[Cite as In re A.M.S., 2012-Ohio-5078.]




                    Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98384




                                          IN RE: A.M.S.
                                          A Minor Child

                                     (Appeal by Mother)


                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                        Juvenile Division
                                     Case No. CU-06110796

             BEFORE:           Blackmon, A.J., Jones, J., and S. Gallagher, J.

             RELEASED AND JOURNALIZED:                        November 1, 2012
ATTORNEY FOR APPELLANT

Mary V.G. Walsh
4403 St. Clair Avenue
Euclid, Ohio 44103


ATTORNEY FOR APPELLEE

Teddy Sliwinski
5800 Fleet Avenue
Cleveland, Ohio 44105

GUARDIAN AD LITEM

Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant E.S. 1 (“mother”) appeals the decision of the Cuyahoga County

Court of Common Pleas, Juvenile Division, reallocating parental rights of her son, A.M.S.,

to his father, appellee, A.K.   Mother assigns the following errors for our review:

       I. The trial court erred in finding that there had been a change of
       circumstances of the minor child or his legal custodian.

       II. The trial court abused its discretion in changing custody of the
       child.

       {¶2} Having reviewed the record and pertinent law, we affirm the juvenile court’s

decision.2 The apposite facts follow.

       {¶3} Pursuant to an agreed judgment entry, dated May 12, 2008, mother was

awarded custody of the parties’ son, A.M.S. (d.o.b. 3/9/2006). A.M.S. was born with a

hole in his heart, had undergone surgery in 2007, and will undergo more surgeries as he

grows older.

       {¶4} The custodial agreement required mother to take A.M.S. to his doctor’s

appointments and to share son’s medical information with father. Mother and father were

also required to go through family counseling.      In addition, because father had pleaded




       1
        The parties are referred to herein by their initials or title in accordance with
this court’s established policy regarding nondisclosure of identities in juvenile cases.
       2
        Although our review has been limited, nothing herein precludes mother from
filing a motion to modify parental rights if a change in circumstances occurs. See
R.C. 3109.04. In re B.W., 8th Dist. Nos. 96550 and 96551, 2011-Ohio-4513.
guilty to telephone harassment of mother, there was supervised visitation with A.M.S. at a

neutral location until father’s probation ended.

       {¶5} On June 21, 2011, father filed a motion for an emergency hearing alleging that

mother was consistently late for the supervised visitation, had failed to provide medical

information as required, and that A.M.S. was seriously overweight. Later, in September

2011, father filed a motion to hold mother in contempt for consistently being late for the

supervised visitation. At a hearing on November 18, 2011, mother agreed to have A.M.S.

visit with father for a full week at his home to make up for the missed time.

       {¶6} In November 2011, father refiled a previously withdrawn motion to modify

custody of A.M.S. The hearing was conducted on March 30, 2012. At the hearing,

father testified that he was extremely concerned that A.M.S. was very overweight in light

of his heart condition, that mother was not taking the appropriate steps to address son’s

weight gain, and guard against the early onset of diabetes that is prevalent in father’s

family. Father stated that mother’s smoking around A.M.S. poses an additional risk, and

that, at times, he has smelled secondhand smoke on their son.

       {¶7} Father also testified that A.M.S. has a “crooked foot” that he brought to

mother’s attention a year ago, but she had failed to have their son seen by a podiatrist.

Father stated that mother has missed doctor’s appointments, has been uncooperative when

he offers to take A.M.S. to the appointments, and continues to inadequately update him

when the appointments are kept.
       {¶8} In addition, father testified that he is concerned that mother allows her

stepfather, who was verbally and physically abusive to her, to babysit A.M.S. Father also

stated that mother also allows niece’s boyfriend, a convicted heroin felon, to babysit

A.M.S.

       {¶9} Father further testified that mother once filed a police report stating that

A.M.S. was abused by children in father’s neighborhood.            Mother reported it to

696-KIDS, and after an investigation, the report was found to be unsubstantiated. Father

stated that for a while after mother’s allegation, some of the children stopped playing with

A.M.S.

       {¶10} Finally, father testified that he is now retired and thus available to provide

the full-time care and attention that A.M.S. needs to combat his health condition. Father

stated that he has been working to bring down A.M.S.’s weight through proper nutrition

and that he had begun to lose weight. Father testified that his fiancee, who lives with

him, is a registered nurse and has been helping A.M.S. to lose weight. Father stated that

his home is located in a better school district than mother’s and A.M.S. would make more

progress academically if custody was transferred.

       {¶11} Mark Witt, the guardian ad litem (“GAL”) for A.M.S., also testified about

the medical issues surrounding the parties’ son, confirmed that there were communication

difficulties between the father and mother regarding A.M.S.’s well being.        The GAL

confirmed that A.M.S. was very overweight given his heart condition, that he had a
“crooked foot” that had not been addressed, and that there was a lack of medical

attentiveness on the part of the mother.

       {¶12} The GAL testified that although A.M.S. was well adjusted at both homes and

that both parents provided good environments in the respective locations, A.M.S.

expressed a desire to live with his father. The GAL testified that the father had a bigger

home with a large yard, that A.M.S. had developed friendships with other children in the

neighborhood, and that he had a good relationship with father’s fiancee. The GAL

recommended that the trial court should award custody to the father.

       {¶13} Mother testified that she advised father of A.M.S.’s medical appointments

via email through the neutral visitation center and more recently through direct emails.

Mother testified that she has been addressing medical needs, that she does not smoke in

the house, and that her niece’s boyfriend does not babysit A.M.S.

       {¶14} After hearing the testimony, the magistrate recommended that custody be

transferred immediately to father. On April 16, 2012, mother filed her objections to the

magistrate’s recommendation.       On April 19, 2012, the trial        court adopted the

magistrate’s recommendation and awarded custody of A.M.S. to his father.

       {¶15} Thereafter, mother requested finding of fact and conclusion of law. On

May 18, 2012, mother filed the instant appeal, which rendered her request for finding of

fact and conclusion of law moot.

                     Child Custody and Change of Circumstances
       {¶16} We will address both assigned errors together because of their common basis

in fact and law. Mother argues the trial court erred when it transferred custody of A.M.S.

to his father.

       {¶17} Decisions concerning the allocation of parental rights and responsibilities rest

within the sound discretion of the trial court. In re D.J.R., 8th Dist. No. 96792,

2012-Ohio-698, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674

N.E.2d 1159. An abuse of discretion is more than an error in law; rather it connotes that

the trial court’s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Under the abuse of discretion

standard, an appellate court may not merely substitute its judgment for that of the trial

court. Id.

       {¶18} As explained in In re L.S., 152 Ohio App.3d 500, 2003-Ohio-2045, 788

N.E.2d 696 (8th Dist.):

        [W]here there exists competent credible evidence to support an award
        of custody, there is no abuse of discretion. * * * Davis [v. Flickinger
        (1997)], 77 Ohio St.3d at 418, 674 N.E.2d 1159. This highly deferential
        standard of review rests on the premise that the trial judge is in the best
        position to determine the credibility of witnesses because he or she is
        able to observe their demeanor, gestures, and attitude. Seasons Coal Co.
        v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273.
        This is especially true in a child custody case, since there may be much
        that is evident in the parties’ demeanor and attitude that does not
        translate well to the record. Davis, 77 Ohio St.3d at 419, 674 N.E.2d
        1159.

        {¶19}    Pursuant to R.C. 2151.23(A)(2), the juvenile court has jurisdiction “to

determine the custody of any child not a ward of another court of this state * * *.”
Pursuant to R.C. 2151.23(F)(1), the best interest standard set forth in R.C. 3109.04 applies

in initial actions to allocate parental rights in cases involving children of unmarried

parents. See also In re Poling, 64 Ohio St.3d 211, 1992-Ohio-144, 594 N.E.2d 589 (1992);

Francis v. Westfall, 7th Dist. No. 03-JE-21, 2004-Ohio-4543; In re Custody of Shepherd,

4th Dist. No. 98 CA 2586, 1999 Ohio App. LEXIS 1238.

       {¶20} Pursuant to R.C. 3109.04(F)(1), the court must consider:

       (a) The wishes of the child’s parents regarding the child’s care;

       (b) If the court has interviewed the child in chambers pursuant to
       division (B) of this section regarding the child’s wishes and concerns as
       to the allocation of parental rights and responsibilities concerning the
       child, the wishes and concerns of the child, as expressed to the court;

       (c) The child’s interaction and interrelationship with the child’s parents,
       siblings, and any other person who may significantly affect the child’s
       best interest;

       (d) The child’s adjustment to the child’s home, school, and community;

       (e) The mental and physical health of all persons involved in the
       situation;

       (f) The parent more likely to honor and facilitate court-approved
       parenting time rights or visitation and companionship rights;

       (g) Whether either parent has failed to make all child support payments,
       including all arrearages, that are required of that parent pursuant to a
       child support order under which that parent is an obligor;

       (h) Whether * * * there is reason to believe that either parent has acted
       in a manner resulting in a child being an abused child or a neglected
       child;

       (i) Whether the residential parent or one of the parents subject to a
       shared parenting decree has continuously and willfully denied the other
       parent’s right to parenting time in accordance with an order of the
       court; * * *.

       {¶21} Applying the foregoing, we conclude that the trial court did not abuse its

discretion in awarding custody of A.M.S. to father. The record demonstrates that the trial

court considered the factors outlined in R.C. 3109.04(F)(1), and in particular A.M.S.’s

health. The evidence established that A.M.S., who was born with a hole in his heart, was

significantly overweight.     At the time of the hearing, A.M.S. was six years old,

approximately four feet tall, and weighed 91 pounds. Father testified that the normal

weight-height range should have been between 60-65 pounds.

       {¶22} We have reviewed pictures of A.M.S. by himself, as well as, in the company

of other boys of similar height, and it is readily apparent that A.M.S. is overweight.

Given A.M.S.’s health condition, a 30 pound deviation from the normal weight-height

range poses a severe health risk. In addition, said deviation indicates that A.M.S.’s

weight was not being adequately monitored or properly addressed while in mother’s care.

       {¶23} We conclude that this was credible evidence of a change in circumstances to

justify the trial court’s decision awarding custody to father. We also conclude that there

was credible evidence that it was in the best interest of A.M.S. to have custody awarded to

his father. At the hearing, the father testified as follows about the steps he was taking to

address A.M.S.’s weight:

       So I took [A.M.S.] to the nutritionist and I’m guessing in November
       because I had concerns about his weight. I took him there. They give
       us a new diet plan. I made [E.S.] aware of that diet plan and since then
       - - I had him for about ten days straight and I got his weight down about
       five pounds in ten days with him being with us.
       {¶24} Here, the record indicates that father is very proactive regarding son’s health

concerns and is making progress in managing A.M.S.’s weight. In addition, the GAL

testified that although A.M.S. is well adjusted at both homes, he has expressed the desire

to live with his father. On this evidence, we find no abuse of discretion in the trial court’s

decision to adopt the magistrate’s recommendation that father should be awarded custody.

Accordingly, we overrule both assigned errors.

       {¶25} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR
