[Cite as Wren v. Hawkins, 2021-Ohio-3287.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
MARY ELIZABETH WREN, :
Appellant, : CASE NO. CA2021-03-005
: OPINION
- vs - 9/20/2021
:
JEREMY HAWKINS, et al., :
Appellees. :
APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 21940029
Charles C. Postlewaite, LLC, and Charles C. Postlewaite, for appellant.
Jonna and William Wilcox, pro se.
HENDRICKSON, J.
{¶1} Appellant, the biological mother of G.L.H., G.K.H., and B.A.H. ("Mother"),
appeals the decision of the Madison County Court of Common Pleas, Juvenile Division,
denying her motion for change of custody. For the reasons discussed below, we affirm the
juvenile court's decision.
{¶2} In 2011, G.L.H. born October 6, 2006, G.K.H. born December 28, 2007, and
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B.A.H. born September 1, 2009, were removed from Mother's care following substantiated
abuse allegations and placed in the temporary care of Franklin County Children Services.
The three boys were placed with Mother's sister, Jonna Wilcox, and her husband, William
Wilcox, as a kinship placement from June 2011 through December 2011. After a brief
period back with Mother, additional substantiated abuse allegations were made, and the
boys were returned to the Wilcoxes. On August 14, 2013, Jonna and William were granted
legal custody of the boys.
{¶3} Since that time, the Wilcoxes have raised G.L.H., G.K.H., and B.A.H. along
with their biological daughters. Mother has exercised her visitation rights over the years.
The record reflects that during a reassessment of child support in 2018, Mother learned that
she was able to petition the court for custodial rights. On April 29, 2019, Mother filed a
complaint for custody.1 The matter was heard before a magistrate on December 19, 2019.
{¶4} During the hearing, Mother acknowledged that G.L.H., G.K.H., and B.A.H.
were removed from her care and placed in the legal custody of the Wilcoxes, but now
believes she is in a better position to care for them. Mother explained that the boys used
to be "innocent" and "happy go lucky," but stated that, as they have gotten older, they seem
frustrated and angry. Part of Mother's concern is her fear that her children are treated
differently than the Wilcoxes' biological daughters, aged 16 and 13. A particular point of
contention was the children's sleeping arrangements. Mother explained that the Wilcoxes
previously lived in a double-wide trailer where their girls shared a room while the boys
shared another room. Mother complained that when the Wilcoxes moved to a new home,
the girls were each given their own bedrooms upstairs while G.L.H., G.K.H., and B.A.H
1. The case initially proceeded in the Franklin County Court of Common Pleas, Division of Domestic Relations
and Juvenile Branch. However, the Wilcoxes subsequently moved to Madison County, Ohio thereby divesting
Franklin County of jurisdiction.
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share bunkbeds in the unfinished basement. Mother testified that this arrangement leaves
the boys feeling disconnected from the family. Mother also testified about various other
complaints the boys have expressed to her. For example, Mother explained that the boys
want to be more involved in sports and activities. Mother also complained that the girls
receive preferential treatment and are permitted to use things, such as cell phones and the
internet, while the boys are not.
{¶5} Following Mother's testimony, Jonna testified and provided context for many
of the concerns raised by Mother. Jonna explained that she and her family had recently
moved from a double-wide trailer into a newly constructed home. Jonna strongly disagreed
with the allegations made by Mother that the boys were treated differently than the girls.
Regarding the sleeping arrangements, Jonna testified that the boys were offered a choice
regarding their bedroom and that they chose to share the basement. Jonna agreed that the
girls have cell phones and the boys do not. Jonna explained that G.L.H. used to have a
cell phone, but it was taken away from him because he was using it to view pornographic
images. Jonna stated that she was unaware that G.L.H., G.K.H., and B.A.H. wanted to
participate in additional extracurricular activities. Rather, Jonna discussed the care of the
children and detailed other programs that the boys took part in, such as youth group,
Wednesday Life Group, and swimming.
{¶6} On May 8, 2020, the magistrate issued a decision denying Mother's motion
for a change of custody. Following Mother's request, the magistrate issued findings of fact
and conclusions of law on October 29, 2020. Mother filed objections to the magistrate's
decision. Following review, the juvenile court overruled Mother's objections and issued an
order adopting the magistrate's decision. Mother now appeals, raising four assignments of
error for review. For ease of discussion, we will address Mother's assignments of error out
of order.
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{¶7} Assignment of Error No. 1:
{¶8} THE COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT
AND ABUSED ITS DISCRETION BY STATING THAT THERE HAS NOT BEEN A
CHANGE IN CIRCUMSTANCES FOR THE MINOR CHILDREN OR THE LEGAL
CUSTODIANS AND THEREFORE DENYING PLAINTIFF'S COMPLAINT FOR CUSTODY.
{¶9} Assignment of Error No. 3:
{¶10} IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE
COURT TO RULE THAT THERE HAS NOT BEEN A CHANGE IN CIRCUMSTANCES FOR
THE MINOR CHILDREN OR THE LEGAL CUSTODIANS AND THEREFORE DENYING
PLAINTIFF'S COMPLAINT FOR CUSTODY.
{¶11} In her first and third assignments of error, Mother alleges the juvenile court
erred by finding that there had not been a change in circumstances for the minor children.
{¶12} "A trial court has broad discretion in proceedings involving the care and
custody of children." In re Mullen, 129 Ohio St. 3d 417, 2011-Ohio-3361, ¶14. As "custody
issues are some of the most difficult and agonizing decisions a trial judge must make," the
judge must be given "wide latitude in considering all the evidence" and the decision must
not be reversed absent an abuse of discretion. Pierson v. Gorrell, 12th Dist. Butler No.
CA2011-11-216, 2012-Ohio-3878, ¶ 10, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418
(1997). The term abuse of discretion "connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶13} Before turning to the specific circumstances of this case, we note that the
juvenile court cited R.C. 3109.04 as the controlling law. However, since the Wilcoxes were
awarded legal custody of the children, the applicable statute was R.C. 2151.42, which
provides:
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A court shall not modify or terminate an order granting legal
custody of a child unless it finds, based on facts that have arisen
since the order was issued or that were unknown to the court at
that time, that a change has occurred in the circumstances of
the child or the person who was granted legal custody, and that
modification or termination of the order is necessary to serve the
best interest of the child.
R.C. 2151.42(B).
{¶14} Although the juvenile court relied on R.C. 3109.04, it is clear it conducted the
appropriate analysis in determining whether there had been a change in circumstances
necessary to modify or terminate the prior order. Therefore, we will review the factual
findings of the juvenile court and whether its decision amounted to an abuse of discretion.
That is, we now consider, whether a change in circumstances has occurred and whether
modification or termination of the prior order is necessary to serve the best interests of the
children. In so doing, we are mindful of the fact that "[n]ot every change will support the
modification of a [legal] custody order, but rather only a change [that] is one of substance
that warrants a change of custody." In re A.P., 9th Dist. Lorain No. 20CA011638, 2021-
Ohio-1229, ¶ 12.
{¶15} In her first and third assignments of error, Mother raises four issues that she
claims amount to a change in circumstances, several of which overlap: (1) there was
evidence presented that the minor children were treated differently than the Legal
Custodians' biological children as the minor children aged and after they moved to their new
home, (2) that a passage of time can be a change in circumstances, (3) there has been a
change of circumstances in the minor children's lives, (4) the move for the minor children to
a new home was a detriment to the children.
{¶16} Mother's first and third issues argue that the boys are treated differently than
the girls. As noted above, she alleges that the boys are not able to participate in
extracurricular activities, have cell phones, access the internet, and are subject to different
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forms of punishment. She further takes issue with the fact that the boys sleep downstairs
in an unfinished basement while the girls each have their own bedroom.
{¶17} The juvenile court found that any difference in the treatment of the children
was minor and inconsequential. Though the girls have their own rooms, the court cited the
children's maturation levels and that separation along gender lines may well have been
appropriate to protect the privacy of each child. The juvenile court also found the restrictions
on cell phones and internet access, as well as the different forms of punishment, did not
rise to the level necessary to constitute a change in circumstances. The juvenile court
further found that the needs of the children were being met and they were not treated
differently or punished more extensively. The juvenile court stated that Mother is confusing
the needs of the boys with things they may want. Though Mother may claim that she could
provide more opportunities for the boys to participate in extracurricular activities outside of
school and church, the court determined that Mother had not presented an adequate ground
for a change in circumstances.
{¶18} Following review, we agree with the juvenile court. In this case, the record
reveals that the boys are in good care and are not subject to disparate treatment relative to
the girls. It is true that the girls each have their own bedrooms, but the record also reflects
that the boys chose to sleep in the basement together in bunkbeds and that the family was
working towards completing the unfinished portion of the basement. Though Mother
suggests that she could do better with helping the boys enroll in more extracurricular
activities, we do not believe that rises to the level of a change of circumstances. We further
note that, while the Wilcoxes have imposed restrictions on the boys' internet, tablet, and
phone usage, there is evidence that this was not done with the intention of furthering
disparate treatment, but rather a legitimate use of parental discretion and punishment after
discovering that certain inappropriate materials had been accessed online. Thus, we do
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not find a change in circumstances with respect to Mother's claims raised in her first and
third issues.
{¶19} In her second issue, Mother argues that the boys have grown since they were
placed in the legal custody of the Wilcoxes and that their physical, mental, and emotional
needs have changed dramatically. The juvenile court agreed that under certain
circumstances the passage of time can constitute a change in circumstances but denied
that such was the case here. The juvenile court found that the testimony presented
indicated that the boys are not any different in terms of physical, mental, and emotional
needs than other children of similar age to warrant a finding of a change in circumstances
based on the passage of time.
{¶20} Following review, we agree with the trial court. Though the boys have grown
in the years since they were placed in the legal custody of the Wilcoxes, the evidence
presented at the hearing does not support a finding of a change in circumstances. Mother
claims that the boys appear to be moodier and, as she described it, less innocent. The
evidence does not suggest that these shifts appear any more pronounced than other similar
aged children as they approach adolescence. Accordingly, we disagree with Mother's
argument that a change in circumstances occurred because of the passage of time and the
children's emotional needs.
{¶21} In her fourth issue, Mother argues that there was a change in circumstances
because the family moved into a new home. The juvenile court denied Mother's claim,
noting that the move in residence improved the children's living situation. The juvenile court
noted that the boys were kept together in the basement and not separate. The girls each
had their own bedroom. As previously noted, the juvenile court found that this arrangement
may have been prudent given the maturation of the children, the difference in their genders,
and the need for privacy.
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{¶22} Again, we find the find the juvenile court did not abuse its discretion. Though
a move, in some circumstances, can constitute a change in circumstances, this is not such
an occasion. See e.g., Zinnecker v. Zinnecker, 133 Ohio App.3d 378, 384 (12th Dist.1999).
In the present case, the family moved from a double-wide trailer to a new freestanding home
thereby improving their living situation. It is true that the boys' beds were in the unfinished
basement while the girls each had their own bedrooms. However, as correctly determined
by the trial court, this may have been prudent given the maturation of the children, the
differences in gender, and their respective privacy needs. Furthermore, Jonna Wilcox
testified that the reason the boys were in the basement was because they chose that space
as their sleeping quarters. The evidence does not show that placing the boys in the
basement was the result of any malicious intent or favorable treatment for the Wilcoxes'
own children.
{¶23} Having reviewed the record, we find the trial court did not err in finding that
there had not been a change in circumstances. As a result, we find Mother's first and third
assignments of error are without merit and are overruled.
{¶24} Assignment of Error No. 2:
{¶25} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-
APPELLANT AND ABUSED ITS DISCRETION BY STATING THAT IT WAS NOT IN THE
BEST INTEREST OF THE MINOR CHILDREN FOR MOTHER TO REGAIN CUSTODY OF
THE MINOR CHILDREN AND THEREFORE DENYING PLAINTIFF'S COMPLAINT FOR
CUSTODY.
{¶26} Assignment of Error No. 4:
{¶27} IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE
COURT TO RULE THAT IT WAS NOT IN THE BEST INTEREST OF THE MINOR
CHILDREN FOR MOTHER TO REGAIN CUSTODY OF THE MINOR CHILDREN AND
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THEREFORE DENYING PLAINTIFF'S COMPLAINT FOR CUSTODY.
{¶28} In her second and fourth assignments of error, Mother argues that the juvenile
court erred by concluding that it was not in the children's best interest for mother to regain
custody. However, since we have determined there was no change in circumstance, we
need not address the best interest standard on appeal. R.C. 2151.42(B) specifically
provides that a change in circumstances is necessary to modify legal custody. Mother's
second and fourth assignments of error are without merit and hereby overruled.
{¶29} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
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Wren v. Hawkins
Combined Opinion