D.W. v. T.R.D.W. v. T.R.
DECISION AND JUDGMENT
Decided: February 17, 2012
* * * * *
D.W., pro se.
Clint M. McBee, for appellant.
* * * * *
YARBROUGH, J.
I. Introduction
{¶ 1} This is аn appeal from the judgment of the Lucas County Court of Common Pleas, Juvenile Division, granting plaintiff-appellee D.W.’s (“father”) motion to modify the allocation of parental rights and responsibilities. For the reasons that follow, we affirm.
{¶ 2} On December 7, 2006, the parties filed a consent judgment entry with the trial court, designating defendant-appellant T.R. (“mother”) as the sole residential parent and the legal custodian of the parties’ two minor children. The entry alsо provided that father was to have parenting time and companionship privileges in accordance with the court’s “Parenting Plan and Companionship Schedule.”
{¶ 3} On February 2, 2010, father filed a motion to modify the allocation of parental rights and responsibilities. In his motion, father alleged, inter alia, that a change of circumstances had occurred because of mother’s consistent failure to follow the trial court’s order regarding visitation and parenting time. Thus, father asked that the court designate him as the residential parent and legal custodian.
{¶ 4} The court held a hearing on this motion on August 30, 2010. At the hearing, father testified to numerous dates that mother denied him visitation, including instances in December 2006, January 2007, and on various holidays and vacations throughout 2007 and 2008. Mother denied that she withheld visitation from father on any of the dates he mentioned.
{¶ 5} In addition, father, mother, the guardian ad litem, and the maternal grandfathеr testified about an incident that occurred in December 2008. The incident involved the older child, who was then eight years old, becoming hysterical and threatening to commit suicide if he was forced to go with his father for visitation. The maternal grandfather, who was driving the child to the visitation exchange point at the
{¶ 6} Prior to the hearing, the guardian ad litem had submitted three reports to the court containing his findings and recommendations. In his first report, the guardian ad litem stated that through his investigation he learned that mother took the older child to see a counselor, as required by the court following the December 2008 incident. After a few months, the counselor recommended that the visitations with father should be resumed. However, mother successfully fought this recommendation in court. The guardian ad litem continued, “Since his discussion of suicide in December 2008, [the older child] has been in counseling only briefly with [the counselor]. [Mother] discontinued that counseling after [the counselor] recommended that visits should resume, and [mother] has not retаined another counselor.” The guardian ad litem
{¶ 7} In his second report, the guardian ad litem commented that visits between father and the older child had been going well. In addition, the guardian ad litem noted that the parents had shown progress by cooperating to make minor changes in the visitation schedule for the sake of convenience, but that father continues to press the issue too far when he thinks things should be different. The guardian ad litem concluded,
I seriously considered recommending a change of custody based on the history of problems with the father’s visitation. However, I am not making that recommendation at this time because [the older child] opposes it ([the younger child] does not express an opinion), because I am still somewhat in the dark regarding the exact cause of the past problems, and because [mother] seems to be doing a good job parenting the children, with the exception [sic] her handling of the boys’ relationships with their father.
{¶ 10} Following the August 30, 2010 hearing, written closing arguments were submitted by father, mother, the guardian ad litem, and the attorney for the older child.2 Mother subsequently moved to strike the guardian ad litem’s “inflammatory” closing argument, contending that under the Juvenile Rules of Procedure, “the court appoints a Guardian Ad litem to investigate matters for the protection in the best interests of the children he is appointed to protect. He is not an advocate in this case.” The guardian ad litem filed an opposition. However, no ruling was ever made on this motion.
{¶ 11} On November 2, 2010, the magistrаte entered her decision granting father’s motion to modify the allocation of parental rights and responsibilities. In her decision, the magistrate found, inter alia,
[T]here were numerous times that mother denied father his visitation. Mother has repeatedly and consistently allowed father to parent as little as possible. She thwarts him in any way she can even to the
detriment of the children. She gives lip service to fostering a relationship between father and his sоns, but her actions are to the contrary. * * *
* * *
Based upon the in camera interview and evidence adduced at hearing and upon consideration of the factors contained in
O.R.C. 3109.04 , a change has occurred in the circumstances of the children and in the circumstances of the residential parent such that a modification is necessary to serve the best interest of the children and the harm likely to be caused by a change if [sic] environment is outweighed by the advantages of the change of environment to the children.Based upon the evidence adduced at hearing and in consideration of the in camera interview of the child, it is in the best interest of the children that their father be designated as the residential parent and legal custodian.
{¶ 12} The mother subsequently filed objections to the magistrate’s decision. On April 21, 2011, the trial court affirmed the magistrate’s decision in all aspects.
B. Assignments of Error
{¶ 13} Mother now raises the following three assignments of error:
- I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT FOUND THAT A CHANGE OF CIRCUMSTANCES SUFFICIENT TO WARRANT A MODIFICATION OF THE PRIOR DECREE OCCURRED.
II. THE COURT ERRED BY REFUSING TO STRIKE THE GUARDIAN AD LITEM’S CLOSING ARGUMENT BECAUSE HE IS NOT AN ADVOCATE IN THE TRIAL PROCEEDINGS AND HIS TESTIMONY SHOULD HAVE BEEN LIMITED TO HIS RECOMMENDATIONS. - III. THE TRIAL COURT ERRED BY REFUSING TO INTERVIEW [THE YOUNGER CHILD,] IN CAMERA, BECAUSE THE INTERVIEW IS MANDATED BY
R.C. § 3109.04(B)(1) WHEN A PARTY REQUESTS AN INTERVIEW IN CHAMBERS.
II. Analysis
A. Change of Circumstances
{¶ 14}
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 shаred parenting decree, and that the modification is necessary to serve the best interest of the child.
{¶ 15} Before analyzing whether a modification to the allocation of parental rights and responsibilities is in the child’s best interest, the court must first determine whether a
{¶ 16} The Supreme Court of Ohio has held that the change of circumstances “must be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Further, the phrase “change in circumstances,” generally denotes “an event occurrence, or situation which has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000). “In determining whether a ‘change’ has occurred * * * a trial judge must have wide latitude in considering all the evidence before him or her * * * and such a decision must not be reversed absent an abuse of discretion.” Davis v. Flickinger at 418, citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988).
{¶ 17} In support of her first assignment of error, the entirety of mother’s argument is “[father] has failed to demonstrate any substantial change of circumstance that would warrant the reallocation of parental rights and responsibilities in the best interests of these children.” We disagree.
{¶ 19} Accordingly, mother’s first assignment of error is not well-taken.
B. Guardian Ad Litem’s Closing Argument
{¶ 20} Under her second assignment of error, mother argues that the trial court erred by not striking the guardian ad litem’s closing argument.3 In support of her
{¶ 21} We recognize that “[t]he roles of guardian ad litem and attorney are different.” In re Janie M., 131 Ohio App.3d 637, 639, 723 N.E.2d 191 (6th Dist.1999). A guardian ad litem’s role 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, 479 N.E.2d 257 (1985). In performing this role, the guardian ad litem shall, inter alia:
- 1. Represent the best interest of the child for whom the guardian is appointed;
- 2. Maintain independence, objеctivity and fairness in dealings with parties and professionals, and act with respect and courtesy to the parties at all times;
- 3. Appear and participate in any hearing for which any issues substantially within a guardian ad litem’s duties and scope of appointment are to be addressed;
- 4. If also appointed as an attorney, advocate for the child’s best interest and the child’s wishes in accord with the Rules of Professional Conduct, and if a conflict exists between the child’s best interest and the child’s wishes, request in writing at the earliest possible time that the court promptly resolve the conflict;
5. Make reasonable efforts to become informed about the facts of the case by interviewing the child individually, by observing the child with the parent, foster parent, guardian, or physical custodian, by visiting the child’s residence, by ascertaining the wishes of the child, by interviewing the parties, foster parents, or other significant persоns with knowledge relevant to the issues of the case, and by performing any other investigation necessary to make an informed recommendation regarding the best interest of the child; - 6. Prepare a written final report—filed with the court and made available for inspection by the parties no less than seven days before the final hearing, unless the due date is extended by the court—which includes the recommendations to the court, and which details the informаtion considered in reaching those recommendations.
Sup.R. 48(D) and (F).
{¶ 22} In contrast, an attorney is an advocate for the child, and is ethically bound to “abide by [the child’s] decisions concerning the objectives of representation * * *.”
The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of mаking decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects. * * * Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certаinly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. (Emphasis added.)
{¶ 23} Because of the differences in the roles, “absent an express dual appointment, courts should not presume a dual appointment when the appointed guardian ad litem is also an attorney.” In re Janie M., 131 Ohio App.3d at 639. In the present case, the appointment stated, “In accordance with
{¶ 24} Accordingly, mother’s second assignment of error is not well-taken.
C. In Camera Interview of the Younger Child
{¶ 25} For her third assignment of error, mother argues that the magistrate erred by failing to comply with
When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.” (Emphasis added.)
{¶ 26} We note that “[t]he plain language of this statute absolutely mandates the trial court judge to interview a child if either party requests the interview.” Badgett v. Badgett, 120 Ohio App.3d 448, 450, 698 N.E.2d 84 (7th Dist.1997). Further, “[f]ailure to
{¶ 27} In the present case, the magistrate scheduled the interview for October 18, 2010. However, when the magistrate attempted to engage the younger child, the сhild cried and tried to hide under a chair. Mother contends that the magistrate “did not try very hard to comply with the statutory mandate at all, and simply refused to interview the child when he balked at the first attempt.” She argues,
Certainly the statute requires more that [sic] a half-hearted attempt to comply and then blame the child for refusing the interview. * * * If the child had actually behaved in a much more determined manner, the Magistrate’s refusal could be understood. But little to no effort was made to talk with the child and the law should be enforced to require the Magistrate’s compliance.
{¶ 28} Upon consideration, we hold that the court complied with
{¶ 29} Accordingly, mother’s third assignment of error is not well-taken.
III. Conclusion
{¶ 30} It is clear from the record that independently mother and father are good parents who love and care for their children. Unfortunately, the parties disdain for each other has resulted in a nearly constant state of contentious litigation over ten years, with the children caught in the middle. In moving forward, we exhort the parties to give greater consideration to the effect their disagrеements have on their children.
{¶ 31} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
C.A. No. L-11-1099
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.