IN RE: N.F. N.T.
C.A. No. 29508
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
April 29, 2020
[Cite as In re N.F., 2020-Ohio-2701.]
SCHAFER, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 16-06-429 DN 16-06-430
{¶1} Appellants, J.K. and K.K. (“Custodians“), appeal from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that modified the children‘s parenting time with their mother, S.J. (“Mother“). This Court affirms.
I.
{¶2} Mother is the biological mother of N.F., born October 21, 2008; and N.T., born February 3, 2012. On July 23, 2012, Akron Police placed the children under the protective supervision of Summit County Children Services Board (“CSB“) because Mother had been arrested for forging a Xanax prescription. On July 27, 2012, CSB filed complaints to allege that these children were neglected and dependent because Mother appeared to have а substance abuse problem. Mother agreed to place the children in the home of Custodians while she addressed her drug problem and related criminal charges. The children were later adjudicated neglected and dependent and placed in the temporary custоdy of Custodians.
{¶4} During March 2018, Mother moved for a modification of legal custody or, alternatively, a modification of her parenting time. Mother‘s request for increased parenting time was supported by her allegation thаt Custodians had stopped allowing her to visit her children.
{¶5} The matter ultimately proceeded to a hearing before a magistrate. Following the hearing, the magistrate denied Mother‘s motion for legal custody but granted her a standard order of parenting time with the children. Custodians filed objеctions, which were later overruled by the trial court. The trial court granted Mother a standard order of parenting time with N.F. and N.T. Custodians appeal and raise three assignments of error.
II.
Assignment of Error I
The trial court committed reversible error and violated legal custodians’ rights to due procеss when it held, after a hearing on visitation and custody, that an unsigned pleading would be considered a response by [Mother] to legal custodians’ request for admissions.
{¶6} Custodians’ first assignment of error is that the trial court improperly accepted Mother‘s responses to their requests for аdmissions under
{¶8} On November 5, 2019, a similar document was filed in the trial court and served on the parties. The November 5 document was a verbatim copy, albeit in a different font, of Custodians’ original requests for admissions with their counsel‘s electronic signature. The document was not signed by Mother. Notably, however, the handwritten words “admit” or “deny” had been added after each of the original typed statements.
{¶9} To support their argument that the requests were deemed admitted, Custodians point to one question answered by the magistrate at the hearing. During a lengthier discussion, counsel for Custodians asked the magistrate, “just so I‘m clеar, you said the request for admissions are deemed admitted and will be considered?” The magistrate responded, “Yes.” Although this response might suggest that the magistrate deemed the requests for admissions admitted by Mother, this Court must review this brief exchange within the entire context of what transpired at the hеaring.
{¶10} At the commencement of the hearing, counsel for Custodians asked that the requests be deemed admitted because Mother did not respond as required by
{¶11} Counsel for Custodians admitted that he reсeived the purported responses but stated that he had ignored them because he did not know what they were or who they were from. He referred to Mother‘s alleged responses as a “sham pleading” and asked that the document be stricken from the record. Counsel handed thе magistrate a copy of a legal authority, which is not cited in the record, and a brief recess was taken for the magistrate to consider Custodians’ argument that Mother‘s responses should be stricken.
{¶12} After the recess, the magistrate stated on the record that Custodians’ argument was nоt persuasive and that “[w]e will proceed with trial today. Her admissions and responses to your request will be accepted into the record.” Although the magistrate later responded “yes” to counsel‘s question that “the request for admissions are deemed admitted and will be considered[,]” within the context of the entire conversation, the magistrate was merely reiterating that both documents (the requests and the responses) would be admitted into evidence.
{¶13} Moreover, the parties went forward with a hearing, during which Mother presented evidence to support her motions without any objection from Custodians. By taking evidence to support Mother‘s allegations, the trial court further demonstrated that it had not accepted Custodians’ argument that Mother‘s motions had no merit because she made default admissions under
Assignment of Error II
The trial court committed reversible error in finding that there has been a change in circumstances regarding Mother‘s motion to modify visitation as it was against the manifest weight of the evidence.
Assignment of Error III
The trial court committed reversible error by finding that it was in the children‘s best interest for Mother to have a standard order of visitation.
{¶15} This Court will address Custodians’ second and third assignments of error together because they are interrelated. Custodians’ second assignment of error is that the trial court erred in finding that there had been a сhange in circumstances of the children or Custodians that justified a modification of Mother‘s parenting time. This Court need not delve into the evidence supporting the trial court‘s finding that there had been a change of circumstances because no change was required for the trial court to modify parenting time.
{¶16} Custodians premise their argument on
A court shall not modify or terminate an order granting legal custody of a child unless it finds, based on facts that have arisen since the order was issued or that were unknown to the court at that time, that a change has occurred in the circumstances of the child or the person who was granted legal custody, and that
modification or termination of the order is necessary to serve the best interest of the child.
(Emphasis added.)
{¶17} Although
“Visitation” and “custody” are related but distinct legal concepts. “Custody” resides in the party or parties who have the right to ultimate legal and physical contrоl of a child. “Visitation” resides in a noncustodial party and encompasses that party‘s right to visit the child. * * * Although a party exercising visitation rights might gain temporary physical control over the child for that purpose, such control does not constitute “custody” because the legal authority to make fundamental decisions about the child‘s welfare remains with the custodial party and because the child eventually must be returned to the more permanent setting provided by that party.
Braatz v. Braatz, 85 Ohio St.3d 40, 44 (1999).
{¶18} By definition, following the adjudication of these children as neglected and dependеnt, “legal custody” vested in Custodians the right to have physical care and control of the these children and to determine where and with whom they should live, and the right and duty to protect, train, and discipline the them and provide them with food, shelter, education, and medical care.
{¶19} The trial court‘s modification of Mother‘s parenting time did not affect its prior award of legal custody to Custodians. Consequently, the trial court was not required to find the threshold change of circumstances set forth in
{¶20} Instead, the trial court was required to focus solely on the best interest of the children when modifying Mother‘s parenting time. Id. The trial court looked at the best interest factors set forth in
If a divorce, dissolution, legal separation, or annulment proceeding involves a child and if the court has not issued a shared parenting decree, the court * * * shall make a just and reasonable order or decree permitting each parent who is not the residential parent to have parenting timе with the child at the time and under the conditions that the court directs, unless the court determines that it would not be in the best interest of the child to permit that parent to have parenting time with the child[.]
(Emphasis added.)
{¶21}
{¶22} The language of
{¶23} Although
{¶24} Finally, Custodians argue that the trial court had no аuthority to award Mother a standard parenting time order because she did not explicitly request a standard order. They cite no authority to support their argument that a trial court‘s determination of parenting is confined to what the parent requests.
{¶25} Further, “[w]henever possible, the order * * * shall ensure the opportunity for [the] parent[] to have frequent and continuing contact with the child[.]”
III.
{¶26} Custodians’ assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER
FOR THE COURT
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellants.
S. J., pro se, Appellee.
GINA D‘AURELIO, Guardian ad Litem.