[Cite as In re K.S., 2013-Ohio-959.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: K.S.                                         :

                                                    :            C.A. CASE NO.     25335

                                                    :            T.C. NO.   JC 2003-10203

                                                    :            (Civil appeal from Common
                                                                 Pleas Court, Juvenile Division)
                                                    :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the    15th       day of      March        , 2013.

                                            ..........

KYRA W.
     Plaintiff-Appellant

WILLIAM S.
     Defendant-Appellee

                                            ..........

PER CURIAM:

                 {¶ 1} Kyra W. appeals from a judgment of the Montgomery County Court

of Common Pleas, Juvenile Division, which denied her motion for shared parenting and a
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change of custody. For the following reasons, the trial court’s judgment will be affirmed.

       {¶ 2}    K.S., born in 2003, is the child of Kyra and William. Shortly after K.S.’s

birth, Montgomery County Children Services filed a dependency complaint in the juvenile

court, based on concerns regarding Kyra’s drug use and severe mental health problems.

Kyra retained custody of K.S., but with protective supervision by the agency. A semiannual

review, dated August 2004, noted that K.S. was in Kyra’s custody, but William was the

child’s primary caregiver.

       {¶ 3}     In February 2005, William moved to be named the residential parent of

K.S. Later that year, William was granted legal custody of K.S., and Kyra was granted

supervised visitation at Erma’s House. However, Kyra spoke inappropriately to Erma’s

House staff and Kyra refused Erma’s House’s services; thereafter, visitation was supervised

by family members. Kyra filed numerous motions for change of custody in 2006, 2008,

2009 and 2010. Each of the motions was denied; none of the juvenile court’s decisions was

appealed.

       {¶ 4}    On November 16, 2011, Kyra filed a motion for shared parenting and a

change of custody. After a hearing before a magistrate, the magistrate denied the motion.

Kyra filed objections to the magistrate’s ruling, but did not provide a transcript of the

hearing. On July 25, 2012, the juvenile court overruled the objections and adopted the

magistrate’s decision.

       {¶ 5}    Kyra appeals from the juvenile court’s judgment. Kyra has not articulated

any specific assignments of error, as required by App.R. 16. However, in her appellate

brief, she argues that the trial court should have granted her motion, as K.S. was being
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neglected by her father and awarding custody to Kyra was in K.S.’s best interest.             A

transcript of the magistrate’s hearing was prepared for the appeal.

        {¶ 6}    In order to prevail on a motion for reallocation of parental rights, the

movant must demonstrate that (1) there has been a change in the circumstances of the child

or the residential parent, (2) modification of the existing custody decree is necessary to serve

the child’s best interest, and (3) the harm likely to be caused to the child by a change of

environment is outweighed by the advantages of the change of environment. R.C.

3109.04(E)(1)(a); Chaney v. Chaney, 2d Dist. Montgomery No. 24880, 2012-Ohio-626,

¶ 10.

        {¶ 7}    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, 674 N.E.2d 1159 (1997).             “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

paragraph two of the syllabus. We review a trial court’s ruling on a motion for reallocation

of parental rights for an abuse of discretion. Chaney at ¶ 9; Musgrove v. Musgrove, 2d Dist.

Montgomery No. 24640, 2011-Ohio-4460, ¶ 7.

        {¶ 8}    Kyra was the sole witness at the hearing on her motion for change of

custody. She testified that she was “sentenced” to Erma’s House, but she was asked not to

come back after she complained about sexual harassment.               (An employee called her

“darling.”) Kyra indicated that she had planned to donate “Christian games” and money to

Erma’s House prior to being discharged from the program.
[Cite as In re K.S., 2013-Ohio-959.]
        {¶ 9}      Kyra stated that K.S. came for visitation with “all kinds of bites” and

wearing the same clothes. She stated that K.S.’s tooth was black the last time she saw it,

and the tooth ended up being pulled. Kyra reported that K.S. was failing school. She

claimed that William was “sewing [sic] bad seeds in my child.”

        {¶ 10} Kyra claimed that she could provide for K.S. and make sure her needs were

met, that she could educate K.S. “on college work,” and that she wanted to “sew righteous

seeds in her.” Kyra stated that she could be participating in the PTA and taking K.S. to

Zumba classes with her to help with K.S.’s weight. She would not allow K.S. to watch

television, but would get educational DVDs. Kyra stated that she had changed her own

behavior for the better. She said she “was getting right with God.”

        {¶ 11} William did not testify at the hearing, but he told the magistrate that K.S.

was doing well in school, that she went to the dentist, that her hair gets done every other

week in braids, and everything was okay at home.

        {¶ 12}     The magistrate made the following findings of fact:

        1.       The mother filed a petition for custody and for shared parenting of this

                 child on November 16, 2011;

        2.       The child was placed in the legal custody of the father by Court order

                 issued August 31, 2006, and has been in his custody since that date;

        3.       The mother last filed a petition for custody on September 9, 2010 and

                 that motion was overruled by decision issued June 30, 2011;

        4.       The mother has not had any parenting time with the child in at least

                 over one year, and prior to that time, she had parenting time at Erma’s

                 House but was discharged from Erma’s House by staff there for
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                violation of rules;

       5.       The mother stated she should be granted custody because she could

                educate the child at college level, she would get extra weight off the

                child, she would see that the child never had to go to the dentist

                because she would make her brush and floss, she could do PTA, she

                would not allow the child to watch public TV, she would not give the

                child sugary drinks and snacks, she had the heart and desire to have

                custody of the child and she had changed and matured and was not

                living an evil life;

       6.       The mother further testified that Erma’s House staff were unfair and

                she had intended to donate Christian games and other things but they

                discharged her from the program instead;

       7.       The father stated that [the] child was doing well in school and home.

       {¶ 13} In its conclusions of law, the magistrate stated that there was no testimony

that any circumstances had significantly changed since custody was last determined, that

modification of the custody order would be in K.S.’s best interest, or that the benefit of

changing custody would outweigh the harm of a change in environment. The magistrate

noted that the court was required to retain William as the residential parent absent findings

under R.C. 3109.04(E)(1)(a). The magistrate found that Kyra “wants a change of custody

because she has changed, not because circumstances of the custodian or child have

changed.” The magistrate ordered that William remain K.S.’s custodian.

       {¶ 14}     Although a transcript of the June 11, 2012 hearing was prepared for appeal,
                                                                                               6

the transcript was not provided to the trial court. Kyra’s objections argued that William had

lied when he said K.S. was fine, and she asserted that K.S. was infected with ringworm and

was not well cared for. The trial court reviewed the magistrate’s findings and found that,

“[o]n its face, the decision of the Magistrate does not appear to be unjust, unreasonable, or in

plain error.”

        {¶ 15}   Given Kyra’s failure to provide a transcript to the trial court, the trial court

did not err in adopting the magistrate’s findings of fact. And, even if we considered the

transcript on appeal, we would conclude that the magistrate’s rulings were amply supported

by the testimony. We agree with the magistrate and the trial court that Kyra failed to

demonstrate that K.S. or William had a substantial change of circumstances that warranted a

change of custody to Kyra, that the change would be in K.S.’s best interest, or that the

advantages of the change outweighed the harm.

        {¶ 16} The trial court’s judgment will be affirmed.

                                         ..........

DONOVAN, J., FROELICH, J., and HALL, J., concur.

Copies mailed to:

Kyra W.
William S.
Hon. Anthony Capizzi
