In re A.C.
| Decision Date | 17 July 2019 |
| Docket Number | APPEAL NO. C-180088 |
| Citation | 2019 Ohio 2891 |
| Parties | IN RE: A.C. |
| Court | Ohio Court of Appeals |
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed and Cause Remanded
Charles H. Bartlett, Jr., for Appellant-Father,
Kya Cannon, pro se Appellee-Mother.
{¶1} Appellant father appeals the January 19, 2018 judgment of the Hamilton County Juvenile Court. The juvenile court overruled father's objections to the July 12, 2017 magistrate's decision, which designated appellee mother the residential parent and legal custodian of the parties' minor child, A.C. For the reasons that follow, we affirm the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
{¶2} Mother and father are the biological parents of one minor child, A.C., born on March 24, 2011. On September 16, 2011, father filed a petition for legal custody of A.C. The petition was dismissed on May 30, 2012, because father did not appear in court to move the petition forward. On July 12, 2012, father again filed for legal custody. On April 19, 2013, shared parenting was granted by agreement of father and mother, pursuant to R.C. 3109.04. Both parents were designated residential parents and legal custodians, were required to agree on school placement of A.C. prior to enrollment, and would exercise equal parenting time.
{¶3} On July 22, 2014, father filed a motion to terminate shared parenting, requesting full legal custody of A.C. On August 5, 2015, father and mother agreed to a revised shared-parenting plan, which the trial court approved and incorporated into an agreed entry. On January 11, 2016, mother filed a motion to terminate shared parenting, requesting full legal custody of A.C with modified parenting time for father. Mother also filed a contempt motion against father. On March 3, 2017, while mother's motion was still pending, father filed a contempt motion against mother.
{¶4} A hearing on all pending motions was held on March 30 and June 5, 2017. Both father and mother testified, and presented their own witnesses. Both father and mother admitted that their communication is poor and they can only communicate through Our Family Wizard, a website to help parents manage child-custody schedules.
{¶5} Mother testified that father was late getting A.C. to school on several occasions. Mother submitted A.C.'s 2015-2016 report card, which showed that A.C. had five tardy arrivals in the first quarter, one in the second and third quarters, and three in the fourth quarter. Father testified that he was late getting A.C. to school on three occasions. He explained that when he dropped A.C. off at school, mother would be at the school dropping off her other child and would talk to A.C., making her late.
{¶6} Mother testified that father put A.C. into two different after-school care programs without telling mother in advance, and that A.C., who was five years old at the time, had to take a bus to one of the facilities. Father testified that he did not know why A.C. was in one of the after-school care programs—the program run by the Salvation Army—but he did not think that he enrolled her. Father's testimony on this issue differed from his answer in mother's request for admission, wherein he stated that mother had been informed about the Salvation Army program by father and through the school.
{¶7} Mother testified to issues with child exchanges. On October 26, 2015, mother had arranged for A.C.'s grandmother to pick up A.C. from father, but father refused to turn A.C. over to her. Mother claimed that there were times when father could not pick up A.C. from preschool and mother had to make arrangements to get her. Father testified that there were eight to ten times where mother had failed to exchange A.C. when it was his parenting time. Father claimed that mother was late to exchanges about onceper week. Father also claimed that one time mother did not pick up A.C. from her daycare and A.C. was there until 10:30 p.m.
{¶8} Father testified to A.C.'s behavioral problems at school. At a parent/teacher conference regarding A.C.'s behavior, the school staff recommended that A.C. see a counselor. The revised shared-parenting plan required mother and father to make decisions on healthcare, including counseling, together. Father testified that he told mother he was taking A.C. to counseling, but mother refuted this claim. Father took A.C. to the counselor recommended by the school for about a year. She attended counseling at least once a week, but sometimes up to three times per week. Father said he saw improvements in A.C.'s behavior. When A.C. stopped attending counseling, her behavior worsened, and the school again recommended that A.C. see a counselor. Mother took A.C. to a separate counselor for treatment. Mother admitted that she did not tell father about the separate counseling.
{¶9} Father testified that mother refused to give him A.C.'s medical insurance cards. The revised shared-parenting plan required mother to provide father with a copy of the health and dental insurance cards. Father admitted that all of the health insurance information was posted on Our Family Wizard. When questioned, father did not know the name of A.C.'s doctor or dentist. Father insisted that mother hid this information from him.
{¶10} Following the two separate days of hearings, the magistrate issued a decision that set forth various findings of fact and conclusions of law. The magistrate determined, pursuant to R.C. 3109.04(F)(2), that it was in A.C.'s best interest to terminate shared parenting; and, pursuant to R.C. 3109.04(F)(1), that it was in A.C.'s best interest for mother to be designated her residential parent and legal custodian. The magistratedismissed mother's and father's motions for contempt, finding that both parents violated the court-ordered revised shared-parenting plan. The magistrate also entered a schedule for father's parenting time.
{¶11} Father filed objections to the magistrate's decision and moved to set aside the order, claiming it was against the manifest weight of the evidence and contrary to law. Following a hearing, the trial court overruled father's objections and adopted the magistrate's decision as the judgment of the court. Father now appeals, raising two assignments of error.
{¶12} Decisions concerning child-custody matters rest within the sound discretion of the trial court. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). The judge, acting as the trier of fact, is in the best position to observe the witnesses, weigh evidence and evaluate testimony. In re Brown, 98 Ohio App.3d 337, 648 N.E.2d 576 (3d Dist.1994). Therefore, we must not substitute our judgment for that of the trial court absent an abuse of discretion. Miller at 74; Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We will not reverse a trial court's judgment that is supported by competent, credible evidence. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990).
{¶13} In his first assignment of error, father argues that the trial court erred in two respects in adopting the magistrate's decision to grant mother's motion to terminate the revised shared-parenting plan. First, father contends that where parents enter into a court-approved shared-parenting plan, a subsequent motion toterminate the shared-parenting plan can only be granted upon a showing of a change in circumstances pursuant to R.C. 3109.04(E)(1)(a).1 Second, father argues that while he and mother sometimes disagreed as to what was best for A.C., it was an abuse of discretion for the trial court to use that disagreement as a basis to terminate shared parenting.
{¶14} R.C. 3109.04 governs the allocation of parental rights and responsibilities for the care of children and shared-parenting plans. R.C. 3109.04(E)(2) specifies the manner in which parents and the trial court may terminate a shared-parenting decree and plan. R.C. 3109.04(E)(2)(c) and (d). In relevant part, R.C. 3109.04(E)(2) states:
{¶15} R.C. 3109.04(E)(1) specifies the manner in which parents and the trial court may modify a shared-parenting decree and plan. In relevant part, R.C. 3109.04(E)(1) states:
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