In the Matter of J.L.R., 2009 Ohio 5812 (Ohio App. 10/29/2009)

• Decision Date: 29 October 2009
• Docket Number: No. 08CA17.,08CA17.
• Citation: 2009 Ohio 5812
• Parties: In the Matter of: J.L.R. and M.M.R.
• Court: Ohio Court of Appeals

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2009 Ohio 5812

In the Matter of: J.L.R. and M.M.R.

No. 08CA17.

Court of Appeals of Ohio, Fourth District, Washington County.

Date Journalized: October 29, 2009.

Civil Appeal from Common Pleas, Juvenile Division.

Robin A. Bozian, 427 Second Street, Marietta, Ohio 45750, Counsel for Appellant.

Shoshanna M. Brooker, 311 Scammel Street, Marietta, Ohio 45750, Counsel for Appellee.

DECISION AND JUDGMENT ENTRY

PER CURIAM.

{¶ 1} This is an appeal from a Washington County Common Pleas Court, Juvenile Division, judgment that: (1) terminated a shared parenting plan between Appellee Michael Ruse and Appellant Pamela Roff; and (2) designated appellee the children's residential parent and legal custodian.

{¶ 2} Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ABUSED ITS DISCRETION TO

APPELLANT'S PREJUDICE BY USING THE MOTHER'S ATTEMPT TO RELOCATE WITHIN THE STATE TO PURSUE HIGHER EDUCATION AS A GROUND FOR CHANGING CUSTODY."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED WHEN IT REFUSED TO APPOINT LEGAL COUNSEL FOR THE CHILDREN." THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW THE MOTHER TO CONDUCT DISCOVERY FROM THE GUARDIAN AD LITEM."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ALLOWED THE GUARDIAN AD LITEM, WHO WAS NOT AN ATTORNEY, TO PARTICIPATE IN THE TRIAL OF THE CASE BY FILING MOTIONS AND EXAMINING WITNESSES."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY SUSTAINING THE FATHER'S COUNSEL'S OBJECTION TO A LINE OF QUESTIONING DIRECTED TO FATHER ABOUT HIS SOLE REASON FOR SEEKING CUSTODY."

{¶ 3} The parties married on July 26, 1992 and had two children. (J.L.R. born May 10, 1994 and M.M.R. born January 15, 1996). On January 4, 1999, the parties divorced and entered into a shared parenting plan that designated appellant the residential parent.¹

{¶ 4} On July 14, 2006, appellant filed a notice of intent to relocate to Toledo, Ohio. She planned to pursue an educational opportunity at the University of Toledo.

{¶ 5} On August 2, 2006, appellee filed a motion to modify the custody order. On that same date, the court issued a temporary order that restrained the mother from removing the children from Washington County. Appellant apparently did not receive notice of this order until August 20, 2006.

{¶ 6} Appellee took the children on vacation from August 10 to August 20, 2006. Upon their return, the children were scheduled to return to appellant's care. While the children vacationed, appellant packed up her home, including the children's belongings, and moved everything to a new residence in Toledo. She enrolled the children in the Toledo area schools and planned to take them to Toledo immediately upon their return from appellee's care. She planned to announce the move as a surprise to the children upon their return from vacation.

{¶ 7} The parties had arranged to exchange the children at a McDonald's restaurant during the early evening hours of August 20. Appellee came to the exchange armed with the court order to prevent appellant from removing the children from Washington County. When appellant arrived at the exchange site, appellee's attorney served appellant with the court order. Appellee did not return the children to appellant's care.

{¶ 8} On August 21, 2006, appellee filed a motion for ex parte temporary custody of the children. The trial court granted appellee temporary custody of the children.

{¶ 9} Appellant subsequently filed a motion to obtain discovery and to conduct a deposition of the children's guardian ad litem. The trial court found "that to allow a deposition of and discovery from the Guardian ad Litem would be detrimental to the relationship and trust established between the Guardian ad Litem and the children. The children need to feel free to talk to the Guardian ad Litem without worrying that the information will be disclosed to either parent."

{¶ 10} Appellant, appellee, the two children and appellant's boyfriend all underwent psychological evaluations. In discussing her living situation, J.L.R. stated that "it feels weird not to live with my mom. I liked it best when they (mom and dad) lived near each other and I lived with my mom." The psychologist asked J.L.R. about her relationship with the guardian ad litem. The psychologist reported: "[J.L.R.] feels that the Guardian is biased in favor of her father. She remarked that when she tells the Guardian that she would prefer to live with her mom, the Guardian makes remarks back like she would have to change schools and she would lose all of her current friends. `It's like she's trying to change my mind.' She reported that she was concerned that [the guardian] would be mad at her talking about these things. I told her that [the guardian's] role was to be her advocate in the situation, just like mom and dad each have their own attorney. She replied, `I'm not afraid of [the guardian;] it just seems like she really doesn't understand.'"

{¶ 11} On May 2, 2007, the guardian ad litem filed her report. She noted that both parents love the children and that the children share a loving relationship with both parents. She further observed, however, that appellant's "unresolved anger issues with [appellee] adversely affect her decision making when it comes to what is in the best interests of the children." The guardian ad litem recommended that the trial court designate appellee the children's residential parent:

"It is clear that [appellant] loves the children and can provide for them. It is also clear that the children love their mother and want to be with her. This recommendation is based on all the information that has been gathered since the children have been with [appellee]. Both children are doing better in school. Mason especially has improved not only his grades, but his social behavior in school. The children have enjoyed regular weekly contact with their grandparents in Marietta with whom they have a close relationship. [Appellee] is stable at this time in his living arrangements, and he has arranged his work hours to meet the needs of the children. The children enjoy regular, daily contact with [appellant] using email and telephone * * *. The children have enjoyed extended visitations * * * with [appellant]. [Appellee] has kept [appellant] informed, in writing, of events in the children's lives, and should continue to do so. [Appellee] loves the children and appears to be supportive of them and their relationship with [appellant] and the maternal grandparents. The children love [appellee] and [appellant] and want to be close to both of them."

{¶ 12} Appellant subsequently requested the trial court to appoint separate counsel for the children. She alleged that at the least, J.L.R.'s wishes conflicted with the guardian ad litem's recommendation. The court denied appellant's motion and explained:

"Both the mother and father are represented by counsel. Each party is seeking custody of the two minor children and as such each child's position or point of view can by adequately presented through the parent's case. Additionally, the Court has agreed to interview both children in chambers prior to making its decision. The Court can thus determine the child's wishes without the need for the appointment of an attorney for the child. Further the minor children are not considered parties to a custody case and as such the Court is not required to appoint counsel for the children even if the mother agrees to pay for said representation.

{¶ 13} The Court cannot find any case law or any justification that would require the appointment of counsel for children in custody cases simply because the Guardian ad Litem's recommendation differs from the wishes of the child. The role of the Guardian ad Litem is to advise the Court what he/she believes would be in the best interest of the children, which may or may not be the same as the child's wishes."

{¶ 14} On July 31, 2007 and August 1, 2007, the trial court held a hearing. The evidence presented at the hearing revealed that appellee is employed full-time with the United States Army Corp of Engineers as a diver and is permanently stationed at the Marietta Branch. Appellant currently is unemployed, but attends the University of Toledo full time where she is working toward a degree in cardiac sonography.² S h e receives social security disability as a result of a brain tumor that was removed in 2001.

{¶ 15} Since the parties divorced, children services has investigated appellee on six occasions, but did not substantiate any of the reports. Appellant filed two of the reports and alleged that appellee physically abused M.M.R. by pulling on his ear and that he emotionally abused the child by calling him a "wuss" or "wussie." M.M.R. denied that appellee abused him and children services did not substantiate appellant's reports. In 2000, M.M.R. was diagnosed with Attention Deficit Hyperactivity Disorder and Obsessive Compulsive Disorder. Doctors attempted several medications to control his behavioral issues, including: Strattera, Abilify, Wellbutrin, Desmorpression, Adderall, Risperdal, Fluoxetrine, Topamax, Concerta, and Paxil. In May 2005 and January 2006, mental health professionals notified appellant of their concern that the child was having suicidal thoughts. They recommended that appellant hospitalize the child, but she refused. In 2006, appellant disregarded doctor's orders to keep M.M.R. on medication in an attempt to see if he benefitted from being off medication.

{¶ 16} Shortly after M.M.R. began living with appellee, appellee followed the Marietta City Schools' recommendation to have him tested for ADHD. He subsequently was diagnosed with anxiety disorder, bipolar disorder, and ADHD. Doctors prescribed Adderall. M.M.R.'s concentration, behavior, and school performance has since improved.

{¶ 17} The children's school performance also...