In re L.A. , 2018 Ohio 3219 ( 2018 )

[Cite as In re L.A., 2018-Ohio-3219.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN RE:
CASE NO. 13-18-12
L.A.,
A MINOR CHILD.
OPINION
[KELLY BROOKES - APPELLANT]
Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 21650015
Judgment Affirmed
Date of Decision: August 13, 2018
APPEARANCES:
Gene P. Murray for Appellant
Emily P. Beckley for Appellee
Case No. 13-18-12
ZIMMERMAN, J.
{¶1} Appellant Kelly Brookes (“Kelly”) brings this appeal from the February
21, 2018 judgment entry of the Seneca County Common Pleas Court, Juvenile
Division, denying her request for grandparent visitation.
Facts and Procedural History
{¶2} L.A., born April, 2016, is the son of Andrew Althaus (“Andrew”) and
Paige Brookes (“Paige”). Andrew and Paige were never married. Kelly is the
maternal grandmother of L.A. and Jamie Althaus, nka Jamie Walton (“Jamie”) is
the paternal aunt of L.A.
{¶3} On April 14, 2016, Seneca County Department of Job and Family
Services filed a complaint in the Seneca County Juvenile Court alleging L.A. to be
a dependent child. (Doc. 1). On May 26, 2016, the trial court placed L.A. into the
temporary custody of Paige and issued a no contact order between Paige and
Andrew. However, due to Paige and Andrew’s violation of the no contact order,
the trial court rescinded its temporary custody order (of L.A. to Paige) and placed
L.A. into the temporary custody of Jaime at L.A.’s June 27, 2016 dispositional
hearing. (Doc. 31).
{¶4} On March 2, 2017, Jamie filed a motion in the trial court for legal
custody of L.A. (Doc. 73). Ultimately, on May 15, 2017, the trial court approved
an agreement between Jamie and L.A.’s parents that granted Jamie legal custody of
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L.A. Under the agreement, Andrew and Paige (separately) were granted supervised
visitation with L.A. to be held at the Patchworks House. (Doc. 119).
{¶5} On July 7, 2017, Kelly filed the following pleadings in the trial court:
Motion to Intervene; Motion for Temporary Visitation Order; Motion for
Temporary Custody Orders and Request for Hearing; Complaint for Reasonable
Companionship and Visitation Rights; and Complaint for Custody. At the hearing
on the motions, held August 30, 2017, the magistrate dismissed Kelly’s motion for
legal custody and denied her Motion to Intervene. (Doc. 139). Kelly’s remaining
Motion (for Temporary Visitation) was thereafter heard by the magistrate and
denied on December 4, 2017. (Doc. 159).
{¶6} On December 4, 2017, the magistrate filed its decision with the trial
court and Kelly timely filed objections. On February 21, 2018, the trial court
overruled the objections to the magistrate’s decision, determining that the objections
were an “attempt to claim the Magistrate held a ‘collective bias or prejudice’” and
finding that Kelly made “no specific allegation that the Magistrate did not comport
with his application of law, and there has been no particularized objection” and
therefore adopted the magistrate’s findings and recommendations. (Doc. 166).
{¶7} Kelly filed her notice of appeal on March 23, 2018, raising the
following assignment of error for our review.
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Case No. 13-18-12
ASSIGNMENT OF ERROR
The trial court abused its discretion by adopting the Magistrate’s
Decision as its own, to deny the Movant-Appellant Maternal
Grandmother’s motion for reasonable companionship and
visitation with the minor child, L.A., D.O.B. 4/13/16, as the
transcript of the hearing before the Magistrate, on the issue of the
said appellant’s motion for reasonable companionship and
visitation rights, is reflective and replete with evidence and indicia
that said trial court had pre-determined the outcome against the
Movant Grandmother by repeated expressions of a pervasive tone
against the Movant-Appellant Grandmother that was blatantly
and patently obvious from the proverbial get-go of the hearing, as
to what the outcome would be, and indeed, was, thereby resulting
from and in an overriding unfairness that was so predictably
palpable against the Movant-Appellant, and accordingly resulted
in reversible error.
{¶8} We interpret Kelly’s sole assignment of error to be that the trial court
abused its discretion by adopting the Magistrate’s Decision, claiming the trial court
had a pre-determined outcome as an allegation that the trial court exerted judicial
bias in its decision. For the reasons that follow, we overrule Kelly’s assignment of
error.
Standard of Review
{¶9} R.C. 3109.12(B) provides that a trial court may grant reasonable
visitation rights to grandparent if the court determines that such visitation is in the
child’s best interest. “The trial court has discretion as to visitation issues, and its
decision will not be reversed absent an abuse of discretion, such that the decision is
unreasonable, arbitrary or unconscionable.” In re S.K.G., 12th Dist. Clermont No.
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Case No. 13-18-12
CA 2008-11-105, 2009-Ohio-4673, ¶21, Anderson v. Anderson, 147 Ohio App. 3d
513, 2002-Ohio-1156, ¶18. “An abuse of discretion suggest the trial court’s
decision is unreasonable or unconscionable.” Brammer v. Meachem, 3d Dist.
Marion No. 9-10-43, 2010-Ohio-519, ¶14, citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When determining whether to grant visitation rights to a
grandparent, the trial court is required to consider the factors listed in division (D)
of section 3109.051 of the Revised Code.
Analysis
{¶10} Kelly argues that the trial court erred by adopting the magistrate’s
decision because the magistrate “had pre-determined the outcome against Movant
Grandmother by repeated expressions of a pervasive tone and against the Movant –
Appellant Grandmother that was blatantly and patently obvious from the proverbial
get-go of the hearing, as to what the outcome would be, and indeed, was thereby
resulting from and in an overriding unfairness that was so predictably palpable
against the Movant-Appellant, and accordingly resulted in reversible error”. We
disagree.
{¶11} In support of Kelly’s poorly worded assignment of error, we are
directed to the following portions of the transcript:
 Kelly’s testimony, page 14, line 23 through page 15, line 2;
 Relevancy objection, page 15, line 8 through page 16, line 4;
 Credibility objection, page 47, line 19 through page 48, line 2;
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 Testimony of Jamie, page 59, line 3 through line 16; page 62
line 25 through page 63, line 10; and page 64, line 14 through
page 65, line 8
{¶12} In essence, Kelly contends the Magistrate expressed bias (towards her)
by overruling a relevancy objection (Tr. Pg. 48), by determining L.A.’s mother
(Paige) not to be credible (see generally, Tr. Pg. 14-16 and 64-65) by overruling an
objection for leading a witness (Tr. Pg. 59) and by commenting upon the facial
gestures of Kelly (Tr. Pg. 62-63). In our review, we find no bias.
{¶13} When ruling on objections to a magistrate’s decision, the trial court
may “adopt, reject, or modify the magistrate’s decision, hear additional evidence,
recommit the matter to the magistrate with instructions, or hear the matter”. Civ.R.
53(D)(4)(b). The trial court has the “ultimate authority and responsibility over the
magistrate’s findings and rulings”. Clifton v. Clifton, 3d Dist. Union No. 14-03-07,
2003-Ohio-6993, ¶8, quoting Hartt v. Munobe, 67 Ohio St. 3d 3, 5 (1993).
Accordingly, it decides “whether the magistrate has properly determined the factual
issues and appropriately applied the law, and where the magistrate has failed to do
so, the trial court must substitute its judgment for that of the magistrate”. Inman v.
Inman, 101 Ohio App. 3d 115, 118 (1995).
{¶14} In determining the credibility of a witness, the general rule of law is
that “[t]he choice between credible witnesses and their conflicting testimony rests
solely with the finder of fact and an appellate court may not substitute its own
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judgment for that of the finder of fact”. Columbus v. Hawkins, 10th Dist. Franklin
No. 10AP-1150, quoting State v. Awan, 22 Ohio St. 3d 120, 123 (1986). Indeed, the
fact finder is free to believe all, part, or none of the testimony of each witness
appearing before it. Id., citing Hill v. Briggs, 111 Ohio App. 3d 405, 412. If
evidence is susceptible to more than one construction, reviewing courts must give
it the interpretation that is consistent with the verdict and judgment. Id., citing White
v. Euclid Square Mall, 107 Ohio App. 3d 536, 539. Mere disagreement over the
credibility of witnesses is not sufficient reason to reserve a judgment. Id., citing
State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202.
{¶15} In our review of the record, Kelly has failed to substantiate that the
trial court’s adoption of the magistrate’s decision was “unreasonable or
unconscionable”. The trial court undertook its independent review of the
magistrate’s decision as required by the Juvenile and Civil Rules and R.C. sections
3109.12 and 3909.051. Specifically, in its independent review, the trial court stated:
“Based upon the record provided, the Court determines that after
independent consideration of all of the factors mandated by ORC
3109.12 and ORC 3109.051 (D), and after giving special weight to
wishes and concerns of Jamie Althaus as Legal Custodian, the
Court finds that as custodian she is in control of the child, and
should have the right to determine when the child can visit, or be
visited by, maternal grandparent. Indeed, as was determined by
the Third District Court of Appeals, any contrary conclusion
would exceed this Court’s authority where a child has not been
abandoned, or where child has not been living with the
grandparent. See: Shriver v. Shriver (1966), 7 Ohio App. 2nd 169
[sic].”
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{¶16} Accordingly, we find that the trial court’s independent review was
properly based upon competent and credible evidence set forth in the record.
Moreover, Kelly has not connected how the overruling of three objections and the
determination of credibility by the magistrate constituted bias. We find rulings on
objections and determinations of credibility1 to be within the sound discretion of the
trier of fact. As such, we overrule Kelly’s sole assignment of error.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
1
Including facial gestures of a witness or party.
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