2013 Ohio 3983
Ohio Ct. App.2013Background
- Bower sought a change in disposition to return L.L. and N.L. to her custody after prior orders placed them with the Powells.
- Trial court previously granted the Powells’ legal custody following a dependency finding and later issued orders on remand to reflect a change-in-circumstances finding.
- The appellate court had previously reversed for failure to expressly find a change in circumstances and remanded for proper findings under R.C. 2151.42(B).
- Evidence at the later hearing included testimony about alleged abuse and safety concerns at the Powells’ home, and improvements in Bower’s care and housing over time.
- Harmony House visit observations and CASA/GAL testimony supported concerns about the Powells, while other witnesses noted Bower’s progress and attentiveness to the children.
- The court ultimately concluded that a change in circumstances existed and that transferring custody to Bower was in the children’s best interests, affirming on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a change in circumstances and a best-interest finding under RC 2151.42(B)? | Powells contend the court failed to apply the two-part test and to show a true change in circumstances; they allege a reunification bias. | Court applied RC 2151.42(B), found a change in circumstances since the prior order, and held modification necessary to serve best interests. | Yes, court properly found change in circumstances and best interests. |
| Were the November 15, 2012 judgments properly labeled as nunc pro tunc entries? | Entries labeled nunc pro tunc were mischaracterized; they did not merely correct clerical errors and misled appeal timing. | Entries were intended to reflect the court’s findings; labeling as nunc pro tunc is permissible where appropriate. | Entries were mislabeled as nunc pro tunc; however, the branding did not affect the validity of the substantive findings or the decision. |
Key Cases Cited
- In re L.L., 2012-Ohio-4346 (Ohio-App.3d Dist. 2012) (requires explicit change-in-circumstances finding for modify of legal custody)
- In re Osberry, 2003-Ohio-5462 (Ohio-App. 3d Dist. 2003) (parental unfitness not controlling where RC 2151.42(B) standard met)
- In re L.P., 2013-Ohio-2607 (Ohio-App. 3d Dist. 2013) (best-interest framework may be guided by RC 3109.04(F)(1) or RC 2151.414(D))
- In re T.J., 2010-Ohio-4191 (Ohio-App. 10th Dist. 2010) (abuse of discretion standard in dispositional custody decisions)
- In re C.W., 2010-Ohio-2157 (Ohio-App. 3d Dist. 2010) (review of dispositional custody orders under abuse of discretion; credibility of witnesses)