In re M.B.

[Cite as In re M.B., 2019-Ohio-1224.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: M.B. C.A. No. 29145
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN16-10-000891
DECISION AND JOURNAL ENTRY
Dated: April 3, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant Father appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that awarded legal custody to both Father and Mother, and granted
Mother visitation pursuant to the juvenile court’s standard order of visitation. This Court
reverses and remands.
I.
{¶2} Mother and Father1 are the biological parents of M.B. (d.o.b. 10/30/15). The
parents were never married. Mother is also the biological mother of two other children who are
not subjects of this appeal, although one child is otherwise contextually relevant. At one time,
Mother and Father lived together with Mother’s oldest child C.P. and the parents’ then-infant
M.B.
1
Paternity of M.B. was not established until November 2016.
2
{¶3} Summit County Children Services Board (“CSB” or “the agency”) became
involved with the family on an informal basis in February 2016, based on concerns that Mother
and Father were involved with drugs. The parents voluntarily submitted to the agency’s safety
plan wherein C.P. and M.B. were placed in the home of Father’s parents. Mother and Father
engaged in court-ordered substance abuse services as part of their respective criminal drug cases,
with varying degrees of success. During that time, Mother and Father ended their relationship;
Mother was arrested on new drug-related charges; C.P. was moved to her maternal
grandmother’s home; and M.B. remained with his paternal grandparents, while Father
maintained a close relationship with the child. Based on allegations of the parents’ drug-related
issues, Mother’s incarceration, and Father’s lack of employment and independent housing, CSB
filed a complaint alleging that the then-11-month-old M.B. was a dependent child pursuant to
R.C. 2151.04(B) and/or (C). The child was placed in the emergency temporary custody of his
paternal grandparents under protective supervision by the agency.
{¶4} At the adjudicatory hearing, CSB amended its complaint to delete the reference to
Father’s lack of independent housing. Afterwards, Mother and Father waived their rights to a
hearing and both stipulated to the remaining allegations in the amended complaint. The
magistrate found M.B. dependent pursuant to R.C. 2151.04(B) and (C), retained the child in the
emergency temporary custody of the paternal grandparents under the agency’s protective
supervision, ordered visitation for Father as the parties might agree, and ordered supervised
visitation for Mother as the parties might agree in the paternal grandparents’ home. The juvenile
court adopted the magistrate’s decision, and no party filed objections.
{¶5} At the dispositional hearing, Father waived his rights to a hearing and stipulated
that M.B. be placed in the temporary custody of his paternal grandparents under protective
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supervision by CSB. Because Mother was not present for the hearing, the magistrate heard the
testimony of the agency caseworker. Based on that evidence and Father’s stipulation, the
magistrate placed M.B. in the temporary custody of the paternal grandparents under protective
supervision by CSB. Father was to have visitation as the parties might agree, while Mother was
permitted to have supervised visitation as the parties might agree in the temporary custodians’
home. The parents’ child support obligations were set at $0 due to their limited financial
resources. The juvenile court adopted the magistrate’s decision and made the agency’s case plan
the order of the court. Under the terms of the case plan, each parent was required to establish
and maintain a sober lifestyle, avoid future legal infractions, submit to random drug screens,
successfully complete drug treatment programs, comply with the terms of their respective
treatment in lieu of conviction programs, regularly visit with the child, and obtain and maintain
employment.
{¶6} At the subsequent review hearing, the magistrate found that Mother was not
complying with her case plan and treatment plan objectives, while Father was in full compliance.
The magistrate maintained the prior temporary custody and visitation orders.
{¶7} Father and Mother each filed a motion for legal custody of M.B. The juvenile
court referred the parties to mediation. At the final dispositional hearing, the magistrate asserted
he would consider Mother’s motion for legal custody, Father’s motion for legal custody, and
CSB’s motions for legal custody to Father and a finding that the agency had used reasonable
efforts to finalize a permanency plan for the child.2 The assistant prosecutor informed the court
that Mother and Father had reached an agreement and that CSB was in agreement with the terms.
Mother’s attorney deferred to Father’s attorney to recite the terms of the parents’ agreement on
2
Neither of the agency’s motions are contained in the record.
4
the record. The agreement was as follows: Mother and Father agreed to shared parenting, with
Father serving as the residential custodian for school purposes. Mother would have a minimum
of four hours of supervised visitation one day each week, or as the parties might otherwise agree.
Mother’s child support obligation would be $0 based on her limited financial resources, but
subject to administrative review by the Child Support Enforcement Agency. Father would claim
the child for tax purposes.
{¶8} The guardian ad litem asserted that the agreement that had been placed on the
record was in the best interest of the child. The magistrate then repeated the parties’ agreement
in full as it had been presented and found that CSB had made reasonable efforts to finalize a
permanency plan for the child. The magistrate terminated CSB’s protective supervision and
concluded that all outstanding motions had been resolved. Finally, the magistrate asserted that
the case would be closed subject to the continuing jurisdiction of the juvenile court.
{¶9} When the magistrate issued his decision, however, although he reiterated all the
terms of the parties’ agreement, he further ordered the parties to submit a shared parenting
agreement to the court for approval. The juvenile court issued a judgment entry adopting the
magistrate’s decision and mirroring the orders therein the same day. A proposed shared
parenting plan was later filed, but it was not signed by any party or attorney. The magistrate
therefore scheduled a status conference to discuss the proposed plan. In the interim, Mother and
Father each filed different versions of a shared parenting plan for the court’s review and
approval. In addition, Mother filed a motion to set aside the magistrate’s order of December 29,
2017. The record, however, contains no order filed on that date. Nevertheless, at the status
5
hearing, the magistrate noted Mother’s pending “objection” and scheduled a “trial” to resolve the
substantive issue of custody that the magistrate asserted had not been resolved.3
{¶10} In a judgment entry addressing Mother’s purported motion to set aside the
magistrate’s December 29, 2017 order, the juvenile court denied the motion. The juvenile court
found that, despite the agreement placed on the record at the hearing on September 21, 2017, it
was clear that the parties were not in agreement as to “the child’s custodial status.” Accordingly,
the juvenile court rejected all shared parenting plans proposed by the parties and scheduled the
matter “for legal custody trial” before the magistrate.
{¶11} At the hearing, the magistrate informed the parties that “the matter before the
Court today is a motion for legal custody of the child following dispositional order.” Father
presented his case-in-chief first, presenting the testimony of Mother as on cross-examination, the
former CSB caseworker, and the paternal grandmother. Inexplicably, Father did not testify in
support of his own motion for legal custody. In Mother’s case-in-chief, she presented only her
own testimony. Finally, the guardian ad litem testified, recommending that the court grant legal
custody to both Mother and Father, and designate Father as the residential parent for school
purposes. In his report, the guardian further recommended that Mother enjoy companionship
with M.B. pursuant to the juvenile court’s standard order of visitation.
3
CSB filed a motion for clarification, asserting that it was unclear to which order Mother’s
motion to set aside related, given the absence of a December 29, 2017 magistrate’s order. The
agency argued that, if Mother was challenging the September 29, 2017 magistrate’s decision
which recited the terms of the parties’ shared parenting agreement, her objections were untimely.
In addition, CSB requested that it be excused from further participation in the proceedings, as its
protective supervision had been terminated pursuant to the juvenile court’s September 29, 2017
judgment entry adopting the magistrate’s decision of the same date, and the agency had had no
further contact with the family since that time. The magistrate later excused the agency from
further participation in the case.
6
{¶12} During closing arguments, Father and the guardian ad litem emphasized that the
only motions before the court were Father’s and Mother’s individual motions for legal custody,
and that there was no motion for a shared parenting plan pending. Nevertheless, the magistrate
asserted that the only issue he would resolve was the contested issue of custody, and that the
parties must thereafter submit a shared parenting agreement which the court would then
incorporate into its judgment. Despite Father’s assertion that the parties had no agreement,
thereby necessitating the legal custody hearing, the magistrate insisted that the parties did in fact
agree to shared parenting and only disagreed on the issue of custody.
{¶13} The magistrate issued a decision, placing M.B. in the “joint custody” of Mother
and Father, designating Father as the “residential parent[,]” and ordering the parties “to submit
the agreed shared parenting agreement” for the court’s review. Although there was no order
regarding visitation, the magistrate advised the parties to address “Mother’s supervised visitation
schedule” in the agreement. The juvenile court adopted the magistrate’s decision the same day.
Both the decision and judgment included the following language in the orders: “Following
submission [of the agreed shared parenting agreement] the Court will advise the parties if
additional hearings are necessary.” No party filed objections.
{¶14} Instead of filing one executed shared parenting agreement, Mother and Father
each filed a proposed shared parenting plan. Because of the disparities and lack of a fully
executed shared parenting plan, the magistrate ordered the legal representatives of Mother and
Father to appear for mediation and remain at the courthouse until an agreement was reached.
The magistrate dictated the precise language that the agreement must incorporate regarding
placement of the child in the “joint custody” of Mother and Father. Father filed a motion to set
aside the magistrate’s order and appended the affidavit of his attorney who averred that the
7
parties had been unable to work out a shared parenting agreement. Father also filed a motion to
compel the adoption of his proposed shared parenting plan, which would place the child in the
joint custody of Mother and Father, designate Father as the residential parent, give Mother
supervised visitation, and set Mother’s child support obligation at $0.
{¶15} The juvenile court scheduled a hearing before the judge on Father’s motion to set
aside. There is no transcript in the record of a hearing on Father’s motion. In fact, Mother and
Father agree that the juvenile court judge met off the record in chambers with counsel to address
the matter. Afterward, the juvenile court issued a judgment entry arising out of that “motion
hearing” in which the court noted that the magistrate had already placed M.B. in the “Joint Legal
Custody of the parents.” The juvenile court wrote that the only issue on which Mother and
Father had not been able to agree was “the division of time that the child spends with each
parent.” The juvenile court found that Father’s insistence on supervised visitation for Mother
was “in direct conflict with the Magistrate’s [May 4, 2018] Decision granting Joint Custody to
which Father did not object.” Accordingly, the juvenile court ordered that M.B. shall remain in
the legal custody of Mother and Father, with Father designated as the residential parent. The
juvenile court further ordered that “Mother shall have parenting time as set forth in the attached
Standard Order of Visitation.” The judgment entry did not reference the child’s residence for
school purposes or issue a child support order. Father timely appealed, raising two assignments
of error for review. As Father consolidated his assignments of error for discussion, this Court
also does so.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY ARBITRARILY
MODIFYING THE PARTIES’ PRIOR AGREED UPON SUPERVISED
8
VISITATION ORDER AS WELL AS THE SUBSEQUENT SUPERVISED
VISITATION ORDER PREVIOUSLY ISSUED BY THE MAGISTRATE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S JULY 20, 2018 ORDER MODIFYING THE PARTIES’
PRIOR AGREED UPON SUPERVISED VISITATION ORDER AND
SUBSEQUENT SUPERVISED VISITATION ORDERS PREVIOUSLY
ISSUED BY THE MAGISTRATE WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND/OR CONTRARY TO LAW.
{¶16} Father argues that the juvenile court erred by awarding Mother unsupervised
visitation. This Court agrees.
{¶17} As an initial matter, this Court is puzzled by the case management by the
magistrate in the matter below. Substantively, the case was a dependency action. The magistrate
repeatedly conflated the concepts of legal custody where a child has been adjudicated dependent
versus shared parenting as R.C. 3109.04 addresses that custodial mechanism. R.C. 2151.415
requires the children services agency to file a dispositional motion in a dependency action.
Although the magistrate indicated that CSB had filed a motion for legal custody to Father, it
released the agency from further involvement in the case before the matter of the child’s custody
was fully resolved. The magistrate then conducted proceedings more akin to those relevant to a
divorce action.
{¶18} Of greater concern are the magistrate’s continued attempts to impose a shared
parenting agreement upon Mother and Father who repeatedly asserted and otherwise
demonstrated that they were not in agreement regarding the child’s custody. A plain reading of
R.C. 3109.04 indicates that a trial court has no authority to impose a shared parenting agreement
between parties who maintain separate motions for legal custody of their child, and in fact
oppose the imposition of a shared parenting plan. Despite insisting that the parents had an
agreement, the magistrate required Mother and Father to prosecute their individual motions for
9
legal custody, believing that a discrete determination of legal custody is required where the
parents have entered into a shared parenting agreement. R.C. 3109.04 enunciates a default
designation of both parents as residential parents and legal custodians of a child subject to a
shared parenting plan. R.C. 3109.04(L)(5)/(6). Accordingly, it is unclear why the magistrate
believed that a contested legal custody hearing was necessary when he believed that Mother and
Father had an agreement for shared parenting. On the other hand, it is unclear why the
magistrate conducted a hearing on the parents’ individual motions for legal custody, yet failed to
issue a distinct ruling on either motion. Nevertheless, this Court is constrained to review the
assignments of error within the context of the procedural posture as evidenced by the record.
{¶19} As to the substantive issues of Father’s appeal, this Court concludes that the
juvenile court’s award of unsupervised visitation for Mother is against the manifest weight of the
evidence. In considering whether the juvenile court’s judgment is against the manifest weight of
the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-
Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always be mindful of the
presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶20} The juvenile court awarded unsupervised visitation to Mother based, in significant
part, on its finding that “Father is insistent that all of Mother’s contact with the child be
supervised but that is in direct conflict with the Magistrate’s Decision granting Joint Custody to
which Father did not object.” When the magistrate ordered “joint custody,” he did not issue any
visitation order. Instead, the magistrate directed the parties to submit a shared parenting
10
agreement in which the parents were to address “Mother’s supervised visitation schedule.”
(Emphasis added.) Father would have had no reason to object to the magistrate’s decision that
limited Mother’s visitation as he had requested. Because the magistrate was adamant throughout
the proceedings that Mother and Father had reached an agreement, he could only have been
relying on the agreement placed on the record at what was intended to be the final dispositional
hearing. At that hearing, the parties agreed that Mother would have supervised visitation.
Accordingly, the juvenile court’s award of unsupervised visitation for Mother pursuant to the
standard order of visitation is against the manifest weight of the evidence. Father’s assignments
of error are sustained.
III.
{¶21} Father’s assignments of error are sustained. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is reversed and the cause remanded for further
proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
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
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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 Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
KENNETH C. MARTIN, Attorney at Law, for Appellee.
NEIL AGARWAL, Guardian ad Litem.