Lucas v. Byers

[Cite as Lucas v. Byers, 2020-Ohio-6679.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
JASON C. LUCAS, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2020-L-010
- vs - : 2020-L-049
2020-L-050
LINDSAY N. BYERS, :
Defendant-Appellant. :
Appeals from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2016 CV 00054.
Judgment: Affirmed.
Kenneth J. Cahill, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville,
OH 44077 (For Plaintiff-Appellee).
Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Defendant-Appellant).
Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Ave., Mentor, OH 44060
(Guardian ad litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Lindsay N. Byers (“mother”), appeals from the judgment of the
Lake County Court of Common Pleas, Juvenile Division, designating Jason C. Lucas
(“father”) sole residential parent and legal custodian of the parties’ minor son, D.L. She
also appeals the trial court’s judgment denying her motion to modify visitation. We affirm
the judgments of the trial court.
{¶2} In January 2016, father filed a complaint requesting allocation of parental
rights and responsibilities. The matter proceeded to hearing which resulted in a
January 18, 2017 order naming mother residential parent for school purposes. On May
11, 2018, father moved the trial court to designate him the sole residential parent and
legal custodian of the minor child. The parties filed voluminous motions subsequent to
father’s May 2018 filing. Ultimately, on December 7, 2018, father filed an ex parte
motion for immediate temporary sole residential placement and legal custody. A pretrial
conference was held on December 12, 2018, at which the parties and the guardian ad
litem (“GAL”) indicated they had reached an agreement regarding custody. And, an
agreed judgment entry was subsequently filed.
{¶3} After mother’s counsel had withdrawn, new counsel filed a motion to
vacate the previous agreed entry, which was granted on March 19, 2019. The matter
then proceeded to a 13-day bench trial on, inter alia, father’s May 11, 2018 motion.
Following trial, the trial court issued an order which found the circumstances had
changed since the initial allocation of parental rights; the court additionally concluded
D.L.’s best interests would be served by designating father the sole residential parent
and legal custodian. The court also ordered mother to have supervised visitation with
D.L. This appeal followed and mother assigns six errors for our review. The first
assigned error provides:
{¶4} “The trial court erred as a matter of law and abused its discretion in
granting father’s motion to designate father sole residential parent and legal custodian
and in its allocation of parental rights and responsibilities.”
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{¶5} Under this assignment of error, mother first argues father failed to
demonstrate a change of circumstances arising since the prior decree. Mother
contends father simply relied upon redundant allegations of medical abuse and
falsification of medical records, which the trial court had previously rejected. The
record, however, does not support mother’s claim.
{¶6} A judgment involving the allocation of parental rights and responsibilities
will not be disturbed save an abuse of discretion. Wren v. Tutolo, 11th Dist. Geauga
No. 2012-G-3104, 2013-Ohio-995, ¶8. The phrase “abuse of discretion” is one of art,
connoting judgment exercised by a court, which does not comport with reason or the
record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24. In
determining whether the trial court has abused its discretion, a reviewing court is not to
weigh the evidence, but, rather, must determine from the record whether there is some
competent, credible evidence to sustain the findings of the trial court. Clyborn v.
Clyborn, 93 Ohio App.3d 192, 196 (3d Dist.1994). In rendering its decision, the trial
court is in the best position to observe the witnesses, “which cannot be conveyed to a
reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
Moreover, given these points, we are “‘guided by the presumption that the trial court's
findings were indeed correct.’” Id.; see also Foxhall v. Lauderdale, 11th Dist. Portage
No. 2011-P-0006, 2011-Ohio-6213, ¶26, quoting Bates-Brown v. Brown, 11th Dist.
Trumbull No. 2006-T-0089, 2007-Ohio-5203, ¶18 (“decisions involving the custody of
children are ‘accorded great deference on review.’”).
{¶7} R.C. 3109.04(E)(1)(a) contains various provisions pertaining to
modification of parenting plans. R.C. 3109.04(E)(1)(a) states that:
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{¶8} The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on
facts that have arisen since the prior decree or that were unknown
to the court at the time of the prior decree, that a change has
occurred in the circumstances of the child, the child’s residential
parent, or either of the parents subject to a shared parenting
decree, and that the modification is necessary to serve the best
interest of the child. In applying these standards, the court shall
retain the residential parent designated by the prior decree or the
prior shared parenting decree, unless a modification is in the best
interest of the child and one of the following applies:
{¶9} (i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to a
change in the designation of residential parent.
{¶10} (ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into
the family of the person seeking to become the residential parent.
{¶11} (iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
{¶12} In Janecek v. Marschall, 11th Dist. Lake No. 2013-L-136, 2015-Ohio-941,
this court held that a trial court modifying a prior decree allocating parental rights and
responsibilities pursuant to R.C. 3109.04(E) is required to make a specific finding that a
change of circumstances had occurred. See id. at ¶18. The Ohio Supreme Court has
held that the requisite change of circumstances “must be a change of substance, not a
slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415 (1997). “In
determining whether a change of circumstances has occurred, the trial court has great
latitude in considering all evidence before it.” Makuch v. Bunce, 11th Dist. Lake No.
2007-L-016, 2007-Ohio-6242, ¶12, citing In re M.B., 2d Dist. Champaign No. 2006-CA-
6, 2006-Ohio-3756, at ¶9.
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{¶13} In this matter, the previous, January 18, 2017 order was premised upon
various pleadings, the first of which was father’s motion to allocate parenting rights and
responsibilities. In that motion, father asserted mother was denying him visitation and
preventing him access to D.L.’s medical records. Although the magistrate’s decision
discussed, at length, the parties’ disagreement regarding potential food allergies and
each party’s differing approach towards this issue, nothing in that decision or the trial
court’s decision suggests the concerns raised by father in the subsequent, May 2018
motion were merely a reiterations of those in the previous litigation. While there may
have been some overlap in the concerns father voiced in each motion, the concerns
advanced in the May 2018 pleading (and each subsequent motion filed) related to
allegations which post-dated the January order. In this respect, father’s allegations in
the underlying matter are not redundant and thus cannot be deemed res judicata.
{¶14} Next, mother asserts father failed to establish a change of circumstances
because he did not submit sufficient documentation that mother had made abuse
allegations against him. She further contends father’s allegation that mother subjected
the child to excessive and unnecessary medical visits was unsubstantiated and against
the weight of the evidence.
{¶15} Initially, testimonial evidence was adduced that mother had leveled abuse
allegations, ranging from emotional, physical, medical, as well as sexual abuse of the
parties’ son. And, in the reports submitted by the GAL and Dr. Deborah Koricke, a
clinical and forensic psychologist appointed by the court to conduct a custody
evaluation, listed multiple collateral sources, including medical professionals, to whom
mother had related the allegations. Counsel for mother had an opportunity to cross-
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examine the GAL and Dr. Koricke and nothing in their testimony indicated the abuse
allegations, which had occurred and persisted since the previous litigation, did not
occur. We therefore conclude father was not obligated to provide formal documentation
of mother’s allegations and the trial judge was entitled to assess the credibility of the
witness’ testimony, as well as the reports submitted into evidence, in its change-of-
circumstance analysis.
{¶16} With this in mind, Dr. Koricke stated, in her report, that mother was
concerned that father was abusing D.L. Evidence was adduced that the child was being
seen by a sexual-abuse counselor and mother had made at least 18 calls to children’s
services; notably, however, no investigation was ever initiated. Regarding the alleged
sexual abuse, mother reported that, in March 2018, after staying with father, the child’s
buttocks was red and D.L. purportedly told her that father put a pen in his anus. Mother
asserted she has noticed sexualized behavior from the child; she claimed the child will
not keep his pants on and places objects around his privates. Mother additionally noted
that when D.L. returns from father’s house, he is usually upset, angry, and will not eat.
{¶17} Mother asserted she has continued to take D.L. to various doctors
because she noticed anal inflammation. She believed this is related to, inter alia,
father’s failure to adhere to a diet consistent with D.L.’s food allergies. In particular, on
the evening of May 2, 2018, D.L. returned from weekend-parenting time with father and
he was bleeding from his anus. Mother stated that the next day she took the child to the
emergency room which led to a follow-up treatment with Dr. Joshua Friedman, a
pediatrician. Dr. Friedman testified that the child had inflammation of the intestine,
which could cause rectal bleeding; he also indicated sexual abuse could not be ruled
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out. Dr. Friedman stated, however, his observations did not specifically implicate father
in any wrongdoing.
{¶18} Father asserted that, prior to the January 2018 order awarding mother
custody, mother attempted to have him arrested for physically abusing their son.
According to father, she engaged in other actions which were designed to suggest he
was not a fit father. After the January 2018 entry, father noted mother’s allegations
escalated; she began claiming he was sexually abusing or harming their son by
sodomizing the child with a pen. After being investigated, no charges or further
attention was given to the allegations by authorities. Father opined that mother’s
actions are a continuing effort to keep him out of the child’s life. He expressed his
concern that mother will persist with similar allegations. He observed that her actions
have been progressively more serious; to wit, mother has accused him of neglect,
endangering D.L., physical abuse, medical neglect, and finally sexual abuse. None of
her allegations were confirmed. In father’s view, the only way to put an end to the cycle
was to file for full custody.
{¶19} Father told Dr. Koricke that mother had taken D.L. to over 200 doctor’s
appointments. On cross-examination, he clarified that rather than “appointments,” he
meant “encounters,” e.g., appointments as well as phone consults and the like. Father
expressed frustration that mother had taken the child to rape counseling; he pointed out
that, in his estimation, mother was attempting to condition D.L. to fear him. When father
has visitation, he stated that D.L. wears a white bracelet which the child stated mother
gave him “to keep him safe from daddy.” Father stated he has serious concerns about
mother’s actions and the impact they will have on D.L. as he grows and develops.
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Father communicated his worries that mother’s actions will negatively impact the child
psychologically and emotionally.
{¶20} After various interviews with the parties as well as multiple, other collateral
sources, Dr. Koricke drew the following conclusions:
{¶21} After review of all the records made available to me and additionally
interviewing professionals [who] would call me back, it is my
opinion with reasonable psychological certainty that this child has
not been abused in any way by his father * * *. It is my opinion that
mother takes a statement from a doctor or professional about the
possibility of this happening and then goes with the idea, stating
that this is happening. However, when she is asked over and over
again to show proof, there is no evidence in any way that any of her
allegations have occurred.
{¶22} It is my opinion with reasonable psychological certainty that
[mother] has engaged in all of these allegations and even put [D.L.]
through hundreds of medical appointments for the purposes of
possible secondary gains. The reasons for this are twofold in my
opinion. First, [mother] seems to have an inherent need to prove
that [father] is abusive and neglectful of their son. Second, she
appears to have a need to prove that she is the only appropriate
child care provider and parent to [D.L.]. Her aim, in this evaluator’s
opinion, is to prove that she should be the sole custodian and
parent of her son, [D.L.], and father, if he is to have any contact,
should have it in a limited, supervised manner.
{¶23} Dr. Koricke further opined that mother should see a qualified mental health
professional in order to learn to co-parent effectively. The doctor also stated mother
should have no independent medical decision-making rights over the child because
mother has shown she will go to extreme measures in order to obtain answers she
seeks. Dr. Koricke concluded father was not abusive to D.L. and has not engaged in
any medical neglect. Accordingly, she recommended father be designated the primary
and sole custodian of D.L.
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{¶24} Moreover, GAL, Attorney Cory Hinton, filed a report noting he was
reappointed after the first round of litigation on July 2, 2018. The GAL asserted, during
his various meetings with mother, she was concerned father was harming D.L. by either
feeding him allergens and/or sexually abusing him. Mother additionally had concerns
that father was physically abusing the child. Due to her concerns, mother had arranged
significant medical treatment for the child and had him in therapy or counseling with
multiple entitles, including sexual abuse therapy and the Cleveland Rape Crisis Center.
Mother also stated she hired a private investigator at some point to determine what
foods father was giving the child.
{¶25} The GAL also stated he met with father several times since his
reappointment. During their meetings, father communicated his concerns that mother
was attempting to alienate him from D.L. by alleging domestic violence, child abuse,
violation of dietary restrictions, and sexual abuse. Father denied any wrongdoing but
was concerned mother would continue to escalate her efforts in order to remove him
from the child’s life. Father also expressed concern regarding the amount of medical
attention mother has foisted to the child.
{¶26} The GAL ultimately concluded shared-parenting is not in D.L.’s best
interest. He stated:
{¶27} An important aspect of my initial investigation was to try and
determine if I could find evidence that Father was in fact physically
abusing the child, purposefully feeding him foods which would harm
him, and/or sexually abusing the child. * * * I was unable to find
any substantial evidence other than what Mother could testify to.
While I cannot rule anything out, I did not discover any collaborating
evidence that Father was harming [D.L.] physically, by the
administration of certain foods, or by sexually abusing him.
{¶28} * * *
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{¶29} The condition of [D.L.’s] anus has been a point of heightened
conflict in this case. Since [D.L.], who just turned four, is not at
daycare/preschool four days a week and with paternal grandfather
once a week on Fridays, there are unlikely additional individuals
assisting [D.L.] using the restroom. It has not been brought to my
attention during the interview with the daycare/preschool provider
or based on my review of the daycare/preschool’s records that
there are any issues with [D.L.’s] anus. I recently spoke with
[D.L.’s] pediatrician who had just got done examining [D.L.] for a
checkup the day I spoke with him. Dr. Norr[, the pediatrician,] did
not express any concerns over [D.L.’s] anus. What Dr. Norr was
able to confirm is that [D.L.] is currently allergy free. Thus, it is
clear that from a factual perspective, there appears to be some
closure as to one of the major points of contention between the
parties (i.e. [D.L.’s] anus being irritated as a result of sexual abuse
or eating incorrect foods).
{¶30} The GAL went on to recommend that father be designated D.L.’s legal
custodial parent.
{¶31} In its judgment entry designating father the sole residential parent and
legal custodian, the trial court made the following findings germane to mother’s
arguments:
{¶32} Since the prior court order, an allegation arose, in March 2018, that
Father put a pen in the child’s anus. Mother responded by taking
the child to numerous doctor’s specialists, and a rape crisis center.
Mother testified that the child came home from a visit with Father
on May 2, 2018 bleeding from the anus. Mother cleaned the child
and then nursed the child to sleep. The next morning at about
10:00 or 11:00 am, Mother responded by taking the child to the
Cleveland Rape Crisis Center. Mother took the child also on May
3, 2018, at about 6:30 pm, to Hillcrest Hospital for a sexual assault
kit examination. The hospital reported to the police. Mother
testified that “on a whim” she filed a petition for Domestic Violence
in the Court of Common Pleas Domestic Relations Division in Lake
County Ohio. The Petition for Domestic Violence Civil Protection
Order was denied. The police investigated. No charges were filed.
Lake County Human Service investigated. No charges were
substantiated. Mother continued to take the child to doctors,
counselors and therapists.
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{¶33} When Mother first went to see Dr. Koricke (the forensic custody
evaluator) in June 2018, her complaints were that Father was
mentally, physically, emotionally and sexually abusing the child.
Mother believed that Father was emotionally abusing the child and
medically abusing the child. Mother’s claim of medical abuse was
because Father was allegedly providing the child foods that the
child was allergic to. During Mother’s testimony, when asked if she
thought Father was physically and sexually abusing the child,
Mother replied “I don’t know.” Further, Mother did not know if
Father was a fit custodia[l] parent. But when she was questioned
about the shared parenting plan that she filed she testified that
Father was a fit custodia[l] parent.
{¶34} In light of the evidence and recommendations of both Dr. Koricke and the
GAL, we cannot conclude the trial court abused its discretion in finding a change of
circumstance occurred between the entry of the prior order and the current order.
{¶35} Next, mother asserts the trial court erred as a matter of law and abused its
discretion by failing to consider the best interest factors set forth under R.C.
3109.04(F)(1). We do not agree.
{¶36} The factors found in R.C. 3109.04(F)(1) include: (a) the wishes of the
child’s parents regarding the child’s care; (b) the wishes or concerns of the child as
expressed to the court; (c) the child’s interaction and interrelationship with her parents
and any other person who may significantly affect the child’s best interest; (d) the child’s
adjustment to her home, school, and community; (e) the mental and physical health of
all persons involved; (f) the parent more likely to honor and facilitate visitation and
companionship rights approved by the court; (g) whether either parent has failed to
make all child support payments; (h) whether either parent previously has been
convicted of or pleaded guilty to any criminal offense; (i) whether the residential parent
or one of the parents subject to a shared parenting decree has continuously and willfully
denied the other parent his or her right to visitation in accordance with an order of the
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court; and (j) whether either parent has established a residence, or is planning to
establish a residence, outside this state.
{¶37} In its judgment entry, the trial court listed the best-interest factors and
made the following findings in relation to the same:
{¶38} a) Father would like to become the sole residential parent. Mother would
like to share parenting. Mother testified to this and during closing arguments the Court
questioned her again to ensure that was her desire.
{¶39} b) The Court did not interview [D.L.] in camera. However[,] the child has
a Guardian ad Litem and the Guardian ad Litem has made recommendations to the
Court as and for [sic] the best interest of [D.L.]
{¶40} c) The evidence established that Father and paternal grandfather spend a
lot of time interacting with [D.L.] in their community in Independence[,] Ohio. The child
has no health issues, no allergies and is not currently seeing any mental health
professionals.
{¶41} d) The evidence established that [D.L.] has adjusted noicely [sic] to
Father’s home. He is integrated into the community. He has friends, goes to day
care/school, plays tee ball and soccer.
{¶42} e) There was no evidence presented to suggest that Father has any
physical or mental health issue that would prevent him from providing appropriate care
for [D.L.] However, the testimony of Dr. Afsarifard calls Mother’s mental health into
question. Dr. Afsarifard stated that Mother has been traumatized by the events and
feels she is the victim. Therefore, she needs therapy…intensive therapy.
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{¶43} f) Mother has been held in contempt for failure to honor or facilitated
parenting time.
{¶44} g) Father was the child support obligor and his child support is current.
Even though the child has been with the Father for over one year there has been no
order for the Mother to pay child support.
{¶45} h) There was no evidence presented to suggest that either parent has
ever been convicted of any crime or engaged in any activity that resulted in harm to a
family member or child.
{¶46} i) See “f” above.
{¶47} j) There was no evidence presented to suggest that either parent is
planning to establish a residence outside the state of Ohio.
{¶48} After taking into consideration the GAL’s recommendation, the trial court
determined a modification of the residential parent was in D.L.’s best interests and the
harm likely to be caused by a change of environment is outweighed by the advantages
of the change of environment to the child. The trial court’s conclusion is reasonable and
supported by the record. We discern no abuse of discretion.
{¶49} Mother’s first assignment of error lacks merit.
{¶50} Her second assignment of error provides:
{¶51} “The trial court erred as a matter of law and abused its discretion by
designating father the residential parent and legal custodian of the minor child.”
{¶52} As discussed above, the trial court did not err in finding a change of
circumstances since the prior decree; nor did it err in concluding the modification of the
prior order was in the best interest of the child. Mother contends, under this assignment
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of error, however, that the trial court’s determination vis-à-vis R.C. 3104.09(E)(1)(a)(iii)
was error. Specifically, she asserts the record does not support the trial court’s
conclusion that “[t]he harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child.” Id. We do
not agree.
{¶53} The trial court found that, since the previous decree, mother had subjected
D.L. to numerous and frequent visits with medical and/or psychological professionals.
She took him to the Cleveland Rape Crisis Center, but both medical and psychological
witnesses (Joshua Friedman, M.D.; Dr. Deborah Koricke, Ph.D.; and Farshid Afsarifard,
Ph.D.) stated there was no definitive evidence of sexual abuse. And there was no
evidence presented, other than that offered by mother, that father engaged in any
pattern of abuse, sexual or otherwise with D.L. Nor was there any evidence that
anyone, other than mother, supported the aggressive clinical attention D.L. was
receiving. From this, the trial court could conclude that the repeated counseling and
medical tests/check-ups would cause him distress, anxiety, and harm; particularly
where, as here, no sexual abuse was confirmed or medically corroborated.
{¶54} In addition, mother appears to be engaging in a pattern of attempting to
alienate D.L. from his father by insisting that he will harm the child. Dr. Koricke, in her
report summarized her impressions of this issue:
{¶55} [D]uring my interviews with the child, I was able to see evidence
that mother seems to have been negatively impacting (or trying to)
the relationship between the child and his father. During my
interviews with [D.L.] and his father, it was noted that he was
wearing a white yarn type bracelet. When questioned about this,
[D.L.] stated that his mother said the bracelet is to protect him from
his father. (Mother disputes that she ever said this and said that
father taught the child to say this and encouraged this thinking.) It
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is important for any co-parenting situation that both mother and
father attempt to foster the relationship between the child and the
other parent. Mother also did admit telling the child how short a
time he would be with father, seemingly implying that this as a
negative experience he had to “get through.” This appears to have
been an attempt to put the father in a negative light with the child
and an attempt to foster fear in the child towards father, implying
that the child needs protection from him. This type of behavior only
fosters the possibility of future psychopathology, emotional distress,
and lack of appropriate development for the child in the future.
{¶56} With respect to R.C. 3109.04(E)(1)(a)(iii), the record reveals that the trial
court addressed and considered the advantages and disadvantages of leaving the
minor child with mother or placing him with father. The record shows D.L. has been
developing well, physically and socially, since being placed with father and there have
been no incidents of excessive medical or psychological intervention. The record
indicates that mother had an ongoing interest in undermining D.L.’s perception of and
relationship with this father. Although father also showed animosity towards mother, his
attitude was ostensibly the result of his frustration with mother’s pattern of abuse
allegations and her arguable attempts to damage, if not sever, his relationship with D.L.
We recognize that the emergency change in custody from mother to father likely
distressed and saddened the child, at least at first. Any radical shift in a young child’s
paradigm and routine would be reasonably expected. Still, in light of the surrounding
circumstances, as well as the child’s young age at the time of the change of custody
(three years and approximately four months), the evidence militates in favor of the trial
court’s conclusion. Thus, we cannot say that the trial court abused its discretion when it
concluded the harm likely to be caused from the change in environment was
outweighed by the advantages.
{¶57} Mother’s second assignment of error lacks merit.
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{¶58} Mother’s third assignment of error provides:
{¶59} “The trial court erred as a matter of law and abused its discretion by
denying mother’s motion to disqualify the Guardian ad Litem and allowing the GAL to
submit his report after the commencement of trial.”
{¶60} Under her third assignment of error, mother contends the trial court erred
and abused its discretion by denying her motion to disqualify the GAL and allowing him
to submit his report after the commencement of trial. We do not agree.
{¶61} Initially, mother, at the inception of the hearing, objected to the GAL
seeking an extension to submit his report. There is nothing, however, indicating she
moved to disqualify the GAL and mother does not direct this court’s attention to the
record where any motion was filed. Mother’s counsel identifies the point in the
proceedings where he objected to the extension; to wit:
{¶62} [I]t is unfair that the guardian participates, hasn’t done a report, and
then you grant him an extension, I think through September, before
[he] reports. So we are starting trial without any sort of report from
the guardian, which is somewhat unfair, but, nevertheless, he can’t
converse with witnesses once we start trial because that is unfair.
He can’t do it - - he can’t go outside of these court proceedings, do
any sort of further investigation or discuss matters with witnesses of
evidence that had already come before the Court * * *.
{¶63} The court granted the motion for separation of witnesses and asked
father’s attorney for a response regarding the extension and the issue with contacting
witnesses. Father’s attorney responded:
{¶64} Well, Your Honor, this is the first I have heard of this. I would just
say that the guardian should be able to do his duties pursuant to
Rule of Superintendence 48. Certainly anything in his report will be
subject to [mother’s counsel’s] examination, as well as mine. If, for
some reason, in these proceedings [mother’s counsel] believes
something has been included in the report or in his testimony, he
may recall a witness, if he wishes, if that is appropriate, but I think a
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blanket type of order would unduly hamper the guardian in this
matter.
{¶65} The court ultimately denied counsel’s request that the GAL have no further
contact with witnesses because such contact would be consistent with his duties.
Mother does not specifically take issue with this point. Still, because there was no
specific motion to disqualify the GAL, that argument is waived.
{¶66} Furthermore, while being cross-examined, the GAL stated that, prior to
seeking an extension to file a report, the parties had waived the filing of his report since
his re-appointment. There was nothing to suggest this representation was inaccurate
and, had counsel for mother believed the late filing was inherently and unfairly
prejudicial, he could have advanced such an argument and sought a continuance of the
hearing. No such argument or motion was proposed. We therefore discern no error in
the court’s decision to permit the GAL to file his report after commencement of the
hearing.
{¶67} Mother’s third assignment of error lacks merit.
{¶68} Mother’s fourth assignment of error provides:
{¶69} “The trial court erred as a matter of law by violating the appellant’s
fundamental due process rights.”
{¶70} Mother argues her procedural due process rights were violated because
the court required her to proceed before father submitted his evidence and because the
court permitted the GAL to submit his report late.
{¶71} First, there is nothing in the record indicating the trial court compelled
mother to present cross-examination testimony prior to father submitting his evidence.
It would appear that counsel for mother either preferred to proceed in this fashion or
17
was comfortable acquiescing to this manner of witness presentation. Regardless,
mother was on specific notice of the basis of father’s claims surrounding the issue of re-
designating custody. And, if something occurred during father’s presentation of
evidence that mother deemed new, unique, or improper, there was nothing preventing
her from either seeking re-cross or re-calling a witness, and the timing of the GAL’s
report does not affect these points. Mother was on notice of the issues that were being
tried and was given an ample opportunity to be heard.
{¶72} Mother’s fourth assignment of error lacks merit.
{¶73} Mother’s fifth assignment of error asserts:
{¶74} “The trial court erred as a matter of law and abused its discretion in
denying mother’s motion for new trial.”
{¶75} Mother asserts the trial court erred in failing to grant her a new trial
because the court required her to proceed before father and because certain ex parte
communications between the GAL, father’s counsel, and the trial court created
prejudicial irregularities in the proceeding. We do not agree.
{¶76} As just discussed, we identify nothing prejudicially irregular in the manner
in which evidence was presented. Mother’s counsel did not object and, in light of other
safeguards, e.g., re-crossing or re-calling of witnesses if counsel felt it necessary, we
deem the court’s procedure fair and consistent with due process.
{¶77} With respect to the ex parte communication, we understand that the GAL
and Dr. Koricke arguably should have notified counsel for both parties regarding their
intention to recommend an emergency custody award to father. Still, the matter was
tried to the bench; counsel for mother skillfully cross-examined both the GAL and Dr.
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Koricke. In light of both the GAL’s and Dr. Koricke’s roles, the former as the child’s
advocate and the latter a neutral court-appointed expert, the court was able to weigh the
facts and testimony to determine whether anything untoward had occurred in the course
of its receipt of their recommendations. The court assessed the totality of the evidence
and concluded the actions of these individuals, while potentially irregular, was not
unfairly prejudicial to mother’s rights. Mother’s argument therefore lacks merit.
{¶78} Finally, mother contends the trial court should have granted a new trial
because its judgment was against the manifest weight of the evidence. Given our
disposition of mother’s first and second assignments of error, we conclude this
argument is moot and without merit.
{¶79} Mother’s fifth assignment of error is not well taken.
{¶80} Mother’s final assignment of error provides:
{¶81} “The trial court erred as a matter of law by denying mother’s motion to
modify visitation.”
{¶82} Mother contends the trial court erred in overruling her motion to modify
visitation. She contends that the trial court disregarded her completion of an intensive
outpatient program as ordered by the court. She claims the court improperly entered
judgment without a hearing and that, in light of her compliance, modification of visitation
was in the child’s best interest.
{¶83} In its judgment, the trial court noted that mother failed to attach anything to
her affidavit (which accompanied her motion) indicating she had completed the
intensive outpatient program; the court further noted that neither party requested a
hearing on mother’s motion. And, because the motion was filed a mere two weeks after
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the court’s December 31, 2019 judgment re-designating father as residential and
custodial parent, it concluded that “significant progress could not have been made with
these parties in that period of time.” Under the circumstances, we perceive no abuse of
discretion.
{¶84} Mother’s final assignment of error lacks merit.
{¶85} For the reasons discussed in this opinion, the judgments of the Lake
County Court of Common Pleas, Juvenile Division, are affirmed.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.
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