In re L.E. ( 2022 )

[Cite as In re L.E., 2022-Ohio-3962.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
L.E. : CASE NO. CA2021-12-066
: OPINION
11/7/2022
:
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2017 JI 23840
Kroener Hale Law Firm, and Sloan Thacker, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Mother, appeals from the decision of the Clermont County Court of
Common Pleas, Juvenile Division, designating the child's Father as residential parent and
legal custodian of their minor daughter.
{¶2} The child was born out of wedlock in September of 2012. Mother filed a
complaint to determine parentage in July of 2017. Father's parentage was established in
October of 2017, and he subsequently filed a complaint for shared parenting. In July 2018,
the court designated Mother as the child's legal custodian and residential parent and
Clermont CA2021-12-066
ordered parenting time for Father on alternating weekends and alternating Thursdays
overnight. The court also granted each party extended parenting time during the summer
and established a meeting place for exchanges.
{¶3} In the spring of 2019, Mother met R.C. ("Stepfather") and married him nearly
one month later. Mother and Stepfather live together with their infant son and Mother's
other son who is 12 years old.
{¶4} In the fall of 2019, Father discovered that Stepfather overdosed on July 12,
2019, while parked in front of Mother's residence. It was later discovered that Stepfather
had also overdosed on February 2 and July 2, 2019, with the later incident resulting in an
OVI conviction. After the July 12 overdose, Stepfather became a resident at a drug
treatment facility, Adult and Teen Challenge. Mother failed to notify the child's therapist,
the court-appointed guardian ad litem (GAL), and Father of these events. Stepfather has
been struggling with drug addiction since he was 18 years old, and he estimates that he
has participated in drug abuse treatment programs approximately 12 times. Stepfather also
estimates his longest period of sobriety to be three years.
{¶5} Upon learning of Stepfather's drug related events, Father filed a motion for
emergency custody. In November of 2019, the court held a hearing and ultimately
dismissed the motion, but ordered Stepfather to remain out of Mother's residence and
ordered no contact between Stepfather and the child.
{¶6} After Mother's marriage to Stepfather, Mother repeatedly denied Father his
parenting time. Father was unable to see the child for several scheduled visits, as well as
for Christmas in 2019, and a planned family beach vacation. On February 21, 2020, Father
filed a motion for contempt of visitation, and on March 18, 2020, Mother filed a motion to
modify visitation. On March 12, 2021, Father filed a petition for custody. The court held
hearings on all motions over a series of four days.
-2-
Clermont CA2021-12-066
{¶7} On November 9, 2021, the trial court issued an order designating Father as
the child's residential parent and legal custodian, and granting Mother parenting time. It is
from this decision that Mother appeals, raising two assignments of error. We address the
assignments together.
{¶8} Assignment of Error No. 1:
{¶9} THE TRIAL COURT'S BEST INTEREST HOLDING AND CHANGE OF
CUSTODY CONSTITUTES AN ABUSE OF DISCRETION.
{¶10} Assignment of Error No. 2:
{¶11} THE TRIAL COURT'S DETERMINATION THAT THE HARM OF MOVING
THE CHILDREN [sic] WAS OUTWEIGHED BY THE ADVANTAGES CONSTITUTES AN
ABUSE OF DISCRETION.
{¶12} In Mother's first assignment of error, she argues that the trial court abused its
discretion by finding that a change of custody was in the best interest of the child.
Specifically, Mother asserts that the evidence was insufficient to show that Stepfather's drug
addiction has negatively impacted the child, and that Mother is less inclined to follow court
ordered visitation.
{¶13} R.C. 3109.04(E)(1)(a) governs the modification of an existing custody order.
The statute provides that "[t]he court shall not modify a prior decree allocating parental
rights and responsibilities" unless it finds that, based on new facts unknown to the court at
the time of the prior decree, that "a change has occurred in the circumstances of the child,
[or] the child's residential parent, * * * and that the modification is necessary to serve the
best interest of the child." R.C. 3109.04(E)(1)(a).
{¶14} Thus, when applying the statute, the court may not modify a prior custody
determination unless it first finds that a change has occurred in the circumstances of the
child or the child's residential parent. Cravens v. Cravens, 12th Dist. Warren No. CA2008-
-3-
Clermont CA2021-12-066
02-033, 2009-Ohio-1733, ¶ 34. Second, after finding a change in circumstances, the court
must determine whether the modification is in the child's best interest. Id.{¶15} In addition to these two requirements, the trial court "shall retain the residential
parent designated by the prior decree" unless "the harm likely to be caused by a change of
environment is outweighed by the advantages of the change of environment to the child."
R.C. 3109.04(E)(1)(a)(iii); Jillian F. v. Curtis C., 5th Dist. Tuscarawas No. 2018 AP 04 0016,
2018-Ohio-5373, ¶ 30. Thus, in order for the trial court to modify the residential parent, the
court must find that (1) there is a change in circumstances, (2) the modification serves the
best interest of the child, and (3) the harm resulting from a modification is outweighed by
the advantages of such a modification. In re Nentwick, 7th Dist. Columbiana No. 00 CO 05,
2002-Ohio-1560, ¶ 36. The record must support each of these findings or else the
modification of child custody is contrary to law. Id.A. CHANGE IN CIRCUMSTANCES
{¶16} A change in circumstances is the threshold requirement intended to provide
stability to the residential status of the child. Davis v. Flickinger, 77 Ohio St. 3d 415, 417
(1997). Mother does not challenge the trial court's finding that there was a change in
circumstances. It is undisputed that since the June 2018 order, Mother married Stepfather,
and Stepfather's addiction became an integral part of the family dynamics. The trial court
found that Mother deliberately withheld this information from Father, the GAL, and the
child's therapist. The trial court also found that after the prior order, Mother demonstrated
a pattern of unwillingness to cooperate and facilitate Father's parenting time.
B. BEST INTEREST OF THE CHILD
{¶17} The determination of what is in the best interest of the child is within the sound
discretion of the trial court and will not be reversed absent an abuse of discretion. Bonifield
v. Bonifield, 12th Dist. Butler No. CA2020-02-022, 2021-Ohio-95, ¶ 11. An abuse of
-4-
Clermont CA2021-12-066
discretion implies that the trial court's decision was arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A trial court's
decision does not constitute an abuse of discretion "if it is supported by a discernible rational
basis." In re B.B., 12th Dist. Clermont No. CA2019-07-057, 2020-Ohio-4007, ¶ 16.
{¶18} With respect to the duty of deference to the trial court in disputes over the
custody of children, the Ohio Supreme Court has stated that "the discretion which a trial
court enjoys in custody matters should be accorded the utmost respect" considering the
impact the court's decision has on the lives of the parties involved. Miller v. Miller, 37 Ohio
St. 3d 71, 74 (1988). "The knowledge that the trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court
by printed record." Id. Thus, we are guided by the presumption that the trial court's findings
were correct.
{¶19} In determining the best interest of a child, the court is required "to consider all
relevant factors," including a non-exclusive list of ten specific factors. R.C. 3109.04(F)(1).
In addressing the best interest factors, the trial court found that both parents want legal
custody of the child, the child is bonded and integrated into each party's home, the child
has a healthy relationship with each parent's family, and though the child struggled in her
early grades, she is now progressing in school with the implementation of her I.E.P. 1 The
child also regularly participates in age-appropriate extracurricular activities, in which both
parents are involved. See R.C. 3109.04(F)(1)(a), (c), and (d). The court found that the
factors under R.C. 3109.04(F)(1)(b), (h), (i), and (j) are not applicable or relevant.2
1. An Individualized Education Program (I.E.P.) is a written education plan designed to meet a child's specific
learning needs. Here, the child was given an I.E.P. due to her diagnosis for ADHD and the general concern
shared by her teachers regarding her slow academic progress.
2. We note that while the trial court found R.C. 3019.04(F)(1)(i) was not applicable, the record supports a
finding that Mother continuously and willfully denied Father's right to parenting time.
-5-
Clermont CA2021-12-066
1. WILLINGNESS TO FACILITATE PARENTING TIME
{¶20} The court found that Mother demonstrates an unwillingness to cooperate with
Father regarding his parenting time. See R.C. 3109.04(F)(1)(f). Mother does not challenge
the trial court's finding that she was in contempt for visitation, but the trial court's finding of
contempt is relevant to this factor of the best interest analysis. Mother instead challenges
the finding that she is less willing to cooperate with Father regarding parenting time, arguing
that the trial court "failed to note that it was the minor child's outbursts" and Mother's
"concerns for the child's safety at Father's" as her reason for limiting the child's time with
Father. Mother now contends that because her concerns regarding the child's safety have
been addressed, there is no evidence to support that she would not now facilitate Father's
parenting time. Given the evidence of Mother's past behavior, we are not convinced.
{¶21} On more than one occasion, Mother denied Father his parenting time in
violation of the court's July 2018 order for reasons unrelated to the child's safety. For
instance, in February of 2020, Mother requested that Father cancel his parenting time to
accommodate Stepfather's birthday. Father refused and Mother made herself and the child
unavailable when Father arrived to pick up the child. Mother testified that she thought
stepparents "got birthday time too," but provided no support for why she was justified in
denying Father's scheduled time.
{¶22} Most notably, Mother prevented Father from seeing the child on Christmas
Day of 2019. Instead, the child spent the week with Mother and Stepfather's family, and
Mother failed to communicate with Father until early January. Mother also prevented Father
from including the child on Father's family vacation to Myrtle Beach in May of 2020. Mother
gave Father no explanation for why the child could not attend the vacation. Instead, she
sent a photo of the minor child near the exchange location, almost two hours after the
scheduled drop off time, and shortly thereafter texted Father that she and the child were
-6-
Clermont CA2021-12-066
back at Mother's home.
{¶23} Mother testified about a series of text messages in which Mother informed
Father that she would not bring the child to the exchange location unless he promised to
bring money "for childcare." Father was also told that the money was needed for "gas" to
transport the child. At the hearing, Mother was asked if she genuinely needed gas money,
and Mother indicated that there were times when she and Stepfather had to "make things
up" or give some sort of reason why they couldn't meet at the exchange location in order
to compel Father to come to their house to pick up the child. When Father would refuse,
Mother blamed any missed parenting time on Father.
{¶24} Mother provides no legal support for why she can unilaterally decide to deny
Father his parenting time. Mother alleges that she denied parenting time because she was
afraid for the child's safety based on the child's behavior prior to visits with Father, yet
Mother never filed any motions with the court to address her concerns. We also note that
the child never alleged, nor was there any evidence, that the child's time with Father put the
child in any danger. The GAL never recommended reducing Father's parenting time, and
the child repeatedly expressed to her therapist that her visits with Father were going well
and that she felt happy during the visits.3
{¶25} In denying Father's parenting time, Mother did not demonstrate any perceived
immediate serious physical harm to the child; she simply denied Father his parenting time.
See Williams v. McGuire, 9th Dist. Lorain No. 21CA011784, 2022-Ohio-3598, ¶ 26 (In
finding a father in contempt, the trial court noted that father's reasons for denying visitation
"did not include any perceived immediate serious physical harm and that he refused
3. We also point out that Mother repeatedly attempted to have the child undergo an evaluation at the Mayerson
Center for Safe and Healthy Children at Cincinnati Children's Hospital Medical Center, but the center refused
because there was never any disclosure of sexual abuse.
-7-
Clermont CA2021-12-066
visitation instead of seeking a modification of the visitation order."); see also In re S.J.S.,
2nd Dist. Montgomery No. 28801, 2020-Ohio-5105, ¶ 91 (finding that the court did not
abuse its discretion in granting legal custody to father when mother had "continuously and
willfully denied [f]ather's rights to parenting time by multiple means, including
unsubstantiated claims of child abuse and repeated interference and manipulation at
exchanges.").
{¶26} The trial court did not err in finding that Mother is less likely to honor and
facilitate court-approved parenting time rights. Mother tends to alter the parenting time
schedule in accordance with her own desires and her family's schedule as opposed to
following the orders of the court. The trial court found that Father, on the other hand, was
"undaunted in his attempts to maintain a consistent parenting time schedule." The record
reflects that Father regularly arrived at the exchange location for his parenting time, and
there were no instances of Father preventing or denying Mother from exercising her court
ordered parenting time.
2. CHILD'S RELATIONSHIP WITH PARENTS
{¶27} Mother also challenges the court's analysis of the child's relationship with
Father. See R.C. 3109.04(F)(1)(c). Father lives with his wife (the child's Stepmother), as
well as Stepmother's 15-year-old daughter, and Stepmother's aunt. Mother asserts in her
brief that Father and Stepmother are now divorced, and Father has moved to Kentucky.
These facts are not a part of the record and thus we will not address them. App.R. 12(A);
State v. Salim, 8th Dist. Cuyahoga Nos. 56925 and 57964, Ohio App. LEXIS 1933 (May 17,
1990) ("A reviewing court cannot consider matters not part of the record before it and then
decide the appeal on the basis of additional matters.").
{¶28} Mother argues that the court failed to consider the amount of time that the
child spends with Father during his parenting time, asserting that the child spends all of her
-8-
Clermont CA2021-12-066
time with Stepmother while Father sleeps. While Father does have to work overnights,
Father testified that he spends time with the child after school completing homework,
playing, and having dinner together before bedtime. Father also changed his work schedule
so he could spend more time with the child during his parenting time.
{¶29} Mother argues that the child has a much closer relationship with Mother and
Mother's family than with Father, "as much of the child's time with Father was actually spent
with his now ex-wife." As noted above, we decline to consider facts not before the trial
court. At the time of the trial court's decision, Father and Stepmother lived together and
there was evidence to demonstrate that the child was bonded to the family unit. The GAL
stated that Father should spend more time with the child during visits, but it is important to
note that the child's relationship with family members is only one factor among many in the
best interest analysis. It is "the role of the trial court to determine the relative weight to
assign each factor, in relation to the others, when determining the children's best interest."
Ruble v. Ruble, 12th Dist. Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 18.
{¶30} Thus, it is within the purview of the trial court to place less weight on this factor
when determining the best interest of the child. "This court should not, and will not, second-
guess the domestic relations court's decision in regard to the appropriate weight to be given
to any one of those factors." Blessing v. Blessing, 12th Dist. Clermont No. CA2019-01-011,
2019-Ohio-3951, ¶ 18. As it is the role of the trial court to determine the relative weight to
assign each factor, we do not find that the trial court abused its discretion in placing less
weight on this factor.
3. MENTAL HEALTH OF THOSE INVOLVED
{¶31} The trial court was most concerned about the impact of Stepfather's drug
addiction on the child and how Mother handled the drug use. See R.C. 3109.04(F)(1)(e).
Mother challenges the trial court's analysis of this factor, asserting that there was no
-9-
Clermont CA2021-12-066
evidence presented to show that Stepfather's drug addiction impacted or harmed the child.
{¶32} Stepfather testified that he met Mother in April of 2019. At that time, he
resided in a residential treatment center. In June of 2019, Stepfather moved from his
residence at the recovery center into Mother's home, and married Mother a few weeks later.
In one of his interviews with the GAL, Stepfather informed the GAL that he first relapsed
around October of 2019 and that he left the home and stayed elsewhere when he relapsed.
{¶33} In January of 2020, Mother called the police to her home. The police report
stated that Mother wanted "documentation for court purposes," and that she was afraid to
go home due to Stepfather "using Meth daily." She also advised the police that Stepfather
"snorts, smokes and injects it daily," and that "she fears that the kids will find the Meth or
drug paraphernalia because he leaves it laying around the house." Mother later attempted
to explain away this report, claiming that she never made those statements to the officers.4
However, Mother also testified that sometime in January of 2020, she found a bag of brown
powder in the car, and that there was a time in February of 2020 when Stepfather was
staying in a hotel room while he was using drugs. During this time, Stepfather's presence
in the home was sporadic.
{¶34} On July 2, 2020, Stepfather was found unconscious in his vehicle with a
needle next to him. NARCAN was required to revive him, and he was subsequently charged
with an OVI.5 At roughly 8:30 a.m. on July 12, 2020, police responded to a call from Mother.
Stepfather was again found unconscious in his vehicle, this time parked just outside
Mother's home. The child was present in the home at the time. Emergency services
personnel found a syringe embedded in Stepfather's arm and administered two doses of
4. When asked if Mother was aware that there was a police report contrary to her testimony, she responded,
"I'm just going to have to give that one to God."
5. NARCAN is a medication designed to help reverse the effects of an opioid overdose.
- 10 -
Clermont CA2021-12-066
NARCAN to revive Stepfather, who was unconscious and in need of CPR. Mother advised
the responding officers that Stepfather had a history of drug use and had overdosed twice
before.
{¶35} The record demonstrates that Mother has downplayed Stepfather's drug
addiction and withheld information surrounding his extensive drug use. Mother has also
been out of touch with the reality of his addiction. During the November 2020 hearing on
Father's motion for emergency custody, Mother stated that the overdose on July 12 was
Stepfather's "first time" overdosing since his previous recovery. At the April 2021 hearing,
Mother was confronted with the information that Stepfather had overdosed on July 2. When
asked if that information changed her perception as to whether the July 12 incident was a
one-time drug use incident, Mother said, "no." She thereafter explained that he overdosed
on February 4 and immediately went to Teen Challenge. She also stated that she has "a
few receipts of him being in a hotel" and that "he was never home when he was using."
Mother has long been aware of Stepfather's drug issues, but she insists that these incidents
are not indicative of a severe problem, and her willingness to share any information
regarding Stepfather's addiction has been reluctant at best.
{¶36} Mother declined to inform those responsible for the care of the child—
including the child's own Father, the GAL, and the child's therapist—that Stepfather had
relapsed. The GAL visited Mother's home in August of 2020, well after the three overdose
incidents, and Mother did not inform the GAL of Stepfather's multiple relapses, or that he
was living at Teen Challenge. Stepfather himself failed to inform the GAL of his residence
and his history of drug abuse when he first spoke with the GAL. It is very concerning that
Mother and Stepfather chose to conceal Stepfather's drug use, as well as the resulting
instability in the home, from those responsible for the care of the child. As the GAL
observed, "Mother's need to be with Stepfather is overshadowing what is the best home
- 11 -
Clermont CA2021-12-066
environment for the child." During the time that Stepfather was struggling with his addiction,
overdosing, and sometimes staying out of the home for periods of time, Mother insisted that
the child have a father-daughter relationship with Stepfather.
{¶37} Mother paints the trial court's decision as being unfairly focused on
Stepfather's drug use. However, Mother fails to recognize that it is the combination of
Stepfather's drug use and her own inability to do what is best for the child that warrants a
change in the child's legal custodian. The GAL stated that "Mother does not seem to
perceive reality accurately" and continues to "blame others" for any issues the child
experiences while failing to own up to her own role that she and Stepfather have played in
causing disruption to the child's life. Based on her behavior, the GAL and the trial court
expressed concern for how Mother would proceed if Stepfather relapsed again. We share
those same concerns.
{¶38} We do not find that the trial court erred in weighing the best interest factors.
Mother demonstrated a pattern of withholding information to those involved in the child's
life. Furthermore, Mother's distorted perception of the reality of Stepfather's drug addiction
and its impact on the family unit is concerning. The trial court did not err in determining that
it was in the best interest of the child to award custody to Father.
C. THE POTENTIAL HARM CAUSED BY A CHANGE OF ENVIRONMENT IS
OUTWEIGHED BY THE ADVANTAGES
{¶39} In her second assignment of error, Mother argues that the facts do not show
that the harm of changing the child's environment was outweighed by the advantages. See
R.C. 3109.04(E)(1)(a)(iii). Mother asserts that there is great harm in changing the child's
environment due to the child's relationship with Mother, as well as the disruption caused by
switching schools.
{¶40} We previously addressed the child's relationship with Father in our discussion
- 12 -
Clermont CA2021-12-066
of the best interest factors. We reiterate, however, that the GAL noted in her supplemental
report that while the child and Mother do share a close relationship, the child's therapist and
the child have expressed that Father's parenting time is improving. As the trial court noted,
"[i]t is reasonable to expect that, under these extraordinary circumstances, the minor child
would suffer some adjustment issues as a result of being nearly five years old when she
met her father for the first time." We agree that the child is likely to experience some turmoil
in adjusting to having her Father in her life, but all of those involved in the care of the child
share no concerns with the development of Father and child's relationship.
{¶41} Mother also contends that the child requires the support of her current school
in order to facilitate her IEP and address her academic difficulties. Mother argues that
moving to an entirely new school district will have a severely negative impact on the child's
academic and social progress. This argument is not well taken given that the child
successfully transitioned schools at the start of second grade, and also successfully
transitioned back into a school setting after Mother unsuccessfully attempted to home
school the child for two months.
{¶42} The harm to the child caused by the change of environment would be specific
to the child leaving the primary caregiver and home she has known throughout her
childhood. The evidence established that the child was doing well in school and had a
group of friends around Mother's home, as well as participated in extracurricular activities
related to her school. "Undeniably, moving to a new home and school district would present
challenges to any child." In re R.A.S., 12th Dist. Warren No. CA2011-09-102, 20212-Ohio-
2260, ¶ 26. However, Mother demonstrates an inability to be forthcoming with information
regarding the environment of the child. The stability of Mother's home environment is also
highly questionable, considering that Mother quickly married a recovering drug addict who
proceeded to relapse several times. Mother is unable to recognize how her own decisions
- 13 -
Clermont CA2021-12-066
directly and indirectly impact the life of her child, and instead chooses to blame others for
her family's situation. In a supplemental report, the GAL shared that Mother had sent both
the GAL and the child's school counselor "numerous emails that display a range of
emotions." In these emails, Mother blamed the GAL and the child's therapist for the court's
issuance of a no contact order against Stepfather and the alleged harm caused to the child.
Mother has never taken ownership of how her own decision making and the decisions of
Stepfather contributed to any instability that the child may feel.
{¶43} Although Mother maintains that designating Father as residential parent
causes more harm than good, there is evidence to support the trial court's findings to the
contrary. There was competent, credible evidence to support the trial court's finding that
designating Father as the residential parent serves the best interest of the child, and that
the advantages of changing the child's environment was not outweighed by the likely harm.
Having found no abuse of discretion in granting Father as legal custodian and residential
parent, Mother's first and second assignments of error are overruled.
{¶44} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
- 14 -