[Cite as In re A.D.B., 2016-Ohio-7186.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




IN THE MATTER OF: A.D.B.                         :
                                                          CASE NO. CA2015-10-180
                                                 :
                                                                   OPINION
                                                 :                 10/3/2016

                                                 :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                               JUVENILE DIVISION
                              Case No. JS2014-1056



Douglas Songer, 1029 Clinton Avenue, Hamilton, Ohio 45015, appellant, pro se

Moser Law, LLC, Donald Moser, 1040 Symmes Road, Fairfield, Ohio 45014, for appellee



        S. POWELL, J.

        {¶ 1} Appellant, a grandfather ("Grandfather"), appeals from the decision of the

Butler County Court of Common Pleas, Juvenile Division, denying his request for legal

custody of A.D.B., his granddaughter. For the reasons outlined below, we affirm.

                                    Facts and Procedural History

        {¶ 2} Grandfather is the paternal grandfather of A.D.B., born December 7, 2010.

A.D.B.'s mother ("Mother") and father ("Father") were never married. After beginning their

relationship in 2009, Mother and Father's relationship ended in June of 2012.

        {¶ 3} On November 29, 2012, Grandfather filed a motion for an emergency ex parte
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hearing and a motion for custody of A.D.B. after A.D.B. sustained an injury to her neck while

in Mother's care. That same day, a magistrate granted Grandfather's request for an ex parte

hearing and placed A.D.B. in the temporary custody of Father. The matter was later resolved

after the trial court accepted a mediation agreement between Mother and Father that

restored Mother as the residential parent and legal custodian of A.D.B. Grandfather then

voluntarily dismissed his complaint seeking legal custody of A.D.B. on January 7, 2013.

        {¶ 4} Approximately six months later, on July 9, 2013, Grandfather filed another

complaint seeking legal custody of A.D.B. As part of this complaint, Grandfather alleged

Mother had "engaged in the use of illegal drugs and substances, including, but not limited to

marijuana while the minor child was present." Grandfather also alleged that Mother's

apartment had recently been "raided by local police on belief that the residents were

engaging in illegal drug use and substance abuse." Grandfather later amended his complaint

to allege the police had actually raided A.D.B.'s maternal grandmother's residence.1

Grandfather voluntarily dismissed this complaint on March 27, 2014.

        {¶ 5} Approximately seven months later, on October 22, 2014, Grandfather filed yet

another complaint seeking legal custody of A.D.B. As part of his complaint, Grandfather

again alleged that Mother had "engaged in the use of illegal drugs and substances, including,

but not limited to, marijuana while in the presence of the minor child." Arguing his most

recent complaint seeking legal custody of A.D.B. was frivolous, Mother filed a motion

requesting the trial court order Grandfather pay her attorney fees. In response, Grandfather

filed a motion requesting Mother be drug tested.

        {¶ 6} A two-day hearing on these matters was heard on September 2 and September


1. The record indicates that the Fairfield Police Department conducted a search of maternal grandmother's
residence after receiving an anonymous tip that she was dealing drugs. It is undisputed that Grandfather made
the anonymous tip that led to the issuance of the search warrant. No charges were ever filed as a result of the
search of maternal grandmother's residence. According to maternal grandmother, Grandfather made the
anonymous tip as a form of retaliation.
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9, 2015. At this hearing, Grandfather called several witnesses to testify as to Mother's

alleged prior drug use, as well as the investigation into the incident where A.D.B. sustained

an injury to her neck. A report from Cincinnati Children's Hospital admitted into evidence

classified the injury as an "[a]brasion or friction burn of neck without infection" that could be

treated with cold water and antibiotic ointment. Mother, the only witness to the alleged

incident, testified that the injury occurred after A.D.B. "put a hangar over her head and was

dancing to Dora with it and kind of moved it back and forth on her own neck." No criminal

charges were ever brought against Mother regarding this incident as the investigation into

Grandfather's allegations of abuse were found to be unsubstantiated.

       {¶ 7} Following this hearing, on September 16, 2015, the trial court issued a decision

denying Grandfather's complaint for legal custody of A.D.B. In so holding, the trial court

determined that Grandfather failed to prove the injury to A.D.B.'s neck "was the result of any

cause other than that which was concluded by the staff at Children's Hospital as well as local

law enforcement." The trial court also determined that Grandfather had "failed to present any

credible evidence as to the Mother's unsuitability."          Instead, the trial court found

Grandfather's witnesses actually testified that "the Mother and the minor child have a positive

relationship, a close emotional bond, and that the Mother takes good care of the minor child."

The trial court further denied Grandfather's request to have Mother drug tested and ordered

Grandfather to pay Mother's attorney fees upon finding his most recent complaint seeking

custody of A.D.B. was frivolous.

       {¶ 8} Grandfather now appeals from the trial court's decision, raising five

assignments of error for review.

                                     Standard of Review

       {¶ 9} Trial courts enjoy broad discretion in custody proceedings. In re E.L.C., 12th

Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 16. As a result, the standard of review
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in custody decisions is whether the trial court abused its discretion. C.D. v. D.L., 12th Dist.

Fayette No. CA2006-09-037, 2007-Ohio-2559, ¶ 14. An abuse of discretion implies that the

trial court's attitude was unreasonable, arbitrary, or unconscionable.            Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard,

a reviewing court must not substitute its judgment for that of the trial court. Morrison v.

Robinson, 12th Dist. Fayette No. CA2012-06-019, 2013-Ohio-453, ¶ 26.

       {¶ 10} In determining whether a modification of custody is warranted, the trial court

must generally follow R.C. 3109.04(E)(1)(a). Pursuant to that statute:

              The court shall not modify a prior decree allocating parental
              rights and responsibilities for the care of children unless it finds,
              based on facts that have arisen since the prior decree or that
              were unknown to the court at the time of the prior decree, that a
              change has occurred in the circumstances of the child, the child's
              residential parent, or either of the parents subject to a shared
              parenting decree, and that the modification is necessary to serve
              the best interest of the child.

       {¶ 11} Although R.C. 3109.04 does not provide a definition of the phrase "change in

circumstances," Ohio courts have held that the phrase is intended to denote "an event,

occurrence, or situation which has a material and adverse effect upon a child." Preece v.

Stern, 12th Dist. Madison No. CA2009-09-019, 2010-Ohio-857, ¶ 10. Thus, in order to

warrant the abrupt disruption of the child's home life, the change in circumstances must be

one "of substance, not a slight or inconsequential change." Davis v. Flickinger, 77 Ohio St.3d

415, 418 (1997).

       {¶ 12} If a change in circumstances has occurred, "the trial court can modify custody

only if the modification is necessary to serve the best interest of the child." Hunter-June v.

Pitts, 12th Dist. Butler No. CA2013-09-178, 2014-Ohio-2473, ¶ 14. In determining the best

interest of a child, the trial court is required to consider all relevant factors listed in R.C.

3109.04(F)(1). These factors include, but are not limited to, the wishes of the child's parents

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regarding the child's care; 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; the child's

adjustment to the child's home, school, and community; and the mental and physical health

of all persons involved. R.C. 3109.04(F)(1)(a), (c), (d), and (e).

       {¶ 13} However, as this court recently stated, "the best interest standard in a child

custody proceeding between a parent and a nonparent applies only after a threshold

determination that the child's parents are deemed unsuitable." In re J.T.S., 12th Dist. Preble

No. CA2014-09-009, 2015-Ohio-364, ¶ 12, citing In re Perales, 52 Ohio St.2d 89 (1977).

Thus, if a parent has custody of his or her child, and no custody award has previously been

made to a nonparent, "a custody dispute with a nonparent is determined under the Perales

standard." Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, ¶ 10 (4th Dist.). This

requires the trial court to find by a preponderance of the evidence that the parent is

unsuitable in "that the parent abandoned the child, that the parent contractually relinquished

custody of the child, that the parent has become totally incapable of supporting or caring for

the child, or that an award of custody to the parent would be detrimental to the child."

Robinson, 2013-Ohio-453 at ¶ 10.          Nonparents seeking custody have the burden of

demonstrating a parent's unsuitability. In re D.C.J., 8th Dist. Cuyahoga Nos. 97681 and

97776, 2012-Ohio-4154, ¶ 57.

                            Grandfather's Assignments of Error

       {¶ 14} Assignment of Error No. 1:

       {¶ 15} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR

DRUG TESTING.

       {¶ 16} In his first assignment of error, Grandfather argues the trial court erred by

denying his motion to have Mother drug tested. In support of this claim, Grandfather alleges

that there is reason to believe Mother uses drugs based on "numerous examples with clear
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statements of evidence that [she] was involved in drug usage." However, while the record

does contain some testimony to support Grandfather's claims, there was also testimony that

Grandfather's allegations were either untrue or were in reference to events that may have

occurred many months if not years prior.             This includes both affidavits attached to

Grandfather's motion requesting Mother be drug tested, documents that were dated and

signed over two years earlier on February 2, 2013 and May 10, 2013, respectively.

       {¶ 17} It is well-established that the trial court, as the trier of fact, is free to believe all,

part, or none of the testimony of each witness. In re S.C.T., 12th Dist. Butler No. CA2004-

04-095, 2005-Ohio-2498, ¶ 24. That is because the trial judge is best able to view the

witnesses and observe their demeanor and use these observations in weighing the credibility

of the proffered testimony. Kohus v. Daly, 12th Dist. Clermont No. CA2015-05-042, 2016-

Ohio-73, ¶ 43. However, even assuming the trial court had accepted the testimony regarding

Mother's prior drug use as true, just as the trial court found, "there was not sufficient evidence

of current substance abuse on the part of the Mother to justify the expense associated

therewith." We find no error in the trial court's decision. In so holding, we note that Mother

explicitly denied drinking alcohol or smoking marijuana when A.D.B. was present. Mother

also denied Grandfather's allegations that she had taken Xanax and driven drunk while

A.D.B. was in the car with her.         The trial court clearly found this testimony credible.

Accordingly, Grandfather's first assignment of error is overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT ERRED IN RELEASING THE FAIRFIELD POLICE CHIEF

MICHAEL DICKEY FROM APPEARING ON SEPTEMBER 9TH, 2015.

       {¶ 20} In his second assignment of error, Grandfather argues the trial court erred by

releasing Fairfield Police Chief Michael Dickey from appearing as a witnesses on the second

day of the two-day hearing conducted on September 9, 2015. Yet, the record makes clear
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that Chief Dickey did appear and testify as part of Grandfather's case-in-chief on September

2, 2015, the first day of the two-day hearing. The record also indicates that when asked by

the trial court if he was going to conclude his case that day, Grandfather stated "Yes,

ma'am." Grandfather then notified the trial court that he would not be calling any additional

witnesses to testify besides Father.

       {¶ 21} After a thorough review of the record, we fail to see how the trial court erred in

releasing Chief Dickey as a witness. In so holding, we note that Grandfather only provided

this court with a partial transcript of the two-day hearing before the trial court, which did not

include Chief Dickey's testimony, thereby limiting our review of this issue on appeal. "Absent

a full trial transcript, this court must presume the validity of the trial court's determinations[.]"

Bunnell Elec. Inc. v. Ameriwash, 12th Dist. Warren No. CA2004-01-009, 2005-Ohio-2502, ¶

9. This court is also unable to evaluate Grandfather's claim that he was not given sufficient

time to review Chief Dickey's investigatory file. Therefore, Grandfather's second assignment

of error is overruled.

       {¶ 22} Assignment of Error No. 3:

       {¶ 23} THE TRIAL COURT ERRED IN NOT ALLOWING DANIEL COMPSTON TO

DISCUSS HIS INTERVIEW WITH DR. SHAPIRO CONCERNING THE PHOTOS OF THE

INJURIES TO MINOR CHILD [A.D.B.].

       {¶ 24} In his third assignment of error, Grandfather argues the trial court erred by

precluding his witness, Daniel Compston, a former investigator with Butler County Children's

Services, from testifying as to statements made by Dr. Robert Shapiro, a physician with the

Cincinnati Children's Hospital, during an interview Compston conducted with Dr. Shapiro

regarding the injuries A.D.B. sustained to her neck. The statements Dr. Shapiro may have

made to Compston during this interview are clearly hearsay and were properly excluded by

the trial court. Therefore, Grandfather's third assignment of error is overruled.
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       {¶ 25} Assignment of Error No. 4:

       {¶ 26} THE TRIAL COURT ERRED BY IGNORING THE CLEAR AND CONCRETE

EVIDENCE AND/OR TESTIMONY AS PERTAINS TO THE UNFIT CHARACTER OF THE

DEFENDANT-APPELLEE.

       {¶ 27} In his fourth assignment of error, Grandfather argues the trial court's decision

denying his complaint for legal custody of A.D.B. was against the manifest weight of the

evidence. We disagree.

       {¶ 28} As it relates to a manifest weight of the evidence challenge, "a reviewing court

must determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost

his way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered." In re W.A., 5th Dist. Muskingum No. CT2013-0002, 2013-

Ohio-3444, ¶ 19. In making this determination, "'an appellate court is guided by the

presumption that the trial court's findings were correct.'" In re M.D., 12th Dist. Butler No.

CA2006-09-223, 2007-Ohio-4646, ¶ 28, quoting In re Peterson, 10th Dist. Franklin. No.

01AP-381, 2001 WL 988013, *3 (Aug. 28, 2001). Thus, "[w]here an award of custody is

supported by a substantial amount of credible and competent evidence, such an award will

not be reversed as being against the weight of the evidence by a reviewing court." In re T.M.,

12th Dist. Butler No. CA2007-01-019, 2007-Ohio-6034, ¶ 28, citing Flickinger, 77 Ohio St.3d

at 418.

       {¶ 29} As noted above, as part of its decision denying Grandfather's complaint for

legal custody, the trial court determined that Grandfather failed to prove the injury A.D.B.

sustained to her neck "was the result of any cause other than that which was concluded by

the staff at Children's Hospital as well as local law enforcement." The trial court also

determined that Grandfather had "failed to present any credible evidence as to the Mother's

unsuitability." Instead, the trial court found Grandfather's own witnesses actually testified
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"the Mother and the minor child have a positive relationship, a close emotional bond, and that

the Mother takes good care of the minor child." Again, Grandfather only provided this court

with a partial transcript of the two-day hearing before the trial court. Nevertheless, even

when reviewing these portions of the record that Grandfather deemed supportive of his

claims, we find no error in the trial court's decision.

        {¶ 30} As a nonparent, Grandfather had the burden to prove by a preponderance of

the evidence that Mother was an unsuitable parent to A.D.B. However, although Grandfather

levied a variety of accusations against Mother in an attempt to call into question her fitness

as a mother, the trial court determined that none of Grandfather's accusations were credible.

Again, as the trier of fact, the trial court was free to believe all, part, or none of the testimony

of each witness. Moreover, just as the trial court found, Grandfather's own witnesses actually

testified that Mother was a suitable parent to A.D.B. This included testimony that Mother was

"good to [A.D.B.]" and that Mother and A.D.B. "love each other very much." Father also

testified that Mother was a "a loving caring mother" and that he did not believe Mother

caused the injury to A.D.B.'s neck. The trial court's decision was not against the manifest

weight of the evidence.2 Therefore, Grandfather's fourth assignment of error is overruled.

        {¶ 31} Assignment of Error No. 5:

        {¶ 32} THE TRIAL COURT ERRED IN GRANTING THE APPELLEE ATTORNEY

FEES.

        {¶ 33} In his fifth assignment of error, Grandfather argues the trial court erred by

granting Mother's motion for attorney fees upon finding his most recent complaint seeking

custody of A.D.B. was frivolous. We disagree.



2. It should be noted, even if the trial court had found credible Grandfather's claim that Mother was an unsuitable
parent, that would not have automatically entitled Grandfather to custody of A.D.B as he now suggests. Rather,
the trial court would still have to find that granting custody of A.D.B. to Grandfather was in the child's best
interest.
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       {¶ 34} R.C. 2323.51(B)(1) provides that a court may award costs, reasonable attorney

fees, and other reasonable expenses incurred in connection with a civil action to a party

adversely affected by frivolous conduct. As relevant here, pursuant to R.C. 2323.51(A)(2)(i)

and (iii), the term "frivolous conduct" includes conduct that satisfies either of the following:

              (i) It obviously serves merely to harass or maliciously injure
              another party to the civil action or appeal or is for another
              improper purpose, including, but not limited to, causing
              unnecessary delay or a needless increase in the cost of litigation.

              ***

              (iii) The conduct consists of allegations or other factual
              contentions that have no evidentiary support or, if specifically so
              identified, are not likely to have evidentiary support after a
              reasonable opportunity for further investigation or discovery.

       {¶ 35} Reviewing a trial court's decision regarding frivolous conduct involves mixed

questions of law and fact. Lucchesi v. Fischer, 12th Dist. Clermont No. CA2008-03-023,

2008-Ohio-5935, ¶ 4. A trial court's factual determinations are accorded a degree of

deference and will not be disturbed on appeal if there is competent, credible evidence in the

record to support them. State ex rel. Chrisman v. Clearcreek Twp., 12th Dist. Warren No.

CA2013-03-025, 2014-Ohio-252, ¶ 8. However, we review legal questions de novo, such as

whether a party's conduct satisfies the statutory definition of frivolous conduct. Dudley v.

Dudley, 196 Ohio App.3d 671, 2011-Ohio-5870, ¶ 11 (12th Dist.). When an inquiry is purely

a question of law, an appellate court need not defer to the judgment of the trial court.

Wiltberger v. Davis, 110 Ohio App.3d 46, 51-52 (10th Dist.1996).

       {¶ 36} As noted above, the trial court granted Mother's motion for attorney fees upon

finding Grandfather's most recent complaint seeking custody of A.D.B. was frivolous. In so

holding, the trial court stated:

              The Grandfather failed to provide any evidence to suggest that
              the abrasion on the minor child's neck was caused in any way
              other than what the Mother has maintained consistently since the
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              date of the injury. Furthermore, he presented no evidence to
              refute the testimony and exhibits which established a pattern of
              harassment and intimidation, directed primarily at the Mother, but
              also peripherally directed at law enforcement and other
              professionals who were involved in the investigation. The Court
              can reach no conclusion other than that the Grandfather * * *
              engaged in intentional and malicious conduct in an effort to
              harass and intimated the Mother and her family members.

       {¶ 37} As stated previously, Grandfather only provided this court with a partial

transcript of the two-day hearing held before the trial court. However, the record before this

court clearly indicates that this case represents Grandfather's third attempt to obtain legal

custody of A.D.B. based on allegations that Mother is a drug user who abused A.D.B. Once

given the opportunity, the trial court determined that these claims had no evidentiary support

and served as nothing more than Grandfather's continued attempts to harass and intimidate

Mother. We find no error in the trial court's decision.

       {¶ 38} While it may be true that Grandfather believes he has A.D.B.'s best interest at

heart, repeatedly forcing Mother to spend money on an attorney to defend herself against

such claims is improper and unnecessary. Again, while Grandfather may disagree with the

investigatory findings, the record clearly indicates that his claims alleging Mother had abused

A.D.B. and caused the injuries to her neck were unsubstantiated.             Continually filing

complaints for legal custody will not change that fact. Therefore, finding no error in the trial

court's decision, Grandfather's fifth assignment of error is overruled.

                                         Conclusion

       {¶ 39} Having found no merit to any of Grandfather's five assignments of error, the trial

court's decision denying Grandfather's complaint for legal custody of A.D.B. and ordering

Grandfather to pay Mother's attorney fees is affirmed.

       {¶ 40} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.
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