      [Cite as In re E.N., 2018-Ohio-3919.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: E.N.                                   :   APPEAL NO. C-170272
                                                  TRIAL NO. F14-639
                                              :

                                              :     O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed from is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: September 28, 2018


Kroener, Hale & Penick and Angela M. Penick, for Appellee Father,

Stephanie Lape Wolfinbarger, PLLC, and Stephanie Lape Wolfinbarger, for
Appellant Mother.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}    Appellant mother challenges the judgment of the Hamilton County

Juvenile Court adopting the magistrate’s decision awarding legal custody of her

minor child, E.N., to the child’s father.

                               I. Facts and Procedure

       {¶2}    E.N. was born in late 2009. While her parents were never married,

they lived together at the time of their daughter’s birth, and raised E.N. for the next

four years. Mother was the primary caregiver for E.N. Father was the principal

earner for the family. Mother complained of father’s controlling behavior and his

lack of insight into her anxiety issues. She began to spend weekends away from their

home. Mother and father engaged in couples counseling. Nonetheless, at Christmas

2013, mother left their home taking E.N. with her.

       {¶3}    In January 2014, mother moved with E.N. to Nashville, Indiana, where

they lived with mother’s new boyfriend for three months. Mother became pregnant

with his child and ultimately bore a son. The relationship quickly ended. The ex-

boyfriend testified that mother drank and used marijuana while they were together.

       {¶4}    In March 2014, father filed a petition in juvenile court seeking sole

custody of E.N. The matter was referred to a magistrate. During an extensive

pretrial period, E.N.’s guardian ad litem (“GAL”) filed an initial report, in December

2014, recommending that “at this time” E.N. remain in mother’s custody. The GAL

found father controlling and emotionally abusive, and recommended that he engage

in individual counseling. Father followed the GAL’s counseling recommendation.

       {¶5}    Dr. Michael Nelson, a clinical psychologist, performed custody

evaluations on both parents and interviewed E.N. In his June 2015 report, Dr.

Nelson recommended that mother retain custody of E.N., though he noted that E.N.


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wished to spend equal time with her parents.             Dr. Nelson also “strongly

recommended” that mother continue her individual counseling sessions with her

therapist, and “strongly recommended” that she “proactively inform” father of issues

and decisions regarding E.N.’s medical care and schooling.

       {¶6}   Mother continued to move among various locations in southern

Indiana, often without informing father. She changed jobs frequently, working as a

nanny, a substitute teacher, a teacher’s aide, and a clerk at various shops. Mother

moved E.N. back and forth four times between two different schools, often without

consulting father, despite his hopes that E.N. would attend an Ohio parochial school

where E.N.’s cousins were enrolled. Mother established a relationship with another

man. Mother, E.N., and mother’s second child moved in with the man less than five

months after their first date. The two ultimately married.

       {¶7}   Father reported that he was not having sufficient visitation

opportunities with E.N., and that mother persisted in failing to consult him on issues

and decisions regarding E.N.’s medical care and schooling and to inform him of

changes in E.N.’s life. Mother and father attempted to mediate their dispute but

were unable to reach a mutually satisfactory outcome.

       {¶8}   Between February and October 2016, the magistrate conducted six

days of hearings on custody. Sixteen witnesses, including mother, father, the GAL,

Dr. Nelson, mother’s ex-boyfriend, her current husband, and a number of character

witnesses and family members, testified before the magistrate.

       {¶9}   On October 11, 2016, the magistrate issued a detailed, written decision.

The magistrate noted that although father had filed for shared parenting as an

alternative to his petition for sole custody, he had not provided documentation

required to support his proposed shared-parenting plan. Moreover, she found that



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because of mother’s and father’s inability to engage in “meaningful conversations”

regarding E.N., shared parenting would not be appropriate.

       {¶10}   After reviewing the testimony of each witness and the relevant

statutory factors in R.C. 3109.04(F), the magistrate allocated the parental rights and

responsibilities for E.N.’s care to father, giving him legal custody. E.N. had a close,

loving relationship with both of her parents. In reaching her determination, the

magistrate noted concerns regarding mother’s honesty about her drug and alcohol

use, her exposure of E.N. to multiple men that she had known for only a short period

of time, the multiple changes in residences and schools, and mother’s current

husband’s interference in E.N.’s relationship with father.       The magistrate also

ordered that mother have substantial parenting time with E.N. and included a

detailed visitation plan in her decision. Mother was working as a teacher’s aide, and

the visitation plan accommodated mother’s extensive free time in the summer and

during other school breaks.

       {¶11} Mother timely filed an objection to the magistrate’s decision, stating

only that the decision was “erroneous.” At the objections hearing, the juvenile court

construed mother’s bare-bones objection as one challenging the weight of the

evidence adduced to support the magistrate’s decision.

       {¶12} Before the objections hearing, the parties discovered that some of the

testimony of the GAL, and the entire testimony of mother’s ex-boyfriend and father’s

sister, had not been recorded. At the hearing, the juvenile court permitted the

parties to re-examine these witnesses.

       {¶13} The juvenile court reviewed the record of the proceedings, overruled

mother’s objection, adopted the magistrate’s decision as to custody, and entered

judgment on May 3, 2017.         Because of the seven-month delay between the



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magistrate’s decision and the juvenile court’s ruling, the court modified the

parenting time arrangements, and entered judgment. In its judgment, the juvenile

court did not address the parents’ responsibility for support of E.N. as required by

R.C. 3109.04(A)(1). Mother appealed.

          II. The Juvenile Court’s Entry Was Final and Appealable

       {¶14} Because an appellate court’s jurisdiction is limited to review of

judgments or final orders, as may be provided by law, we must determine our own

jurisdiction to proceed before reaching the merits of mother’s appeal. See Article IV,

Section 3(B)(2), Ohio Constitution; see also R.C. 2505.03(A); Cincinnati v.

Harrison, 2017-Ohio-7580, 97 N.E.3d 743, ¶ 7 (1st Dist.); In re L.S., 1st Dist.

Hamilton No. C-140318, 2015-Ohio-1321, ¶ 6.

       {¶15} In this appeal from the juvenile court’s entry ordering a change of

custody of the minor child from one parent to the other, the application of R.C.

2505.02(B)(2) determines our jurisdiction. It provides that an order is a final order

“when it is * * * [a]n order that affects a substantial right made in a special

proceeding * * *.”     An order affects a substantial right for purposes of R.C.

2505.02(B)(2) “only if ‘in the absence of immediate review of the order [the

appellant] will be denied effective relief in the future.’ ” Thomasson v. Thomasson,

__ Ohio St.3d __, 2018-Ohio-2417, __ N.E.3d __, ¶ 10, quoting Bell v. Mt. Sinai

Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993); see In re S Children, 1st Dist.

Hamilton No. C-170624, 2018-Ohio-2961, ¶ 11.

       {¶16} Here, it is beyond cavil that custody proceedings brought in juvenile

court did not exist at common law but were created by statute, and thus are special

proceedings within the meaning of R.C. 2505.02(A)(2). See State ex rel. Papp v.

James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994); see also In re Adams, 115



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Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 43; In re L.A., 2014-Ohio-894, 9

N.E.3d 525, ¶ 4 (1st Dist.).

       {¶17} Next, the General Assembly has defined a “substantial right” as “a

right that the United States Constitution, the Ohio Constitution, a statute, the

common law, or a rule of procedure entitles a person to enforce or protect.” R.C.

2505.02(A)(1). Here, by operation of statute, mother was “the sole residential parent

and legal custodian” of E.N. until the juvenile court’s order designated father as the

child’s residential parent. See R.C. 3109.042. Moreover, the right “to raise a child is

an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 157, 556

N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31

L.Ed.2d 551 (1972). Thus the Ohio Supreme Court has held that “parental custody of

a child is an important legal right protected by law and, thus, comes within the

purview of a ‘substantial right’ for purposes of applying R.C. 2505.02.” In re Murray

at 157; see Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49

(2000) (concluding that the federal constitution also “protects the fundamental right

of parents to make decisions concerning the care, custody, and control of their

children.”).

       {¶18} Finally, we hold that immediate review is necessary. The juvenile

court order transferring the role of residential parent and legal custodian from

mother to father, if left undisturbed, would have an immediate effect on mother’s

right to the custody and control of her child. That right is “perhaps the oldest of the

fundamental liberty interests” recognized by our courts. Troxel at 65; see In re

Murray at 157. It includes the right “to direct the upbringing and education” of one’s

child, see Pierce v. Soc. of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070

(1925), the right to communicate to the child a parent’s moral and religious values,



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see Pater v. Pater, 63 Ohio St.3d 393, 397, 588 N.E.2d 794 (1992), to direct their

“religious upbringing,” see Wisconsin v. Yoder, 406 U.S. 205, 213-14, 92 S.Ct. 1526,

32 L.Ed.2d 15 (1972), to select, within reason, whether and what type of medical care

the child will receive, see In re Willmann, 24 Ohio App.3d 191, 493 N.E.2d 1380 (1st

Dist.1986), and to determine where and with whom the child will reside. And not the

least of the rights pertaining to custody is the very companionship of one’s own child.

       {¶19} Denying those rights, for whatever period, would immediately

diminish mother’s most fundamental rights to the custody and control of her child.

Mother would not be able to effectively protect her rights absent immediate review.

No later adjudication of the juvenile court’s order, coming, for example, only after

the court had allocated the parents’ child-support obligations, could restore the loss

of custody and control for what could be a substantial period of time.

       {¶20} Thus, juvenile court orders transferring legal custody from one parent

to the other are immediately appealable under R.C. 2505.02(B)(2).            Compare

Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-05-083, 2013-Ohio-4980, ¶

13-14 (where a challenged custody order did not change which parent had legal

custody, dismissing the appeal and requiring the court to enter a support order

before appeal, would not result in immediate consequences for the appellant).

                         III. The Merits of Mother’s Appeal

       {¶21} In her first assignment of error, mother contends that the juvenile

court abused its discretion in adopting that portion of the magistrate’s decision

awarding legal custody of E.N. to father. She argues that the magistrate and the

juvenile court failed to give full consideration to the testimony of the GAL and Dr.

Nelson in reaching their determinations that it was in the best interests of E.N. for

father to be her legal custodian.



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       {¶22} The juvenile court exercises its jurisdiction in child-custody matters in

accordance with R.C. 3109.04. See R.C. 2151.23(F)(1); see also In re James, 113 Ohio

St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 25; In re Adoption of G.A.R., 2017-

Ohio-5612, 94 N.E.3d 99, ¶ 20 (1st Dist.). Under R.C. 3109.04(A)(1), the court is to

decide to whom the parental rights and responsibilities for the care of a child shall be

awarded, giving paramount consideration to the best interests of the child. See In re

V.B., 1st Dist. Hamilton No. C-170063, 2018-Ohio-2375, ¶ 10. We review the juvenile

court’s ruling on the objections and its decision to adopt the magistrate’s custody

decision only for a showing of an abuse of discretion. See Miller v. Miller, 37 Ohio

St.3d 71, 74, 523 N.E.2d 846 (1988); see also In re D.M., 1st Dist. Hamilton No. C-

140648, 2015-Ohio-3853, ¶ 11; In re V.B. at ¶ 10.

       {¶23} Under the R.C. 3109.04 best-interests test, no single factor is

controlling. The weight to be given to any factor also lies within the court’s

discretion. See In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008, 2017-

Ohio-1431, ¶ 34. Thus, the magistrate and the juvenile court were not bound to

follow the GAL’s and Dr. Nelson’s initial recommendations made well before the

custody hearings. See In re Graham, 167 Ohio App.3d 284, 2006-Ohio-3170, 854

N.E.2d 1126, ¶ 32 (1st Dist.). As with any other witness, the magistrate and the

juvenile court were entitled to resolve disputes as to these witnesses’ credibility and

the weight to be given their testimony. See In re V.B. at ¶ 11.

       {¶24} Here, the magistrate and the juvenile court reviewed and applied the

best-interests factors under R.C. 3109.04. E.N. has a close, loving relationship with

both of her parents, her younger brother, and her cousins. Mother’s move to Indiana

with E.N. established her intention to reside outside Ohio, and minimized the ability

of father to share in E.N.’s upbringing. See R.C. 3109.04(F)(1)(j). Mother’s current



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husband, while concerned for E.N.’s well-being, has, with mother’s acquiescence,

failed to appreciate the importance of father’s role in E.N.’s life.           See R.C.

3109.04(F)(1)(c). Despite strong recommendations from Dr. Nelson and the GAL,

mother failed to keep father informed about her changes of residence and to consult

with him about important matters concerning E.N. Father adhered to his parenting-

time schedule, promptly returning E.N. to her mother’s custody. Considering these

circumstances, coupled with mother’s lack of candor regarding her alcohol and drug

use, the magistrate found that father was more likely to honor and facilitate court-

ordered parenting time. See R.C. 3109.04(F)(1)(d)-(f).

       {¶25} The record reveals that E.N.’s mother and father are both capable and

loving parents.   Over the three-year course of the proceedings below, each was

effective in highlighting deficiencies in the other’s parenting skills. However, the

magistrate’s and the juvenile court’s decision that father was better able to provide

the stable environment and care necessary for E.N. is well supported in the record.

See In re D.M., 1st Dist. Hamilton No. C-140648, 2015-Ohio-3853, at ¶ 12; In re V.B.,

1st Dist. Hamilton No. C-170063, 2018-Ohio-2375, at ¶ 13. The first assignment of

error is overruled.

       {¶26} Mother’s second assignment of error, in which she maintains that the

trial court also committed plain error in adopting the magistrate’s decision, is not

well taken. Mother raised this assignment of error in anticipation of a determination

by this court that she had not properly preserved error below by filing only a bare-

bones objection to the magistrate’s decision. Juv.R. 40(D)(3)(b)(ii) requires that

objections to a magistrate’s decision “shall be specific and state with particularity all

grounds for objection.”     But father has not appealed from the juvenile court’s




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decision denying his motion to dismiss mother’s objection for lack of specificity, nor

has he assigned the court’s ruling as error pursuant to R.C. 2505.22.

       {¶27} In resolving the first assignment of error, we have already held that the

juvenile court did not err in adopting the magistrate’s custody determination.

Absent error below, it is axiomatic that the juvenile court could not have committed

plain error, which in this context contemplates, as a prerequisite, an error of such

magnitude that, if left uncorrected, “would have a material adverse effect on the

character of, and public confidence in, judicial proceedings.”          See Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997); see also In re Etter, 134

Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998). The second assignment of

error is overruled.

                                     IV. Conclusion

       {¶28} Having overruled both of mother’s assignments of error, we affirm the

judgment of the juvenile court allocating parental rights and responsibilities,

designating father as the residential parent with legal custody of E.N., and

determining mother’s rights to continuing contact and parenting time. We remand

this matter to the juvenile court to address the parents’ responsibility for support as

required by R.C. 3109.04(A)(1).

                                                Judgment affirmed and cause remanded.


ZAYAS and DETERS, JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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