee to help his parents and start a
business. T.J. stated they spoke with E.S.’s counselors, who felt it would be a good thing
for E.S. to have some “distance” from her parents due to the adoption. T.J. stated E.S.
was doing very well in Tennessee. When the magistrate inquired as to whether
Custodians intended to return back to Ohio, T.J. stated, “we didn’t before. No, we were
planning on trying to build a life, ‘cause we were planning to adopt and move forward with
our lives with E.S.” The court asked Custodians for an address at which to serve them
Richland County, Case No. 2022 CA 0064 4
with the notice for the next hearing, and they provided an address in Tennessee. Also,
during the December hearing, counsel for Custodians made an oral motion to withdraw
as their counsel, noting a breakdown in the attorney-client relationship. Custodians
informed the magistrate they would be hiring new counsel.
{¶7} In an order issued on December 9, 2021, the magistrate found Custodians’
motion to stay proceedings moot because the Richland County Probate Court denied
their adoption petition. The magistrate issued an interim order of visitation for Mother and
Father for no less than once a month, supervised by E.S.’s paternal grandmother.
{¶8} Attorney Owens filed a written motion to withdraw as counsel for Custodians
on December 16, 2021. Attorney Kristin Brown filed a notice of appearance for
Custodians on December 20, 2021. Also, on December 20, 2021, Mother and Father
filed a motion to amend disposition and grant them legal custody, alleging a change of
circumstances. The court set the motion for hearing on January 20, 2022. Because
Custodians objected to Mother and Father’s motion, the magistrate set the motion for an
additional pre-trial on February 28, 2022. The magistrate also granted Mother and Father
weekly visitation with E.S. at Bridges for Better Living.
{¶9} In a magistrate’s order issued after the February 28th pre-trial, the
magistrate stated she “heard a report regarding the status of visits between the child and
her parents as supervised at Bridges for Better Living.” The visits were going well, but
“concerns about the conduct of the child’s legal custodian[s] were expressed by the
visitation supervisors and by the child’s counselor.” Also, at the February 28th pre-trial,
the magistrate set a full day contested dispositional hearing for May 12, 2022. Both
parties requested a hearing as soon as possible on the issue of visitation, so the court
Richland County, Case No. 2022 CA 0064 5
set a visitation hearing for March 10, 2022. Formal notice of both hearings was sent to
the parties on March 2, 2022.
{¶10} A magistrate’s order dated March 11, 2022 states that the court held the
hearing on March 10, 2022, and took testimony from E.S.’s counselor and an employee
at Bridges for Better Living. After hearing this testimony, the magistrate granted Mother
and Father visitation with E.S. every Saturday from 2:00 p.m. until 6:00 p.m. The
magistrate again noted the full-day dispositional hearing would be held on May 12, 2022.
{¶11} On April 25, 2022, Custodians filed an ex parte motion to suspend parenting
time. On the same day, Attorney Brown filed a motion to withdraw as counsel of record
for Custodians due to a breakdown in the attorney-client relationship. In the motion to
withdraw, Attorney Brown stated, “client[s] have been notified of the following court date:
Motion to Amend Disposition on 5/12/22 at 9:00 a.m.” The magistrate denied Custodians’
ex parte motion to suspend parenting time. The magistrate also issued an order on April
28, 2022 granting Attorney Brown’s motion to withdraw. The magistrate noted that
Custodians consented to the motion. The order also specifically provides that the “matter
will proceed to a contested evidentiary hearing as scheduled on Thursday, May 12, 2022
at 9:00 a.m.”
{¶12} On May 10, 2022 at 3:39 p.m., Attorney Avery entered a notice of
appearance for Custodians. Simultaneously, counsel filed a motion for continuance of
the May 12th hearing to review the record, issue any necessary subpoenas, and prepare
for the hearing. Attorney Avery noted that Custodians retained him on May 10, 2022.
The trial court denied the motion on May 11, 2022, finding there was not good cause for
the motion, and finding the motion did not comply with Local Rule 10.
Richland County, Case No. 2022 CA 0064 6
{¶13} The magistrate held a trial on Mother and Father’s motion to amend
disposition on May 12, 2022.
{¶14} Kim Ramey (“Ramey”) is Mother’s counselor. Mother has been compliant
with counseling. Ramey does not have any concerns about Mother’s ability to parent E.S.
Ramey testified Mother is able to provide stability, is working, and is able to provide stable
housing for E.S. Mother currently takes Subutex for medically assisted treatment.
{¶15} Kenny Graves (“Graves”) is Father’s counselor. Graves testified Father is
doing very well, and having negative drug screens. Father has had relapses before, but
is currently on buprenorphine to relieve withdrawal symptoms, and has done well since
starting his recovery in 2018. Graves was aware that, approximately one month before
the hearing, Father was found with a syringe in his car. Graves believed Father’s
explanation and does not believe Father relapsed because his urine screens are still
negative.
{¶16} Kim Olivieri (“Olivieri”) supervised two visits between E.S. and her parents.
Olivieri felt the visits went well, and E.S. is bonded to her parents. E.S. told Olivieri that
C.J. told E.S. she could not play with Mother and Father. Olivieri heard E.S. tell Mother
and Father that C.J. threw away the items they brought her at the visitation the previous
week. Olivieri testified E.S. enjoyed her visits with Mother and Father, but believed E.S.
was not allowed to share that information with Custodians.
{¶17} Gail Lucanegro (“Lucanegro”) is a probation officer with Richland County.
Both Mother and Father were on intensive supervision step-down probation under her
supervision from June 30, 2021 through March 11, 2022. Prior to June of 2021, Mother
completed treatment at an inpatient facility. From June of 2021 through March of 2022,
Richland County, Case No. 2022 CA 0064 7
both Mother and Father were compliant with their probation. Neither of them had any
warnings, sanctions, or violations. Lucanegro randomly drug-tested both parents. Mother
drug-tested negative 11 times and Father drug-tested negative 20 times. Mother is on
probation for an attempted illegal conveyance charge and possession of drugs charge.
Father is on probation for a possession of drug charge.
{¶18} Jay Sheriff (“Sheriff”) is a probation officer with Richland County and is the
current probation officer for Mother and Father. He has had no problems with either
Mother or Father. Neither have had any sanctions. Mother and Father came to Sheriff’s
office after Father was involved in a traffic stop where a syringe was found in his car.
Sheriff drug-tested both of them. They tested positive for their prescription drugs, but
negative for any other drugs. Father also submitted a hair follicle drug test, which was
negative. Sheriff believed what Father told him about the incident.
{¶19} Jo Ann Howard (“Howard”) is the guardian ad litem for E.S. Howard
believes Mother and Father are totally different people from when the case began. She
has seen only “positive results in interactions with them and [E.S.].” Howard testified E.S.
is bonded with them. Howard was concerned with the one supervised visit she did attend
because, several times during the visit, E.S. approached the supervisor and told her,
“please don’t tell C.J. how well I played today.” When Howard met with E.S. in March of
2022, C.J. was on the back porch, while Howard and E.S. were at the kitchen table.
Before E.S. would answer any questions about Mother or Father, E.S. would look out the
window to the back porch and make sure C.J. could not see or hear her answers.
{¶20} Howard testified it is in E.S.’s best interest to be back in the custody of
Mother and Father. Based upon her interaction with Mother and Father, and the
Richland County, Case No. 2022 CA 0064 8
information she obtained from the parents’ counselors and probation officers, Howard
believes Mother and Father are able to provide a stable and safe home for E.S.
{¶21} When Howard was re-appointed to the case in October of 2021, C.J. called
her. Howard asked if they still lived at the same home, and C.J. told Howard they lived
in Tennessee. Howard is not aware of any issues at Custodians’ home. E.S. is bonded
with Custodians and they provide for her basic needs. C.J. asked Howard to visit E.S.
soon after E.S. had visitation with Mother and Father because C.J. reported E.S.’s
behaviors were bad after visiting with Mother and Father. Howard did visit several days
after E.S.’s visit with Mother and Father, and noticed no bad behavior from E.S.
{¶22} Upon questioning from the court, Howard stated Custodians currently live
in a remodeled basement. C.J. told Howard they were living there while she recovered
from foot surgery, but then were going back to Tennessee. Custodians were adamant in
telling Howard that, despite the statement of understanding they signed, visits with Mother
and Father were not in E.S.’s best interest. Thus, they stopped the visits. Howard
testified that while C.J. now states they did not stop the visits, C.J. previously told her the
reason the visits were stopped is because C.J. did not want Mother and Father being
called “mommy and daddy” by E.S. because E.S.’s counselor felt it was too confusing for
E.S. to have two mommies and two daddies. However, when Howard contacted E.S.’s
counselor, the counselor stated it would be confusing, but never at any time did the
counselor suggest the visitation be stopped. Howard believes increased, regular, and
consistent contact with her parents was not harmful to E.S. Howard was aware of a visit
at a McDonald’s Playland in June or July of 2021. After that, the parents attempted to
contact C.J. to set up further visitation, but she would not return their calls or texts.
Richland County, Case No. 2022 CA 0064 9
{¶23} At the conclusion of Mother and Father’s case, Attorney Avery stated he
intended to call Custodians, Kathy Crawford, Joseph Clark, and Brenda Marti, even
though these names were not provided to opposing counsel. Attorney Avery confirmed
he met with Custodians prior to the hearing, and took the case knowing the matter was
set for trial. Counsel for Mother and Father objected to the witnesses. The magistrate
overruled the objections, and let the witnesses testify. Prior to a lunch break, the
magistrate ordered a separation of witnesses, and told Custodians they could not
communicate with any of the witnesses about their upcoming testimony.
{¶24} When the trial resumed after lunch, Howard informed the court that she
personally observed Kathy Crawford discussing with Custodians “what she was to say on
the stand.” The magistrate ruled that since Custodians did not comply with the admonition
about the separation of witnesses, Kathy Crawford would not be able to testify. Counsel
for Custodians moved for a directed verdict due to no evidence of changed
circumstances. The magistrate denied the motion.
{¶25} Brenda Marti (“Marti”) lives upstairs in the home where Custodians live.
Custodians moved into the home in October of 2021. She owns the building, and they
pay rent. The portion where Custodians live has a large bedroom, a play area, a
kitchenette, and a back porch. Marti testified T.J. went to Tennessee for work, and C.J.
went to visit for a week. Marti has heard E.S. have nightmares soon after her visits with
Mother and Father. E.S. would also hit and scream. Marti stated E.S. did not exhibit
these behaviors prior to the visits starting with Mother and Father.
{¶26} E.S. was seven months old when she came into Custodians’ home. T.J.
testified the legal statement of understanding states that visitation was at their discretion.
Richland County, Case No. 2022 CA 0064 10
Following the grant of legal custody, E.S. did not immediately have visitation with Mother
and Father. Starting in April of 2020, they allowed Mother and Father to visit E.S. at their
home at Mother and Father’s request. T.J. testified the visits never went badly, and
usually lasted between one and three hours. T.J. stated the interactions during the visits
was not the problem, but after the visits, E.S. would have nightmares and meltdowns.
Due to these meltdowns, Custodians took E.S. to counseling. On cross-examination, T.J.
confirmed that, from April of 2020 through June of 2021, they allowed Mother and Father
twenty-four separate visits. While they were allowing these visits, Custodians were
considering adoption, and their attorney advised them that more distance between E.S.
and Mother and Father would be best.
{¶27} In June of 2021, Custodians sought alternate housing. T.J. spoke to his
parents and they had a cabin on their property Custodians could use while the adoption
process was going on. T.J. testified they “started moving some necessities in life in
September.” T.J. stated he was back and forth to Tennessee, but C.J. and E.S. remained
in Ohio and only went to Tennessee for a week. T.J. put a deposit down for electric and
gas on the property in Tennessee.
{¶28} Counsel for Custodians called Father on cross-examination. As to the
incident where he got pulled over in April of 2022, Father stated his uncle overdosed in
August of 2021. After his uncle died, Mother and Father moved into his uncle’s house.
They fixed up the house, but there was still quite a bit of stuff in the house. When cleaning
a cupboard, Father found a syringe, a tie, and a spoon in a little case. He did not want to
throw it in the trash because his children live in the house. Father testified he put it in his
car and intended to throw it in the dumpster at his work. He forgot to throw it away at
Richland County, Case No. 2022 CA 0064 11
work, and got pulled over on his way home from work. When Father was pulled over,
Father got a hair follicle drug test he paid for out-of-pocket. Father testified he works at
Edge Plastics and Mother works at Motel 6.
{¶29} The magistrate issued a decision on May 17, 2022, with detailed findings of
fact and conclusions of law. The magistrate found a change in circumstances pursuant
to R.C. 2151.42(B) due to the combination of Custodians’ relocation to Tennessee,
Custodians’ quest to adopt E.S. without parental consent, and Custodians’ abrupt
termination of contact between E.S. and her parents. The magistrate additionally issued
the following findings of fact: the court was not provided with any credible evidence to
establish E.S.’s behaviors, if any, after visits with Mother and Father are directly related
to the visitation; Custodians’ did not attempt to have any court intervention, but unilaterally
decided to pursue adoption and stop visits with Mother and Father; Custodians put down
a deposit for electric and gas at the property located at the address T.J. relayed to the
court on the December 8, 2021 hearing; Custodians reported to Howard that they had
relocated to Tennessee and were temporarily staying in the basement of their friends and
planned to return to Tennessee after C.J. underwent foot surgery; E.S. has relayed other
details about Tennessee which demonstrates she has spent more time in Tennessee
than one week as testified to by T.J.; Mother and Father have maintained their sobriety
for three years and passed all drug screens; Mother and Father are compliant with the
terms of their probation; Howard perceives that E.S. is unable to express open love and
affection for Mother and Father due to the worry it will hurt the feelings of C.J.; and Howard
recommends E.S. be placed in the legal custody of her biological parents.
Richland County, Case No. 2022 CA 0064 12
{¶30} In the decision portion of the entry, the magistrate found it was in the best
interest of E.S. to terminate the legal custody of Custodians and for E.S. to be placed in
the legal custody of Mother and Father. The magistrate found there was a change in
circumstances because Custodians sought to eliminate the presence of Mother and
Father from E.S.’s life by prohibiting them from visiting, by filing a petition for adoption,
and by moving to Tennessee. The magistrate specifically found Custodians’ denial that
they moved to Tennessee not credible based upon the direct representations to the court
at the December 8th hearing, their communication to Howard about their move, and E.S’s
communications. The magistrate stated Custodians attempted to sever a bond between
E.S. and her parents, which was not in E.S.’s best interest.
{¶31} The magistrate ordered E.S. to immediately be transferred to the home of
her parents, and, pursuant to Juvenile Rule 40(D), the decision was effective immediately.
The trial court issued a judgment entry approving and adopting the magistrate’s decision
on May 20, 2022.
{¶32} Custodians filed objections to the magistrate’s decision on May 26, 2022.
Custodians argued as follows: the magistrate erred in finding Custodians moved; the
magistrate erred in finding a change in circumstances; and the magistrate erred in finding
that termination of legal custody was in the best interest of the child. Custodians also
filed a motion to set aside the magistrate’s order because the document is not identified
as an order in the caption, a magistrate cannot dispose of a claim, the order cannot be
effective immediately, and the order was not in the best interest of the child. Custodians
filed supplemental objections on July 26, 2022. They argued: the magistrate erred in
finding Custodians’ exercise of discretion created a change in circumstances; the
Richland County, Case No. 2022 CA 0064 13
magistrate erred in finding a change in circumstances due to moving; the magistrate erred
in implying that Custodians had to seek court intervention to change visits with the
parents; the magistrate erred in giving any weight to the child’s expression of happiness
at being with her parents; the magistrate erred in finding the child’s meltdowns are due to
the actions of Custodians; the magistrate erred in finding it was in the child’s best interest
to return to the custody of her parents, and the magistrate erred in finding Custodians
violated the terms of legal custody.
{¶33} The trial court issued a judgment entry on August 22, 2022. The trial court
determined as follows: Custodians’ assertion that they did not move is contradicted by
the testimony; a change in physical residence coupled with other factors may be the basis
for a change in circumstances; terminating visits was a significant change in
circumstances in addition to the move; Custodians did not have the discretion to terminate
visitation when visitation had been occurring regularly, absent a best interest basis for
doing so; the change in circumstances finding in the magistrate’s order filed on December
9, 2021 justified the interim order of visitation; the change in circumstances is not based
exclusively on an attempt to eliminate the parents from the child’s life, but upon
termination of visits with other factors; despite knowing the terms of the Statement of
Understanding that Custodians signed, and they acted to nullify the residual rights of the
parents.
{¶34} Upon consideration of the supplemental objections, the trial court found:
the prior court order says “parenting time shall be at the nature, frequency, and discretion
of legal custodians, and as they determine to be in the child’s best interests”; this order
cannot be construed to override the Court’s authority to determine whether Custodians
Richland County, Case No. 2022 CA 0064 14
acted in the best interests of the child; Custodians terminated visits without evidence
doing so was in the child’s best interests; terminating regularly occurring visits is an event
that had a material or adverse effect upon the child; the findings by the magistrate
regarding best interest are supported by the transcript; an “adverse effect on a child” for
purpose of change of circumstances was proven; leaving the terms of visitation within
Custodians’ discretion does not equate to the court relinquishing authority to determine
what is in the child’s best interest; the prior legal custody order does not divest the court
of jurisdiction; the primary credible concern with the child’s mental state involved her
feeling conflicted between her parents and keeping C.J. happy; and the child is closely
bonded to her parents who have satisfactorily dealt with their prior issues. The trial court
overruled Custodians’ motion to set aside, objections, and supplemental objections, with
the exception of Item 3 of the motion to set aside (regarding the automatic stay of Juv.R.
40(D)(4)(e)).
{¶35} Custodians appeal the August 22, 2022 judgment entry of the Richland
County Court of Common Pleas, Juvenile Division, and assign the following as error:
{¶36} “I. THE TRIAL COURT MADE NUMEROUS FINDINGS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶37} “II. THE TRIAL COURT ERRED IN FINDING A CHANGE IN
CIRCUMSTANCES OF THE MINOR CHILD.
{¶38} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A DIRECTED VERDICT.
{¶39} “IV. THE TRIAL COURT ERRED IN FINDING THAT A GRANT OF LEGAL
CUSTODY TO THE PARENTS SERVED THE CHILD’S BEST INTERESTS.
Richland County, Case No. 2022 CA 0064 15
{¶40} “V. THE TRIAL COURT ERRED IN MISAPPLYING JUVENILE RULE 40.”
I.
{¶41} In their first assignment of error, Custodians contend the trial court “made
numerous findings against the manifest weight of the evidence.” Custodians list ten
findings they allege are against the manifest weight of the evidence.
{¶42} A trial court “must have wide latitude in considering all the evidence” and a
custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,
77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), citing Miller v. Miller, 37 Ohio St.3d 71, 523
N.E.2d 846 (1988). As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent,
and credible evidence upon which the finder of fact could base its judgment. Cross Truck
Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911(Feb. 10, 1982). Accordingly, judgments supported by some competent and credible
evidence going to all the essential elements of the case will not be reversed as being
against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978).
{¶43} Unlike in a permanent custody proceeding where a juvenile court’s standard
of review is by clear and convincing evidence, the standard of review in legal custody
proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
2013CA0081, 2013CA0082, 2013-Ohio-5752.
{¶44} Issues relating to the credibility of the witnesses and the weight to be given
to the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio
St.3d 77, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility “is
Richland County, Case No. 2022 CA 0064 16
crucial in a child custody case, where there may be as much evidence in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 674 N.E.2d 1159 (1997).
{¶45} In their first, fifth, and sixth items, Custodians contend these findings made
by the trial court are against the manifest weight of the evidence: “[Custodians] lacked
sufficient reason bearing on best interests to terminate visitation; [Custodians] exercised
their discretion by terminating visits without evidence that doing so was in the child’s best
interests; and terminating regularly occurring visits without good cause represents an
abuse of discretion by [Custodians] because it was contrary to the child’s best interests
and constituted a change in circumstances of the child.” Custodians argue they
reasonably relied on the opinions of the child’s counselor and their attorney before
stopping visits or attempting to adopt. As discussed below in Custodians’ separate
assignments of error regarding change in circumstances and best interest, Custodians
did not elicit or attempt to elicit the testimony of the counselor or the lawyer. Howard
spoke directly to the counselor, who informed Howard she did not suggest terminating
visitation. Upon review of the record and for the reasons set forth in Custodians’ second
and fourth assignments of error, we find there was competent and credible evidence to
support the trial court’s determinations.
{¶46} Second, Custodians argue the trial court’s finding that “E.S. had obvious
conflict between her desire to remain in the good graces of and to please C.J. and her
longing to enjoy her interaction with her parents and to openly express her affection
toward them,” was against the manifest weight of the evidence because this “obvious
conflict” was “conjured from testimony” that E.S. had been prohibited from singing a
Richland County, Case No. 2022 CA 0064 17
certain song; and the trial court made an erroneous finding by reading too much into this
testimony. Both Howard and Olivieri testified to the conflict E.S. felt between having fun
with her parents and upsetting C.J. Accordingly, there is competent and credible
evidence to support the trial court’s determination.
{¶47} In their third and seventh items, Custodians contend the trial court’s findings
that “up until June or July of 2021, E.S. had been regularly visiting with her parents and
was closely attached to them” and “[Custodians] acted contrary to the child’s best interest
by acting in a way that predictably upset the child and her relationship with her parents”
were against the manifest weight of the evidence. Custodians contend parents’ visitation
prior to June or July of 2021 was not “regular,” so Custodians could not have upset the
child when discontinuing the visits because the visits were not consistent. The term
“regular” is defined as “recurring, attending, or functioning at fixed, uniform, or normal
intervals,” https://www.merriam-webster.com/dictoinary/regular (accessed March 15,
2023) and “usual, normal, or customary, as opposed to an occasional, special, or
incidental use.” Black’s Law Dictionary (11th ed. 2019). T.J.’s testimony demonstrates
that parents’ visits with E.S. occurred at normal and customary intervals and not just
occasionally. T.J. testified that, from April 20, 2020 through June of 2021, Mother and
Father had twenty-four separate visits with E.S. at Custodians’ home, and these visits
occurred approximately every two or three weeks for several hours. Accordingly, we find
the trial court’s determinations are supported by competent and credible evidence.
{¶48} Fourth, Custodians argue the trial court’s finding that “legal custodians
attempted to eliminate her parents from her life, thereby creating an emotional conflict
within the child that did not previously exist,” was against the manifest weight of the
Richland County, Case No. 2022 CA 0064 18
evidence. Custodians contend Ohio law permits them to file an adoption petition, and the
trial court permitted Custodians to determine what type of visitation with parents was in
E.S.’s best interest. Custodians argue the magistrate and trial court were not permitted
to rely only on the testimony of Howard and Olivieri. As discussed below, even though
the trial court previously permitted Custodians to determine how much visitation was
appropriate between E.S. and her parents, the statutory scheme permits Mother and
Father to petition, and the trial court to grant under certain circumstances, a modification
of visitation and/or change in legal custody. As to Howard and Olivieri’s testimony, as an
appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.
The trial court is free to believe all, part, or none of the testimony of each witness. State
v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). We find there is
competent and credible evidence to support the trial court’s determination.
{¶49} In their eighth item, Custodians contend the trial court committed error in
finding the magistrate’s findings regarding the best interest of E.S. are supported by the
record. Custodians argue the magistrate did not make appropriate findings with regard
to the best interest factors, and the findings she did make apply equally to Custodians.
Custodians have made the same argument in their fourth assignment of error. Based
upon our analysis in Custodians’ fourth assignment of error, we find this argument to be
not well-taken.
{¶50} Ninth, Custodians contend the trial court committed error in “reasonably
concluding” E.S.’s “meltdowns” are attributable to the stress of pleasing C.J. Custodians
assert the only testimony elicited at trial about E.S.’s behavior after visits was from T.J.,
who described how the “meltdowns” were attributable to visits with Mother and Father.
Richland County, Case No. 2022 CA 0064 19
We find the trial court’s determination is not against the manifest weight of the evidence.
Howard testified that C.J. asked her to visit E.S. soon after E.S. had a visit with Mother
and Father because E.S.’s behaviors were allegedly bad after visiting with her parents.
Howard visited several days after E.S.’s visit with Mother and Father, and noticed no bad
behavior from E.S. Howard testified E.S.’s emotional turmoil is attributable to the actions
of Custodians. The trial court is free to believe all, part, or none of the testimony of each
witness. State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
{¶51} In their tenth item, Custodians argue the trial court’s finding that Mother and
Father demonstrated an adverse effect on E.S. for purposes of establishing a change in
circumstances was against the manifest weight of the evidence. As detailed in our
analysis in Custodians’ second assignment of error, Howard and Olivieri testified to the
adverse effect Custodians’ actions had on E.S. We defer to the trial court on matters of
credibility. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
II.
{¶52} In their second assignment of error, Custodians argue the trial court
committed error in finding a change in circumstances.
{¶53} In the first portion of this assignment of error, Custodians contend that once
the trial court issued the March 20, 2020 judgment entry granting them the authority to
grant or deny visitation, this decision is res judicata, and the court cannot change its
determination. We disagree.
{¶54} Legal custody awarded pursuant to R.C. 2151.353(A) does not cut off all
rights of the parents. Legal custody is subject to the continuing jurisdiction of the juvenile
court, and may be terminated by that court. In re J.T.F., 2nd Dist. Greene No. 12-CA-03,
Richland County, Case No. 2022 CA 0064 20
2012-Ohio-2105. The juvenile court previously adjudicated E.S. as a dependent child.
As a result of that adjudication, the juvenile court retains jurisdiction over E.S. until she
reaches the age of eighteen pursuant to R.C. 2151.353(F)(1). Simply because the
juvenile court initially granted legal custody to Custodians and permitted them to
determine what amount of visitation with Mother and Father was in E.S.’s best interest
does not mean the court cannot modify that determination. In the exercise of continuing
jurisdiction, the trial court is permitted to change the legal custody order it entered. In re
L.H., 5th Dist. Muskingum No. CT2013-0017, 2013-Ohio-5279; In re J.L.M., 9th Dist.
Summit No. 28867, 2018-Ohio-2175. R.C. 2151.42 recognizes the propriety of
modifications or terminations of prior dispositional orders and sets out what the juvenile
court must find to modify or terminate, i.e., a change in circumstances finding and a best
interest finding. In re F.D., 9th Dist. Summit No. 30410, 2023-Ohio-706.
{¶55} Custodians contend they reasonably relied on the opinions and advice of
their lawyer and counselor in taking their actions regarding visitation, moving, and
adoption. We first note that neither the lawyer or counselor at issue were witnesses or
proposed witnesses at the trial. Further, the testimony about the alleged reliance on the
opinions of the lawyer and counselor came solely from T.J. T.J. testified E.S.’s counselor
stated it was too confusing for E.S. to have two mom’s and two dad’s and the counselor
recommended visitation with Mother and Father be stopped. However, Howard testified
that she personally contacted the counselor and, while the counselor did state it was
confusing for a child to have two mothers and two fathers, “never at any time did she
suggest the visitation [with Mother and Father] be stopped.” It is well-established that the
trial court, as the fact finder, is free to believe all, part, or none of the testimony of each
Richland County, Case No. 2022 CA 0064 21
witness. State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. Jackson
1992).
{¶56} Custodians also cite caselaw in support of their argument that relocation by
itself is not a change in circumstances. Custodians are correct in their assertion that
relocation, by itself, is not a change in circumstances. This Court has held the general
rule is that relocation, by itself, is not sufficient to be considered a change of
circumstances, but it is a factor in such a determination. Davis v. Davis, 5th Dist.
Tuscarawas No. 2016 AP 05 0031, 2016-Ohio-7205. However, in this case, the
magistrate and trial judge did not find a change in circumstances due to relocation alone.
Rather, relocation was a factor in the change of circumstances determination, along with
other factors such as the termination of visits, and the intent to eliminate the parents from
E.S.’s life. Accordingly, the trial court did not improperly base its decision solely on the
move to Tennessee.
{¶57} Finally, Custodians generally contend the trial court committed error in
finding a change in circumstances. R.C. 2151.42 governs the modification of termination
of dispositional orders. Section 2151.42(B) states the following, “an order of disposition
* * * granting legal custody of a child to a person is intended to be permanent in nature.
A court shall not modify or terminate an order granting legal custody of a child unless it
finds, based on facts that have arisen since the order was issued * * * that a change has
occurred in the circumstances of the child or the person who was granted legal custody *
* *.”
{¶58} R.C. 2151.42 does not define what constitutes a change in circumstance.
R.C. 3109.04 governs modification to parental rights and responsibilities in divorce
Richland County, Case No. 2022 CA 0064 22
proceedings and similarly requires a change of circumstances to modify a prior allocation
and also does not define the phrase. In the Matter of K.W., 5th Dist. Guernsey No. 18
CA 34, 2019-Ohio-2121. This Court has noted, “Ohio courts have considered a variety
of factors which are relevant to the change in circumstances requirement of R.C.
3109.04(E)(1)(a), and which may be instructive in R.C. 2151.42(B) cases.” With respect
to R.C. 3109.04(E)(1)(a), “the phrase is intended to denote an event, occurrence, or
situation which has a material and adverse effect upon a child.” A change in
circumstances “must be one of substance, not slight or inconsequential.” Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). “In determining whether a change
in circumstances has occurred so as to warrant a change in custody, a trial judge, as the
trier of fact, must be given wide latitude to consider all issues which support such a
change.” Id.{¶59} Accordingly, we review the trial court’s determination regarding a change of
circumstances for an abuse of discretion. A trial court abuses its discretion when its
decision is unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶60} Because the focus of all custody proceeding is the best interest of the child,
the threshold standard is high. In the Matter of K.W., 5th Dist. Guernsey No. 18 CA 34,
2019-Ohio-2121. However, the threshold is not insurmountable. Id. For example, a
parent’s entry into a child’s life, when the parent was previously absent, constitutes a
change in a child’s circumstances. In the Matter of H.H., 4th Dist. Meigs No. 18CA6,
2018-Ohio-2636. In addition, Ohio courts have considered a variety of factors which are
relevant to the change in circumstances requirements. In the Matter of K.W., 5th Dist.
Richland County, Case No. 2022 CA 0064 23
Guernsey No. 18 CA 34, 2019-Ohio-2121. Relevant factors in previous cases have
included a new marriage, frustration of attempts at visitation, the advancement of child
from infancy to adolescence, unruly behavior involving the police, and the moving of the
residential parent combined with other factors. Id.{¶61} Upon review of the record, we find the trial court did not abuse its discretion
in finding a change of circumstances in E.S.’s life due to the combination of the change
in physical residence of E.S. from Ohio to Tennessee by Custodians, the termination of
visits between Mother and Father when previously they had consistent visitation with E.S.,
and the attempt by Custodians to eliminate Mother and Father from E.S.’s life despite
their acknowledgment of the rights of the parents in the “Statement of Understanding.”
The trial court found these factors combined to create a situation that had a material and
adverse effect upon E.S. We find no abuse of discretion in this determination. Howard
testified that E.S.’s emotional well-being was in constant turmoil to Custodians’ actions.
Custodians’ argue the magistrate and trial court should have believed the testimony of
their witnesses rather than the testimony of Howard and Olivieri. However, we defer to
the trial court on matters of credibility, particularly in child custody cases “where there
may be much evidence in the parties’ demeanor and attitude that does not translate to
the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Further,
the trial court is free to believe all, part, or none of the testimony of each witness. State
v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
{¶62} Custodians’ second assignment of error is overruled.
Richland County, Case No. 2022 CA 0064 24
III.
{¶63} In their third assignment of error, Custodians argue the trial court erred in
denying their motion for directed verdict at the conclusion of Mother and Father’s case.
Custodians contend that, absent a change of circumstances, the trial court lacked the
authority to modify or terminate the order of legal custody. In Custodians’ second
assignment of error, we found the trial court did not commit error in finding a change in
circumstances. Accordingly, we find the trial court did not commit error in denying
Custodians’ motion for directed verdict. Custodians’ third assignment of error is
overruled.
IV.
{¶64} In their fourth assignment of error, Custodians contend the trial court
committed error in finding a grant of legal custody to Mother and Father served the best
interest of E.S.
{¶65} In the first portion of the assignment of error, Custodians argue that neither
the magistrate nor the trial court considered the appropriate best interest factors.
However, R.C. 2151.42 does not provide criteria for a best interest determination, as it
states, “a court shall not modify or terminate an order granting legal custody of a child
unless it finds, based on facts that have arisen since the order was issued * * * that a
change has occurred in the circumstances * * * and that modification or termination of the
order is necessary to serve the best interest of the child.” Accordingly, the statutory
scheme regarding a modification in legal custody does not include a specific test or set
of criteria for best interest. See In the Matter of G.B., 5th Dist. Stark No. 2021 CA 00039,
2021-Ohio-3621. When determining the issue of legal custody, the trial court should
Richland County, Case No. 2022 CA 0064 25
consider the totality of the circumstances. In re D.T., 5th Dist. Stark No. 2013CA00252,
2014-Ohio-2495. Trial courts should consider all factors relevant to the best interest of
the child. Id. In a R.C. 2151.42 determination, courts generally have been guided by the
best interest factors contained in R.C. 2151.414(D)(1), or R.C. 3109.04(F)(1). In re N.C.,
5th Dist. Richland No. 20 CA 0004, 2020-Ohio-6929; In the Matter of A.H., 5th Dist.
Richland No. 18CA96, 2019-Ohio-1509 (statutory scheme regarding award of legal
custody does not include a specific test or set of criteria, and a trial court must base its
decision on the best interest of the child).
{¶66} While the magistrate did not state exactly which best interest factors she
utilized, the magistrate clearly considered the interaction and interrelationship between
E.S. and Custodians/parents; the opinion of the GAL about the relationship between E.S.
and Custodians/parents; the custodial history of E.S.; the wishes of Custodians and
parents; E.S.’s adjustment to her home and school; the mental and physical health of
E.S.; and whether Custodians or Mother/Father have established or are planning to
establish a residence outside of Ohio. The magistrate reviewed these factors in
paragraphs fourteen through twenty-five of her decision. Similarly, the trial court
specifically considered and ruled on Custodians’ objections with regards to best interest
in its judgment entry.
{¶67} Custodians also argue the trial court erred in finding a grant of legal custody
to Mother and Father served the best interest of E.S. because the court ignored the
positive interactions E.S. had with Custodians, ignored the fact E.S. had been in
Custodians’ home for a long period of time, ignored the fact that E.S. was thriving in the
Richland County, Case No. 2022 CA 0064 26
home of Custodians, and ignored the substance of abuse of both Mother and Father in
its consideration of the best interest factors.
{¶68} We find the trial court’s best interest determination to be supported by
competent and credible evidence. The evidence indicates Custodians provided a home
in which E.S.’s basic, medical, and educational needs were being met. However, the
GAL and the visitation supervisor were concerned about Custodians’ actions with regard
to E.S.’s actions and bond with her parents. The magistrate found the testimony by T.J.
at trial regarding moving to Tennessee not credible, as he previously stated at the
December hearing that they were trying to build a life in Tennessee and move forward
with their life once adopting E.S. Issues relating to the credibility of witnesses and the
weight to be given to the evidence are primarily for the trier of fact. Seasons Coal Co. v.
City of Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Both Mother’s counselor
and Father’s counselor testified they do not have concerns about them providing a safe
and stable home for E.S. Mother and Father have been compliant with probation, and
have drug-tested negative for an extended period of time. Olivieri testified E.S. is bonded
to Mother and Father, but was not allowed to share this information with Custodians.
Howard testified it is in the best interest of E.S. for legal custody to be granted to Mother
and Father. Howard compiled a detailed report and gave extensive testimony as to why
she came to this conclusion. The trial court is in the best position to judge the credibility
of the witnesses, was able to observe the GAL’s and the other witnesses’ demeanor on
the stand.
{¶69} Custodians’ fourth assignment of error is overruled.
Richland County, Case No. 2022 CA 0064 27
V.
{¶70} In their fifth assignment of error, Custodians argue the trial court erred in
“misapplying Juvenile Rule 40” as the timely objections to the magistrate’s decision
operated as an automatic stay of execution of judgment until the trial court disposed of
the objections. Custodians contend the trial court ignored the automatic stay provision,
despite Custodians’ filing of the motion to vacate, by causing the immediate removal of
E.S. from Custodians’ home when the removal should not have occurred until the court
issued its ruling on Custodians’ objections. Though Custodians make this argument in
their assignment of error, they state in their brief that “[they] are not aware of caselaw
addressing such a failure and as such [have] no authority to support any proposed
remedy.”
{¶71} Custodians contend the trial court ignored the automatic stay provision
despite their filing of a motion to vacate/motion to set aside. However, pursuant to
Juvenile Rule 40(D)(2)(b), “the pendency of a motion to set aside does not stay the
effectiveness of the magistrate’s order, though the magistrate or the court may by order
stay the effectiveness of a magistrate’s order.” The filing of the motion itself does not stay
the proceedings; however, timely objections do. Though Custodians contend the trial
court disagreed with them, in the judgment entry, the trial court agreed with Custodians
that the “automatic stay” provision of Juvenile Rule 40 applied in this case because
Custodians filed timely objections. The trial court specifically stated it overruled
Custodians’ motion to set aside, “with the exception of Item 3 of the motion to set aside,”
which was the argument concerning the automatic stay provision of Juvenile Rule
40(D)(4)(e). However, the trial court essentially found that portion of Custodians’ motion
Richland County, Case No. 2022 CA 0064 28
to set aside moot, because it overruled the balance of Custodians’ objections. We find
the trial court did not commit error in finding Custodians’ objection with regard to the
automatic stay moot, as the trial court overruled the balance of their objections in the
judgment entry and Custodians propose no remedy for a violation of the automatic stay
when the custody determination of the magistrate is otherwise affirmed by the trial court.
{¶72} In their appellate brief, Custodians include information about their counsel’s
interaction with police officers regarding custody of E.S. immediately after the issuance
of the May 17, 2022 decision. However, the information regarding the execution of the
magistrate’s order by police officers is not contained in the record. It is only contained in
Custodians’ appellate brief. Neither Custodians’ original objections or supplemental
objections contain any argument or information about the immediate implementation of
the magistrate’s order. The motion to set aside states that Custodians move to set aside
the magistrate’s decision because, “the document purports * * * to be effective
immediately * * * notwithstanding the automatic stay Juv.R. 40(D)(4)(e)(i) imposes upon
the filing of objections to the magistrate’s decision.” There is no information in the motion
to set aside about police involvement, there are no affidavits attached to the motion to set
aside, and Custodians did not request a hearing on the motion to set aside. Similarly,
Custodians did not file a motion to stay execution or a notice of violation of automatic stay
with the trial court. In re J.A., 9th Dist. Summit No. 24332, 2009-Ohio-589; Tulley v.
Tulley, 11th Dist. Portage No. 2000-P-0044, 2001-Ohio-4307 (motion to stay execution
of judgment pending disposition of objections filed).
{¶73} The Ohio Supreme Court has noted, “a reviewing court cannot add matter
to the record before it that was not part of the trial court’s proceedings, and then decide
Richland County, Case No. 2022 CA 0064 29
the appeal on the basis of the new matter.” State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-
150, 748 N.E.2d 528 (2001). It is also a longstanding rule “that the record cannot be
enlarged by factual assertions in the brief.” Dissolution of Doty v. Doty, 4th Dist. Pickaway
No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock
Yards, 120 Ohio App. 55, 201 N.E.2d 227 (10th Dist. 1963). New material and factual
assertions contained in any brief in this Court may not be considered. See North v.
Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, quoting Dzina v.
Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 386.
{¶74} Custodians’ fifth assignment of error is overruled.
{¶75} Based on the foregoing, Custodians’ assignments of error are overruled.
The August 22, 2022 judgment entry of the Richland County Court of Common Pleas,
Juvenile Division, is affirmed.
By Gwin, P.J.,
Wise, J., and
King, J., concur