Depinet v. Norville , 2020 Ohio 3843 ( 2020 )

[Cite as Depinet v. Norville, 2020-Ohio-3843.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
MELISSA L. DEPINET,
PLAINTIFF-APPELLEE,
CASE NO. 16-19-04
v.
SHARON K. NORVILLE,
DEFENDANT-APPELLANT,
-and- OPINION
ROBERT L. NORVILLE, JR.,
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Juvenile Division
Trial Court No. G2182029
Judgment Affirmed
Date of Decision: July 27, 2020
APPEARANCES:
Gene P. Murray for Appellant
Kelle M. Saull for Appellee, Melissa L. Depinet
Case No. 16-19-04
PRESTON, J.
{¶1} Defendant-appellant, Sharon K. Norville (“Norville”), appeals the
August 22, 2019 judgment of the Wyandot County Court of Common Pleas,
Juvenile Division granting plaintiff-appellee, Melissa L. Depinet (“Depinet”), legal
custody of Norville’s two minor daughters, B.N. (DOB: 2003) and S.N. (DOB:
2013). For the reasons that follow, we affirm.
{¶2} B.N. and S.N. are the minor daughters of Norville and Robert L.
Norville, Jr. (“Robert”).1 On September 13, 2018, Depinet filed a complaint seeking
legal custody of B.N. and S.N. (Doc. No. 1). That same day, Depinet filed a motion
for an emergency ex parte order naming her the emergency temporary legal
custodian of B.N. and S.N. (Doc. No. 2). (See Doc. Nos. 3, 4). Later that day, the
trial court granted Depinet’s motion for emergency temporary custody of B.N. and
S.N. (Doc. No. 6). In its decision, the trial court granted Norville supervised
visitation at Hannah’s House and instructed the parties to immediately contact
1
Although Robert is a party to the complaint, at the time of the final hearing he was incarcerated in a state
penal institution with a sentence that was not set to expire for more than five years from the date of the final
hearing. (See Doc. Nos. 1, 4, 39, 49, 50); (Feb. 28, 2019 Tr. at 6-7. 111). Robert failed to answer Depinet’s
complaint for legal custody and did not appear at any of the trial court proceedings, send a representative on
his behalf, or object to the trial court’s findings despite being duly served. (See Doc. Nos. 1, 4, 13, 15, 16,
17, 19, 22, 39, 49, 50); (Feb. 28, 2019 Tr. at 6-7). Accordingly, our analysis will focus exclusively on the
trial court’s findings as they relate to Norville.
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Hannah’s House to initiate visitation. (Id.). On October 10, 2018, Norville filed
her answer to Depinet’s complaint for legal custody. (Doc. No. 19).
{¶3} A hearing on Depinet’s complaint for custody was held before a
magistrate on February 28, 2019 and March 7, 2019. (Doc. Nos. 39, 49, 50). On
April 5, 2019, the magistrate filed her decision recommending that Depinet be
named the legal custodian of B.N. and S.N. (Doc. No. 39). On April 19, 2019,
Norville filed objections to the magistrate’s decision, two of which are relevant to
this appeal. (Doc. No. 40). First, Norville objected to the magistrate’s finding that
she is an “unsuitable parent.” (Id.). Specifically, Norville referenced Depinet’s
return of Norville’s minor son, C.N., to Norville’s care and alleged that this action
resulted in the “reversible and inescapable” conclusion that Depinet “only wanted
[Norville’s] girls and not her boy” and violated her constitutional rights of due
process and equal protection. (Id.). Second, Norville incorporated by reference all
objections raised on her behalf at the final hearing. (Id.). On July 5, 2019, Depinet
filed her response to Norville’s objections to the magistrate’s decision. (Doc. No.
48). On August 8, 2019, the trial court overruled Norville’s objections and adopted
the magistrate’s decision. (Doc. No. 49). On August 22, 2019, the trial court filed
a judgment entry granting Depinet legal custody of B.N. and S.N. (Doc. No. 50).
{¶4} On September 23, 2019, Norville filed her notice of appeal. (Doc. No.
53). She raises three assignments of error for our review. For ease of discussion,
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we elect to address Norville’s assignments of error out of order. We will first
address Norville’s second assignment of error. We will then discuss Norville’s first
and third assignments of error together.
Assignment of Error No. II
The juvenile court of Wyandot County lacked jurisdiction, as
there was no personal jurisdiction, nor subject matter jurisdiction
ever established, nor shown in Wyandot County in this case; and
accordingly, the Wyandot County Juvenile Court cannot bestow
jurisdiction upon itself, when it has none, as none was shown nor
established, thereby resulting in plain error.
{¶5} In her second assignment of error, Norville argues that the Wyandot
County Court of Common Pleas, Juvenile Division lacked personal jurisdiction over
her and subject-matter jurisdiction. We disagree.
{¶6} First, we conclude that Norville has waived her right to challenge
personal jurisdiction. “[A]n objection to personal jurisdiction is waived by a party’s
failure to assert a challenge to such jurisdiction at its first appearance in the case.”
In re A.L.W., 11th Dist. Portage Nos. 2011-P-0050, 2011-P-0051 and 2011-P-0052,
2012-Ohio-1458, ¶ 37, citing McBride v. Coble Express, Inc., 92 Ohio App.3d 505,
510 (3d Dist.1993). Here, the record is devoid of any evidence indicating that
Norville previously asserted such a challenge. Accordingly, Norville has forfeited
her right to challenge personal jurisdiction on appeal. See In re P.O., 11th Dist.
Geauga No. 2015-G-0028, 2015-Ohio-4774, ¶ 23 (appellant failed to challenge the
juvenile court’s jurisdiction over her person in a custody proceeding and therefore
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“forfeited any such challenge on appeal”); In re G.D., 9th Dist. Summit No. 27855,
2015-Ohio-4669, ¶ 19 (appellant waived any challenge to the trial court’s personal
jurisdiction in a permanent custody proceeding where the appellant “did not object
to service, appeared at the permanent custody hearing, and fully participated in the
hearing”).
{¶7} However, “[b]ecause subject-matter jurisdiction goes to the power of
the court to adjudicate the merits of a case, it can never be waived and may be
challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶
11, citing United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781 (2002) and
State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). “The juvenile court
has jurisdiction to determine the custody of any child not a ward of another court,
even though the court has not first found the child to be delinquent, neglected, or
dependent.” In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, ¶ 42, citing In re
Torok, 161 Ohio St. 585 (1954), paragraphs one and two of the syllabus. “This
exclusive responsibility ‘to determine the custody of any child not a ward of another
court of this state’ cannot be avoided merely because the petitioner is not a ‘parent’
under R.C. 3109.04.” Id., quoting R.C. 2151.23(A)(2). See also In re J.R.A., 4th
Dist. Washington No. 13CA18, 2014-Ohio-4463, ¶ 28 (“Nonparents can bring
custodial claims for children who are not wards of another court of this state under
R.C. 2151.23(A)(2).”); Juv.R. 10(A) (stating that “[a]ny person may file a complaint
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to have determined the custody of a child not a ward of another court of this state”);
R.C. 2151.27(D) (“Any person with standing under applicable law may file a
complaint for the determination of any other matter over which the juvenile court is
given jurisdiction by Section 2151.23 of the Revised Code.”). Thus, because B.N.
and S.N. were not wards of the state, the Wyandot County Court of Common Pleas,
Juvenile Division had subject-matter jurisdiction over Depinet’s complaint for
custody. See Varney v. Allen, 4th Dist. Ross No. 16CA3543, 2017-Ohio-1409, ¶ 17.
{¶8} Accordingly, Norville’s second assignment of error is overruled.
Assignment of Error No. I
In an abuse of the trial court’s discretion, there were denials of
the fundamental and substantial rights to due process of law and
of equal protection of the laws, as guaranteed by the respective
namesake clauses of the Fourteenth Amendment to the
Constitution of the United States, and also there was a correlative
total negation of the magistrate’s and trial court’s decisive
premise that appellant (Mother) Sharon Norville was an
unsuitable (unfit) parent, for the magistrate and trial court
allowed the return of the appellant’s minor child, a boy, to the
custody of the defendant-appellant mother, while granting the
plaintiff-appellee’s motion to obtain custody of the appellant’s
other minor children, two girls, on the untenable grounds, both
figuratively and literally, that the plaintiff-appellee could not
handle the boy, and so the defendant-appellant mother could have
him back, and the plaintiff-appellee could keep the girls.
Assignment of Error No. III
In an abuse of its discretion, the trial court reversibly erred in
expressly ruling that “the court in review of the transcripts finds
there were a few objections that were not decided correctly,
however, these errors would not change the ultimate ruling in this
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matter, given the weight of the admissible evidence in support of
the magistrate’s decision.” (From page 6 in the August 8, 2019
judgment entry in the trial court) Wherefore, or wherefore art
thou, objectionwise, it is respectfully submitted as an assignment
of error that such a trial court ruling is prima facie inherently
impossible to discern or glean appealable issues therefrom, and
accordingly violates the defendant-appellant mother’s
fundamental and substantial right to due process of law, as
guaranteed by the Fourteenth Amendment to the Constitution of
the United States, and as also guaranteed by Article I, Section 16
of the Constitution of the State of Ohio.
{¶9} In her first assignment of error, Norville makes two arguments. First,
Norville argues that the trial court erred by determining that she is an unsuitable
parent. Second, Norville argues that the trial court employed “gender bias” by
granting Depinet legal custody of B.N. and S.N., but not C.N., Norville’s minor son
and B.N. and S.N.’s brother. In her third assignment of error, Norville argues that
the trial court erred by summarily overruling her objection to the magistrate’s
decision in which she reasserted all of her objections raised at the final hearing.
{¶10} “An appellate court reviews the trial court’s decision to adopt, reject
or modify the Magistrate’s decision under an abuse of discretion standard.” Tewalt
v. Peacock, 3d Dist. Shelby No. 17-10-18, 2011-Ohio-1726, ¶ 31, citing Figel v.
Figel, 3d Dist. Mercer No. 10-08-14, 2009-Ohio-1659, ¶ 9, citing Marchel v.
Marchel, 160 Ohio App.3d 240, 2005-Ohio-1499, ¶ 7 (8th Dist.). The trial court
may adopt, reject, or modify the magistrate’s decision. Civ.R. 53(D)(4)(b). When
ruling on objections to the magistrate’s decision, the trial court is “not required to
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follow or accept the findings or recommendations of its magistrate.” (Citations
omitted.) Stumpff v. Harris, 2d Dist. Montgomery No. 21407, 2006-Ohio-4796, ¶
16. Instead, the trial court “shall undertake an independent review as to the objected
matters to ascertain that the magistrate has properly determined the factual issues
and appropriately applied the law.” Civ.R. 53(D)(4)(d); Stumpff at ¶ 16.
Accordingly, the trial court reviews the magistrate’s decision under a de novo
standard of review. Stumpff at ¶ 16.
{¶11} “‘Decisions concerning child custody matters rest within the sound
discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-
Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-
Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-
Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where 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.”’” Id., quoting Walker at ¶ 46, quoting Barto v.
Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and citing Bechtol v.
Bechtol, 49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion
must be found in order to reverse the trial court’s award of child custody.’” Id.,quoting Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d
83, 85 (1994). “‘An abuse of discretion suggests the trial court’s decision is
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unreasonable or unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist.
Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). “If there is some competent, credible evidence in the record
to support the trial court’s decision, there is generally no basis for a reviewing court
to find an abuse of discretion.” In re Medure, 7th Dist. Columbiana No. 01 CO 3,
2002 WL 31114919, *2, citing Ross v. Ross, 64 Ohio St.2d 203, 205 (1980).
{¶12} In this case, Norville disputes the trial court’s decision granting
Depinet, a nonparent, legal custody of B.N. and S.N. “It is without question that
parents have a constitutionally protected due process right to make decisions
concerning the care, custody, and control of their children, and the parents’ right to
custody of their children is paramount to any custodial interest in the children
asserted by nonparents.” Rowell v. Smith, 10th Dist. Franklin No. 12AP-802, 2013-
Ohio-2216, ¶ 27, citing In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 11,
citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054 (2000), and citing In re
Murray, 52 Ohio St.3d 155, 157 (1990) and Clark v. Bayer, 32 Ohio St. 299, 310
(1877). “Still, ‘the natural rights of a parent are not absolute, but are always subject
to the ultimate welfare of the child, which is the polestar or controlling principle to
be observed.’” (Citation omitted.) In re B.N.R., 2d Dist. Montgomery No. 28662,
2020-Ohio-2852, ¶ 13, quoting In re Cunningham, 59 Ohio St.2d 100, 106 (1979).
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{¶13} In legal custody disputes between parents and nonparents under R.C.
2151.23(A)(2) “parents may be denied custody only if a preponderance of the
evidence indicates abandonment, contractual relinquishment of custody, total
inability to provide care or support, or that the parent is otherwise unsuitable that is,
that an award of custody would be detrimental to the child.” In re Perales, 52 Ohio
St.2d 89, 98 (1977), citing Clark at 310. See also In re Hockstok, 98 Ohio St.3d
238, 2002-Ohio-7208, ¶ 17. Because the trial court determined that abandonment,
contractual relinquishment of custody, and total inability to provide care and support
were not indicated under the facts in the record, our analysis will focus only on the
issue of unsuitability. Before awarding legal custody to a nonparent in a parentage
action between a parent and a nonparent, a trial court must make a parental-
unsuitability determination on the record. Hockstock at syllabus. “As long as the
trial court’s determination of unsuitability is supported by a substantial amount of
credible and competent evidence, an appellate court will not disturb it.” Nicholas
A. v. Joseph P., 5th Dist. Tuscarawas No. 2019 AP 03 0009, 2019-Ohio-4423, ¶ 19,
citing Radka v. McFall, 9th Dist. Lorain No. 04CA008438, 2004-Ohio-5181, ¶ 7,
citing In re Adams, 9th Dist. Wayne No. 01CA0026, 2001 WL 1338952 (Oct. 31,
2001).
{¶14} “Furthermore, in proceedings involving the custody and welfare of
children, the power of the trial court to exercise discretion is peculiarly important.”
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Id. at ¶ 20, citing In re Fout, 5th Dist. Delaware No. 04 CA-F 05036, 2005-Ohio-
4344, ¶ 6, citing In re Rossantelli Children, 5th Dist. Delaware No. 01CAF12072,
2002-Ohio-2525 (additional citations omitted). “Because custody issues are some
of the most difficult and agonizing decisions a trial judge must make, he or she must
have wide latitude in considering all the evidence.” Id., citing Davis v. Flickinger,
77 Ohio St.3d 415, 418 (1997). “In analyzing the difficult decisions that must be
made by trial courts in these situations, we remain mindful that 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.” Id., citing In re A.C., 12th Dist. Butler No.
CA2006-12-105, 2007-Ohio-3350, ¶ 14. The nonparent seeking custody bears the
burden of demonstrating that the parent is unsuitable. Scavio v. Ordway, 3d Dist.
Shelby No. 17-09-07, 2010-Ohio-984, ¶ 22, citing In re Porter, 113 Ohio App.3d
580 (3d Dist.1996).
{¶15} Norville argues that the trial court erred by determining that she was
an unsuitable parent to B.N. and S.N. and that an award of custody to Norville would
be detrimental to the girls.
{¶16} In the magistrate’s decision, the magistrate found by a preponderance
of the evidence that Norville is unsuitable “under the standard that removing the
children from the only stable environment that they have had for two years would
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be detrimental and not in their best interest.” (Doc. No. 39). The magistrate
recommended that Depinet be granted legal custody of B.N. and S.N. (Id.).
{¶17} After conducting an independent review, the trial court overruled
Norville’s objections and adopted the magistrate’s decision. (Doc. No. 49). The
trial court noted that Norville has “provided [her] children with a childhood full of
trauma.” (Id.). The trial court referenced Jennifer L. Depinet’s (“Jennifer”)
testimony that Norville’s home was overcrowded and that “the home itself was a
poor environment in which to raise young children.” (Id.). The trial court found
that photographs entered into evidence supported Jennifer’s testimony regarding the
poor condition of the home. (Id.). In particular, the trial court noted that the home
was a particular health hazard to S.N. because she was too young to appreciate the
“obvious hazards.” (Id.).
{¶18} In its judgment entry, the trial court noted that Norville “seems to have
a history of leaving these girls behind.” (Id.). The trial court referenced the fact
that although Norville enjoyed “sporadic” visitation with B.N. and S.N. when she
believed the girls were in Jennifer’s care, Norville did not engage in any visitation
with B.N. or S.N. after the trial court granted her supervised visitation at Hannah’s
House in the September 13, 2018 judgment entry. (Id.). The trial court found that
“[Norville’s] excuse for not seeing her two girls from September 13, 2018 to the
date of the hearings appears to be her ego.” (Id.). In support of this contention, the
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trial court referenced Norville’s testimony that the reason she did not engage in
supervised visitation with her daughters for a period of eight months was that she
never had supervised visits with any of her other children and did not plan on
starting supervised visitations now. (Id.). The trial court stated, “[o]ne would think
a competent, caring parent would ‘start now’ because she loved her children, would
want to see them, and check on their welfare.” (Id.). The trial court noted that the
fact that Norville was willing to forfeit visitations with B.N. and S.N. for an
extended period of time, “and for no good reason,” is evidence of Norville’s lack of
parental bond with B.N. and S.N. (Id.).
{¶19} The trial court made the following findings with respect to Norville’s
care of B.N. and S.N.:
When Mother had the children in her care, there is evidence that she
neglected their care and well being aside from the deplorable living
conditions she provided. S.N. did not have her necessary shots and
was also suffering with 8 cavities in her teeth. Additionally, Mother
had no problem leaving S.N. in the care of a man that S.N. did not
even know. Finally, a social worker, the CASA assigned to this case
and S.N.’s adult sister all noted that S.N. had problems focusing and
was always “bouncing off the walls,” but [Depinet] had her seen by a
medical professional who prescribed medication for S.N.’s condition.
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S.N., with medication is, “a different kid” she is no longer “bouncing
off the walls, unable to focus and shouting out.” With medication
S.N. can now focus and carry on a conversation. S.N. is no longer
getting “bad notes” and she is “so much better in school.” However,
Mother found Plaintiff’s intervention in helping S.N. objectionable
and she was against S.N. being placed on medication, despite the
improvements in S.N.’s behavior. Mother noted S.N. did not need
medication while in her care but there was no evidence Mother even
had S.N. medically evaluated. Since Mother did not address S.N.’s
vaccinations in a timely fashion [and] failed to recognize S.N.’s need
for dental attention, it is likely Mother also ignored S.N.’s disturbing
behaviors, which if left unaddressed could negatively impact S.N.’s
education and social development.
(Internal citations omitted.) (Doc. No. 49).
{¶20} The trial court also found that in the approximately one and one-half
years that B.N. and S.N. have lived with Depinet, Norville has not supported them
financially. (Id.). The trial court found, “Mother was content to have the children
live with someone else, and allowed someone else to meet the children’s needs.
Mother failed to act responsibly toward these children only fitting them into her life
when it was convenient for her to do so.” (Id.). The trial court then juxtaposed
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Norville’s attitude toward the children with Depinet’s willingness to sacrifice for
them. (Id.). The trial court found that Depinet “has provided a clean home, medical
care, counseling, and stability for these children.” (Id.). The trial court also
referenced the guardian ad litem’s (“GAL”) testimony that B.N. and S.N. wished to
remain with Depinet. (Id.). The trial court concluded that after an independent
review, there is “ample evidence” to support the magistrate’s decision. (Id.). The
trial court then overruled Norville’s objections and adopted the magistrate’s April
5, 2019 decision. (Id.). (See Doc. No. 50).
{¶21} We conclude that the trial court did not abuse its discretion by granting
Depinet legal custody of B.N. and S.N. because a substantial amount of competent,
credible evidence supports the trial court’s finding that Norville is an unsuitable
parent to B.N. and S.N. and that awarding custody to Norville would be detrimental
to them.
{¶22} Several witnesses testified during the two-day hearing on Depinet’s
motion for legal custody of B.N. and S.N. Justin Johnson (“Johnson”), the principal
for grades 5 through 12 at B.N.’s school, testified that he has known B.N., who at
the time of the hearing was a freshman in high school, since her eighth-grade year
and sees her every school day. (Feb. 28, 2019 Tr. at 13-15). Johnson testified that
it was his understanding that B.N. had lived with Norville during the 2017-2018
academic year and was living with Depinet during the 2018-2019 academic year.
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(Id. at 14). Johnson testified that he noticed an improvement in B.N.’s grades, effort,
and participation in her courses from the 2017-2018 academic year to the 2018-2019
academic year. (Id. at 15-17). (See Plaintiff’s Ex. 1). Johnson further testified that
B.N. missed 12 days of school during the 2017-2018 academic year, but only missed
3 days during the 2018-2019 academic year. (Feb. 28, 2019 Tr. at 15, 22-23). (See
Plaintiff’s Ex. 1). Johnson further testified that Depinet was involved with B.N.’s
education during the 2018-2019 academic year and that Depinet, not Norville,
enrolled B.N. in school for the 2018-2019 academic year and attended her parent-
teacher conferences. (Feb. 28, 2019 Tr. at 18-20).
Jennifer, Norville’s adult daughter and B.N. and S.N.’s sister, also testified
at the final hearing. (Feb. 28, 2019 Tr. at 30). Jennifer is the oldest of Norville’s
six children. (Id. at 38-39). Jennifer testified that she is in a relationship with
Depinet’s son, Blayne Depinet (“Blayne”), and has been living in Depinet’s house
since May 2017. (Id. at 32). Jennifer testified that B.N. and S.N. began living in
Depinet’s house with her in September 2017. (Id.). Immediately prior to living
with Depinet, B.N. and S.N. lived with their siblings, Norville, and Robert in a home
in New Riegel, Ohio. (Id. at 32, 35). Jennifer described the home in New Riegel as
dirty, cluttered with soiled clothes and garbage, and infested with rodents. (Id. at
32-34). Additionally, Jennifer testified that the home had inadequate space for the
number of residents and animals living there. (Id. at 32-33). Jennifer testified that
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B.N. slept on the couch, which was infested with rodents, because her bedroom was
cluttered and dirty, and S.N. slept in Norville’s room. (Id. at 33-35). Plaintiff’s
Exhibit 10, a composite of photos of Norville’s New Riegel house, depicted a house
full of garbage, clutter, and animal feces. (Id. at 34-49). (See Plaintiff’s Ex. 10).
One of the photographs depicted a device for smoking marijuana sitting on a counter
in the home. (Plaintiff’s Ex. 10); (Feb. 28, 2019 Tr. at 39-40). Another photograph
depicted B.N.’s room, which had clutter and trash throughout and dog feces on the
carpeted floor. (Plaintiff’s Ex. 10); (Feb. 28, 2019 Tr. at 46). Jennifer, who had
lived in the house, testified that the New Riegel house was not a nice place to live
and opined that it was not a suitable home for two girls to reside. (Feb. 28, 2019 Tr.
at 49).
{¶23} Jennifer testified that during the summer of 2017, B.N. and S.N. were
living in a camper with their parents and siblings because there was a warrant out
for Robert’s arrest and the family was “hiding out” to avoid Robert’s arrest. (Id. at
36-37). Eventually, the camper was raided by law enforcement while B.N. and S.N.
were present, and Robert was arrested. (Id. at 37-38).
{¶24} Additionally, Jennifer stated that she observed Norville under the
influence of drugs while B.N. and S.N. were in her care. (Id. at 55-56). Jennifer
recalled occasions of seeing white powder on the side of Norville’s nose, which
Jennifer believed was residue from drug use. (Id. at 55). Jennifer described a
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September 2017 event which precipitated B.N. and S.N. moving into Depinet’s
home on a full-time basis. (Feb. 28, 2019 Tr. at 50, 59). Jennifer testified that she
received a telephone call from B.N. telling her that Norville was “really sick.” (Id.
at 50). Jennifer took Norville to the hospital and while there, Jennifer overheard
Norville tell a doctor that she had used carfentanil. (Id. at 51). While Norville was
in the hospital, Depinet picked up the girls and took them to her home, where
Jennifer had already been living for several months, to stay while Norville
recovered. (Id. at 51, 59). Shortly thereafter, B.N. and S.N. began living with
Depinet on a full-time basis. (Id. at 59-60). Soon thereafter, Robert and Norville
ended their relationship, and Norville moved in with her sister and “kind of left
everybody behind,” including her children, who were living in the New Riegel
home. (Id. at 59). Norville eventually began dating James Miller (“Miller”) and
moved into his home a short time later. (Id. at 68-70).
{¶25} Jennifer testified that the lifestyle she described, including running
from law enforcement officers, police raids on their property, drug use in the home,
and the house being unkept, was how she, B.N. and S.N. lived for several years in
Norville’s care. (Id. at 38). In contrast, Jennifer described Depinet’s home, where
the girls had been living for approximately a year and a half at the time of the final
hearing, as being clean and appropriate with adequate space for its residents. (Id. at
31). At Depinet’s house, B.N. and S.N. share a clean and organized bedroom, and
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the girls have beds to sleep in. (Id. at 43). Moreover, Jennifer testified that there is
not drug use in Depinet’s house. (Id. at 58-59, 105). Jennifer testified that the girls
regularly complete their schoolwork at Depinet’s house. (Id. at 91). In contrast,
while living with Norville, B.N.’s grades were “going downhill,” and B.N. had to
complete her homework at school because Norville’s house was too chaotic. (Id. at
91-92). Jennifer also testified that when B.N. lived with Norville, there was a time
when B.N. did not attend school regularly and would occasionally miss school to
provide childcare for S.N. (Id. at 58). However, since living with Depinet, B.N. is
attending school regularly and is involved in sports. (Id. at 57-58). S.N. is now
enrolled in preschool and interacts with other children her age. (Id. at 99).
{¶26} Additionally, Jennifer testified that Depinet provides for B.N. and
S.N.’s medical, dental, and vision needs. (Feb. 28, 2019 Tr. at 93-95, 102-104).
Jennifer testified that when B.N. and S.N. lived with Norville, they did not regularly
visit the pediatrician. (Id. at 93-94, 131-132). Consequently, S.N. was initially not
able to enroll in preschool because she was not up-to-date on her vaccines. (Id. at
87-88). Jennifer testified that she and Depinet facilitated S.N.’s medical care,
including getting her up-to-date on vaccines. (Id. at 94). Depinet also facilitated
routine eye care for B.N. and S.N. (Id. at 99-100). Additionally, Jennifer testified
that B.N. and S.N. have received appropriate dental care since living in Depinet’s
home. (Id. at 102-104). In fact, when S.N. visited the dentist for the first time since
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she moved into Depinet’s home, S.N. had multiple cavities, which Depinet
facilitated getting filled. (Id. at 103-104). S.N. also attends counseling that Depinet
pays for, which Jennifer testified has been beneficial to S.N. (Id. at 106).
{¶27} Moreover, Jennifer testified that S.N.’s behavior has improved
dramatically since she moved into Depinet’s home. (Id. at 57-58). Since moving
in with Depinet, S.N. has been diagnosed with ADHD and is in occupational therapy
to improve her ability to focus. (Id. at 99-102). S.N. also takes prescribed
medication to help her focus. (Id. at 99-101, 119-120). Jennifer stated that she has
noticed a substantial improvement in S.N.’s behavior since she began therapy and
medication and described S.N. as a “completely different kid” who is now able to
focus and carry on a proper conversation. (Id. at 128-129). Jennifer testified that
S.N. also displayed hyperactive behaviors when she was living with Norville. (Id.
at 128). However, Norville never sought a diagnosis, treatment, or medication for
S.N. (Id. at 101).
{¶28} Additionally, Jennifer stated that Depinet supports B.N. and S.N.
financially. (Id. at 57). In fact, in the many months that B.N. and S.N. have lived
with Depinet, Norville provided almost no financial support for the girls. (Id. at 90-
91). Rather, Depinet pays for B.N. and S.N.’s living expenses, including medical
and dental care, therapy, counseling, school enrollment and tuition, and athletics.
(Id. at 57, 107-108).
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{¶29} Jennifer testified that since B.N. and S.N. began living with Depinet
in the fall of 2017, Norville saw the girls sporadically, including on a handful of
weekend or overnight visits. (Feb. 28, 2019 Tr. at 61-64, 132-135). During these
visits, B.N. and S.N. met Miller several times. (Id. at 70-72). Following a weekend
visit during Labor Day weekend in 2018, B.N. was very upset and told Jennifer that
Miller made comments about B.N.’s physical appearance—specifically that B.N.
looked like Norville, walked like Norville, and wears similar underwear to Norville.
(Id. at 72-77). Jennifer testified that B.N. was very upset by Miller’s comments.
(Id. at 76-77). Shortly thereafter, Norville came to Depinet’s house with law
enforcement officers and removed B.N. and S.N. from Depinet’s home against the
girls’ wishes. (Id. at 86-89). After Norville removed B.N. and S.N. from Depinet’s
home, Depinet immediately petitioned the trial court for emergency custody of the
girls. (Id. at 86). The trial court granted Depinet’s petition for emergency custody,
and the girls were returned to Depinet’s home the following week, where they have
remained ever since. (Id. at 86-88). Jennifer testified that Norville has not exercised
court-ordered visitation with B.N. and S.N. since the trial court granted Depinet
emergency custody of the girls, and Norville has only seen the girls at a basketball
game. (Id. at 104). Moreover, although S.N. initiates telephone conversations with
her mother, Norville has only initiated telephone contact with S.N. approximately
five times in the time that S.N. has been living with Depinet. (Id. at 104-105).
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{¶30} Jennifer testified that her younger brother, C.N., lived with Depinet
throughout the summer of 2018, upon his release from a juvenile detention center.
(Id. at 64). However, C.N. became violent with the girls. (Id. at 66, 68). Jennifer
testified specifically about an incident when C.N. “got physical” during a visit to
the doctor’s office, shoved her, and then pulled B.N. off of the examination table.
(Id. at 66). Following that incident, C.N. returned to Norville’s care, where he
remained at the date of the hearing. (Id.).
{¶31} Jennifer opined that it is in B.N. and S.N.’s best interest for the trial
court to grant Depinet legal custody of the girls. (Id. at 40, 106). Jennifer testified
that she would be “extremely concerned” for B.N. and S.N. if they were returned to
Norville’s care, citing Norville’s lifestyle, drug use, and the inadequate amount of
space for the girls in Norville’s current home. (Id. at 40, 54).
{¶32} Ryan Hampshire (“Hampshire”), a caseworker with the Seneca
County Department of Job and Family Services (“JFS”), testified that on August 27,
2018, his office received a complaint regarding possible sexual abuse and neglect
of B.N. and S.N. by Miller and Norville. (Feb. 28, 2019 Tr. at 146-148). After
speaking to the relevant parties, Hampshire concluded that the specific allegations
of sexual abuse and neglect were unsubstantiated. (Id. at 150). However,
Hampshire testified that, through his investigation, he concluded that some “very
inappropriate” interactions had occurred between Miller and B.N. (Id. at 154).
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Nevertheless, because Depinet had received temporary custody of B.N. and S.N.
and Miller, the alleged perpetrator, no longer had access to the girls, Hampshire
determined that no further services from his agency were indicated. (Id. at 150,
152). Hampshire testified that if B.N. and S.N. were living with Norville and Miller,
he would have taken additional steps in his investigation. (Id. at 152-154).
{¶33} Depinet testified at the final hearing in support of her complaint for
legal custody of B.N. and S.N. (Id. at 159). Depinet stated that her first connection
to the Norville family was when her son, Blayne, began dating Jennifer. (Id. at 161-
162). In the summer of 2017, Jennifer began living with Blayne at Depinet’s home.
(Id. at 162). At that time, B.N. and S.N. began visiting Jennifer at Depinet’s home
and would occasionally spend the night. (Id. at 162-163). Depinet testified that in
August of 2017, she became concerned about the girls’ well-being when she learned
that they were living in a camper in a local campground and that there was a warrant
issued for Robert’s arrest. (Id. at 163-164). Following the raid of the camper and
Norville’s hospitalization, B.N. and S.N. began to live with Depinet full-time. (Id.
at 164-166). Depinet testified that, initially, she believed that once Norville was
feeling better, she would take an interest in B.N. and S.N. and want them back. (Id.
at 165-166, 217). However, Norville did not take an interest in the girls after she
recovered. (Id. at 166, 217). Depinet testified that once B.N. and S.N. began living
in her home full-time in September 2017, they have lived with her continuously ever
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since, with the exception of the week they were returned to Norville in September
2018 before the trial court granted Depinet’s petition for temporary emergency
custody of the girls. (Id. at 167-168).
{¶34} Depinet testified to B.N. and S.N.’s physical condition when they first
came into her care. (Id. at 168). According to Depinet, B.N. had a burn on her chest
and S.N. was suffering from a severe diaper rash. (Id.). Depinet treated both of the
girls’ conditions. (Id.). Depinet testified that when the girls entered her care, they
were also behind on their medical care. (Id. at 170). When Depinet registered S.N.
for preschool, she learned that she was behind on her vaccines, and Depinet
subsequently took her to a doctor’s appointment to get her up-to-date. (Id.).
Additionally, the girls needed dental care. (Id.). At S.N.’s first dental appointment
since entering Depinet’s care, the dentist found eight cavities in the four-year-old’s
mouth. (Id.). Depinet facilitated getting S.N.’s cavities filled and paid the bills.
(Id. at 170-171). Additionally, both girls required glasses. (Id. at 171-173).
{¶35} Depinet testified to a number of behavioral issues that S.N. exhibited
when she first came into Depinet’s care. (Feb. 28, 2019 Tr. at 172-174, 177).
Through a series of interactions with professionals, S.N. was diagnosed with ADHD
and sensory issues. (Id. at 173-175). As a result of her diagnosis, S.N. takes
medication and is enrolled in occupational therapy. (Id. at 175). Depinet testified
that she has noticed an improvement in S.N.’s behavior since she began treatment.
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(Id. at 175-176). Depinet further testified that when she entered her care, S.N.
commonly used profanity. (Id. at 177). Depinet testified that S.N. now understands
that she cannot use profanity in her home. (Id.). S.N. is currently enrolled in
preschool and is doing well. (Id. at 179-180). When she began preschool, her
behavior was a concern, but Depinet testified that S.N.’s behavior in preschool has
greatly improved and she no longer received “bad notes” from school. (Id. at 179).
{¶36} Depinet testified that C.N., who was twelve years old at the time, lived
with her during the summer of 2018. (Feb. 28, 2019 Tr. at 184). However, at the
end of the summer, C.N. was violent with the girls in a doctor’s office. (Id. at 186);
(Mar. 7, 2019 Tr. at 337). Depinet also described an incident where C.N. pointed a
BB gun at B.N. and S.N.’s heads and threatened to kill them. (Feb. 28, 2019 Tr. at
186-187); (Mar. 7, 2019 Tr. at 337). He later broke the gun in half with a baseball
bat. (Feb. 28, 2019 Tr. at 186-187). Depinet testified that following the violent
incidents, C.N. returned to Norville’s home where he remained at the time of the
final hearing. (Id. at 187); (Mar. 7, 2019 Tr. at 337-338). Depinet testified that until
the incidents, C.N. did well in Depinet’s care. (Mar. 7, 2019 Tr. at 338). Depinet
further testified that she would be open to having C.N. live in her home if she was
empowered to provide him with the counseling that he needs. (Id. at 338-339).
{¶37} Depinet confirmed Jennifer’s testimony that after B.N. and S.N.
moved in with Depinet in September 2017, they had sporadic and inconsistent
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visitation with Norville until September 2018. (Feb. 28, 2019 Tr. at 180-189).
Depinet testified that from September 2017 through the date of final hearing, B.N.
had four overnight visitations with Norville and S.N. had five overnight visitations
with Norville. (Id. at 189). Depinet testified that she was aware of the concerns
that B.N. expressed to Jennifer regarding statements Miller made to B.N. (Id. at
189-190). After consulting legal counsel, Depinet contacted JFS to report the
incident. (Id.). Shortly thereafter, on September 5, 2018, Norville arrived at
Depinet’s home with law enforcement officers to remove B.N. and S.N. from the
residence. (Id. at 191-192). Thereafter, Depinet sought and obtained emergency
custody of B.N. and S.N. (Id. at 192).
{¶38} Depinet testified that immediately after she obtained emergency
custody of B.N. and S.N., she contacted Hannah’s House and completed her initial
intake so that the girls could have supervised visitation with Norville in accordance
with the emergency order. (Id. at 195). However, Norville did not make contact
with Hannah’s House. (Id. at 196). Accordingly, Norville did not exercise visitation
with B.N. and S.N. at Hannah’s House. (Id.). According to Depinet, B.N. and S.N.
have not expressed a desire to live with Norville. (Id. at 206). In fact, B.N. wants
very limited contact with Norville. (Id.).
{¶39} Depinet attested that she provides a clean, safe home for B.N. and S.N.
(Id. at 194). According to Depinet, B.N. and S.N. are comfortable at her home and
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have adjusted well to living there. (Id. at 206-207). Depinet testified that she loves
B.N. and S.N. and she desires to give the girls “the best opportunity at life.” (Id. at
193-194). Depinet has also provided financially for B.N. and S.N. since September
2017, including medical and dental care, school tuition, and occupational therapy.
(Id. at 200-205, 209-210). (See Plaintiff’s Exs. 2, 5, 6, 8).
{¶40} Miller testified at the hearing that he has been in a relationship with
Norville for approximately one year and that Norville has lived with him in his two-
bedroom trailer since July 2018. (Feb. 28, 2019 Tr. at 256-257, 259). Miller
admitted that B.N. and S.N. do not currently have bedrooms at his residence because
he and Norville occupy one of the bedrooms and C.N. occupies the other
bedroom. (Id. at 265-266). Miller admitted that he once took a photo of B.N. while
she was sleeping, but denied that he knew that it made her uncomfortable. (Id. at
263-264, 269). Miller further acknowledged that he told B.N. on multiple occasions
that she resembles her mother and conceded that he could understand how those
comments could have made B.N. uncomfortable. (Id. at 264-265).
{¶41} Norville testified on her own behalf at the final hearing. (Mar. 7, 2019
Tr. at 283). Norville attested that it was her understanding that she was sending
B.N. and S.N. to live with their sister, Jennifer, while she left Robert. (Id. at 313).
Norville testified that she believed that Jennifer was planning on moving out of
Depinet’s home and into a residence of her own, although she knew that Jennifer
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was living with Depinet at the time that she placed the girls in Jennifer’s care. (Id.
at 313-314).
{¶42} Norville denied ever being addicted to any drug and specifically
denied that she was hospitalized for an addiction to carfentanil or fentanyl. (Id. at
283-284, 308, 313). Norville denied that the New Riegel home that she was living
in with the children was in disrepair while she lived there. (Id. at 307-308, 325).
Rather, she stated that the home fell into disrepair after she moved out and was
therefore “out of [her] control.” (Id. at 307-308). Norville also denied that her
family was hiding from the police when they were staying in the camper. (Id. at
319-320).
{¶43} Norville admitted that she lived in a two-bedroom residence with
Miller and C.N. and that the girls do not currently have bedrooms at her home. (Id.
at 300). However, she testified that she has “checked into buying a few different
places” and would be willing to move into a house with three bedrooms so that the
girls would have a bedroom to share. (Id. at 300-301). Norville admitted that she
moved into Miller’s residence after knowing him for only a few months, and she
stated that if B.N. and S.N. had been living with her at the time, they would have
moved into Miller’s residence as well. (Id. at 320). According to Norville, B.N.
and S.N. are not afraid of Miller. (Id. at 284-285). Norville admitted that C.N. has
struggled with anger and legal problems, but denied that B.N. and S.N. feel
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uncomfortable around him. (Id. at 317-318). With respect to Jennifer and Depinet’s
allegation that C.N. was mean to the girls, Norville testified, “They’re siblings,
they’re [going to] bicker, they’re [going to] fight, they’re [going to] not get along.”
(Id. at 330).
{¶44} Norville expressed concern that S.N. was on medication for
hyperactivity and stated, “I don’t want my children on any type of medication * * *
at all. It’s not good.” (Mar. 7, 2019 Tr. at 303). Norville testified that although she
understands that a doctor prescribed the medication to S.N., she does not believe
that her children should be on medication. (Id. at 304-306). However, Norville
admitted that she has not seen S.N. since she began taking the medication. (Id. at
303). Norville also denied that B.N. and S.N. were not up-to-date on their shots,
had cavities in their teeth, and had not received appropriate medical treatment when
they began living in Depinet’s home. (Id. at 309-310).
{¶45} Norville testified that she tried to remove her children from Depinet’s
home “multiple times.” (Id. at 316). However, she testified that Jennifer convinced
her to keep the girls in Depinet’s home so that the three sisters could remain
together. (Id. at 351-353). Norville testified that she was under the impression that
when she settled into a different work schedule and took care of her son’s legal
situation, B.N. and S.N. would return to her care once again. (Id. at 351-355).
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{¶46} Norville admitted that she did not exercise supervised visitation with
B.N. and S.N. after the trial court granted Depinet emergency custody of the girls.
(Id. at 311). In support of her decision not to exercise her court-ordered visitation,
Norville stated, “I have never had to [have] supervised visits with any of my six
kids, why should I start now?” (Id.). However, Norville testified that she did see
the girls at a basketball game after the temporary custody order went into effect.
(Id.).
{¶47} Kara Schoen (“Schoen”), the GAL assigned to the case, was the final
witness. Schoen testified that she met B.N. and S.N. on several occasions during
the course of her investigation. (Mar. 7, 2019 Tr. at 368). However, she never
observed B.N. and S.N. interact with Norville because they were not living with
Norville and Norville was not exercising supervised visitations. (Id.). Schoen
testified that Norville indicated that she was not welcome in her home, and as a
result, Schoen was unable to view Norville’s home. (Id. at 369, 392). Schoen
testified that Norville told her multiple times that she was not willing to see her
children in a supervised setting. (Id. at 370). Schoen stated that Norville’s
unwillingness to visit the children in a supervised setting was concerning. (Id.).
{¶48} In contrast, Depinet was cooperative with Schoen, and Schoen had the
opportunity to observe the children inside Depinet’s home on multiple occasions
and spoke with everyone that lived in the home. (Id. at 370-372). Schoen testified
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that the girls appeared to be flourishing in Depinet’s care. (Id. at 375). Schoen
stated that she does not have any concerns with B.N. and S.N. remaining with
Depinet. (Id. at 379). The girls both appear to be doing well educationally, and
Schoen believes that their medical needs are being met in Depinet’s care. (Id. at
382). Schoen observed S.N. both before and after she began taking medication for
her hyperactive behavior, and she testified that she noticed a positive change in
S.N.’s behavior. (Id. at 372-373). In fact, Schoen described S.N. as “a different
kid” who was calmer and more focused. (Id. at 373). Schoen also described the
academic progress S.N. made while living with Depinet. (Id. at 374-375). Schoen
further testified that she did not believe that there was any mental illness, drug use,
or excessive alcohol use in Depinet’s home. (Id. at 384).
{¶49} In contrast, Schoen testified that she had concerns about the condition
of Norville’s home. (Mar. 7, 2019 Tr. at 376-377). Additionally, Schoen did not
believe that the girls’ medical needs were being met in Norville’s care. (Id. at 382).
Moreover, Schoen expressed concerns with B.N. and S.N. being around Miller. (Id.
at 389-390, 393-394). Schoen testified that she discussed concerns regarding Miller
with Norville and that Norville appeared to “brush off” the concerns as not credible.
(Id. at 389-390). Schoen testified that she found Norville’s response to the girls’
concerns regarding Miller to be troubling. (Id. at 390). Schoen stated that she had
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concerns regarding mental illness, alcohol, and drug use in Norville’s home. (Id. at
384-385).
{¶50} Schoen testified that both girls expressed that they wanted to continue
to live in Depinet’s home. (Id. at 379). According to Schoen, S.N. stated that she
wanted to have visitations with her mom, but that she wanted to continue living with
Depinet. (Id.). However, she stated that B.N. does not have an interest in seeing
Norville or speaking to her on the phone. (Id. at 379-380).
{¶51} Schoen recommended that B.N. and S.N. continue to live with
Depinet. (Id. at 396). Schoen stated that Depinet’s home is the only place that the
girls have known as “home” for the last two years and that the girls have never lived
in the home where Norville is currently residing. (Id.).
{¶52} A review of the evidence deduced at the final hearing demonstrates
that the trial court’s determination that Norville was an unsuitable parent to B.N.
and S.N. was supported by competent, credible evidence. Thus, the trial court did
not abuse its discretion by granting Depinet’s complaint for legal custody of B.N.
and S.N. See Liles v. Doyle, 3d Dist. Allen No. 1-13-48, 2014-Ohio-1681, ¶ 47-53
(finding that the biological father was an unsuitable parent where he did not create
a bond with the child, lacked consistent visitation with the child, routinely allowed
other individuals to care for the child, and “failed to demonstrate that he could offer
K.J.D. a stable environment * * *.”); Evans v. Evans, 2d Dist. Champaign No. 2012
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Case No. 16-19-04
CA 41, 2013-Ohio-4238, ¶ 35 (upholding the trial court’s unsuitability finding and
conclusion that “it would be physically, mentally, and emotionally detrimental” for
the child to be in the parent’s custody where the parent failed to exercise parenting
time, the house was unclean, meals were not regularly provided, and there were
allegations of physical and emotional abuse); In re A.S., 7th Dist. Jefferson No. 11
JE 29, 2012-Ohio-5468, ¶ 11-12 (concluding that the trial court did not abuse its
discretion by upholding the magistrate’s finding that the parent was unsuitable
where the parent was “unwilling or unable to care for the child for long periods of
time, creating instability in the child’s life as the child’s care was routinely handed
over to others,” was in unstable romantic relationships, and was living in “filth”).
{¶53} Having concluded that the trial court did not err by determining that
Norville was an unsuitable parent to B.N. and S.N. and that an award of custody to
Norville would be detrimental to the girls, we next address Norville’s argument that
the trial court engaged in “gender bias.” Norville argues that the trial court engaged
in unconstitutional “gender bias” by “bending * * * over backward[ ]” “to
unconstitutionally find that [Norville] is unsuitable to raise her minor girls, but
suitable to raise her minor boy.” (Appellant’s Brief at 8).
{¶54} With respect to C.N., the trial court found as follows:
Mother claims [Depinet] is disingenuous as the girls’ sibling, [C.N.],
returned to live with his mother “thereby totally negating the
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Magistrate’s decisive premise that Mother * * * was an unsuitable
parent.” However the testimony on this topic showed that [C.N.] did
not act appropriately with his sisters and was violent toward them and
so he returned to his Mother. Unfortunately, [C.N.] has been in
trouble since returning to Mother and his leaving [Depinet’s home]
has been for the best. His continued misbehavior reflects more
negatively on Mother, the person who raised him, than on [Depinet]
for insisting he behave and allowing him to leave when he did not.
(Internal citations omitted.) (Doc. No. 49).
{¶55} However, here, the trial court did not make any finding with regard to
Norville’s suitability or unsuitability to raise C.N. because Depinet only filed for
legal custody of B.N. and S.N. Therefore, because the suitability of Norville as a
parent to C.N. was not an issue before the trial court, the trial court did not make
specific findings regarding Norville’s suitability to parent C.N. Thus, Norville’s
argument that the trial court employed “two standards” for finding unsuitability,
based on the gender of the minor children, is erroneous based on the procedural
posture of the case.
{¶56} To the extent that Norville is attempting to argue that the trial court’s
finding that Norville is an unsuitable parent is disingenuous because C.N. returned
to live with his mother, this argument also fails. The evidence presented at the final
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hearing demonstrates that C.N. did not behave appropriately with his sisters and was
violent toward them. Jennifer and Depinet testified to an incident at a doctor’s office
where C.N. pushed B.N. off the exam table. Additionally, Depinet testified to a
related incident where C.N. pointed a BB gun at B.N. and S.N.’s heads and
threatened to kill them. Following these violent incidents, Depinet allowed C.N. to
move back with his mother, seemingly in an effort to protect B.N. and S.N. from
C.N.’s aggressive and unpredictable behavior. Norville’s own testimony regarding
C.N.’s behavior, anger, and legal issues supports Depinet’s concerns regarding
C.N.’s presence around the girls. Furthermore, at no time did Depinet testify that
she was seeking custody of B.N. and S.N. because they are female or that she was
not seeking custody of C.N. because he is male. Rather, Depinet testified that she
had enjoyed having C.N. live in her home until the time that he became violent and
inappropriate with his sisters and that she would be open to allowing him to live
with her in the future if she was able to enroll him in appropriate counseling.
Accordingly, the record does not support Norville’s argument that Depinet’s motive
in seeking legal custody of B.N. and S.N. was based on their gender or that the trial
court’s finding that Norville was an unsuitable parent to B.N. and S.N. was based
on gender.
{¶57} Accordingly, Norville’s first assignment of error is overruled.
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{¶58} In her third assignment of error, Norville argues that the trial court
erred by summarily overruling her objection to the magistrate’s decision in which
reasserted all of her objections raised at the final hearing. For the reasons that
follow, we disagree.
{¶59} In her objections to the magistrate’s decision, Norville submitted a
general objection incorporating by reference all objections made on her behalf
during the final hearing. (Doc. No. 40). The trial court overruled Norville’s
objection and noted that in this “catchall” objection, Norville did not direct the court
to specific objections or rulings made. (Doc. No. 49). Nevertheless, the trial court
stated that it reviewed the transcript and that although it found that “there were a
few objections that were not decided correctly,” the errors “would not change the
ultimate ruling in [the] matter given the weight of the admissible evidence in support
of the Magistrate’s Decision.” (Id.). Norville contends that the trial court erred by
“ambiguously” finding that several objections were decided incorrectly but failing
to identify which objections were incorrectly decided. (Appellant’s Brief at 13-14).
{¶60} Civ.R. 53(D)(3)(b) provides that objections to a magistrate’s decision
“shall be specific and state with particularity all grounds for objection.” “When an
objecting party fails to state an objection with particularity as required under Civ.R.
53(D)(3)(b)(ii), the trial court may affirm the magistrate’s decision without
considering the merits of the objection.” Wallace v. Willoughby, 3d Dist. Shelby
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Case No. 16-19-04
No. 17-10-15, 2011-Ohio-3008, ¶ 20, citing Triozzi-Hartman v. Hartman, 11th
Dist. Geauga No. 2006-G-2701, 2007-Ohio-5781, ¶ 15, citing Waddle v. Waddle,
11th Dist. Ashtabula No. 2000-A-0016, 2001 WL 314659. Reviewing Norville’s
objection, which baldly reasserts all objections asserted on her behalf at the final
hearing, we find that it does not meet the specificity requirement set forth in Civ.R.
53(D)(3)(b)(ii). Consequently, Norville is precluded from assigning the trial court’s
disposition of her objection as error on appeal. See id. at ¶ 21; Civ.R. 53
(D)(3)(b)(iv) (“Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal conclusion * * * unless
the party has objected to that finding or conclusion as required by Civ.R.
53(D)(3)(b).”).
{¶61} Furthermore, App.R. 16(A)(7) provides that the appellant shall include
in its brief “[a]n argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.” Here, Norville fails to direct this Court to specific
statements in the trial transcript, as required by App.R. 16(A)(7), or develop an
argument explaining how any of the objections or a combination thereof, if indeed
decided incorrectly, would change the outcome of the lower court’s decision. See
State v. Franks, 9th Dist. Summit No. 28533, 2017-Ohio-7045, ¶ 15. “Where an
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appellant fails to develop an argument in support of his assignment of error, this
Court will not create one for him.” Id. at ¶ 16, citing State v. Harmon, 9th Dist.
Summit No. 26426, 2013-Ohio-2319, ¶ 6, citing App.R. 16(A)(7) and Cardone v.
Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). “‘If
an argument exists that can support [an] assignment of error, it is not this [C]ourt’s
duty to root it out.’” Id., quoting Cardone at *8.
{¶62} Accordingly, Norville’s third assignment of error is overruled.
{¶63} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
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