IN THE MATTER OF: K.R.
CASE NO. CA2015-06-049
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
5/2/2016
[Cite as In re K.R., 2016-Ohio-2775.]
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2014 JG 21111
T. David Burgess Co., L.P.A., T. David Burgess, 110 North Third Street, Williamsburg, Ohio 45176-1322, for appellant
Deborah Kuo, 993 Kennedys Landing, #7, Cincinnati, Ohio 45245, appellee, pro se
S. POWELL, J.
{1} Appellant, Charles D. Rasnick (“Father“), appeals from the decision of the Clermont County Court of Common Pleas, Juvenile Division, designating appellee, Deborah Kuo (“Mother“), the residential parent and lеgal custodian of their daughter, K.R. For the reasons outlined below, we affirm.
{2} Father and Mother are the biological parents of K.R., born August 28, 2010.
{3} On February 4, 2014, Father filed a complaint seeking legal custody of K.R. However, after holding a hearing on the matter, a juvenile court magistrate issued a decision designating Mother as the residential parent and legal custodian. Father then filed objections to the magistrate‘s decision, from which the juvenile court held a two-day de novo hearing that ultimately concluded on May 18, 2015. The following day, the juvenile court issued a decision similar to that of the magistrate, wherein it designated Mother as K.R.‘s residential parent and legal custodian. In support of this decision, the juvenile court determined that “it is in the best interest of the minor child for these conditions to continue.”
{4} Father now appeals from the juvenile сourt‘s decision, raising three assignments of error for review.1
{5} Assignment of Error No. 1:
{6} THE TRIAL COURT ERRED IN ITS DECISION DESIGNATING THE MOTHER AS THE RESIDENTIAL PARENT OF THE MINOR CHILD AND ITS DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{7} In his first assignment of error, Father argues the juvenile court erred by designating Mother the residential parent and legal custodian of K.R. Father alsо argues the juvenile court‘s decision was against the manifest weight of the evidence. We disagree.
{8}
{9} An appellate court reviews a juvenile court‘s custody determination for an abuse of discretion. In re S.K., 12th Dist. Butler No. CA2013-06-108, 2014-Ohio-563, ¶ 12. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The discretion which a juvenile court enjoys in custody matters “‘should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.‘” In re J.M., 12th Dist. Warren No. CA2008-12-148, 2009-Ohio-4824, ¶ 17, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Thus, “an appellate court affords deference to a judge or magistrate‘s findings regarding witnesses’ credibility.” In re D.R., 12th Dist. Butler Nos. CA2005-06-150 and CA2005-06-151, 2006-Ohio-340, ¶ 12.
{10} As it relates to a manifest weight of the evidence challenge, “a reviewing court must determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost his way and created such a manifest miscarriage of justice that the judgment must be
{11} After a thorough review of the record, and as did the juvenile court before us, we find both Father and Mother are loving parents who participate in a variety of activities with K.R. and who are able to provide for K.R.‘s needs. The record further establishes that both Father and Mother have suitable homes and have suppоrtive extended family members. However, although submitting a recent clean drug screen, the record also indicates Father had smoked marijuana with his neighbor sometime within the past three to four years. The record further indicates that Father had suffered from depression and had an anxiety attack due to these proceedings.
{12} Moreover, in reviewing the guardian ad litem‘s report and recommendation, the guardian ad litem recommended Mother be granted legal custody of K.R. due to his concerns regarding Father‘s “credibility and the veracity of his statements throughout the investigation,” including his рrofessed ignorance regarding certain allegations of sexual abuse levied against him by his ex-wife. The guardian ad litem also noted that Father often speaks of his daughter “as if she is an objeсt or possession to which he has solitary claim,” whereas he shows utter distain for Mother who he treats as an “unknown entity” habitually referring to her only by her full name. The record fully supports these findings.
{14} Assignment of Error No. 2:
{15} THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE REQUIRED FACTORS CONCERNING THE SHARED PARENTING PLAN FILED BY THE MOTHER.
{16} In his second assignment of error, Father argues the juvenile court erred by failing to give its reasoning for denying Mother‘s proposed shared parenting рlan. However, as the record reveals, Mother filed her proposed shared parenting plan a full month prior to the hearing before the juvenile court magistrate, and over six months before the first day of the two-day de novo hearing before the juvenile court judge. Mother testified that during this time she began to feel threatened and fearful of Father, which lead her to the realization that implementing a shared parenting plan would be unworkable since Father would not cooperate with her. Specifically, as Mother testified, “He will not cooperate. If I had a plan enforced he will not cooperate. * * * [W]e severed ties communicating because of that, because it goes to deaf ears.” Mother also testified, “I don‘t want to have shared parenting, I want to have custody of [K.R.].”
{17} While
{18} Assignment of Error No. 3:
{19} THE TRIAL COURT ERRED IN ALLOWING THE GUARDIAN AD LITEM TO CROSS EXAMINE DURING THE TRIAL PROCEEDING.
{20} In his third assignment of error, Father argues the juvenile court erred by allowing the guardian ad litem to question witnesses since he was “advocating” for Mother to be designated residential parent and legal custodian. Father, however, never objected to the guardian ad litem‘s questioning, thereby forfeiting all but plain error on appeal. The plain error doctrine is not favored in civil cases, and therefore, its application must be limited to only “thоse extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997).
{21} After a thorough review of thе record, we find this is not one of those extremely rare cases where exceptional circumstances require a finding of plain error. In reaching this decision, we note that the juvenile сourt‘s entry appointing the guardian ad litem specifically stated that he was to “provide representation of the child” at any and all juvenile court proceedings. That is exactly what the guardian ad litem did here, and for which the juvenile court explicitly informed Father while Father was being questioned by the guardian ad litem. As the juvenile court stated:
THE WITNESS: Excuse me, Your Honor, is [the guardian ad litem] rеpresenting [Mother], is that what‘s going on?
THE COURT: He [is] representing the best interest of the child.
THE WITNESS: Okay.
THE COURT: And he‘ll ask [Mother] questions when she testifies.
THE WITNESS: Okay, I got it.
Nothing about this was improper. See In re E.S., 6th Dist. Ottawa Nos. OT-14-008, OT-14-009, OT-14-011, and OT-14-012, 2014-Ohio-3067, ¶ 57 (juvenile court did not commit plain error by permitting guardian ad litem to question witnesses and make closing argument where guardian ad litem was appointed as both attorney and guardian for the children). Therefore, because we find no error in the juvenile court‘s decision, let alone plain error, Father‘s third assignment of error is overruled.
{22} Judgment affirmed.
M. POWELL, P.J., and RINGLAND, J., concur.