Re v. K.M.
| Decision Date | 31 August 2018 |
| Docket Number | Court of Appeals No. OT-17-022 |
| Citation | 2018 Ohio 3512 |
| Parties | In re M.O.E.W. M.W. Appellant v. K.M. Appellee |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
Amanda A. Andrews, for appellant.
Geoffrey L. Oglesby, for appellee.
{¶ 1} This is an appeal from the judgment of the Ottawa County Court of Common Pleas, Juvenile Division, denying appellant's, M.W., motion for reallocation of parental rights and responsibilities. For the reasons that follow, we affirm.
{¶ 2} Appellant is the father of the minor child, M.O.E.W., who was born in 2006. Appellee, K.M., is the mother. The litigation between the parties over the custody of the child began in 2007. Relevant here, on November 20, 2013, the parties agreed to a consent judgment entry whereby mother was designated the residential parent and legal custodian of the child, with father to have regular visitation rights in accordance with the court's standard schedule.
{¶ 3} The present matter was initiated two years later, on October 6, 2015, when father filed a motion for reallocation of parental rights and responsibilities, seeking joint custody of the child. Thereafter, on April 6, 2016, father filed an amended motion for reallocation of parental rights and responsibilities. The matter proceeded to a hearing before a magistrate on September 6, 2016.
{¶ 4} At the September 6, 2016 hearing, during father's direct examination of mother, the magistrate stopped the questioning, and ruled that she was going to find that a change of circumstances existed, necessitating the appointment of a guardian ad litem for the child. The magistrate did not permit father to conclude his presentation of evidence, and did not permit mother to present any evidence at all. The magistrate's findings were preliminarily memorialized in an order on September 6, 2016, and an order containing findings of fact was entered on September 28, 2016.
{¶ 5} On September 16, 2016, mother filed a motion to set aside the magistrate's September 6, 2016 order on the basis that she was not afforded her legal right tochallenge father's evidence, or to call any witnesses on her own behalf. On October 13, 2016, the trial court denied that motion, finding that none of the magistrate's September 6, 2016 orders were dispositive of a claim or defense of any of the parties, and that mother failed to state with particularity her reasons to set aside the magistrate's orders. Notwithstanding that, on October 24, 2016, the trial court entered its judgment rejecting the magistrate's September 28, 2016 decision, and setting the matter for a de novo hearing on father's motion for reallocation of parental rights and responsibilities.
{¶ 6} The de novo hearing on father's motion was held before the trial court on April 17, 2017, and May 18, 2017. At the hearing, father called mother as his first witness. Mother testified to a broad range of issues, beginning with the circumstances of her older son's death from a drug overdose, and the impact that death had on M.O.E.W. Mother testified that her son was living with her for approximately a year, and was in recovery and was clean at the time. During that time, her son would watch M.O.E.W. by himself on a handful of occasions. Mother stated that her son moved out because he thought his presence would be an issue in the custody proceedings over M.O.E.W. When he left, he relapsed, and overdosed on drugs. Mother testified that M.O.E.W. was present at the hospital for the three days after her brother overdosed, and was there when he died. Mother testified that M.O.E.W. was close to her brother, and is now actively involved in speaking engagements where she talks about the impact of drugs and addiction on families. Mother stated that M.O.E.W. likes to speak, and that it is a good way for her to heal.
{¶ 7} Mother next was asked about M.O.E.W.'s performance at school, to which she replied that M.O.E.W. was doing well. Father then produced an exhibit where M.O.E.W. only received two points on a fractions test. Father also produced evidence of an instance where M.O.E.W. was caught flipping over another student's test during an exam, and evidence that she had received one or two strikes for behavior this year. Father then asked about M.O.E.W.'s attendance at school, and mother confirmed that M.O.E.W. had missed 20 days of school, been tardy five times, and was taken out of school early four times. Mother testified, however, that all of the absences were excused with a doctor's note, and that M.O.E.W. had several bouts of strep throat, which required her to have her tonsils removed. Mother also acknowledged that in the prior school year, M.O.E.W. was either absent, tardy, or left school early 30 times, but she testified that each of those were excused as well.
{¶ 8} The questioning then transitioned to mother's romantic relationships. Mother testified to having dated approximately six different men since November 2013. On occasion, some of the men have watched M.O.E.W. for a day or two, or have transported M.O.E.W. to and from school or appointments. On at least one occasion, one of the men who drove M.O.E.W. to or from school had a suspended driver's license. In addition, some of the men had previous criminal convictions.
{¶ 9} Father then asked mother about an incident where mother recorded an argument that she had with M.O.E.W. before school. The audio recording was played for the court. On the recording, mother is heard stating that M.O.E.W. is making problemsfor her in court because M.O.E.W. is throwing a fit and refusing to get ready for school on time. Mother testified that she recorded M.O.E.W. on the advice of her counselor so that the recording could be played back and be used to constructively teach M.O.E.W. how to improve her behavior.
{¶ 10} In addition to those topics, mother also briefly testified regarding her decision to occasionally leave M.O.E.W. home alone during the daytime for approximately one hour. Mother was also asked about a picture which shows her riding in a car that was returning from a festival, and it appears that there was an open container in the car. Further, mother testified that she has moved three times since the November 2013 order, and that while she has mainly been employed at two jobs, she has had a number of other side positions. Additionally, mother testified that she is under financial stress from the issues involving her son as well as her attorney fees from the litigation regarding the custody of M.O.E.W.
{¶ 11} Father also testified as his only other witness. He testified that he believed the change of circumstances included M.O.E.W.'s performance and attendance at school, her behavior, mother's ability to effectively parent, and the recent death of mother's older son. In particular, father expressed concern with M.O.E.W.'s behaviors in showing a desire for a boyfriend, and he believes that mother's lifestyle is negatively influencing M.O.E.W. in that regard. He also testified that he was concerned that mother's parenting style will result in M.O.E.W. travelling down the same path as her older son. Father additionally testified about the visitation schedule. He stated that shortly after theNovember 2013 order, the parties informally modified the schedule, which resulted in him having additional time with M.O.E.W. However, approximately one month before the hearing, mother announced that they would return to the schedule contained in the court order.
{¶ 12} For her case, mother called three witnesses. The first was Geoffrey Halsey, the principal at M.O.E.W.'s school. Halsey verified the number of absences that M.O.E.W. has had, but stated that she has always been in compliance with the school's policies. Halsey also testified that M.O.E.W. does fine in school, has not had any issues as far as her social or emotional development, and is ready to move on to the middle school level of education. Further, M.O.E.W. has not had any behavioral issues of note.
{¶ 13} Mother next called M.O.E.W.'s therapist, Alison Campbell, who was qualified as an expert witness in the area of child counseling. Campbell testified that M.O.E.W. was diagnosed with adjustment disorder with anxiety, but commented that she is a well-adjusted little child. Campbell elaborated that M.O.E.W. is frustrated by the ongoing conflict between her parents, and M.O.E.W. has expressed her fear that staying with mother is going to harm her relationship with father. Campbell noted that M.O.E.W. is a happy little girl, that she is doing well, and that she loves both of her parents and enjoys spending time with them. Campbell also relayed four things that M.O.E.W. wanted Campbell to convey on her behalf: "I want to stay with my mom;" "I want to be able to see my dad when I want to;" "I want them to get along better;" and Finally, Campbell testified that she has no problem with M.O.E.W. speaking to heroin groups about her brother's death, and that she does not see mother's relationships having a negative impact on M.O.E.W.
{¶ 14} Lastly, mother testified on her own behalf. Most of mother's testimony provided her perspective on topics that had already been discussed at length during the hearing. Mother did provide new testimony, however, to a panic attack that she had the previous week that required her to go to a hospital. She testified that it occurred after a stressful day dealing with collateral issues relating to her son's death, but emphasized that M.O.E.W. was never put in any danger despite father's suggestion to the contrary.
{¶ 15} Following the hearing, the trial court entered its order on July 5, 2017, denying father's motion for reallocation of parental rights and responsibilities. In its decision, the trial court found that father had failed to prove that a...
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