[Cite as In re K.S., 2011-Ohio-5981.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

IN THE MATTER OF:                           :
                                            :    Appellate Case No. 2010-CA-56
        R.S. and K.S.                       :
                                            :    Trial Court Case Nos. 2009-1772
                                            :    Trial Court Case Nos. 2009-1775
                                            :
                                            :    (Juvenile Appeal from
                                            :    (Common Pleas Court)
                                            :
                                        ...........
                                        OPINION
                         Rendered on the 18th day of November, 2011.
                                        ...........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
     Attorney for Plaintiff-Appellee, Clark County Dept. Of Job & Family Services

JAMES GRIFFIN, Atty. Reg. #0015917, 8 North Limestone Street, Suite D,
Springfield, Ohio 45502
      Attorney for Appellee, father

MARK A. DETERS, Atty. Reg. #0085094, 371 West First Street, Dayton, Ohio 45402
    Attorney for Defendant-Appellant, mother


                                                      .............

HALL, J.

        {¶ 1} N.R. (“Mother”) appeals from the trial court’s decision and entry

granting her former husband, J.S. (“Father”), legal custody of their two children,

R.S. and K.S.
                                                                                      2


       {¶ 2} Mother advances two assignments of error on appeal. First, she

contends the trial court erred when it failed to comply with the requirements for

modifying a prior custody order under R.C. 3109.04(E)(1). Second, she claims the

trial court abused its discretion by modifying a prior custody decree.

       {¶ 3} The record reflects that the present dispute began as two separate

dependency/abuse actions filed by Clark County Children’s Services (CCCS). The

agency filed the actions in juvenile court on December 4, 2009. At that time, Mother

had remarried. She and her new husband, R.R., live in Springfield, Ohio, with six

children. The appellee is the father of two of those children, R.S. and K.S. He now

lives in Kansas with his new wife and their one child.

       {¶ 4} In its two dependency/abuse complaints, CCCS alleged that it had

become involved in this case based on allegations of sexual activity between two of

the minor children in Mother’s household.        Although the sexual activity did not

involve R.S. and K.S., who then were ten and twelve years old, CCCS requested a

finding of abuse or neglect and the issuance of a protective-supervision order. In the

body of its complaints, the agency alternatively requested other dispositions.

       {¶ 5} The trial court consolidated the two complaints. On December 21,

2009, it made a finding that R.S. and K.S. were dependent children. The trial court

then issued an agreed protective-supervision order. The trial court indicated that the

order would remain in effect for six months unless modified, extended, or terminated.

The trial court also noted that Father had filed a motion seeking legal custody of R.S.

and K.S. Finally, the trial court stated that it would hold a dispositional review hearing

on or before June 21, 2010.
                                                                                      3


       {¶ 6} Thereafter, on April 19, 2010, the trial court held the promised hearing.

After considering the evidence presented, reviewing a guardian ad litem’s report, and

speaking to R.S. and K.S. privately, the trial court filed a decision and entry in which

it repeated its earlier finding that the children were dependent. It then granted

Father’s motion for legal custody and awarded Mother visitation. This appeal

followed.

       {¶ 7} On April 26, 2011, we filed a decision and entry clarifying the issues

before us, suspending the appeal, and remanding the cause for the trial court to

make additional findings. In particular, we clarified the nature of the appeal, rejecting

Mother’s argument that it did not stem from a dependency complaint. Despite that

conclusion, we ultimately agreed with Mother’s claim “that the trial court was required

to comply with R.C. 3109.04 before granting legal custody to [Father].” We then

determined that the trial court had failed to make all of the findings required by R.C.

3109.04(E)(1)(a), which provides:

       {¶ 8} “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 parent 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:
                                                                                       4


       {¶ 9} “* * *

       {¶ 10} “(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.”

       {¶ 11} In our April 26, 2011 ruling, we reasoned:

       {¶ 12} “In the present case, the trial court made no specific reference to R.C.

3109.04. It made no finding of a change in circumstances since the time of the prior

custody decree, and it made no finding that the harm caused by a change of

environment would be outweighed by the advantages to R.S. and K.S. if [Father]

obtained custody.

       {¶ 13} “Although we might be tempted to make the foregoing findings on our

own, we decline to do so. Based on the record before us, we deem it best that the

trial court determine whether either requirement has been met.”

       {¶ 14} As a result, we suspended Mother’s appeal and remanded the cause

“for the limited purpose of allowing the trial court to decide whether a change in

circumstances exists and whether the benefits from a change of custody outweigh

any harm to R.S. and K.S.” The trial court responded to our remand with a June 1,

2011 judgment entry in which it made additional findings. Thereafter, we granted

both parties leave to file supplemental briefs addressing the trial court’s new findings.

Having reviewed those briefs, as well as the trial court’s original ruling and its

additional findings, we turn now to the merits of Mother’s appeal.

       {¶ 15} In her first assignment of error, Mother contends the trial court failed to

comply with the requirements for modifying a prior custody order under R.C.

3109.04(E)(1). In particular, she claims the trial court erred in failing to find: (1) that
                                                                                    5


there was a change in circumstances for each child and (2) that the harm likely to be

caused by a change of environment was outweighed by the advantages of the

change. As set forth above, although the trial court’s original ruling omitted these

findings, we remanded the cause for the trial court to make them. In her

supplemental brief, however, Mother asserts that the trial court’s most recent

judgment entry still failed to include the second finding.     As for the first finding,

Mother acknowledges that the trial court now has made it. She argues, however, that

the evidence fails to demonstrate a change in circumstances.

      {¶ 16} Our review of the trial court’s most recent ruling reveals that it found a

change in circumstances for each child and that the harm likely to be caused by a

change of environment was outweighed by the advantages of the change. The

evidence supports both findings.

      {¶ 17} In its June 1, 2011 judgment entry, the trial court found “repeated and

significant changes in circumstances in the home of the mother, and in the

circumstances of the children since the prior decree.” The trial court addressed those

changes as follows:

      {¶ 18} “[S]ince the last decree the mother has remarried. In fact, she has

indicated through her testimony that she has been married two (2) times, since the

divorce from the boys’ father. Since the last decree as well, the mother has taken up

residence and now lives with a husband that is extremely volatile, angry, and

unpredictable. His behavior has caused the home of the mother to be chaotic by her

own admission. The mother’s home is not safe, stable, or secure. She has

repeatedly indicated a desire to separate from her husband. She has even had to
                                                                                   6


move out of the home that she shares with her husband out of fear. Additionally, her

husband had been gone from the home for a period of three (3) months exhibiting

the instability and unpredictability that is obvious to all that know [R.R.] She

expressed a desire to rectify the instability and unpredictability and chaos in the

home, but is [sic] seemingly been unable to do so. In addition, since the last decree,

a child in the home of the mother has been sexually abused and had to be removed

from the home. This occurred on mother’s watch when she was the owner and

operator of the home. Since the last decree, it has been determined that one (1) of

her children has ADHD and another is bi-polar. Both children are in significant need

of counseling services and perhaps medication. One child is flunking in school and

the other is very consumed with video games to the point of being distracted. The

chaos in the home is causing instability of the lives and emotional well-being of the

boys. They crave, need, and deserve a home that is safe, stable, and secure. The

mother’s home does not offer that. There have been many substantial changes in the

lives of the mother and the boys.”

      {¶ 19} In her supplemental brief, Mother contends the foregoing findings by

the trial court are distorted, telling only part of the story. Although she has been

married multiple times, Mother notes that she married her current husband, R.R., in

2004. With regard to instability and chaos in the home, Mother attributes them to

stress caused by the sexual abuse allegations. Mother points out that the child who

committed the abuse, R.R.’s son from another relationship, has been removed from

her home and lives out-of-state with a relative. Mother contends she and R.R. have

resolved much of the tension that previously existed between them. She also
                                                                                      7


contends the trial court erred in essentially holding her strictly responsible for the

sexual abuse that occurred in her home, for the fact that R.S. and K.S. have been

diagnosed with mental issues, and for the fact that R.S. is failing in school. According

to mother, she did her best to remedy the sexual abuse issue upon discovering it,

she obtained medication and treatment for R.S. and K.S., and she worked with the

school to address R.S.’s academic problems.

       {¶ 20} Mother’s own hearing testimony supports her claims. But even taking

that testimony into account, the evidence, as a whole, supports the trial court’s

central finding that chaos and instability in the home, attributable largely to her

marriage to R.R., have produced a change in circumstances since the last decree

allocating parental rights. While the problems in the home may have subsided

somewhat after the sexual abuse issue was resolved, the record contains ample

evidence to support a finding that R.R. remains a hostile, destabilizing force in the

lives of the children. Social worker Julie Sullivan summarized the situation in the

home at the time of the hearing as follows:

       {¶ 21} “I think they’re working through a lot of their issues, [Mother and R.R.]

are; they’re working through their problems. [R.R.] is still very resistant, doesn’t think

he’s got an anger problem, which all of the children have reported that he gets very

angry, yells and screams, the house is kind of chaotic when [R.R.’s] upset. They are

working through those. He did complete an assessment on Thursday at Family

Service Agency, which he completed one months before but did not follow through

with recommendations.” (Hearing transcript at 28).

       {¶ 22} In her testimony, Mother admitted that R.R. “does have some issues
                                                                                       8


with some anger[.]” (Id. at 91). Most notably, R.R. testified at the hearing and

displayed his anger and volatility first-hand. In testimony that the trial court accurately

characterized as “entirely lacking in credibility,” R.R. exhibited open hostility and

eventually walked off of the witness stand, resulting in the trial court having him taken

into custody and held in contempt. When questioned by Father, R.R. became

uncooperative and professed not to recall anything about anything. The hearing

transcript reveals the patent insincerity of his testimony. (Id. at 155-162). After

several minutes of questioning, R.R. announced that he was “finished” and that he

would not answer another question. (Id. at 163). After the trial court ordered him to

continue or go to jail, R.R. proceeded to deny everything asked. (Id. at 163-164).

When Father eventually attempted to impeach R.R. with a tape-recorded telephone

conversation, R.R. ignored the trial court’s order to remain seated and left the

courtroom. (Id. at 168-170). This contemptuous behavior by R.R. fully supports the

trial court’s finding that he is volatile, angry, and unpredictable and that he has

caused Mother’s home to be unstable.

       {¶ 23} The Ohio Supreme Court has recognized that a change in

circumstances must be one of substance, not slight or inconsequential, to justify

modifying a prior custody order. Davis v. Flickinger, 77 Ohio St.3d 415, 418,

1997-Ohio-260. “In determining whether a change in circumstances has occurred so

as to warrant a change in custody, a trial judge, as the trier of fact, must be given

wide latitude to consider all issues which support such a change.” Id. at syllabus. A

new marriage, alone, ordinarily does not constitute a sufficient change in

circumstances to warrant a change in custody. Id. at 419. In Davis, however, the
                                                                                                                                 9


Ohio Supreme Court recognized that “a new marriage that creates hostility by the

residential parent and spouse toward the nonresidential parent, frustrating attempts

at visitation, may be an unforeseen change in circumstances warranting further

inquiry into the best interest of the child.” Id. at 419.

         {¶ 24} Although R.R.’s volatility and anger may not have frustrated Father’s

visitation attempts, this does not mean Mother’s remarriage cannot constitute a

change in circumstances. We do not read Davis to imply that the only way a new

marriage can qualify as a change in circumstances is if it creates visitation-related

hostility. To the contrary, we believe the trial court acted within its discretion in finding

a change in circumstances based on the instability that R.R.’s hostility and volatility

introduced into Mother’s home and the adverse impact his conduct had on R.S. and

K.S. The instability and chaos the trial court attributed to R.R.’s presence in the home

reasonably qualifies as an adverse change of substance in the circumstances of the

children. Therefore, the trial court did not err in finding a change in circumstances

since the time of the prior custody decree.1

         {¶ 25} Contrary to Mother’s argument, the trial court also adequately found

that the harm likely to be cause by a change of environment was outweighed by the

advantages of the change. Although Mother contends this finding remains absent

from the trial court’s most recent judgment entry, the trial court made the finding,

albeit perhaps inferentially, on the bottom of page four of its decision. After finding

that the “instability and chaos” attributable to R.R.’s presence in the home qualified

           1
            Parenthetically, we note that the prior custody decree was entered when Mother and Father divorced. Therefore, that decree
 pre-dated Mother’s new marriage to R.R.
                                                                                      10


as a change in circumstances, the trial court continued:

       {¶ 26} “[T]he Court of Appeals for the Third Appellate District determined that

a Juvenile Court did not abuse its discretion when it modified a custody order and

granted custody of a 16 year old child to his father, when the evidence showed that

the advantages of the custody change out weighted the disadvantages * * * because

: (1) the critical element missing from the child’s life was stability, (2) the mother who

was given custody, but unable to provide stability to the child, (3) the child would

have a stable home with his father who had financially support [sic] him and kept in

contact with him throughout his young life, In re Rutan, [Union App. No. 14-03-52,]

2004-Ohio-4022 (2004).”(Emphasis added).

       {¶ 27} In citing Rutan, the trial court plainly was drawing a parallel between

that case and the case before it, insofar as both cases involved attempts to remedy

instability in a child’s home life by providing a more secure, stable home. By

recognizing that the advantages of a custody change outweigh the disadvantages

when the change will produce greater stability for a child, the trial court effectively

made a finding that, as in Rutan, the harm likely to be caused to R.S. and K.S. by a

change of environment was outweighed by the advantages of the change to them.

Although the trial court could have said so more directly, the import of its analysis is

evident.

       {¶ 28} Finally, we reject Mother’s assertion that the harm likely to be caused to

R.S. and K.S. by a change of environment outweighs any benefit to them. In

evaluating the harm and the advantages to R.S. and K.S. if Father obtains custody,

we note that the children have lived with Mother for their entire lives. Although they
                                                                                    11


have had lengthy and regular periods of visitation with Father in Kansas, the trial

court’s interview with the children established that one of them was ambivalent about

a custody change. The other child expressed a desire to remain with Mother.

Although these wishes are not dispositive, they are relevant given the children’s

ages.

        {¶ 29} On the other hand, the record reflects that the boys love Father and

have spent extensive vacation time with them. Given the unstable home environment

the boys have had with Mother and R.R., the trial court reasonably concluded that

the benefits of sending them to Kansas to live with Father would outweigh any

potential harm. Although resolution of this issue is perhaps close, the trial court was

best positioned to make this determination based on its familiarity with the parties

and the insights it had gained by watching them in court. Our function as an appellate

court is to review the trial court’s determination, after it is made, for an abuse of

discretion. Pellettiere v. Pellettiere, Montgomery App. No. 23141, 2009-Ohio-5407,

¶12; Beismann v. Beismann, Montgomery App. No. 22323, 2008-Ohio-984, ¶20

(“The discretion which a trial court enjoys in custody matters should be afforded the

utmost respect, given the nature of the proceeding and the impact the court’s

determination will have on the lives of the parties concerned. The knowledge a trial

court gains through observing the witnesses and the parties in a custody proceeding

cannot be conveyed to a reviewing court by a printed record. * * * Thus, a reviewing

court may not reverse a custody determination unless the trial court has abused its

discretion.”). We see no abuse of discretion in the trial court’s determination that the

benefit to R.S. and K.S. from a change of environment outweighs any harm likely to
                                                                                      12


be caused by the change. Accordingly, Mother’s first assignment of error is

overruled.

       {¶ 30} In her second assignment of error, Mother claims the trial abused its

discretion by modifying the prior domestic relations court decree that had awarded

her custody of R.S. and K.S. She advances five arguments in support. The first

three arguments concern the requirements of R.C. 3109.04(E). Specifically, Mother

contends (1) there was not a change in circumstances sufficient to warrant granting

Father custody, (2) the reallocation of parental rights was not in either child’s best

interest, and (3) the advantages of the change did not outweigh the likely harm to the

children. Mother also argues (4) that the trial court erred in finding R.S. and K.S.

dependent when ruling on Father’s custody motion, and (5) that it erred in failing to

grant the guardian ad litem’s motion for a continuance.

       {¶ 31} Upon review, we reject Mother’s          arguments about a change in

circumstances or whether the benefits of awarding Father custody outweighed the

likely harm to the children. We fully addressed those issues above and need not

repeat that analysis here. As for the best-interest determination, the trial court’s

original judgment entry found a change of custody to be in the best interest of R.S.

and K.S. The record supports this determination.

       {¶ 32} When determining the best interest of a child in a dependency action, a

trial court may consider any relevant circumstances, including any relevant

best-interest factors under R.C. 3109.04(F). In re Fulton, Butler App. No.

CA2002-09-236, 2003-Ohio-5984, ¶11. A trial court need not recite those factors or

 discuss each of them in its judgment entry. It is sufficient if the trial court refers to
                                                                                       13


evidence that supports its best-interest determination. Chelman v. Chelman, Greene

App. No. 2007 CA 79, 2008-Ohio-4634, ¶38-39.

       {¶ 33} In the present case, the trial court’s original judgment entry included the

following factual findings upon which it based its best-interest determination:

       {¶ 34} “CHILDREN: The children are physically healthy, but admittedly lazy.

The children indicate through in-camera interviews that they have a love for both their

mother and father. Both children admit some adjustment concerns in the home of the

father. Both boys are capable of successfully matriculating through grade school and

high school. [R.S.] is failing many courses at this time. Both children could do

significantly better in the classroom. Their school performances and their mental

health have been adversely affected by a chaotic and disruptive home life. The boys

express a genuine desire to live with each other and to have regular contact with

both parents.

       {¶ 35} “MOTHER: The mother, [N.R.], presents as trying very hard to meet the

needs of her children and step-children. Her home was full of children. The mother of

the children is gainfully employed outside the home and works hard to provide for

their needs. She is married to an angry, difficult man. He is often difficult to work with,

and difficult to control. His behavior in the courtroom at the trial proceedings was

contemptuous and his testimony was entirely unbelievable. Some of the children in

mother’s home were sexually abused. There is ample evidence that the children’s

needs were not met, and that for a significant period of time the abuse was

undetected or not addressed, when it should have been. It is equally clear that the

volatile behavior of the step-father, [R.R.], has caused the home to be unstable and
                                                                                    14


the children to be on pins and needles. There is frequent talk of divorce and

separation between the mother and the step-father. There have been repeated

accusations of physical and mental abuse by both parties. The mother relies

significantly on her parents for help in raising her children. The home of the mother is

not conducive to a loving, supportive, stable, and nurturing environment for the boys.

       {¶ 36} “FATHER: The father is married and lives in Kansas City, Kansas, with

his wife and their small child. While his past record of being a parent is not as good

as it could be and should be, he has in recent years, done all that he could

reasonably do to meet the needs of his sons. His home is stable. His employment is

secure. The step-mother in the home is appropriate. The father has the physical,

mental, emotional, and financial means to meet the needs of the boys.

       {¶ 37} “The father expressed a genuine interest in raising his sons, and to

remove them from the chaos that they have called home in Springfield, Ohio. He can

meet their needs and placement with him would be in the best interest of the

children. The Guardian Ad Litem recommended the boys be placed in the home of

the father.” (Doc. #27 at 1-2).

       {¶ 38} For the most part, the foregoing findings are supported by evidence

presented at the April 19, 2010 hearing on Father’s motion for legal custody. The trial

court failed to mention, however, that one of the children particularly liked Mother’s

new husband (his stepfather, R.R.), particularly disliked Father’s new wife (his

stepmother), and described his relationship with Father as being “not too well.” This

same child mentioned having many friends in Springfield and no friends in Kansas

City. The other child was more ambivalent about where he lived, seemingly enjoying
                                                                                     15


both places.

       {¶ 39} With regard to Mother, the record supports the trial court’s finding that

her new husband, R.R., is generally angry and difficult to deal with. We note,

however, that her home no longer is full of children and the perpetrator of the sexual

abuse no longer resides there. Moreover, talk about separation and divorce appears

to have subsided with the passage of time since the improper sexual activity

occurred. The trial court still reasonably could have concluded, however, that R.S.

and K.S. would be better off living with Father rather than with their step-father, R.R.,

who made a poor impression at the hearing. At the time of the hearing, one of the

two children was failing in almost all of his classes at school. The record supports a

finding that there is a general lack of discipline and direction in Mother’s home and

that the situation may be better in Father’s home. Although one of the children did

not particularly want to move to Kansas City, the wishes of the children are not

dispositive. One reason that child cited for not getting along well with Father involved

a one-time dispute about performing a chore.

       {¶ 40} On appeal, Mother points out that Kansas City is far from where R.S.

and K.S. have been raised. She also stresses the presence of family and friends in

Springfield. Mother further expresses concerns about Father’s wife not having been

around the children much, about Father’s ability to support the children, about

Father’s strictness and his one-time use of a paddle for discipline, about Father’s

failure to give the children their medication, and about Father being delinquent on his

child-support obligation. The trial court heard testimony about these concerns and

took them into consideration.
                                                                                      16


       {¶ 41} With regard to financial resources, we note that the record supports the

trial court’s finding that Father has relatively secure employment and the ability to

provide for the children. As for Father’s strictness, the evidence did not compel a

finding that he is overly strict. The record indicates that Father has rules, requires the

children to perform chores, and disciplines them. As “a last resort,” he once

disciplined the boys by striking them one time each with a paddle. We note, however,

that Mother’s new husband, R.R., also admitted spanking the children. In any event,

“parents have the right to use reasonable physical discipline, or corporal punishment,

to prevent and punish a child’s misconduct.” In re J.L., 176 Ohio App.3d 186, 190,

2008-Ohio-1488, ¶12. Nothing before us establishes that any of the discipline

imposed by anyone in this case exceeded the bounds of reasonableness.

       {¶ 42} The record also supports the trial court’s belief that R.R. has a temper

and came across at trial as being angry and volatile. With regard to child support, the

only times Father fell behind were when he was unemployed. At the time of the

hearing, he was making regular payments, paying toward his arrearage, and

maintaining employment. As for the medication issue, Father assured the trial court

that he would give it to the children if a psychiatrist deemed it necessary. Notably, the

medication at issue here was prescribed by a psychiatrist.

       {¶ 43} Although the issue is perhaps a close one, we do not believe the trial

court abused its discretion in finding a change of custody to be in the best interest of

R.S. and K.S. In reaching this conclusion, we recognize that “the discretion which a

trial court enjoys in custody matters should be afforded the utmost respect, given the

nature of the proceeding and the impact the court's determination will have on the
                                                                                       17


lives of the parties concerned. The knowledge a trial court gains through observing

the witnesses and the parties in a custody proceeding cannot be conveyed to a

reviewing court by a printed record.” Goldsboro v. Goldsboro, Miami App. No. 2006

CA 48, 2007-Ohio-2135, ¶12.

       {¶ 44} Mother next argues that the trial court erred in finding R.S. and K.S. to

be dependent children in its ruling on Father’s motion for legal custody. She asserts

that the issue was not properly before the trial court because it previously had found

the children to be dependent when it issued its protective supervision order.

       {¶ 45} Upon review, we fail to see any harm or prejudice to Mother as a result

of the trial court repeating its earlier finding of dependency. Mother did not contest

the trial court’s original finding that R.S. and K.S. were dependent, and she

consented to the issuance of a protective supervision order. That determination gave

the juvenile court continuing jurisdiction over the children until their eighteenth

birthday. In the exercise of its continuing jurisdiction, the trial court was authorized to

grant Father legal custody. The fact that the trial court repeated its earlier

dependency finding in its ruling on Father’s motion is of little significance.

       {¶ 46} Finally, we reject Mother’s argument that the trial court abused its

discretion in failing to grant the guardian ad litem a continuance. This argument

concerns the trial court’s denial of the guardian ad litem’s February 25, 2010 motion

to reschedule the April 19, 2010 evidentiary hearing due to his unavailability. The trial

court overruled the motion without explanation on March 3, 2010.

       {¶ 47} On appeal, Mother claims the guardian ad litem’s absence from the

hearing deprived her of the ability to cross examine him about findings in his report
                                                                                 18


and his recommendation that R.S. and K.S. should live with Father. This argument is

unpersuasive. Notably, Mother did not join in the guardian ad litem’s motion for a

continuance and failed to object to his absence from the hearing. She never

attempted to call the guardian ad litem as a witness or to subpoena him. Mother has

forfeited her ability to complain about the guardian ad litem’s absence from the

hearing by failing to raise the issue below. In the Matter of Shawn W. (Sept. 30,

1996), Lucas App. No. L-95-267 (“Appellant never objected to the lack of the

guardian ad litem’s presence at the hearings, thereby waiving any right to raise this

issue on appeal.”). Moreover, as a matter of trial strategy, Mother’s counsel

purposely may have avoided raising the guardian ad litem’s absence as an issue

below. Given that the guardian ad litem’s report was unfavorable to Mother, counsel

may have wished to minimize its impact in the case by not calling its author as a

witness and highlighting it. Cf. In re E.W., Franklin App. No. 05AP-1088,

2006-Ohio-2609, ¶17 (recognizing that counsel’s failure to cross examine a guardian

ad litem could have been a reasonable trial strategy). Based on the reasoning set

forth above, we overrule Mother’s second assignment of error.

      {¶ 48} Having overruled both of Mother’s assignments of error, we affirm the

trial court’s judgment granting Father legal custody of R.S. and K.S.

                                                 .............

GRADY, P.J., and DONOVAN, J., concur.



Copies mailed to:

Andrew Picek
James Griffin
                        19


Mark A. Deters
Hon. Joseph N. Monnin
