In re L.V. , 2012 Ohio 5871 ( 2012 )

[Cite as In re L.V., 2012-Ohio-5871.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE L.V. C.A. No. 26245
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN-09-03-269
DECISION AND JOURNAL ENTRY
Dated: December 12, 2012
CARR, Judge.
{¶1} Appellant, Melissa S. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division. This Court affirms.
I.
{¶2} This case involves Mother’s request for the transfer of legal custody of L.V., born
on November 19, 1996, from her father, Antonio V. (“Father”), to her. Before the present case
began, L.V.’s parents reportedly engaged in extensive litigation regarding their daughter’s
custody, and they most recently shared parenting of her. In March 2009, the child was
hospitalized with psychiatric symptoms. As a consequence of that hospitalization, Summit
County Children Services Board (“CSB”) filed a dependency complaint in juvenile court. The
complaint alleged that the parents caused the child to suffer emotional trauma through their
extensive conflict over her custody, each trying to prove the other was unfit to care for her. L.V.
was said to have been diagnosed with Factitious Disorder Pediatric. The professionals described
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an overly enmeshed relationship between L.V. and Mother that was without age-appropriate
boundaries. L.V.’s therapist, Dr. Danielle Gurion, described the diagnosis as one where “the
condition for the mother’s love for [L.V.] was . . . her resenting and rejecting her father.” The
prevailing theory of the professionals involved in the case was that L.V. was greatly harmed by
and did regress in her therapy following any contact by Mother outside of their supervised
visitation.
{¶3} In May 2009, L.V. was adjudicated to be dependent upon stipulation of the
parties, and, in July 2009, she was placed in the legal custody of Father with protective
supervision in CSB. Mother withdrew her own motion for legal custody. A case plan was
adopted. Mother, Father, and L.V. were each to engage in counseling. Mother was granted one
hour of supervised visitation weekly and, otherwise, was to have no contact whatsoever with
L.V. In mid-2010, Mother engaged in unauthorized contact with L.V. in violation of the court’s
order. She was found to be in contempt and her visitation privileges were suspended. Mother’s
unauthorized contact was considered to have contributed to L.V’s running away from home and
to have caused a regression in her therapy. Early in 2011, the court reinstituted one hour of
supervised visitation weekly.
{¶4} In September 2011, the case came on for hearing on a number of motions. Of
relevance to this appeal is Mother’s motion for a transfer of legal custody to her or, in the
alternative, for increased visitation. Following the hearing, the trial court denied Mother’s
motion for legal custody and continued legal custody of L.V. in Father. The judge increased
Mother’s visitation and gave L.V. the option of inviting Mother to occasional school functions.
Mother has appealed from the judgment and has assigned three errors for review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR
LEGAL CUSTODY AS THE TRIAL COURT’S RULING WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE[.]
{¶5} Mother has argued that the denial of her motion for legal custody was not
supported by the evidence adduced at trial. Her argument focuses largely on her claim that the
trial court erroneously permitted evidence of alleged mental disorders as proof of her inability to
parent L.V.
{¶6} Mother claims that two 2009 orders by the magistrate directed that such evidence
should have been excluded at the 2011 hearing. In May 2009, the magistrate ordered that
references to suspicion of Munchausen by Proxy on the part of Mother be deleted from the
complaint. This was apparently done as a predicate to accomplishing a stipulation to the
dependency of L.V. The complaint continued to include a reference to L.V.’s diagnosis of
Factitious Disorder Pediatric. In addition, following the first day of testimony in the 2009
dispositional hearing, the magistrate sought to expedite matters by avoiding the unnecessary
repetition of an issue that had already been adjudicated: “that [L.V.] suffers from mother’s
procurement of unwarranted medical services for her.” Therefore, the magistrate ordered the
parties to limit future testimony to dispositional issues, and she ordered that no further testimony
regarding the child’s disorder will be permitted “to corroborate or refute the disorder.”
{¶7} On appeal, Mother lists 30 pages from the transcript of the 2011 hearing that she
claims demonstrate a violation of the court’s orders. Putting aside the fact that no objection was
raised to any of these examples and that most were mere factual mentions rather than attempts at
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persuasion, this argument is irrelevant to the issue at hand - whether there had been a change in
the circumstances of the child or Father.
{¶8} Even before the commencement of the hearing in this case, the trial court advised
Mother that in seeking a change of custody, she would be obligated to demonstrate a change of
the circumstances of the child or the legal custodian. Pursuant to the plain language of R.C.
2151.42(B), applicable to modifications of dispositional orders within the context of dependent,
neglect and abuse cases, the trial court “shall not” modify or terminate an order granting legal
custody of a child unless it explicitly finds, based on facts that have arisen since the prior order
or were unknown to the court at that time “that a change has occurred in the circumstances of the
child or the person who was granted legal custody, and that modification or termination of the
order is necessary to serve the best interest of the child.” R.C. 2151.42(B). These requirements
exist “because some degree of permanence or finality is necessary in custody determinations.”
In re J.S., 11th Dist. No. 2011-L-162, 2012-Ohio-4461, ¶ 27. See also Davis v. Flickinger, 77
Ohio St.3d 415, 418 (1997), quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416 (10th Dist.1982)
(finding that the intent of a comparable statute, R.C. 3109.04(E)(1)(a), is “‘to spare children from
a constant tug of war between their parents who would file a motion for change of custody each
time the parent out of custody thought he or she could provide the children a “better”
environment.’”).
{¶9} The trial court found that, despite lengthy testimony, Mother failed to present any
evidence of a change in L.V.’s or Father’s circumstances that would justify a modification or
change of custody. To this point, Mother has advanced two claimed changes in circumstances
on appeal in order to justify a transfer of custody to her. She argues that L.V. was a victim of
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domestic violence by Father, apparently believing that he slapped her once on the back, and also
argues that L.V. has improved with less treatment and medication while in Father’s care.
{¶10} Not every change will support the modification of a custody order, but rather only
a “change [that] is one of substance that warrants a change of custody.” In re L.M., 2d Dist. No.
2010-CA-76, 2011-Ohio-3285, ¶ 15. We conclude that the trial court did not err in finding that
there was no such change of circumstance that warranted a change of custody.
{¶11} The record reveals the following as to Mother’s two claimed changes in
circumstances. First, L.V.’s therapist, Dr. Danielle Gurion, testified that L.V. told her that Father
struck her once upon learning of an incident inspired by Mother’s efforts to communicate with
L.V. outside of supervised visitation. Dr. Gurion confronted Father and explained to him that
L.V. was more stressed than he was, but did not contact CSB, because L.V. did not “make a big
thing out of it,” she said it had never happened before, and Dr. Gurion did not “at all” consider
this to be physical abuse. Donald Badjun, the CSB caseworker, corroborated this view. Mr.
Badjun explained that no other professionals conveyed to him or to anyone at CSB that L.V.
claimed to be physically or emotionally abused at Father’s home. Father’s counselor of six years
testified that he had no concerns about L.V.’s safety and well-being while in Father’s care. No
witness reported the matter to the police. None of the professionals, or the trial court, considered
the claim to have any material impact.
{¶12} As to Mother’s second claim, the evidence overwhelmingly supports a conclusion
that L.V. made steady improvement while in Father’s care, so long as her contact with Mother
was limited to supervised visitations. L.V. regressed when she had contact with Mother outside
of supervised visitation. This is not the sort of change that warrants a transfer of custody away
from Father and to Mother. In light of these facts, we conclude the trial court did not err in
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finding no change of circumstances that supports a transfer of custody. Mother’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FAILED TO CONTINUE THE TRIAL
UNTIL COUNSEL COULD RETURN TO REPRESENT MOTHER, OR
DECLARE A MISTRIAL, IN LIGHT OF APPELLANT’S [ATTORNEY’S]
ILLNESS AND WITHDRAWAL DURING TRIAL[.]
{¶13} Mother argues that the trial court deprived her of due process by denying her
request to continue the hearing or to declare a mistrial when her attorney became ill during the
hearing.
{¶14} In juvenile cases, “[c]ontinuances shall be granted only when imperative to secure
fair treatment for the parties.” Juv.R. 23. The decision to grant or deny a continuance lies within
the sound discretion of the trial judge, which requires a balancing of “any potential prejudice to a
[party against] concerns such as a court’s right to control its own docket and the public’s interest
in the prompt and efficient dispatch of justice.” State v. Unger, 67 Ohio St.2d 65, 67 (1981).
“‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is denied.’” Id.,quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
{¶15} “In evaluating a motion for a continuance, a court should note, inter alia: the
length of the delay requested; whether other continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested
delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the
defendant contributed to the circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case.” Unger, at 67-68.
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{¶16} The record reveals that this matter was scheduled to be heard on July 19, 2011.
On July 6, 2011, Mother’s counsel moved for a continuance and, alternatively, for leave to
withdraw from representing Mother, due to his need to take pain medication for a virus. The
magistrate denied the motion, but the juvenile court judge granted counsel’s motion to set aside
the order and granted a continuance until the first available date after July 19, 2011. The judge
also indicated that no further continuances would be granted. The hearing was scheduled for
September 27, 28, 29, and 30, 2011, a delay of two months, and to continue on October 7, 2011
and October 26, 2011, if necessary.
{¶17} The trial began with the juvenile court judge presiding, rather than the magistrate,
in order to expedite the hearing of the case. Over the preceding two years, there had been several
objections to decisions and motions to set aside orders of the magistrate with the accompanying
necessary delay. The hearing proceeded, as scheduled, on September 27, 28, and 29, 2011. As
the hearing began on September 30, 2011, Mother’s counsel stated on the record that he did not
feel well, but the hearing proceeded and one witness was completed. Thereupon, Mother’s
counsel asked for a continuance because he felt ill. He stated that he would make himself
available as best he could. The hearing was adjourned. At that point, the hearing had gone on
for more than four days and covered more than 700 pages of transcript.
{¶18} In apparent anticipation of continuing the hearing on the previously scheduled
back-up date of October 7, 2011, Mother’s counsel filed a written motion on October 6, 2011 to
continue the hearing based on illness. He cited an upper respiratory infection, flu symptoms, and
dehydration. He requested a continuance until October 26, 2011. The trial judge granted the
motion for a continuance. By separate order, the hearing was again continued due to counsel’s
illness from October 26, 2011 until November 9 and November 10, 2011, nearly six weeks after
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the hearing was initially halted. In so doing, the trial court wrote: “No further continuances will
be granted. While the court is empathetic with counsel’s health concerns, it is important, for the
sake of this child, for this matter to be resolved.” The trial judge advised counsel to have a back-
up plan for coverage should he be unable to attend.
{¶19} On October 31, 2011, a new attorney was appointed as co-counsel to represent
Mother. The new attorney filed a notice of appearance on November 3, 2011, and appeared in
court on November 9, 2011, representing Mother for the conclusion of the hearing. There was
no objection to proceeding at that time, no further requests for a continuance, and no motion for
mistrial. Nor was there any indication of the current status of Mother’s previous attorney or
whether he might be able to return at any time in the future.
{¶20} Mother has argued that substitute counsel was deficient in representing her
because he did not demand a hearing on her earlier request for an in camera interview of L.V.,
but Mother has not specifically explained her claim. It is not clear what purpose was to be
served by having a hearing on the matter. The trial judge had consistently indicated her desire to
conduct an in camera interview of L.V. and did, in fact, conduct such an interview. Mother has
not demonstrated any prejudice in this regard.
{¶21} Mother also claims that substitute counsel was deficient in representing her for
failing to object to the admission of impermissible character evidence. Mother’s referenced list
of allegedly improperly-admitted character evidence does not include any examples that
occurred while the new attorney was representing her. Thus, neither claim advanced by Mother
has merit.
{¶22} Given all the circumstances, including that this case involved a child custody
determination that had already seen several delays and that the trial court had been most
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accommodating in allowing at least two lengthy continuances for Mother’s attorney, this Court
concludes that the trial court did not abuse its discretion in proceeding as it did. Mother’s second
assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN IN
CAMERA INTERVIEW OF MINOR CHILD L.V.
{¶23} Mother asserts that the trial court erred because it failed to conduct an in camera
interview of L.V. Mother relies on R.C. 3109.04(B)(1) in suggesting that the trial court has a
mandatory duty to conduct an in camera interview of a child upon request by a party in order to
obtain input on the child’s wishes as to custody. To the extent that this statute applies in a
proceeding conducted pursuant to R.C. 2151.42(B), this Court concludes that the trial court acted
reasonably and imputes no error to the trial court.
{¶24} The trial judge had input on the child’s wishes from numerous counselors,
therapists, the child’s attorney, and the child’s guardian ad litem. Prior to the hearing before the
trial judge on Mother’s motion to change legal custody, the magistrate had conducted at least one
in camera interview of L.V. Another in camera interview was set to be conducted in January
2011 until both the guardian ad litem and the child’s attorney withdrew their requests. The trial
judge attempted to schedule an in camera interview of the child on the second day of the hearing,
but was unable to do so when this nearly 15-year-old child, who had been questioned,
interviewed, and examined at length throughout these proceedings, indicated “very strongly”
through her attorney that she did not want to have another interview. At the close of testimony,
however, and after the trial judge delivered a sincere explanation of her desire to meet with L.V.
in open court, L.V. agreed to meet with the trial judge. That meeting was accomplished before
the trial judge entered her order on visitation. As part of her final order, the trial judge scheduled
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another in camera interview and a review hearing in 120 days to consider the impact of the
visitation plan then put into effect. Mother’s third assignment of error is overruled.
III.
{¶25} Mother’s three 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
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.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR
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APPEARANCES:
RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.
ALEXANDER R. FOLK, Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
LINDA SELL, Guardian ad litem.
GINA D’AURELIO, Atttorney for Minor Child.