[Cite as Bowman v. Mizer, 2018-Ohio-3453.]


                                      COURT OF APPEALS
                                     KNOX COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                     JUDGES:
WHITNEY MIZER NKA BOWMAN                     :       Hon. W. Scott Gwin, P.J.
                                             :       Hon. William B. Hoffman, J.
                       Plaintiff-Appellant   :       Hon. Patricia A. Delaney, J.
                                             :
-vs-                                         :
                                             :       Case No. 18-CA-05
JAMIE MIZER                                  :
                                             :
                    Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                         Civil appeal from the Knox County Court of
                                                 Common Pleas, Domestic Relations
                                                 Division, Case No. 10DC09-0179



JUDGMENT:                                        Reversed and Remanded




DATE OF JUDGMENT ENTRY:                          August 27, 2018

APPEARANCES:

For Plaintiff-Appellant                          For Defendant-Appellee

NOEL B. ALDEN
103 South Main Street
Mount Vernon, OH 43050
[Cite as Bowman v. Mizer, 2018-Ohio-3453.]


Gwin, P.J.

        {¶1}    Appellant appeals the February 27, 2018 judgment entry of the Knox County

Court of Common Pleas, Domestic Relations Division, finding neither parent to be fit and

certifying the matter to the Knox County Court of Common Pleas, Juvenile Division.

                                        Facts & Procedural History

        {¶2}    Appellant/Mother and Father were married on July 23, 2005. The parties

had two children, B.M., born on December 14, 2006 and B.L.M., born on March 2, 2009.

The parties were granted a divorce on April 18, 2012. Appellant was designated the

residential parent and legal custodian of the children and Father was granted parenting

time. On March 18, 2016, appellant filed a motion for ex parte temporary custody of the

children. Also on March 18, 2016, the trial court granted appellant’s motion for emergency

temporary custody of the children and temporarily suspended Father’s parenting time.

        {¶3}    The parties came to an agreement and an agreed judgment entry was filed

on September 12, 2016. The parties agreed that appellant would remain the designated

residential and legal custodian of the children and Father would have parenting time. On

April 18, 2017, appellant filed a motion to show cause, arguing Father was in contempt of

the agreed judgment entry for not allowing any home health services to be provided to

the minor child while he was in Father’s care.

        {¶4}    Father filed a verified motion for temporary orders ex parte on May 18, 2017,

seeking an order naming him as the temporary residential parent and legal custodian of

the children. The trial court denied the ex parte portion of Father’s motion, but set the

matter for a full hearing. Father then filed a motion for reallocation of parental rights and

responsibilities on July 12, 2017, seeking an order naming him the residential parent and
Knox County, Case No. 18-CA-05                                                         3


legal custodian for B.M. Father also filed a motion to appoint guardian ad litem for B.M.

The trial court re-appointed the original GAL on July 24, 2017. Father filed an amended

motion for reallocation of parental rights and responsibilities on August 1, 2017,

requesting an order naming him the residential parent and legal custodian of both

children.

       {¶5}   Appellant filed an amended motion to show cause on December 8, 2017.

Father dismissed his motion for temporary ex parte order on September 21, 2017. Father

then filed another verified motion for temporary orders ex parte, seeking an order

designating him the residential and legal parent of B.M. on December 7, 2017. Father

filed “amendments” to his motion on December 14, 2017, February 12, 2018, February

21, 2018, and February 26, 2018.

       {¶6}   The GAL filed a report on February 16, 2018. The GAL recommended:

appellant remain the residential parent of the minor children; Father have limited

parenting time with B.M. for two hours, twice per week; the trial court should determine

whether Father’s parenting time is supervised; Father’s parenting time with B.L.M. should

not be modified; B.M. should take all medication as prescribed; Father should get all

medical information from the medical providers; and neither party shall use corporal

punishment to discipline the children or permit any other person to use corporal

punishment to discipline the children.

       {¶7}   On February 21, 2018 appellant dismissed her motion to show cause.

       {¶8}   The trial court held an oral hearing on February 22, 2018 on Father’s

motions and amendments. The magistrate noted that counsel for appellant had filed a

motion for continuance, based upon the fact that the GAL was unable to attend the
Knox County, Case No. 18-CA-05                                                               4


hearing because she was in the hospital. The magistrate discussed with Father that she

was granting the continuance because the GAL is a party to the case, and proceeding

without her is akin to proceeding without Father. Father acknowledged he understood.

The magistrate stated on the record that, “the Guardian Ad Litem she is a party to the

case, so it would be like going forward without you’re here. So I’m not going to - - I’m not

going to go forward with today’s hearing. We have to have the Guardian Ad Litem here

to represent the best interests of the minor children. So I will grant the continuance.” The

magistrate stated she would continue the matter out and the parties would get a new

hearing date in the mail.

         {¶9}   On February 26, 2018, Father filed a verified motion for emergency

temporary orders. The trial court issued a judgment entry on February 27, 2018, in which

it noted that the hearing was continued because the GAL was unable to attend the

February 22, 2018 hearing. The trial court noted in its judgment entry that both parties

appeared at the hearing, however, the GAL “was unable to attend the hearing on February

22, 2018 and the hearing was continued.”             The trial court stated that the GAL

recommended that Father have supervised parenting time and that appellant remain the

residential parent. The trial court further stated, “Father continues to file motions alleging

that mother is physically abusive with the minor children. Attorney Giles confirmed in her

report that mother has used some form of corporal punishment on one of the children.”

The trial court noted B.M. has ongoing delinquency matters in Knox County Juvenile

Court.

         {¶10} The trial court stated in its judgment entry that it was in the best interest of

the children, “that this matter is certified to the Knox County Court of Common Pleas,
Knox County, Case No. 18-CA-05                                                                 5


Juvenile Division for further proceedings pursuant to O.R.C. 3109.04(D)(2). The Court

finds neither parent to be fit at this time.” Both the magistrate and the trial court judge

signed the February 27, 2018 judgment entry.

       {¶11} Appellant appeals the February 27, 2018 judgment entry of the Knox County

Court of Common Pleas, Domestic Relations Division, and assigns the following as error:

       {¶12} “I. THE TRIAL COURT ERRED BY FAILING TO MEET THE

PREPONDERANCE OF THE EVIDENCE STANDARD IN FINDING THAT NEITHER

PARENT WAS FIT.

       {¶13} “II. THE TRIAL COURT ERRED IN CERTIFYING THE MATTER TO THE

KNOX COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION, PURSUANT TO

O.R.C. 3109.04(D)(2)”

                                                I. & II.

       {¶14} In her assignments of error, appellant contends the trial court erred in

certifying the matter to the Knox County Juvenile Division because the trial court failed to

meet the preponderance of the evidence standard in finding that neither parent was fit

because no hearing was held and no evidence was placed on the record. We agree with

appellant.

       {¶15} “It is well recognized that the right to raise a child is an ‘essential’ and ‘basic’

civil right.” In re Hayes, 79 Ohio St.3d 46, 679 N.E.2d 680 (1997), citing In re Murray, 52

Ohio St.3d 155, 556 N.E.2d 1169 (1990). Moreover, a parent’s right to custody of his

child is paramount. Id. Because a parent has a fundamental liberty interest in the custody

of his or her child, this important legal right is “protected by law and, thus, comes within

the purview of a ‘substantial right.’”. Id. “Therefore, parents ‘must be afforded every
Knox County, Case No. 18-CA-05                                                             6

procedural and substantive protection the law allows.’” Id., quoting In re Smith, 77 Ohio

App.3d 1, 601 N.E.2d 45 (6th Dist. 1991).

       {¶16} R.C. 3109.04(D)(2) provides as follows:

       If the court finds, with respect to any child under eighteen years of age, that

       it is in the best interest of the child for neither parent to be designated the

       residential parent and legal custodian of the child, it may commit the child

       to a relative of the child or certify a copy of its findings, together with as

       much of the record and the further information, in narrative form or

       otherwise, that it considers necessary or as the juvenile court requests, to

       the juvenile court for further proceedings, and, upon the certification, the

       juvenile court has exclusive jurisdiction.

       {¶17} The Ohio Supreme Court has held that a trial court must make a parental

unsuitability determination on the record before awarding legal custody to a nonparent.

In re Hockstok, 98 Ohio St.3d 238, 781 N.E.2d 971 (2002).               A determination of

unsuitability must be supported by a preponderance of the evidence. Id. As long as the

trial court’s determination of unsuitability is supported by a substantial amount of credible

and competent evidence, an appellate court will not disturb it. In re Fout, 5th Dist.

Delaware No. 04 CA-F 05036, 2005-Ohio-4344.

       {¶18} In this case, the judgment entry stated the GAL recommended supervised

parenting time with Father and that Mother remain the residential parent. Further, at both

the hearing and in the judgment entry, the magistrate stated she was continuing the

hearing because the GAL was unavailable due to hospitalization. At the hearing, the
Knox County, Case No. 18-CA-05                                                             7


magistrate verified the reason for the continuance was the absence of the GAL and

discussed the reason for the continuance with Father.

       {¶19} This Court has held that after a hearing where evidence was taken and

when the trial court relied on the testimony of the parties and the testimony and report of

the appointed investigator, the trial court had competent and credible evidence on which

to base its decision that neither parent was suitable. Horn v. Frazier, 5th Dist. Licking No.

08 CA 000068, 2009-Ohio-51. However, in this case, neither party had the opportunity

to put any evidence on the record at the hearing because the hearing was continued. No

substantive issues regarding the motions at issue were discussed during the hearing.

Accordingly, we find the trial court’s determination of parental unsuitability and

certification to the Juvenile Division was not based upon competent and credible

evidence.

       {¶20} Based on the foregoing, appellant’s assignments of error are sustained.
Knox County, Case No. 18-CA-05                                                         8


      {¶21}      The February 27, 2018 judgment entry of the Knox County Court of

Common Pleas, Domestic Relations Division, certifying the matter to the Juvenile Division

is reversed and the matter is remanded to the Domestic Relations Division to hold a full

hearing.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
