In re E.W. , 2012 Ohio 308 ( 2012 )

[Cite as In re E.W., 2012-Ohio-308.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
IN THE MATTER OF:
CASE NO. 14-10-31
E. W.,
ADJUDICATED DEPENDENT CHILD,
[KRISTIE RISNER, OPINION
APPELLANT].
Appeal from Union County Common Pleas Court
Trial Court No. 20830064
Judgment Affirmed
Date of Decision: January 30, 2012
APPEARANCES:
Alison Boggs for Appellant
Perry Parsons for Appellee, James Wolford
Rick Rodger for Appellee, Union Co. Job & Family Services
Case No. 14-10-31
PRESTON, J.
{¶1} Mother-appellant, Kris Risner (hereinafter “Risner”), appeals the
judgment of the Union County Court of Common Pleas awarding custody of the
parties’ minor child, E.W., to father-appellee, James Wolford (hereinafter
“Wolford”). For the reasons that follow, we affirm.
{¶2} On October 14, 2008, the Union County Department of Job and
Family Services (hereinafter “UCDJFS”) filed a complaint alleging that E.W. was
a dependent child as defined in R.C. 2151.04(a), (b), and (c). (R. at 5). E.W. was
placed with her maternal grandmother and remained in UCDJFS’ temporary
custody during the pendency of the case. (R. at 22-24, 219-21).
{¶3} On December 12, 2008, an adjudicatory hearing was held wherein
E.W. was found to be a dependent child based upon the parties’ admissions. (R. at
186). That same day, Wolford filed a motion for custody of E.W. as a potential
disposition to the case. (R. at 185). On December 19, 2008, Risner filed a motion
for custody of E.W. as a potential disposition to the case. (R. at 202).
{¶4} On January 14, 2009, the matter proceeded to disposition; however,
prior to the commencement of the hearing, Risner made an oral motion to hold the
parties’ custody motions in abeyance while she was given an opportunity to
continue the case plan. (R. at 206, 219); (Jan. 19, 2009 Tr. at 6-7). The magistrate
ordered that: UCDJFS be granted temporary legal custody of E.W.; E.W. remain
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with her maternal grandmother as a kinship placement; the case plan be continued
as amended; and the matter be reviewed on May 14th and October 9, 2009. (R. at
220-21). The trial court adopted the magistrate’s decision on March 12, 2009. (R.
at 239).
{¶5} On April 9, 2009, UCDJFS filed a motion to modify disposition,
recommending that E.W. be returned to Risner with the agency retaining
protective supervision. (R. at 288-90).
{¶6} On April 10, 2009, the magistrate held a hearing on the parties’
motions for custody and UCDJFS’ motion to modify disposition and/or terminate
the agency’s involvement. (Apr. 10, 2009 Tr. at 4). At the conclusion of the
hearing, the magistrate awarded Wolford custody of E.W. and terminated
UCDJFS’ involvement in the case. (Id. at 146-48); (R. at 322-25). The magistrate
issued her decision on May 11, 2009. (R. at 322). The trial court adopted the
magistrate’s decision on May 12, 2009. (R. at 331).
{¶7} On May 26, 2009, Risner filed a notice of filing objections and motion
for an extension of time for filing objections after the completion of a transcript,
which the trial court granted. (R. at 339, 344-45). On June 4, 2009, Risner filed
her objections to the magistrate’s decision, but the trial court overruled the
objections on October 6, 2009. (R. at 346, 397-411).
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{¶8} On December 17, 2009, Risner filed a notice of delayed appeal, which
was assigned appellate case no. 14-09-43. (R. at 436). On January 7, 2010, this
Court denied the motion for delayed appeal finding that the order appealed from
was not a final appealable order since the trial court had not addressed the issue of
child support. (R. at 465).
{¶9} On October 6, 2010, the magistrate held a hearing to determine the
parties’ child support obligations and entered her decision the following day. (R. at
491-94). The trial court adopted the magistrate’s decision that same day. (R. at
504).1
{¶10} On November 3, 2010, Risner filed a notice of appeal. (R. at 510).
Risner now appeals raising three assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
AFTER HEARING ALL THE EVIDENCE, THE TRIAL
COURT ABUSED ITS DISCRETION BY IGNORING THE
FACTORS LISTED IN OHIO REVISED CODE 3109.04(F)(1)
AND GRANTING CUSTODY OF THE MINOR CHILD TO
HER FATHER, JAMES WOLFORD.
{¶11} In her first assignment of error, Risner argues that the trial court
abused its discretion by failing to appropriately weigh the factors in R.C.
1
Although not raised by the parties herein, we note that the magistrate’s October 7, 2010 decision ordering
child support erroneously indicates that E.W. will be emancipated on May 31, 2010. (R. at 493). The
record reflects that E.W. will be emancipated as of May 31, 2012. (July 6, 2010 Tr. at 11).
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3109.04(F)(1), and the trial court’s custody decision was against the manifest
weight of the evidence.
{¶12} Initially, we note that Wolford failed to file an appellee’s brief.
Under these circumstances, App.R. 18(C) provides that: “* * * in determining the
appeal, the court may accept the appellant’s statement of facts and issues as
correct and reverse the judgment if appellant’s brief reasonably appears to sustain
such action.” Nevertheless, a reversal is not warranted herein.
{¶13} The trial court’s decision when allocating parental rights is guided by
the best interest of the child. R.C. 3109.04(B)(1). To determine the best interest of
the child, the trial court must consider all the relevant factors, including, but not
limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant
to division (B) of this section regarding the child’s wishes and
concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of
the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the
child’s parents, siblings, and any other person who may
significantly affect the child’s best interest;
(d) The child’s adjustment to the child’s home, school, and
community;
(e) The mental and physical health of all persons involved in
the situation;
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(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
parent pursuant to a child support order under which that
parent is an obligor;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act
that is the basis of an adjudication; whether either parent or any
member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of
the Revised Code or a sexually oriented offense involving a
victim who at the time of the commission of the offense was a
member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to any offense involving a victim who at the time
of the commission of the offense was a member of the family or
household that is the subject of the current proceeding and
caused physical harm to the victim in the commission of the
offense; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child
or a neglected child;
(i) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully
denied the other parent’s right to parenting time in accordance
with an order of the court;
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(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
R.C. 3109.04(F)(1).
{¶14} A trial court has broad discretion in allocating parental rights, and its
decision will not be disturbed on appeal absent an abuse of discretion. Shaffer v.
Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶ 10, citing Davis v. Flickinger,
77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997); Siefker v. Siefker, 3d Dist. No.
12-06-04, 2006-Ohio-5154, ¶ 4. An abuse of discretion is more than an error of
judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983). When applying the abuse of discretion standard, a reviewing court
may not simply substitute its judgment for that of the trial court. Berk v. Matthews,
53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Furthermore, a reviewing court
will not reverse an award of custody that is supported by a substantial amount of
competent, credible evidence as being against the weight of the evidence. Bechtol
v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990).
{¶15} Nicolas Deagle, the UCDJFS case worker assigned since October
2008, testified that the agency became involved when it “received referrals with
regards to [Risner] having issues with her medications, having fallen down the
steps, and possible suicide ideation.” (Apr. 10, 2009 Tr. at 7). Deagle also
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indicated that an altercation occurred between Risner and E.W. leading up to the
filing of the complaint. (Id. at 7-8). Deagle testified that the agency requested that
Risner be involved with “FFT” to address the ongoing disputes between E.W. and
her. (Id. at 9). Deagle testified that the agency monitored Risner’s prescription
drug use, and that the number of pills he found in the bottles did not match the
prescribed number. (Id.). Risner explained to Deagle that the discrepancy could
have occurred if she took the prescribed medication for anxiety earlier in the day,
depending upon the amount of her anxiety that day. (Id.). Deagle testified that
Risner was subjected to one random drug test, which tested positive for
barbiturates and opiates; however, Risner also missed two other drug test
appointments, which the agency classifies as positive tests. (Id. at 10-11).
Consequently, of the four total drug tests, Risner failed three and the results for the
fourth test were not yet available. (Id. at 13). Deagle testified that Risner’s case
plan required her to attend counseling, but Risner missed eight of eleven sessions.
(Id.). Deagle further testified that Risner missed “less than probably five” visits
with E.W. (Id. at 14). Deagle testified that Risner has never provided her
prescriptions to account for her positive drug test result. (Id. at 14-15). When the
agency attempted to contact Risner’s physicians to find out about her
prescriptions, the physicians indicated that Risner was no longer a patient because
she exhibited drug-seeking behaviors. (Id. at 15). Deagle testified that Risner has
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not been prescribed any medications since January (2009), but he could not testify
whether or not Risner is still taking the medications. (Id. at 15-16).
{¶16} In addition, according to Deagle, E.W. is failing or getting D’s in all
of her classes, except choir and gym, and has had eighteen tardy slips since the
start of the school year. (Id. at 16). Deagle could not testify regarding Wolford’s
home since no one had inspected the home yet. (Id. at 16-17). Deagle testified that
Lora Diggs, who was working with Risner from FFT, reported that Risner was
addicted to prescription medications. (Id. at 17). Deagle testified that Risner had
problems taking prescription Dilaudid, and that Risner has been much better since
she is no longer taking that medication. (Id. at 17-18). Deagle testified that E.W.,
who originally voiced concerns over her mother’s prescription drug use, now
reports that her mother is doing much better. (Id. at 18).
{¶17} Deagle testified that E.W. had a prior case, which was terminated in
September 2008, approximately one month prior to the new case being filed. (Id.
at 19). Deagle testified that the agency was satisfied with Risner’s efforts in the
previous case leading up to its termination, though Deagle acknowledged that the
agency became involved again just one month later. (Id.). Deagle testified that he
felt things would be different this time because E.W. shared that she was not being
truthful with him during the last case about her mom’s medication usage. (Id. at
20). Deagle testified that the previous case was instituted because of an incident
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of domestic violence between Risner and her former husband. (Id. at 20). Deagle
testified that Risner had a positive drug test in the previous case, but that was
cleared up by Risner’s prescription medications. (Id.).
{¶18} On cross-examination, Deagle testified that he believes that Risner
has been forthcoming with him during this case, because she wants her child
returned. (Id. at 22). Deagle testified that Risner has a primary physician, which
could account for the prescription medications that she is currently taking. (Id. at
23-24). Deagle testified that Diggs indicated that the family was making good
progress. (Id. at 25). Deagle testified that Risner missed some of the counseling
sessions because she was sick, and Diggs cancelled an appointment due to illness
as well. (Id. at 26). Deagle testified that E.W.’s school grades were better last year
when she lived with Risner than this year when she was living with her maternal
grandmother. (Id. at 27-28). Likewise, most of E.W.’s tardies have occurred when
she resided with her maternal grandmother. (Id. at 28). Deagle testified that
Risner makes sure to attend parent-teacher conferences and is not happy with
E.W.’s academic performance or number of tardies. (Id.). Deagle testified that
Wolford was not pleased with E.W.’s academic performance either. (Id. at 29).
{¶19} Deagle testified that the agency filed a motion to modify disposition
ending its temporary custody of E.W. and returning E.W. to Risner. (Id. at 30).
Deagle testified that the case plan would still be in effect, requiring Risner to
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attend counseling and submit to random drug tests. (Id. at 30-31). Deagle testified
that the agency would check-up on Risner at least once a month since E.W. would
remain in the agency’s protective supervision. (Id. at 31). When asked if Risner’s
compliance has been “substantial,” Deagle testified “I would say that she’s
trying.” (Id.).
{¶20} Deagle testified that the agency would terminate its case plan if the
trial court gave Wolford custody of E.W. since Wolford lives in Kentucky. (Id. at
35). When asked if he had any concerns with Wolford, Deagle testified, “I have
nothing with Mr. Wolford.” (Id.). When asked if he had concerns with Risner,
Deagle testified, “[w]e are addressing issues in the case plan. Yes.” (Id.).
Concerning Wolford, Deagle testified that Wolford completed a drug and alcohol
assessment in the previous case, and that Wolford completed the six classes he
was required to attend. (Id. at 42). Deagle testified concerning Wolford with
respect to the current case plan as follows:
Q: * * * can you explain why you had no services requested of
Mr. Wolford in the case file.
A: With his case plan, Mr. Wolford had addressed the drug
and alcohol concern in our previous case plan. The Agency has
never received any recent concerns regarding Mr. Wolford’s
ability to parent, Mr. Wolford’s use of any medication other
than something that’s prescribed due to his back injury. There
was -- there was no need -- or there was no -- nothing that
warranted any kind of services put in place for him at this time.
Q: So is it fair to say you had no concerns over his role that he
would take in this case?
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A: Correct.
(Id. at 42-43).
{¶21} Wolford testified that he has lived in Gracen, Kentucky for about two
and a half years. (Id. at 44). Wolford testified that he lives with his wife, Margaret
Ann, who he married January 5, 2009. (Id.). Wolford testified that Margaret has
visitation with her two sons, ages thirteen and seventeen, from a previous
marriage. (Id. at 44-45). Wolford testified that E.W. does not see Margaret’s sons
very often when she visits since the boys chose to live with their father. (Id. at 45).
Wolford testified that his visitation with E.W. was every other weekend, every
other holiday, and six weeks in the summer. (Id.). Wolford testified that he
exercised his visitation rights with E.W. right after his first divorce from Risner
around 1995 or 1996 and has been seeing E.W. consistently since he has moved to
Kentucky about three years ago. (Id. at 46). Wolford testified that his visitations
with E.W. are “pretty good,” though he admitted he was learning new things
everyday as the father of a teenage girl. (Id. at 47). Wolford testified that E.W.
and he watch T.V. together, play the Wii together, ride four wheelers together, and
visit family together. (Id.). Wolford described E.W.’s relationship with Margaret
as “cool” and testified that they get along “as best as they can * * * they don’t
argue.” (Id.). Wolford testified that E.W. has twenty cousins that live in close
proximity to their home in Kentucky. (Id.).
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{¶22} Concerning his previous drug and alcohol assessment, Wolford
testified that he successfully completed five counseling sessions as required by the
agency. (Id. at 48). Wolford denied abusing drugs or alcohol but testified that he
is currently prescribed Percocet for his recent back surgery. (Id.). Wolford
testified that he only takes one ten-milligram pill per day, even though he is
allowed two ten-milligram pills per day, because he is a recovering alcoholic and
addict. (Id.). Wolford testified that he had been employed at W.A. Kendall
trimming trees around power lines for almost two years until he injured his back
on the job. (Id. at 49). Wolford testified that he is currently drawing workers’
compensation benefits and must report to the doctor after six weeks of physical
therapy. (Id.). Wolford testified that Margaret does not work since she is pregnant
but will return to work after their child is born. (Id. at 49-50). Wolford testified
that he is currently paying child support, though he has not been able to pay the
full amount due to his injury and decreased income. (Id. at 50). Wolford testified
that E.W. has a room and bed in his home when she visits, and that he is able to
continue to support E.W. (Id.). Wolford testified that he is asking the trial court to
grant him custody of E.W. since things are not going well for E.W. where she is
living. (Id. at 51). Wolford testified that E.W. would attend school at East Carter
High School, where his sister works as a teacher’s aide. (Id.). Wolford expressed
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his concern that Risner would continue to manipulate the agency if she was given
custody. (Id. at 52).
{¶23} On cross-examination, Wolford testified that he lives in a two-
bedroom mobile home. (Id. at 52). Wolford testified that Margaret is due in May
(2009), and that her sons stay at the mobile home one night per week. (Id. at 53).
Wolford testified that the bedrooms do not have doors, and that they use the
bathroom to change clothes. (Id. at 53). Wolford testified that Gracen, Kentucky
is about three and a half hours away from Marysville, Ohio. (Id. at 54). Wolford
testified that his stepfather drove him to court since he does not have a driver’s
license because he has a warrant out for a probation violation for failing to pay a
fine. (Id. at 55). Wolford testified that he relies upon family members for
transportation. (Id. at 56). Wolford testified that he did not know the ratings of the
schools in Gracen, Kentucky. (Id. at 56-57). Wolford was not sure how much
child support he paid when he was collecting workers’ compensation benefits, nor
could Wolford state the amount of his child support arrearage. (Id. at 57-58).
Wolford subsequently acknowledged that his child support balance was
$20,368.36, based upon records from Madison County, Ohio Department of Job
and Family Services. (Id. at 59). Wolford testified that he was married to and
divorced from Risner three times, and the last divorce was in 2005. (Id. at 60).
Wolford later testified that court records indicated that his last divorce was in
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1999, when E.W. was five years old. (Id. at 60-61). Wolford testified that he
exercised his visitation rights until 2003, when E.W. was almost ten or eleven
years old, until Risner would no longer allow him to pick up E.W. (Id. at 63).
Wolford testified that he tried to continue having a relationship with E.W. from
2003 to 2007 by contacting her on the phone since he was out of state. (Id.).
However, Wolford testified that Risner would answer the phone and say that E.W.
did not live there. (Id.). Wolford testified that he did not see E.W. for a year and a
half, but did send birthday cards and sent Risner money. (Id. at 64). Wolford
testified that his mother tried to visit E.W. as best as she could, but Risner
threatened to stop her visitation if she allowed him to talk to E.W. (Id. at 65).
Wolford testified that he had not provided E.W. with health insurance as ordered
since it would cost him half of his salary. (Id. at 66). Wolford testified that Risner
called the police on him eleven times when they were married for alleged
domestic violence, but he only pled guilty to domestic violence once. (Id. at 69-
71). Wolford testified that E.W. was close to several, but not all, of her cousins in
Kentucky. (Id. at 72). When asked how long he has been a recovering alcoholic,
Wolford answered, “[i]t’s been 24 hours today. But I really couldn’t tell you. I
try not to set deadlines or dates so that I won’t set myself up for failure. I know
it’s been two and a half years at least.” (Id. at 73).
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{¶24} When asked where all the people would sleep in the mobile home,
Wolford testified that E.W. would have her own bedroom; Margaret’s boys would
sleep in the living room on an air mattress or in a recliner; and the newborn would
sleep in his wife and his bedroom until he is at least three years old. (Id. at 74).
Wolford testified that E.W. went to school in Kentucky, and that it went “pretty
good.” (Id. at 75). Wolford testified that E.W. dresses different than some of the
children down there; specifically, E.W. dresses more provocatively than his
sister’s children since his sister is a Christian. (Id. at 76). When asked if E.W. is
an outsider, Wolford testified, “[n]o. They all run and jump on the trampoline and
she’s got a tendency to lean towards younger kids. And she pals up with them and
takes care of them and teaches them games, all kinds of stuff down there. It’s
amazing and – what she does with them.” (Id.).
{¶25} Next, Risner testified that Wolford left E.W. and her four days after
E.W. was born. (Id. at 78). Risner testified that Wolford was a drunk and drug
addict who would not work. (Id.). According to Risner, Wolford came back six
months later and told her that he had changed, so they were married again, but she
left him again when he kicked her, her eight-year-old son, and two-year-old
daughter because they were interfering with his drinking. (Id.). Risner testified
that she married him again the third time because he, again, stated he had changed,
but she made him leave the house after three days and filed for the third and final
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divorce. (Id.). Risner testified that their family unit was dysfunctional, and
Wolford was very jealous of and mean towards her son. (Id. at 79-80). Risner
testified that Wolford failed to pay child support regularly until October 2007. (Id.
at 80). Risner testified that, since 1999, Wolford has failed to provide E.W. health
insurance, and he has never given her money for school clothes. (Id. at 81). Risner
testified that Wolford’s visitation with E.W. was sporadic from 1999 to 2003, and
Wolford had absolutely no contact with E.W. from 2003 to 2007. (Id. at 82).
According to Risner, Wolford’s mother lived ten to fifteen minutes away from
E.W. but only called to visit with E.W. every six months. (Id.). Risner testified
that Wolford began having regular contact with E.W. in October 2007 when the
current case started. (Id. at 83). Risner testified that Wolford does not allow her to
contact E.W. when she is visiting him. (Id. at 85). Wolford only allows her to talk
to E.W. for ten minutes while she is visiting him, and, on one occasion, Wolford
yelled at E.W. for continuing to talk to her on the phone. (Id.). Risner testified
that she lives in a three-bedroom apartment with E.W., and her son stays at the
apartment sometimes. (Id. at 86). Risner testified that E.W. is very close with her
son. (Id.). Risner testified that she supports herself and E.W. through Social
Security disability payments, and that her son supports himself through working.
(Id. at 86-87). Risner testified that FFT is going wonderful, and Diggs is a
Godsend. (Id. at 88). According to Risner, Diggs taught E.W. and her how to be
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more open, honest, and respectful to each other. (Id.). Risner testified that E.W.
and she go to the park together, watch movies together, play video games together,
and shop together. (Id.). Risner testified that E.W.’s friends, grandpa and
grandma, aunts, uncle, and cousins live in Marysville. (Id. at 89). Risner testified
that E.W. told her she wanted to come home. (Id. at 90).
{¶26} E.W. is having difficulty adjusting to high school, according to
Risner. (Id.). E.W.’s grades in September and October “weren’t too bad” but then
they started to drop after E.W. moved in with her grandmother. (Id.). Risner
further testified that, unlike her mother, she would check to see if E.W. completed
her homework and would go over it if E.W. had questions. (Id. at 90-91). Risner
testified that E.W.’s eighteen tardies all occurred after E.W. moved in with her
grandmother, and that she was unaware of the tardies. (Id. at 91). E.W. has lived
in Marysville since 1995. (Id.). Risner testified that E.W. was “very adamant”
about not wanting to live in Kentucky, though E.W. enjoys visiting her father
every other weekend. (Id. at 92). Risner testified that E.W. does not want to move
away from her family and friends in Marysville, and that E.W. does not feel
comfortable in Kentucky with its different culture. (Id.). Risner also testified that
E.W. told her that she does not get along with Wolford’s new wife, and she is
concerned with E.W. having no bedroom door. (Id. at 93). Risner also expressed
concern with E.W. having space for her clothes since the closet of the bedroom
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where E.W. sleeps when she visits Wolford is full of Margaret’s clothes. (Id. at
94). Risner testified that E.W. needs to have Wolford in her life, but she believes
that she should have custody of E.W. since E.W. has been with her all of her life.
(Id. at 95).
{¶27} On cross-examination, Risner denied that the agency was involved
due to her prescription drug abuse. (Id. at 97). Risner admitted that one of her
doctors refuses to treat her because of her drug seeking behavior. (Id. at 99).
Risner testified that she was prescribed Cymbalta for depression; Limlamictal for
bipolar disorder; Atenolo for mitral valve prolapse; Synthroid for hypothyroidism;
Xanax for anxiety; Nexium for acid reflux; and Clonopin for insomnia. (Id. at 102-
104). Risner testified that she was also taking Fiornal and Dilaudid until her
incident with her daughter and then she stopped taking these medications. (Id. at
104). Risner admitted that she had been in two abusive marriages. (Id. at 109-
111). Risner testified that she would like Wolford to have visitation with E.W.
every other weekend and six weeks in the summer. (Id. at 111). Risner testified
that Wolford was not telling the truth when he stated that he tried calling E.W.
from 2003 to 2007. (Id. at 113).
{¶28} Richard Mickley, Esq., the appointed guardian ad litem (“GAL”),
testified that he conducted an investigation, was present for E.W.’s in-camera
interview, and talked with the parties involved in the case. (Id. at 121). Mickley
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testified that, after listening to the testimony at the hearing, he would recommend
that E.W. be placed with Wolford, even though E.W. would rather stay in
Marysville. (Id. at 122). Mickley testified that one of the reasons for his
recommendation is that the agency still has concerns with Risner, while it has no
concerns with Wolford, and E.W. enjoys visitations with Wolford. (Id.). Mickley
testified that he was not sure what Deagle would say about Wolford until the
hearing, and that he has never been to Wolford’s home. (Id. at 123). Mickley
testified that his decision was based upon balancing the information he had, not
“an absence of knowledge.” (Id.). Mickley denied that E.W. was “adamant” about
staying in Marysville, though he admitted that E.W. did not want to leave
Marysville because she was comfortable living there. (Id. at 124).
{¶29} After hearing all the evidence and a brief recess, the magistrate
decided that it was in E.W.’s best interest to grant Wolford custody. (Id. at 133,
146). In reaching her decision, the magistrate analyzed all of the R.C.
3109.04(F)(1) factors upon the record. (Id. at 133-46). Like the magistrate, the
trial court also extensively reviewed the R.C. 3109.04(F)(1) factors in light of the
evidence presented at the hearing. (Oct. 6, 2009 JE, R. at 397). In reaching its
decision, the trial court noted that, although it had concerns about both parents,
“the most persuasive evidence in this case was that Ms. Risner has failed to
comply with the case plan regarding her substance abuse and mental health
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issues.” (R. at 410). The trial court concluded that “if [E.W.] were reunified with
Ms. Risner, the family would be back before this Court again in a very short time.”
(Id.).
{¶30} Upon review of the record, we cannot conclude that the trial court
failed to adequately weigh the R.C. 3109.04(F)(1) factors as Risner asserts. A
simple reading of the transcript and the entries herein belie such an assertion.
Risner points to the fact that the magistrate merely mentioned that Wolford was
living in “Kentucky” without fully analyzing the significance of that factor.
However, the trial court is not required to address all the R.C. 3109.04(F)(1)
factors—only consider them—which the trial court clearly did in this case. Lucas
v. Lucas, 3d Dist. No. 11-93-6, at *3 (Mar. 25, 1994); Brammer v. Meachem, 3d
Dist. No. 9-10-43, 2011-Ohio-519, ¶ 30, citations omitted. Essentially, Risner
asks this Court to reweigh the evidence and reach a different conclusion than the
trial court, which we are not permitted nor inclined to do. Blakemore, 5 Ohio St.3d
at 219, 450 N.E.2d 1140; Hall v. Hall, 3d Dist. No. 6-10-11, 2010-Ohio-4818, ¶
26 (weight to be given to the evidence is primarily reserved to the trier of fact).
Besides that, much of the evidence supporting Risner’s assertions on appeal was
gleaned from her own testimony at the hearing, and the magistrate questioned
Risner’s credibility. (Apr. 10, 2009 Tr. at 143). Furthermore, the record contains
no evidence of the magistrate or trial court being biased against Risner as she
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asserts. Certainly the magistrate expressed her frustration with Risner’s failure to
attend her counseling and drug screening appointments as required under the case
plan, but that does not equate to bias. (Id. at 141).
{¶31} Finally, we find that the trial court’s custody determination was
supported by substantial competent, credible evidence and was, therefore, not
against the manifest weight of the evidence. Bechtol, 49 Ohio St.3d at 23, 550
N.E.2d 178. The record, taken as a whole, demonstrated that both parents had
some issues, but Wolford’s issues were past issues, not present issues like
Risner’s. The record also demonstrated that Risner failed to complete the case
plan objectives, even when the magistrate continued the case to provide Risner
with more time to do so. (Apr. 10, 2009 Tr. at 143). Given Risner’s failure to
adequately address her problems, the trial court was concerned that E.W. would
continue to be involved in further court proceedings, which was not in E.W.’s best
interest. (R. at 410). Under these circumstances, we cannot find that the trial
court’s custody determination was against the manifest weight of the evidence.
{¶32} Risner’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT PERMITTED THE
GUARDIAN AD LITEM TO TESTIFY OR EXPRESS AN
OPINION WHEN HE HAD NOT CONDUCTED A FURTHER
INVESTIGATION OR SUBMIT A SUPPLEMENTAL
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REPORT AFTER THE INITIAL REPORT BEEN FILED
TWO YEARS EARLIER IN A PRIOR CASE.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED WHEN IT FAILED TO
APPOINT AN ATTORNEY TO REPRESENT THE MINOR
CHILD IN THE HEARING, IN ADDITION TO HER
GUARDIAN AD LITEM, WHEN IT WAS CLEAR TO THE
COURT AFTER THE IN CAMERA INTERVIEW THAT
WHAT SHE WANTED WAS OPPOSITE WHAT THE
GUARDIAN AD LITEM BELIEVED WAS IN HER BEST
INTEREST.
{¶33} In her second assignment of error, Risner argues that the trial court
erred in allowing the GAL to offer a recommendation when he did not submit a
report prior to the dispositional hearing or the final custody hearing. In her third
assignment of error, Risner argues that the trial court erred by failing to appoint an
attorney separate from the GAL as required by Juv.R. 4(C)(2) and R.C.
2151.281(H).
{¶34} The procedural posture of this case is important for our analysis of
these assignments of error. Although this case originated as a dependency action,
the parties filed custody motions during the proceedings. (R. at 22-24, 185, 202).
The custody motions were held in abeyance until after disposition in order to
provide Risner with more time to complete her case plan. (R. at 206, 219); (Jan.
19, 2009 Tr. at 6-7). The dependency action was resolved by a disposition entered
March 12, 2009. (R. at 239). Thereafter, on April 10, 2009, the trial court held a
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hearing on the custody motions and UCDJFS’ motion to modify disposition and/or
terminate its involvement. (R. at 288-290); (Apr. 10, 2009 Tr. at 4). At that point,
the trial court was proceeding on a motion to modify parental rights and
responsibilities under Revised Code Chapter 3109. (Apr. 10, 2009 Tr. at 135).
{¶35} R.C. 2151.281 sets forth the general provisions governing GALs and
includes, in pertinent part, that the GAL “shall file any motions and other court
papers that are in the best interest of the child.” R.C. 2151.281(I). Sup.R. 48(F)(2)
specifically provides that, in domestic relations proceedings involving the
allocation of parental rights and responsibilities, the GAL’s final report “shall be
filed with the court no less than seven days before the final hearing unless the due
date is extended by the court.” However, R.C. 3109.04(C), the statute under
which the trial court was awarding custody herein, provides:
Prior to trial, the court may cause an investigation to be made as
to the character, family relations, past conduct, earning ability,
and financial worth of each parent and may order the parents
and their minor children to submit to medical, psychological,
and psychiatric examinations. The report of the investigation
and examinations shall be made available to either parent or the
parent’s counsel of record not less than five days before trial,
upon written request.
A GAL is an investigator for the court within the meaning of R.C. 3109.04(C). In
re Sherman, 3d Dist. Nos. 05-04-47, 05-04-48, 05-04-49, 2005-Ohio-5888, ¶ 28;
Webb v. Lane, 4th Dist. No. 99CA12, at *2 (Mar. 15, 2000); In re A.L., 6th Dist.
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No. L-10-1355, 2011-Ohio-2569, ¶ 34; Bates-Brown v. Brown, 11th Dist. No.
2006-T-0089, 2007-Ohio-5203, ¶ 36.
{¶36} Risner’s arguments lack merit. As an initial matter, Risner never
objected to the magistrate’s decision for the GAL’s failure to file a report and
testify at the hearing, and as such, has waived all but plain error herein. (R. at
346); Juv.R. 40(D)(3)(b)(iv); In re D.N., 4th Dist. No. 11CA3213, 2011-Ohio-
3395, ¶ 44. Risner also never filed a written request for the GAL’s report as
required under R.C. 3109.04(C), and therefore, has waived all but plain error on
that basis as well. See Brown, 2007-Ohio-5203, at ¶ 27, citing Wilburn v. Wilburn,
169 Ohio App.3d 415, 2006-Ohio-5820, 863 N.E.2d 204, ¶¶ 32-33. Aside from
that, Risner never objected to the GAL testifying and, in fact, cross-examined the
GAL at the hearing. (Apr. 10, 2009 Tr. at 121-24). Furthermore, Risner has not
demonstrated how she was prejudiced by the GAL’s failure to file a written report
or the GAL’s testimony. “A number of courts have determined that when a parent
cannot establish any prejudice arising from the action or non-action of a guardian
ad litem, then any potential error constitutes harmless error.” In re J.C., 4th Dist.
No. 07CA833, 2007-Ohio-3781, ¶ 13, citing In re Sanders, 11th Dist. No. 2004
AP 08 0057, 2004-Ohio-5878; In re Ridenour, 11th Dist. Nos. 2003-L-146, 2003-
L-147, and 2003-L-148, 2004-Ohio-1958; In re Schupbach, 11th Dist. No.
2000AP010005 (July 6, 200); In re Malone, 4th Dist. No. 93CA2165 (May 11,
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1994); In re Doe, 6th Dist. No. L-92-296 (Sept. 17, 1993). In fact, as Risner
points out, the trial court corrected the GAL’s characterization of E.W.’s in-
camera interview but, nevertheless, awarded custody to Wolford. (Apr. 10, 2009
Tr. at 137, 146). Since the trial court was aware of the GAL’s investigation (or
lack thereof as the case may be) and subjected the GAL’s testimony to its
independent review, we cannot find plain error in this case. (Id. at 121-124, 137).
{¶37} Next, Risner argues that the trial court erred by failing to appoint
E.W. an attorney separate from the GAL after the in-camera interview when it
became obvious that the GAL’s position was contrary to E.W.’s desire to live with
Risner. We disagree.
{¶38} R.C. 2151.281(H) provides, in pertinent part, that “if a person is
serving as guardian ad litem and counsel for a child and either that person or the
court finds that a conflict may exist between the person’s roles as guardian ad
litem and as counsel, the court shall relieve the person of duties as guardian ad
litem and appoint someone else as guardian ad litem for the child.” (Emphasis
added). See also Juv.R. 4(C)(2).
{¶39} Initially, we again note that our review is limited to plain error,
because Risner never objected to the magistrate’s decision on this basis and never
raised this issue in the trial court. (R. at 346); Juv.R. 40(D)(3)(b)(iv); In re D.N.,
2011-Ohio-3395, at ¶ 44; In re T.E., 9th Dist. No. 22835, 2006-Ohio-254, ¶ 7,
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citing In re K.H., 9th Dist. No. 22765, 2005-Ohio-6323, ¶ 41. See also In re B.B.,
9th Dist. No. 21447, 2003-Ohio-3314, ¶ 7; In re Graham, 4th Dist. No. 01CA57,
2002-Ohio-4411, ¶¶ 31-33; In re Brittany T., 6th Dist. No. L-01-1369 (Dec. 21,
2001). Risner cannot demonstrate plain error here. To begin with, Juv.R. 4(C)(2)
and R.C. 2151.281(H) have no application here because Mickley was not
appointed as both E.W.’s attorney and GAL but only as E.W.’s GAL, and
therefore, no conflict of interest could exist. (R. at 10, 23, 26); In re A.S., 4th Dist.
No. 07CA40, 2008-Ohio-3443, ¶ 31. Even if Juv.R. 4(C)(2) and R.C.
2151.281(H) were applicable, it was unclear that the GAL’s recommendation was
going to be contrary to E.W.’s wishes at the time of the in-camera interview as
Risner asserts. In fact, the GAL testified that his final recommendation was not
solidified until hearing the evidence at the custody hearing. (Apr. 10, 2009 Tr. at
122-123). And finally, we are not persuaded that the result of the proceeding
would have been different if E.W. was appointed separate counsel. The trial court
was well aware of E.W.’s “adamant” desire to live with Risner when rendering its
decision. (Id. at 137); (Oct. 6, 2009 JE, R. at 402). Under these circumstances, we
cannot find that the trial court committed plain error by failing to appoint E.W.
separate counsel.
{¶40} For all these reasons, Risner’s second and third assignments of error
are, therefore, overruled.
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{¶41} 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
WILLAMOWSKI, J., concurs.
ROGERS, J., concurs in Judgment Only.
/jlr
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