Thompson v. DowningThompson v. Downing
For Plaintiffs-Appellants: DAN GUINN, 118 West High Avenue, New Philadelphia, OH 44663
For Defendant-Appellee: MARK EDWARD STONE, 3836 Dayton-Xenia Road, Beavercreek, OH 45432
Farmer, J.
{¶1} Appellant, Emily Thompson, and appellee, Darren Downing, have a child together, A.T., born April 29, 2008. The parties were never married. Since 2011, appellee has had temporary custody of the child.
{¶2} On May 19, 2011, appellee filed a motion for change of custody. On June 14, 2011, the child‘s maternal grandmother, appellant, Gayle Thompson, filed a motion for custody. Hearings before a magistrate and the trial court were held on July 22 and 26, 2011 and September 1, 2011. By judgment entry filed September 2, 2011, the trial court granted appellee legal custody of the child.
{¶3} Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶4} “APPELLANTS WERE DENIED DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL WHERE THE COURT EXHIBITED BIAS TOWARDS THEM THROUGHOUT THE PROCEEDINGS.”
II
{¶5} “THE COURT ABUSED ITS DISCRETION IN AWARDING THE APPELLEE CUSTODY OF THE MINOR CHILD.”
I
{¶6} Appellants claim they were denied a fair hearing on the issue of legal custody because the magistrate at the July 22, 2011 exhibited bias and shaped the case in favor of appellee. We disagree.
{¶7} First, we note a request to the Chief Justice of the Supreme Court of Ohio to recuse the trial court was never made. See,
{¶8} The thrust of appellants’ claims of bias during the July 22, 2011 hearing centered around the mode of questioning. Appellants claim the magistrate assisted appellee by asking additional questions and shaping the case in his favor and did not assist them.
{¶9} Upon review of the questioning in the transcript as argued by appellants, we find no showing of bias. In fact, one exchange between appellant Gayle Thompson and the magistrate illustrates an attempt by the magistrate to explain the rules of evidence and to assist her in her testimony. July 22, 2011 T. at 39-40.
{¶10} During appellant Gayle Thompson‘s testimony, the magistrate expressed concern over “scream therapy” Mr. Lanzer used with the child. Id. at 55-56. However,
{¶11} After appellant Gayle Thompson‘s testimony about “scream therapy” and its value, the magistrate questioned Mr. Lanzer about the therapy he performs and his qualifications. Id. at 90-92. As a result of the testimony regarding “scream therapy,” the magistrate ordered supervised visitation and Mr. Lanzer proceeded to interrupt and argue with the magistrate. Id. at 92-93.
{¶12} Upon review, we fail to find that any of the dialogue between the magistrate and appellant Gayle Thompson and her witnesses had any substantial outcome on the trial court‘s final order.
{¶13} Appellants also argue the trial court was biased in setting down ground rules at the beginning of the September 1, 2011 hearing at 3:
COURT: Okay, just, Ma‘am, here‘s, we‘re going to lay down some ground rules, okay? Now you and I, um, as we go on, you and I aren‘t going to argue about anything, okay? You‘re not going to interrupt me when I‘m speaking, you‘re going to let me finish. I‘m going to let you present whatever evidence you want to present today, um, but you need to understand that when I indicate a decision about something you‘re going to have to accept that. Your recourse for any legal decision you do not like lies in your ability to file an appeal with an appellate court, and you‘re certainly free to do that, and I certainly would encourage you to take advantage, uh, of that appellate process on your behalf. Now listen to
what I‘m saying, okay? That‘s what you have to do to get a transcript. If you do no longer want the transcript that‘s fine too, but you‘re going to have to indicate that in writing, alright? Do you understand what I‘m saying about the transcript?
{¶14} Upon review, we find the trial court‘s statements are consistent with
{¶15} Assignment of Error I is denied.
II
{¶16} Appellants claim the trial court erred in awarding appellee legal custody of the child. We disagree.
{¶17} During the July 22, 2011 hearing at 6, appellant Emily Thompson stipulated to a change of circumstances and the hearing proceeded to best interests of the child.
{¶18} The trial court had before it two motions for change of custody, one filed by the child‘s natural father, appellee herein, and the other filed by the child‘s maternal grandmother, appellant Gayle Thompson. In In re Perales, 52 Ohio St.2d 89 (1977), syllabus, the Supreme Court of Ohio held the following:
In an
R.C. 2151.23(A)(2) child custody proceeding between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child.
{¶19} The choice of taking custody away from a natural parent in favor of a non-parent, albeit a grandmother, has a very high bar. The issue of unsuitability of the natural parent is an extreme burden.
{¶20} In this case, the trial court was faced with two different and divergent stories by appellant Gayle Thompson and appellee. The claims of abuse of the child at the hands of appellee were investigated by Tommy Cannon of Tuscarawas County Job and Family Services and were found to be unsubstantiated. September 1, 2011 T. at 25-27. There were no concerns about appellee being the custodian of the child. Id. at 27.
{¶21} Undoubtedly, appellant Gayle Thompson is a caring and loving grandmother who in her own mind has the best interests of the child at heart. She explained at length the loving and caring relationship she has with the child, who she calls her “heartbeat.” July 22, 2011 T. at 54. However, appellee also presented testimony via his brother and father that he has a good and loving relationship with his
{¶22} Each party presented arguments that the child was aggressive after being with the other. However, Mr. Lanzer, appellant Gayle Thompson‘s live-in boyfriend, claims he is a practitioner of holistic medicine and is a “Nemenhah Medicine Man by adoption.” Id. at 57; Petitions filed August 17, 2011. He uses “scream therapy” to adjust any problem areas perceived by him. July 22, 2011 T. at 90-93.
{¶23} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶24} The guardian ad litem filed a written report on September 1, 2012. The report is minimal as to appellant Gayle Thompson as she refused to cooperate once she was informed she could not record the conversation. The guardian noted appellee‘s parenting abilities would be limited given that he was in the National Guard and was scheduled to be deployed overseas for at least one year. The guardian also noted appellee appears to be a very stable person although his lifestyle would suggest otherwise (parenting three children with three different mothers). The guardian recommended the paternal grandparents “are the best custodians at this time and this can and has been accomplished by the Power of Attorney.”
{¶25} Upon review, we find the trial court‘s decision as to the best interests of the child is substantiated by the record, and the failure to continue custody with appellee would have a detrimental effect on the child.
{¶26} Assignment of Error II is denied.
{¶27} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer
s/ W. Scott Gwin
s/ William B. Hoffman
JUDGES
SGF/sg 305
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division is affirmed. Costs to appellants.
s/ Sheila G. Farmer
s/ W. Scott Gwin
s/ William B. Hoffman
JUDGES