In Matter of M.E.H., 08ca4 (7-10-2008)
{¶ 1} Michael L. Hurst, father of M.E.H., appeals the judgment of the Washington County Court of Common Pleas, Juvenile Division, which named Anna C. Story, mother of M.E.H., residential parent and legal custodian. On appeal, father contends that the trial court erred when it failed to appoint an attorney to represent him pursuant to R.C.
I.
{¶ 2} Although they lived together off and on, Hurst and Story never married. They are the parents of M.E.H. (a girl born 8-19-02). Hurst was administratively determined to be the father in 2003. Hurst, through his attorney, filed an original custody action in 2006. Based on the affidavit filed with the action, the court granted Hurst temporary custody of M.E.H. Later, Story moved the court for
{¶ 3} At the temporary custody hearing, Hurst appeared without counsel and requested a continuance. The court granted his request and continued the hearing for two weeks. After reconvening the hearing, the court awarded Story temporary custody pending the final hearing.
{¶ 4} At the final hearing, both Hurst and Story were represented by counsel. Witnesses testified that Hurst verbally and physically abused Story throughout their relationship and that Hurst gets angry at his daughter M.E.H. These witnesses also provided other information that undermines Hurst‘s arguments to this court (which will be discussed below).
{¶ 5} After the final hearing, the court made numerous ”FINDINGS OF FACT” and ”CONCLUSIONS OF LAW.” It found that the guardian ad litem (“GAL“) recommended that the mother have custody of M.E.H. In addition, it found: “The [GAL] believes the father should have supervised visitation until he undergoes a psychological evaluation.”
{¶ 6} Within its decision, the court designated Story as the residential parent and legal custodian of M.E.H. The court granted Hurst supervised visitation and did not allow him to make telephone calls to his daughter.
{¶ 7} In its decision, the court granted supervised visitation to Hurst “until such time that he undergoes a full psychological evaluation with Dr. Michael Harding and he requests that the Court hold a further hearing on the issue of the father‘s suitability to have unsupervised visitation. The father shall make
{¶ 8} Hurst appeals the trial court‘s decision and asserts the following four assignments of error: I. “Juvenile Court erred in not inquiring as to whether Appellant wanted to have counsel appointed or a reasonable continuance to secure private counsel, in violation of ORC
II.
{¶ 9} Hurst contends in his first assignment of error that the trial court erred when it did not ask him if he wanted court appointed counsel. To answer this
{¶ 10} “A [parent of a child] is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter
{¶ 11} “Every party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding. When the complaint alleges that a child is an abused child, the court must appoint an attorney to represent the interests of the child. This rule shall not be construed to provide for a right to appointed
{¶ 12} Here, we find that Hurst was not entitled to appointed counsel because the court exercised its jurisdiction under
{¶ 13} Hurst maintains, however, that the court should have asked him if he wanted a reasonable continuance to secure private counsel.
{¶ 14} As we stated earlier,
{¶ 15} Here, Hurst had private counsel when he filed his complaint for custody. He did not have counsel when he appeared for the temporary custody hearing but did have private counsel at the final hearing. As such, we must
{¶ 16} The record shows that the court granted Hurst a two week continuance when he appeared the one time without counsel. Before granting the continuance, the court listened to Hurst talk about his prior counsel withdrawing and his attempts to hire new counsel.
{¶ 17} We find the two week continuance reasonable. The main purpose of the temporary custody hearing was to determine whether the mother or the father should have custody of the child until the final hearing. Hurst appeared two weeks later without counsel. The court‘s interlocutory order after the hearing switched temporary custody from Hurst to the mother. However, Hurst had private counsel for the final hearing.
{¶ 18} Therefore, we find no error in the court‘s failing to ask Hurst if he wanted court appointed counsel when it granted him a two week continuance to obtain private counsel.
{¶ 19} Accordingly, we overrule Hurst‘s first assignment of error.
III.
{¶ 20} Hurst contends in his second assignment of error that the trial court judge was biased. He asserts that we should remand this case to the trial court for another trial and order that a different judge hear the case.
{¶ 21} Under
{¶ 22} Here, Hurst did not file the required affidavit. Therefore, he “is foreclosed from bringing such a complaint.” Moore, supra, at 650.
{¶ 23} Accordingly, we overrule Hurst‘s second assignment of error.
IV.
{¶ 24} Hurst contends in his third assignment of error that the trial court erred when it denied his motion to dismiss the GAL.
{¶ 25} “The decision to remove a guardian ad litem rests within the sound discretion of the juvenile court and will not be reversed on appeal absent an abuse of that discretion.” In re Morgan, Marion App. No. 9-04-02, 9-04-03, 2007-Ohio-4018, ¶ 59, citing In re Smith (Mar. 5, 1997), 3d Dist. No. 1-96-71; Conner v. Renz (Aug. 26, 1992), 4th Dist. Nos. CA1492 and CA1519.
{¶ 26} In the trial court, Hurst argued that the court should grant his request to dismiss the GAL because the GAL‘s cousin has a personal grudge against him (he attached a copy of an e-mail from the alleged cousin to his motion), and the GAL was not carrying out her duties. He maintained that since he requested the appointment of the GAL and was paying her fees, then he should be allowed to remove her. Pursuant to
{¶ 27} The trial court‘s judgment entry denying Hurt‘s motion to dismiss the GAL indicated that the court met with the GAL and the parties’ attorneys in chambers and found no conflict existed and that the GAL was carrying out her duties. However, Hurst did not provide us with a record of this meeting.
{¶ 28} Hurst raises the same arguments on appeal.2 For example, he contends that the GAL was biased and did not carry out her duties. However, Hurst, “as the appellant, bears the burden of showing error by reference to matters in the record.” Proctor v. Hall, Lawrence App. No. 05CA3 05CA8, 2006-Ohio-2228, ¶ 20 citing State v. Skaggs (1978), 53 Ohio St.2d 162. “Where a transcript is unavailable or a proceeding is otherwise not recorded, an appellant may provide a settled or agreed statement of the proceeding as the record for review upon appeal.” Id. citing App. R. 9(C) and (D); Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. “Absent a substitute statement of the record, we presume the regularity of the proceedings and the validity of the court‘s judgment.” Id.
{¶ 29} As such, we find that the trial court‘s findings (of no conflict and that the GAL was carrying out her duties) are valid. Stated differently, because we do not know what information was provided to the court during the hearing in chambers, we cannot determine whether the court abused its discretion or not in denying Hurst‘s motion.
{¶ 30} Hurst continues to maintain on appeal that when he “VOLUNTARILY hired the GAL and paid the retainer, then [he] naturally has the right to fire/remove that GAL.” However, Hurst does not cite to any authority to support his position, and we likewise cannot find any authority to support the same.
{¶ 31} In addition, Hurst asserts that the trial court should not have accepted the GAL‘s testimony and report or ordered him to pay the costs of the GAL. With regard to ordering him to pay costs, the court acted within its province pursuant to
{¶ 32} With regard to the GAL‘s testimony and report, we have already determined that there was no error in denying Father‘s motion to discharge the GAL. Absent any other reasons against accepting the GAL‘s testimony and report, there is no merit to this assertion.
{¶ 33} Accordingly, we overrule Hurst‘s third assignment of error.
V.
{¶ 34} Hurst contends in his fourth assignment of error that the trial court erred when it granted custody of the child to the mother “before the psychological evaluation was completed[.]” He asserts that one of the factors that the trial court had to consider to determine the “best interests” of the child is
{¶ 35} A trial court enjoys broad discretion in custody proceedings. Davis v. Flickinger (1997), 77 Ohio St.3d 415, paragraph one of the syllabus. This is due, in part, to the fact that “custody issues are some of the most difficult and agonizing decisions a trial judge must make.” Id. at 418. We will not disturb a trial court‘s custody determination unless the court abused its discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 74. An “abuse of discretion” connotes that the court‘s attitude is “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219; Booth v. Booth (1989), 44 Ohio St.3d 142, 144.
{¶ 36} “The juvenile court has exclusive original jurisdiction under the Revised Code * * * to determine the custody of any child not a ward of another court of this state[.]”
{¶ 37} When a court determines the best interest of a child in an original custody proceeding, it must consider all relevant factors, including those contained in
{¶ 38} Here, the record shows that the father is mistaken. The court did not order a psychological evaluation to determine the “mental * * * health of all persons involved” under
{¶ 39} The trial court made the following relevant findings of fact:
27. The [GAL] believes the father should have supervised visitation until he undergoes a psychological evaluation.
28. The father‘s behavior is extremely detrimental to the child. During father‘s temporary custody, the child was reluctant to return to him after her visits with the mother.
29. He has called [mother] a whore in the presence of the child. On one occasion when the mother called to talk to the daughter, he said hold on “whore” and handed the telephone to his daughter. [Mother] asked her daughter how she knew it was her and she told her that daddy calls her that all the time.
30. He has left vulgar messages on the mother‘s home telephone as follows: “Fuck you all, you piece of shit, cock sucking skanks.” He has also called them “fucking scum” in messages.
31. He left the following messages on the mother‘s home telephone answering machine: “You piece of shit. You dumb fuckers, you are all a bunch of inbred cock sucking skanks.” [And] “I‘ll get you, you bitch.”
32. The father is always grilling the child for information on the mother and her activities and asking her if anyone has hurt her.
{¶ 41} In its final order, the trial court designated the mother as “the residential parent and legal custodian” of the child. Further, the court granted the father supervised visitation “until such time that he undergoes a full psychological evaluation with Dr. Michael Harding and he requests that the Court hold a further hearing on the issue of the father‘s suitability to have unsupervised visitation.” If the father chose to undergo a psychological evaluation, then he had to pay the costs of the same.
{¶ 42} Therefore, based upon the above findings of the trial court, we find that the father is mistaken. That is, the court did not order a psychological evaluation as it relates to the “best interests” factor contained in
{¶ 43} Accordingly, we overrule Hurst‘s fourth assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED, and Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.