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Evans v. Evans

Court of Appeals of Ohio, Second District

September 27, 2013

MARTIN D. EVANS Plaintiff-Appellee
v.
SONYA S. EVANS, et al. Pleas Defendant-Appellant

Civil appeal from Common Court, Domestic Relations T.C. NO. 00DR238

MARTIN D. EVANS, Plaintiff-Appellee

STEVEN R. FANSLER, Atty. Reg. No. 0000644, Attorney for Appellees James and Litha Parker

JAY M. LOPEZ, Atty. Reg. No. 0080819, Attorney for Defendant-Appellant

OPINION

DONOVAN, J.

(¶ 1} This matter is before the Court on the November 26, 2012 Notice of Appeal of Sonya S. Evans. Sonya appeals from the October 26, 2012 Decision of the Champaign County Common Pleas Court, Domestic Relations - Juvenile - Probate Division, which designated James and Litha Parker as the legal custodians and residential parents of Sonya's minor child, K.E., who was born June 4, 2000. The Parkers are K.E.'s maternal grandparents. K.E. also has two brothers, B. E., who was born on August 1, 1993, and G.P., who was 27 at the time the Parkers and K.E's father, Martin Evans, filed their third-party complaint. Martin and Sonya were divorced in 2001.

(¶ 2} Martin and the Parkers filed their complaint for custody of K.E. on May 17, 2011. They alleged that "[b]ecause of recent acts of discipline and/or violence, [the Parkers] have temporary de facto custody of both children and have incorporated them into their household since March 25, 2011." They further alleged that Martin "is not in a position presently to provide custodial care" for K.E. and B.E. Also on May 17, 2011, Martin and the Parkers filed Third-Party Plaintiffs' ex parte Motion for Temporary Custody. The Parkers' attached affidavit provides that they "have witnessed the consequences of our daughter, Sonya Evans, physically, verbally and mentally abusing" B.E. and K.E. According to the Parkers, they "have seen a bite mark on [B.E.'s] hand which came from his mother biting him." They further asserted that Sonya and Dan Weaver "have a relationship which appears dysfunctional to us, and in mid-February Sonya was charged with a domestic violence charge directed against Dan Weaver which happened in the home that they rent from us." The Parkers asserted that they "have served a three-day notice of eviction" on Dan. Finally, the Parkers asserted that G.P. "began residing with [them] at age sixteen while he was still a high school student and continues to reside with them today at age 27. His reasons for moving in with the Plaintiffs were similar reasons to the complained-of actions in this case." Also attached to the motion is Martin's affidavit, which provides that he does not believe that his children are safe "when they are with their mother, especially when she is involved with Dan Weaver."

(¶ 3} On May 20, 2011, the trial court designated the Parkers temporary legal custodians and residential parents of K.E. and B.E. The record reflects that B.E. turned 18 years of age on August 1, 2011. The trial court issued a judgment entry that in part granted parenting time to both Martin and to Sonya.

(¶ 4} On April 11, 2012, an evidentiary hearing was held on the motion for custody. Brandin Marlow, K.E.'s Guardian ad Litem, testified that she believes that K.E. "needs to be involved in counseling, both individual counseling and then family counseling with the focus being on the relationship between [K.E.] and her mother." She stated that when she initially visited Sonya's residence, it "was in very poor condition as far as cleanliness is concerned. Additionally, it did not have adequate sleeping space * * * at least for [K.E.]." Brandin stated that at the time of her visit, Sonya "had a room that would be set aside for [K.E.], but at that time it did not contain a bed and was full of boxes and other assorted things not related to sleeping arrangements." Brandin stated that her initial visit was scheduled, and that Sonya had been in the home for "a few months." Brandin stated that K.E. slept on an air mattress in the laundry room.

(¶ 5} Brandin testified that Sonya's boyfriend, Dan Weaver, was present twice when she visited Sonya's home. Brandin acknowledged the recommendation in her report that K.E. spend one-on-one time with Sonya in the absence of Dan during Sonya's parenting time, and she stated that Sonya "did not appear to want to or see a need to have it separated from Mr. Weaver." Brandin stated, based upon her conversations with Sonya, "it was my perception that she believed any issues with the relationship between [K.E.] and Dan were [K.E.'s] fault, [K.E.'s] problem, and something [K.E.] would have to deal with * * * ." Brandin indicated that Sonya prioritized her relationship with Dan over her relationship with K.E. She indicated that, in terms of discipline, Sonya employs physical punishment and also withholds K.E. from the Parkers. She stated that Sonya is "quite resistant to having K.E. in counseling." Brandin stated that Sonya and the Parkers have a strained relationship. She recommended that the Parkers have legal custody of K.E. to serve the child's best interest.

(¶ 6} On cross-examination, Brandin identified pictures of Sonya's home that reflected a bedroom with sufficient space and a bed for K.E. She further identified satisfactory report cards for K.E.'s fifth and sixth grade years. Brandin indicated that Sonya does not have a criminal record in relation to K.E., and that Children's Services has not filed a complaint of abuse, neglect or dependency against Sonya in relation to K.E. Brandin further acknowledged that K.E. participated in extra-curricular activities while in Sonya's care. Brandin stated that K.E. loves Sonya, and that it would be good for K.E. to spend time with her mother. She stated that Sonya and Dan have been in a relationship for several years, and that they have vacationed with K.E. and B.E. Marlow acknowledged that "there have been times" when the Parkers have made it difficult for Sonya to spend time with K.E.

(¶ 7} B.E. testified that Dan joined Sonya's household while he resided there, and that B.E. left Sonya's home a year ago. He stated that the condition of the home was "terrible, " and that he was "embarrassed." He stated that while he lived with Sonya, the family did not have regular meals together, but that he and K.E. ate in their rooms. B.E. stated that he feared Dan, and that he recognized that K.E. did as well. B.E. stated that Dan "always" called him "stupid, " and would "tell me that I'm worthless and then he said that he could see me in jail. And then he started calling [K.E.] these names. He was emotionally abusive (unintelligible) and he physically abused her once." B.E. stated that Dan "picked [K.E.] up by her arms and threw her." B.E. stated that he did not receive positive reinforcement from Dan. B.E. testified that Sonya was present when Dan mistreated him and K.E., that she allowed it to happen, and that she did nothing to prevent the harm Dan caused. B.E. stated that K.E should reside with the Parkers because in their home she "eats better. She does better in school. She's got a clean environment. She seems really happy at my grandparents' house." B.E. stated that he resided with the Parkers for a few months, and that in that home the family has regular meals together, while at Sonya's home he sometimes went without meals. He stated that the Parkers can be counted upon to meet K.E.'s needs.

(¶ 8} On cross-examination by counsel for Sonya, B.E. stated that he reported Dan's emotional abuse to his high school guidance counselor, and that following an investigation in early 2011, he and K.E. were not removed from Sonya's home. On cross-examination by Martin, B.E. indicated that Sonya had his cell "phone shut off when he spoke to his father.

(¶ 9} Martin testified that there was substantial tension between him and the Parkers after he and Sonya were divorced, until he "contacted them one day and talked to Mrs. Parker and said that we have to put our differences aside of what he have for each other and worry about the kids." When asked who would provide a better life for K.E., Martin responded, "My opinion I feel that the Parkers would * * *." Martin testified that a "year ago in March when I got [K.E.] a temporary restraining order, [K.E.] weighed 40 pounds. She was undernourished. She wasn't eating right. * * * The doctor said she was undernourished. And basically there was times that [K.E.] and [B.E.] called me, and Sonya would not be home." Martin stated that Sonya did not facilitate his parenting time when K.E. resided with her. Martin stated that when he picked K.E. up at Sonya's home, "nine times out of ten * * * she would have filthy clothes on."

(¶ 10} On cross-examination, Martin testified, "When I got them calls from [B.E.] or [K.E.] stating that the mom was screaming and beating up on them again and they was having problems in the house, I and [the Parkers] decided that we was going to get the problems straightened out because my opinion is the kids shouldn't have been treated the way they was treated." Martin stated that he has observed "Sonya smack [K.E.] across the face in front of the Urbana Police Department one night when I dropped her off I've seen her grab the kids, and I've seen her hit [B.E.] several times." On redirect, Martin described an incident in which the Urbana Police Department and Children's Services responded to Sonya's home, and B.E. was taken to the emergency room after a physical altercation with Sonya. On re-cross-examination, Martin stated that Children's Services found the allegations of abuse unsubstantiated, that Sonya was not charged, and that B.E. "got charges; unruly juvenile."

(¶ 11} Litha Parker testified that Sonya's son G.P. was born in 1983, and that Sonya and he lived in her home after his birth. She testified that Sonya resided with her and her husband off and on for periods of up to three or four months, and that G.P. came to live with Litha full time when he turned 16 "until he went into the service." Litha stated that Sonya rented a house from her and her husband in 2003, and that they evicted her in June of 2011. During that time, Litha stated that Sonya only paid one full year of rent. Regarding the condition of the home, Litha stated, "It's never been clean. * * * * ." Regarding her desire for custody of K.E., Litha stated, "I wanted some stability for [K.E.] She is my main concern. I don't want to take her away from her mother. I know she loves her. But she can't live in those conditions and that environment." Litha stated that Sonya never asked permission for Dan to live in the home with her, and that he never paid rent. Litha stated that she changed the locks on the house and photographed the conditions inside. She identified multiple photos taken by her of the home's filthy and cluttered interior.

(¶ 12} Litha stated that she, her husband and K.E. reside in her home. Litha stated that she does not work outside the home, that she can care for K.E., that she has an extended family and friends with whom K.E. regularly has opportunities to interact, and that K.E. often invites friends to her home to play and spend the night. Litha stated that she and her husband own a motor home, and that K.E. enjoys camping with them. She stated that K.E. and B.E. talk on the phone almost every night. Litha testified that K.E. gets up at 6:30 and has breakfast each day before school, and that she regularly does her homework after having a snack when she gets home. She stated that K.E. "had a couple girlfriends come over and they've worked on the [homework] projects at home." She stated that K.E. goes to bed at 9:30 p.m. According to Litha, "[r]eading is about the only thing she has problems with. And our neighbor lady who is a school teacher that's not working this year said she would * * * work with her one-on-one to see what her problem is." Litha stated that her three-bedroom home is on three acres, and that K.E. has her own room with dressers and a closet. She stated that she has adequate food at home and that K.E. has "tried different foods that she's never had before and found out she liked." Litha stated that K.E. has adequate clothing at her home. Litha stated that K.E. goes bowling every Saturday.

(¶ 13} Litha stated that she facilitates Sonya's parenting time on Tuesdays and Sundays, and that Sonya did not exercise her parenting time on Tuesdays at all in March, 2012, and that she only exercised her Sunday parenting time in that month on the last Sunday thereof According to Litha, a "couple times she said she was working, and we went by and the car was there. And then we passed her later in the day. We had been to the grocery and headed south, and they were headed north in the truck so I know she wasn't working." Litha stated that if given custody of K.E., she will facilitate both Sonya's and Martin's parenting time.

(¶ 14} Litha stated that neither she nor her husband have any health limitations, and that they are able to provide for K.E. financially. Litha stated that they do not physically discipline K.E., but that they "look at her and say, now you know you are not allowed to be doing that. Usually that's all it takes."

(¶ 15} Litha stated that K.E. has gained ten pounds in the year that she has been in her home. She stated that K.E. has repeatedly asked that certain items that belong to her that are in Sonya's home be returned to her, and that the items have not been returned. Litha stated that her family eats meals together every night between 5:00 and 5:30 p.m. Litha stated that at one time the police were called to facilitate Sonya's parenting time because K.E. "did not want to go with her mother." When asked on cross-examination, "is the main problem you have with Sonya parenting K.E., Mr. Weaver?" Litha responded, "[m]ost of it. A lot of it, yes"

(¶ 16} Sonya testified that Dan is her fiancé, and that they reside in a two-bedroom home. She stated that the lease is in Dan's name, and that the rent and utilities are current. Sonya identified photographs of the residence depicting a mostly clean and uncluttered interior. Sonya stated that K.E. has her own room with a bed and a place to do homework. She stated that K.E. has few clothes at her home because "she's outgrown most of her clothes since the time they took her, " but that she is able to buy clothes for her in the event K.E. is returned to her. She stated that she has adequate food in her home. She stated that she and Dan are employed. She testified that she has observed K.E. and Dan interact, and that she and Dan took K.E. to a steam engine show in Xenia, spending the weekend at the fairgrounds in a camper. She stated that she and Dan also took K.E. on a camping trip to Indiana and Kentucky, and that she did not observe any problems between Dan and K.E. She stated that when K.E. resided with her and Dan, K.E. and Dan interacted everyday, and that she never observed any problems between them. Sonya stated that Dan did not discipline K.E., but that she has "smacked her for talking back, " taken things away from her, and denied her permission to go places. She admitted that she withheld K.E. from the Parkers. In the event K.E. is returned to her, Sonya stated that she will only discipline K.E. by taking things away from her because "that seemed to get her attention more."

(¶ 17} Sonya stated that when K.E. resided with her, she "would go to her school programs, go to her conferences, talk to her teachers, find out what else needed to be done to help her progress." She stated that K.E. participated in cheerleading, bowling and softball. The following exchange occurred:

Q. And what years did she do those activities?
A. She did them since she was, I'm going to say about 6. So two years ago.
Q. * * * And why did they discontinue?
A. One year I signed her up for cheerleading, and then my parents decided to go to Texas, and she wanted to go after I paid the money out for her cheerleading outfit.
***
A. And I could not get that undone.
Q. So you enrolled her in the activity is what you are saying?
A. Yes, I did.
Q. * * * Did you enroll her in other activities?
A. Not after that, no.

Sonya stated that if K.E. were returned to her care, she would "try my best" to enroll her in extracurricular activities, and that "it depends on how much things cost."

(¶ 18} Sonya stated that her parents evicted Dan from the home she rented from them. She acknowledged that Litha's photos of the home accurately reflected its condition when they were taken, but she denied that it was always so dirty. When asked why it was so dirty in the photos, she stated, "Because I was trying to go through things. I was working extra hours, taking the kids to their extracurricular activities. I would get their rooms cleaned, and they would not help keep them clean." She stated that she will keep her home clean in the future.

(¶ 19} Sonya acknowledged that Children's Services was involved with her family after "[B.E.] and I got into a fight, which he started hitting me, I hit him back. And then he went next door, called his father, called the cops saying that I was beating him." She stated that B.E. was criminally charged but she was not. She stated that she does not have any criminal convictions related to K.E., nor any drug or alcohol related offenses.

(¶ 20} Sonya stated that her normal work hours are 6:00 am to 2:30 p.m., "but I have been known to go in at 4:00 and stay until 5:30 or 6:00 at night." She stated that she would take K.E. to a babysitter for morning care. She stated that the babysitter's name is Jennifer, but "I can't remember her last name right offhand." Sonya stated that she previously took K.E. to another babysitter when K.E. resided with her, and that "I'd drop her ...


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