[Cite as In re A.S., 2013-Ohio-1975.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: A.S.                                           C.A. No.       26462



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 09-10-0823

                                 DECISION AND JOURNAL ENTRY

Dated: May 15, 2013



        CARR, Judge.

        {¶1}     Arvis S. appeals from a judgment of the Summit County Court of Common Pleas,

Juvenile Division, that placed his son, A.S., in the legal custody of relatives. This Court reverses

and remands.

                                                 I.

        {¶2}     Stephanie W. (“Mother”) and Arvis S. (“Father”) are the parents of A.S., born

September 4, 2008. Only Father has appealed. Mother participated in the proceedings below,

but has not appealed.

        {¶3}     Summit County Children Services Board (“CSB”) initiated this action with a

complaint filed in juvenile court on October 9, 2009, alleging that A.S. was dependent and

neglected. The child had recently been removed from Mother’s home by the local police due to

an argument between his parents. The trial court adjudicated A.S. to be dependent and granted

temporary custody to the agency. The child was initially placed with a foster family, and within
                                                 2


six months, was placed with Mary P. and Carl P., the child’s maternal great aunt and great uncle

(“Relatives”).

       {¶4}      Several motions for legal custody were filed by CSB, Mother, and Father amidst

two six-month extensions of temporary custody and efforts towards mediation. Eventually,

CSB’s motion for legal custody to Relatives and Father’s motion for legal custody to himself

were heard by a magistrate of the juvenile court on May 10, 2011. During that hearing, Mary P.

testified that she was willing to assume legal custody of A.S. on a permanent basis and to allow

visitation by the parents. In addition, Relatives executed a written statement of understanding,

accepting responsibility to care for the child until maturity and acknowledging the parents’

residual rights. See R.C. 2151.353(A)(3).

       {¶5}      On May 19, 2011, the magistrate entered a decision granting legal custody to

Relatives. Father filed objections to the decision, and the trial judge found merit in one of the

objections: the magistrate’s failure to permit the parties to cross-examine the guardian ad litem.

The judge remanded the matter to permit the parties an opportunity to cross-examine the

guardian ad litem. Following the hearing in which the parties cross-examined the guardian ad

litem, the magistrate found that the information obtained made no difference on the question of

legal custody. The trial judge adopted the decision the same day, subject to the filing of any

objections by the parties. Father filed additional objections and thereby stayed the effect of the

decision.

       {¶6}      Shortly before the hearing to cross-examine the guardian ad litem, Father filed a

motion for contempt against Relatives for denying him visits with his son. The contempt matter

was heard on January 25, 2012, by a different magistrate of the same juvenile court. During that

hearing, Mary P. and Carl P. each plainly declared that they no longer wished to have legal
                                                 3


custody of A.S. That intention was confirmed by their attorney, who indicated that he would file

a written motion to that effect. The magistrate closed the hearing by stating that she would

consider any such motion from Relatives at an upcoming status hearing scheduled for February

13, 2012.

       {¶7}    On the day after the contempt hearing and the renunciation by Relatives, Father

filed a motion with the trial judge, requesting that the judge delay her ruling on the objections to

the magistrate’s custody decision until the outcome of the upcoming status hearing was reached.

In his supporting memorandum, Father explained that Relatives stated – on the record – that they

were no longer willing to have legal custody of the child and that their attorney intended to file a

motion to that effect. Father also indicated, in his motion, that the magistrate expected to address

this matter at a status hearing on February 13, 2012.

       {¶8}    On February 6, 2012, the trial judge granted Father’s requested delay. On the

same day, Father filed a motion to change the disposition of the child and sought legal custody to

himself. The caption of that motion included the name of the trial judge and the name of the

second magistrate. In his motion, Father claimed that it was not in the child’s best interest to

remain in Relatives’ care since they had denied any interest in pursuing legal custody. Father

requested that his motion for change of disposition be heard at the February 13, 2012 status

hearing. The agency did not respond to the motion. At the February 13, 2012 hearing, the

magistrate declared that she would not hear Father’s motion to change disposition because

objections to the legal custody decision were pending before the trial judge.

       {¶9}    On May 2, 2012, the trial judge overruled Father’s objections, which had been

generated prior to Relatives’ change of position, and granted legal custody to Relatives. Father

now appeals and assigns three errors for review.
                                                4


                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       GRANTING CHILDREN’S [SERVICES’] MOTION FOR LEGAL CUSTODY
       AND DENYING FATHER’S MOTION FOR LEGAL CUSTODY.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN AWARDING FATHER ITS STANDARD
       ORDER OF VISITATION.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       DENYING APPELLANT’S MOTION FOR CHANGE OF DISPOSITION AND
       BY DOING SO DENIED APPELLANT DUE PROCESS OF LAW.

       {¶10} We first address Father’s third assignment of error because it is dispositive. In

that assignment of error, Father argues that the trial court erred in denying him a hearing on his

motion to change disposition. Father claims that Relatives’ renunciation of their willingness to

assume legal custody is significant to the trial court’s determination of the child’s custodial

disposition and should have been explored in a hearing. In response, CSB argues that Father’s

motion is moot because, at some point prior to the hearing, Relatives again changed their

position. CSB’s contention is evidenced in the record only by the absence of any filing by

Relatives indicating that they did not wish to assume custody of A.S., but is not supported by

affirmative evidence.

       {¶11} We disagree with the assertion that the motion is moot. By their own words,

Relatives’ commitment to providing a permanent home for A.S. was placed in doubt. The

appropriate way to fairly address that doubt is through a hearing with the examination of

witnesses. The question is not settled or rendered moot by the fact that Relatives may have

changed their minds again. Legal custody is a permanent disposition and it is important to have
                                                 5


a full and fair evaluation of Relatives’ commitment and the reasons for their changed positions

before a permanent disposition is ordered.

       {¶12} On the merits, we initially observe that the juvenile court retains jurisdiction over

any child for whom the court issues certain orders of disposition until the child reaches maturity.

R.C. 2151.353(E)(1). See also R.C. 2151.417(B). Pursuant to that continuing jurisdiction, the

court may review at any time any aspect of the child’s placement or custody arrangement. R.C.

2151.417(A). In conducting the review, the court “shall determine * * * whether any changes

should be made” with respect to the child’s placement or custody arrangement. Id. “Based upon

the evidence presented at a hearing held after notice to all parties and the guardian ad litem of the

child, the court may require [the parties] to take any reasonable action that the court determines

is necessary and in the best interest of the child * * * .” Id. See also Juv.R. 14(C) (the court

shall conduct a hearing and modify orders, sua sponte or upon motion, in accordance with the

best interest of the child); Juv.R. 34(G) (permitting the parties to file a motion, or the court, sua

sponte, to modify or terminate “any order of disposition”).

       {¶13} Furthermore, it has been said that R.C. 2151.353(E)(2) “provides a mechanism to

modify or terminate” a juvenile court’s dispositional orders. See In re McBride, 110 Ohio St.3d

19, 2006-Ohio-3454, ¶ 10. Such modifications are guided by the best interest of the child. In re

M.Z., 9th Dist. No. 11CA010104, 2012-Ohio-3194, ¶ 11, citing R.C. 2151.415(F) and R.C.

2151.417(B); see also R.C. 2151.42(A). R.C. 2151.353(E)(2) provides that “any party, * * * by

filing a motion with the court, may at any time request the court to modify or terminate any order

of disposition.”    R.C. 2151.353(E)(2).      “The court may amend a dispositional order in

accordance with [R.C. 2151.353(E)(2)] at any time upon its own motion or upon the motion of

any interested party.” R.C. 2151.417(B). Moreover, R.C. 2151.353(E)(2) embodies due process
                                                  6


protections in stating that the trial court “shall hold a hearing upon the motion * * * and shall

give all parties to the action * * * notice of the hearing * * * .” R.C. 2151.353(E)(2). See also

R.C. 2151.417(A); In re Haller, 3d Dist. No. 9-08-01, 2008-Ohio-4304, ¶ 44.

       {¶14} Juv.R. 40 contemplates that new events may arise or be discovered between the

time of a magistrate’s decision and a trial judge’s final judgment, and the rule provides a

mechanism for the introduction of such evidence in a timely manner. See Juv.R. 40(D)(4)(b) and

(d), and Civ.R. 53(D)(4)(b) and (d). This is reasonable, given the fact that a magistrate’s

decision is not a final order and may be revised. Juv.R. 40(D)(4)(a) (“magistrate’s decision is

not effective unless adopted by the court.”); Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378,

379 (1981), fn. 1 (interlocutory orders are subject to change and may be reconsidered upon

court’s own motion or that of a party).       Juv.R. 40(D)(4)(b) permits the court to “hear a

previously-referred matter, take additional evidence, or return a matter to a magistrate” before

taking action on a magistrate’s decision.

       {¶15} Furthermore, when objections have been filed, Juv.R. 40(D)(4)(d) provides:

       Before [ruling on objections], the court may hear additional evidence but may
       refuse to do so unless the objecting party demonstrates that the party could not,
       with reasonable diligence, have produced that evidence for consideration by the
       magistrate.

“Thus, * * * although a court has discretion to refuse to consider new evidence, a court does not

have discretion to refuse to consider new evidence if the objecting party demonstrates that it

could not, with reasonable diligence, have presented the evidence to the magistrate.” Welch v.

Welch, 4th Dist. No. 12CA12, 2012-Ohio-6297, ¶ 12.            See also Johnson-Wooldridge v.

Wooldridge, 10th Dist. No. 00AP-1073, 2001 WL 838986, *2 (July 26, 2001). In such a case,

the court is required to hear the new evidence.
                                                 7


       {¶16} Accordingly, R.C. Chapter 2151 and the juvenile rules of procedure recognize

that matters involving child custody are fluid and may change. Through these provisions, the

trial court is kept informed of matters that may help to avoid unnecessarily inaccurate or

outdated decisions.     When making any modification of a dispositional order, the key

consideration for the court is the best interest of the child. In re G.R., 8th Dist. No. 83146, 2004-

Ohio-999, ¶ 21. In assessing such a motion, a determination of the best interest of a child “can

only be accomplished by considering all the evidence concerning [the child’s] custodial

placement.” (Emphasis added.) Id. at ¶ 26.

       {¶17} It is plain that the evidence at issue could not have been presented at the prior

dispositional hearing because it arose subsequent to that time. The evidence did not exist until

Relatives spoke up at a contempt hearing that took place after the dispositional hearing, after the

magistrate issued her decision, and after Father filed objections to that decision. Relatives’

statements are undoubtedly relevant to the question of whether Relatives should, in fact, be

granted legal custody. Therefore, a full examination of the reasons for that change and the

apparent subsequent reversal by Relatives should have been conducted and made available to the

trial judge before she made a final determination on the custodial disposition of the child.

       {¶18} Ohio courts have allowed the record to be supplemented with evidence that arises

during the interval between the magistrate’s decision and trial court’s judgment, an interval that

unfortunately can last a year or more. See, e.g., Welch v. Welch, 4th Dist. No. 12CA12, 2012-

Ohio-6297, ¶ 15 (allowing evidence of mother’s relocation to a better school district taking place

after the magistrate’s hearing on question of residential parent); Mizer v. Mizer, 5th Dist. No.

08CA0004, 2009-Ohio-1390, ¶ 41 (husband’s failure to notify court of his retirement occurring

after magistrate’s decision led to adoption of decision with inaccurate and outdated information);
                                                8


Noe v. Noe, 5th Dist. No. 07-COA-047, 2008-Ohio-1700, ¶ 20 (trial court erred in denying new

hearing on residential parent decision that was based on two-year old child care factors that no

longer existed).

       {¶19} The Fourth District has explained that the allowance of new evidence best serves

the child. Welch v. Welch, 4th Dist. No. 12CA12, 2012-Ohio-6297, ¶ 17.

       [W]e believe that it serves the child’s interest to permit a party to introduce
       evidence discovered subsequent to a magistrate’s hearing, but before the trial
       court’s final judgment. If the new evidence affects the child’s best interests, and
       if the court has not finalized a judgment, to further delay the consideration of that
       new evidence and to require a party to file a motion to modify will further delay
       what might be in the child’s best interests. Id.

       {¶20} Not only is the consideration of evidence arising subsequent to the initial hearing

before a magistrate in the best interest of a child, but it is also a matter of judicial economy.

“Economy is better served if a trial court considers the new evidence when the magistrate’s order

remains interlocutory and before the court enters a final judgment.” Welch at ¶ 19. See also

Jeffrey B. Peterson & Assoc. v. Dayton Metro. Hous. Auth., 2d Dist. No. 17306, 2000 WL

1006562, at *5 (July 21, 2000) (noting, approvingly, that the “matter was also raised at a time

when the decision could have been easily modified, if needed”). Thus, Ohio courts have given

weight to the principal of judicial economy and recognition to the fact that magistrate decisions

may be reconsidered by permitting evidence arising between the magistrate’s decision and the

trial court’s judgment to be heard.

       {¶21} In the present case, when Relatives renounced their interest in assuming legal

custody, the magistrate’s decision granting legal custody to Relatives along with Father’s

objections to that decision were already pending before the trial judge. On the day after their

renunciation, Father brought the new evidence to the attention of the trial judge. In his motion,

he explained that Relatives were no longer willing to have legal custody of the child and that
                                                9


they intended to file a document so stating. Father asked the trial judge to delay ruling on his

pending objections until after the February 13, 2012 hearing at which the magistrate was

expected to address this matter. On February 6, 2012, the trial judge granted Father’s motion for

a delay until after the February 13 2012 hearing, implicitly sanctioning the hearing and

acknowledging that the hearing may have an impact on the custody decision, but taking no action

to hear the motion herself.

       {¶22} Later on the same day, Father filed a motion to change the disposition of the child

and sought legal custody to himself instead. The motion was captioned with the names of both

the judge and the second magistrate. In his motion, Father asserted that it was not in the child’s

best interest to remain in the care of Relatives who no longer wanted custody. Father requested

that his motion for change of disposition be heard and suggested February 13, 2012, likely

because that was the time set by the magistrate for consideration of Relatives’ anticipated filing

on the same subject. The agency did not respond to the motion.

       {¶23} No hearing was conducted by either the magistrate or the trial judge at any time

regarding Relatives’ declaration that they no longer wanted to assume legal custody of A.S. As a

result, the trial judge granted legal custody to Relatives without having an explanation of the

reasons for Relatives’ changes in positions on legal custody.         Given the significance of

Relatives’ declaration and the pendency of the decision awarding legal custody to the same

individuals, the trial court should have undertaken to conduct a hearing or have the magistrate

conduct a hearing so that the resulting evidence could be considered in making a fair and

appropriate decision regarding a permanent custodial disposition.

       {¶24} Father might well have addressed this matter differently; however, we also

recognize that a trial court has the inherent authority to control its own docket and manage the
                                               10


cases before it. Flynn v. Flynn, 10th Dist. No. 03AP-612, 2004-Ohio-3881, ¶ 10, citing Moyer v.

Bristow, 91 Ohio St.3d 3, 7 (2000). The trial court had authority to take additional evidence or

return the matter to a magistrate for that purpose. Juv.R. 40(D)(4)(b). In exercising that

authority, “the trial court’s discretion must be exercised in a manner which best protects the

interest of the child.” Flynn, at ¶15, citing Bodine v. Bodine, 38 Ohio App.3d 173, 175 (10th

Dist.1988).

        {¶25} Nevertheless, Father brought Relatives’ renunciation of interest in legal custody

to the attention of the trial judge while the matter was still pending before her. Father filed

another motion, with the judge’s name affixed, seeking to change the disposition of A.S. for the

reason that the named custodians no longer wanted custody. He requested to be heard on the

matter and stressed the best interest of the child. Father’s two motions essentially constitute a

proffer of the evidence he sought to introduce and was entitled to introduce. See Flynn, at ¶ 22.

Father’s request that the motion be heard on February 13, 2012, was reasonable given that the

magistrate announced that she would hear Relatives present the opposing side of the same matter

at that time, and that the trial court had acknowledged the hearing in her order, essentially

granting a stay until that time.

        {¶26} Finally, basic notions of fairness and common sense suggest that when individuals

who stood, at the time, as the named custodians in documents pending before the trial judge have

just announced that they no longer wish to have that role, their willingness and appropriateness

to serve as legal custodians should be explored on the record, including being subject to cross-

examination, before a custodial disposition is finalized. To deny Father a hearing on this matter

is putting form far over substance. It has been said that “a court that considers child custody or

visitation issues should be guided by the child’s best interests, not a technical requirement that
                                                11


has the potential to actually negatively impact a child’s best interests. Welch v. Welch, 4th Dist.

No. 12CA12, 2012-Ohio-6297, ¶ 17. Under the unique facts of this case, Father should have

been permitted to explore the mindset of Relatives in regard to their inclinations and suitability

to assume legal custody of this child, and the trial court erred in failing to hear or to order a

hearing on the new evidence.

       {¶27} We caution that, while it may be possible that not every offering of “new

evidence” will meet a threshold level of requiring a hearing, we need not reach that question in

this case because the in-court declaration by the named legal custodians of their unwillingness to

assume that status certainly meets that threshold. In addition, we do not mean to imply that we

believe there is a problem with the child’s current placement. We take no position on that issue,

but simply find that circumstances warranted a further hearing as noted.            Father’s third

assignment of error is sustained.

                                                III.

       {¶28} Father’s third assignment of error is sustained.            Father’s remaining two

assignments of error are rendered moot. The judgment of the Summit County Court of Common

Pleas, Juvenile Division, is reversed and the cause remanded for a full dispositional hearing.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                12


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
BROGAN, J.
CONCUR.

(Brogan, J., retired, of the Second District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)


APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

LINDA SELL, Attorney at Law, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.
