In re L.S. , 2018 Ohio 5116 ( 2018 )

[Cite as In re L.S., 2018-Ohio-5116.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.S. C.A. No. 28475
A.S.
L.S.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 14-01-0036
DN 14-01-0037
DN 14-01-0038
DECISION AND JOURNAL ENTRY
Dated: December 19, 2018
CALLAHAN, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that placed her children L.S., A.S. and Li.S. in the legal custody of
Father. This Court affirms.
I.
{¶2} Mother and Father are the biological parents of A.S. (d.o.b. 6/20/05), L.S. (d.o.b.
3/7/07), and Li.S. (d.o.b. 6/19/08). At all times during this matter, Mother and Father were
married but involved in divorce proceedings.1 L.S. is a medically fragile child who suffers from
multiple conditions, disabilities, and diseases. Among those are microcephaly, cognitive
disabilities, a swallowing disorder, a seizure disorder (referred to by some witnesses as epilepsy),
1
The domestic relations court declined to address child custody and support issues as part of the
divorce proceedings because the children were subjects of an ongoing dependency/neglect/abuse
action.
2
and sleep issues. He is substantially nonverbal and has frequently used a wheelchair, although
he can walk. L.S. also receives the bulk of his nutrition via a g-tube, although he is able to eat a
few types of food by mouth. A.S. has allergies and asthma but is otherwise healthy and
developmentally on track. Li.S. has no physical, developmental, or health issues.
{¶3} Based on allegations of the overmedication of L.S., Summit County Children
Services Board (“CSB” or “the agency”) filed complaints alleging L.S. to be an abused,
neglected, and dependent child, and alleging A.S. and Li.S. to be dependent children. Mother
moved out of the family home, and CSB obtained an order of emergency temporary custody to
Father under the protective supervision of the agency. Mother was permitted to have weekly
supervised visitation with A.S. and Li.S. only.
{¶4} At the adjudicatory hearing, CSB amended its complaint relating to L.S. to
withdraw the allegation of abuse, as well as certain alleged grounds for neglect and dependency.
Mother and Father waived their rights to a hearing, and the parties stipulated that L.S. was a
neglected and dependent child, and that A.S. and Li.S. were dependent children. At the
subsequent dispositional hearing, Mother and Father again waived their rights to a hearing, and
the parties agreed that the best interest of the children warranted their placements in the
temporary custody of Father with an order of protective supervision to the agency. Mother was
granted five hours of supervised visitation with A.S. and Li.S. each week, as well as phone
contact six evenings each week. Mother was to have no contact by any means with L.S. The
juvenile court adopted the agency’s proposed case plan as the order of the court.
{¶5} At a subsequent review hearing, the trial court modified Mother’s visitation to
allow her one hour of supervised visitation each week with L.S. Later, the court allowed her a
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two-hour supervised visit with L.S. every other week. She exercised those visits for
approximately four months.
{¶6} Father filed a motion for legal custody and to terminate the agency’s protective
supervision. A couple months later, CSB filed a motion for legal custody to Father and to
terminate its protective supervision. The juvenile court scheduled a three-day hearing. Due to
numerous continuances and other issues, the legal custody hearing ultimately took place on eight
separate days over a span of more than eight months, from October 29, 2014, through July 9,
2015. Seven months after the first hearing date, Mother filed a motion for legal custody and for
a six-month extension of temporary custody. After the legal custody hearings concluded, but
before the magistrate issued her decision, the juvenile court terminated Mother’s visitations with
L.S.
{¶7} The magistrate issued a decision granting Father’s and CSB’s motions for legal
custody to Father and terminating protective supervision, and denying Mother’s motion for legal
custody. Mother was granted weekly supervised visitation with A.S. and Li.S. at a paid
supervised visitation center, and she was ordered to have no contact of any type with L.S.
Mother was ordered to pay child support in the statutory minimum amount of $50.00 per
month/per child. The juvenile court adopted the magistrate’s decision the same day.
{¶8} Mother filed timely objections to the magistrate’s decision, arguing that the orders
regarding custody and visitation were not supported by the evidence. She reserved leave to file
supplemental objections after the transcripts of the hearings were filed. Father also filed
objections relating solely to the child support order. Before the juvenile court ruled on the
objections, the parties agreed to modify Mother’s child support obligation on an interim basis, in
consideration of the final spousal support order issued in the parties’ divorce decree.
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Specifically, the parties agreed that Mother would have a monthly $1,050.00 child support
obligation, which would be offset against the $2,500.00 per month in spousal support that the
domestic relations court ordered Father to pay Mother. Accordingly, pending the juvenile
court’s ruling on the objections, Father would only pay Mother two $725.00 semi-monthly
spousal support payments instead of two $1,250.00 semi-monthly payments.
{¶9} After the transcripts were filed, Mother moved to supplement her objections and
requested a “new trial,” because she believed the errors that allegedly occurred during the 8-day
hearing were too numerous to address merely via objections. She noted the same objections as
in her initial objections and made some brief arguments challenging the adequacy of the
evidence. Father and CSB responded in opposition to Mother’s objections and motion for a new
trial. The juvenile court denied Mother’s request for a new trial and granted Mother an
additional two weeks to file a brief in support of her objections. Mother did not further
supplement her objections. The juvenile court issued a judgment, sustaining Father’s objections
and overruling Mother’s objections. The trial court ordered the children into the legal custody of
Father and terminated the agency’s order of protective supervision. Mother was granted weekly
supervised visitation with A.S. and Li.S. at a commercial visitation center. Although the juvenile
court denied Mother visitation with L.S., the court noted that it would be hearing Mother’s
motion to modify visitation in the near future. Mother was ordered to pay child support for the
three children in an amount that was approximately $300.00 less per month than the amount
agreed to in the interim order, with no offset against her spousal support award. Mother filed a
timely appeal in which she raises three assignments of error for review. This Court considers
some assignments of error out of order to facilitate review.
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II.
ASSIGNMENT OF ERROR I
THE MAGISTRATE IN THIS MATTER DEMONSTRATED CLEAR BIAS
AND A PREDISPOSITION AS TO THE OUTCOME OF THIS CASE,
THROUGHOUT THE HEARING, AND THROUGH COURT ACTIONS
WHICH UNDULY PREJUDICED [MOTHER].
{¶10} Mother argues that the juvenile court erred by granting legal custody to Father in
the face of the magistrate’s clear bias against Mother. Because Mother failed to preserve the
issue for appeal, this Court declines to address it.
{¶11} A party must preserve a challenge alleging bias by a magistrate either by filing a
motion to remove the magistrate with the trial court or by raising the issue in objections to the
magistrate’s decision. See In re B.W., 9th Dist. Lorain No. 16CA010933, 2017-Ohio-1180, ¶ 8-
9; see also Juv.R. 40(D)(3)(b)(iv). Here, Mother did not file a motion in the juvenile court to
remove the magistrate. Instead, she filed a motion to transfer the case to the judge’s docket,
based in part on her assertion that, regardless of any decision by the magistrate, one or both of
the parties would likely file objections, leaving the children “in limbo regarding the permanency
of their living arrangements.”
{¶12} To the extent that her motion could be construed as a motion to remove the
magistrate, Mother alleged bias “based on prior rulings” and “instance[s] of ex parte
communication * * *.” She filed her motion several months after the first day of the eight-day
hearing, but approximately three months before the second day of hearing. Accordingly, her
motion could not have alleged instances of bias that might have occurred on days two through
eight of the hearing before the magistrate. On appeal, however, Mother argues bias based on
events that allegedly occurred during the fifth day of the hearing.
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{¶13} In her initial objections to the magistrate’s decision, Mother did not raise the issue
of bias. In her supplemental objections, filed after the filing of the transcripts, Mother made only
a passing reference to bias. She quoted the magistrate’s decision in which the magistrate relied
on “the credible evidence provided by several witnesses other than Dr. Thomas” to find that
Mother exhibited characteristics consistent with a diagnosis of Munchausen Syndrome by Proxy.
Mother’s full argument relating to bias consisted of the following: “The Magistrate did not list
which witnesses, other than Dr. Thomas, that give her the ability to diagnose Mother. This
appears wholly inappropriate, leaning toward bias.” She did not develop the bias argument
further. She has abandoned that argument on appeal and now attempts to formulate an argument
for bias based on matters that occurred on the fifth day of hearing that she failed to challenge
below.
{¶14} Mother did not preserve her challenges to the magistrate’s pronouncements on the
fifth day of hearing, which allegedly demonstrated the magistrate’s “predisposition to the
outcome reached,” when she failed to raise them in her objections in the juvenile court. As she
has further not argued plain error on appeal, this Court does not reach the merits of Mother’s
argument. See In re N.C., 9th Dist. Summit Nos. 27116 and 27118, 2015-Ohio-1627, ¶ 28.
Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT’S FINDINGS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶15} Mother argues that the juvenile court’s findings are against the manifest weight of
the evidence. Specifically, Mother challenges the court’s findings as they relate to the award of
legal custody to Father, visitation, and child support. Mother’s arguments are not well taken.
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{¶16} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,
this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
LEGAL CUSTODY
On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
court does not have discretion to enter a judgment that is adverse to that interest.
Thus, our standard of review is whether a legal custody decision is against the
manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶17} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-
1330, ¶ 12. “The critical inquiry before awarding legal custody is to consider the current
parenting abilities of each potential custodian and to determine whether it is in the best interest of
the child[ren] to be placed in the legal custody of any of them.” In re K.D., 9th Dist. Summit No.
28459, 2017-Ohio-4161, ¶ 24, citing In re K.C., 9th Dist. Summit Nos. 26992 and 26993, 2014-
Ohio-372, ¶ 20.
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{¶18} The statutory scheme regarding an award of legal custody does not include a
specific test or set of criteria, but Ohio courts agree that the juvenile court must base its decision
to award legal custody on the best interest of the children. In re B.B., 9th Dist. Lorain No.
15CA010880, 2016-Ohio-7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-
Ohio-110, ¶ 23. In that regard, the juvenile court is guided by the best interest factors enunciated
in R.C. 2151.414(D) relating to permanent custody. In re B.G., 9th Dist. Summit No. 24187,
2008-Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17.
Those factors include the interaction and interrelationships of the children, the children’s wishes,
the custodial history of the children, the children’s need for permanence, and whether any of the
factors in R.C. 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re
B.C., 9th Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 16. In addition, the juvenile court
may also look to the best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A., 9th
Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17. While some factors overlap
with those above, others include the children’s adjustment to their environment; the mental and
physical health of all persons involved; the parents’ history of providing support and honoring
companionship orders; certain indicia of violence, abuse, or neglect in any household involved;
and whether a parent plans to or has established a residence outside of Ohio. R.C.
3109.04(F)(1).
{¶19} Mother focuses her argument to challenge the testimony of Drs. Aimee Thomas
and R. Darryl Steiner, as well as the evidence of the results of her parenting evaluation,
specifically as such evidence implicates a diagnosis of Munchausen by Proxy. The juvenile
court, however, did not base its award of legal custody of the children to Father on a finding that
Mother suffered from Munchausen by Proxy. Instead, the juvenile court found “by a
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preponderance of the evidence that an award of legal custody to [F]ather is in the best interest of
the children, regardless of whether [M]other has been diagnosed with Munchausen by Proxy.”
(Emphasis added.) The juvenile court thereafter conducted a thorough review of the evidence in
relation to the statutory best interest factors. Accordingly, Mother’s argument about whether the
challenged evidence might or might not have resulted in a diagnosis of Munchausen by Proxy
provides limited insight into a determination of whether the juvenile court’s award of legal
custody to Father is against the manifest weight of the evidence.
{¶20} Mother further argues that an award of legal custody to Father is against the
manifest weight of the evidence because she complied with her case plan objectives. “While it is
relevant to the best interest determination, this Court has repeatedly recognized that a parent’s
compliance with case plan objectives is not dispositive of the issue.” In re L.T., 9th Dist.
Summit Nos. 28788 and 28789, 2018-Ohio-1487, ¶ 12, citing In re E.G., 9th Dist. Medina No.
16CA0075-M, 2017-Ohio-2584, ¶ 15, citing In re T.W., 9th Dist. Summit No. 27477, 2016-
Ohio-92, ¶ 17. Accordingly, this Court will consider Mother’s case plan compliance only where
relevant to the best interest of the children.
{¶21} In her limited argument touching on the best interest of the children, Mother
contends that the manifest weight of the evidence supported an award of legal custody to her
because Mother’s treating professionals deemed her not to be a threat to the children, and
because she is capable of providing for the care of the children. Based on a thorough review of
the evidence, this Court concludes that the juvenile court’s finding that an award of legal custody
to Father is not against the manifest weight of the evidence.
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Background
{¶22} In 2012 and 2013, L.S. began experiencing what Mother at first described as
seizures, but what were later described as dysautonomic events. Dysautonomia is a condition
affecting the nervous system and presented in L.S. with symptoms of very low heart and
respiratory rates, low body temperature, extreme lethargy, and an inability to rouse. After one of
these events, the child would often sleep for over 30 hours. On a few occasions, the child was
reportedly close to death during these events. Excessive doses of Clonidine produce these same
symptoms. Clonidine was one of L.S.’ prescribed medications. It was administered to help the
child sleep. The doses would typically become effective 30 minutes to two hours after
administration. L.S.’ dysautonomic events almost always occurred in the mornings after L.S. left
Mother’s care and arrived at school.
{¶23} In the spring of 2013, one of L.S.’ nurses began to suspect that Mother was
overmedicating L.S. to cause his dysautonomic events. The child’s in-home nurse informed
Father regarding her suspicion. The nurse then implemented a medicine count in the home to
track the amount of medication L.S. was receiving. Both parents were aware of the medication
count protocol, but Mother believed it was initiated because of another nurse’s medication error.
{¶24} Others also began suspecting that something was amiss. L.S.’ multiple medical
providers gathered at Children’s Hospital to discuss his medical situation and to determine
whether the child was being subjected to medical abuse and, if so, by whom. In fact, the medical
professionals proposed hospitalizing L.S. to remove him from his home environment,
specifically Mother, to see if the child’s condition improved.
{¶25} On October 26, 2013, while both parents were home with the children on a
Saturday, Father caught Mother trying to hide a Clonidine pill she had in her hand as she was
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preparing to feed L.S. After Father confronted Mother with the suspicions that Mother was
overmedicating L.S. with Clonidine and causing his dysautonomic events, he gathered the
children and took them to the police station. Mother left the family home that day and has never
returned. During the 20-month pendency of the case, Mother spent approximately ten supervised
hours with L.S., despite the eventual opportunity for two-hour bi-weekly visits. She had weekly
five-hour supervised visitations with A.S. and Li.S.
Custodial history of the children
{¶26} Prior to Mother’s vacating the family home in October 2013, the children had
always lived there with both Mother and Father. After Mother left the family home, the children
remained in the home exclusively in Father’s custody during the 20-month pendency of the case.
The children have never been out of Father’s custodial care during their lives.
Interaction and interrelationships of the children; Children’s adjustment to their environment
{¶27} The children are very closely bonded with one another. Both A.S. and Li.S. show
special affection for their brother L.S. The principal at the school where all three children attend
has witnessed a loving relationship amongst the children. A.S. is an engaging child who
participates in many extracurricular activities with other children. The guardian ad litem also
described Li.S. as “engaging and open.” Despite his limitations, L.S. is affectionate and
outgoing with classmates, as well as school and other support staff.
{¶28} The guardian ad litem and visitations supervisors all testified that Mother is always
appropriate with A.S. and Li.S. during visits. She brings craft projects and engages the children
in other activities which hold their interest. Mother and the two children share a close bond and
clearly love one another. Mother has had only a few hours of interaction with L.S. in twenty
months. Those supervised visitations took place with A.S. and Li.S. present. Those visits
12
occurred at the YMCA and in the home of Mother’s friend. Neither location was suitable for a
child with L.S.’ special needs, thereby hindering Mother’s ability to take full advantage of her
opportunity to visit with each child. Thereafter, Mother asked to stop her visits with L.S.,
because he demanded every bit of her attention and focus, so that she was unable to focus any
attention on her other two children. Although the guardian ad litem testified that Mother could
have pursued additional visitation with L.S., Mother declined, further asserting that it was too
expensive. Although Mother testified that L.S. ran to her and hugged her during their first visit,
the visitation supervisor disputed that. Mother was heard to tell L.S. that she loved him only at
her first visitation.
{¶29} By all accounts, Father and the three children enjoy close and loving relationships
with one another. Everyone who had the opportunity to observe Father with the children
testified that he is appropriate, attentive, and committed to the children, and that the children are
comfortable and happy with Father. The caseworker testified that Father was able to manage the
special needs of L.S., even while interacting with A.S. and Li.S.
{¶30} Because the children have remained in the home they knew when Father and
Mother were together, they have experienced no adjustment issues with their physical
accommodations. A.S. and Li.S., along with Father, have engaged in in-home counseling to
address issues regarding Mother’s absence from the home and the parents’ then-impending
divorce. The children continue to engage in counseling, and Father has indicated his intent to
continue them in counseling after these proceedings have been resolved.
Children’s wishes
{¶31} L.S. is nonverbal and was unable to convey his wishes. The guardian ad litem
reported that A.S. expressed a desire to live with both Father and Mother. Li.S. told the guardian
13
that she wants to continue living with Father and her brothers. Both A.S. and Li.S. would like to
be able to spend more time with Mother. In the interest of consistency and security, the guardian
ad litem recommended legal custody to Father as being in the best interest of the children. Based
on Mother’s mental health issues, the guardian recommended no visitation with L.S. and
continued supervised visitation with A.S. and Li.S.
Parents’ history of providing support and honoring companionship orders
{¶32} At all times during this case, Father has financially provided for the children’s
needs. Mother had not paid any child support until the juvenile court entered the agreed interim
child support order pending the court’s ruling on the objections. Mother did pay half, or
sometimes all, of the costs associated with her supervised visitations. In addition, Mother bought
the children coats, several pairs of shoes, and bicycles.
{¶33} Visitation presented an ongoing issue for the parties. Despite clear court orders
enunciating the visitation parameters (days, times, locations, and the supervisor), Mother
routinely sought to modify various aspects of her visitation. She frequently drew the visitation
supervisors into the mix, asking them to ask Father if the location of the visits could be changed
to accommodate various activities she wanted to do with the children. The visitation supervisors
became confused and often sought clarification from various attorneys, the caseworker, the
guardian ad litem, and Father about where the visits could occur, and who could supervise. Even
when reminded regarding the uncomplicated language of the visitation order, Mother pushed for
others to seek alternative opportunities for her. Through it all, however, Father accommodated
the vast majority of Mother’s requests. Multiple witnesses testified that Father was cooperative
with Mother, and always ensured that she was able to make up any visitation time she missed
due to the unavailability of a visitation supervisor. Mother had no complaints that Father
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deprived her of any visitation with the children or that he did not cooperate with her when she
requested accommodations.
Mental and physical health of all persons involved
{¶34} Li.S. is in good physical health and does not present with any health issues. In
2012 and 2013, A.S. was allegedly experiencing significant issues involving allergies and
asthma. He was receiving allergy shots and using two types of inhalers every day. Because of
these alleged issues, he was first subjected to noninvasive tests and, later, to more invasive tests.
He underwent an acid reflux test, a swallow test, and a vocal cord test. He was submitted to a
test to rule out cystic fibrosis. Ultimately, he underwent a bronchoscopy and an endoscopy, both
of which were invasive and required full sedation of the child. These successive and
progressively more invasive medical procedures to address A.S.’ allergies and asthma occurred
in the couple years before Mother left the family home. However, he has not required further
testing or procedures since Mother’s departure. His allergies are currently well-managed, and he
only occasionally uses an inhaler. Both A.S. and Li.S. remain in counseling to address issues
arising out of their parents’ divorce and the reasons why the children may only have limited and
supervised visitation with Mother.
{¶35} L.S. has significant physical and intellectual disabilities, and he will require care
throughout his entire life. Although he has a seizure disorder, his seizures have been rare since
Mother left the family home. Moreover, since Mother’s departure, L.S. has not experienced any
dysautonomic events. The caseworker testified that since she has been involved (since
November 2013), L.S. has not required any emergency medical treatment. Father testified that
L.S.’ prior diagnosis of dysautonomia has since been determined to be erroneous, and that the
child’s prior episodes were as a result of overmedication of Clonidine.
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{¶36} Multiple witnesses testified that L.S.’ condition improved in many ways since
Mother’s absence from his life. School staff remarked that the changes in L.S.’ behavior and
abilities were phenomenal. The child is no longer lethargic and non-responsive. Instead, he
smiles, makes sustained eye contact, and is able to focus on the task at hand for a significant
period of time. He interacts appropriately and responsively with peers and staff. His
comprehension skills have greatly improved. L.S.’ principal testified that the child has “really
come to life” in the past year and a half.
{¶37} There was no evidence that Father suffers from any physical or mental health
issues. Father engaged in counseling with the children as required by the case plan, and he
remains cooperative and willing to continue any counseling recommended for the benefit of the
children. Although Father admitted taking an anti-depressant for a short period of time a couple
years ago, he explained that he did so after learning about Mother’s marital infidelity. Mother’s
betrayal was a shock to Father, and he sought help to cope with that stress. Father no longer uses
an anti-depressant.
{¶38} Mother has struggled with mental health issues throughout this case. In October
2013, after Father initially confronted her with his suspicions that she was poisoning L.S.,
Mother bought a bottle of sleeping pills and a bottle of aspirin or acetaminophen, drove to a
motel, and took all the pills. She then called Father but was unable to reach him. Mother then
called a neighbor and asked her to tell Father that she (Mother) had taken some pills. The
neighbor called 911 and Mother was taken to the hospital psychiatric ward, where she stayed for
14 days after her suicide attempt. In December 2013, Mother was again admitted to the hospital
based on “suicide ruminations” and another possible suicide attempt. That time, she remained in
the hospital for four weeks for inpatient treatment, followed by a few sessions of outpatient
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treatment. The psychiatrist who saw Mother during her second hospitalization diagnosed her
with major depression with psychosis (paranoia), and prescribed various psychotropic
medications to address Mother’s sleep and anxiety issues.
{¶39} Dr. Aimee Thomas, a licensed psychologist from Northeast Ohio Behavioral
Health, performed a 4½-hour parenting assessment of Mother to identify her strengths and
weaknesses regarding her ability to parent.2 Dr. Thomas considered all aspects of Mother’s life,
including housing, employment, mental health, substance abuse, support systems, the special
needs of the children, and the safety and stability of the home. The parenting evaluation took
more than twice the traditional time due to the complex issues involved in this case, including
the allegation that Mother had poisoned one of her children.
{¶40} Dr. Thomas agreed that Mother suffers from major depression with psychosis. In
addition, she identified various “characterological problems” that interfered with Mother’s
participation in treatment. Although she was not comfortable rendering specific personality
disorder diagnoses, Dr. Thomas testified that Mother presents with many features of histrionic,
narcissistic, borderline, and dependent personality disorders. Specifically, Mother exhibits the
attention-seeking and dramatic behaviors associated with histrionics; the grandiosity, sense of
entitlement, and lack of connection or empathy for others associated with narcissism; and
toleration of a dysfunctional relationship with Father (as reported by Mother) associated with
dependency. Dr. Thomas further described Mother as impulsive and erratic, making decisions
2
Because the juvenile court did not rely on evidence of Mother’s alleged diagnosis of
Munchausen Syndrome by Proxy, and with regard to our subsequent discussion regarding
Mother’s second assignment of error, this Court does not consider any testimony of Dr. Thomas
relating to the issue of Munchausen Syndrome by Proxy.
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based on emotions rather than logic. She was not convinced that Mother had gained the
necessary insight into her issues to fully embrace treatment. The psychologist recommended that
Mother continue participating in mental health treatment with a counselor, and consult with a
psychiatrist regarding medications. Dr. Thomas testified that Mother’s complex mental health
issues will require years of treatment, and Mother readily agreed.
{¶41} Mother’s counselor, a psychological assistant at Premier Behavioral Health
Services, has been seeing Mother for a year and a half. She testified that early on Mother was
very anxious, depressed, and impulsive; lacked focus, particularly an ability to stay in the
moment; and had suicidal ideations. The counselor believed that Mother initially sabotaged her
treatment by being defensive. She has seen some improvement, but Mother still presents a
challenge due to her self-focus and proclivity to speak and not listen. Despite her individual
counseling, Mother was referred to participate in intensive outpatient treatment in May 2014.
She completed that treatment but shortly thereafter began experiencing panic attacks, despite
anti-anxiety medications. Due to a personal crisis which triggered her panic attacks, Mother
returned to intensive outpatient treatment in September 2014, and completed her second round in
December 2014. Although the counselor believes that Mother is fully committed to treatment,
she acknowledges that Mother’s personality traits are pervasive and require ongoing treatment.
The counselor noted that Mother reported that she “fully anticipates needing to remain in
treatment for quite some time.” Finally, the counselor testified that Mother has not accepted
accountability or ownership of the stressors in her life, and that Mother maintains that she did not
do anything to harm L.S.
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Indicia of violence, abuse, or neglect in the household
{¶42} R.C. 3109.04(F)(1)(h) allows the court to consider whether certain indicia of abuse
or neglect has occurred. Relevant to the best interest of the children in this case is “whether
there is reason to believe that either parent has acted in a manner resulting in a child being an
abused child or neglected child[.]” Id.{¶43} Both Dr. Steiner and the Summit County Board of Developmental Disabilities
investigator testified that they substantiated Mother’s overmedication of L.S. with Clonidine,
which caused multiple dysautonomic events, some of which brought the child perilously close to
death. At a minimum, there existed indicia of neglect for the child’s health and well-being.
Children’s need for permanence
{¶44} The three children have remained in their family home with Father throughout this
entire case. Even so, A.S. and Li.S. have only recently been told about Mother’s and Father’s
divorce. More recently yet, the children’s counselor is implementing a plan to explain to them
about Mother’s issues and why they may only have limited and supervised visits with Mother.
The children require, in their best interest, the stability that comes from (1) knowing that they
will not be disrupted from their home with Father, and (2) understanding the restrictions on their
relationship with Mother and why such restrictions are necessary.
Other factors
{¶45} None of the R.C. 2151.414(E)(7)-(11) factors are applicable. Moreover, neither
parent indicated plans to establish a residence outside of Ohio.
Conclusion
{¶46} Based on a review of the evidence, this is not the exceptional case where the finder
of fact clearly lost its way and created a manifest miscarriage of justice in awarding legal custody
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of A.S., L.S., and Li.S. to Father. The evidence in this case established that Mother, irrespective
of any specific diagnoses, overmedicated L.S., several times to the point of putting his life in
peril. In addition, Mother has struggled with mental health issues that make her self-focused and
negatively impact her ability to adequately parent the children and provide a safe and stable
environment for them. Mother agrees with the mental health professionals who testified that she
will require ongoing mental health treatment for years. Mother has the support of her parents,
but they do not acknowledge that Mother has done anything to harm L.S. Accordingly, the
maternal grandparents’ home, where Mother currently resides, would not provide a safe and
stable environment for the children.
{¶47} On the other hand, the children are safe, secure, and stable in the family home
where they have been residing with Father throughout the case. Father has the resources and has
demonstrated the commitment to provide for the needs of the children. Unlike Mother, Father
has demonstrated the ability to provide attention and care to all three children at one time, even
given L.S.’ special needs. The children are thriving in Father’s care. All three children are
doing well in school, and L.S. and A.S. in particular have both shown marked progress since
Mother’s departure. None of the children have experienced any medical emergencies while in
Father’s care. A.S. expressed a desire to live with both Father and Mother. If that was not
possible, he wished to live with Father, but spend more time with Mother. Li.S. too told the
guardian ad litem that she wished to spend more time with Mother, although she wanted to live
with Father.
{¶48} Based on a thorough review of the record, this Court concludes that the juvenile
court’s finding that an award of legal custody to Father is in the best interest of the children is
not against the manifest weight of the evidence.
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VISITATION
{¶49} “A parent who has lost legal custody of a child, but whose parental rights have not
been terminated, retains residual parental rights, including the ‘privilege of reasonable
visitation.’” In re K.D., 9th Dist. Summit No. 28459, 2017-Ohio-4161, ¶ 27, quoting R.C.
2151.353(A)(3)(c) and R.C. 2151.011(B)(48). This Court reviews the juvenile court’s award of
visitation for an abuse of discretion. In re K.D. at ¶ 26. An abuse of discretion is more than an
error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in
its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of
discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v.
Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶50} Mother makes two distinct arguments regarding visitation. First, she argues that
the juvenile court erred by limiting her to supervised visitation with A.S. and Li.S., because she
posed no risk of harm to the children. Although Mother asserted in her initial objections to the
magistrate’s decision that she was objecting to the restriction of visitation to a visitation center,
she rescinded that objection in her supplemental objections. Instead, Mother asserted that she
would be addressing the issue of restricted visitation solely during the scheduled hearing on her
then-pending motion to modify visitation.
{¶51} “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 Juv.R. 40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv). Because
Mother withdrew her objection in the juvenile court to the order limiting her visitation with A.S.
and Li.S. to a visitation center, she has forfeited the issue on appeal. Moreover, she has not
alleged a claim of plain error, and this Court declines to create an argument on her behalf. In re
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B.P., 9th Dist. Lorain No. 14CA010531, 2015-Ohio-48, ¶ 6, citing App.R. 16(A)(7) and Cardone
v. Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6,
1998) (noting that it is not this Court’s duty to create an appellant’s argument).
{¶52} Second, Mother argues that the juvenile court erred by removing the two prior
court-ordered visitation supervisors. The juvenile court found that the visitation supervisors
failed to maintain neutrality and comply with court visitation orders. The record supports these
findings. Both visitation supervisors testified that they would circumvent court orders to assist
Mother in her desire to modify visitation times and locations, rather than honor the orders
requiring Mother and Father to agree to any changes. One supervisor testified that she believed
she could not be held in contempt for failing to comply with the orders issued in the case. Both
supervisors further asserted their support for Mother. Because the prior visitation supervisors
acknowledged their repeated disregard for the juvenile court’s orders regarding visitation, the
juvenile court’s order removing them was not unreasonable. Accordingly, there was no abuse of
discretion.
CHILD SUPPORT
{¶53} As an initial matter, Mother did not file objections to the magistrate’s decision
which ordered her to pay child support in the statutory minimum amount of $50.00 per month
per child. Father, however, filed objections, arguing for a higher support order because Mother
was voluntarily underemployed and capable of earning over $30,000.00 a year. He noted that
Mother last earned $36,000.00 a year when she worked full-time in 2014-2015. Mother failed to
file a brief in opposition to Father’s objections or otherwise address the issue of child support
below.
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{¶54} Here again, Mother raises two issues in her argument that the juvenile court erred
in its determination of child support. First, she argues that there was no evidence to support the
juvenile court’s finding that she was voluntarily underemployed. The determinations of whether
a parent is voluntarily underemployed, as well as the amount of potential income to impute, must
be based on the facts and circumstances of the particular case. In re B.S., 9th Dist. Summit No.
24605, 2009-Ohio-4660, ¶ 9, citing Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus. In
imputing income, the trial court considers the following factors:
(i) The parent’s prior employment experience;
(ii) The parent’s education;
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent
resides;
(v) The prevailing wage and salary levels in the geographic area in which the
parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed
income;
(viii) The age and special needs of the child for whom child support is being
calculated under this section;
(ix) The parent’s increased earning capacity because of experience;
(x) The parent’s decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
R.C. 3119.01(C)(11)(a).
{¶55} There was, in fact, evidence in the record to support the juvenile court’s findings
that Mother had a college degree and had worked as a teacher before she voluntarily let her
license lapse. She admitted that she had earned $36,000.00 per year a number of years earlier as
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a teacher. The principal at the primary school where the three children attend testified that a
teacher with only a bachelor’s degree and no experience would earn $34,000.00 per year in her
district. The evidence demonstrated that Mother was currently working as a bookkeeper, but
only part-time, for $12.00 per hour. Mother was living with her parents and had no limitation on
her time prohibiting her from obtaining full-time employment. Moreover, she had no physical or
other restrictions precluding full-time employment. In addition, Mother admitted that there was
no child support order in place and that Father was paying the full extent of childcare, healthcare,
and household expenses. There is no dispute that one of the parties’ three children is medically
fragile and requires special care at additional cost. Based on a review of the evidence, this Court
concludes that the juvenile court did not err by finding that Mother was underemployed and by
imputing an annual income to her in the amount of $36,000.00, upon which it calculated
Mother’s child support obligation.
{¶56} Second, Mother argues that the evidence established that her child support
obligation was offset by a reduction in spousal support she was receiving through the parties’
divorce action in the domestic relations court. Mother has failed, however, to cite to the
voluminous record to support her assertions. “‘An appellant bears the burden of formulating an
argument on appeal and supporting that argument with citations to the record and to legal
authority.’” Messer v. Summa Health Sys., 9th Dist. Summit No. 28470, 2018-Ohio-372, ¶ 71,
quoting State v. Watson, 9th Dist. Summit No. 24232, 2009-Ohio-330, ¶ 5, citing App.R.
16(A)(7). In the absence of citations to the record and law in support of her assignment of error,
this Court declines to create an argument for Mother. See Cardone, supra, at *22.
{¶57} Moreover, Mother disregards the fact that she had not been paying any child
support during the pendency of the case until the issuance of the agreed interim order. The offset
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of Mother’s child support obligation against Father’s spousal support payments was merely for
convenience of accounting. In addition, Mother disregards the fact that her current child support
obligation is approximately $300.00 per month less than her obligation in the agreed interim
order and will no longer reduce her spousal support award. As such, she has failed to explain
how she is aggrieved. Accordingly, this Court declines to reach the merits of her argument. See
In re R.S., 9th Dist. Summit Nos. 27857 and 28073, 2017-Ohio-2835, ¶ 20.
{¶58} Based on the analysis and reasoning articulated above regarding Mother’s
challenges to the juvenile court’s determinations regarding legal custody, visitation, and child
support, this Court finds Mother’s arguments are not well taken. Mother’s third assignment of
error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MOTHER] BY
ADMITTING THE TESTIMONY OF DR. AIMEE THOMAS REGARDING
MUNCHAUSEN SYNDROME BY PROXY/FACTITIOUS DISORDER
IMPOSED UPON ANOTHER.
{¶59} Mother argues that the juvenile court erred by admitting testimony indicating a
diagnosis for Mother of Munchausen Syndrome by Proxy. To the extent that there may have
been error, any error was harmless.
{¶60} Mother raises two issues in her challenge to the evidence regarding Munchausen
Syndrome by Proxy. First, she argues that Dr. Aimee Thomas’ testimony, for various reasons,
was not credible or otherwise reliable. Second, she argues that any evidence of her alleged
diagnosis could not be considered, because the allegations regarding Munchausen Syndrome by
Proxy were stricken from CSB’s complaint by agreement of the parties. Mother fails to
acknowledge, however, that, unlike the magistrate, the juvenile court did not rely on or even
consider any evidence of Mother’s alleged diagnosis of Munchausen Syndrome by Proxy in its
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determination of custody. It is well settled that “‘[a]ny claim of trial court error must be based
on the actions of the trial court, not on the magistrate’s findings or proposed decision.’” In re
B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 7, quoting Love v. Love, 9th Dist. Summit
No. 22976, 2006-Ohio-3559, ¶ 15. Here, the juvenile court applied the best interest factors set
forth in R.C. 2151.414(D) and R.C. 3109.04(F)(1) to the evidence and concluded that “an award
of legal custody to [F]ather is in the best interest of the children, regardless of whether [M]other
has been diagnosed with Munchausen [Syndrome] by Proxy.” (Emphasis added.) Accordingly,
the admission of Dr. Thomas’ testimony, or the testimony of any other witness, insofar as it
related to a diagnosis for Munchausen Syndrome by Proxy for Mother, constituted harmless
error, if in fact it was error at all. For the foregoing reasons, Mother’s second assignment of
error is overruled.
III.
{¶61} Mother’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
26
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
MADELINE LEPIDI-CARINO, Attorney at Law, for Appellee.
HOLLY FARAH, Attorney at Law, for Guardian ad litem.