Huffman v. Eachus

[Cite as Huffman v. Eachus, 2019-Ohio-910.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
JOSEPH HUFFMAN,
PLAINTIFF-APPELLANT, CASE NO. 13-18-32
v.
KAYLA EACHUS, OPINION
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 21470123
Judgment Affirmed
Date of Decision: March 18, 2019
APPEARANCES:
James W. Fruth for Appellant
John M. Kahler, II for Appellee
Case No. 13-18-32
PRESTON, J.
{¶1} Father-appellant, Joseph Huffman (“Huffman”), appeals the September
5, 2018 judgment of the Seneca County Court of Common Pleas, Juvenile Division,
overruling his objections to the magistrate’s June 11, 2018 decision recommending
that his motion to modify custody be denied. For the reasons that follow, we affirm.
{¶2} Huffman and mother-appellee, Kayla Eachus (“Eachus”), have a minor
son, A.E., who was born on June 5, 2014. Huffman and Eachus have never married.
{¶3} On February 13, 2015, the magistrate issued a decision recommending
that Eachus be designated as A.E.’s residential parent and legal custodian and that
Huffman be afforded visitation with A.E. as agreed on by Huffman and Eachus or,
if they could not reach an agreement, in accordance with Seneca County Juvenile
Court Rule 8. (Doc. No. 22). That same day, the trial court approved and adopted
the magistrate’s recommendation. (Doc. No. 23).
{¶4} On January 19, 2018, Huffman filed a motion for reallocation of
parental rights and responsibilities and a motion for emergency custody of A.E.
(Doc. No. 28). In support of his motions, Huffman alleged that Eachus had “been
indicted on felonies of the first and second degree * * * and * * * incarcerated at the
Seneca County Jail.” (Id.); (Doc. No. 28, Ex. 1). That same day, the magistrate
granted Huffman’s motion for emergency custody and awarded temporary custody
of A.E. to Huffman. (Doc. No. 32). On January 24, 2018, a hearing was held to
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review the magistrate’s January 19, 2018 emergency custody order. (Doc. No. 36).
That same day, the magistrate vacated the January 19, 2018 emergency order and
awarded temporary custody of A.E. to Huffman. (Id.). In addition, the magistrate
ordered that Eachus be allowed visitation with A.E. as agreed upon by Huffman and
Eachus or, if the parties could not agree on a visitation schedule, at least once per
week under supervision at Patchworks House in Tiffin, Ohio. (Id.). On January 26,
2018, the magistrate issued a nunc pro tunc order correcting a typographical error
in the January 24, 2018 order. (Doc. No. 39).
{¶5} On April 10, 2018, Eachus filed a motion to modify temporary orders
requesting that she be awarded parenting time with A.E. in accordance with Seneca
County Juvenile Court Rule 8. (Doc. No. 48). In support of her motion, she noted
that the criminal charges against her had been dismissed, that she had been released
from the Seneca County Jail, and that she and Huffman could not agree on parenting
time. (Id.); (Doc. No. 48, Ex. A). That same day, Eachus filed a motion for shared
parenting along with a proposed shared-parenting plan. (Doc. No. 49). On April
11, 2018, Huffman filed a memorandum in opposition to Eachus’s motion to modify
temporary orders. (Doc. No. 51). On April 12, 2018, the magistrate denied
Eachus’s motion to modify temporary orders. (Doc. No. 52).
{¶6} On April 11, 2018, Huffman filed a motion requesting that the trial court
appoint a guardian ad litem (“GAL”) for A.E. (Doc. No. 50). On April 13, 2018,
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the magistrate granted Huffman’s motion to appoint a GAL for A.E. (Doc. No. 53).
On April 16, 2018, the trial court appointed a GAL for A.E. (Doc. No. 54). The
GAL filed her reports on June 1 and 4, 2018. (Doc. Nos. 57, 58).
{¶7} A hearing on Huffman’s motion for reallocation of parental rights and
responsibilities and Eachus’s motion for shared parenting was held on June 7, 2018.
(See Doc. No. 59); (See June 7, 2018 Tr. at 1). On June 11, 2018, the magistrate
issued a decision recommending that Huffman’s motion for reallocation of parental
rights and responsibilities and Eachus’s motion for shared parenting be denied, that
the January 24, 2018 temporary orders be vacated, and that the trial court’s February
13, 2015 order designating Eachus as A.E.’s residential parent and legal custodian
and awarding visitation to Huffman be reinstated. (Doc. No. 59).
{¶8} On June 12, 2018, Huffman filed objections to the magistrate’s June 11,
2018 decision. (Doc. No. 61). On August 9, 2018, Huffman filed a supplemental
brief in support of his objections to the magistrate’s June 11, 2018 decision. (Doc.
No. 66). On August 21, 2018, Eachus filed a brief in opposition to Huffman’s
objections to the magistrate’s June 11, 2018 decision. (Doc. No. 67).
{¶9} On September 5, 2018, the trial court overruled Huffman’s objections
to the magistrate’s June 11, 2018 decision. (Doc. No. 68). Thus, the trial court
denied Huffman’s motion for reallocation of parental rights and responsibilities and
Eachus’s motion for shared parenting, vacated the January 24, 2018 temporary
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orders, and reinstated the February 13, 2015 order designating Eachus as A.E.’s
residential parent and legal custodian and awarding visitation to Huffman. (Id.).
{¶10} Huffman filed a notice of appeal on September 14, 2018. (Doc. No.
69). He raises one assignment of error.
Assignment of Error
The Seneca County Juvenile Court erred in overruling
Appellant/Father’s objection to the magistrate’s decision when
the magistrate’s decision was unsupported by facts in the record,
the decision was unsupported by law, and constituted an abuse of
discretion.
{¶11} In his assignment of error, Huffman argues that the trial court abused
its discretion by denying his motion for reallocation of parental rights and
responsibilities. Specifically, Huffman argues that the record does not support the
trial court’s findings that he failed to facilitate visitation with A.E.’s maternal
grandparents and that Eachus did not act in a manner that resulted in a child being
an abused or neglected child. (Appellant’s Brief at 13-17). In addition, he argues
that the trial court improperly considered his second-shift work schedule as a factor
that weighs against designating him as A.E.’s residential parent. (Id. at 18).
{¶12} “‘Decisions concerning child custody matters rest within the sound
discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-
Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-
Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-
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Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an
award of custody is supported by a substantial amount of credible and competent
evidence, such an award will not be reversed as being against the weight of the
evidence by a reviewing court.”’” Id., quoting Walker at ¶ 46, quoting Barto v.
Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol,
49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion must be
found in order to reverse the trial court’s award of child custody.’” Id., quoting
Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85
(1994). “‘An abuse of discretion suggests the trial court’s decision is unreasonable
or unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-
43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶13} Because this case concerns the trial court’s decision whether to modify
an existing custody decree, the trial court’s decision-making process was controlled
by R.C. 3109.04(E). R.C. 3109.04(E) provides:
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
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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:
(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.
(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.
(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.
R.C. 3109.04(E)(1)(a)(i)-(iii). R.C. 3109.04(E) “‘creates a strong presumption in
favor of retaining the residential parent designation * * *.’” Polhamus v. Robinson,
3d Dist. Logan No. 8-16-11, 2017-Ohio-39, ¶ 27, quoting Rohrbach v. Rohrbach,
3d Dist. Seneca No. 13-15-14, 2015-Ohio-4728, ¶ 15, citing In re Brayden James,
113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 14. The statute
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precludes a trial court from modifying a prior parental rights and
responsibilities decree unless the court finds all of the following: (1)
a change occurred in the circumstances of the child, the child’s
residential parent, or a parent subject to a shared-parenting decree[;]
(2) the change in circumstances is based upon facts that arose since
the court entered the prior decree or that were unknown to the court at
the time of the prior decree; (3) the child’s best interest necessitates
modifying the prior custody decree; and (4) one of the circumstances
specified in R.C. 3109.04(E)(1)(a)(i)-(iii) applies.
Rohrbach at ¶ 15, citing In re Brayden James at ¶ 14.
{¶14} Here, the trial court agreed with the magistrate’s conclusion that a
change in circumstances had occurred since the initial custody determination due to
“neglect of [A.E.’s] ongoing dental care; [Eachus’s] use of marijuana in 2017; and
[Eachus’s] involvement in criminal activities that have caused her to be arrested and
serve 77 days in jail.” (Doc. Nos. 59, 68). Neither Huffman nor Eachus contest the
trial court’s conclusion that a change in circumstances had occurred since the initial
custody determination. In addition, because the trial court concluded that a
modification of Huffman’s and Eachus’s parental rights and responsibilities is not
in A.E.’s best interest, the trial court did not determine whether any of the
circumstances in R.C. 3109.04(E)(1)(a)(i)-(iii) apply. Thus, the sole issue on appeal
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is whether the trial court abused its discretion by adopting the magistrate’s
recommendation and concluding that the modification requested by Huffman is not
in A.E.’s best interest.
{¶15} The factors that a trial court must consider when determining whether
a modification is in a child’s best interest are listed in R.C. 3109.04(F)(1), which
provides:
In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns
as to the allocation of parental rights and responsibilities concerning
the child, the wishes and concerns of the child, as expressed to the
court;
(c) 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;
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(d) The child’s adjustment to the child’s home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case in
which a child has been adjudicated an abused child or a neglected
child, previously has been determined to be the perpetrator of the
abusive or neglectful act that is the basis of an adjudication; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to a violation
of section 2919.25 of the Revised Code or a sexually oriented offense
involving a victim who at the time of the commission of the offense
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was a member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to any offense involving a victim who at the time of the
commission of the offense was a member of the family or household
that is the subject of the current proceeding and caused physical harm
to the victim in the commission of the offense; and whether there is
reason to believe that either parent has acted in a manner resulting in
a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the
other parent’s right to parenting time in accordance with an order of
the court;
(j) Whether either parent has established a residence, or is planning
to establish a residence, outside this state.
R.C. 3109.04(F)(1)(a)-(j).
{¶16} “The trial court ‘has discretion in determining which factors are
relevant,’ and ‘each factor may not necessarily carry the same weight or have the
same relevance, depending upon the facts before the trial court.’” Krill, 2014-Ohio-
2577, at ¶ 29, quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-
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Ohio-2843, ¶ 41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-
Ohio-2310, ¶ 51. “Although the trial court must consider all relevant factors, there
is no requirement that the trial court set out an analysis for each of the factors in its
judgment entry, so long as the judgment entry is supported by some competent,
credible evidence.” Id., citing Meachem, 2011-Ohio-519, at ¶ 30, citing Portentoso
v. Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22.
{¶17} In objecting to the magistrate’s recommendation, Huffman argued that
only the magistrate’s R.C. 3109.04(F)(1)(d), (f), and (h) best-interest findings are
not supported by the evidence; he did not take issue with the balance of the
magistrate’s R.C. 3109.04(F)(1) best-interest findings. (See Doc. No. 66). Huffman
further argued that the magistrate’s recommendation that Eachus remain as A.E.’s
residential parent is faulty because the magistrate gave too much weight to
Huffman’s work schedule and supposed reluctance to facilitate visitation with
Eachus and her family and too little weight to concerns about child abuse and
neglect stemming from Eachus’s admitted drug use, her alleged involvement in
criminal activity, and her responsibility for A.E.’s poor dental hygiene. (See id.).
In addition, Huffman objected to the magistrate’s recommendation on the basis that
the magistrate erred by not following the GAL’s suggestion that Huffman be named
as A.E.’s residential parent. (Id.). Thus, in this appeal, we limit our analysis to
determining whether the trial court’s R.C. 3109.04(F)(1)(d), (f), and (h) findings are
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supported by competent, credible evidence, whether the trial court abused its
discretion in weighing the R.C. 3109.04(F)(1) factors, and whether the trial court
abused its discretion by not following the GAL’s recommendation that Huffman be
designated as A.E.’s residential parent.
{¶18} With respect to R.C. 3109.04(F)(1)(d), the magistrate noted that “[t]he
Court is concerned that with [Huffman], [A.E.] would be in school during the day,
and then in the care of others during his work schedule of 2-10; while [Eachus]
would be available to the child in the evenings, after school.” (Doc. No. 59). In
turn, the trial court observed that “ORC 3109.04(F)(1)(d) * * * make[s] the parents
[sic] available time relevant” and found that the magistrate’s concerns about
Huffman’s work schedule were “only one of the factors considered by the
Magistrate.” (Doc. No. 68).
{¶19} The trial court’s findings as to R.C. 3109.04(F)(1)(d) are supported by
the record. Huffman testified that he typically works from 2:00 p.m. until 10:00
p.m. Monday through Friday, that he occasionally works overtime on the weekends,
and that he never travels for work. (June 7, 2018 Tr. at 31). He stated that while he
cannot predict when he will be required to work overtime, he is rarely required to
do so. (See id. at 35, 42). He estimated that he had been required to work overtime
only three times in the three months preceding the date of the hearing. (Id. at 35).
Huffman testified that he has worked this schedule for two to three years and that
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he does not expect his schedule to change. (Id. at 45). He stated that A.E. stays
with A.E.’s grandparents, A.E.’s great-grandparents, or A.E.’s stepmother
whenever he has to work. (Id. at 34-35). Ultimately, Huffman conceded that once
A.E. is in preschool, A.E. would often be in the care of a nonparent during his
parenting time when he has to work his regular work schedule or overtime. (Id. at
45-46).
{¶20} On the other hand, Eachus testified that she typically works from 7:00
a.m. until 3:20 p.m. Monday through Friday. (Id. at 60). She testified that she
irregularly works overtime from 3:00 a.m. until 3:20 p.m. on some weekdays but
that she does not work weekends and that she would generally be home in the
afternoon and evening to take care of A.E. after he gets home from preschool. (Id.
at 60-61). She stated that her mother, Michelle Eachus (“Michelle”), would be able
to take care of A.E. for the “hour or so gap” between the time she leaves work and
the time she returns home. (Id. at 61).
{¶21} Huffman argues that the trial court’s concerns about his work schedule
“sends a chilling message to working parents” that a parent who commits any
number of misdeeds is to be preferred over “a responsible parent [who] works
second shift.” (Appellant’s Brief at 17). We disagree. Contrary to Huffman’s
assertion, the trial court’s belief that Eachus’s work schedule better serves A.E.’s
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best interest simply reflects its reasoned judgment that it is generally better for a
child to spend time with a parent instead of a nonparent.
{¶22} With regard to R.C. 3109.04(F)(1)(f), the trial court observed that “the
record supports a finding that [Huffman] has shown a failure to facilitate visitation.”
(Doc. No. 68). The trial court found that “[t]he fact that [Huffman] unilaterally
chose to restrict access to [A.E.] after [Eachus’s] release from jail is country [sic] to
[A.E.’s] best interest.” (Id.).
{¶23} We conclude that a substantial amount of competent, credible
evidence supports the trial court’s R.C. 3109.04(F)(1)(f) best-interest findings.
Regarding A.E.’s visitation with his maternal grandparents, Eachus testified that
while she was in jail, Michelle “would get [A.E.] every other weekend until [she]
got out, and then [Huffman] no longer let [her] parents have him every other
weekend.” (June 7, 2018 Tr. at 54-55). She also testified that her parents “were
supposed to see [A.E.] the weekend after Easter, but they [were not] allowed to see
him unless they [went] to Patchworks House.” (Id. at 63). Huffman disputed
elements of Eachus’s account of A.E.’s visitation with his maternal grandparents,
testifying that he had “text messages and phone calls, proof where [he] texted
[Michelle] every weekend [Eachus] was locked up, asking them to take [A.E.] if
they wanted him. And they ignored [him] or they did not want [A.E.]” (Id. at 84-
85). He testified that A.E.’s maternal grandparents “took [A.E.] two weekends out
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of the whole time” and that he offered A.E.’s maternal grandparents visitation with
A.E. during what would have been Eachus’s weekends of visitation but “they didn’t
want [A.E.]” (Id. at 85). Huffman further stated that after Eachus got out of jail,
A.E.’s maternal grandparents requested time with A.E. and he “told them
Patchworks had been advised by my lawyer.” (Id.). Although Huffman’s testimony
is unclear, he appears to have testified that A.E.’s maternal grandparents did not
request visitation with A.E. after Eachus got out of jail but that he took the initiative
to tell A.E.’s maternal grandparents that they could only visit with A.E. through
Patchworks House. (See id. at 85-88). Michelle testified that she received
unsupervised visits with A.E. while Eachus was in jail and that she never declined
an opportunity to visit with A.E. (Id. at 91-92). However, she stated that once
Huffman believed that Eachus was released from jail, she was not allowed to see
A.E. (Id. at 90). Michelle testified that once Eachus was released from jail, she
texted Huffman on three or four occasions asking to visit with A.E. but Huffman
largely ignored her. (Id. at 91). She stated that when Huffman finally responded to
her inquiries, his only response was “Patchworks.” (Id. at 91-92).
{¶24} Thus, the evidence establishes Huffman’s difficulties in facilitating
visitation between A.E. and his maternal grandparents following Eachus’s release
from jail. However, Huffman contends that his unwillingness to facilitate visitation
with A.E.’s maternal grandparents after Eachus was released from jail is irrelevant
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to A.E.’s best interest because “[t]here was never a Court Order granting any
grandparent visitation with [A.E.]” and “[t]here was never a motion filed by either
party seeking an Order granting a grandparent visitation.” (Appellant’s Brief at 13).
We disagree. Huffman correctly notes that the trial court never issued an order
granting A.E.’s maternal grandparents visitation or companionship rights with A.E.
As a result, it is unclear whether the trial court should have treated A.E.’s visitation
with his maternal grandparents under R.C. 3109.04(F)(1)(f). However, “[a] trial
court is not limited to the listed factors in R.C. 3109.04(F), but may consider any
other relevant factors in making a determination of child custody.” Brammer, 2013-
Ohio-2843, at ¶ 41, citing Shaffer v. Shaffer, 3d Dist. Paulding No. 11-04-22, 2005-
Ohio-3884, ¶ 20. Accordingly, the trial court was empowered to consider the extent
to which Huffman voluntarily permitted A.E. to visit with his maternal grandparents
and family as a factor relevant to A.E.’s best interest.
{¶25} The record reflects that A.E. knows his maternal family well and that
he has close, loving relationships with Michelle and other members of Eachus’s
family. (See, e.g., June 7, 2018 Tr. at 53-55, 90). The record also reflects that
Huffman permitted Eachus’s family to have unsupervised visits with A.E. while
Eachus was in jail, and there is no evidence in the record suggesting that these visits
were in any way inappropriate or harmful to A.E. Nevertheless, the record
establishes that Huffman suddenly and unilaterally denied Eachus’s family access
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to A.E. once Eachus was released. Although Huffman testified that Eachus’s family
was not interested in visiting with A.E. while Eachus was in jail and that he did not
deny them access to A.E. after Eachus was released, the magistrate expressly found
Huffman’s testimony not to be credible. (Doc. No. 59). “‘[C]redibility, especially
in child custody matters, is a matter reserved for the trier of fact and we will not
second-guess credibility determinations.’” Brammer at ¶ 52, quoting Sellers v.
Sellers, 4th Dist. Washington No. 09CA45, 2010-Ohio-3712, ¶ 17. Accordingly,
the trial court did not err by considering the extent to which Huffman voluntarily
facilitated visitation with A.E.’s maternal grandparents as a factor relevant to A.E.’s
best interest, and the record supports the trial court’s concerns that Huffman did not
act in A.E.’s best interest by abruptly terminating visitation with A.E.’s maternal
grandparents without any stated cause.
{¶26} As to R.C. 3109.04(F)(1)(h), the trial court found that there was “no
credible evidence in the record to support the claim that ‘[Eachus] abused her
unborn child,’” and that there was “no relevant or credible evidence pertaining to
the allegations of past domestic violence and physical harm to [A.E.]” (Doc. No.
68). Furthermore, the trial court found that the record supports that A.E.’s poor
dental hygiene required surgical intervention, but that both Huffman and Eachus
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shared “responsibility for instilling proper hygiene on their child.”1 (Id.). In
addition, the trial court found that there was no evidence that Eachus “neglected
proper care as she had scheduled an appointment prior to her arrest and
incarceration.” (Id.). The trial court also found that “[t]he fact that [A.E.] suffered
a skull fracture at 13 months was * * * significant” but “no charges were filed, and
no credible evidence was submitted to support a conclusion that the injury was the
fault of either parent.” (Id.). Finally, the trial court found that Eachus’s “use of
drugs was a concern; however, there was no evidence in the record to rebut her
testimony that she is now clean and sober.”2 (Id.).
{¶27} The trial court’s R.C. 3109.04(F)(1)(h) best-interest findings are
supported by competent, credible evidence. First, regarding A.E.’s dental hygiene,
the GAL testified that in March 2018, A.E. “had to have five teeth pulled, seven
crowns, and two root canals.” (June 7, 2018 Tr. at 12). The GAL opined that both
Huffman and Eachus “need to make sure [A.E. is] brushing his teeth twice a day
and regular dental care.” (Id. at 13). In an effort to explain the state of A.E.’s teeth,
Eachus testified that although A.E. regularly brushed his teeth in the morning and
1
In his recommendation, the magistrate found under R.C. 3109.04(F)(1)(e)—the mental and physical health
of all persons involved in the situation—that A.E. “suffered from improper dental care resulting in recent
surgery.” (Doc. No. 59). Huffman did not argue that this finding is unsupported by evidence in the record.
(See Doc. No. 66). Rather, Huffman argued that the magistrate should have considered A.E.’s poor dental
health under R.C. 3109.04(F)(1)(h) as an indication that Eachus caused A.E. to be a neglected child. (See
id.). Thus, the trial court addressed A.E.’s dental hygiene under R.C. 3109.04(F)(1)(h). (Doc. No. 68).
2
As with the issue of A.E.’s dental health, the trial court evaluated A.E.’s skull fracture and Eachus’s drug
use under R.C. 3109.04(F)(1)(h) instead of addressing them under R.C. 3109.04(F)(1)(e) as the magistrate
did. (See Doc. Nos. 59, 68).
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at night before he went to bed, “he was really stubborn about [her] not helping him,”
and she suggested that A.E. might not have been brushing his teeth thoroughly. (Id.
at 68). She testified that she did not know whether A.E. “had regular dental hygiene
at [Huffman’s] house.” (Id.). Eachus stated that she first took A.E. to the dentist
after she and Huffman grew concerned over apparent decay in A.E.’s front two
teeth. (Id.). She testified that Huffman urged her to take A.E. to a follow-up
appointment where “the dentist discovered that there was almost a cavity on every
tooth.” (Id.). However, only A.E.’s baby teeth were affected as none of A.E.’s adult
teeth have come in. (Id. at 68-69). Eachus explained that she did not take A.E. to
the dentist prior to these appointments because A.E.’s “pediatrician told [her] [A.E.]
didn’t need to see a dentist until about three or four once all his teeth came in. So
[she] went with the recommendation.” (Id. at 69). She testified that upon
discovering the extent of A.E.’s tooth decay, she scheduled an appointment for
surgery before she was arrested. (Id. at 67-68). Huffman testified that although he
did not initially know of the scheduled surgery, he was ultimately responsible for
“get[ting] it set up” once Eachus was arrested and jailed. (Id. at 36). Finally, Eachus
stated that, based on this experience with A.E.’s teeth, she intends to be more careful
and observant with all of her children’s teeth and that she already scheduled a dentist
appointment for her two-year-old daughter. (Id. at 69).
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{¶28} With respect to A.E.’s head injury, the GAL testified that A.E.
suffered a skull fracture when he was 13 months old. (Id. at 12). However, the
GAL noted that no criminal charges were filed and that it might have been the result
of an accident. (Id. at 12-13). Eachus testified that she discovered A.E.’s hairline
skull fracture after A.E. completed a three-hour visit with Huffman but that she did
not know how A.E. sustained the injury. (Id. at 63-64). She stated that she took
A.E. to the hospital approximately one hour after picking A.E. up from visitation
with Huffman. (Id. at 64). As for Huffman, he denied that A.E.’s skull fracture was
discovered immediately following his visitation with A.E. (Id. at 46).
{¶29} Concerning Eachus’s present drug use, Eachus testified that she does
not currently have any issues with drugs or alcohol. (Id. at 74). She acknowledged
that she used to smoke marijuana but stated that she has been “clean and sober”
since November 2017. (Id. at 74, 80). No evidence was offered to rebut Eachus’s
claims that she stopped ingesting marijuana and that she does not have problems
with alcohol.
{¶30} Thus, the record supports the trial court’s determination that A.E.’s
cracked skull, Eachus’s substance use, and A.E.’s poor dental hygiene do not
support a conclusion that either Huffman or Eachus caused A.E. to be an abused or
neglected child. First, the record reflects that the cause of A.E.’s skull fracture was
never determined and that no criminal charges were filed. Even if the trial court
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believed Eachus’s testimony that she discovered the fracture after A.E. visited with
Huffman, Eachus did not actually assign blame for the injury to Huffman.
Furthermore, because Eachus’s testimony that she is not currently abusing drugs or
alcohol went unchallenged, there is no basis to conclude that she is, at present,
putting A.E. at risk by exposing him to any substance abuse. Finally, while A.E.’s
dental hygiene is certainly concerning, the record reflects that Eachus was aware of
the problem and that she made an effort to provide A.E. with proper dental care. In
fact, the record reflects that Eachus was following A.E.’s pediatrician’s advice by
not taking A.E. to the dentist until he was older.
{¶31} Yet, Eachus’s marijuana use during her pregnancy with one of A.E.’s
half-siblings presents a closer question of whether the trial court should have found
reason to believe that Eachus “has acted in a manner resulting in a child being an
abused child * * *.” R.C. 3109.04(F)(1)(h). Eachus testified that she stopped
ingesting marijuana in November 2017 and “only used [marijuana] for about six to
seven months before [she] stopped. So around February or March of 2017.” (June
7, 2018 Tr. at 80). She acknowledged that she was pregnant with one of A.E.’s half-
siblings during this period. (Id. at 80-81). Although she testified that she did not
use any drugs other than marijuana, she did not know whether the marijuana she
consumed had been laced with other substances. (Id. at 80-81). Huffman insists
that Eachus’s testimony is “absolute, credible evidence that [Eachus] abused her
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unborn child” and that “[c]onsuming marijuana while pregnant is child abuse.”
(Appellant’s Brief at 15).
{¶32} Although Eachus’s admitted use of marijuana during her pregnancy is,
without question, alarming, we disagree with Huffman’s argument that the trial
court erred by finding insufficient evidence in the record that Eachus acted in a
manner that resulted in a child being an abused child. Under R.C. 2151.031(D), an
abused child includes any child who “[b]ecause of the acts of his parents * * *,
suffers physical or mental injury that harms or threatens to harm the child’s health
or welfare.” “When a newborn child’s toxicology screen yields a positive result for
an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of
R.C. 2151.031(D), per se an abused child.” In re Baby Boy Blackshear, 90 Ohio
St.3d 197 (2000), paragraph one of the syllabus. However, when a newborn child’s
toxicology screen does not yield a positive result for an illegal substance, that child
is not per se an abused child under R.C. 2151.031(D) even if the child’s mother
admitted to using an illegal substance during pregnancy or if the mother tested
positive for an illegal substance just weeks before the child’s birth. See In re E.M.,
6th Dist. Lucas No. L-14-1220, 2015-Ohio-1392, ¶ 12 (holding that a child who did
not test positive for heroin upon birth was not per se an abused child under R.C.
2151.031(D) even though her mother admitted using heroin during the pregnancy
and tested positive for heroin approximately five weeks before the child’s birth).
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Although a negative toxicology screen does not give rise to the Blackshear per se
rule, a child whose mother ingested illegal substances during her pregnancy may
still be found to be an abused child under R.C. 2151.031(D) if clear and convincing
evidence is produced showing that the newborn child’s health or welfare was
actually harmed or threatened with harm due to prenatal maternal drug abuse. See
id. Evidence sufficient to show that the newborn child’s health or welfare was
harmed or threatened with harm may include, for example, evidence documenting
that the child experienced symptoms of drug withdrawal at the time of its birth. See
id.{¶33} Here, the only evidence regarding prenatal maternal drug abuse and
its effects on A.E.’s younger half-sibling is Eachus’s testimony that she ingested
marijuana while pregnant. The record does not contain the results of any toxicology
screen conducted on A.E.’s half-sibling at the time of his birth, and there is no
evidence regarding A.E.’s half-sibling’s physical and mental health at the time of
his birth. Therefore, the record contains insufficient evidence to find that A.E.’s
half-sibling’s health or welfare was harmed or threatened with harm as a
consequence of Eachus’s prenatal marijuana use. In other words, the record does
not establish that Eachus’s conduct resulted in A.E.’s half-sibling being an abused
child as defined by R.C. 2151.031(D).
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{¶34} Similarly, the record fails to establish that Eachus acted in a manner
that resulted in A.E.’s half-sibling being an abused child as defined under either
R.C. 2151.031(B) or (C). Under R.C. 2151.031(B), an abused child includes any
child who “[i]s endangered as defined in section 2919.22 of the Revised Code,
except that the court need not find that any person has been convicted under that
section in order to find that the child is an abused child.” Under the facts of this
case, Eachus’s prenatal drug abuse could have arguably exposed her to criminal
liability under R.C. 2919.22(A), which provides: “No person, who is the parent * *
* of a child under eighteen years of age * * * shall create a substantial risk to the
health or safety of the child, by violating a duty of care, protection, or support.”
However, “[a] parent may not be prosecuted for child endangerment under R.C.
2919.22(A) for substance abuse occurring before the birth of the child.” State v.
Gray, 62 Ohio St.3d 514 (1992), paragraph one of the syllabus. Furthermore, R.C.
2151.031(C) provides that an abused child includes any child who “[e]xhibits
evidence of any physical or mental injury or death, inflicted other than by accidental
means, or an injury or death which is at variance with the history given of it.” As
discussed in the preceding paragraph, the record contains no evidence suggesting
that A.E.’s half-sibling exhibited signs of having sustained actual mental or physical
harm because of Eachus’s prenatal marijuana use. Thus, the record does not show
that Eachus’s conduct resulted in A.E.’s half-sibling being an abused child as
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defined by R.C. 2151.031(B) or (C). Consequently, the trial court did not err by
finding that no credible evidence in the record supports Huffman’s claim that
Eachus acted in a manner that resulted in her unborn child being an abused child.
{¶35} In light of the foregoing, we conclude that the trial court’s R.C.
3109.04(F)(1)(d), (f), and (h) findings are supported by competent, credible
evidence. When considering the trial court’s R.C. 3109.04(F)(1)(d), (f), and (h)
findings along with its other R.C. 3109.04(F)(1) best-interest findings, which
Huffman does not contest, it cannot be said that the trial court abused its discretion
by denying Huffman’s request to modify the existing custody decree to designate
him as A.E.’s residential parent. The record establishes that A.E. has lived
constantly with Eachus and his half-siblings since his birth, that he shares an
incredibly close bond with his half-siblings, and that he is extremely attached to his
maternal grandmother. (June 7, 2018 Tr. at 51-54, 59, 66-67, 77-78). See R.C.
3109.04(F)(1)(c). There is limited evidence of A.E.’s attachment to and
relationships with members of Huffman’s side of the family. Moreover, the
evidence shows that A.E. will be living in a home with which he is very familiar
with Eachus and his half-siblings and that he will have his own bedroom and bed.
(June 7, 2018 Tr. at 51-54, 56-58). See R.C. 3109.04(F)(1)(d). In addition, Eachus
and A.E. are generally in good health. (June 7, 2018 Tr. at 16, 38). See R.C.
3109.04(F)(1)(e). Altogether, the trial court’s decision to deny Huffman’s motion
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and keep Eachus as A.E.’s residential parent is not arbitrary, unreasonable, or
unconscionable.
{¶36} Finally, our conclusion is not affected by the fact that the trial court
denied Huffman’s motion despite the GAL’s recommendation that Huffman be
designated as A.E.’s residential parent. “‘“[A] trial court is not bound to follow a
guardian ad litem’s recommendation.”’” Merriman v. Merriman, 3d Dist. Paulding
No. 11-15-10, 2016-Ohio-3385, ¶ 19, quoting Bomberger-Cronin v. Cronin, 2d
Dist. Greene No. 2014-CA-4, 2014-Ohio-2302, ¶ 27, quoting Lumley v. Lumley,
10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, ¶ 46. “‘“The function of a
guardian ad litem is to consider the best interests of a child and to make a
recommendation to the court, but the ultimate decision in any proceeding is for the
judge, and the trial court does not err in making an order contrary to the
recommendation of the guardian ad litem.”’” Id. at ¶ 19, quoting Koller v. Koller,
2d Dist. Montgomery No. 22328, 2008-Ohio-758, ¶ 24, quoting In re D.W., 2d Dist.
Montgomery No. 21630, 2007-Ohio-431, ¶ 24. Here, it is clear that the trial court
considered the GAL’s recommendation in ruling on Huffman’s motion. (See Doc.
No. 68). That the trial court weighed the factors relevant to A.E.’s best interest
differently than the GAL and reached a conclusion contrary to the GAL’s
recommendation does not result in an abuse of discretion on the part of the trial
court.
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{¶37} Huffman’s assignment of error is overruled.
{¶38} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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