Wells, In re, CA95-04-058

• Citation: 669 N.E.2d 887,108 Ohio App.3d 41
• Decision Date: 26 December 1995
• Docket Number: No. CA95-04-058,CA95-04-058
• Parties: In re WELLS.
• Court: United States Court of Appeals (Ohio)

Page 41

108 Ohio App.3d 41

669 N.E.2d 887

In re WELLS.

No. CA95-04-058.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Decided Dec. 26, 1995.

John F. Holcomb, Butler County Prosecuting Attorney, and Kathleen Romans, Assistant Prosecuting Attorney, Hamilton, for appellee Butler County Children Services.

Rene M. LaForte, Kettering, for appellant.

Mary K. Dudley, Hamilton, for appellee John Adams.

Grace Thompson, Fairfield, guardian ad litem.

KOEHLER, Judge.

Appellant, Bobbie Vinson, appeals an order of the Butler County Court of Common Pleas, Juvenile Division, granting legal custody of her two-and-one-half-year-old daughter, Danielle Wells, to Danielle's biological father, appellee John Adams ("Adams").

Danielle was born October 19, 1992. On April 30, 1993, appellant left Danielle, then six months old, with Michael Wells ("Wells") ¹ and his seventeen-year-old girlfriend, Lucinda Lucas ("Lucas"). Appellant testified that she would leave Danielle with Wells two or three nights a week for him to be her father since Danielle had his last name. That same day, Wells left Lucas, leaving Danielle in her care. Wells came back two days later but left again without making any provisions regarding Danielle. On May 6, 1993, Lucas brought Danielle to Urgent Care in Middletown, Ohio because of respiratory problems. Because the whereabouts of both appellant and Wells were unknown, consent for medical treatment or hospitalization could not be given.

On May 10, 1993, appellee Butler County Children Services Board ("BCCSB") filed a complaint in neglect and dependency on behalf of Danielle and obtained temporary custody of her. Danielle was placed in foster care. In June 1993, the trial court found Danielle to be a neglected and dependent child. However, based upon appellant's cooperation and progress in accordance with the case plan prepared by BCCSB, the trial court subsequently terminated BCCSB's temporary custody and granted temporary custody of Danielle to appellant. Appellant was ordered not to remove the child from the state of Ohio pending further review.

On August 12, 1993, the trial court issued a capias for the arrest of Adams for failure to appear in court. Following his arrest and the performance of a blood test, Adams admitted paternity of Danielle. On January 31, 1994, the trial court found Adams to be Danielle's biological father and ordered him to pay child support. No formal award of custody was made at that time. Appellant continued to have custody of Danielle.

In January or February 1994, appellant slipped on a patch of ice and broke her collarbone. ² Appellant thereafter experienced difficulties in taking care of her children. As a result, the children were taken to appellant's mother in Kentucky, who took care of them until appellant could recover from her injury. A few days later, appellant was ordered to appear before a circuit court in Kentucky, which she did. The circuit court gave temporary custody of appellant's children to one of appellant's siblings. The court granted appellant supervised visitation at her mother's house. During one of these visits, appellant took advantage of her mother taking a bath to take her children and returned with them to Ohio.

On April 11, 1994, Adams filed a motion for allocation of parental rights and responsibilities with regard to Danielle. On April 18, 1994, the trial court granted Adams temporary custody of Danielle. Appellant subsequently moved to Marietta, Ohio with Dowling where she stayed until December 1994. In December 1994, appellant moved to Middletown, Ohio where she lived in a trailer with her son, Dowling, Dowling's husband, and Dowling's younger son.

On May 9, 1994, pursuant to an agreement reached between the Kentucky circuit court and all the parties, the trial court ruled that it would retain jurisdiction in this matter. On July 1, 1994, Adams moved the trial court to grant him legal custody of Danielle. A hearing on the matter was held February 14, 1995. By judgment entry filed March 8, 1995, the trial court found that it was in the best interest of Danielle to be placed in the legal custody of Adams, and, accordingly, granted legal custody of Danielle to Adams.

Appellant timely filed this appeal and raises the following assignment of error:

"The trial court erred to the prejudice of appellant by failing to apply the mandates of Ohio Revised Code Section 3109.04(E)(1)(a) in its modification of the child's prior custodial arrangement."

Appellant argues that the trial court erred in treating the proceedings as an initial custody determination and applying the "best interest" standard of R.C. 3109.04(F)(1). Appellant argues that the proceedings were in fact a modification of a prior custodial arrangement and that the trial court should have applied the change of circumstances standard of R.C. 3109.04(E)(1).

In support of her argument, appellant first contends that "[t]he custodial arrangement of a child cannot be modified where there has been a prior decree establishing the allocation of parental rights * * *." Appellant does not identify the decree and we cannot speculate which trial court's decree appellant is referring to. We note in this case, however, that there was no formal award of custody by the trial court until March 8, 1995. We therefore conclude that the trial court's March 8, 1995 judgment entry was an initial award of custody which did not require a showing of change of circumstances.

Appellant next contends, however, that when the natural parent of an illegitimate child has reared the child since birth and has maintained sole physical custody of the child for a substantial period of time, the natural parent becomes, by implication, the de facto residential parent of the child for purposes of R.C. 3109.04. Thus, appellant contends that she is Danielle's de facto residential parent and cites Knaff v. Gregory (July 16, 1990), Preble App. No. CA89-12-020, unreported, 1990 WL 98224, in support of her contention.

Several Ohio appellate courts, including this court, have held that when paternity has been adjudicated with a corresponding child support order, a father moving the court for custody will need to meet the change of circumstances standard of R.C. 3109.04(E)(1) for custody modification, because a support order in a paternity motion "impliedly and necessarily" recognizes a mother's legal custody of a child who lives with her. Ballinger v. Bales (July 25, 1994), Butler App. No. CA93-06-109, unreported, 1994 WL 386108; Knaff; In re Brazell (C.P.1986), 27 Ohio Misc.2d 7, 27 OBR 68, 499 N.E.2d 925; In re McGowan (July 17, 1985), Summit App. No. 11973, unreported, 1985 WL 11008; In re Ragland (Aug. 16, 1983), Franklin App. No. 83AP-113, unreported, 1983 WL 3653. In all the foregoing cases, however, there was either a considerable amount of time between the paternity adjudication with its corresponding support award and the father's motion for custody, Knaff (over four years), Brazell (twelve years), McGowan (approximately two years), Ragland (approximately two years), or there was a relationship, including visitation, between the father and the child before any paternity adjudication and corresponding support award.

In the case at bar, Adams first moved for custody on April 11, 1994, two months and eleven days after the January 31, 1994 paternity adjudication, and again on July 1, 1994, only four months after the paternity adjudication. Adams testified that while he had seen appellant three or four times at his cousin's house where he was then living, they were not dating. Adams also testified that he did not have any contact with Danielle until April 19, 1994 when he obtained temporary custody of Danielle. Appellant testified that when she was about two months pregnant, she told Adams that she was pregnant. Appellant also testified that when she was seven or eight months pregnant, she went to Adams's place of employment and told him that she was pregnant. Adams admitted that appellant came to his place of employment but stated that he did not believe appellant and that appellant did not look pregnant. Appellant further testified that she did not have any contact with Adams after Danielle's birth.

Based upon the circumstances described above, we find that all of the foregoing cases are not applicable to the case at bar. We further find that while appellant had sole physical custody of Danielle for a year and a half following Danielle's birth, albeit with at least one interruption, appellant did not have de facto residential custody of Danielle.

Finally, appellant contends that when a juvenile court exercises its jurisdiction to determine the custody of a child alleged to be neglected or dependent pursuant to R.C. 2151.23 and 2151.353, it must do so in accordance with R.C. 3109.04(E)(1) and apply the change of circumstances standard. Appellant cites In re Poling (1992), 64 Ohio St.3d 211, 594 N.E.2d 589, in support of her contention.

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