In re M.L.S.
2022 Ohio 2195
Ohio Ct. App.2022Background
- Appellant (maternal grandmother) previously obtained temporary custody in Tuscarawas County but that proceeding was dismissed after procedural lapses; she later secured legal custody in Harrison County after parents failed to appear at a hearing.
- Father, released from prison in late 2020 and subject to post-release control and testing, moved to reallocate parental rights to him; trial court granted in-camera interviews of the children.
- Evidence at modification hearings included: father’s testimony and family witnesses about limited parenting time; paternal relatives’ testimony that the children appeared unhappy with their current living situation; and the grandmother’s testimony alleging safety concerns and asserting various police reports and social-media posts.
- The court conducted confidential in-camera interviews of the children (ages ~11–12), then found changed circumstances and that naming the father the residential parent served the children’s best interests.
- Appellant filed a contempt motion against the father (alleging he lied about a gun), which the court dismissed as not alleging violation of a court order and unsupported by admissible proof.
- Appellant appealed pro se; the appellate court noted multiple briefing and procedural deficiencies but reviewed the record and affirmed the juvenile court’s custody modification.
Issues
| Issue | Plaintiff's Argument (Appellant) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in modifying custody from a non-parent (grandmother) to a parent (father) | Appellant contends father not ready for custody (living with mother/girlfriend), credibility problems, safety concerns (guns, past drug use), and that the court ignored her evidence | Father contends changed circumstances (his release, remedial programming, compliance with post-release control), restricted contact by Appellant, and the children’s expressed wishes support reallocation | Affirmed: court did not abuse discretion — found change of circumstances and best-interest factors favored father |
| Whether the contempt motion dismissal was improper | Appellant argues father lied and violated orders, meriting contempt | Father disputes any order was violated; evidence presented was hearsay and not tied to a court order | Affirmed dismissal: contempt motion unsupported and not appealably prejudicial |
| Whether the court improperly refused/Appellant’s evidence (hearsay, out-of-record items) | Appellant complains the judge did not “take” police reports, Facebook posts, and witness statements she referenced | Father argues much of Appellant’s material was hearsay or de hors the record and lacked foundational testimony | Affirmed: trial court correctly excluded hearsay and materials not part of the evidentiary record |
| Appellate procedural/briefing deficiencies | Appellant contests the outcome but filed a pro se brief with multiple App.R. defects and omitted one judgment entry | Father requested striking or rejection of improper materials; court urged compliance with rules | Appellate court noted numerous briefing violations but exercised discretion to address merits and nonetheless affirmed |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St.3d 415 (trial-court discretion in custody modifications; appellate review for abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse-of-discretion standard defined)
- Berk v. Matthews, 53 Ohio St.3d 161 (appellate court cannot substitute its judgment for trial court’s factual determinations)
- In re James, 113 Ohio St.3d 420 (juvenile-court custody modification and interplay of R.C. provisions on change-of-circumstances)
- State v. Ishmail, 54 Ohio St.2d 402 (appellate courts cannot consider matter dehors the trial record)
- Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14 (no right of appeal from dismissal of contempt when movant not prejudiced)
- State v. Hanning, 89 Ohio St.3d 86 (definition of "firearm" excludes BB/pellet guns for certain statutory purposes)
- In re D.D., 100 N.E.3d 141 (7th Dist.) (dicta recognizing change-of-circumstances application when non-parent has legal custody)