In re T.G.O.

[Cite as In re T.G.O., 2017-Ohio-151.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
IN THE MATTER OF: T.G.O. :
CASE NO. CA2016-02-009
:
OPINION
: 1/17/2017
:
APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 20540010
Thomas J.C. Arrington, 67 East High Street, London, Ohio 43140, Guardian Ad Litem
Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, attorney for
child
LeeAnn M. Massucci, 250 Civic Center Drive, Suite 360, Columbus, Ohio 43215, for appellee
Petroff Law Offices, LLC, Erika M. Smitherman and Michelle J. Askins, 140 East Town
Street, Suite 1070, Columbus, Ohio 43215, for appellant
S. POWELL, J.
{¶ 1} Appellant, the father of T.G.O. ("Father"), appeals from the decision of the
Madison County Court of Common Pleas, Juvenile Division, modifying a term of the shared
parenting plan he entered into with appellee, the mother of T.G.O. ("Mother"), designating
her the residential parent of T.G.O. for school purposes. For the reasons outlined below, we
affirm.
Madison CA2016-02-009
{¶ 2} The child at issue, T.G.O., was born on December 21, 2004. Mother and
Father were never married. Following T.G.O.'s birth, the parties entered into a shared
parenting plan that was approved by the juvenile court and entered as a final decree of
shared parenting on July 14, 2005. As part of that shared parenting plan, Father was
designated the residential parent of T.G.O. for school purposes. It is undisputed that at this
time both Mother and Father lived in Madison County.
{¶ 3} On November 7, 2014, upon notifying the juvenile court of her intent to relocate
to Morrow County to live with her newly married husband, Mother filed a motion requesting
the juvenile court to modify a term of the parties' shared parenting plan to designate her as
the residential parent for school purposes. The juvenile court then scheduled the matter for a
hearing and a guardian ad litem was appointed for the child. However, due to a conflict
between T.G.O.'s stated wishes to have Mother designated as residential parent for school
purposes and the guardian ad litem's recommendations to have Father remain as residential
parent for school purposes, an attorney advocate was also appointed for T.G.O. The juvenile
court later held an in camera interview with T.G.O. in order to personally address the child
and ask her about her wishes. At the time of this in camera interview, T.G.O. was ten years
old.
{¶ 4} On December 1 and December 17, 2015, the juvenile court held a two-day
hearing on the matter. During this hearing, both Mother and Father testified. Thereafter, on
January 29, 2016, the juvenile court issued a decision granting Mother's motion to modify a
term of the parties' shared parenting plan upon finding it was in T.G.O.'s best interest to
designate Mother as the residential parent for school purposes. In support of this decision,
because there were factors favoring both Mother and Father, the juvenile court found
T.G.O.'s wishes as expressed during its in camera interview with her "tipped the scales in this
case" for T.G.O. appeared "bright and well spoken" and "clear in her stated desire to reside
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with Mother" and attend school in Morrow County. The juvenile court further found that
T.G.O. was "very persuasive in the overall analysis of her best interest" since she appeared
"sincere and truthful in her steadfast desire to live with her Mother and ultimately gave
deference to [T.G.O.'s] wishes."
{¶ 5} Father now appeals from the juvenile court's decision, raising two assignments
of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT
THERE HAD BEEN A CHANGE OF CIRCUMSTANCES SUFFICIENT TO WARRANT A
CHANGE IN SCHOOL PLACEMENT PARENT.
{¶ 8} In his first assignment of error, Father argues the juvenile court erred by finding
there was a change in circumstances sufficient to modify a term of the parties' shared
parenting plan to designate Mother as the residential parent of T.G.O. for school purposes.
However, a simple review of the record indicates the juvenile court never made such a
finding, nor was it required to in accordance with this court's unanimous decision in In re
E.L.C., 12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220. As this court explicitly stated
in that case:
The specific issue presented by Mother in this assignment of
error is whether the juvenile court's decision to change the
designation of the child's residential parent for school purposes
from Mother to Father is a modification of "a prior decree
allocating parental rights and responsibilities" under R.C.
3109.04(E)(1)(a), or merely a modification of a "term" of the
parties' shared parenting plan under R.C. 3109.04(E)(2)(b). We
conclude that by changing the designation of the child's
residential parent for school purposes from Mother to Father, the
juvenile court merely modified a term of the parties' shared
parenting plan that had been incorporated into the parties'
shared parenting decree, and therefore, the juvenile court was
not required to find that a change in circumstances of the child or
either parent had occurred at some point after the prior shared
parenting decree was issued before modifying this term of the
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parties' shared parenting plan.
(Emphasis sic.) Id. ¶ 38.
{¶ 9} Therefore, in accordance with this court's decision in In re E.L.C., we find no
merit to Father's first assignment of error. See also Fritsch v. Fritsch, 1st Dist. Hamilton No.
C-140163, 2014-Ohio-5357, ¶ 21 ("[t]he court did not have to determine that a change of
circumstances had occurred to modify the designation of the residential parent for school
purposes"); Ralston v. Ralston, 3d Dist. Marion No. 9-08-30, 2009-Ohio-679, ¶ 17 ("the trial
court was required to apply the standard as articulated in R.C. 3109.04(E)(2)(b)" when
modifying the designated residential parent for school purposes). Accordingly, Father's first
assignment of error is overruled.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT NAMED [MOTHER] AS RESIDENTIAL PARENT FOR SCHOOL
PLACEMENT PURPOSES.
{¶ 12} In his second assignment of error, Father argues the juvenile court abused its
discretion by modifying a term of the parties' shared parenting plan to designate Mother as
the residential parent of T.G.O. for school purposes. We disagree.
{¶ 13} Changing the residential parent for school purposes is a modification of a term
of a shared parent plan that is governed by R.C. 3109.04(E)(2)(b). In re E.L.C., 2015-Ohio-
2220 at ¶ 42. Pursuant to that statute:
The court may modify the terms of the plan for shared parenting
approved by the court and incorporated by it into the shared
parenting decree upon its own motion at any time if the court
determines that the modifications are in the best interest of the
children or upon the request of one or both of the parents under
the decree. Modifications under this division may be made at
any time. The court shall not make any modification to the plan
under this division, unless the modification is in the best interest
of the children.
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{¶ 14} In determining the best interest of a child, R.C. 3109.04(F)(1) requires the
juvenile court to consider all relevant factors. In re A.D.B., 12th Dist. Butler No. CA2015-10-
180, 2016-Ohio-7186, ¶ 12. These factors include, but are not limited to: (1) the wishes of
the child's parents regarding the child's care; (2) the wishes and concerns of the child, as
expressed to the court, if the court conducted an in camera interview; (3) the child's
interaction and interrelationship with the child's parents, siblings, and any other person who
may significantly affect the child's best interest; (4) the child's adjustment to the child's home,
school, and community; and (5) the parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights. R.C. 3109.04(F)(1)(a), (b), (c),
(d), and (f). "No one factor is dispositive." Carr v. Carr, 12th Dist. Warren Nos. CA2015-02-
015 and CA2015-03-020, 2016-Ohio-6986, ¶ 22. Rather, the juvenile court has discretion to
weigh any and all relevant factors as it sees fit. Id.{¶ 15} The juvenile court's determination of what is in the best interest of a child will
not be reversed absent an abuse of discretion. Sayre v. Furgeson, 3d Dist. Shelby No. 17-
15-16, 2016-Ohio-3500, ¶ 38. An abuse of discretion implies that the court's attitude was
unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist. Butler No. CA2010-12-324,
2011-Ohio-4470, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "A
decision is unreasonable if there is no sound reasoning process that would support that
decision." AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161 (1990). "This highly deferential standard of review rests on the
premise that the trial judge is in the best position to determine the credibility of witnesses
because he or she is able to observe their demeanor, gestures, and attitude." Rarden v.
Rarden, 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10.
{¶ 16} In this case, the record shows that both Mother and Father are good and loving
parents who share a strong bond with T.G.O. The record also indicates that T.G.O. has a
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good relationship with both of her parents, her maternal and paternal grandparents, as well
her half-siblings, step-siblings, stepfather, cousins, and Father's long-time girlfriend. As the
juvenile court stated, "[t]estimony overwhelmingly showed [T.G.O.] gets along with everyone!"
{¶ 17} However, although living and attending school in Madison County for her entire
life, the record indicates T.G.O. had limited interaction with anyone in the Madison County
area other than Father, a few of her classmates, and occasionally her cousins and paternal
grandparents. On the other hand, Mother testified that T.G.O. has adjusted quickly to the
Morrow County community, other children in the area, and her stepfather and his extended
family, among others. This includes participating in church activities and attending church
camp. Although Father testified otherwise, the record also indicates that both Mother and the
guardian ad litem believe T.G.O. would have no issues being able to quickly adjust to
changing schools from those located in Madison County to those located in Morrow County.
{¶ 18} Unfortunately, the record also indicates that both Mother and Father have found
ways to interfere with the others' requests for parenting time during special events; most
notably, when Father refused to allow any reasonable accommodations to Mother so that
T.G.O. could attend Mother's wedding or when Mother refused the same reasonable
accommodations to Father when his family was visiting from out of state. Yet, although
neither party is completely blameless, as the juvenile court determined, the record indicates
Father "exhibited a rigidness that was palpable" towards Mother and "seemed completely
incapable of cooperating with Mother on any matter." A review of the record supports this
finding.
{¶ 19} The record also indicates that Father has generally refused to communicate
with Mother through any other method except over the phone or in person (conversations he
then admittedly records) and desires to have no relationship with Mother whatsoever,
although he acknowledges maintaining a daily "custody log" of Mother's activity. Father
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testified that he was aware T.G.O. knew of both these activities, activities the juvenile court
found assuredly indicated T.G.O. knew of Father's "disdain" for Mother. The record further
indicates that T.G.O., who Father referred to as "the child" several times during the two-day
hearing, has been seen with her "head down" and "shoulders drooping" when Father
confronts Mother, such as when Father forced Mother to come to the door to pick T.G.O. up
as opposed to merely letting her leave with her stepfather.
{¶ 20} The guardian ad litem recommended that Father remain as the residential
parent for school purposes. However, when asked about her wishes, the record indicates
T.G.O. repeatedly stated that she wanted to reside with Mother and attend school in Morrow
County. As noted above, the juvenile court found T.G.O.'s wishes as expressed during its in
camera interview were "very persuasive in the overall analysis of her best interest" for she
appeared "bright and well spoken" and was "clear in her stated desire to reside with Mother."
Although Father insists that T.G.O. had "been manipulated" by Mother, the juvenile court
specifically found that T.G.O. was "sincere and truthful in her steadfast desire to live with her
Mother" and attend school in Morrow County.
{¶ 21} After a thorough review of the record, we find the trial court did not abuse its
discretion in modifying a term of the parties' shared parenting plan upon finding it was in
T.G.O.'s best interest to designate Mother as the residential parent for school purposes. Just
as the juvenile court found, it is clear that both Mother and Father love T.G.O. and want what
is best for her. However, when T.G.O. was specifically asked, the record indicates T.G.O.
repeatedly stated to both the guardian ad litem and her attorney advocate, as well as to the
juvenile court itself, that she wanted to reside with Mother and attend school in Morrow
County.
{¶ 22} Again, as the juvenile court stated, because there were factors favoring both
Mother and Father, this "tipped the scales in this case[.]" While Father claims otherwise,
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such a determination was well within the juvenile court's purview for the juvenile court is in
the best position to determine the credibility of the witnesses. The juvenile court also has
discretion to weigh any and all of the relevant factors as it sees fit. This is true despite the
fact that the guardian ad litem recommended Father remain the residential parent for school
purposes, for it is well-established that the juvenile court was not bound to follow a guardian
ad litem's recommendation. Gibson v. Gibson, 12th Dist. Clinton No. CA2016-01-002, 2016-
Ohio-4996, ¶ 19.
{¶ 23} In so holding, we note that Father repeatedly states that the juvenile court's
findings demonstrate a "blatant disregard of relevant testimony" that "is highly concerning
and suggests possible bias." However, simply because the juvenile court, as the trier of fact,
either did not find Father's testimony credible, or determined that such testimony was not
entitled to any greater weight than it received, does not mean that the juvenile court was
somehow biased against him, nor does this indicate the juvenile court failed to take Father's
testimony into consideration when reaching its decision. Again, the juvenile court is in the
best position to determine the credibility of the witnesses and has discretion to weigh any and
all of the relevant factors as it sees fit.
{¶ 24} We further note that Father claims the juvenile court ignored testimony on what
he believes are two highly relevant factors in this case; namely, R.C. 3109.04(F)(1)(g),
concerning whether either parent has failed to make required child support payments, and
R.C. 3109.04(F)(1)(j), which deals with whether either parent is planning to establish a
residence outside of the state. However, as Father readily admits, there were no child
support payments to consider, thus making that factor inapplicable to the juvenile court's best
interest analysis. Moreover, although Mother did move from Madison County to Morrow
County, a distance of approximately 70 miles, there is nothing in the record to suggest that
Mother has any plans to move outside of the state, thus rendering that factor also
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inapplicable to the juvenile court's best interest analysis. Father's attempts to construe these
provisions more broadly in an effort to encompass facts not covered by those provisions is
improper.
{¶ 25} In light of the foregoing, we find nothing about the juvenile court's decision to
modify a term of the parties' shared parenting plan to designate Mother as the residential
parent of T.G.O. for school purposes that would render that decision unreasonable, arbitrary,
or unconscionable so as to constitute an abuse of the juvenile court's discretion. Therefore,
having found no abuse of discretion in the juvenile court's decision, Father's second
assignment of error is without merit and overruled.
{¶ 26} Judgment affirmed.
PIPER, P.J., and RINGLAND, J., concur.
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