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In re C.D.M.

Court of Appeals of Ohio, Fourth District

August 28, 2013

IN THE MATTER OF: C.D.M.

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Jason M. Donnell, Pickerington, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Marie Hoover, Judge

(¶ 1} Jeffrey Malone, appellant and father of C.D.M., appeals from the decision of the Hocking County Common Pleas Court, Juvenile Division, which awarded custody of C.D.M. to Jennifer Malone, appellee and mother of C.D.M. This case arises from appellee's motion to modify a previous custody order that had granted legal custody to appellant. Appellant argues that the trial court committed reversible error when it relied upon "unfounded, unsupported, and inaccurate factual findings" in determining that a change in circumstance had occurred warranting modification of the previous custody decree. Appellant further contends that the trial court erred by relying upon the contents of the guardian ad litem's report as substantive evidence in its best interest determination, where the guardian ad litem did not testify at the modification hearing and where the report was not admitted as an exhibit at the modification hearing. Because a substantial amount of competent and credible evidence supports the trial court's finding that there has been a significant change in circumstances since the original custody decree and that a change in custody would be in the best interest of C.D.M., we hold that the trial court did not abuse its discretion in modifying custody. Moreover, because the trial court afforded the appellant the opportunity to cross-examine the guardian ad litem concerning her report and recommendation, it was proper for the trial court to consider the report in making its best interests determination.

(¶ 2} Accordingly, we affirm the judgment of the trial court.

I

FACTS

(¶ 3} Appellant and appellee are the natural parents of C.D.M. In March 2004, the Ross County Common Pleas Court, Juvenile Division, entered an order awarding legal custody of C.D.M. to appellant. On October 5, 2010, appellee filed a pro se motion for custody in Hocking County, alleging that appellant was in jail on multiple charges of gross sexual imposition against a minor child, not C.D.M. Appellant was released from jail on October 8, 2010, and was never convicted of any of the charges. The criminal case was eventually dismissed.

(¶ 4} On October 27, 2010, the trial court conducted a preliminary hearing on appellee's motion. Both appellant and appellee appeared pro se. Two days later, the trial court ordered that appellee have temporary custody of C.D.M., that appellant have supervised visitation rights, and that a guardian ad litem be appointed to represent the interests of C.D.M.

(¶ 5} A Report of the Guardian Ad Litem was filed with the trial court in December 2010. The guardian ad litem recommended that appellee be named C.D.M.'s residential parent and legal custodian. Thereafter, the proceedings were stayed pending outcome of appellant's criminal case.

(¶ 6} Then on November 7, 2011, the guardian ad litem filed an ex-parte Motion of Guardian Ad Litem to Temporarily Suspend Visitation. The motion alleged that the supervised visitation between C.D.M. and appellant was no longer in the best interest of C.D.M. because she was, among other allegations, "being bombarded by negative information [regarding appellee] while seeing her father." On that same day the trial court granted the motion and barred appellant from contacting or visiting C.D.M.

(¶ 7} In April 2012, attorney Timothy P. Gleeson entered his appearance on behalf of appellant. Shortly thereafter, appellant filed a Motion to Establish Parental Companionship with a request for hearing.

(¶ 8} On June 12, 2012, the trial court conducted an in camera interview of C.D.M. As a result of the interview, the trial court granted appellant three visits with C.D.M.

(¶ 9} The final modification hearing was held on July 18, 2012. Appellee appeared pro se and testified as a witness. Appellee also called her sister to testify as a witness. Appellant was present along with counsel and testified. The guardian ad litem was also present and participated in the hearing. The guardian ad litem did not testify; but at the conclusion of the hearing the trial court asked the parties if they wished to question the guardian ad litem concerning her report. Neither party chose to question the guardian ad litem.

(¶ 10} On December 18, 2012, the trial court issued its decision granting legal custody of C.D.M. to appellee. The entry stated in pertinent part:

The Court conducted a final hearing on July 18, 2012, and finds that there has been a substantial change of circumstances since March 9, 2004, when the Ross County Juvenile Court granted custody of the child to Father. Specifically, Father was charged with gross sexual imposition, was incarcerated and it was necessary for the Court to place the child with the Mother pending the disposition and ultimate dismissal of gross sexual imposition charges against the Father. During the intervening two year period the child (now 13 years old, DOB 11/04/1998) has noticeably improved her academic school performance and has expressed a desire to live with her mother.
The guardian ad litem recommended that Mother's motion be granted and identified numerous actions by the Father that were contrary to the child's best interests: Father attempted to manipulate the child's testimony and to make negative comments to the child about the mother.
Wherefore the Court finds that it is in the best interests of the child to grant Mother's motion for custody.

Appellant timely filed his notice of appeal.

II

ASSIGNMENTS ...


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