In re M.V.P.

• Docket Number: CA2023-03-028,CA2023-03-029
• Decision Date: 28 December 2023
• Parties: IN RE: M.V.P., et al.
• Court: Ohio Court of Appeals

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2023-Ohio-4778

IN RE: M.V.P., et al.

Nos. CA2023-03-028, CA2023-03-029

Court of Appeals of Ohio, Twelfth District, Warren

December 28, 2023

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 19-D000057

Tyrone P. Borger, for appellant.

Traci M. Carr, for appellee Mother.

Paris K. Ellis, for appellee, Father.

OPINION

PIPER, J.

{¶ 1} Appellant, the paternal grandmother ("Grandmother") of two children, appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, granting legal custody of the children to their mother ("Mother").

{¶ 2} The two children in this case were the subjects of a Warren County Children

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Services case. Both children were adjudicated as neglected based in part on the domestic violence between Mother and Father ("Father"). The children were placed in the temporary custody of the paternal grandparents while Mother and Father worked on case plans to reunite with the children. The parents made insufficient progress towards reunification. Father did not adequately address his anger issues or drug usage. Mother, despite several attempts, was unable to end her volatile relationship with Father. Legal custody was granted to the paternal grandparents in June 2021.

{¶ 3} At the time it awarded legal custody to the grandparents, the court indicated that Mother was a loving parent who would not harm her children, but she was trapped in a dangerous cycle of domestic violence and as long as she kept going back to Father, she and the children were in danger. The court granted Mother a significant amount of visitation time with the children and Father was not to be present at any of Mother's visitations. Mother was granted visitation every week from 6:00 p.m. on Tuesday until 9:00 a.m. on Thursday, along with every other weekend. Mother, who at the time of the hearing stated she had been separated from Father for two days, did not resume her relationship with Father.

{¶ 4} Problems arose when Grandmother began enrolling the older child in preschool and activities. Some of these activities occurred during Mother's parenting time and Grandmother failed to first discuss or approve her plans with Mother. Mother, who was in nursing school and working nights, objected to some of Grandmother plans and Grandmother had to adjust preschool days and team activity days.

{¶ 5} Grandmother filed a motion to modify parenting time, requesting that the court remove Mother's mid-week visitations. Mother then filed a motion for legal custody of the children. Father also filed a motion for custody, but withdrew the motion and instead asked

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for increased visitation along with some unsupervised visitation.

{¶ 6} A magistrate held a hearing on the motions. At the time of the hearing, the children were four years old and almost three years old. The magistrate considered the evidence and issued a decision awarding legal custody to Mother. The decision also provided for visitation with Grandmother and for unlimited supervised visitation for Father during Grandmother's visitation time, but no unsupervised visitation. The trial court adopted the magistrate's decision after considering Grandmother's objections. Grandmother now appeals the trial court's decision granting legal custody to Mother and raises three assignments of error for our review.

{¶ 7} First Assignment of Error:

{¶ 8} THE TRIAL COURT COMMITTED ERROR BY OVERRULING APPELLANT'S OBJECTION REGARDING THE ADMISSIBILITY OF THE VIDEO RECORDING OF THE CHILDREN PRESENTED BY MOTHER SHOULD BE SUSTAINED [SIC]

{¶ 9} In her first assignment of error, Grandmother challenges the trial court's decision to admit two videos presented at the hearing by Mother. The videos were taken of the children in the backseat of a vehicle while Mother was driving. The older child is purportedly hitting himself and Mother questions him and instructs that "we do not hit." During the video, Mother asks her son "who hits?" and the child responds "Daddy hits" and "Daddy hit my face."

{¶ 10} Grandmother argues that admission of the video is prohibited by R.C. 3109.04(B)(3). This statute provides the following:

No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining

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the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child's wishes and concerns regarding those matters.

{¶ 11} Grandmother argues that the plain language of the statute prohibits admission of the video and based on the language, the trial court should not have admitted Mother's exhibit and it should not have been considered in the trial court's decision considering the parties' positions regarding custody of the children. At the hearing, the trial court took the matter under advisement and in the written decision, determined that the videos were admissible. The court found that the videos do not refer to the proceedings and do not indicate the child's preference for where he wanted to reside. The trial court further noted that the questions Mother asked the child about the hitting behavior were appropriate and it was unlikely that the child even knew the camera was on.

{¶ 12} The Ohio Supreme Court has stated that "[t]his statute was obviously intended to protect children from unsupervised demands that they choose between their parents, and the harm such demands may cause is a valid concern in any proceeding." The court continued by stating that the statute, however, does not prohibit all written or recorded statements or affidavits of a child, but only those that purport to set forth the child's wishes and concerns regarding the allocation of parental rights. State ex rel. Papp v. James, 69 Ohio St.3d 373, 376 (1994).

{¶ 13} We find, under the particular facts of this case, that the trial court did not err in determining that admission of the videos did not violate R.C. 3109. 04(B)(3). As the trial court found, the child is not questioned regarding his wishes of who he would like to reside with. Instead, the videos document concerning behavior by the child and the mother questioning where the behavior originated. The videos also document Mother instructing

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correct behavior. The statute Grandmother relies on is one that prohibits a party from creating circumstances wherein a child's wishes are elicited for the purposes of having parental rights allocated. The trial court found those were not the circumstances surrounding the evidence herein and neither do we. Grandmother's first assignment of error is overruled.

{¶ 14} Second assignment of error:

{¶ 15} THE TRIAL COURT COMMITTED ERROR BY DETERMINING THAT MOTHER DEMONSTRATED A CHANGE IN CIRCUMSTANCES ALLOWING FOR THE CHANGE IN CUSTODY.

{¶...