Facts
- Petitioner Mickey Verchell Shanklin was convicted of selling and delivering heroin and fentanyl, with a sentence of thirty years as a Range III, persistent offender [lines="10-12"].
- The drug transaction was recorded and involved a confidential informant who paid Petitioner $80 for the substances [lines="30-45"].
- The Tennessee Bureau of Investigation tested the controlled substance, confirming it contained both heroin and fentanyl, but failed to determine their specific amounts [lines="46-49"].
- Petitioner claimed he received ineffective assistance of counsel for not pursuing independent testing of the controlled substance [lines="88-92"].
- The post-conviction court denied Petitioner’s relief, finding no deficiency in counsel's performance [lines="111-115"].
Issues
- Whether trial counsel's failure to submit the controlled substance for independent testing constituted ineffective assistance of counsel [lines="14-15"].
- Whether Petitioner timely filed his notice of appeal after the post-conviction court's order [lines="132-133"].
Holdings
- The post-conviction court found that Petitioner failed to prove counsel's performance was deficient or resulted in prejudice, supporting the denial of relief [lines="115"].
- The court dismissed the appeal as Petitioner did not file a timely notice of appeal, failing to meet the established deadlines [lines="188"].
OPINION
AUSTIN CORNWELL, PETITIONER-APPELLEE, v. ADRIANA EUFRACIO, RESPONDENT-APPELLANT.
CASE NO. 13-24-17, CASE NO. 13-24-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
September 23, 2024
[Cite as Cornwell v. Eufracio, 2024-Ohio-4634.]
ZIMMERMAN, J.
Appeals from Seneca County Common Pleas Court Juvenile Division Trial Court Nos. 22370136 and 22370137 Judgments Affirmed
John M. Kahler II for Appellant
David C. Shook for Appellee
{1} Respondent-appellant, Adrianna Eufracio (“Eufracio”), appeals the April 15, 2024 judgment entries of the Seneca County Court of Common Pleas, Juvenile Division, allocating parental rights and responsibilities and designating petitioner-appellee, Austin Cornwell (“Cornwell”), as the residential parent and legal custodian of the parties’ minor children. We affirm.
{2} Eufracio and Cornwell, who were never married, had two children during their relationship, Al.C. (born in 2017) and Am.C. (born in 2021). On August 22, 2023, Cornwell filed petitions in the trial court to determine the parental rights and responsibilities of Al.C. and Am.C.1
{3} On October 5, 2023, the trial court‘s magistrate issued temporary orders naming Eufracio as Al.C. and Am.C.‘s temporary residential parent. Following Cornwell‘s request, the trial court‘s magistrate appointed a guardian ad litem (“GAL”) on October 12, 2023. The GAL filed his reports on January 11, 2024 in which he recommended (“with some reluctance”) that Eufracio “be the residential parent and have custody of [Al.C.] and [Am.C.]” (Doc. No. 31). Importantly, the GAL expressed his reservation of Eufracio‘s removal of “the children from the State of Ohio without the consent of their father, Mr. Cornwell, and apparently without
{4} Prior to trial, Eufracio filed motions requesting that the trial court conduct an in camera interview of Al.C., which the trial court‘s magistrate granted. However, after the trial court‘s magistrate informed her that “another $500 towards the feе of the [GAL]” needed to be deposited for purposes of the in camera interview, Eufracio withdrew her motions. (Jan. 18, 2024 Tr. at 39, 127).
{5} Following a hearing on January 18, 2024, the trial court‘s magistrate issued decisions on January 24, 2024 awarding residential and legal custody of Al.C. and Am.C. to Cornwell. Eufracio filed her objections to the magistrate‘s decisions on February 5 and March 18, 2024. Cornwell filed memoranda in opposition to Eufracio‘s objections to the magistrate‘s decisions on April 4, 2024. On April 15, 2024, the trial court, in its independent review оf the matter, overruled Eufracio‘s objections to the magistrate‘s decisions. (Doc. No. 47).
{6} Eufracio filed her notices of appeal on May 1, 2024 and we consolidated the cases for purposes of appeal. She raises two assignments of error for our review, which we will discuss together.
First Assignment of Error
The Trial Court erred when he determined that it was in the children‘s best interest to designate Father the residential parent and legal custodian of the minor children.
The Trial Court erred by essentially threatening to charge a “fee” to conduct an in camera interview of the parties [sic] minor children and thus coercing Mother to withdraw her motion for an in camera interview.
{7} In her assignments of error, Eufracio argues that the trial court abused its discretion by designating Cornwell as Al.C. and Am.C.‘s residential parent and legal custodian. In particular, in her first assignment of error, Eufracio contends that the trial court did not properly consider the best-interest factors under
Standard of Review
{8} ““Decisions concerning child custody matters rest within the sound discretion of the trial court.”” Krill v. Krill, 2014-Ohio-2577, ¶ 26 (3d Dist.), quoting Walker v. Walker, 2013-Ohio-1496, ¶ 46 (3d Dist.). “““Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the еvidence by a reviewing court.””” Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 2008-Ohio-5538, ¶ 25 (3d Dist.) and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. ““Accordingly, an abuse of discretion must be found in order to reverse the trial
Analysis
{9} “Revised Code 3109.04 governs the trial court‘s award of parental rights and responsibilities.” August v. August, 2014-Ohio-3986, ¶ 22 (3d Dist.). That statute “provides for options available to the trial court when allocating parental rights and responsibilities: “primarily to one of the parents’ (
[a]n unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.
{10} “In custody disputes between unmarried parents, “the court must determine custody based on the best interests of the child pursuant to
“In determining the best interest of a child [under
R.C. 3109.04 ], whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court hаs 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;
(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 fаmily 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;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.”
Id., quoting
{11} “The trial court “has discretion in determining which factors are relevant,’ and “each factor may not necessarily carry the same weight or have the same relevance, depending upon the facts before the trial court.”” Krill, 2014-Ohio-2577, at ¶ 29 (3d Dist.), quoting Brammer v. Brammer, 2013-Ohio-2843, ¶ 41 (3d Dist.). “A trial court is not limited to the listed factors in
{12} “Additionally, we note that the trier of fact is in the best position to observe the witnesses, weigh evidence, and evaluate testimony.” Walton v. Walton, 2011-Ohio-2847, ¶ 20 (3d Dist.). “Therefore, “[a] reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not.””” Id., quoting Clark v. Clark, 2007-Ohio-5771, ¶ 23 (3d Dist.), quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81 (1984). Importantly, “[t]he best interest determination focuses on the child, not the parent.” B.S. v. M.M., 2021-Ohio-176, ¶ 29 (5th Dist.).
{13} In its January 24, 2024 decisions, the trial court‘s magistrate considered the factors under
{14} In its April 15, 2024 decisions overruling Eufracio‘s objections to the magistrate‘s decisions, the trial court (after an independent analysis of the factors under
{15} Challenging the trial court‘s decisions relating to parental rights and responsibilities, Eufracio argues that the trial court abused its discretion by concluding that it is in Al.C. and Am.C.‘s best interest for Cornwell to have residential and legal custody of Al.C. and Am.C. Eufracio asserts that the trial court‘s custody decision (based on the factors under
{16} Addressing the factors set forth under
{17} Further, Eufracio contends that the trial court‘s custody decision is not supported by a substantial amount of competent, credible evidence because it did not properly weigh the evidence that she “has been the primary caregiver for the children for most, if not all of their lives.” (Id. at 18). In partiсular, Eufracio contends that “the Trial Court failed to acknowledge the “primary caregiver doctrine.”” (Id. at 17). While “Ohio has never formally adopted the primary caregiver doctrine,” “the doctrine is inherently a part of the best interest of the child and is included in the language of
{18} Based on our review of the record, we conclude that the trial court properly considered the best-interest factors challenged by Eufracio and conclude that the trial court‘s findings are supported by a substantial amount of competent, credible evidence. See Brammer, 2013-Ohio-2843, at ¶ 47 (3d Dist.) (“When reviewing a trial court‘s best interests analysis, we need only address two items: “(1) [whether] the trial court considered all of the necessаry factors listed in
{19} Nevertheless, Eufracio argues under her second assignment of error that the trial court‘s decision designating Cornwell as the residential parent and legal
{20} “Under
{22} “[T]he doctrine of forfeiture also applies” when a trial court does not conduct such requested in camera interview. Phillips at ¶ 23. Specifically, “a party forfeits all but plain error on appeal where a motion for in-camera interview is made and the trial court fails to take action upon it when the party did not raise the issue subsequently during the рroceedings.” Id. at ¶ 32 (Belfance, J., dissenting). Consequently, Eufracio waived all but plain error on appeal. “Plain error is not favored and is only applicable in rare cases where the error “seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.”” Collier v. Smith, 2023-Ohio-1553, ¶ 10 (1st Dist.), quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{24} Moreover, Eufracio cannot demonstrate that the trial court‘s magistrate‘s failure to conduct an in camera interview of Al.C. prejudiced her case. See In re K.J.D., 2013-Ohio-610, ¶ 54 (10th Dist.). Indeed, notwithstanding the discretion that the trial court has to apply “greater weight to any one of the best-interest factors deepening on the facts of the casе,” Eufracio did not present any argument as to how such in camera interview with Al.C. would have changed the outcome of the case. Costilla v. Weimerskirch, 2021-Ohio-165, ¶ 32 (3d Dist.). Importantly, the trial court‘s magistrate found that the GAL expressed the wishes of
{25} Therefore, we conclude that the trial court explicitly addressed its best-interest findings and those findings are supported by a substantial amount of competent, credible evidence. See Krill, 2014-Ohio-2577, at ¶ 29 (3d Dist.). Importantly, a substantial amount of competent, credible evidence was presented at the January 18, 2024 hearing, which supports the trial court‘s determination that it is in Al.C. and Am.C.‘s best interest for Cornwell to be designated Al.C. and Am.C.‘s residential parent and legal custodian. At the hearing, Cornwell presented the testimony of the GAL and his aunt, Rhonda Cornwell (“Rhonda”), as well as his own testimony. Other than her own testimony, Eufracio did not present any evidence.
{27} Cornwell testified that Eufracio did not inform him that she was moving to Texas. According to Cornwell, Eufracio told him “[t]hat she was tаking a car there and was going to be back in a week.” (Id. at 91). However, Cornwell learned from Rhonda that Eufracio did not plan to return to Ohio. Indeed, Rhonda
{28} Based on his investigation, the GAL testified that he determined that there was no “overriding” benefit for Eufracio to move the children to Texas. (Id. at 13). The GAL further testified that he did not find any evidence that any of Eufracio‘s family members living in Texas were involved in Al.C. or Am.C.‘s lives prior to Eufracio‘s move to Texas. Importantly, the GAL was unable to speak with any of Eufracio‘s family members living in Texas, and Eufracio affirmed that she did not provide the names or contact information for anyone in Texas to the GAL.
{29} The GAL testified that, even though it “was a close decision” as to which party should be designated Al.C. аnd Am.C.‘s residential parent and legal guardian, Eufracio “generally knew what the children‘s needs were better than Mr. Cornwell.” (Id. at 24). The GAL testified that Al.C. expressed that she missed Cornwell following her move to Texas but that she was not “traumatized” by the move. (Id. at 26). The GAL further testified that he did not make a determination as to which parent would be more likely to facilitate court-approved parenting time rights or visitation and companionship rights. Eufracio testified that she would return to Ohio if the trial court designated Cornwell as Al.C. and Am.C.‘s residential
{30} Consequently, based on our review of the record before this court, it is evident that the trial court‘s magistrate and the trial court considered the GAL‘s report, as well as the testimony and evidence presented at the January 18, 2024 hearing, and weighed that evidence with the
{31} Therefore, “[t]his court should not, and will not, second-guess the [trial] court‘s decision as to the appropriate weight to be given to any one of those best interest factors.” Bonifield v. Bonifield, 2021-Ohio-95, ¶ 13 (12th Dist.). Thus, notwithstanding Eufracio‘s challenge to the trial court‘s weight applied to the
{32} In sum, where most of the relevant factors did not tilt strongly in favor of either party, we cannot say that it was unreasonable, arbitrary, or unconscionable for the trial court‘s magistrate or the trial court to conclude that it was in Al.C. and Am.C.‘s best interest for Cornwell to havе residential and legal custody of Al.C. and Am.C. See In re A.B., 2010-Ohio-2823, ¶ 35 (12th Dist.) (concluding that “the trial court‘s custody decision is supported by the record, and we decline to second guess the trial court in this matter”). Therefore, we conclude that the trial court did not abuse its discretion by designating Cornwell as the residential parent and legal custodian of the parties’ children.
{33} Eufracio‘s assignments of error are overruled.
{34} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WALDICK and MILLER, J.J., concur.
/hls