[Cite as Lichtenwalter v. Stark Cty. Dept. of Jobs & Family Servs., 2012-Ohio-75.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

DOROTHY LICHTENWALTER                                       JUDGES:
                                                            Hon. William B. Hoffman, P.J.
        Appellant                                           Hon. Sheila G. Farmer, J.
                                                            Hon. Julie A. Edwards, J.
-vs-
                                                            Case No. 2011CA00154
STARK COUNTY DEPARTMENT OF
JOBS AND FAMILY SERVICES, ET AL.
                                                            OPINION
        Appellee




CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court of
                                                        Common Pleas, Juvenile Division, Case
                                                        No. 2010JCV00609


JUDGMENT:                                               Affirmed in part; reversed in part, and
                                                        Remanded

DATE OF JUDGMENT ENTRY:                                 January 9, 2012

APPEARANCES:

For Appellant                                           For Appellee

GREGORY J. RUFO                                         LISA A. LOUY
BRIAN K. NAM                                            Legal Counsel
The Rufo Law Firm                                       Stark County JFS
900 Chase Tower                                         221 Third Street SE
101 Central Plaza S.                                    Canton, Ohio 44702
Canton, Ohio 44702

                                                        Appellee

                                                        MARY K. HEADLEY
                                                        325 Clarendon, NW
                                                        Canton, Ohio 44708
Stark County, Case No. 2011CA00154                                                  2

Hoffman, P.J.

      (¶1)   Appellant Dorothy Lichtenwalter (“Paternal Grandmother”) appeals the

June 17, 2011 Judgment Entry entered by the Stark County Court of Common Pleas,

Juvenile Division, which granted legal custody of her four minor grandchildren to Mary

Kay Headley (“Maternal Grandmother”) and provided Appellant visitation with the

children as directed by Maternal Grandmother. Appellee is Stark County Department of

Jobs and Family Services (“SCJFS”).

                         STATEMENT OF THE FACTS AND CASE

      (¶2)   Paternal Grandmother is the paternal grandmother of T.L. (dob 2/27/02);

R.L. (dob 8/29/03); A.L. (dob 8/12/07) and E.L. (dob 8/14/09). SCJFS filed a Complaint

on June 4, 2010, requesting legal custody of the four children be given to Maternal

Grandmother. The children were removed from their parents’ custody on that day. The

trial court conducted a shelter care hearing on June 4, 2010, ordered the children be

placed in the emergency temporary custody of Maternal Grandmother, and granted

protective supervision to SCJFS. The children remained with Maternal Grandmother

throughout the course of the proceedings.

      (¶3)   Paternal Grandmother filed a Motion to Intervene/Motion for Custody. The

trial court found the children to be dependent and continued temporary custody with

Maternal Grandmother. The trial court ordered SCJFS to view the physical condition of

Paternal Grandmother’s home. After conducting a hearing, the trial court granted

Paternal Grandmother’s request to intervene. Thereafter, Paternal Grandmother filed a

Motion for Legal Custody/Motion for Grandparent Visitation Rights.           Paternal

Grandmother included a request for interim visitation orders. Following a hearing, the
Stark County, Case No. 2011CA00154                                                     3


parties agreed visitation would occur at the recommendation of the CASA/GAL and

T.L.’s therapist, Dr. Robin Tener.

       (¶4)   SCJFS filed a motion to change legal custody of the children to Maternal

Grandmother on March 23, 2011.          Paternal Grandmother filed a motion for legal

custody. Father filed a motion for return of custody. The trial court scheduled a hearing

on the motions for June 14, 2011. Prior to the motions hearing, Paternal Grandmother

filed a motion for in-camera interview with the children.

       (¶5)   The trial court conducted the hearing on the motions on June 17, 2011.

The trial court found neither parent had completed his/her case plan; Father was living

with Paternal Grandmother; and Dr. Tener as well as the CASA/GAL recommended the

children remain in the custody of Maternal Grandmother and visitation with Paternal

Grandmother be limited for fear of exposure to Father.      The trial court granted legal

custody to Maternal Grandmother subject to visitation with Paternal Grandmother as

directed by Maternal Grandmother.         The trial court memorialized its decision via

Judgment Entry filed June 17, 2011.        The June 17, 2011 Judgment Entry did not

terminate SCJFS’s involvement, however, notice of termination was provided to the trial

court and the parties on June 29, 2011.

       (¶6)   Paternal Grandmother raises the following assignments of error:

       (¶7)   “I. THE TRIAL COURT ERRED BY NOT CONDUCTING AN IN-CAMERA

INTERVIEW OF THE TWO OLDEST CHILDREN.

       (¶8)   “II. THE TRIAL COURT ERRED IN ORDERING THAT THE PATERNAL

GRANDMOTHER’S VISITATION IS AS DIRECTED BY THE LEGAL CUSTODIAN.
Stark County, Case No. 2011CA00154                                                          4


       (¶9)   “III. THAT THE TRIAL COURT’S DECISION IN REGARDS TO THIS

MATTER CONSTITUTES AN ABUSE OF DISCRETION.”

                                                  I

       (¶10) In her first assignment of error, Paternal Grandmother contends the trial

court erred by failing to conduct an in-camera interview of the two oldest children.

Paternal Grandmother notes both R.C. 3109.04 and 2151.414 set forth factors a trial

court may consider in determining the best interest of a child. Both statutes permit a

trial court to conduct an in-camera interview to determine the wishes of a child.

Paternal Grandmother adds the trial court’s failure to conduct such an interview after a

party has requested one is reversible error.

       (¶11) Paternal Grandmother correctly asserts R.C. 3109.04(B)(1) allows the trial

court, in its discretion, or upon the request of either party, to “interview in chambers any

or all of the involved children regarding their wishes and concerns with respect to the

allocation.” However, we find R.C. 3109.04 is not applicable in the instant action. R.C.

3109.04 is applicable “[i]n any divorce, legal separation, or annulment proceeding and in

any proceeding pertaining to the allocation of parental rights and responsibilities for the

care of a child, * * *.” R.C. 3109.04(A). The instant action did not involve any of the

enumerated proceedings.

       (¶12) In In re Funk, Portage App. Nos.2002-P-0035, 2002-P-0036, 2002-Ohio-

4958, the Ninth District Court of Appeals noted, “ * * * R.C. 2151.414(D)(2) clearly

provides that a child's wishes may be ‘expressed directly by the child or through the

child's guardian ad litem * * * [.]’ That is to say, a juvenile court has the option of either

having the child assert his or her opinion, through, for example, an in-camera interview
Stark County, Case No. 2011CA00154                                                        5


or testimony, or the court may rely upon the guardian ad litem's representations with

respect to the child's desires. Because the juvenile court has a choice, the decision not

to conduct an in camera interview will be reversed only if the court abused its discretion

in declining to do so. (Citation omitted).” Id. at para. 30.

         (¶13) Based on the testimony of Dr. Tener and the CASA/GAL, and in light of

the entire record and GAL report, we find the trial court’s failure to conduct of an in

camera interview of the two older children was not an abuse of discretion or reversible

error in this case.

         (¶14) Paternal Grandmother’s first assignment of error is overruled.

                                                   II

         (¶15) In her second assignment of error, Paternal Grandmother asserts the trial

court erred in ordering her visitation be as directed by Maternal Grandmother. We

agree.

         (¶16) The caseworker and Dr. Tener both testified Paternal Grandmother and

the children should have a definite visitation schedule.            Only the CASA/GAL

recommended visitation at Maternal Grandmother’s discretion.            Testimony at the

hearing revealed the discretionary visitation was working initially, however, at the time of

the hearing, such was not the case.

         (¶17) We find the best course of action would have been for the trial court to

create a set visitation schedule to avoid potential future litigation between the

Grandmothers.

         (¶18) Paternal Grandmother’s second assignment of error is sustained.
Stark County, Case No. 2011CA00154                                                       6


                                                III

      (¶19) In her final assignment of error, Paternal Grandmother contends the trial

court’s decision was an abuse of discretion. We disagree.

      (¶20) Paternal Grandmother asserts the evidence revealed the best interest of

the children would be served by granting her legal custody of the children. Paternal

Grandmother submits the case worker testified there was no problem with Paternal

Grandmother as a care giver. Further, Paternal Grandmother never was required to do

any case plan services, and previously had been approved by SCJFS to care for her

two older grandchildren, who are the minor children’s step-siblings.        The evidence

revealed Paternal Grandmother had a strong relationship with the children, and she had

been integral in rearing them from an early age.

      (¶21) We find the trial court had ample evidence to support its decision to grant

legal custody to Maternal Grandmother. The case worker testified the children had

been placed with Maternal Grandmother since the case began and were doing well.

Their lives were stable, which was particularly important for the oldest child, T.L., as he

has numerous mental health issues. The CASA/GAL reiterated this sentiment. The

older children were doing well in school and had excellent attendance.           Maternal

Grandmother’s home was calm, thus the children were calm. Maternal Grandmother

had a routine established and the children were acclimated to the home life.

      (¶22) Further, testimony was presented which showed Paternal Grandmother’s

home would not be the best placement for the children.        Parents, who had failed to

complete any aspect of their individual case plans, were living with Paternal

Grandmother. Overnight and weekend visitations were a concern as well. Dr. Tener
Stark County, Case No. 2011CA00154                                                  7


testified T.L. needed emotional stability which he receives with Maternal Grandmother.

Dr. Tener added T.L. was thriving with Maternal Grandmother. The boy feels safe and

secure. Dr. Tener asked, “If it is not broken, why fix it?”

       (¶23) Paternal Grandmother’s third assignment of error is overruled.

       (¶24) The judgment of the Stark County Court of Common Pleas, Juvenile Court

Division, is affirmed in part; reversed in part; and the matter remanded for further

proceedings consistent with this opinion and the law.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER


                                              s/ Julie A. Edwards ___________________
                                              HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00154                                                   8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


DOROTHY LICHTENWALTER                      :
                                           :
       Appellant                           :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STARK COUNTY DEPARTMENT OF                 :
JOBS AND FAMILY SERVICES, ET AL.           :
                                           :
       Appellee                            :         Case No. 2011CA00154


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Juvenile Court Division, is affirmed in part; reversed in

part; and the matter remanded for further proceedings consistent with our opinion and

the law. Costs split equally.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Julie A. Edwards ___________________
                                           HON. JULIE A. EDWARDS
