Lucas v. Byers

[Cite as Lucas v. Byers, 2021-Ohio-246.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JASON C. LUCAS, : OPINION

Plaintiff-Appellee, :
CASE NOS. 2020-L-010
- vs - : 2020-L-049
2020-L-050
LINDSAY N. BYERS, :

Defendant-Appellant. :

Appeals from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2016 CV 00054.

Judgment: Affirmed.

Kenneth J. Cahill, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville,
OH 44077 (For Plaintiff-Appellee).

Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Defendant-Appellant).

Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Ave., Mentor, OH 44060
(Guardian ad litem).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Lindsay N. Byers (“mother”), appeals from the judgment of the

Lake County Court of Common Pleas, Juvenile Division, designating Jason C. Lucas

(“father”) sole residential parent and legal custodian of the parties’ minor son, D.L. She

also appeals the trial court’s judgment denying her motion to modify visitation. We affirm

the judgments of the trial court.
 {¶2} In January 2016, father filed a complaint requesting allocation of parental

rights and responsibilities. The matter proceeded to hearing which resulted in a January

18, 2017 order naming mother residential parent for school purposes. On May 11, 2018,

father moved the trial court to designate him the sole residential parent and legal

custodian of the minor child. The parties filed voluminous motions subsequent to father’s

May 2018 filing. Ultimately, on December 7, 2018, father filed an ex parte motion for

immediate temporary sole residential placement and legal custody. A pretrial conference

was held on December 12, 2018, at which the parties and the guardian ad litem (“GAL”)

indicated they had reached an agreement regarding custody. And, an agreed judgment

entry was subsequently filed.

{¶3} After mother’s counsel had withdrawn, new counsel filed a motion to vacate

the previous agreed entry, which was granted on March 19, 2019. The matter then

proceeded to a 13-day bench trial on, inter alia, father’s May 11, 2018 motion. Following

trial, the trial court issued an order which found the circumstances had changed since the

initial allocation of parental rights; the court additionally concluded D.L.’s best interests

would be served by designating father the sole residential parent and legal custodian.

The court also ordered mother to have supervised visitation with D.L. Mother appealed

and on December 14, 2020, this court released its judgment and opinion affirming the trial

court. See Lucas v. Byers, 11th Dist. Lake Nos. 2020-L-010, 2020-L-049, and 2020-L-

050, 2020-Ohio-6679. Mother subsequently filed an application for reconsideration,

which this court granted. We now proceed to address mother’s six assignments of error

in light of that determination. The first assigned error provides:

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 {¶4} “The trial court erred as a matter of law and abused its discretion in granting

father’s motion to designate father sole residential parent and legal custodian and in its

allocation of parental rights and responsibilities.”

{¶5} Under this assignment of error, mother first argues father failed to

demonstrate a change of circumstances arising since the prior decree. Mother contends

father simply relied upon redundant allegations of medical abuse and falsification of

medical records, which the trial court had previously rejected. The record, however, does

not support mother’s claim.

{¶6} A judgment involving the allocation of parental rights and responsibilities will

not be disturbed save an abuse of discretion. Wren v. Tutolo, 11th Dist. Geauga No.

2012-G-3104, 2013-Ohio-995, ¶8. The phrase “abuse of discretion” is one of art,

connoting judgment exercised by a court, which does not comport with reason or the

record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24. In

determining whether the trial court has abused its discretion, a reviewing court is not to

weigh the evidence, but, rather, must determine from the record whether there is some

competent, credible evidence to sustain the findings of the trial court. Clyborn v.

Clyborn, 93 Ohio App.3d 192, 196 (3d Dist.1994). In rendering its decision, the trial court

is in the best position to observe the witnesses, “which cannot be conveyed to a reviewing

court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Moreover, given

these points, we are “‘guided by the presumption that the trial court's findings were indeed

correct.’” Id.; see also Foxhall v. Lauderdale, 11th Dist. Portage No. 2011-P-0006, 2011-

Ohio-6213, ¶26, quoting Bates-Brown v. Brown, 11th Dist. Trumbull No. 2006-T-0089,

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2007-Ohio-5203, ¶18 (“decisions involving the custody of children are ‘accorded great

deference on review.’”).

{¶7} R.C. 3109.04(E)(1)(a) contains various provisions pertaining to modification

of parenting plans. R.C. 3109.04(E)(1)(a) states that:

{¶8} The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on
facts that have arisen since the prior decree or that were unknown to
the court at the time of the prior decree, that a change has occurred
in the circumstances of the child, the child’s residential parent, or
either of the parents subject to a shared parenting decree, and that
the modification is necessary to serve the best interest of the child.
In applying these standards, the court shall retain the residential
parent designated by the prior decree or the prior shared parenting
decree, unless a modification is in the best interest of the child and
one of the following applies:

{¶9} (i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change
in the designation of residential parent.

{¶10} (ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into
the family of the person seeking to become the residential parent.

{¶11} (iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.

{¶12} In Janecek v. Marschall, 11th Dist. Lake No. 2013-L-136, 2015-Ohio-941,

this court held that a trial court modifying a prior decree allocating parental rights and

responsibilities pursuant to R.C. 3109.04(E) is required to make a specific finding that a

change of circumstances had occurred. See id. at ¶18. The Ohio Supreme Court has held

that the requisite change of circumstances “must be a change of substance, not a slight

or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415 (1997). “In

determining whether a change of circumstances has occurred, the trial court has great

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latitude in considering all evidence before it.” Makuch v. Bunce, 11th Dist. Lake No. 2007-

L-016, 2007-Ohio-6242, ¶12, citing In re M.B., 2d Dist. Champaign No. 2006-CA-6, 2006-

Ohio-3756, at ¶9.

{¶13} In this matter, the previous, January 18, 2017 order was premised upon

various pleadings, the first of which was father’s motion to allocate parenting rights and

responsibilities. In that motion, father asserted mother was denying him visitation and

preventing him access to D.L.’s medical records. Although the magistrate’s decision

discussed, at length, the parties’ disagreement regarding potential food allergies and

each party’s differing approach towards this issue, nothing in that decision or the trial

court’s decision suggests the concerns raised by father in the subsequent, May 2018

motion were merely reiterations of those in the previous litigation. While there may have

been some overlap in the concerns father voiced in each motion, the concerns advanced

in the May 2018 pleading (and each subsequent motion filed) related to allegations which

post-dated the January order. In this respect, father’s allegations in the underlying matter

are not redundant and thus cannot be deemed res judicata.

{¶14} Next, mother asserts father failed to establish a change of circumstances

because he did not submit sufficient documentation that mother had made abuse

allegations against him. She further contends father’s allegation that mother subjected

the child to excessive and unnecessary medical visits was unsubstantiated and against

the weight of the evidence.

{¶15} Initially, testimonial evidence was adduced that mother had leveled abuse

allegations, ranging from emotional, physical, medical, as well as sexual abuse of the

parties’ son. And, the report submitted by the GAL, Attorney Cory Hinton, listed multiple

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collateral sources, including medical professionals, to whom mother had related the

allegations. Counsel for mother had an opportunity to cross-examine the GAL and Dr.

Deborah Koricke, a clinical and forensic psychologist appointed by the court to do a

custody evaluation. Nothing in their testimony indicated the abuse allegations, which had

occurred and persisted since the previous litigation, did not occur. We therefore conclude

father was not obligated to provide formal documentation of mother’s allegations and the

trial judge was entitled to assess the credibility of the witness’ testimony, as well as the

reports submitted into evidence, in its change-of-circumstance analysis.

{¶16} Evidence was adduced that the child was being seen by a sexual-abuse

counselor and mother had made numerous calls to children’s services; notably, however,

no investigation was ever initiated. In March 2018, after staying with father, mother

alleged the child’s buttocks was red and D.L. purportedly told her that father put a pen in

his anus. According to the GAL, mother reported the alleged abuse to police. After an

investigation, during which a rape test was administered, the prosecutor declined to

pursue the matter. Mother also asserted she has noticed sexualized behavior from the

child; she claimed the child will not keep his pants on and places objects around his

privates. According to Amanda Eggert of the Cleveland Rape Crisis Center, however,

D.L. did not act out in a sexualized manner.

{¶17} Mother asserted she has continued to take D.L. to various doctors because

she noticed anal inflammation. She believed this is related to, inter alia, father’s failure

to adhere to a diet consistent with D.L.’s food allergies. In particular, on the evening of

May 2, 2018, D.L. returned from weekend-parenting time with father and he was bleeding

from his anus. Mother stated that the next day she took the child to the emergency room

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which led to a follow-up treatment with Dr. Joshua Friedman, a pediatrician. Dr. Friedman

testified that the child had inflammation of the intestine, which could cause rectal bleeding;

he also indicated sexual abuse could not be ruled out. Dr. Friedman stated, however, his

observations did not specifically implicate father in any wrongdoing.

{¶18} During his meetings with mother, the GAL stated mother repeated her

concerns that father was harming the child by either feeding him allergens and/or sexually

abusing him. Mother additionally had concerns that father was physically abusing D.L.

As a result, the GAL noted mother continued to seek significant medical treatment and

enroll the child in therapy/counseling. Mother also related she hired a private investigator

to look into what foods father was feeding the child.

{¶19} Father asserted that, prior to the January 2018 order awarding mother

custody, mother attempted to have him arrested for physically abusing their son.

According to father, she engaged in other actions which were designed to suggest he

was not a fit father. After the January 2018 entry, father noted mother’s allegations

escalated; she began claiming he was sexually abusing or harming their son by

sodomizing the child with a pen. After being investigated, no charges or further attention

was given to the allegations by authorities. Father opined that mother’s actions are a

continuing effort to keep him out of the child’s life. He expressed his concern that mother

will persist with similar allegations. Indeed, he related to Dr. Koricke that he feared mother

might flee the court’s jurisdiction with the child. The evidence, in general, supported much

of father’s observations because, over time, mother’s actions had become progressively

more serious; to wit, mother has accused him of neglect, endangering D.L., physical

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abuse, medical neglect, and finally sexual abuse. None of her allegations, however, were

confirmed.

{¶20} Father told Dr. Koricke that mother had taken D.L. to over 200 doctor’s

appointments. On cross-examination, he clarified that rather than “appointments,” he

meant “encounters,” e.g., appointments as well as phone consults and the like.

Regardless, father expressed frustration and concern regarding the volume of medical

appointments to which mother subjected D.L.; he pointed out that, in his estimation,

mother was attempting to condition D.L. to fear him.

{¶21} The GAL ultimately concluded shared-parenting is not in D.L.’s best

interest. He stated:

{¶22} An important aspect of my initial investigation was to try and
determine if I could find evidence that Father was in fact physically
abusing the child, purposefully feeding him foods which would harm
him, and/or sexually abusing the child. * * * I was unable to find any
substantial evidence other than what Mother could testify to. While I
cannot rule anything out, I did not discover any collaborating
evidence that Father was harming [D.L.] physically, by the
administration of certain foods, or by sexually abusing him.

{¶23} * * *

{¶24} The condition of [D.L.’s] anus has been a point of heightened conflict
in this case. Since [D.L.], who just turned four, is not at
daycare/preschool four days a week and with paternal grandfather
once a week on Fridays, there are unlikely additional individuals
assisting [D.L.] using the restroom. It has not been brought to my
attention during the interview with the daycare/preschool provider or
based on my review of the daycare/preschool’s records that there
are any issues with [D.L.’s] anus. I recently spoke with [D.L.’s]
pediatrician who had just got done examining [D.L.] for a checkup
the day I spoke with him. Dr. Norr[, the pediatrician,] did not express
any concerns over [D.L.’s] anus. What Dr. Norr was able to confirm
is that [D.L.] is currently allergy free. Thus, it is clear that from a
factual perspective, there appears to be some closure as to one of
the major points of contention between the parties (i.e. [D.L.’s] anus
being irritated as a result of sexual abuse or eating incorrect foods).

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 {¶25} The GAL went on to recommend that father be designated D.L.’s legal

custodial parent.

{¶26} Similarly, Dr. Koricke submitted her report to the court and was extensively

cross-examined on the same. Defense counsel utilized the report as an exhibit; at the

end of trial, however, counsel withdrew the exhibit. Still, the record reflects that Dr.

Koricke opined, with reasonable psychological certainty, that father should be named the

primary and sole custodian of the child.

{¶27} “R.C. 3109.04 does not define ‘changes in circumstances’; however, courts

have generally held the phrase to note ‘an event, occurrence, or situation which has a

material and adverse effect upon a child.’” Lindman v. Geissler, 171 Ohio App.3d 650,

2007-Ohio-2003, ¶33 (5th Dist.) citing, Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599,

604-605 (7th Dist.2000). In In re R.A.S., 12th Dist. Warren No. CA2011-09-102, 2012-

Ohio-2260, the court was faced with similar facts. The court stated:

{¶28} The record is clear that Mother engaged in a pattern of accusing
Father, and those associated with him, of sexually abusing R.A.S.,
and that the accusations increased since Father’s 2009 custody
motion was denied.

{¶29} As previously stated, Father presented evidence of Mother’s
accusations, and that each allegation was deemed unsubstantiated.
Mother has taken R.A.S. to Children's Medical Center on four
separate occasions, and on each occasion, R.A.S. was subjected to
a physical exam. Mother has made 13 referrals to Greene County
Children's Services, alleging in each that Father, or those associated
with him, sexually abused R.A.S. The child has been subjected to
four different forensic interviews in which he was questioned about
the sexual abuse allegations. Mother has also made six allegations
to the Yellow Springs Chief of Police that Father was molesting
R.A.S. Mother also took R.A.S. to three different child psychologists
for therapy related to the sexual abuse allegations. None of the
county agencies, law enforcement, physical exams, forensic
interviews, or psychological evaluations have led to Father being

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 charged for sexually abusing R.A.S., and instead, Mother’s
allegations were found to be unsubstantiated on each occasion.

{¶30} This court is not saying that a parent is wrong to stalwartly protect its
child if there is a belief the child is the victim of sexual abuse. Quite
conversely, a parent is encouraged to seek the help of agencies,
medical experts, or law enforcement to investigate allegations of
sexual abuse. However, this case is particularly unique in that Mother
continued to accuse Father of sexually abusing R.A.S. after multiple
initial allegations went unsubstantiated and no charges were
brought. There are at least 30 different documented allegations
against Father, and on each occasion, Mother knew that the
allegations were unsubstantiated. This case is so extreme that at the
time of trial, Green County Children Services had an open
investigation against Mother, alleging emotional maltreatment of
R.A.S. based on Mother involving the child in repeated
unsubstantiated allegations of sexual abuse.

{¶31} The unsubstantiated allegations have a greater impact on the
change of circumstances determination beyond the mere fact that
Mother has made them. Mother’s pattern of making the claims is
compounded by the fact that she continually involves R.A.S. in the
process of investigating the allegations. R.A.S. has been subjected
to several invasive exams and interviews, and the impact of such
repetitive investigations on a young child is patently detrimental.
Moreover, Mother would speak about the sexual abuse allegations
to other people in the community, and would speak of the adult-
issues surrounding the investigations in the presence of R.A.S.

{¶32} * * *

{¶33} The fact that Mother has made these accusations has also impacted
how she and Father relate to one another. “Increased hostility
between the parents and the frustration of visitation are factors which
can support a finding of a change in circumstances.” In re
Nentwick, 7th Dist. [Columbiana] No. 00 CO 50, 2002-Ohio-1560,
¶39, citing Davis v. Flickinger, 77 Ohio St.3d 415, 416–417 (1997).
In re R.A.S., supra, at ¶20-26.

{¶34} The court went on to conclude there was an adequate change in

circumstances justifying a modification.

{¶35} Further, in Canada v. Blankenship, 3d Dist. Marion No. 9-18-16, 2018-Ohio-

4781, a mother alleged her ex-husband sexually abused her daughter from a prior

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relationship as well as the parties’ biological two-year-old son. The mother consequently

withheld visitation of the parties’ biological child. Authorities later found the claim

unsubstantiated. The father filed a motion to change custody due to his concern the

parties’ son would suffer mental and emotional damage due to mother’s continued

accusations in the presence of the child. The trial court found a change of circumstances

justifying modification. The Third Appellate District agreed. In addition to the mother’s

“willful interference” with the father’s parenting time, the court emphasized the mother’s

continual allegations of abuse created a change of circumstances. The court pointed out:

“Other courts have held that the making of a false sexual abuse accusation has been

deemed to be ‘“(in and of itself) a ʻfactual circumstance.’ The making of such a false

accusation, subsequent to an initial award of custody, is clearly a ‘change’ in

circumstances irrespective of any detrimental impact on the minor child. Such change

frequently deprives both the child and the noncustodial parent of visitation.”’” In re

Russell, 4th Dist. Washington No. 98CA525, 1999 WL 606781, *5 (Aug. 4, 1999),

quoting Beekman v. Beekman, 96 Ohio App. 3d 783, 788-89 (4th Dist. 1994). “‘Moreover,

we do not believe it requires any great leap in logic to find that a false accusation of sexual

abuse by one parent against another always has a detrimental impact.’” In re Russell,

supra at *5. Canada, supra, at ¶36.

{¶36} Returning to the instant matter, the trial court, in its judgment entry

designating father the sole residential parent and legal custodian, made the following

findings germane to mother’s arguments:

{¶37} Since the prior court order, an allegation arose, in March 2018, that
Father put a pen in the child’s anus. Mother responded by taking the
child to numerous doctor’s specialists, and a rape crisis center.
Mother testified that the child came home from a visit with Father on

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 May 2, 2018 bleeding from the anus. Mother cleaned the child and
then nursed the child to sleep. The next morning at about 10:00 or
11:00 am, Mother responded by taking the child to the Cleveland
Rape Crisis Center. Mother took the child also on May 3, 2018, at
about 6:30 pm, to Hillcrest Hospital for a sexual assault kit
examination. The hospital reported to the police. Mother testified
that “on a whim” she filed a petition for Domestic Violence in the
Court of Common Pleas Domestic Relations Division in Lake County
Ohio. The Petition for Domestic Violence Civil Protection Order was
denied. The police investigated. No charges were filed. Lake
County Human Service investigated. No charges were
substantiated. Mother continued to take the child to doctors,
counselors and therapists.

{¶38} When Mother first went to see Dr. Koricke (the forensic custody
evaluator) in June 2018, her complaints were that Father was
mentally, physically, emotionally and sexually abusing the child.
Mother believed that Father was emotionally abusing the child and
medically abusing the child. Mother’s claim of medical abuse was
because Father was allegedly providing the child foods that the child
was allergic to. During Mother’s testimony, when asked if she
thought Father was physically and sexually abusing the child, Mother
replied “I don’t know.” Further, Mother did not know if Father was a
fit custodia[l] parent. But when she was questioned about the shared
parenting plan that she filed she testified that Father was a fit
custodia[l] parent.

{¶39} In light of the evidence, recommendations of both Dr. Koricke and the GAL,

as well as the analogous case law, we cannot conclude the trial court abused its discretion

in finding a change of circumstance occurred between the entry of the prior order and the

current order.

{¶40} Next, mother asserts the trial court erred as a matter of law and abused its

discretion by failing to consider the best interest factors set forth under R.C.

3109.04(F)(1). We do not agree.

{¶41} The factors found in R.C. 3109.04(F)(1) include: (a) the wishes of the child’s

parents regarding the child’s care; (b) the wishes or concerns of the child as expressed

to the court; (c) the child’s interaction and interrelationship with her parents and any other

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person who may significantly affect the child’s best interest; (d) the child’s adjustment to

her home, school, and community; (e) the mental and physical health of all persons

involved; (f) the parent more likely to honor and facilitate visitation and companionship

rights approved by the court; (g) whether either parent has failed to make all child support

payments; (h) whether either parent previously has been convicted of or pleaded guilty to

any criminal offense; (i) whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other parent his or her

right to visitation in accordance with an order of the court; and (j) whether either parent

has established a residence, or is planning to establish a residence, outside this state.

{¶42} In its judgment entry, the trial court listed the best-interest factors and made

the following findings in relation to the same:

{¶43} a) Father would like to become the sole residential parent. Mother would

like to share parenting. Mother testified to this and during closing arguments the Court

questioned her again to ensure that was her desire.

{¶44} b) The Court did not interview [D.L.] in camera. However[,] the child has a

Guardian ad Litem and the Guardian ad Litem has made recommendations to the Court

as and for [sic] the best interest of [D.L.]

{¶45} c) The evidence established that Father and paternal grandfather spend a

lot of time interacting with [D.L.] in their community in Independence[,] Ohio. The child

has no health issues, no allergies and is not currently seeing any mental health

professionals.

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 {¶46} d) The evidence established that [D.L.] has adjusted noicely [sic] to Father’s

home. He is integrated into the community. He has friends, goes to day care/school,

plays tee ball and soccer.

{¶47} e) There was no evidence presented to suggest that Father has any

physical or mental health issue that would prevent him from providing appropriate care

for [D.L.] However, the testimony of Dr. Afsarifard calls Mother’s mental health into

question. Dr. Afsarifard stated that Mother has been traumatized by the events and feels

she is the victim. Therefore, she needs therapy…intensive therapy.

{¶48} f) Mother has been held in contempt for failure to honor or facilitated

parenting time.

{¶49} g) Father was the child support obligor and his child support is current.

Even though the child has been with the Father for over one year there has been no order

for the Mother to pay child support.

{¶50} h) There was no evidence presented to suggest that either parent has ever

been convicted of any crime or engaged in any activity that resulted in harm to a family

member or child.

{¶51} i) See “f” above.

{¶52} j) There was no evidence presented to suggest that either parent is

planning to establish a residence outside the state of Ohio.

{¶53} After taking into consideration the GAL’s recommendation, the trial court

determined a modification of the residential parent was in D.L.’s best interests and the

harm likely to be caused by a change of environment is outweighed by the advantages of

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the change of environment to the child. The trial court’s conclusion is reasonable and

supported by the record. We discern no abuse of discretion.

{¶54} Mother’s first assignment of error lacks merit.

{¶55} Her second assignment of error provides:

{¶56} “The trial court erred as a matter of law and abused its discretion by

designating father the residential parent and legal custodian of the minor child.”

{¶57} As discussed above, the trial court did not err in finding a change of

circumstances since the prior decree; nor did it err in concluding the modification of the

prior order was in the best interest of the child. Mother contends, under this assignment

of error, however, that the trial court’s determination vis-à-vis R.C. 3104.09(E)(1)(a)(iii)

was error. Specifically, she asserts the record does not support the trial court’s conclusion

that “[t]he harm likely to be caused by a change of environment is outweighed by the

advantages of the change of environment to the child.” Id. We do not agree.

{¶58} The trial court found that, since the previous decree, mother had subjected

D.L. to numerous and frequent visits with medical and/or psychological professionals.

She took him to the Cleveland Rape Crisis Center, but both medical and psychological

witnesses (Joshua Friedman, M.D.; Dr. Deborah Koricke, Ph.D.; and Farshid Afsarifard,

Ph.D.) stated there was no definitive evidence of sexual abuse. And there was no

evidence presented, other than that offered by mother, that father engaged in any pattern

of abuse, sexual or otherwise, with D.L. From this, the trial court could conclude that the

repeated counseling and medical tests/check-ups would cause him distress, anxiety, and

harm; particularly where, as here, no sexual abuse was confirmed or medically

corroborated.

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 {¶59} With respect to R.C. 3109.04(E)(1)(a)(iii), the record reveals that the trial

court addressed and considered the advantages and disadvantages of leaving the minor

child with mother or placing him with father. The record shows D.L. has been developing

well, physically and socially, since being placed with father and there have been no

incidents of excessive medical or psychological intervention. The record indicates that

mother had an ongoing interest in undermining D.L.’s perception of and relationship with

this father. Although father also showed animosity towards mother, his attitude was

ostensibly the result of his frustration with mother’s pattern of abuse allegations and her

arguable attempts to damage, if not sever, his relationship with D.L. We recognize that

the emergency change in custody from mother to father likely distressed and saddened

the child, at least at first. Any radical shift in a young child’s paradigm and routine would

be reasonably expected. Still, in light of the surrounding circumstances, as well as the

child’s young age at the time of the change of custody (three years and approximately

four months), the evidence militates in favor of the trial court’s conclusion. Thus, we

cannot say that the trial court abused its discretion when it concluded the harm likely to

be caused from the change in environment was outweighed by the advantages.

{¶60} Mother’s second assignment of error lacks merit.

{¶61} Mother’s third assignment of error provides:

{¶62} “The trial court erred as a matter of law and abused its discretion by denying

mother’s motion to disqualify the Guardian ad Litem and allowing the GAL to submit his

report after the commencement of trial.”

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 {¶63} Under her third assignment of error, mother contends the trial court erred

and abused its discretion by denying her motion to disqualify the GAL and allowing him

to submit his report after the commencement of trial. We do not agree.

{¶64} Initially, in support of this argument, mother’s counsel cites to the transcript

of the hearing wherein he objected to the GAL seeking an extension to submit his report.

There is nothing at this point in the proceedings indicating she moved to disqualify the

GAL and mother does not specifically direct this court’s attention to the record where any

motion was filed. Mother’s counsel identifies the point in the proceedings where he

objected to the extension; to wit:

{¶65} [I]t is unfair that the guardian participates, hasn’t done a report, and
then you grant him an extension, I think through September, before
[he] reports. So we are starting trial without any sort of report from
the guardian, which is somewhat unfair, but, nevertheless, he can’t
converse with witnesses once we start trial because that is unfair.
He can’t do it - - he can’t go outside of these court proceedings, do
any sort of further investigation or discuss matters with witnesses of
evidence that had already come before the Court * * *.

{¶66} The court granted the motion for separation of witnesses and asked father’s

attorney for a response regarding the extension and the issue with contacting witnesses.

Father’s attorney responded:

{¶67} Well, Your Honor, this is the first I have heard of this. I would just
say that the guardian should be able to do his duties pursuant to Rule
of Superintendence 48. Certainly anything in his report will be
subject to [mother’s counsel’s] examination, as well as mine. If, for
some reason, in these proceedings [mother’s counsel] believes
something has been included in the report or in his testimony, he
may recall a witness, if he wishes, if that is appropriate, but I think a
blanket type of order would unduly hamper the guardian in this
matter.

{¶68} The court ultimately denied counsel’s request that the GAL have no further

contact with witnesses because such contact would be consistent with his duties. Mother

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does not specifically take issue with this point. Still, our review of the record reveals

counsel filed a motion to disqualify, which the trial court denied.

{¶69} Mother contends the trial court erred in denying her motion to disqualify the

GAL because he failed to comply with Ohio Sup.R. 48 and he did not submit his report

until after the commencement of trial. We do not agree.

{¶70} Ohio Sup.R. 48.03 sets forth responsibilities for guardians ad litem. It

mandates that the GAL represent the best interest of the child; maintain independence,

objectivity, and fairness with parties; have no ex parte communications with the court;

and make reasonable efforts to provide the court with an informed recommendation as to

the child’s best interest. Mother asserts the GAL improperly “conspired” against her with

the assistance of father, his counsel, and Dr. Koricke. Mother asserts the GAL engaged

in ex parte communications with the trial court that caused her prejudice. Hence, she

concludes the GAL was neither fair nor impartial and the court erred in failing to disqualify

him.

{¶71} Preliminarily, this court has held that the Rules of Superintendence, “‘are

not the equivalent of rules of procedure and have no force equivalent to a statute. They

are purely internal housekeeping rules which are of concern to the judges of the several

courts but create no rights in individual defendants.’” Habo v. Khattab, 11th Dist. Portage

No. 2012-P-0117, 2013-Ohio-5809, ¶84, quoting State v. Gettys, 49 Ohio App.2d 241,

243, (3d Dist.1976). Further, in Miller v. Miller, 4th Dist. Athens No. 14CA6, 2014-Ohio-

5127, the court observed: “we have generally refused to conclude that a guardian ad

litem’s failure to comply with Sup.R. 48(D) constitutes grounds for reversal.” (Emphasis

sic.) Miller, supra, at ¶17.

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 {¶72} With the foregoing in mind, “[t]he role of the guardian ad litem is to

investigate the ward’s situation and then to ask the court to do what the guardian feels is

in the ward's best interest.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985).

{¶73} In his report, the GAL stated that, at the beginning of December 2018, Dr.

Koricke frantically contacted him. She communicated that she would be recommending

father be granted custody and mother have supervised visitation. She explained she was

extremely concerned that mother may harm or abscond with the child upon learning the

content of her recommendations. Thus, she indicated her report should not be released

until the child was in father’s custody.

{¶74} The GAL stated immediate relief could be obtained via an ex parte motion.

He further asserted he “wanted to verify whether or not the concerns Dr. Koricke was

bringing up (i.e.[,] Mother fleeing and/or hurting the child) were backed up by her report.

This was certainly not an attempt by the GAL to ‘orchestrate,’ ‘manipulate,’ or ‘embellish’

facts. It was simply a way to determine whether or not the doctor’s concerns warranted

the filing of an ex parte motion.” After the GAL confirmed the concerns, Dr. Koricke asked

him if an affidavit would suffice to substantiate the issues for the court because she did

not have her report fully complete. The GAL stated he felt a sworn statement would be

sufficient. Dr. Koricke requested the GAL to draft an affidavit based upon the information

she provided. The GAL stated he did so in the child’s best interest. The GAL further

stated:

{¶75} Dr. Koricke made changes to the affidavit, on her own without input
from the GAL, and she emailed it to him. The GAL then distributed
the affidavit to Plaintiff’s attorney. However, the GAL also sent the
affidavit to Defendant’s counsel the same day. While the GAL had
conversations with Plaintiff’s attorney about Dr. Koricke’s thoughts,

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 the GAL also had conversations with Defendant’s counsel about Dr.
Koricke.

{¶76} While the timing of these communications was slightly staggered as
a result of Dr. Koricke’s concerns, the GAL took extra precautions to
ensure that he was maintaining independence, objectivity, and
fairness.

{¶77} In light of the foregoing, as well as the surrounding circumstances, we

conclude the trial court did not err in denying mother’s motion to disqualify the GAL. The

GAL was acting in D.L.’s best interest and, while mother suffered prejudice by having the

child removed and losing parenting time, we decline to hold that prejudice was unfair in

light of the totality of the evidence.

{¶78} Next, mother takes issue with the GAL’s failure to have a final report

prepared at the commencement of trial. While being cross-examined, the GAL stated he

had sought an extension of filing his report and that deadline had not passed as of that

time. Had counsel for mother believed the late filing was inherently and unfairly

prejudicial, he could have advanced such an argument and sought a continuance of the

hearing. No such argument or motion was proposed. While mother may believe seeking

a continuance was somehow problematic, she failed to advance any such argument in

her brief. And, in her application for reconsideration, she asserts prejudice because she

lost potential parenting time owing to the delay; her assertion, however, is merely

hypothetical, i.e., there is nothing to suggest time would be reinstated, especially in light

of the substantive findings and conclusions of the trial court’s final judgment. We

therefore discern no error in the court’s decision to permit the GAL to file his report after

commencement of the hearing.

{¶79} Mother’s third assignment of error lacks merit.

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 {¶80} Mother’s fourth assignment of error provides:

{¶81} “The trial court erred as a matter of law by violating the appellant’s

fundamental due process rights.”

{¶82} Mother argues her procedural due process rights were violated because the

court required her to proceed before father submitted his evidence and because the court

permitted the GAL to submit his report late.

{¶83} First, there is nothing in the record indicating the trial court compelled

mother to present cross-examination testimony prior to father submitting his evidence. It

would appear that counsel for mother either preferred to proceed in this fashion or was

comfortable acquiescing to this manner of witness presentation. Regardless, mother was

on specific notice of the basis of father’s claims surrounding the issue of re-designating

custody. And, if something occurred during father’s presentation of evidence that mother

deemed new, unique, or improper, there was nothing preventing her from either seeking

re-cross or re-calling a witness, and the timing of the GAL’s report does not affect these

points. Mother was on notice of the issues that were being tried and was given an ample

opportunity to be heard.

{¶84} Mother’s fourth assignment of error lacks merit.

{¶85} Mother’s fifth assignment of error asserts:

{¶86} “The trial court erred as a matter of law and abused its discretion in denying

mother’s motion for new trial.”

{¶87} Mother asserts the trial court erred in failing to grant her a new trial because

the court required her to proceed before father and because certain ex parte

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communications between the GAL, father’s counsel, and the trial court created prejudicial

irregularities in the proceeding. We do not agree.

{¶88} As just discussed, we identify nothing prejudicially irregular in the manner

in which evidence was presented. Mother’s counsel did not object and, in light of other

safeguards, e.g., re-crossing or re-calling of witnesses if counsel felt it necessary, we

deem the court’s procedure fair and consistent with due process.

{¶89} With respect to the ex parte communication, we understand that the GAL

and Dr. Koricke arguably should have notified counsel for both parties regarding their

intention to recommend an emergency custody award to father. Still, the matter was tried

to the bench; counsel for mother skillfully cross-examined both the GAL and Dr. Koricke.

In light of both the GAL’s and Dr. Koricke’s roles, the former as the child’s advocate and

the latter a neutral court-appointed expert, the court was able to weigh the facts and

testimony to determine whether anything untoward had occurred in the course of its

receipt of their recommendations. The court assessed the totality of the evidence and

concluded the actions of these individuals, while potentially irregular, was not unfairly

prejudicial to mother’s rights. Mother’s argument therefore lacks merit.

{¶90} Finally, mother contends the trial court should have granted a new trial

because its judgment was against the manifest weight of the evidence. Given our

disposition of mother’s first and second assignments of error, we conclude this argument

is moot and without merit.

{¶91} Mother’s fifth assignment of error is not well taken.

{¶92} Mother’s final assignment of error provides:

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 {¶93} “The trial court erred as a matter of law by denying mother’s motion to

modify visitation.”

{¶94} Mother contends the trial court erred in overruling her motion to modify

visitation. She contends that the trial court disregarded her completion of an intensive

outpatient program as ordered by the court. She claims the court improperly entered

judgment without a hearing and that, in light of her compliance, modification of visitation

was in the child’s best interest.

{¶95} In its judgment, the trial court noted that mother failed to attach anything to

her affidavit (which accompanied her motion) indicating she had completed the intensive

outpatient program; the court further noted that neither party requested a hearing on

mother’s motion. And, because the motion was filed a mere two weeks after the court’s

December 31, 2019 judgment re-designating father as residential and custodial parent, it

concluded that “significant progress could not have been made with these parties in that

period of time.” Under the circumstances, we perceive no abuse of discretion.

{¶96} Mother’s final assignment of error lacks merit.

{¶97} For the reasons discussed in this opinion, the judgments of the Lake County

Court of Common Pleas, Juvenile Division, are affirmed.

MARY JANE TRAPP, P.J.,

TIMOTHY P. CANNON, J.,

concur.

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