D.M v. J.D. , 2017 Ohio 4118 ( 2017 )

[Cite as D.M v. J.D., 2017-Ohio-4118.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
D.M., :
Appellant, : CASE NO. CA2016-08-010
: OPINION
- vs - 6/5/2017
:
J.D., :
Appellee. :
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. AD20070490
Kornman Law Office, LLC, Sharon A. Kornman, 731 S. South Street, P.O. Box 1041,
Wilmington, Ohio 45177, for appellant
Kathryn Janes, P.O. Box 827, 23 Woodland Avenue, Kingston, Ohio 45644, for appellee
PIPER, J.
{¶ 1} Plaintiff-appellant, D.M. (Mother), appeals a decision of the Fayette County
Court of Common Pleas, Juvenile Division, awarding custody of her son to his father,
defendant-appellee, J.D. (Father).
{¶ 2} Mother and Father were not married, and Father's paternity was established by
the juvenile court. Mother maintained custody of the child since his birth, but Father moved
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for custody after his parentage was established. The juvenile court ordered shared
parenting, and Mother was designated residential parent for school purposes.
{¶ 3} Three years later, Father again moved for custody. The juvenile court
interviewed the child, held multiple hearings, and eventually awarded custody to Father after
finding that a change of circumstances had occurred. Mother now appeals the juvenile
court's decision, raising three assignments of error. Because the three assignments of error
are interrelated, we will address them together for ease of discussion.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING A CHANGE OF
CIRCUMSTANCES.
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION FINDING THAT THE BEST
INTEREST OF THE CHILD IS SERVED BY GRANTING CUSTODY OF [THE CHILD] TO
FATHER.
{¶ 8} Assignment of Error No. 3:
{¶ 9} THE TRIAL COURT FAILED TO COMPLY WITH R.C. 3109.04(E)(1)(a) WHEN
IT DID NOT WEIGH THE HARM LIKELY TO BE CAUSED BY THE CHANGE OF
ENVIRONMENT AGAINST THE ADVANTAGES OF THE CHANGE IN ENVIRONMENT TO
THE CHILD.
{¶ 10} Mother argues in her three assignments of error that the juvenile court abused
its discretion by awarding custody of the child to Father.
{¶ 11} Juvenile 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 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
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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.
{¶ 12} In determining whether a modification of custody is warranted, the trial court
must follow R.C. 3109.04(E)(1)(a). Pursuant to that statute, the juvenile court cannot modify
a prior decree unless it first makes two express findings: (1) that there has been a change in
circumstances since the time of the prior decree, and (2) that the modification is necessary to
serve the best interest of the child.
{¶ 13} While 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).
{¶ 14} 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).
{¶ 15} Additionally, and according to R.C. 3109.04(E)(1)(a), a juvenile court is
required to retain the residential parent designated by the prior shared parenting decree
unless a modification is in the best interest of the child and one of the following applies, (1)
the residential parent agrees to the change, (2) the child, with the consent of the residential
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parent or of both parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent, or (3) the harm likely to be
caused by a change of environment is outweighed by the advantages of the change of
environment to the child.
{¶ 16} The juvenile court found that a change in circumstances had occurred since
the prior custody determination was made. Specifically, the court determined that "Mother's
choice of male companionship is of such concern as to qualify as a change of
circumstances."
{¶ 17} The record indicates that since the time Mother was named residential parent,
Mother has had several romantic relationships within a short amount of time. At least one of
these relationships was with a man who was later arrested while caring for the child.
Specifically, Mother allowed her boyfriend to supervise the child, and it was later discovered
on the day the boyfriend was caring for the child, he had cocaine and other drugs on his
person. A deputy testified at a hearing that he arrested Mother's boyfriend on a day that the
boyfriend was caring for the child, and that the boyfriend tried to hide the drugs in his mouth
when he knew of police presence. Mother's boyfriend was arrested for cocaine-related
offenses as well as tampering with evidence, and Mother had to come and pick up the child.
{¶ 18} The record also indicates the child reported that Mother's boyfriend smacked
him so hard in the face that one of his teeth fell out. There was also reference in the record
that the child reported a sexually-related encounter between the child's half-brother, the child,
and Mother's boyfriend in which the child stopped Mother's boyfriend from engaging in oral
sex with the child's half-brother.
{¶ 19} Mother's relationships with multiple men, and one in particular who was
accused of physical abuse and sexual conduct involving the child, indicate that
circumstances had changed since the time Mother was named residential parent. This is
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especially true where Mother placed the child in her boyfriend's care, and the boyfriend was
arrested for drug-related activity while the child was in his care. We therefore find that the
juvenile court did not abuse its discretion in finding that Mother's relationship choices
constituted a situation that had a material and adverse effect upon the child which resulted in
a change of circumstances.
{¶ 20} Despite the juvenile court's specific finding regarding the change in
circumstances, the record indicates that the juvenile court failed to make a finding that
changing custody was in the best interest of the child as required by statute.
{¶ 21} Absent a finding by the juvenile court that the change in custody is in the best
interest of the child, the juvenile court may not modify the prior decree. As such, we must
reverse the juvenile court's decision, and remand the matter so that the juvenile court may
make the required finding and address – specific to the best interest finding – whether the
harm likely to be caused by a change is outweighed by the advantages of the change.
{¶ 22} Having found that the juvenile court did not abuse its discretion in finding that a
change of circumstances occurred, but that the juvenile court must make further findings as
required by statute, we overrule Mother's first assignment of error, sustain her second, and
find moot her third.
{¶ 23} Judgment affirmed in part, reversed in part, and the cause is remanded for
further proceedings consistent with this opinion.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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