[Cite as In re K.G., 2020-Ohio-4117.]


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

IN RE: K.G.                                           C.A. No.       29668



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 18-05-0483

                                 DECISION AND JOURNAL ENTRY

Dated: August 19, 2020



         SCHAFER, Judge.

         {¶1}    Appellant A.D. (“Grandmother”) appeals the judgment of the Summit County

Court of Common Pleas, Juvenile Division, that denied her motion for legal custody of her

grandchild K.G. and placed the child in the legal custody of appellee R.G. (“Grandfather”). This

Court affirms.

                                                 I.

         {¶2}    Mother and Father are the biological parents of K.G. (d.o.b. 3/12/16). Grandmother

and Grandfather are the paternal grandparents of the child. Grandmother and Grandfather were

married and divorced many years ago, and each has remarried. The grandparents, along with their

spouses, have homes in California, where they reside approximately 30 minutes away from each

other.

         {¶3}    K.G. was born prematurely and at the parents’ home, as Mother did not realize that

she was pregnant. Immediately after his birth, the infant suffered two rib fractures due to
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resuscitative efforts by paramedics. When the child was mature enough to be released from the

hospital, he went home with his parents.

       {¶4}    When Mother later took the child for a well-baby check, the doctor referred him for

additional care based on the child’s weight loss. At that point, medical providers determined that

the child had suffered multiple additional fractures to his ribs, clavicle, and femur. The injuries

were diagnosed as nonaccidental trauma, and the hospital made a referral to Summit County

Children Services Board (“CSB” or “the agency”).

       {¶5}    Based on the child’s injuries, as well as other concerns, CSB filed a complaint

alleging that K.G. was an abused, neglected, and dependent child. Mother and Father later waived

their rights to an adjudicatory hearing and stipulated that K.G. was dependent. CSB withdrew its

allegations of abuse and neglect. By further agreement of the parties, the child was placed in the

temporary custody of the agency. The juvenile court adopted the agency’s proposed case plan as

an order of the court. The goal at that time was reunification of the child with his parents.

       {¶6}    Immediately thereafter, CSB moved to modify the child’s disposition to an order

of temporary custody to non-relative kinship caregivers with protective supervision by the agency.

The kinship caregivers resided in Summit County, Ohio. Mother and Father agreed to that change

in disposition. CSB then initiated Interstate Compact for the Placement of Children (“ICPC”)

assessments for both Grandmother and Grandfather in California.

       {¶7}    Ten months into the case, CSB moved for a first six-month extension of temporary

custody to the kinship caregivers. Although Mother and Father were noncompliant with their case

plan objectives, the ICPC assessments for both Grandmother and Grandfather were expected to be

completed soon. In the meantime, both grandparents were granted leave to intervene as parties in

the case. Grandmother and Grandfather each filed a motion for legal custody of the child. At the
                                                 3


time of the sunset hearing, Grandfather had been approved for placement, while Grandmother’s

assessment remained pending. The juvenile court ordered a six-month extension of temporary

custody to the kinship caregivers with protective supervision by CSB. In addition, the court

granted Grandfather’s motion for extended visitation with the child.

       {¶8}    CSB filed a notice that the agency and Grandfather agreed that K.G. would spend

the entire month of July 2019, with Grandfather in California. During that time, Grandfather was

required to allow Grandmother visitation with the child without restrictions as to frequency,

duration, and location, except that Grandmother could not have overnight visitations during that

time. After Grandmother’s ICPC assessment was approved in August 2019, she too was granted

an extended visitation with the child in California, spanning three weeks in September and October

2019. Grandmother was required to allow Grandfather to visit with the child during that time.

During both periods of extended visitation in California, each grandparent was required to

facilitate contact between the child and his parents.

       {¶9}    After Grandfather’s extended visitation, but before Grandmother’s, CSB filed a

motion to modify the child’s disposition from temporary custody to kinship caregivers to legal

custody to a relative, specifically Grandfather. Grandmother and Grandfather each maintained

their respective motions for legal custody.          Each grandparent submitted a statement of

understanding for legal custody.

       {¶10} At the final dispositional hearing, CSB orally withdrew its motion for legal custody

to Grandfather. Instead, the assistant prosecutor asserted that the agency was not opposed to an

award of legal custody to either grandparent, as each had been approved via ICPC assessment and

their respective extended visitations went well. The guardian ad litem also remained neutral and

recommended an award of legal custody to either grandparent, with a standard order of visitation
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for the other. She further recommended that Mother and Father have a minimum of two hours,

twice a week, of supervised phone, video, or in-person visitation with the child.

       {¶11} After a hearing, the magistrate recommended granting Grandfather’s motion for

legal custody, giving Grandmother visitation two weekends per month, and allowing limited

supervised visitation for Mother and Father. The juvenile court adopted the magistrate’s decision

the same day and ordered the case closed. Both Mother and Grandmother filed timely objections.1

Grandfather moved to lift the automatic stay imposed based on the pending objections and for

placement of K.G. with him in the interim in the interest of stability and permanency for the child,

given that both viable legal custodians resided in California. The juvenile court initially denied

the motion to lift the stay, but later granted it and ordered K.G. to be placed in California where

he would spend alternating two-week periods with Grandfather and Grandmother pending the

resolution of the objections and any appeals.

       {¶12} The juvenile court subsequently overruled Mother’s and Grandmother’s objections.

It awarded legal custody to Grandfather, as well as visitation for Grandmother, Mother, and Father.

Grandmother filed a timely appeal in which she raises three assignments of error for review. This

Court consolidates some assignments of error to facilitate review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       The trial court abused its discretion in not allowing [Grandmother] to call rebuttal
       witnesses following [Grandfather’s] testimony.




       1
          CSB also filed objections regarding the closing of the case. The agency argued that it
was statutorily required to provide ongoing supervision for up to six months pending the receiving
state’s agreement to terminate the sending state’s jurisdiction.
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       {¶13} Grandmother argues that the juvenile court erred by refusing to allow her to recall

herself as a rebuttal witness after Grandfather’s testimony. This Court disagrees.

       {¶14} This Court recognizes:

       “Rebutting evidence is that given to explain, refute, or disprove new facts
       introduced into evidence by the adverse party; it becomes relevant only to challenge
       the evidence offered by the opponent, and its scope is limited by such evidence.”
       State v. McNeill, 83 Ohio St.3d 438, 446 (1998). “A party has an unconditional
       right to present rebuttal testimony on matters which are first addressed in an
       opponent’s case-in-chief and [is not testimony that should have been presented] in
       the rebutting party’s case-in-chief.” Phung v. Waste Mgmt. Inc., 71 Ohio St.3d 408,
       410 (1994). The trial court has discretion to determine which proper rebuttal
       evidence may be admitted. State v. Carrasquillo, 9th Dist. Lorain No.
       09CA009639, 2010-Ohio-5063, ¶ 16.

Estate of Hall v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 24066, 2011-Ohio-60, ¶ 4. “To

reverse on the basis of an abuse of discretion, this Court must conclude that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling.” In re L.R., 9th Dist. Lorain Nos.

18CA011378 and 18CA011385, 2019-Ohio-1152, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       {¶15} On appeal, Grandmother argues that the juvenile court abused its discretion by

refusing to allow her to rebut Grandfather’s testimony that Grandmother enabled Father’s

substance abuse, that Grandmother historically failed to comply with the grandparents’ shared

parenting plan when Father was a child, and that Father had expressed the desire that Grandfather

have legal custody of the child. During the legal custody hearing, however, Grandmother

requested the opportunity to rebut Grandfather’s testimony based merely on a “bunch of

accusations that came out * * *.” In an attempt to clarify the new issues she wished to rebut,

Grandmother’s attorney merely stated that “[t]here were just a few things that were dangling out

there that I’m not terribly comfortable just kind of leaving as they sat.” Grandmother failed to

identify with any specificity Grandfather’s testimony she planned to rebut. Accordingly, the
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juvenile court could not determine whether it was proper to permit Grandmother to recall herself

as a rebuttal witness. Moreover, because Grandmother failed to proffer her rebuttal testimony, this

Court is likewise unable to determine whether the juvenile court’s refusal to allow Grandmother

to present rebuttal evidence was unreasonable. See Minson v. Cook, 9th Dist. Summit No. 23972,

2008-Ohio-5231, ¶ 10. Grandmother’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       The trial court’s [judgment] was against the manifest weight of [the] evidence.

                                 ASSIGNMENT OF ERROR III

       The trial court’s [judgment] was not in the best interest of the minor child.

       {¶16} Grandmother argues that the juvenile court’s judgment was against the manifest

weight of the evidence as it was contrary to the best interest of the child. This Court disagrees.

       On appeal, an award of legal custody will not be reversed if the judgment is
       supported by a preponderance of the evidence. Preponderance of the evidence
       entails the greater weight of the evidence, evidence that is more probable,
       persuasive, and possesses greater probative value. In other words, when the best
       interest of the child is established by the greater weight of the evidence, the trial
       court does not have discretion to enter a judgment that is adverse to that interest.
       Thus, our standard of review is whether a legal custody decision is against the
       manifest weight of the evidence.

(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-

Ohio-2685, ¶ 7.

       {¶17} In considering whether the juvenile court’s judgment is against the manifest weight

of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman,
                                                   7


132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always

be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶18} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s

determination of whether to place a child in the legal custody of a parent or a relative is based

solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,

¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or

set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal

custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-

7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard,

the juvenile court is guided by the best interest factors enunciated in R.C. 2151.414(D) relating to

permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In re

T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those factors include the interaction

and interrelationships of the child, the child’s wishes, the custodial history of the child, the child’s

need for permanence, and whether any of the factors in R.C. 2151.414(E)(7)-(11) are applicable.

R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist. Summit Nos. 26976, 26977, 2014-Ohio-

2748, ¶ 16. In addition, the juvenile court may also look to the best interest factors in R.C.

3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-

Ohio-1, ¶ 17. While some factors overlap with those above, others include the child’s adjustment

to his or her environment; the mental and physical health of all persons involved; the parents’

history of providing support and honoring companionship orders; certain indicia of violence,

abuse, or neglect in any household involved; and whether a parent plans to or has established a

residence outside of Ohio. R.C. 3109.04(F)(1).
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        {¶19} Initially in the proceedings below, CSB supported an award of legal custody of the

child to Grandfather. The agency withdrew its motion for legal custody to Grandfather at the start

of the hearing, citing the “need to just stay neutral[,]” given the ICPC approval of both

grandparents’ homes. The guardian ad litem also declined to recommend one of the grandparents

over the other. Although she reported that joint custody of the child by Grandmother and

Grandfather would be ideal, the guardian ad litem acknowledged that neither grandparent was

willing to enter into such an agreement, given their prior difficulties managing shared parenting of

Father as a child. Therefore, the guardian ad litem opined that legal custody of K.G. to either

would be in the child’s best interest. On appeal, CSB maintains its neutrality after filing a notice

of nonparticipation in the briefing to this Court. The guardian ad litem has also not filed an

appellate brief.

        {¶20} There is no dispute that neither Mother nor Father is a suitable custodian for the

child. The parents failed to comply with their case plan objectives to address significant concerns

regarding substance abuse, parenting, and the ability to meet the child’s basic needs. Accordingly,

the only consideration before the juvenile court was whether the best interest of the child would

be met by an award of legal custody to either Grandmother or Grandfather.

        {¶21} Both the caseworker and the guardian ad litem testified that the significant

considerations for the placement of every child include the safety of the home environment,

whether the caregiver can meet the child’s basic needs, and the bond between the child and

caregiver. A safe and stable home, where a child feels secure and is nurtured meets the best interest

of the child.

        {¶22} In this case, both grandparents’ homes were thoroughly vetted for suitability. All

household members were subjected to background checks. The ICPC assessments concluded that
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Grandmother’s and Grandfather’s homes were equally and unreservedly appropriate for K.G.

Father has half-siblings living in each home, so the child has exposure to extended family wherever

he resides. Although Grandfather’s home is much larger than Grandmother’s, the child would

have his own bedroom in each.

        {¶23} Both grandparents live in safe neighborhoods, with access to nearby parks and

playgrounds. The child would attend daycare for purposes of socialization regardless of who was

his legal custodian. Grandmother and Grandfather each had developed a plan for the child’s later

education in school.

        {¶24} The grandparents and their spouses all work, but one adult in each household has a

flexible schedule which would facilitate accommodating the child’s schedule and needs.

Grandmother and Grandfather each recognized the spouse of the other as another grandparent to

the child.

        {¶25} There were no concerns during the child’s extended visits in California with either

grandparent. The child acclimated to each home environment, where all his basic needs were met.

Both grandparents ensured that the child engaged in stimulating activities.

        {¶26} Grandmother’s main argument for reversal is her allegation that Grandfather would

not facilitate K.G.’s relationship with other people significant to the child. There is no dispute that

Grandmother’s and Grandfather’s relationship was difficult when they shared joint custody of

Father as a child. In addition, Mother has a strained relationship with Grandfather, which

Grandfather attributes to the role he played in encouraging CSB involvement based on concerns

about Mother’s and Father’s drug use.

        {¶27} The evidence established that Grandfather facilitated contact between the child and

others outside of Grandfather’s home. Grandmother had physical possession of the child for
                                                10


several days during Grandfather’s extended visit. In addition, Grandmother enjoyed video calls

with the child on a regular basis. In fact, Grandfather enabled daily contact for the child with

Grandmother and the kinship caregiver on alternating days. Grandfather remained in contact with

Father, as well, as Father awaited the resolution of criminal charges in South Carolina. Although

Grandfather called and texted Mother approximately 22 times during the child’s month-long stay,

Mother never answered any calls or texts. Late in the visit, Grandfather sought an alternative

phone number for Mother from Grandmother. Mother failed to respond to any communications

from Grandfather at that number either.       The parties agreed that, given Mother’s strained

relationship with Grandfather, she might be loath to accept any calls from him. In any event,

Grandfather attempted repeatedly to facilitate the child’s contact with Mother.

       {¶28} The CSB caseworker testified that Grandfather facilitated adequate family contact

for the child during his extended visit. Moreover, the caseworker believed that Grandfather would

continue to do so in the future. When the guardian ad litem presented her report, she testified that

she had witnessed Grandfather’s attempts to contact Mother. Accordingly, despite Mother’s

concerns that Grandfather would impede her contact with K.G., the guardian ad litem reported that

she had no reason to believe that Grandfather would not facilitate the child’s contact with his

family. Grandfather executed an affidavit of understanding for legal custody and also testified that

he understood the parents’ right to have contact with the child.

       {¶29} Based on a thorough review of the evidence, this Court cannot say that this is the

exceptional case in which the juvenile court clearly lost its way and committed a manifest injustice

in awarding legal custody to Grandfather, rather than to Grandmother. Both grandparents were

approved for placement via ICPC assessments, and both are capable of meeting the basic needs of

the child. Extended visits in the homes of both Grandmother and Grandfather went well. The
                                                11


child enjoyed visits and contacts during those extended visitations with other family members.

The agency and guardian ad litem each remained neutral, explaining that the child’s best interest

and basic needs would be met in either grandparent’s home. As the record does not demonstrate

that the juvenile court’s award of legal custody to Grandfather was against the manifest weight of

the evidence, this Court declines to reverse the lower court’s judgment. Grandmother’s second

and third assignments of error are overruled.

                                                III.

       {¶30} Grandmother’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                               Judgment affirmed.




       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.

       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.
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      Costs taxed to Appellant.




                                              JULIE A. SCHAFER
                                              FOR THE COURT



CALLAHAN, P. J.
CARR, J.
CONCUR.


APPEARANCES:

ROBERT C. ALDRIDGE, Attorney at Law, for Appellant.

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

TAD ORVAL HOOVER and CHERYL L. GREEN, Attorneys at Law, for Appellee.

DAVID LOWRY, Attorney at Law, for Appellee.

LAURIE M. BOVEINGTON, Attorney at Law, for Appellee.

SHUBHRA AGARWAL, Guardian ad Litem.
