In re X.B. , 2016 Ohio 5805 ( 2016 )

[Cite as In re X.B., 2016-Ohio-5805.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re [X.B.], :
[C.C.], :
No. 16AP-243
Plaintiff-Appellee, : (C.P.C. No. 14JU-758)
v. : (ACCELERATED CALENDAR)
[L.B.], :
Defendant-Appellee, :
[A.B.], :
Third-Party :
Defendant/Appellant.
:
In re [Z.L.], :
[C.C.], :
No. 16AP-277
Plaintiff-Appellee, : (C.P.C. No. 14JU-10514)
v. : (ACCELERATED CALENDAR)
[L.B.], :
Defendant-Appellee, :
[A.B.], :
Third-Party :
Defendant/Appellant.
:
D E C I S I O N
Rendered on September 13, 2016
Nos. 16AP-243 and 16AP-277 2
On brief: Cynthia M. Roy, for appellant. Argued:
Cynthia M. Roy.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROWN, J.
{¶ 1} A.B., third-party defendant/appellant ("grandmother"), appeals from a
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, in which the court granted objections to a magistrate's decision filed by
C.C., plaintiff-appellee ("father").
{¶ 2} L.B., defendant-appellee, is the mother of X.B., born January 3, 2012, and
Z.L., born March 28, 2014. C.C. is the biological father of the children. Grandmother is the
children's maternal grandmother. On January 17, 2013, father filed a complaint to
establish parentage, custody, visitation, and support with regard to X.B. On August 14,
2014, father filed a complaint for allocation of parental rights/custody with regard to Z.L.
in a separate case. In both cases, grandmother was granted emergency custody of the
children, and mother and father were granted supervised visitation. In both cases, father
and grandmother sought custody of both children.
{¶ 3} A four-day trial was held before a magistrate commencing February 5, 2015.
Father appeared at trial, represented by counsel; grandmother appeared, represented by
counsel, and mother appeared sporadically, unrepresented. Father and grandmother
both presented witnesses and testified. Mother did not present witnesses but did testify.
A guardian ad litem ("GAL") testified at trial and submitted a report and recommendation
at the end of trial. At trial, much of the testimony centered on the accusation that father
engaged in sexual activity with minors, including mother, in exchange for money and
supplied minors with drugs and alcohol. It was undisputed that father, who was in his
early 40s, began having sex with mother when she was 16 years old, although he claimed
he believed she was at least 19 years old after she put an advertisement ("ad") on Craigslist
for "Exotic Massages with Happy Endings." "Happy Endings" is a slang term for a sex act.
On April 7, 2015, the magistrate issued a decision, in which she awarded grandmother
Nos. 16AP-243 and 16AP-277 3
custody of both children, with father and mother receiving supervised parenting time.
Father and grandmother filed objections to the magistrate's decision.
{¶ 4} On March 15, 2016, the trial court issued a judgment, sustaining father's
objections and granting custody to father, while finding grandmother's objections moot.
The trial court found the testimony of grandmother's witnesses not credible, and there
was insufficient evidence to find father to be an unsuitable parent. The trial court further
reasoned that mother met father through a ad she voluntarily placed offering exotic
massages, mother lied about her age in the ad, and father had no criminal record or
arrests. Grandmother appeals the trial court's judgment, asserting the following
assignments of error:
[I.] The trial court erred and abused its discretion in awarding
custody to appellee.
[II.] The trial court's finding of suitability of appellee is
against the manifest weight of evidence.
[III.] The trial court's award of custody to appellee is contrary
to law.
{¶ 5} We address all of the assignments of error together, as they are interrelated.
R.C. 2151.23(A)(2) "grants juvenile courts exclusive original jurisdiction 'to determine the
custody of any child not a ward of another court of this state.' This includes 'custodial
claims brought by the persons considered nonparents at law.' " Rowell v. Smith, 133 Ohio
St.3d 288, 2012-Ohio-4313, ¶ 14, quoting In re Bonfield, 97 Ohio St. 3d 387, 2002-Ohio-
6660, ¶ 42, 43. "[T]he overriding principle in custody cases between a parent and
nonparent is that natural parents have a fundamental liberty interest in the care, custody,
and management of their children." Hockstok v. Hockstok, 98 Ohio St. 3d 238, 2002-
Ohio-7208, ¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). Consequently,
before awarding legal custody of a child to a non-parent, a court must determine that the
parent is unsuitable. Id. at syllabus. This determination is "a necessary first step in child
custody proceedings between a natural parent and nonparent." Id. at ¶ 18. A court may
find that a parent is unsuitable if it finds, by a preponderance of the evidence, that the
parent "abandoned the child, that the parent contractually relinquished custody of the
child, that the parent has become totally incapable of supporting or caring for the child, or
Nos. 16AP-243 and 16AP-277 4
that an award of custody to the parent would be detrimental to the child." In re Perales,
52 Ohio St. 2d 89 (1977), syllabus. "Nonparents seeking custody have the burden of
demonstrating a parent's unsuitability." In re D.C.J., 8th Dist. No. 97681, 2012-Ohio-
4154, ¶ 58.
{¶ 6} Under Perales, a change of custody from a natural parent to another
involves a two-step process. After determining the issue of unsuitability of the natural
parent, the court must consider the best interests of the child. R.C. 3109.04(F)(1)
contains the following best-interest factors: (a) the parents' wishes; (b) the child's
concerns and wishes; (c) the child's interaction with parents and others; (d) the child's
adjustment to home, school, and community; (e) the mental and physical health of
involved individuals; (f) the parent more apt to honor and encourage companionship
rights; (g) failure to make support payments; (h) whether either parent has committed a
criminal offense or a neglect or abuse offense; (i) whether either parent has continuously
and willfully denied court-ordered visitation; and (j) whether either parent has plans to
reside outside the state.
{¶ 7} A reviewing court may not reverse a juvenile court's custody determination
absent an abuse of discretion. In re Farrow, 10th Dist. No. 01AP-837, 2002-Ohio-3237,
¶ 17; In re Brown, 142 Ohio App. 3d 193, 198 (12th Dist.2001). In order to find an abuse
of discretion, a reviewing court must conclude that the juvenile court's decision is
unreasonable, arbitrary, or unconscionable. Id. The discretion granted a juvenile court in
custody matters should be afforded the utmost respect, given the nature of the
proceedings and impact of the court's determination on the lives of the concerned parties,
including, most importantly, the child at the center of the custody matter. Id. In addition,
credibility determinations and the weight to be afforded evidence are within the province
of the trier of fact. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the
syllabus
{¶ 8} Given these parameters, and on review of the records before us, we
conclude the trial court abused its discretion when it rejected the magistrate's
determination that father was unsuitable and that it was in the children's best interests
that grandmother be granted custody. With regard to unsuitability, the magistrate found
father was unsuitable because an award to father would be detrimental to the children.
Nos. 16AP-243 and 16AP-277 5
The magistrate cited the undisputed facts that father had ongoing sexual relations with
multiple females, including mother, prior to the birth of the children, and mother was a
minor and father was in his 40s when the sexual relationship occurred. The magistrate
acknowledged that much of the evidence surrounding the nature of these sexual
relationships was in dispute, including whether father knew or should have known that
some of the females were minors; whether father was involved in trafficking these females
for sex; whether father introduced the females to drugs, cocaine, and alcohol; whether
father engaged in only consensual sex after paying for massages; and whether father told
mother that he wanted to involve his children in "The Game," or sex for profit, when they
got older. The magistrate also acknowledged that father had not been arrested, charged,
or convicted of any crimes resulting from his sexual encounters with mother and/or the
other young females. However, although the magistrate found there were some
discrepancies in the dates given by some witnesses, the magistrate concluded the
testimony of grandmother's witnesses was compelling that some of the females were
minors at the time father had sex with them. The magistrate found that the witnesses who
engaged in sexual encounters with father did not appear to have any personal allegiance
to mother or grandmother, had no motivation to lie, and gave testimony that was against
their own interests. The magistrate concluded that the testimony of grandmother's
witnesses, including mother, was credible. The magistrate also considered the GAL's
report, which recommended grandmother be granted custody. Thus, the magistrate found
that, based on the potential harmful effects on the children, and especially due to the
young age of the children and their inability to self protect or report on any level, parental
custody would be detrimental to the children.
{¶ 9} On objections to the magistrate's decision, the trial court rejected the
magistrate's recommendation and ordered father be granted custody. The trial court
found there was conflicting testimony as to whether father knew mother, and the girls she
associated with, were minors. The court noted that father had never been arrested,
charged, or convicted of any crimes resulting from his sexual encounters with mother and
the other females. The trial court also pointed out that father disputed the testimony that
he provided the young females drugs, cocaine, and alcohol. The court also cited favorably
father's testimony that he met mother through her massage ad in which she indicated she
Nos. 16AP-243 and 16AP-277 6
was over 18 years of age, and his testimony that the massages were paid for up front and
the consensual sex occurred only afterward. The court noted father's witnesses
demonstrated his good character, that he was active in the community, he went to church,
he owned his own landscaping business, he had stable housing, and he had the ability to
provide for his children.
{¶ 10} The court concluded that mother was not credible and grandmother's
witnesses were not credible, citing several inconsistencies in the dates regarding the
encounters between father and mother and father and the other females. The court did
not believe mother's claim that father recruited her and her associates into a prostitution
ring when she admitted that she met father through her ad for "Exotic Massages with
Happy Endings," it was her friend's idea to post the ad to make money, and she lied about
her age in the ad. The court found that mother entered "The Game" voluntarily before
meeting father.
{¶ 11} The court also found not credible mother's and her associates' testimonies
that father paid them $300-$400 dollars several times a week for one year. The court
reasoned that nothing from the evidence indicated father had the means to pay $60,000
in cash to mother and her associates, and no evidence indicated that mother was making
$2,000 to $3,000 per month from father, particularly when it was reported that one child
was bitten by mice in mother's infested apartment, and it was doubtful that mother would
have lived in such a place if she was earning the money claimed.
{¶ 12} The court also found the testimony of father's sister, S.C., persuasive. The
court noted S.C.'s testimony that father would routinely watch her children when she was
at work, he would transport the children to and from school, and she had no reservations
about leaving her children with him. The court also cited her testimony that father was
very comfortable with X.B., and they had a good relationship. The court further relied
upon the GAL's report, in which the GAL indicated that father had steady employment,
owned his own business, and owned a home suitable for minor children. Thus, the court
found there was "nothing" to indicate father would be unsuitable to parent the minor
children.
{¶ 13} We find the trial court abused its discretion in concluding there was
"nothing" to indicate father would be unsuitable to parent the children. In fact, the record
Nos. 16AP-243 and 16AP-277 7
contains an incredible amount of testimony that, if believed, would arise to the level of
unsuitability to raise a child and militate against a finding that it would be in the best
interest of the children for father to have custody. What the trial court actually found was
that grandmother's witnesses were not credible and father and his witnesses were
credible. However, the trial court did not view these witnesses in person, but only
reviewed the transcript of the proceedings. The magistrate, as the true trier of fact, was in
the better position to judge the credibility of the witnesses. The actual trier of fact present
during the testimony is generally in the better position to judge the credibility of
witnesses. In re P.S., 10th Dist. No. 07AP-516, 2007-Ohio-6644, ¶ 25, citing State v.
Gibbs, 134 Ohio App. 3d 247, 256 (12th Dist.1999). Thus, we believe the magistrate's
credibility determinations were more reliable and persuasive.
{¶ 14} Testimony regarding father's sexual encounters with minors and his
knowledge of their age was the main focus of the trial court's and magistrate's decisions
regarding unsuitability and the best interests of the children. On this issue, the parties
presented several witnesses. D.P., who testified on behalf of father, said that she was
mother's girlfriend when she met father in 2009. She said mother lied to both her and
father that she was 18 years old, when she was actually 16. Mother presented to D.P. the
idea of giving men massages and called it "The Game," and D.P. participated in it a few
times. She said sometimes the massage would lead to consensual sex but not all the time,
and she would not be paid extra for the sex. Father was one of D.P.'s regular customers for
"The Game," and she would sometimes have sex with him. She said father would only pay
for the massage and not the sex. Father, mother, and D.P. had two threesomes together,
but father did not pay them for it. Mother's girlfriend after D.P., J.L., was also part of "The
Game." D.P. said father helped her pay her bills, and she still cuts father's hair about once
per month.
{¶ 15} J.J.P. testified he met father at church, and the two did outreach in the
inner city together for many years. He said he and father do not see each other socially but
only through church work. However, J.J.P. testified that he trusted father to transport his
daughter to and from sporting activities at times, and he acted appropriately. He was
unaware that father was having sex with underage girls during the time he knew him. He
Nos. 16AP-243 and 16AP-277 8
believed the allegations against father were "ridiculous," but that was based on only
discussions with father's counsel.
{¶ 16} Father testified that the first time he met mother was through a Craiglist ad
in April or May 2009, and the ad indicated mother was 22 years old. He found out her
actual age right before she turned 18. After answering mother's ad, he met mother, she
gave him a massage, and they had sex. He then began meeting mother once per week. He
denied that he went on Craigslist specifically to find someone advertising massages so he
could have sex, and claimed he just happened to get sex the first time he got a massage.
Father testified that he would sometimes get massages but would also go out socially with
mother to the movies and to eat. He also received massages from D.P., C.H., and J.L., who
were mother's friends or girlfriends. The massages from "a couple of them" led to sex.
Father claimed he had more than 20 massages from mother, but only had sex with
mother about half the time. Father said he also had sex with "Ashley" (L.D.W.), who was
friends with mother and made sexual videos. He said he never paid L.D.W. for sex and
denied that he supplied any of the females drugs or liquor. He said he also had sex with
C.H., who was 17 at the time. Father calculated that, based on mother's testimony, he
would have paid her about $76,000 for sex, plus payments to other females and costs of
drugs and alcohol; yet, his total income for 2008 and 2009 was only $24,500. Father at
first testified that he was spending about $1,000 per month on massages but only earned
$13,700 in 2008, but when faced with those figures, he had no explanation for the
discrepancy.
{¶ 17} L.D.W. testified she was friends with mother. When mother introduced her
to father, L.D.W. was 15, and she told father her age. The next day, she had sex with father
and continued to have sex with him for about two years. Father paid her for sex with
either money, drugs or alcohol, including marijuana, ecstasy, cocaine, and liquor, and it
was father who introduced her to drugs and cocaine for the first time. She called her sex
with father "survival sex." She said father consumed all of the drugs and alcohol with
them. She said father had sex with "Courtney" when she was 14, and she witnessed it. She
claimed father paid Courtney for the sex and knew Courtney's age. She named several
girls that father had sex with who were all under 18 years old, and she said father knew
their ages. For all of these girls, father provided drugs, money, clothes, and shoes in
Nos. 16AP-243 and 16AP-277 9
exchange for sex, and he never received massages from them. However, during her later
testimony, it appeared that as of the date she said she met father she would have actually
been 16, not 15.
{¶ 18} Mother testified that it was D.P.'s friend, Jane Doe, whose idea it was to
place the ad for "Exotic Massages with Happy Endings." Father already had been a
regular customer of Jane Doe's and answered mother's ad by calling her. The ad stated
she was 19, but she was only 16 years old. Mother said that when she met father for the
first time in a hotel room, father said he wanted a "Happy Ending" but no massage and
paid her $200. About two days later, father called again, and they met at the hotel. He
paid her $300-$400, and they had sex. Father never asked mother her age. A few weeks
later, father started coming to her house about every day, and they would have sex, and
father would pay her the same amount. Mother testified that her friend, C.H., became
involved with father after father saw her one time on the street and asked mother to
introduce them, and they subsequently had threesomes. C.H. was 15 years old. Mother
said father paid her $300-$400 to get C.H. involved in "The Game," and he also paid C.H.
for sex. Mother said father also paid for sex with J.L., who was 17 years old, and L.D.W.,
who was 15 years old. He paid mother $200 to get J.L. involved in "The Game," and also
paid mother to recruit L.D.W. into "The Game," and they had a threesome. She claimed
to have also recruited some other girls father saw on the street, who were also teenagers,
to be involved in "The Game." One girl was Courtney, who was 13. Mother said father
found out mother was only 16 years old but continued to have sex with her and pay her.
She claimed to have told him the age of the other girls too, and he continued to have sex
with them as well. Mother testified that father would supply the girls with marijuana,
alcohol, and cocaine, and he used these substances with them. Mother said she only had
sex with father when he would pay her. Mother further claimed that, after father raped
her in November 2009, she did not see him again until September 2010, when they
started having sex again. He also told her once when she was pregnant with X.B. that he
could not wait until X.B. got older so he could put X.B. in "The Game." She said father
paid her $300-$400 per sexual encounter, four to five times per week, and she never gave
father a massage.
Nos. 16AP-243 and 16AP-277 10
{¶ 19} Tabitha Woodruff, an anti-human trafficking coalition specialist with the
Salvation Army, testified that mother is involved in counseling with its services. Christina
Conrad, an anti-human trafficking clinical specialist with the Salvation Army, testified
that she assessed that mother was a victim of human trafficking, and there was no
motivation for mother to lie to her, as the Salvation Army plays only a therapeutic role.
She provided therapy to mother for two years. She believed father was the sole trafficker
of mother.
{¶ 20} Although a trial court must still independently assess the evidence and
reach its own conclusions when reviewing a magistrate's recommendation, we believe the
trial court's credibility assessment here was in error. The trial court did give its reasons for
finding mother and grandmother's other witnesses not credible, but we believe these
reasons are insufficient to reject their testimony. Initially, although we agree that father
has never been charged or convicted of crimes resulting from his sexual encounters with
any females who were allegedly minors, this fact holds little persuasiveness, given the
amount of evidence presented by grandmother. Importantly, father indicated he found
out that mother was under 18 before her 18th birthday, but he admitted that he continued
having sex with her. His continuation of a sexual relationship with mother while she was a
minor makes more convincing the testimony that he similarly disregarded that the other
females with whom he admittedly had sex were underage. We also note the fact that
father owned his own landscaping business and had stable housing, as cited by the trial
court, does not in any way undermine the credibility of mother and her associates or make
it less likely that he engaged in sex with underage females.
{¶ 21} Furthermore, the trial court believed the fact that father paid mother "up
front" before massages and only engaged in sex after the massages without any further
exchange of money was important support for the conclusion that the payments were only
for the massages and not the subsequent sex. However, even if we were to believe that
father was getting actual massages, which is highly questionable based on the testimony,
the trial court's reasoning is dubious at best given that mother's ad specifically indicated
that the massage included "Happy Endings," which, by definition, occur after the
massage. Father's contention that he did not answer mother's ad to have sex was also
completely unbelievable, given the "Happy Endings" reference. Father's repeated
Nos. 16AP-243 and 16AP-277 11
contentions that he sought massages because his job in lawn care rendered his muscles
sore was unbelievable, as none of the females who testified had experience in massage
therapy or any licensing, and the references to "Exotic" and "Happy Endings" in the ad
communicated quite clearly what services were being offered. It was also telling that
father just "happened" to have sex with mother the very first time they met for a
"massage."
{¶ 22} Furthermore, father's character witness, J.J.P., did not engender any
further trust that father did not knowingly seek out and engage in sex with underage girls.
J.J.P. testified he was unaware father had been engaging in sex with young women, he
met father at church, he did community outreach with father, and father was a good
person. That father might not have revealed to him that he engaged in sex with young
girls and answered ads on Craigslist for "Happy Endings" is not surprising, given father's
and J.J.P.'s relationship centered around church activities.
{¶ 23} The court also indicated that it did not find the testimony of mother or her
associates credible regarding their claim that father recruited them into a prostitution
ring. The court reasoned that it was mother who initially placed the ad for massages with
"Happy Endings." However, these are not two mutually exclusive events. Although
mother might have "entered 'The Game' voluntarily before meeting" father, as the trial
court found, father could have still used mother to find other girls who would have sex
with him for money, as mother testified. Therefore, we do not agree with the trial court's
reasoning.
{¶ 24} The trial court found important that it did not believe mother's testimony
that father paid her $300-$400 several times a week for well over one year. The court
reasoned that this would translate to $60,000 t0 $70,000 per year, and nothing indicated
that father could pay that amount or that mother made that amount. We do not disagree
that these sums seem questionable for the reasons pointed out by the court but view them
as more likely the result of poor estimation and youth rather than intentional inflation.
Father did not deny that he engaged in sexual activities with mother and the other young
females, and as questionable as mother's estimates were, father's estimate that he only
received 20 massages over the course of several years and had sex only after 10 of the
massages also fails to ring true.
Nos. 16AP-243 and 16AP-277 12
{¶ 25} Therefore, based on the abundant evidence in the record showing that
father sought sex from females whom he knew or should have known were under 18 years
of age, and the very young age of his children, we agree with the magistrate that father
was unsuitable to maintain custody of the children and the trial court abused its
discretion in determining otherwise. The relevant issues turned on facts and allegations in
dispute, and the magistrate was in the better position to make a credibility determination
as to which witnesses were being truthful. Accordingly, we must reverse the trial court's
determination as to unsuitability.
{¶ 26} With regard to whether it was in the best interests of the children to award
custody to grandmother, both the magistrate and the trial court discussed each of the
factors enumerated above from R.C. 3109.04(F)(1), and both came to essentially the same
findings under each factor. The only significant departure from their respective findings
was with regard to R.C. 3109.04(F)(1)(f), regarding who would be more apt to honor and
encourage companionship rights. The trial court found father would be more likely to
honor or facilitate parenting time, basing such on father's complaint that grandmother
had failed to bring the children to several scheduled supervised visitations. The magistrate
acknowledged that grandmother was questioned at trial as to her failure to bring the
children to the supervised visits; however, the magistrate concluded that grandmother
substantially complied with the orders. We agree with the magistrate that grandmother
substantially complied with the orders. Grandmother testified that she had to cancel some
visitations because she had a death in the family or one of the children was sick, but she
always called ahead to cancel, all of which are reasonable explanations and actions. She
said X.B. had missed six visits in the past year. Grandmother also testified that father had
canceled a couple of visitations. Given this testimony, we fail to see how father would be
more likely to honor visitation, and we find grandmother substantially complied with the
visitation schedule.
{¶ 27} As for the other best-interest factors, it appears that both the trial court's
and magistrate's findings would support it being in the best interest of the children to
have custody granted to grandmother. We fail to see how the trial court concluded it was
in the best interest of the children that father be granted custody of the children. Under
factor R.C. 3109.04(F)(1)(c), the trial court admitted the children had lived with
Nos. 16AP-243 and 16AP-277 13
grandmother for a substantial amount of time and had a good relationship with her, the
children had little familiarity with father, and father had not had much contact with Z.L.
since her birth. Under R.C. 3109.04(F)(1)(d), the trial court found the children were well
adjusted in grandmother's home and had little to no time with their parents in their
respective homes, although the court found father's home was suitable. Without
consideration of the trial court's finding that father would be more likely to honor
visitation, which we have found above was unsupported by the record, the trial court's
findings are substantially the same as the magistrate's and weigh more in favor of
grandmother's custody being in the best interest of the children. Therefore, we find the
trial court erred in its best-interest determination.
{¶ 28} Given our above determinations that the trial court abused its discretion
when it found father to be suitable for custody and when it found it was in the children's
best interests for custody to be awarded to father, we must reverse the trial court's
judgment that rejected the magistrate's decision and recommendation. Furthermore, in
overruling the magistrate's decision and sustaining father's objection to the magistrate's
decision, the trial court also found moot grandmother's objection to the magistrate's
decision. In her objection, grandmother argued that the magistrate failed to address the
issue of child support for her. As we have reversed the decision of the trial court,
grandmother's objection is no longer moot and must be addressed by the trial court on
remand. For all the foregoing reasons, grandmother's first, second, and third assignments
of error are sustained.
{¶ 29} Accordingly, we sustain grandmother's three assignments of error, reverse
the judgments of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, and remand these matters to that court for further
proceedings in accordance with law, consistent with this decision.
Judgments reversed and causes remanded.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
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