In re L.E.N.
Craig Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for appellant, J.F.
Crystal Adkins, 142 Park Street, Sabina, Ohio 45169, appellee, pro se
O P I N I O N
RINGLAND, J.
{¶1} Appellant, father, appeals a custody decision of the Clinton County Court of Common Pleas, Juvenile Division. We reverse the juvenile court‘s decision.
{¶2} On October 6, 2004, father filed a complaint for paternity and visitation with the juvenile court regarding his child, L.E.N., who was born July 16, 2003. After a hearing on December 21, 2004, father and appellee, mother, agreed to submit to mediation. The parties reached an agreement in mediation where father was designated as the child‘s natural and biological parent, and was also allowed visitation
{¶3} On January 17, 2007, father filed a petition for custody of L.E.N. and the parties went back to mediation. A pretrial order was issued August 10, 2007 which set up a temporary shared parenting plan between father and mother. In September of 2007, a few days before the original final hearing date, father filed an emergency motion for custody of L.E.N., alleging the child was in danger at mother‘s residence. Father also obtained a Civil Protection Order (CPO) against mother and the child‘s stepfather.
{¶4} The magistrate conducted a final hearing on December 3, 2007 and February 19, 2008. In addition to hearing testimony from father, mother, the court-appointed guardian ad litem, paternal and maternal relatives, the police and a CCCS caseworker, the magistrate heard testimony from a psychotherapist, Francis E. Eckerson, M.Ed., LPCC, who conducted an evaluation of L.E.N. In particular Eckerson testified that L.E.N. suffered from post traumatic stress disorder (PTSD) and found she had been subject to abuse, some of which Eckerson believed was perpetrated by stepfather. Father attempted to have the magistrate review stepfather‘s juvenile record, “to ensure that the Court consider all potentially material information prior to determining what is in the best interest of the minor child.” The magistrate denied father‘s motion.
{¶5} The magistrate issued a decision on July 11, 2008, which the juvenile court adopted the same day, finding it was in L.E.N.‘s best interest to designate mother as the residential parent and legal custodian of the child, and grant father standard visitation. Father filed objections to the magistrate‘s decision, arguing the decision was against the manifest weight of the evidence, and that the magistrate erred in denying father‘s request to have stepfather‘s juvenile record reviewed. On February 24, 2009, the juvenile court overruled father‘s objections. Basing its decision on the factors in
{¶6} Because our discussion of the second assignment of error necessarily has bearing on the outcome of our decision, we have elected to address it prior to the first assignment of error.
{¶7} Assignment of Error No. 2:
{¶8} “THE COURT ERRED IN DENYING FATHER‘S MOTION FOR AN IN CAMERA REVIEW OF [STEPFATHER‘S] CLINTON COUNTY JUVENILE RECORDS.”
{¶9} In his second assignment of error, father contends that the juvenile court should have conducted an in camera review of stepfather‘s Clinton County juvenile records. We agree.
{¶10} In denying father‘s objection to the magistrate‘s refusal to conduct an in camera inspection of stepfather‘s juvenile records, the juvenile court found that stepfather‘s juvenile records were not admissible, so in camera review of the records was properly denied. The juvenile court based its decision on
{¶12} We are unable to determine whether stepfather‘s juvenile adjudication is relevant in determining L.E.N.‘s best interest, because the juvenile court refused to review the records. By foreclosing any inquiry into stepfather‘s juvenile adjudication, solely because it found the records inadmissible, we find that the juvenile court failed to ensure that it considered all possible factors that may be relevant in a best interest determination. See
{¶13} Assignment of Error No. 1:
{¶14} “THE DECISION GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE PERTAINS TO THE FACTORS LISTED IN R.C. 3109.04(F)(1)(2) AND MATTERS RELEVANT TO THE BEST INTEREST OF [L.E.N.]”
{¶15} Because our decision regarding the first assignment of error concerns evidence not considered by the trial court, we decline to address father‘s second assignment of error regarding the manifest weight of the evidence, as it would be advisory in nature, and thus impermissible under well-settled law. See Egan v. National Distillers and Chemical Corp. (1986), 25 Ohio St.3d 176, 178.
{¶16} Judgment reversed.
YOUNG, P.J., and HENDRICKSON, J., concur.