Opinion
20CA9
12-10-2021
DANNY ROBINSON, Plaintiff-Appellee, v. HELEN ROBINSON NKA RICE, Defendant-Appellant.
Robert W. Bright, Middleport, Ohio, for appellant. Danny Robinson, pro se appellee.
CIVIL CASE FROM COMMON PLEAS COURT, GENERAL DIVISION
Robert W. Bright, Middleport, Ohio, for appellant.
Different counsel represented appellant during the trial court proceedings.
Danny Robinson, pro se appellee.
Appellee did not enter an appearance in this appeal.
DECISION AND JUDGMENT ENTRY
PETER B. ABELE, JUDGE
{¶1} This is an appeal from a Meigs County Common Pleas Court judgment that denied a motion for reallocation of parental rights and responsibilities filed by Helen Robinson, movant below and appellant herein.
Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN EQUATING APPELLANT'S USE OF MEDICAL MARIJUANA UNDER A PRESCRIPTION FROM A LICENSED PHYSICIAN WITH APPELLEE'S ADMITTED ILLEGAL POSSESSION AND USE OF A LARGE AMOUNT OF MARIJUANA WHICH WAS CONFISCATED BY1
POLICE AND IN MAKING APPELLANT'S USE OF MEDICAL MARIJUANA A PRIMARY BASIS FOR THE TRIAL COURT'S DECISION."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DISREGARDING THE RECOMMENDATIONS OF THE GUARDIAN AD LITEM AND IN CHARACTERIZING THE MAY 2019 INCIDENT IN CONTRADICTORY WAYS."
{¶2} The parties, married in October 2008, have two children. On February 22, 2016, Danny Robinson, appellee herein, filed a complaint for divorce. The trial court appointed a guardian ad litem who conducted an investigation and issued a report that revealed (1) "an abundance of unsubstantiated allegations made by both parties, [and] no follow-ups, charges or investigations by authorities," and (2) mother had more favorable living conditions than father. The guardian ad litem thus recommended the children primarily reside with appellant, and appellee receive standard visitation or a written shared-parenting agreement.
{¶3} At the final hearing, the parties and their counsel informed the trial court they had reached an agreement. On December 19, 2016, the trial court issued a divorce decree that (1) designated appellant the minor children's residential parent and legal custodian for school purposes only, (2) adopted the parties' Shared Parenting Plan, and (3) ordered no child support from either party.
{¶4} Approximately two and one-half years later, on May 9, 2019, appellant obtained a civil protection order (CPO) against appellee on the minor children's behalf due to appellee's alleged physical violence against the children. On May 22, 2019, appellant filed a request for emergency orders and filed a motion to reallocate parental rights and responsibilities. In particular, appellant requested that she be named sole custodian and residential parent and appellee have supervised companionship time with no overnights. Also, on June 18, 2019 the 2 trial court ordered both parties submit to a hair follicle test that, subsequently, yielded negative results.
{¶5} On July 16, 2019, after conducting a hearing on the motion to reallocate parental rights and responsibilities and the request for a CPO, the trial court, inter alia, issued temporary orders that required appellee's maternal grandmother to supervise visitation at appellee's residence and for the maternal grandmother to accompany appellee for the exchange of the children.
{¶6} On August 13, 2019, the trial court's guardian ad litem submitted a report that states that the parents have had "two highly contested domestic proceedings," and, initially, shared parenting "seemed to work relatively well," but since the protection order the girls have only had supervised day-time visitation with appellee. The guardian ad litem further noted:
The parties have a very intertwined family structure as Mom's Father, aka the Maternal Grandfather, married the Dad's Mother, aka the Paternal Grandmother. The Dad lives up the hill from the Maternal Grandfather and the Paternal Grandmother.
* * *
The Maternal grandfather is adamantly on Dad's side, currently supervises and alleged that Mom is mean to the girls. When I asked him what he meant by that, he hesitated some and then said she smacks them and cusses at them but couldn't think of any specific instances of such. When I asked him about Danny's multiple containers of marijuana, there was an odd twenty seconds of silence before he stated that he knows that Danny smokes marijuana but never smokes in front of the girls. Mom's oldest daughter * * * told me about Danny having an anger issue, was verbally abusive to her and her brother (Mom's children by an earlier marriage), that Danny beat up her brother and causing multiple large bruises for 3 weeks when he was an adolescent for her brother saying something in appropriate at school (which caused Mom to give up custody of her and her brother to the Father) and that she believes that Danny grows marijuana because out of nowhere large amounts of marijuana would show up in their home.
* * *3
The girls are amazing little people. They are so smart, kind, funny and empathetic animal lovers. * * * The girls love both parents, but they are guarded and anxious at their Dad's house (based upon my observation of the girls at both houses, as well as Danny's admission that they have been more anxious around him the past 2 years). Danny indicated that the girls don't open up to him, have become more secretive [and] untruthful * * * The girls stated while speaking in private at their Dad's that they wanted some weekends with him.
* * *
When the Meigs County Sheriff was called to the Father's house on 5/9/2019, they confiscated marijuana and the girls had allegedly previously taken pictures to their school teachers of different jars of marijuana. All in all, I reviewed three marijuana pictures (a Mason jar about half full of what appears to be marijuana, which I presume is a pretty large amount; a small glass jar with what appears to be marijuana that is labeled "Pineapple"; and a plastic container with at least one plastic bag full of what appears to be marijuana). * * *
However, Dad did not deny that the marijuana that I described from the pictures was his, and went on to state that: he was a collector, hadn't used any in a while, only used to do it discretely after the girls went to bed to help him sleep and that the kids' Mom has a history of smoking a lot more weed. The Father never had an answer for my question as to why he would collect marijuana if he only used it occasionally, and demonstrated an unsettling knowledge as to the different types/strains of marijuana.
The guardian ad litem also pointed out that appellee "admitted that the marijuana was hidden in the living room," near a computer desk, and, because the girls use that desk, the guardian ad litem voiced concerns about access to marijuana in a common area.
{¶7} Both parties also made allegations about the other's alcohol or drug use. One daughter did discuss a time when appellee and his friend looked at "a couple of plants in his friend's trunk." Appellant stated that her daughter told her about it, but:
it was just one such example of numerous times the girls made her aware of things the girls thought were 'strange' or even 'cool' that ultimately ended up being marijuana related. Mom said the kids talked about Dad smoking funny stuff on the porch or in the garage and acted funny afterwards, and brought home marijuana seeds to plant (there were hundreds in a jar and one of the girls thought they were tomato seeds). Danny also does have a hobby and social media posts about outdoors, soil and plant life.4
The guardian ad litem further indicated that appellant "seems to have somewhat of an untreated mental health issue" and has:
a medical marijuana prescription from an authorized dealer, which she indicated she uses to help control her anxiety. Her Medical Marijuana Certificate notes a diagnosis of PTSD and chronic pain. Mom showed me her marijuana prescription, and has used far less than prescribed. She hides her prescription in her room, and uses a vapor device rather than smoke so the girls cannot smell it.
{¶8} The guardian ad litem also noted that the children perform well at school, receive good grades, and have very close friends, but further noted that appellant appeared to be "much more knowledgeable about the details of the girls' studies and educational needs than Dad." The guardian ad litem pointed out, however, that the children stated that both parents help with their homework:
I think both parents are good parents. Both parents have issues to work on, as well as mud to sling at the other. Mom definitely needs to get into a counselor to be able to better cope with all of the issues going on. Both parents need to quit saying things about the other parent and his/her family, and each parent needs to make sure that none of his/her family does either. Ultimately, as the girls get older and are becoming more aware of their Dad's lifestyle I think they are becoming more and more anxious at his home and around him. Their Mom's house is also much more clean and comfortable. Mom definitely provides the girls with a lot more extras like extracurricular items that Dad doesn't provide, which is also probably another reason they prefer to be at Mom's. If either parent is using marijuana, I don't think either parent should be using such amounts that they are noticeably acting funny aka getting high.
My much larger concern is for the girls' safety at their Father's home. If Dad is growing marijuana, that is an extreme safety risk if anyone found out and wanted to break in, hold them up or take the girls as ransom for bulk marijuana. There's also the possibility that negative influences and/or dangerous drug dealers could be coming to the home when the girls were there. As the girls get older, they may become more curious and do more than just take pictures of the marijuana. They have so much potential, an altered reality of any kind is something that could devastate their future.
{¶9} Thus, after the investigation, the guardian ad litem recommended: (1) the parties continue shared parenting, (2) appellant be named residential parent for school purposes only, (3) 5 appellee have standard visitation at the maternal grandfather and paternal grandmother's home, (4) the court issue a standard or partial child support order, (5) appellant see a counselor or psychiatrist to review her medications and symptoms, (6) both parents complete drug and alcohol assessments, (7) appellee complete an anger management assessment, (8) the children have phone contact with appellee, and (9) the children continue at their school because they are doing well.
{¶10} The trial court issued very thoughtful and detailed findings of fact and conclusions of law, that spans approximately 20 single-spaced pages, and references the July, August, October, and February hearings. The court noted the parties' stipulated dismissal of the CPO, and further observed that the children had been exposed to conflicts between the adults and cited the May 9, 2019 incident:
The children were with their father for his parenting time when it was discovered that one of the children had left her phone in the paternal grandmother's home with an audio recorder on in order to intercept conversations while that child was not present or a part of the conversation. Once the child's recording device was discovered, the children and their father (and his extended family) had an altercation about the child's actions. The father directed the child to, in the presence of the father, delete the communications that was intercepted and took the phone away from the child as discipline. During the altercation, the father physically touched, held, lifted, or man-handled the child.
For a portion of the time the children, the father and his family were in the altercation, the mother was on a FaceTime call with the other daughter. * * * As a result of the FaceTime call the mother called the Meigs County Sheriff. * * * Apparently, the Meigs County Sheriffs department investigated the allegations regarding the confrontation or altercation. After the investigation, the children were permitted to remain with their father, without law enforcement or children's services (child protective services) causing the children to be removed or placed into someone else's care. There were also not criminal charges brought as a result of the sheriffs department investigation. Although, marijuana was removed from the father's home6
{¶11} The trial court also noted that the children recovered from the May incident "much more smoothly than did the adults," stating that the incident "has been greatly blown out of proportion by the mother." The court also appropriately chided the parties for talking poorly about each other in front of the children. With regard to marijuana, the court stated:
The mother has a medical marijuana recommendation and uses marijuana or CBD with THC. Even though the father tested negative for all substances he admitted that he occasionally would smoke marijuana when having difficulty sleeping and that he and his ex-wife, the mother in this case, both used marijuana in the past.
The Court finds it interesting that the mother argues how irresponsible the father is for having jars with marijuana in them at his home, yet he tested negative for drugs. All the fuss about the father possessing marijuana was coming from the mother who admittedly uses medical marijuana regularly and that she drives the children frequently right after ingesting medical marijuana.
There was illegally obtained marijuana in the father's house that was confiscated by the police in May of 2019. That marijuana was in a location that the children were able to discover the marijuana. The father has admittedly used marijuana in the past when having difficulty sleeping. The mother admittedly uses the active ingredient of marijuana (THC) through a medical recommendation. The mother admittedly uses it daily and then transports her children after using it.
The mother testified that she and the father used marijuana together, from their first date forward. The mother stated that she purchased marijuana from her ex-husband before they were married.
All the photographs alleged to be marijuana in containers at the father's house were allegedly taken by these small children and then reproduced by their mother in court. The mother, however, did not have anyone from law enforcement or children's services testify as to what they found and what if any investigation or action was taken by either agency as a result of what was discovered. This is because neither the Sheriff s Department nor the Children's Services Agency found anything that would rise to the level of needing an action (charges filed or even a children services investigation). The mother even attempted to introduce photographs of vegetation used for the children's pet rabbits to imply there was additional marijuana.
* * *
The mother smokes cigarettes and, as stated above, regularly uses medicinal marijuana.7
The bottom line is that BOTH parents have smoked marijuana and cigarettes after they had the responsibility of the children. Both parents had smoked marijuana and cigarettes when there [sic] entered into the shared parenting plan.
{¶12} The trial court also observed that, after the divorce, appellant moved to Athens County, and, although she desired to be designated the children's sole residential parent, the parties agreed that exchanging the children more than once per week is not feasible. Moreover, although appellant wanted the children to transfer to Athens County schools, the court found that the parties had earlier agreed that the children should stay at their current school. The court also ordered the parents to direct all communications and information exchanges through a court-ordered communications application.
{¶13} Concerning the guardian ad litem's report, although the trial court noted the guardian ad litem had recommended a weekday schedule with alternating weekends, the court pointed out that "given the limited financial resources of both parties and the distance between their homes, such a schedule is not reasonable in this case." The court also noted that it is not required to follow a guardian ad litem's recommendations, and, "although there was a serious issue and altercation in May 2019, there was not, in fact, a true change of circumstances in regards to the children or either parent (since this is a Shared Parenting Plan) and the Court, therefore, will not reallocate parental rights and responsibilities herein."
{¶14} Consequently, the trial court ordered the parties to continue to operate under their shared parenting plan, but further ordered that appellant be given the right of first refusal to take custody if appellee's work schedule precludes him from taking care of the children. This appeal followed. 8
After the trial court denied appellant's motion to waive the cost of a transcript, appellant filed in this court a motion to waive transcript costs. This court, instead, advised appellant to proceed under App.R. 9(C) and prepare a statement of the evidence or proceedings. However, the rule requires that the statement be submitted to the trial court for approval. If a trial court does not approve the statement, a court of appeals will generally assume that the trial court did not approve the statement. Here, it does not appear that the trial court approved the appellant's statement. Nevertheless, because appellant's statement largely mirrors the trial court's detailed findings of fact, and because appellee did not contest appellant's statement, in the interest of justice we will consider appellant's statement of evidence.
I.
{¶15} Initially, we observe that appellate courts generally review trial court decisions regarding the reallocation of parental rights and responsibilities with the utmost deference. See Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159; Hobbs v. Hobbs, 2015-Ohio-1963, 36 N.E.3d 665, ¶ 48 (4th Dist); Roberts v. Bolin, 4th Dist. Athens No. 09CA44, 2010-Ohio-3783, ¶ 14. Thus, when reviewing a trial court decision concerning a modification of parental rights and responsibilities, an appellate court will apply the abuse of discretion standard. See Wilson v. Wilson, 4th Dist. Lawrence No. 09CA1, 2009-Ohio-4978 at ¶ 21. Furthermore, in Davis, the court wrote: "Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court." Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159.
{¶16} R.C. 3109.04(E)(1)(a) governs the modification of a prior custody decree:
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent9
designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies: (I) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
The change in circumstances requirement is intended "'to spare children from a constant tug of war, '" and "'to provide some stability to the custodial status of the children, '" even if the nonresidential parents shows that "'he or she can provide a better environment.'" Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159, quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982). The change in circumstances requirement also is intended "'to prevent a constant relitigation of the issues raised and considered when the trial court issued its prior custody order.'" Price v. Price, 4th Dist. Highland No. 99CA12, 2000 WL 426188, *2 (Apr. 13, 2000). See also Hobbs, 36 N.E.3d 665, 2015-Ohio-1963, ¶ 54.
{¶17} Thus, because a child needs stability, parents should not "view final orders allocating parental rights and responsibilities as subject to easy revision as the child's life develops." Averill v. Bradley, 2d Dist. Montgomery No. 18939, 2001 WL 1597881, *5 (Dec. 14, 2001). Although appellate courts must not "make the threshold for change so high as to prevent a trial judge from modifying custody if the court finds it necessary for the best interest of the child," Davis, 77 Ohio St.3d at 420-421, 674 N.E.2d 1159, the change in circumstance standard is "high." Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 33. Therefore, a change in circumstances must be one of consequence - one that is substantive and 10 significant - and must relate to the child's welfare. Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159. See also Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000) (a change in circumstances generally means an event, occurrence, or situation that materially affects a child's welfare).
{¶18} In the case sub judice, the trial court concluded that, although an altercation occurred in May 2019, "there was not, in fact, a true change of circumstances in regards to the children or either parent (since this is a Shared Parenting Plan) and the Court, therefore, will not reallocate parental rights and responsibilities herein."
{¶19} In her first assignment of error, appellant asserts that the trial court erred in equating appellant's medical marijuana prescription with appellee's admitted illegal possession and use of marijuana, and the court made appellant's medical marijuana use a primary basis for its decision. In support of this claim, appellant highlights a portion of the court's written decision:
The parties were drug tested and the father was negative for all screened substances both in a hair follicle drug test and urine drug test and the mother tested positive for THC. The mother has a medical marijuana recommendation and uses marijuana or CBD with THC. Even though the father tested negative for all substances, he admitted that he occasionally would smoke marijuana when having difficulty sleeping and that he and his ex-wife, the mother in this case, both used marijuana in the past.
Appellant further points out that because the parties have been divorced for four years, any illegal marijuana usage the parties shared would have been over four years ago, and thus irrelevant.
{¶20} Appellant cites In re Kail.K., 6th Dist. Lucas No. L-17-1262, 2018-Ohio-1548, to support her argument that the trial court improperly considered her marijuana use. In that case, the Sixth District noted that mother did not establish that she had a medical marijuana 11 prescription, while her children were in her care, nor demonstrate that she obtained marijuana from a licensed retail dispensary, or that she could responsibly use marijuana while parenting her children. Id. at ¶ 136. Additionally, the court pointed out that mother's marijuana use was but one factor of many that the court used to determine that the children could not be placed with mother.
{¶21} In the case at bar, however, the trial court did not cite appellant's medical marijuana use as the "primary basis" for its decision. Instead, the court simply concluded that a significant change of circumstances had not occurred to warrant the reallocation of parental rights. Moreover, the court concluded that the "bottom line is that BOTH parents have smoked marijuana and cigarettes after they had the responsibility of the children. Both parents had smoked marijuana and cigarettes when there [sic] entered into a shared parenting plan." Further, the court emphasized that neither appellee's marijuana possession, nor the May 2019 incident, rose to the level of action taken by children's services or law enforcement. Thus, the court concluded that no significant change in circumstances had occurred.
{¶22} Moreover, concerning the parties' altercation, in Adams v. Adams, 4th Dist. Washington No. 05CA2, 2005-Ohio-4588, this court affirmed a trial court's determination that a movant failed to establish a sufficient change in circumstances to warrant modification of parental rights and responsibilities when a physical altercation was "not one of substance" and, thus, did not constitute an abuse of discretion. Adams at ¶ 14. In Adams, the trial court found no evidence of a pattern of physical abuse, but instead opted to believe that the incident was isolated. Id. Trial courts make credibility determinations and "we will not second-guess credibility determinations." Id., citing Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159 (deferring to trial court on credibility is "crucial" in cases that involve children "where there may be much 12 evident in the parties' demeanor and attitude that does not translate to the record well").
{¶23} In the case sub judice, it is apparent that the trial court fully and carefully weighed the relevant evidence and applied the appropriate legal standard. Consequently, we do not believe that the trial court's decision constitutes an abuse of its discretion.
{¶24} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.
II.
{¶25} In her second assignment of error, appellant asserts that the trial court erred by (1) disregarding the guardian ad litem's recommendations, and (2) characterizing the May 2019 incident in contradictory ways.
{¶26} A trial court may appoint a guardian ad litem "'to protect the interest of the child and "assist a court in its determination of a child's best interest."'" In the Matter of K.W., 2018- Ohio-1933, 111 N.E.3d 368, ¶ 98 (4th Dist), quoting In re C.B., 129 Ohio St.3d 231, 2011-Ohio- 2899, 951 N.E.2d 398, ¶ 14, quoting Sup.R. 48(B)(1) and citing R.C. 2151.281(B). "The purpose of a guardian ad litem in a parental rights allocation proceeding is 'to provide the court with relevant information and an informed recommendation regarding the child's best interest.'" Miller v. Miller, 4th Dist. Athens, No. 14CA6, 2014-Ohio-5127, ¶ 16, quoting Sup.R. 48(D). See also Shamblin v. Shamblin, 4th Dist. Meigs No. 19CA10, 2021-Ohio-709, ¶ 17. A trial court, however, is not and should not be bound by a guardian ad litem's recommendations. In re Keaton, 4th Dist. Ross No. 04CA2785, 2004-Ohio-6210, ¶ 83, citing Baker v. Baker, 6th Dist. Lucas No. L-03-1018, 2004-Ohio-469; In re Andrew B., 6th Dist. Lucas No. L-01-1440, 2002- Ohio-3977; In re J.H., 9th Dist. Summit No. 21575, 2003-Ohio-5611.
The function of a guardian ad litem or for a representative of the child is to secure for such child a proper defense or an adequate protection of its rights. The13
ultimate decision in any proceeding is for the judge and not for the representative of the parties and the trial court did not, for that reason, err in making an order contrary to the recommendation of the child's representativeIn re Height, 47 Ohio App.2d 203, 206, 353 N.E.2d 887 (3d Dist.1975).
{¶27} In the case sub judice, the trial court referenced the guardian ad litem's reportseveral times and concluded that "[i]f the parents lived in closer proximity to one another, then the GAL recommendation of a 2/3- 3/2 weekday schedule with alternating weekends might work." However, the court noted that, in light of the parties' limited financial resources and the distance between their homes, such a schedule is not reasonable.
This Court wishes to express its appreciation for the guardian ad litem's sincere effort in conducting a thorough investigation and formulating a detailed report and recommendation.
{¶28} After our review, we believe that the trial court did, in fact, fully consider the guardian ad litem's recommendation when it weighed the evidence, and we disagree with appellant's contention that the court "characterized the May 2019 incident in contradictory ways." We believe that the court after a thorough review of the evidence and testimony, arrived at a reasonable conclusion that appellant did not establish a sufficient change of circumstances to warrant a modification of the parties' parental rights and responsibilities.
{¶29} Accordingly, based upon the foregoing reasons, we overrule appellant's second assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED. 14
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion.
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 15