[Cite as In re L.A., 2018-Ohio-3219.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




IN RE:
                                                            CASE NO. 13-18-12
        L.A.,

A MINOR CHILD.
                                                            OPINION
[KELLY BROOKES - APPELLANT]




                  Appeal from Seneca County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 21650015

                                        Judgment Affirmed

                            Date of Decision:    August 13, 2018




APPEARANCES:

        Gene P. Murray for Appellant

        Emily P. Beckley for Appellee
Case No. 13-18-12


ZIMMERMAN, J.

       {¶1} Appellant Kelly Brookes (“Kelly”) brings this appeal from the February

21, 2018 judgment entry of the Seneca County Common Pleas Court, Juvenile

Division, denying her request for grandparent visitation.

                            Facts and Procedural History

       {¶2} L.A., born April, 2016, is the son of Andrew Althaus (“Andrew”) and

Paige Brookes (“Paige”). Andrew and Paige were never married. Kelly is the

maternal grandmother of L.A. and Jamie Althaus, nka Jamie Walton (“Jamie”) is

the paternal aunt of L.A.

       {¶3} On April 14, 2016, Seneca County Department of Job and Family

Services filed a complaint in the Seneca County Juvenile Court alleging L.A. to be

a dependent child. (Doc. 1). On May 26, 2016, the trial court placed L.A. into the

temporary custody of Paige and issued a no contact order between Paige and

Andrew. However, due to Paige and Andrew’s violation of the no contact order,

the trial court rescinded its temporary custody order (of L.A. to Paige) and placed

L.A. into the temporary custody of Jaime at L.A.’s June 27, 2016 dispositional

hearing. (Doc. 31).

       {¶4} On March 2, 2017, Jamie filed a motion in the trial court for legal

custody of L.A. (Doc. 73). Ultimately, on May 15, 2017, the trial court approved

an agreement between Jamie and L.A.’s parents that granted Jamie legal custody of


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L.A. Under the agreement, Andrew and Paige (separately) were granted supervised

visitation with L.A. to be held at the Patchworks House. (Doc. 119).

       {¶5} On July 7, 2017, Kelly filed the following pleadings in the trial court:

Motion to Intervene; Motion for Temporary Visitation Order; Motion for

Temporary Custody Orders and Request for Hearing; Complaint for Reasonable

Companionship and Visitation Rights; and Complaint for Custody. At the hearing

on the motions, held August 30, 2017, the magistrate dismissed Kelly’s motion for

legal custody and denied her Motion to Intervene. (Doc. 139). Kelly’s remaining

Motion (for Temporary Visitation) was thereafter heard by the magistrate and

denied on December 4, 2017. (Doc. 159).

       {¶6} On December 4, 2017, the magistrate filed its decision with the trial

court and Kelly timely filed objections. On February 21, 2018, the trial court

overruled the objections to the magistrate’s decision, determining that the objections

were an “attempt to claim the Magistrate held a ‘collective bias or prejudice’” and

finding that Kelly made “no specific allegation that the Magistrate did not comport

with his application of law, and there has been no particularized objection” and

therefore adopted the magistrate’s findings and recommendations. (Doc. 166).

       {¶7} Kelly filed her notice of appeal on March 23, 2018,           raising the

following assignment of error for our review.




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Case No. 13-18-12


                            ASSIGNMENT OF ERROR

         The trial court abused its discretion by adopting the Magistrate’s
         Decision as its own, to deny the Movant-Appellant Maternal
         Grandmother’s motion for reasonable companionship and
         visitation with the minor child, L.A., D.O.B. 4/13/16, as the
         transcript of the hearing before the Magistrate, on the issue of the
         said appellant’s motion for reasonable companionship and
         visitation rights, is reflective and replete with evidence and indicia
         that said trial court had pre-determined the outcome against the
         Movant Grandmother by repeated expressions of a pervasive tone
         against the Movant-Appellant Grandmother that was blatantly
         and patently obvious from the proverbial get-go of the hearing, as
         to what the outcome would be, and indeed, was, thereby resulting
         from and in an overriding unfairness that was so predictably
         palpable against the Movant-Appellant, and accordingly resulted
         in reversible error.

         {¶8} We interpret Kelly’s sole assignment of error to be that the trial court

abused its discretion by adopting the Magistrate’s Decision, claiming the trial court

had a pre-determined outcome as an allegation that the trial court exerted judicial

bias in its decision. For the reasons that follow, we overrule Kelly’s assignment of

error.

                                  Standard of Review

         {¶9} R.C. 3109.12(B) provides that a trial court may grant reasonable

visitation rights to grandparent if the court determines that such visitation is in the

child’s best interest. “The trial court has discretion as to visitation issues, and its

decision will not be reversed absent an abuse of discretion, such that the decision is

unreasonable, arbitrary or unconscionable.” In re S.K.G., 12th Dist. Clermont No.


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Case No. 13-18-12


CA 2008-11-105, 2009-Ohio-4673, ¶21, Anderson v. Anderson, 147 Ohio App.3d

513, 2002-Ohio-1156, ¶18.       “An abuse of discretion suggest the trial court’s

decision is unreasonable or unconscionable.” Brammer v. Meachem, 3d Dist.

Marion No. 9-10-43, 2010-Ohio-519, ¶14, citing Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When determining whether to grant visitation rights to a

grandparent, the trial court is required to consider the factors listed in division (D)

of section 3109.051 of the Revised Code.

                                       Analysis

       {¶10} Kelly argues that the trial court erred by adopting the magistrate’s

decision because the magistrate “had pre-determined the outcome against Movant

Grandmother by repeated expressions of a pervasive tone and against the Movant –

Appellant Grandmother that was blatantly and patently obvious from the proverbial

get-go of the hearing, as to what the outcome would be, and indeed, was thereby

resulting from and in an overriding unfairness that was so predictably palpable

against the Movant-Appellant, and accordingly resulted in reversible error”. We

disagree.

       {¶11} In support of Kelly’s poorly worded assignment of error, we are

directed to the following portions of the transcript:

             Kelly’s testimony, page 14, line 23 through page 15, line 2;
             Relevancy objection, page 15, line 8 through page 16, line 4;
             Credibility objection, page 47, line 19 through page 48, line 2;


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           Testimony of Jamie, page 59, line 3 through line 16; page 62
            line 25 through page 63, line 10; and page 64, line 14 through
            page 65, line 8

       {¶12} In essence, Kelly contends the Magistrate expressed bias (towards her)

by overruling a relevancy objection (Tr. Pg. 48), by determining L.A.’s mother

(Paige) not to be credible (see generally, Tr. Pg. 14-16 and 64-65) by overruling an

objection for leading a witness (Tr. Pg. 59) and by commenting upon the facial

gestures of Kelly (Tr. Pg. 62-63). In our review, we find no bias.

       {¶13} When ruling on objections to a magistrate’s decision, the trial court

may “adopt, reject, or modify the magistrate’s decision, hear additional evidence,

recommit the matter to the magistrate with instructions, or hear the matter”. Civ.R.

53(D)(4)(b). The trial court has the “ultimate authority and responsibility over the

magistrate’s findings and rulings”. Clifton v. Clifton, 3d Dist. Union No. 14-03-07,

2003-Ohio-6993, ¶8, quoting Hartt v. Munobe, 67 Ohio St.3d 3, 5 (1993).

Accordingly, it decides “whether the magistrate has properly determined the factual

issues and appropriately applied the law, and where the magistrate has failed to do

so, the trial court must substitute its judgment for that of the magistrate”. Inman v.

Inman, 101 Ohio App.3d 115, 118 (1995).

       {¶14} In determining the credibility of a witness, the general rule of law is

that “[t]he choice between credible witnesses and their conflicting testimony rests

solely with the finder of fact and an appellate court may not substitute its own


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judgment for that of the finder of fact”. Columbus v. Hawkins, 10th Dist. Franklin

No. 10AP-1150, quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). Indeed, the

fact finder is free to believe all, part, or none of the testimony of each witness

appearing before it. Id., citing Hill v. Briggs, 111 Ohio App.3d 405, 412. If

evidence is susceptible to more than one construction, reviewing courts must give

it the interpretation that is consistent with the verdict and judgment. Id., citing White

v. Euclid Square Mall, 107 Ohio App.3d 536, 539. Mere disagreement over the

credibility of witnesses is not sufficient reason to reserve a judgment. Id., citing

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202.

       {¶15} In our review of the record, Kelly has failed to substantiate that the

trial court’s adoption of the magistrate’s decision was “unreasonable or

unconscionable”.     The trial court undertook its independent review of the

magistrate’s decision as required by the Juvenile and Civil Rules and R.C. sections

3109.12 and 3909.051. Specifically, in its independent review, the trial court stated:

       “Based upon the record provided, the Court determines that after
       independent consideration of all of the factors mandated by ORC
       3109.12 and ORC 3109.051 (D), and after giving special weight to
       wishes and concerns of Jamie Althaus as Legal Custodian, the
       Court finds that as custodian she is in control of the child, and
       should have the right to determine when the child can visit, or be
       visited by, maternal grandparent. Indeed, as was determined by
       the Third District Court of Appeals, any contrary conclusion
       would exceed this Court’s authority where a child has not been
       abandoned, or where child has not been living with the
       grandparent. See: Shriver v. Shriver (1966), 7 Ohio App. 2nd 169
       [sic].”

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Case No. 13-18-12



           {¶16} Accordingly, we find that the trial court’s independent review was

properly based upon competent and credible evidence set forth in the record.

Moreover, Kelly has not connected how the overruling of three objections and the

determination of credibility by the magistrate constituted bias. We find rulings on

objections and determinations of credibility1 to be within the sound discretion of the

trier of fact. As such, we overrule Kelly’s sole assignment of error.

           {¶17} Having found no error prejudicial to the appellant herein in the

particulars assigned, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




1
    Including facial gestures of a witness or party.

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