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Hynd v. Roesch

Court of Appeals of Ohio, Eleventh District, Ashtabula

September 5, 2017

CARRIE M. HYND, Plaintiff-Appellant,
v.
LEVI M. ROESCH, Defendant-Appellee.

         Appeal from the Ashtabula County Court of Common Pleas, Domestic Relations Division, Case No. 2013 DR 00055.

          Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., (For Plaintiff-Appellant).

          William P. Bobulsky, William P. Bobulsky Co., L.P.A., (For Defendant-Appellee).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Carrie M. Hynd ("mother"), appeals from the judgment of the Ashtabula County Court of Common Pleas, Domestic Relations Division, denying her motion to modify parenting time rights with appellee, Levi M. Roesch ("father), and granting father's motion to modify parental rights and responsibilities. The trial court's judgment is affirmed in part, reversed in part, and remanded.

          {¶2} The parties were married on August 2, 2012 and one child was born as issue of their marriage, J.R. On September 24, 2014, the parties were divorced. Mother was designated the residential parent and legal custodian of J.R. Father was awarded parenting time in accordance with the standard companionship order of the trial court.

         {¶3} On December 2, 2014, mother filed an ex parte petition for domestic violence civil protection order; mother additionally filed an emergency motion to modify and suspend parenting time. The ex parte petition was premised upon mother's allegations that father abused J.R. due to bruising observed on the child's buttocks after he returned from visitation with father. By consent entry, father agreed to have parenting time with J.R. at "Rooms to Grow, " a supervisory setting.

         {¶4} Father subsequently filed, inter alia, a motion to cancel the ex parte civil protection order and a memorandum in response to mother's emergency motion to modify and suspend parenting time. These matters were heard on April 29, 2015. At the hearing, testimony established that J.R. had received a spanking during the visitation for disciplinary reasons. On June 12, 2015, the court denied mother's emergency motion to modify and granted father's motion to cancel the ex parte order. During the period between the mother's filings and the June judgment, father's parenting time was severely restricted.

         {¶5} On October 2, 2015, Mother filed a second petition for domestic violence civil protection order based upon an arm injury J.R. sustained during a visit with father. Mother noticed the child was favoring his right arm. When questioned about the injury, father stated, prior to dropping J.R. off with mother, he took the boy to a park where the child fell after exiting a merry-go-round. He stated the child cried for approximately 30 seconds, but then appeared fine. Dubious of father's explanation, mother took J.R. to the Cleveland Clinic where she stated her concern that the boy was being abused. She informed medical staff that the child had a history of bruises on his back and buttocks which led to a previous protection order being granted. The medical history did not disclose, however, that the order had been dismissed because of insufficient evidence. Medical personnel was concerned and admitted J.R. to evaluate the child to determine whether the injury was a result of abuse. After being x-rayed, physicians concluded the boy suffered from an elbow joint effusion, i.e., swelling within the joint. Physicians ultimately concluded the boy suffered no "non-accidental trauma" and there was no evidence of a fracture. Notwithstanding this finding, mother continued to maintain, even during the hearing in the underlying matter, that J.R.'s arm was broken during the incident.

         {¶6} After a hearing on October 13, 2015, the magistrate determined mother failed to establish father committed any act that would have resulted in the child being an "abused child." The magistrate found the playground injury was accidental and the child displayed no behavior that would suggest he required medical treatment. The magistrate accordingly recommended mother's petition be denied and the ex parte order be vacated. Mother filed no objections to the magistrate's decision. The trial court subsequently adopted the decision. That judgment was appealed and in Hynd v. Roesche, 11th Dist. Ashtabula No. 2015-A-0063, 2016-Ohio-7143, this court affirmed the trial court's judgment.

          {¶7} On November 6, 2015, mother filed the underlying motion to modify parenting time rights and, on July 26 and 27, 2016, the court held a hearing on that motion and father's February 9, 2015 motion to modify parental rights and responsibilities. The trial court heard testimony primarily from mother and father and considered the forensic psychological report prepared and submitted by Farshid Afsarifard, Ph.D.

         {¶8} In addition to the evidence already discussed, the court also heard testimony that, prior to the filing of the second petition for civil protection order, mother began noticing J.R. was losing weight during his visits with father. In June 2015, she began a regiment of weighing the child before the visits and after the visits. She additionally began a practice of taking the boy to the pediatrician's office after visits with father, not to consult the physician, but for office personnel to weigh the child. This process continued into August 2015 and throughout that time, the boy's weight did not change dramatically; J.R. dropped between a pound and a pound and six ounces at most, but on at least one occasion the boy returned to mother heavier than before. Moreover, the evidence indicated that, regardless of the minimal weight loss mother noticed, J.R. was in a higher percentile for weight throughout this period; at his lowest, J.R. was in the 79th percentile and at his highest, the 92nd percentile.

         {¶9} Furthermore, mother had changed J.R.'s medical provider at least three times after the parties' divorce and, according to father, mother failed to notify him each time she changed pediatricians. Mother also took the child to walk-in clinics where no appointments were necessary. Father testified these decisions made it difficult for him to obtain or even locate the child's medical records.

          {¶10} Dr. Afsarifard's report detailed his assessment of the parties' relative personalities and their impressions of the other's parenting styles as well as the issues they had with each other. He gave the parties psychological evaluations and observed them interacting with J.R. Ultimately, he determined each parent interacted well with the child and the child was attached to them both. He expressed dismay, however, at the parties' obvious inability to communicate effectively and similar inability to make compromises for the well being and best interest of their son. He underscored the importance of the parties providing the child with consistency and mutual support. Given the parties' ...


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