[Cite as In re D.M., 2011-Ohio-3918.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: D.M.
:
CASE NO. CA2010-11-088
:
:
OPINION
8/8/2011
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2006 JG 14000
Anita Bechmann, 2340 Clermont Center Drive, Batavia, Ohio 45103, Guardian Ad
Litem
D.M., 154 Paradise Lane, Williamsburg, Ohio 45176, appellee pro se mother
Michael A. Kennedy, 70 North Riverside Drive, Batavia, Ohio 45103, for appellant
father
HUTZEL, J.
{¶1}
Appellant, T.M. (Father), appeals a decision of the Clermont County
Court of Common Pleas, Juvenile Division, granting custody of his son, D.M., to the
child's biological mother.
{¶2}
D.M. was born in December 2004. Although divorced, the parties were
living together at the time of their son's birth. In June 2005, the parties separated
Clermont CA2010-11-088
when Mother moved out of Father's home with D.M. A year later, Mother moved for
custody of D.M. Eventually, the parties entered into a shared parenting plan which
was incorporated into a Shared Parenting Decree in January 2008. The plan set out
a two-week visitation rotation that gave each party equal parenting time.
It is
undisputed, however, that as written, the shared parenting plan was never followed
by the parties because of Father's work schedule. As a result, Father had parenting
time during the evening once or twice weekly and occasionally on the weekends. In
June 2008, Mother moved back in Father's home; however, later that year, she
moved out again with D.M. and went to live with her boyfriend, Thomas H.
{¶3}
In September 2008, Father started dating Ciera S. Mother has known
Ciera since Ciera was four years old; Mother and Ciera's mother have been friends
for over 15 years. In the fall of 2008, Ciera started staying at Father's house with her
two children (a five-year-old daughter and a one-year-old son). She and her children
moved in Father's house in January 2009. Ciera and Father both testified that D.M.
has a good relationship with Ciera's children.
Ciera is unemployed; her driver's
license is currently suspended; she used to, but claims she no longer has, a
substance abuse problem (marijuana); and she denied intentionally harming herself
in order to obtain pain medication. On her 21st birthday (September 2008), she was
arrested for driving without a license and for drug abuse.
{¶4}
It is undisputed that as soon as Father started dating Ciera, the
dynamics of his relationship with D.M. began to change. Father testified in May 2009
that he had been denied visitation with his son for over six months. Father explained
that whenever he would call Mother to ask her if he could pick up D.M., Mother would
tell him, "no, he doesn't want to go. I'm not forcing my son to go with you." Initially,
-2-
Clermont CA2010-11-088
Father stopped driving to Mother's home to pick up D.M. as this would have been in
vain. Eventually though, he started going to Mother's home with a police officer. Yet,
he was never able to pick up his son because Mother would not allow it. As a result,
each time, Father was reduced to visit with his son for only a few minutes.
{¶5}
Father testified that he once tried to leave Mother's home with D.M.
when a police officer was present. Mother yelled and screamed, D.M. became very
upset, and per the officer's advice, Father put his son down and left without him.
Father also testified he stopped calling his son in the evenings because even when
his calls were answered, Father was not able to speak with his son.
{¶6}
Mother testified that until the fall of 2008, Father was a good father.
However, in the fall of 2008, Father started to be less involved in D.M.'s life.
Between November 2008 and January 2009, Father did not see D.M. at all as he did
not call or come to her house. When Father tried to again exercise visitation in
January 2009, D.M. would refuse to go with his father as he was afraid of him.
Mother testified that she respected her son's wishes and that she did not force him to
go with his father if he did not want to. Mother denied doing anything to prevent
Father from having parenting time with D.M. and in fact stated she wanted Father to
have a relationship with D.M. Mother testified that after he started dating Ciera,
Father's house changed (in that it now had cigarette butts and sex toys), however,
D.M.'s bedroom had not.
{¶7}
Thomas, Mother's boyfriend, testified the relationship between Father
and D.M. started to change after Father started dating Ciera. Thomas testified that
when asked, D.M. states he does not want to go with his father. Thomas denied
Father's visitation is obstructed by Mother. Rather, Mother is protecting her son,
-3-
Clermont CA2010-11-088
which includes telling Father he will not be able to leave with D.M. if the child says he
does not want to go. Thomas testified he has a good relationship with D.M.
{¶8}
Mother also testified she was not willing to let D.M. go with Father
because she had no means to contact Father. Mother testified that whenever she
tried to call Father, he would either not answer her calls or would cuss at her. On the
rare occasions when she could leave a voicemail, Father would not call her back.
The record shows that in November 2008, Mother placed 80 calls to Father one day,
and 115 calls the next day. Mother admitted she "would blow [Father's] phone up" by
calling him constantly so that they could talk about their son. Mother saw nothing
wrong with calling Father constantly until he would either call back or "does what's
right by his son." Father explained he does not return Mother's calls because he
typically cannot get a word in as Mother screams and cusses at him. Father testified
that Mother's incessant calling is harassing and has caused problems at his work.
{¶9}
Mother is bipolar, for which she takes medication. After D.M.'s birth,
she worked at Subway but was terminated for missing work.
She is currently
unemployed and is financially supported by Thomas. She has a criminal history that
includes substance abuse offenses both before and after the child's birth. Prior to
D.M.'s birth, Mother was convicted of operating a vehicle while under the influence
(OVI) in 2002, was addicted to methamphetamine in 2001 or 2002 but no longer uses
the drug thanks to a treatment paid for by Father, and was convicted of attempted
manufacturing of methamphetamine.
{¶10} Since D.M.'s birth in December 2004, Mother's criminal record includes
an OVI conviction in 2007, a drug abuse conviction in 2007 (marijuana possession),
a theft conviction in 2007, and a probation violation in 2008 for testing positive for
-4-
Clermont CA2010-11-088
marijuana in August 2008. Mother denied having a marijuana problem and stated
her random drug screens after August 2008 have been negative.
Mother and
Thomas both have suspended driver's licenses and also have ignition interlock
devices in their cars. Mother also has restricted license plates.
{¶11} Testimony was presented regarding Ciera's 21st birthday party which
took place at Father's house. Doris S., a friend of Mother, attended the party. She
testified to observing several underage people consuming alcohol.
She also
observed Father and Ciera snort some orange powder and some white powder.
After drinking two or three beers, Doris left the party and went to a bar. Although she
was outraged by the activities taking place at Father's house, she did not call the
police. D.M. was not at his father's house that day. Father testified that while there
was alcohol at the party, there were no underage people, nor were there any drugs.
Father denied snorting anything at the party. Father testified he does not like drugs
and that he spent a lot of money on Mother's substance abuse treatment. Father
testified he had to ask Doris to leave the party as she was intoxicated and causing a
disturbance.
{¶12} Father works full-time at King's Island, starting his days at 5 a.m. during
the summer, and at 6 a.m. during the winter. He has no criminal history. D.M. has
his own bedroom in Father's house. Father testified he loves his son, has a good
relationship with him, and wants to spend a lot of time with him. Father testified that
if he had custody of D.M., his mother, who adores D.M., would help in the mornings if
needed. Likewise, Ciera would help if needed.
{¶13} The reason the shared parenting plan was not followed by the parties
was because of Father's work schedule. As a result, until September 2008, Father
-5-
Clermont CA2010-11-088
had parenting time during the evening once or twice weekly and occasionally on the
weekends.
Father testified that although D.M. could have stayed at his house
overnight and be cared for by his paternal grandmother in the mornings, it never
happened as Mother was adamantly opposed to D.M. being cared for by a paternal
relative other than Father.
{¶14} In November 2008, Mother moved to modify the shared parenting plan.
In March 2009, Father moved to terminate the shared parenting plan and sought
custody of D.M. Father also filed a contempt motion alleging Mother had denied him
parenting time on several occasions in March 2009. Following a hearing on the
parties' motions in May 2009, the magistrate terminated the shared parenting plan
and granted custody of D.M. to Mother. The magistrate did not rule on the contempt
motion.
{¶15} Father filed objections to the magistrate's decision. He also filed a new
contempt motion alleging Mother had denied him parenting time on four occasions in
July 2009. On October 28, 2009, the juvenile court found Father's objections to be
well-taken, appointed a guardian ad litem (GAL) for the child, and remanded the case
to the magistrate. On November 16, 2009, the magistrate found Mother in contempt
for denying Father parenting time on four occasions in July 2009.
{¶16} In 2010, Father filed his third contempt motion alleging Mother had
denied him parenting time on four occasions in January 2010. The GAL filed two
reports. In her first report (filed in February 2010), the GAL noted that (1) Father was
not receiving parenting time as the child refused to go with his father; (2) Mother felt
Father should have no parenting time as the child was "afraid" of his father; (3)
Father felt Mother had alienated his son from him; (4) the child attended therapy at
-6-
Clermont CA2010-11-088
Cincinnati's Children Hospital; and (5) according to the therapist, parenting time could
resume as long as there was a transition to the previous parenting time schedule and
that Mother was not a part of that transition. The GAL stated it was in the best
interest of the child to resume parenting time with father immediately.
{¶17} By temporary order signed by the parties, the juvenile court granted
parenting time to Father on alternating weekends and overnight visitation on
alternating Wednesdays, effective April 9, 2010. Father subsequently filed his fourth
contempt motion alleging Mother had denied him parenting time on April 9, 2010.
{¶18} In her second report (filed in August 2010), the GAL stated that Father
had been denied parenting time on at least four occasions between April 9 and July
4, 2010. "Further, several incidents have happened during the parenting time that
have caused distress for [D.M.]. On one weekend, Mother called [the child's] cell
phone numerous times asking if he needed or wanted to come home. At some point,
the child went down on the floor, covered his head with his hands and curl[ed] up into
the fetal position. Father turned off the child's cell phone. Mother came to Father's
home at 11:30 pm and brought the police. [D.M.] had to be awakened to talk with the
police. The police have been sent to Father's house on other occasions during the
child's visit."
{¶19} The GAL further stated that (1) to address Mother's concerns, the GAL
asked Father and Ciera to take a drug test; both immediately complied with the
request; the results were negative for both; (2) according to Mother, since the visits
have resumed, D.M. is not sleeping well; and according to the therapist, Mother
reports an increase in aggressive behavior and agitation for D.M.; and (3) the GAL's
review of telephone conversations between Father and/or Ciera and Mother revealed
-7-
Clermont CA2010-11-088
Mother's disdain for the juvenile court's orders and her determination to interfere with
Father's parenting time. In her recommendations, the GAL stated:
{¶20} "[I]t is in the best interest of [the child] to spend at least half of his time
at Father's home. Further, if Mother continues to interfere with this parenting time, or
continues to place [the child] in the middle of her conflicts, the Court should consider
granting custody to Father. Mother's refusal to follow a Court Order raises concerns
for her ability to provide for the best interest of her child. If Mother cannot control her
behaviors, a psychological evaluation may be warranted. [T]ime is essential in this
case.
There is no doubt that the child is in distress.
A resolution of the
custody/parenting issues will be helpful in decreasing his anxiety."
{¶21} On August 12, 2010, the juvenile court found Mother in contempt for
denying Father parenting time on six occasions between January and July 2010. On
October 13, 2010, the juvenile court terminated the shared parenting plan, granted
custody of the child to Mother and named her the residential parent, and granted
Father parenting time. In addressing the best interest factors under R.C. 3109.04,
the juvenile court noted Mother's mental health and substance abuse history,
Mother's repeated unwillingness to cooperate with Father with regard to his
relationship and parenting time with their son, Mother's unwillingness to cooperate
with the court's orders, and the fact Mother had denied Father parenting time.
{¶22} The juvenile court also found, based on its August 2010 in camera
review of the child (then five years old), that D.M. "was the most uncommunicative,
anxious, and tense child that this Court has met under these circumstances. It is
abundantly clear that the constant, and escalating, conflict between the parties has
taken a tremendous toll on this young child. * * * [Further], the child is suffering
-8-
Clermont CA2010-11-088
stress and anxiety as a result of this pending proceeding." As a result of being found
in contempt for denying Father parenting time, Mother was also sentenced by the
juvenile court to 30 days in jail.
{¶23} Father appeals, raising one assignment of error:
{¶24} "THE TRIAL COURT ERRED IN DESIGNATING THE MOTHER
RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE MINOR CHILD."
{¶25} A juvenile court's custody decision will not be reversed absent an abuse
of discretion. A.S. v. D.G., Clinton App. No. CA2006-05-017, 2007-Ohio-1556, ¶39.
An abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When
applying the abuse of discretion standard, an appellate court's role is to ascertain
whether the award of custody is supported by competent and credible evidence. See
Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260. The discretion granted to a
juvenile court in custody matters should be accorded the utmost respect, given the
nature of the proceedings and the impact the court's determination will have on the
lives of the parties concerned. A.S. at ¶39.
{¶26} Because Father moved to terminate the shared parenting plan, his
motion was governed by R.C. 3109.04(E)(2)(c). See In re A.B., Butler App. No.
CA2009-10-257, 2010-Ohio-2823. Under R.C. 3109.04(E)(2)(c), a juvenile court may
terminate a shared parenting plan if it determines that the plan is not in the best
interest of the child. Upon terminating a shared parenting plan, a juvenile court must
then "issue a modified decree for the allocation of parental rights and responsibilities"
in accordance with the best interest of the child, "as if no decree for shared parenting
had been granted and as if no request for shared parenting ever had been made."
-9-
Clermont CA2010-11-088
R.C. 3109.04(E)(2)(d).
{¶27} In determining the best interest of a child, a juvenile court is required to
consider "all relevant factors" found in R.C. 3109.04(F)(1) including, among others:
(1) the wishes of the child's parents; (2) if the juvenile court has interviewed the child
in chambers, the wishes and concerns of the child; (3) the child's relationship with the
parents, siblings, and any other person who may significantly affect the child's best
interest; (4) the child's adjustment to home, school, and community; (5) the mental
and physical health of all parties; (6) the parent most likely to honor and facilitate
court-approved parenting time, visitation, and companionship rights; (7) any failure of
a parent to promptly pay a child support payment, when required to do so by the
courts, and (8) whether one of the parents has continuously and willfully denied the
other parent's right to parenting time. R.C. 3109.04(F)(1)(a) through (i).
{¶28} Upon a thorough review of the record, we find that the juvenile court
abused its discretion in granting custody of D.M. to Mother.
{¶29} At the outset, we note that we are mindful that Mother has been the
primary caregiver of the child since he was born, as she emphasizes in her appellate
brief. "Although it is not a codified factor under R.C. 3109.04(F)(1), Ohio courts have
held that a parent's role as the primary caregiver is nevertheless a relevant factor
when determining the best interest of a child. This factor, however, is not given
presumptive weight over other relevant factors." Terry L. v. Eva E., Madison App.
No. CA2006-05-019, 2007-Ohio-916, ¶17.
Further, after terminating a shared
parenting plan, custody of a child is to be determined as if making an initial custody
determination. See Kelly v. Kelly, Miami App. No. 2001-CA-52, 2002-Ohio-1204.
{¶30} As the Second Appellate District stressed in the case In re Custody of
- 10 -
Clermont CA2010-11-088
Harris, 168 Ohio App.3d 1, 2006-Ohio-3649, "children have certain rights, including
'the right to love each parent, without feeling guilt, pressure, or rejection; the right not
to choose sides; the right to have a positive and constructive on-going relationship
with each parent; and most important * * * the right to not participate in the painful
games parents play to hurt each other or to be put in the middle of their battles.'" Id.
at ¶11, quoting Thomas v. Freeland (Oct. 10, 1997), Greene App. No. 97-CA-06.
{¶31} In the case at bar, both parents stand on an equal footing under several
of the statutory factors in R.C. 3109.04(F)(1). The juvenile court found that (1) both
parents want custody of their son, (2) D.M. has a deep emotional attachment to both
parents, and has a positive relationship with both Thomas and Ciera, the parents'
respective significant others, and (3) D.M. is seemingly well adjusted in either
parent's home, and is involved in age-appropriate school and extracurricular
activities. See R.C. 3109.04(F)(1)(a), (c), and (d). The juvenile court also found that
the factors under R.C. 3109.04(F)(1) (g), (h), and (j) were not applicable. The record
supports the court's findings.
{¶32} In addressing the best interest factors under R.C. 3109.04, the juvenile
court also noted Mother's mental health and substance abuse history, Mother's
repeated unwillingness to cooperate with Father with regard to his relationship and
parenting time with their son, Mother's unwillingness to cooperate with the court's
orders, and the fact Mother had denied Father parenting time.
See R.C.
3109.04(F)(1)(e), (f), and (i). Despite these findings, amply supported by the record,
the juvenile court granted custody of D.M. to Mother.
{¶33} In Flickinger, 77 Ohio St.3d 415, the Ohio Supreme Court stated that:
{¶34} "In today's society that fully admits the need for parenting by both
- 11 -
Clermont CA2010-11-088
parents, each parent should have full involvement in a child's life, where possible and
desired by the parent. When one parent begins to cut out another parent, especially
one that has been fully involved in that child's life, the best interest of the child is
materially affected. *** Clearly, preventing a child from spending time with a caring
and loving parent, as well as the hostility and friction generated by the disputes that
arise over such issues, may be considered harmful to the best interest of the child."
Id. at 419-420. (Emphasis sic.)
{¶35} We find it was arbitrary for the juvenile court to grant custody of D.M. to
Mother, a parent (1) who has repeatedly denied Father his parenting time, (2) who
was twice found in contempt by the juvenile court for denying Father's parenting time
on ten occasions in the span of a year (July 2009 to July 2010), (3) who is
determined to interfere with Father's parenting time as noted by the GAL in her
second report, (4) who has in fact interfered with Father's parenting time and whose
interference has caused great distress to the child, as reported by the GAL in her
second report, and (5) who, in the juvenile court's own words, "has demonstrated
repeatedly her unwillingness to not only cooperate with the Father concerning his
relationship and parenting time with the child, but her unwillingness to cooperate with
this Court's Orders."
{¶36} While the juvenile court properly terminated the shared parenting plan,
we find the court erred in granting custody of D.M. to Mother. Father's assignment of
error is well-taken and sustained.
{¶37} Judgment reversed and remanded for further proceedings.
POWELL, P.J., and HENDRICKSON, J., concur.
- 12 -
Clermont CA2010-11-088
This opinion or decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court's web site at:
http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions
are also available on the Twelfth District's web site at:
http://www.twelfth.courts.state.oh.us/search.asp
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: D.M.
:
:
CASE NO. CA2010-11-088
:
JUDGMENT ENTRY
:
:
The assignment of error properly before this court having been ruled upon, it is
the order of this court that the judgment or final order appealed from be, and the
same hereby is, reversed and this cause is remanded to the trial court for further
proceedings according to law and consistent with the Opinion filed the same date as
this Judgment Entry.
It is further ordered that a mandate be sent to the Clermont County Court of
Common Pleas, Juvenile Division, for execution upon this judgment and that a
certified copy of this Judgment Entry shall constitute the mandate pursuant to App.R.
27.
Costs to be taxed in compliance with App.R. 24.
- 13 -
Clermont CA2010-11-088
__________________________________
Stephen W. Powell, Presiding Judge
__________________________________
Robert A. Hendrickson, Judge
__________________________________
Rachel A. Hutzel, Judge
- 14 -
