In re E.W.

[Cite as In re E.W., 2012-Ohio-308.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY

IN THE MATTER OF:
CASE NO. 14-10-31
E. W.,

ADJUDICATED DEPENDENT CHILD,

[KRISTIE RISNER, OPINION
APPELLANT].

Appeal from Union County Common Pleas Court
Trial Court No. 20830064

Judgment Affirmed

Date of Decision: January 30, 2012

APPEARANCES:

Alison Boggs for Appellant

Perry Parsons for Appellee, James Wolford

Rick Rodger for Appellee, Union Co. Job & Family Services
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PRESTON, J.

{¶1} Mother-appellant, Kris Risner (hereinafter “Risner”), appeals the

judgment of the Union County Court of Common Pleas awarding custody of the

parties’ minor child, E.W., to father-appellee, James Wolford (hereinafter

“Wolford”). For the reasons that follow, we affirm.

{¶2} On October 14, 2008, the Union County Department of Job and

Family Services (hereinafter “UCDJFS”) filed a complaint alleging that E.W. was

a dependent child as defined in R.C. 2151.04(a), (b), and (c). (R. at 5). E.W. was

placed with her maternal grandmother and remained in UCDJFS’ temporary

custody during the pendency of the case. (R. at 22-24, 219-21).

{¶3} On December 12, 2008, an adjudicatory hearing was held wherein

E.W. was found to be a dependent child based upon the parties’ admissions. (R. at

186). That same day, Wolford filed a motion for custody of E.W. as a potential

disposition to the case. (R. at 185). On December 19, 2008, Risner filed a motion

for custody of E.W. as a potential disposition to the case. (R. at 202).

{¶4} On January 14, 2009, the matter proceeded to disposition; however,

prior to the commencement of the hearing, Risner made an oral motion to hold the

parties’ custody motions in abeyance while she was given an opportunity to

continue the case plan. (R. at 206, 219); (Jan. 19, 2009 Tr. at 6-7). The magistrate

ordered that: UCDJFS be granted temporary legal custody of E.W.; E.W. remain

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with her maternal grandmother as a kinship placement; the case plan be continued

as amended; and the matter be reviewed on May 14th and October 9, 2009. (R. at

220-21). The trial court adopted the magistrate’s decision on March 12, 2009. (R.

at 239).

{¶5} On April 9, 2009, UCDJFS filed a motion to modify disposition,

recommending that E.W. be returned to Risner with the agency retaining

protective supervision. (R. at 288-90).

{¶6} On April 10, 2009, the magistrate held a hearing on the parties’

motions for custody and UCDJFS’ motion to modify disposition and/or terminate

the agency’s involvement. (Apr. 10, 2009 Tr. at 4). At the conclusion of the

hearing, the magistrate awarded Wolford custody of E.W. and terminated

UCDJFS’ involvement in the case. (Id. at 146-48); (R. at 322-25). The magistrate

issued her decision on May 11, 2009. (R. at 322). The trial court adopted the

magistrate’s decision on May 12, 2009. (R. at 331).

{¶7} On May 26, 2009, Risner filed a notice of filing objections and motion

for an extension of time for filing objections after the completion of a transcript,

which the trial court granted. (R. at 339, 344-45). On June 4, 2009, Risner filed

her objections to the magistrate’s decision, but the trial court overruled the

objections on October 6, 2009. (R. at 346, 397-411).

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{¶8} On December 17, 2009, Risner filed a notice of delayed appeal, which

was assigned appellate case no. 14-09-43. (R. at 436). On January 7, 2010, this

Court denied the motion for delayed appeal finding that the order appealed from

was not a final appealable order since the trial court had not addressed the issue of

child support. (R. at 465).

{¶9} On October 6, 2010, the magistrate held a hearing to determine the

parties’ child support obligations and entered her decision the following day. (R. at

491-94). The trial court adopted the magistrate’s decision that same day. (R. at

504).1

{¶10} On November 3, 2010, Risner filed a notice of appeal. (R. at 510).

Risner now appeals raising three assignments of error for our review.

ASSIGNMENT OF ERROR NO. I

AFTER HEARING ALL THE EVIDENCE, THE TRIAL
COURT ABUSED ITS DISCRETION BY IGNORING THE
FACTORS LISTED IN OHIO REVISED CODE 3109.04(F)(1)
AND GRANTING CUSTODY OF THE MINOR CHILD TO
HER FATHER, JAMES WOLFORD.

{¶11} In her first assignment of error, Risner argues that the trial court

abused its discretion by failing to appropriately weigh the factors in R.C.

1
Although not raised by the parties herein, we note that the magistrate’s October 7, 2010 decision ordering
child support erroneously indicates that E.W. will be emancipated on May 31, 2010. (R. at 493). The
record reflects that E.W. will be emancipated as of May 31, 2012. (July 6, 2010 Tr. at 11).

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3109.04(F)(1), and the trial court’s custody decision was against the manifest

weight of the evidence.

{¶12} Initially, we note that Wolford failed to file an appellee’s brief.

Under these circumstances, App.R. 18(C) provides that: “* * * in determining the

appeal, the court may accept the appellant’s statement of facts and issues as

correct and reverse the judgment if appellant’s brief reasonably appears to sustain

such action.” Nevertheless, a reversal is not warranted herein.

{¶13} The trial court’s decision when allocating parental rights is guided by

the best interest of the child. R.C. 3109.04(B)(1). To determine the best interest of

the child, the trial court must consider all the relevant factors, including, but not

limited to:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers pursuant
to division (B) of this section regarding the child’s wishes and
concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of
the child, as expressed to the court;

(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;

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(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;

(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
parent pursuant to a child support order under which that
parent is an obligor;

(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;

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(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.

R.C. 3109.04(F)(1).

{¶14} A trial court has broad discretion in allocating parental rights, and its

decision will not be disturbed on appeal absent an abuse of discretion. Shaffer v.

Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶ 10, citing Davis v. Flickinger,

77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997); Siefker v. Siefker, 3d Dist. No.

12-06-04, 2006-Ohio-5154, ¶ 4. An abuse of discretion is more than an error of

judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983). When applying the abuse of discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court. Berk v. Matthews,

53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Furthermore, a reviewing court

will not reverse an award of custody that is supported by a substantial amount of

competent, credible evidence as being against the weight of the evidence. Bechtol

v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990).

{¶15} Nicolas Deagle, the UCDJFS case worker assigned since October

2008, testified that the agency became involved when it “received referrals with

regards to [Risner] having issues with her medications, having fallen down the

steps, and possible suicide ideation.” (Apr. 10, 2009 Tr. at 7). Deagle also

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indicated that an altercation occurred between Risner and E.W. leading up to the

filing of the complaint. (Id. at 7-8). Deagle testified that the agency requested that

Risner be involved with “FFT” to address the ongoing disputes between E.W. and

her. (Id. at 9). Deagle testified that the agency monitored Risner’s prescription

drug use, and that the number of pills he found in the bottles did not match the

prescribed number. (Id.). Risner explained to Deagle that the discrepancy could

have occurred if she took the prescribed medication for anxiety earlier in the day,

depending upon the amount of her anxiety that day. (Id.). Deagle testified that

Risner was subjected to one random drug test, which tested positive for

barbiturates and opiates; however, Risner also missed two other drug test

appointments, which the agency classifies as positive tests. (Id. at 10-11).

Consequently, of the four total drug tests, Risner failed three and the results for the

fourth test were not yet available. (Id. at 13). Deagle testified that Risner’s case

plan required her to attend counseling, but Risner missed eight of eleven sessions.

(Id.). Deagle further testified that Risner missed “less than probably five” visits

with E.W. (Id. at 14). Deagle testified that Risner has never provided her

prescriptions to account for her positive drug test result. (Id. at 14-15). When the

agency attempted to contact Risner’s physicians to find out about her

prescriptions, the physicians indicated that Risner was no longer a patient because

she exhibited drug-seeking behaviors. (Id. at 15). Deagle testified that Risner has

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not been prescribed any medications since January (2009), but he could not testify

whether or not Risner is still taking the medications. (Id. at 15-16).

{¶16} In addition, according to Deagle, E.W. is failing or getting D’s in all

of her classes, except choir and gym, and has had eighteen tardy slips since the

start of the school year. (Id. at 16). Deagle could not testify regarding Wolford’s

home since no one had inspected the home yet. (Id. at 16-17). Deagle testified that

Lora Diggs, who was working with Risner from FFT, reported that Risner was

addicted to prescription medications. (Id. at 17). Deagle testified that Risner had

problems taking prescription Dilaudid, and that Risner has been much better since

she is no longer taking that medication. (Id. at 17-18). Deagle testified that E.W.,

who originally voiced concerns over her mother’s prescription drug use, now

reports that her mother is doing much better. (Id. at 18).

{¶17} Deagle testified that E.W. had a prior case, which was terminated in

September 2008, approximately one month prior to the new case being filed. (Id.

at 19). Deagle testified that the agency was satisfied with Risner’s efforts in the

previous case leading up to its termination, though Deagle acknowledged that the

agency became involved again just one month later. (Id.). Deagle testified that he

felt things would be different this time because E.W. shared that she was not being

truthful with him during the last case about her mom’s medication usage. (Id. at

20). Deagle testified that the previous case was instituted because of an incident

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of domestic violence between Risner and her former husband. (Id. at 20). Deagle

testified that Risner had a positive drug test in the previous case, but that was

cleared up by Risner’s prescription medications. (Id.).

{¶18} On cross-examination, Deagle testified that he believes that Risner

has been forthcoming with him during this case, because she wants her child

returned. (Id. at 22). Deagle testified that Risner has a primary physician, which

could account for the prescription medications that she is currently taking. (Id. at

23-24). Deagle testified that Diggs indicated that the family was making good

progress. (Id. at 25). Deagle testified that Risner missed some of the counseling

sessions because she was sick, and Diggs cancelled an appointment due to illness

as well. (Id. at 26). Deagle testified that E.W.’s school grades were better last year

when she lived with Risner than this year when she was living with her maternal

grandmother. (Id. at 27-28). Likewise, most of E.W.’s tardies have occurred when

she resided with her maternal grandmother. (Id. at 28). Deagle testified that

Risner makes sure to attend parent-teacher conferences and is not happy with

E.W.’s academic performance or number of tardies. (Id.). Deagle testified that

Wolford was not pleased with E.W.’s academic performance either. (Id. at 29).

{¶19} Deagle testified that the agency filed a motion to modify disposition

ending its temporary custody of E.W. and returning E.W. to Risner. (Id. at 30).

Deagle testified that the case plan would still be in effect, requiring Risner to

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attend counseling and submit to random drug tests. (Id. at 30-31). Deagle testified

that the agency would check-up on Risner at least once a month since E.W. would

remain in the agency’s protective supervision. (Id. at 31). When asked if Risner’s

compliance has been “substantial,” Deagle testified “I would say that she’s

trying.” (Id.).

{¶20} Deagle testified that the agency would terminate its case plan if the

trial court gave Wolford custody of E.W. since Wolford lives in Kentucky. (Id. at

35). When asked if he had any concerns with Wolford, Deagle testified, “I have

nothing with Mr. Wolford.” (Id.). When asked if he had concerns with Risner,

Deagle testified, “[w]e are addressing issues in the case plan. Yes.” (Id.).

Concerning Wolford, Deagle testified that Wolford completed a drug and alcohol

assessment in the previous case, and that Wolford completed the six classes he

was required to attend. (Id. at 42). Deagle testified concerning Wolford with

respect to the current case plan as follows:

Q: * * * can you explain why you had no services requested of
Mr. Wolford in the case file.
A: With his case plan, Mr. Wolford had addressed the drug
and alcohol concern in our previous case plan. The Agency has
never received any recent concerns regarding Mr. Wolford’s
ability to parent, Mr. Wolford’s use of any medication other
than something that’s prescribed due to his back injury. There
was -- there was no need -- or there was no -- nothing that
warranted any kind of services put in place for him at this time.
Q: So is it fair to say you had no concerns over his role that he
would take in this case?

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A: Correct.

(Id. at 42-43).

{¶21} Wolford testified that he has lived in Gracen, Kentucky for about two

and a half years. (Id. at 44). Wolford testified that he lives with his wife, Margaret

Ann, who he married January 5, 2009. (Id.). Wolford testified that Margaret has

visitation with her two sons, ages thirteen and seventeen, from a previous

marriage. (Id. at 44-45). Wolford testified that E.W. does not see Margaret’s sons

very often when she visits since the boys chose to live with their father. (Id. at 45).

Wolford testified that his visitation with E.W. was every other weekend, every

other holiday, and six weeks in the summer. (Id.). Wolford testified that he

exercised his visitation rights with E.W. right after his first divorce from Risner

around 1995 or 1996 and has been seeing E.W. consistently since he has moved to

Kentucky about three years ago. (Id. at 46). Wolford testified that his visitations

with E.W. are “pretty good,” though he admitted he was learning new things

everyday as the father of a teenage girl. (Id. at 47). Wolford testified that E.W.

and he watch T.V. together, play the Wii together, ride four wheelers together, and

visit family together. (Id.). Wolford described E.W.’s relationship with Margaret

as “cool” and testified that they get along “as best as they can * * * they don’t

argue.” (Id.). Wolford testified that E.W. has twenty cousins that live in close

proximity to their home in Kentucky. (Id.).

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{¶22} Concerning his previous drug and alcohol assessment, Wolford

testified that he successfully completed five counseling sessions as required by the

agency. (Id. at 48). Wolford denied abusing drugs or alcohol but testified that he

is currently prescribed Percocet for his recent back surgery. (Id.). Wolford

testified that he only takes one ten-milligram pill per day, even though he is

allowed two ten-milligram pills per day, because he is a recovering alcoholic and

addict. (Id.). Wolford testified that he had been employed at W.A. Kendall

trimming trees around power lines for almost two years until he injured his back

on the job. (Id. at 49). Wolford testified that he is currently drawing workers’

compensation benefits and must report to the doctor after six weeks of physical

therapy. (Id.). Wolford testified that Margaret does not work since she is pregnant

but will return to work after their child is born. (Id. at 49-50). Wolford testified

that he is currently paying child support, though he has not been able to pay the

full amount due to his injury and decreased income. (Id. at 50). Wolford testified

that E.W. has a room and bed in his home when she visits, and that he is able to

continue to support E.W. (Id.). Wolford testified that he is asking the trial court to

grant him custody of E.W. since things are not going well for E.W. where she is

living. (Id. at 51). Wolford testified that E.W. would attend school at East Carter

High School, where his sister works as a teacher’s aide. (Id.). Wolford expressed

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his concern that Risner would continue to manipulate the agency if she was given

custody. (Id. at 52).

{¶23} On cross-examination, Wolford testified that he lives in a two-

bedroom mobile home. (Id. at 52). Wolford testified that Margaret is due in May

(2009), and that her sons stay at the mobile home one night per week. (Id. at 53).

Wolford testified that the bedrooms do not have doors, and that they use the

bathroom to change clothes. (Id. at 53). Wolford testified that Gracen, Kentucky

is about three and a half hours away from Marysville, Ohio. (Id. at 54). Wolford

testified that his stepfather drove him to court since he does not have a driver’s

license because he has a warrant out for a probation violation for failing to pay a

fine. (Id. at 55). Wolford testified that he relies upon family members for

transportation. (Id. at 56). Wolford testified that he did not know the ratings of the

schools in Gracen, Kentucky. (Id. at 56-57). Wolford was not sure how much

child support he paid when he was collecting workers’ compensation benefits, nor

could Wolford state the amount of his child support arrearage. (Id. at 57-58).

Wolford subsequently acknowledged that his child support balance was

$20,368.36, based upon records from Madison County, Ohio Department of Job

and Family Services. (Id. at 59). Wolford testified that he was married to and

divorced from Risner three times, and the last divorce was in 2005. (Id. at 60).

Wolford later testified that court records indicated that his last divorce was in

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1999, when E.W. was five years old. (Id. at 60-61). Wolford testified that he

exercised his visitation rights until 2003, when E.W. was almost ten or eleven

years old, until Risner would no longer allow him to pick up E.W. (Id. at 63).

Wolford testified that he tried to continue having a relationship with E.W. from

2003 to 2007 by contacting her on the phone since he was out of state. (Id.).

However, Wolford testified that Risner would answer the phone and say that E.W.

did not live there. (Id.). Wolford testified that he did not see E.W. for a year and a

half, but did send birthday cards and sent Risner money. (Id. at 64). Wolford

testified that his mother tried to visit E.W. as best as she could, but Risner

threatened to stop her visitation if she allowed him to talk to E.W. (Id. at 65).

Wolford testified that he had not provided E.W. with health insurance as ordered

since it would cost him half of his salary. (Id. at 66). Wolford testified that Risner

called the police on him eleven times when they were married for alleged

domestic violence, but he only pled guilty to domestic violence once. (Id. at 69-

71). Wolford testified that E.W. was close to several, but not all, of her cousins in

Kentucky. (Id. at 72). When asked how long he has been a recovering alcoholic,

Wolford answered, “[i]t’s been 24 hours today. But I really couldn’t tell you. I

try not to set deadlines or dates so that I won’t set myself up for failure. I know

it’s been two and a half years at least.” (Id. at 73).

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{¶24} When asked where all the people would sleep in the mobile home,

Wolford testified that E.W. would have her own bedroom; Margaret’s boys would

sleep in the living room on an air mattress or in a recliner; and the newborn would

sleep in his wife and his bedroom until he is at least three years old. (Id. at 74).

Wolford testified that E.W. went to school in Kentucky, and that it went “pretty

good.” (Id. at 75). Wolford testified that E.W. dresses different than some of the

children down there; specifically, E.W. dresses more provocatively than his

sister’s children since his sister is a Christian. (Id. at 76). When asked if E.W. is

an outsider, Wolford testified, “[n]o. They all run and jump on the trampoline and

she’s got a tendency to lean towards younger kids. And she pals up with them and

takes care of them and teaches them games, all kinds of stuff down there. It’s

amazing and – what she does with them.” (Id.).

{¶25} Next, Risner testified that Wolford left E.W. and her four days after

E.W. was born. (Id. at 78). Risner testified that Wolford was a drunk and drug

addict who would not work. (Id.). According to Risner, Wolford came back six

months later and told her that he had changed, so they were married again, but she

left him again when he kicked her, her eight-year-old son, and two-year-old

daughter because they were interfering with his drinking. (Id.). Risner testified

that she married him again the third time because he, again, stated he had changed,

but she made him leave the house after three days and filed for the third and final

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divorce. (Id.). Risner testified that their family unit was dysfunctional, and

Wolford was very jealous of and mean towards her son. (Id. at 79-80). Risner

testified that Wolford failed to pay child support regularly until October 2007. (Id.

at 80). Risner testified that, since 1999, Wolford has failed to provide E.W. health

insurance, and he has never given her money for school clothes. (Id. at 81). Risner

testified that Wolford’s visitation with E.W. was sporadic from 1999 to 2003, and

Wolford had absolutely no contact with E.W. from 2003 to 2007. (Id. at 82).

According to Risner, Wolford’s mother lived ten to fifteen minutes away from

E.W. but only called to visit with E.W. every six months. (Id.). Risner testified

that Wolford began having regular contact with E.W. in October 2007 when the

current case started. (Id. at 83). Risner testified that Wolford does not allow her to

contact E.W. when she is visiting him. (Id. at 85). Wolford only allows her to talk

to E.W. for ten minutes while she is visiting him, and, on one occasion, Wolford

yelled at E.W. for continuing to talk to her on the phone. (Id.). Risner testified

that she lives in a three-bedroom apartment with E.W., and her son stays at the

apartment sometimes. (Id. at 86). Risner testified that E.W. is very close with her

son. (Id.). Risner testified that she supports herself and E.W. through Social

Security disability payments, and that her son supports himself through working.

(Id. at 86-87). Risner testified that FFT is going wonderful, and Diggs is a

Godsend. (Id. at 88). According to Risner, Diggs taught E.W. and her how to be

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more open, honest, and respectful to each other. (Id.). Risner testified that E.W.

and she go to the park together, watch movies together, play video games together,

and shop together. (Id.). Risner testified that E.W.’s friends, grandpa and

grandma, aunts, uncle, and cousins live in Marysville. (Id. at 89). Risner testified

that E.W. told her she wanted to come home. (Id. at 90).

{¶26} E.W. is having difficulty adjusting to high school, according to

Risner. (Id.). E.W.’s grades in September and October “weren’t too bad” but then

they started to drop after E.W. moved in with her grandmother. (Id.). Risner

further testified that, unlike her mother, she would check to see if E.W. completed

her homework and would go over it if E.W. had questions. (Id. at 90-91). Risner

testified that E.W.’s eighteen tardies all occurred after E.W. moved in with her

grandmother, and that she was unaware of the tardies. (Id. at 91). E.W. has lived

in Marysville since 1995. (Id.). Risner testified that E.W. was “very adamant”

about not wanting to live in Kentucky, though E.W. enjoys visiting her father

every other weekend. (Id. at 92). Risner testified that E.W. does not want to move

away from her family and friends in Marysville, and that E.W. does not feel

comfortable in Kentucky with its different culture. (Id.). Risner also testified that

E.W. told her that she does not get along with Wolford’s new wife, and she is

concerned with E.W. having no bedroom door. (Id. at 93). Risner also expressed

concern with E.W. having space for her clothes since the closet of the bedroom

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where E.W. sleeps when she visits Wolford is full of Margaret’s clothes. (Id. at

94). Risner testified that E.W. needs to have Wolford in her life, but she believes

that she should have custody of E.W. since E.W. has been with her all of her life.

(Id. at 95).

{¶27} On cross-examination, Risner denied that the agency was involved

due to her prescription drug abuse. (Id. at 97). Risner admitted that one of her

doctors refuses to treat her because of her drug seeking behavior. (Id. at 99).

Risner testified that she was prescribed Cymbalta for depression; Limlamictal for

bipolar disorder; Atenolo for mitral valve prolapse; Synthroid for hypothyroidism;

Xanax for anxiety; Nexium for acid reflux; and Clonopin for insomnia. (Id. at 102-

104). Risner testified that she was also taking Fiornal and Dilaudid until her

incident with her daughter and then she stopped taking these medications. (Id. at

104). Risner admitted that she had been in two abusive marriages. (Id. at 109-

111). Risner testified that she would like Wolford to have visitation with E.W.

every other weekend and six weeks in the summer. (Id. at 111). Risner testified

that Wolford was not telling the truth when he stated that he tried calling E.W.

from 2003 to 2007. (Id. at 113).

{¶28} Richard Mickley, Esq., the appointed guardian ad litem (“GAL”),

testified that he conducted an investigation, was present for E.W.’s in-camera

interview, and talked with the parties involved in the case. (Id. at 121). Mickley

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testified that, after listening to the testimony at the hearing, he would recommend

that E.W. be placed with Wolford, even though E.W. would rather stay in

Marysville. (Id. at 122). Mickley testified that one of the reasons for his

recommendation is that the agency still has concerns with Risner, while it has no

concerns with Wolford, and E.W. enjoys visitations with Wolford. (Id.). Mickley

testified that he was not sure what Deagle would say about Wolford until the

hearing, and that he has never been to Wolford’s home. (Id. at 123). Mickley

testified that his decision was based upon balancing the information he had, not

“an absence of knowledge.” (Id.). Mickley denied that E.W. was “adamant” about

staying in Marysville, though he admitted that E.W. did not want to leave

Marysville because she was comfortable living there. (Id. at 124).

{¶29} After hearing all the evidence and a brief recess, the magistrate

decided that it was in E.W.’s best interest to grant Wolford custody. (Id. at 133,

146). In reaching her decision, the magistrate analyzed all of the R.C.

3109.04(F)(1) factors upon the record. (Id. at 133-46). Like the magistrate, the

trial court also extensively reviewed the R.C. 3109.04(F)(1) factors in light of the

evidence presented at the hearing. (Oct. 6, 2009 JE, R. at 397). In reaching its

decision, the trial court noted that, although it had concerns about both parents,

“the most persuasive evidence in this case was that Ms. Risner has failed to

comply with the case plan regarding her substance abuse and mental health

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issues.” (R. at 410). The trial court concluded that “if [E.W.] were reunified with

Ms. Risner, the family would be back before this Court again in a very short time.”

(Id.).

{¶30} Upon review of the record, we cannot conclude that the trial court

failed to adequately weigh the R.C. 3109.04(F)(1) factors as Risner asserts. A

simple reading of the transcript and the entries herein belie such an assertion.

Risner points to the fact that the magistrate merely mentioned that Wolford was

living in “Kentucky” without fully analyzing the significance of that factor.

However, the trial court is not required to address all the R.C. 3109.04(F)(1)

factors—only consider them—which the trial court clearly did in this case. Lucas

v. Lucas, 3d Dist. No. 11-93-6, at *3 (Mar. 25, 1994); Brammer v. Meachem, 3d

Dist. No. 9-10-43, 2011-Ohio-519, ¶ 30, citations omitted. Essentially, Risner

asks this Court to reweigh the evidence and reach a different conclusion than the

trial court, which we are not permitted nor inclined to do. Blakemore, 5 Ohio St.3d

at 219, 450 N.E.2d 1140; Hall v. Hall, 3d Dist. No. 6-10-11, 2010-Ohio-4818, ¶

26 (weight to be given to the evidence is primarily reserved to the trier of fact).

Besides that, much of the evidence supporting Risner’s assertions on appeal was

gleaned from her own testimony at the hearing, and the magistrate questioned

Risner’s credibility. (Apr. 10, 2009 Tr. at 143). Furthermore, the record contains

no evidence of the magistrate or trial court being biased against Risner as she

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asserts. Certainly the magistrate expressed her frustration with Risner’s failure to

attend her counseling and drug screening appointments as required under the case

plan, but that does not equate to bias. (Id. at 141).

{¶31} Finally, we find that the trial court’s custody determination was

supported by substantial competent, credible evidence and was, therefore, not

against the manifest weight of the evidence. Bechtol, 49 Ohio St.3d at 23, 550

N.E.2d 178. The record, taken as a whole, demonstrated that both parents had

some issues, but Wolford’s issues were past issues, not present issues like

Risner’s. The record also demonstrated that Risner failed to complete the case

plan objectives, even when the magistrate continued the case to provide Risner

with more time to do so. (Apr. 10, 2009 Tr. at 143). Given Risner’s failure to

adequately address her problems, the trial court was concerned that E.W. would

continue to be involved in further court proceedings, which was not in E.W.’s best

interest. (R. at 410). Under these circumstances, we cannot find that the trial

court’s custody determination was against the manifest weight of the evidence.

{¶32} Risner’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED WHEN IT PERMITTED THE
GUARDIAN AD LITEM TO TESTIFY OR EXPRESS AN
OPINION WHEN HE HAD NOT CONDUCTED A FURTHER
INVESTIGATION OR SUBMIT A SUPPLEMENTAL

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REPORT AFTER THE INITIAL REPORT BEEN FILED
TWO YEARS EARLIER IN A PRIOR CASE.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED WHEN IT FAILED TO
APPOINT AN ATTORNEY TO REPRESENT THE MINOR
CHILD IN THE HEARING, IN ADDITION TO HER
GUARDIAN AD LITEM, WHEN IT WAS CLEAR TO THE
COURT AFTER THE IN CAMERA INTERVIEW THAT
WHAT SHE WANTED WAS OPPOSITE WHAT THE
GUARDIAN AD LITEM BELIEVED WAS IN HER BEST
INTEREST.

{¶33} In her second assignment of error, Risner argues that the trial court

erred in allowing the GAL to offer a recommendation when he did not submit a

report prior to the dispositional hearing or the final custody hearing. In her third

assignment of error, Risner argues that the trial court erred by failing to appoint an

attorney separate from the GAL as required by Juv.R. 4(C)(2) and R.C.

2151.281(H).

{¶34} The procedural posture of this case is important for our analysis of

these assignments of error. Although this case originated as a dependency action,

the parties filed custody motions during the proceedings. (R. at 22-24, 185, 202).

The custody motions were held in abeyance until after disposition in order to

provide Risner with more time to complete her case plan. (R. at 206, 219); (Jan.

19, 2009 Tr. at 6-7). The dependency action was resolved by a disposition entered

March 12, 2009. (R. at 239). Thereafter, on April 10, 2009, the trial court held a

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hearing on the custody motions and UCDJFS’ motion to modify disposition and/or

terminate its involvement. (R. at 288-290); (Apr. 10, 2009 Tr. at 4). At that point,

the trial court was proceeding on a motion to modify parental rights and

responsibilities under Revised Code Chapter 3109. (Apr. 10, 2009 Tr. at 135).

{¶35} R.C. 2151.281 sets forth the general provisions governing GALs and

includes, in pertinent part, that the GAL “shall file any motions and other court

papers that are in the best interest of the child.” R.C. 2151.281(I). Sup.R. 48(F)(2)

specifically provides that, in domestic relations proceedings involving the

allocation of parental rights and responsibilities, the GAL’s final report “shall be

filed with the court no less than seven days before the final hearing unless the due

date is extended by the court.” However, R.C. 3109.04(C), the statute under

which the trial court was awarding custody herein, provides:

Prior to trial, the court may cause an investigation to be made as
to the character, family relations, past conduct, earning ability,
and financial worth of each parent and may order the parents
and their minor children to submit to medical, psychological,
and psychiatric examinations. The report of the investigation
and examinations shall be made available to either parent or the
parent’s counsel of record not less than five days before trial,
upon written request.

A GAL is an investigator for the court within the meaning of R.C. 3109.04(C). In

re Sherman, 3d Dist. Nos. 05-04-47, 05-04-48, 05-04-49, 2005-Ohio-5888, ¶ 28;

Webb v. Lane, 4th Dist. No. 99CA12, at *2 (Mar. 15, 2000); In re A.L., 6th Dist.

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No. L-10-1355, 2011-Ohio-2569, ¶ 34; Bates-Brown v. Brown, 11th Dist. No.

2006-T-0089, 2007-Ohio-5203, ¶ 36.

{¶36} Risner’s arguments lack merit. As an initial matter, Risner never

objected to the magistrate’s decision for the GAL’s failure to file a report and

testify at the hearing, and as such, has waived all but plain error herein. (R. at

346); Juv.R. 40(D)(3)(b)(iv); In re D.N., 4th Dist. No. 11CA3213, 2011-Ohio-

3395, ¶ 44. Risner also never filed a written request for the GAL’s report as

required under R.C. 3109.04(C), and therefore, has waived all but plain error on

that basis as well. See Brown, 2007-Ohio-5203, at ¶ 27, citing Wilburn v. Wilburn,

169 Ohio App.3d 415, 2006-Ohio-5820, 863 N.E.2d 204, ¶¶ 32-33. Aside from

that, Risner never objected to the GAL testifying and, in fact, cross-examined the

GAL at the hearing. (Apr. 10, 2009 Tr. at 121-24). Furthermore, Risner has not

demonstrated how she was prejudiced by the GAL’s failure to file a written report

or the GAL’s testimony. “A number of courts have determined that when a parent

cannot establish any prejudice arising from the action or non-action of a guardian

ad litem, then any potential error constitutes harmless error.” In re J.C., 4th Dist.

No. 07CA833, 2007-Ohio-3781, ¶ 13, citing In re Sanders, 11th Dist. No. 2004

AP 08 0057, 2004-Ohio-5878; In re Ridenour, 11th Dist. Nos. 2003-L-146, 2003-

L-147, and 2003-L-148, 2004-Ohio-1958; In re Schupbach, 11th Dist. No.

2000AP010005 (July 6, 200); In re Malone, 4th Dist. No. 93CA2165 (May 11,

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1994); In re Doe, 6th Dist. No. L-92-296 (Sept. 17, 1993). In fact, as Risner

points out, the trial court corrected the GAL’s characterization of E.W.’s in-

camera interview but, nevertheless, awarded custody to Wolford. (Apr. 10, 2009

Tr. at 137, 146). Since the trial court was aware of the GAL’s investigation (or

lack thereof as the case may be) and subjected the GAL’s testimony to its

independent review, we cannot find plain error in this case. (Id. at 121-124, 137).

{¶37} Next, Risner argues that the trial court erred by failing to appoint

E.W. an attorney separate from the GAL after the in-camera interview when it

became obvious that the GAL’s position was contrary to E.W.’s desire to live with

Risner. We disagree.

{¶38} R.C. 2151.281(H) provides, in pertinent part, that “if a person is

serving as guardian ad litem and counsel for a child and either that person or the

court finds that a conflict may exist between the person’s roles as guardian ad

litem and as counsel, the court shall relieve the person of duties as guardian ad

litem and appoint someone else as guardian ad litem for the child.” (Emphasis

added). See also Juv.R. 4(C)(2).

{¶39} Initially, we again note that our review is limited to plain error,

because Risner never objected to the magistrate’s decision on this basis and never

raised this issue in the trial court. (R. at 346); Juv.R. 40(D)(3)(b)(iv); In re D.N.,

2011-Ohio-3395, at ¶ 44; In re T.E., 9th Dist. No. 22835, 2006-Ohio-254, ¶ 7,

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citing In re K.H., 9th Dist. No. 22765, 2005-Ohio-6323, ¶ 41. See also In re B.B.,

9th Dist. No. 21447, 2003-Ohio-3314, ¶ 7; In re Graham, 4th Dist. No. 01CA57,

2002-Ohio-4411, ¶¶ 31-33; In re Brittany T., 6th Dist. No. L-01-1369 (Dec. 21,

2001). Risner cannot demonstrate plain error here. To begin with, Juv.R. 4(C)(2)

and R.C. 2151.281(H) have no application here because Mickley was not

appointed as both E.W.’s attorney and GAL but only as E.W.’s GAL, and

therefore, no conflict of interest could exist. (R. at 10, 23, 26); In re A.S., 4th Dist.

No. 07CA40, 2008-Ohio-3443, ¶ 31. Even if Juv.R. 4(C)(2) and R.C.

2151.281(H) were applicable, it was unclear that the GAL’s recommendation was

going to be contrary to E.W.’s wishes at the time of the in-camera interview as

Risner asserts. In fact, the GAL testified that his final recommendation was not

solidified until hearing the evidence at the custody hearing. (Apr. 10, 2009 Tr. at

122-123). And finally, we are not persuaded that the result of the proceeding

would have been different if E.W. was appointed separate counsel. The trial court

was well aware of E.W.’s “adamant” desire to live with Risner when rendering its

decision. (Id. at 137); (Oct. 6, 2009 JE, R. at 402). Under these circumstances, we

cannot find that the trial court committed plain error by failing to appoint E.W.

separate counsel.

{¶40} For all these reasons, Risner’s second and third assignments of error

are, therefore, overruled.

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{¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, J., concurs.

ROGERS, J., concurs in Judgment Only.

/jlr

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