Miller v. Rhoads

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[Cite as Miller v. Rhoads, 2021-Ohio-4485.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY ALEXANDRIA MILLER, Plaintiff-Appellant, v. NATASHA RHOADS, Defendant-Appellee. : : : : : : : : : Case No. 20CA9 DECISION AND JUDGMENT ENTRY APPEARANCES: Sharon Schnelle, Law office of Sharon M. Schnelle, LLC, Fayetteville, Ohio, for Appellant. Jacob D. Wagner, Hillsboro, Ohio, for Appellee Virgie Howard.1 Natasha Rhoads, Appellee. Dennis Kirk, Esq., Kirk Law Office, Hillsboro, Ohio, Guardian Ad Litem. ________________________________________________________________ Smith, P. J. {¶1} Alexandria Miller appeals the entry of dismissal of the Highland County Common Pleas Court, Juvenile Division, entered June 16, 2020, which dismissed Ms. Miller’s complaint for legal custody of a minor child, X.H. On appeal, Ms. Miller, “Appellant,” asserts that the trial court’s decision granting custody to Virgie Howard, X.H.’s paternal grandmother, was not supported by 1 Neither Virgie Howard nor Natasha Rhoads have participated in the appeal. Highland App. No. 20CA9 2 sufficient evidence and is also against the manifest weight of the evidence. However, having fully reviewed the record, we find the trial court’s decision to award legal custody to Ms. Howard is supported by competent, credible evidence and is not against the manifest weight of the evidence. Therefore, we find Appellant’s sole assignment of error is without merit and is hereby overruled. The judgment of the trial court is affirmed. FACTUAL AND PROCEDURAL BACKGROUND {¶2} In this case, the trial court record and evidence are scant. The appealed-from judgment entry states that: “[t]he Court adopts all findings of fact and orders as issued in companion case #21940185 as if fully rewritten herein.” Therefore, we must rely on the pleadings and the transcript of the June 12, 2020 custody hearing in setting forth the facts.2 {¶3} The record reflects that the minor child subject of these proceedings, “X.H.,” was born on November 26, 2019. The child’s biological parents are Natasha Rhoads and Scott Holsinger. Mr. Holsinger died prior to X.H.’s birth. Mr. Holsinger was Virgie Howard’s son. The custody hearing began with Natasha Rhoads’ admission that she was still unable to care for X.H. {¶4} Appellant and Natasha Rhoads have known each other since they were 14 years old and at one time were close friends. Appellant is not related by 2 Page 8 of the hearing transcript lists the date of the hearing as July 12, 2020, but all other indications in the record are that the hearing took place in June. Highland App. No. 20CA9 3 consanguinity or affinity to Natasha Rhoads or X.H. X.H. was placed with Appellant pursuant to a safety plan completed by Highland County Children’s Services (HCCS). Appellant brought X.H. from the hospital to her home three days after he was born. The transcription is not clear, but Appellant was 22 or 24 years old at the time of the custody hearing. {¶5} Stephanie Newman is an intake worker with HCCS. Ms. Newman testified that Natasha Rhoads originally requested placement of X.H. with Appellant. Natasha Rhoads corroborated this testimony. Ms. Rhoads testified she did not select Virgie Howard at the beginning because they “weren’t on the best of terms,” and she “didn’t want to cause more problems within the family.” {¶6} Appellant filed a complaint for legal custody of X.H. on December 31, 2019. Virgie Howard also filed a complaint for custody, which is the companion case the trial court referenced in its June 16, 2020 decision. The trial court ordered DNA testing which confirmed Ms. Howard’s son as the biological father. The trial court also appointed a guardian ad litem (GAL). The GAL prepared a report in which he recommended that it was in the best interest of X.H. to be placed in Appellant’s custody. {¶7} Ms. Newman testified that HCCS had no concerns regarding either prospective custodian. Regarding Appellant, Ms. Newman testified that Appellant’s home was appropriate, Appellant followed up on all medical Highland App. No. 20CA9 4 appointments, and “there were no concerns with her background and no criminal history.” Regarding Ms. Howard, Newman testified, “There is nothing on her background, no children’s service history, and her home was appropriate.” {¶8} Appellant testified that she has lived at the same address in a home she is purchasing for three years. X.H. has his own room but currently a crib is set up in her bedroom until he gets older. She testified the first couple of weeks that X.H. was in her custody he “shook” but that had resolved. Appellant has observed no other issues with his physical growth or mental well-being. X.H. is current on his required vaccinations. {¶9} Appellant has been in a relationship with Justin Ballard for approximately two years. Mr. Ballard also lives in Appellant’s home and has been involved with X.H. since the child was brought home from the hospital. Appellant testified Justin is also “on board” with Appellant’s gaining custody of X.H. Appellant may eventually want to adopt X.H. {¶10} Appellant is employed approximately 30 hours a week at a restaurant in the Cincinnati area as a server and bartender. When Appellant is at work, her mother babysits X.H. “99%” of the time and Justin also babysits. Appellant further testified that she may go back to school and may relocate at that time. However, Appellant indicated the schooling and move would not occur for Highland App. No. 20CA9 5 “probably 5 years.” Appellant testified the only medications she is prescribed are for acne and for allergies. {¶11} Justin Ballard’s testimony echoed Appellant’s regarding their relationship and his interaction with X.H. At the time of the hearing Mr. Ballard was 20 years old and a high school graduate. He attended college briefly and currently works full-time. Mr. Ballard has no criminal history and does not take any medications. Mr. Ballard described Appellant as an “awesome parent.” {¶12} Virgie Howard lives in Hillsboro. She is employed caring for her 90year-old mother, who is immobile, through Passport Services.3 Ms. Howard’s adult brother with “mild Down’s Syndrome” also lives with her. Ms. Howard testified her brother is able to care for himself and that it would “not be too much” for her to care for X.H. and her elderly mother. Ms. Howard also testified she had no physical or mental issues that would hamper her caring for X.H. {¶13} Ms. Howard testified that “the first time [she] saw X.H., [she] saw Scott.” When asked why she desired custody, Ms. Howard responded: Because I think he deserves to be with family. He’s my grandson. He’s my only grandson from Scott. * * * And I can’t believe God would let Scott go and not let me have his son. He’s my family. He’s my blood. And he means everything to me. I love my grandkids as much as I love my sons. I just can’t imagine him not being with us…. 3 Ohio's PASSPORT program helps older Ohioans get the long-term services and support they need to stay in their homes rather than entering nursing homes. See Ohio Department of Aging, https://aging.ohio.gov/ups/portal/gov. Accessed October 12, 2021. Highland App. No. 20CA9 6 {¶14} Pamela Skeens testified that she has known Virgie Howard for 18 years, as they have grandchildren in common. Ms. Skeens has had the opportunity to observe Ms. Howard with her grandchildren. Ms. Skeens testified that Ms. Howard sacrifices her time and money to help give her grandkids a happy life. Pamela Skeens had no concerns about Ms. Howard’s ability to care for X.H. {¶15} Both Appellant and Virgie Howard testified they would act in the best interests of X.H. Appellant testified she is willing to work with Virgie Howard to make sure she is a part of X.H.’s life and to make sure Ms. Howard has constant contact with X.H. Appellant also testified if she is given custody, she would allow Ms. Howard to babysit while she is at work. Importantly, Ms. Howard testified if she is granted custody, she will abide by the court’s orders regarding Natasha Rhoads. Ms. Howard testified she would refuse Ms. Rhoads’ visitation if she presented with the appearance of active drug use. {¶16} During the months leading up to the custody hearing, a period of about six months, Appellant allowed Ms. Howard to have only two visits. Appellant initially denied blocking Ms. Howard’s number on her phone but later admitted she did block her for a week or two. Appellant found it problematic that Ms. Howard “just wanted to see the baby,” but did not ask for pictures or ask about his health. Highland App. No. 20CA9 7 {¶17} Both parties testified regarding an incident which occurred during the first visit. Appellant acknowledged she stopped Ms. Howard’s visits because Ms. Howard brought the wrong sized car seat, was 25 minutes late returning, and because she returned X.H. with a dirty diaper. Appellant also suspected Ms. Howard had included Ms. Rhoads in the visit. {¶18} Ms. Howard testified she was aware that Natasha Rhoads was not allowed to see X.H. Ms. Howard also admitted the child seat was not the proper size but testified she did not have time to get a new one before the visit occurred. Ms. Howard described a “great” visit which included others on her side of the family. Ms. Howard testified X.H.’s diaper was changed before they left to return him to Appellant and that she was only 17 minutes late. Ms. Howard testified she texted Appellant every other day asking to see X.H. again, but she received no reply from Appellant. {¶19} Ms. Howard testified that the day she filed her complaint Appellant wanted to know “if she gave them visiting privileges, would the complaint be dropped.” Ms. Howard feared that if Appellant gained custody she would not have access to him like she has her other grandchildren. Appellant denied suggesting she would allow visits if Ms. Howard would drop her case. {¶20} Natasha Rhoads testified she would like legal custody to go to Virgie Howard and that it is in X.H.’s best interest to be placed with her. Ms. Rhoads Highland App. No. 20CA9 8 believes Ms. Howard will protect X.H. and that the child will be able to have a relationship with his father’s family. Ms. Rhoads testified she did not speak to most of Scott Holsinger’s family until after X.H. was born because she was not comfortable reaching out to them. She thought the placement of X.H. with Appellant was only temporary. She testified that had she been aware the placement would be long term she would have asked Ms. Howard to take physical custody of X.H. from the beginning. Ms. Rhoads believes that Ms. Howard would also allow her to have contact and a relationship. In contrast, Ms. Rhoads testified she has concerns about placement with Appellant because of an alleged suicide attempt. She also expressed vague concerns about Appellant’s mother. {¶21} On June 16, 2020, the trial court found it is not in the best interest of X.H. to be placed in the custody of Appellant. The trial court dismissed Appellant’s complaint. In the entry of dismissal, the trial court observed: The Court in vesting custody of [X.H.] * * * with Virgie Marie Howard, paternal grandmother, is not condemning the care provided [X.H.] by Alexandria Miller. The competing complaints for custody of [X.H.] primarily boiled down to placing [X.H.] with a family versus non-family member. Also of note is the fact Alexandria Miller works outside the home and Virgie Marie Howard does not. Furthermore, Alexandria Miller admitted she denied at times and for various reasons family contact with [X.H.] That denial coupled with testimony by Alexandria Miller of a potential adoption of [X.H.] creates concerns for future good faith efforts by Alexandria Miller to permit the biological family contact with [X.H.] * * * The Court further notes it is without authority to grant Alexandria Miller companionship/visitation with [X.H.]. Highland App. No. 20CA9 9 {¶22} This timely appeal followed. ASSIGNMENT OF ERROR I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING ALEXANDRIA MILLER’S COMPLAINT FOR CUSTODY AND GRANTING CUSTODY TO VIRGIE HOWARD WHEN THE COURT’S DECISION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. STANDARD OF REVIEW {¶23} A trial court has broad discretion in determining custody matters. See Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, ¶ 9 (4th Dist.), citing Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008 (1996). Consequently, we can sustain a challenge to a trial court's custody decision only upon a finding that the trial court abused its discretion. See Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). When applying an abuse-of-discretion standard, we are not free to merely substitute our judgment for that of the trial court. See In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). {¶24} In this case, Appellant has challenged the sufficiency of the evidence and also argues the trial court’s decision is against the manifest weight of the evidence. In a civil case a challenge to the “sufficiency of the evidence” merges into a challenge that a verdict is against the “manifest weight of the evidence.” See Highland App. No. 20CA9 10 Dolan v. Glouster, 4th Dist. Athens Nos. 11CA18, 12CA1, 11CA19, 12CA6, 11CA33, 2014-Ohio-2017, at fn. 17; Thompson v. Allen, 2nd Dist. Montgomery No. 23292, 2010-Ohio-1133, at ¶ 8; Wolfe v. Walsh, 2nd Dist. Montgomery No. 21653, 2008-Ohio-185 at ¶ 18. We review whether a custody determination is against the manifest weight of the evidence by weighing the evidence and all reasonable inferences, considering the credibility of witnesses, and determining whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. See In the Matter of B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 28, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. LEGAL ANALYSIS {¶25} “ ‘ “The right of a parent to the custody of his or her child is one of the oldest fundamental liberty interests recognized by American courts.” ’ ” In the Matter of E.S.,4th Dist. Pickaway No. 17CA16, 2018-Ohio-1902, at ¶ 25, quoting State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 31, quoting In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 10. However, if a parent is unsuitable, the parent forfeits his or her paramount right to custody. E.S., supra at ¶ 26, citing In re Perales, 52 Ohio St.2d 89, 98-99, 369 N.E.2d 1047 (1977). In this case, Natasha Rhoads admitted at the Highland App. No. 20CA9 11 beginning of the custody hearing that she is unable to care for X.H. She has not challenged the suitability issue or participated in this appeal. {¶26} Appellant herein contends the trial court’s decision was unreasonable, arbitrary, and unconscionable in light of the fact that the minor child had spent its entire life with her. She argues that all testimony, including the GAL’s report, supported her complaint for custody. Specifically, Appellant contends that the trial court’s decision was “dismissive” of the GAL report, particularly the evidence that X.H.’s father overdosed in Virgie Howard’s home. Furthermore, Appellant also contends that the trial court’s acknowledgment that the decision “boiled down to placing [X.H.] with a family versus non-family member” demonstrates the familial relationship was the paramount factor. Appellant concludes that clearly the trial court did not properly consider all the relevant factors under R.C. 3109.04. For the reasons which follow, we disagree with Appellant. {¶27} R.C. 3109.04(F)(1), set forth below in pertinent part, provides that in determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to: (a) The wishes of the child's parents regarding the child's care; (b) * * * Highland App. No. 20CA9 (c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest; (d) The child's adjustment to the child's home, school, and community; (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate courtapproved parenting time rights or visitation and companionship rights; (g) * * * (h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state. 12 Highland App. No. 20CA9 13 (2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following factors: (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. (3) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent's financial status or condition. (Emphasis added.) {¶28} In this case, both parties presented favorable evidence in support of the competing complaints for custody. The evidence set forth in the factual background above is essentially all the evidence the trial court had to consider. And, as indicated above, the trial court simply referenced the findings of fact and conclusions of law set forth in the companion case brought by Virgie Howard. In the absence of findings of fact and conclusions of law, we presume that the trial court applied the law correctly and will affirm its judgment if evidence in the record supports it. See Stamper v. Polley, 2020-Ohio-3709, 155 N.E. 3d 969, at ¶ 17; Harper v. Neal, 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, at ¶ 19; Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, ¶ 10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (12th Dist.1989); accord Leikin Oldsmobile, Inc. v. Spofford Auto Sales, 11th Dist. Lake No. 2000-L-202, 2002-Ohio-2441, at ¶ 17. Highland App. No. 20CA9 14 {¶29} Appellant first characterizes the trial court’s decision as “dismissive” of the GAL report. Sup.R. 48 explicitly provides that the role of the guardian ad litem is to “assist a court in its determination of a child's best interest” by providing the court with relevant information and “an informed recommendation” about the child's best interest. See Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012Ohio-2615; Sup.R. 48(B) and (F).4 See also R.C. 3109.04(F)(2)(e) (the role of the guardian ad litem is to provide the court with a “recommendation” about the children's best interests). While guardians ad litem play important roles in child custody matters and in evaluating the interest of children, their recommendations would not be binding upon this court. See Seymour v. Hampton, 4th Dist. Pike No. 11CA821, 2012-Ohio-5053, at ¶ 27; In re RN, 10th Dist. Franklin No. 04AP-130, 2004-Ohio-4420, ¶ 4. The trial court must be free to evaluate all of the evidence and determine, based upon the entire record, the children's best interest. Id. See also, Gould v. Gould, 4th Dist. Lawrence No. 16CA30, 2017-Ohio-6896, at ¶ 17. We do not agree with Appellant’s assertion that the trial court was dismissive of the GAL report. The evidence cited in the trial court’s brief opinion was also contained in the GAL report. {¶30} Next, Appellant contends that the trial court was dismissive of the evidence that X.H.’s father overdosed in Virgie Howard’s home. The guardian ad 4 Highland County Juvenile Court Rule 22(A) provides that “[t]he appointment, training, responsibilities and issuing of reports of Guardians Ad Litem and the responsibilities of the Court pertaining to Guardians Ad Litem shall be governed by Rule 48 of the Rules of Superintendence for the Courts of Ohio.” Highland App. No. 20CA9 15 litem is required by Sup.R. 48(D)(13) to interview the parties, the children, and school personnel and to include relevant information in her report, which may include some of the information that she learned from those people. See also R.C. 3109.04(F). The intended purpose of the guardian ad litem gathering that information, however, is not to offer evidence to the court of the facts that she gathered but to explain the basis for her recommendation. See Sypherd, supra, at ¶ 12. {¶31} The parties stipulated to the recommendations in the GAL report. The GAL did not testify at the custody hearing and there was no testimony about the father’s overdose. This information is contained within the report. The report indicates that in interviewing Appellant, the GAL obtained information that “Mr. Holsinger ended up overdosing prior to the birth of X.H. at his mother’s house” and “Ms. Howard was the one who found Scott the day he overdosed.” Ms. Howard did not verify this information during her interview. This information, if true, is troubling. {¶32} However, in the trial court’s brief decision, the trial court noted the evidence that Appellant is employed outside the home, while Virgie Howard is not similarly employed. The trial court also noted the evidence that Appellant had denied Ms. Howard contact with the child. The record demonstrates the paternal grandmother was only able to see the child twice in an approximate six-month span Highland App. No. 20CA9 16 of time. Appellant also expressed a possible desire to adopt X.H. While the trial court did not cite this evidence in the decision, Appellant also testified to the possibility of relocating from the area. {¶33} The trial court’s decision, though brief, demonstrates a thoughtful consideration of all the evidence presented in the GAL report and the in-court testimony. While the evidence regarding the overdose may have outweighed other considerations to another court, given our limited review, we decline to secondguess the trial court’s analysis of all the evidence. {¶34} Finally, Appellant argues that the fact that Virgie Howard is X.H.’s blood relative outweighed all other factors. “[W]hile ‘blood relationship’ and ‘family unity’ are factors to be considered when determining a child's best interest, neither one is controlling.” In re E.S.K., 12th Dist. Clermont No. CA2020-06-029, 2020-Ohio-5568, at ¶ 59; In re S.K.G., 12th Dist. Clermont No. CA2008-11-105, 2009-Ohio-4673, ¶ 12. Instead, the court “should consider the totality of the circumstances affecting the best interest of the child.” In re S.L., 12th Dist. Butler Nos. CA2012-07-137 thru CA2012-07-142 and CA2012-07-147 thru CA2012-07149, 2013-Ohio-781, ¶ 54. See also, In re J.B.S., 4th Dist. Scioto No. 09CA3316, 2010-Ohio-1974, at ¶25. The R.C. 3109.04(F) factors a court should consider when determining the best interest of a child are already set forth above. In the trial court’s decision, while not citing the statute, it did utilize the “best interest” Highland App. No. 20CA9 17 language. As indicated previously, in the absence of findings of fact and conclusions of law, we presume the trial court correctly applied the law and herein we find no reason to support an alternative presumption. {¶35} Importantly, we are mindful that issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. See In the Matter of M.M., 4th Dist. Pike No. 20CA907, 2021-Ohio-2287, at ¶ 31. Id. at ¶ 19. As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984): “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Moreover, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶ 7. {¶36} Both Appellant and Virgie Howard presented compelling evidence to support their complaints for legal custody. The evidence makes clear that both parties love X.H. and want to give him a happy, stable life. However, we find no basis for finding the trial court’s decision to be arbitrary or capricious. Given that Highland App. No. 20CA9 18 our standard of review is abuse of discretion and because the trial court’s judgment is supported by some competent, credible evidence, we must conclude the trial court did not abuse its discretion in granting legal custody of X.H. to Virgie Howard. {¶37} Based on the foregoing, we find no merit to Appellant’s arguments contained within the sole assignment of error. Accordingly, it is hereby overruled. The judgment of the trial court is affirmed. JUDGMENT AFFIRMED. Highland App. No. 20CA9 19 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court, Juvenile Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Hess, J., concur in Judgment and Opinion. For the Court, __________________________________ Jason P. Smith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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