[Cite as In re N.F., 2020-Ohio-2701.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: N.F.                                          C.A. No.     29508
       N.T.


                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE Nos. DN 16-06-429
                                                                DN 16-06-430

                                 DECISION AND JOURNAL ENTRY

Dated: April 29, 2020



        SCHAFER, Judge.

        {¶1}     Appellants, J.K. and K.K. (“Custodians”), appeal from a judgment of the Summit

County Court of Common Pleas, Juvenile Division, that modified the children’s parenting time

with their mother, S.J. (“Mother”). This Court affirms.

                                                I.

        {¶2}     Mother is the biological mother of N.F., born October 21, 2008; and N.T., born

February 3, 2012. On July 23, 2012, Akron Police placed the children under the protective

supervision of Summit County Children Services Board (“CSB”) because Mother had been

arrested for forging a Xanax prescription. On July 27, 2012, CSB filed complaints to allege that

these children were neglected and dependent because Mother appeared to have a substance abuse

problem. Mother agreed to place the children in the home of Custodians while she addressed her

drug problem and related criminal charges. The children were later adjudicated neglected and

dependent and placed in the temporary custody of Custodians.
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       {¶3}    On July 13, 2013, Custodians were awarded legal custody of N.F. and N.T. At that

time, Mother was granted supervised visitation two times per week until she successfully

completed substance abuse treatment. After completing drug treatment, Mother’s parenting time

was to be liberal, as arranged by Custodians. Mother completed drug treatment and began having

unsupervised visits with N.F. and N.T. in November 2016.

       {¶4}    During March 2018, Mother moved for a modification of legal custody or,

alternatively, a modification of her parenting time. Mother’s request for increased parenting time

was supported by her allegation that Custodians had stopped allowing her to visit her children.

       {¶5}    The matter ultimately proceeded to a hearing before a magistrate. Following the

hearing, the magistrate denied Mother’s motion for legal custody but granted her a standard order

of parenting time with the children. Custodians filed objections, which were later overruled by

the trial court. The trial court granted Mother a standard order of parenting time with N.F. and

N.T. Custodians appeal and raise three assignments of error.

                                               II.

                                     Assignment of Error I

       The trial court committed reversible error and violated legal custodians’
       rights to due process when it held, after a hearing on visitation and custody,
       that an unsigned pleading would be considered a response by [Mother] to legal
       custodians’ request for admissions.

       {¶6}    Custodians’ first assignment of error is that the trial court improperly accepted

Mother’s responses to their requests for admissions under Civ.R. 36. They argue that the trial

court lacked authority under Civ.R. 36 to admit Mother’s answers because Mother did not sign her

responses as required by Civ.R. 36 and the requests had already been deemed admitted at the

hearing.
                                                 3


       {¶7}    The record reflects the following relevant facts. On October 29, 2018, Custodians

filed and served Mother with written requests for admissions. The document requested that Mother

admit or deny 17 statements of fact and/or conclusions of law and was electronically signed by

Custodians’ counsel. Among other things, the requests asked Mother to concede that there was no

factual or legal basis for her motions.1

       {¶8}    On November 5, 2019, a similar document was filed in the trial court and served

on the parties. The November 5 document was a verbatim copy, albeit in a different font, of

Custodians’ original requests for admissions with their counsel’s electronic signature. The

document was not signed by Mother. Notably, however, the handwritten words “admit” or “deny”

had been added after each of the original typed statements.

       {¶9}    To support their argument that the requests were deemed admitted, Custodians

point to one question answered by the magistrate at the hearing. During a lengthier discussion,

counsel for Custodians asked the magistrate, “just so I’m clear, you said the request for admissions

are deemed admitted and will be considered?” The magistrate responded, “Yes.” Although this

response might suggest that the magistrate deemed the requests for admissions admitted by

Mother, this Court must review this brief exchange within the entire context of what transpired at

the hearing.

       {¶10} At the commencement of the hearing, counsel for Custodians asked that the

requests be deemed admitted because Mother did not respond as required by Civ.R. 36. Mother,

representing herself pro se, explained that she had filed the timely but unsigned responses. She


       1
         This Court must note that Custodians failed to comply with Civ.R. 36 because many of
their requests did not ask for “statements or opinions of fact or of the application of law to fact,”
but instead asked for legal conclusions about the merits of Mother’s case. Such requests were
improper under Civ.R. 36(A). Cleveland v. Daher, 8th Dist. Cuyahoga No. 76975, 2000 WL
1844739, *7 (Dec. 14, 2000).
                                                 4


explained that she responded as she thought she was supposed to and made sure that the document

was served on counsel for Custodians and the guardian ad litem. The guardian ad litem stated that

she had received a time-stamped copy of the responses.

        {¶11} Counsel for Custodians admitted that he received the purported responses but stated

that he had ignored them because he did not know what they were or who they were from. He

referred to Mother’s alleged responses as a “sham pleading” and asked that the document be

stricken from the record. Counsel handed the magistrate a copy of a legal authority, which is not

cited in the record, and a brief recess was taken for the magistrate to consider Custodians’ argument

that Mother’s responses should be stricken.

        {¶12} After the recess, the magistrate stated on the record that Custodians’ argument was

not persuasive and that “[w]e will proceed with trial today. Her admissions and responses to your

request will be accepted into the record.” Although the magistrate later responded “yes” to

counsel’s question that “the request for admissions are deemed admitted and will be considered[,]”

within the context of the entire conversation, the magistrate was merely reiterating that both

documents (the requests and the responses) would be admitted into evidence.

        {¶13} Moreover, the parties went forward with a hearing, during which Mother presented

evidence to support her motions without any objection from Custodians. By taking evidence to

support Mother’s allegations, the trial court further demonstrated that it had not accepted

Custodians’ argument that Mother’s motions had no merit because she made default admissions

under Civ.R. 36(A)(1). See Balson v. Dodds, 62 Ohio St.2d 287, 296 (1980), fn.2. Moreover,

Custodians cross-examined most of Mother’s witnesses, further demonstrating that many material

facts were still in dispute.
                                                 5


        {¶14} Finally, it is fundamental that a trial court speaks through its journal entries, not

through oral pronouncements made during a hearing. State v. Hampton, 134 Ohio St.3d 447, 2012-

Ohio-5688, ¶ 15. The magistrate’s decision and the trial court’s judgment adopting it do not

mention default admissions made by Mother, but instead refer to the evidence presented at the

hearing. It is apparent from the record that the trial court accepted Mother’s timely responses to

Custodians’ requests for admissions and did not deem the requests to be admitted by Mother’s

failure to strictly comply with Civ.R. 36. Custodians’ first assignment of error is overruled

accordingly.

                                     Assignment of Error II

        The trial court committed reversible error in finding that there has been a
        change in circumstances regarding Mother’s motion to modify visitation as it
        was against the manifest weight of the evidence.

                                 Assignment of Error III

        The trial court committed reversible error by finding that it was in the
        children’s best interest for Mother to have a standard order of visitation.

        {¶15} This Court will address Custodians’ second and third assignments of error together

because they are interrelated. Custodians’ second assignment of error is that the trial court erred

in finding that there had been a change in circumstances of the children or Custodians that justified

a modification of Mother’s parenting time. This Court need not delve into the evidence supporting

the trial court’s finding that there had been a change of circumstances because no change was

required for the trial court to modify parenting time.

        {¶16} Custodians premise their argument on R.C. 2151.42(B), which provides, in relevant

part:

        A court shall not modify or terminate an order granting legal custody of a child
        unless it finds, based on facts that have arisen since the order was issued or that
        were unknown to the court at that time, that a change has occurred in the
        circumstances of the child or the person who was granted legal custody, and that
                                                 6


       modification or termination of the order is necessary to serve the best interest of the
       child.

(Emphasis added.)

       {¶17} Although R.C. 2151.42 applies to a judgment that modifies or terminates an order

of “legal custody,” the trial court denied Mother’s motion to modify legal custody. It modified

only parenting time. Custodians cite no authority for their argument that R.C. 2151.42 also applies

to a judgment that modifies parenting time (formerly referred to as parental visitation).

       “Visitation” and “custody” are related but distinct legal concepts. “Custody”
       resides in the party or parties who have the right to ultimate legal and physical
       control of a child. “Visitation” resides in a noncustodial party and encompasses that
       party’s right to visit the child. * * * Although a party exercising visitation rights
       might gain temporary physical control over the child for that purpose, such control
       does not constitute “custody” because the legal authority to make fundamental
       decisions about the child’s welfare remains with the custodial party and because
       the child eventually must be returned to the more permanent setting provided by
       that party.

Braatz v. Braatz, 85 Ohio St.3d 40, 44 (1999).

       {¶18} By definition, following the adjudication of these children as neglected and

dependent, “legal custody” vested in Custodians the right to have physical care and control of the

these children and to determine where and with whom they should live, and the right and duty to

protect, train, and discipline the them and provide them with food, shelter, education, and medical

care. R.C. 2151.011(B)(21). Mother retained residual parental rights including “the privilege of

reasonable visitation[.]” R.C. 2151.011(B)(21) and (48).

       {¶19} The trial court’s modification of Mother’s parenting time did not affect its prior

award of legal custody to Custodians. Consequently, the trial court was not required to find the

threshold change of circumstances set forth in R.C. 2151.42. See also In re J.S., 11th Dist. Lake

No. 2011-L-162, 2012-Ohio-4461, ¶ 27-31 (holding that the best interest of the child is the sole

consideration when modifying parenting time for a child who has been placed in the legal custody
                                                  7


of another following an adjudication of abuse). Because there was no need for the trial court to

find a change of circumstances to modify Mother’s parenting time, any error in that finding was

harmless.

       {¶20} Instead, the trial court was required to focus solely on the best interest of the

children when modifying Mother’s parenting time. Id. The trial court looked at the best interest

factors set forth in R.C. 3109.051. Custodians’ third assignment of error does not make a factual

argument pertaining to the children’s best interest but instead argues only that the trial court erred

in applying the best interest factors set forth in R.C. 3109.051. They cite no case law to support

their argument but rely solely on the language of the statute. R.C. 3109.051(A) provides, in

relevant part:

       If a divorce, dissolution, legal separation, or annulment proceeding involves a
       child and if the court has not issued a shared parenting decree, the court * * * shall
       make a just and reasonable order or decree permitting each parent who is not the
       residential parent to have parenting time with the child at the time and under the
       conditions that the court directs, unless the court determines that it would not be in
       the best interest of the child to permit that parent to have parenting time with the
       child[.]

(Emphasis added.)

       {¶21} R.C. 3109.051 does use only the terms “divorce, dissolution, legal separation, or

annulment proceeding[,]” but that is true with all sections of R.C. Chapter 3109, as they were

initially intended to pertain to proceedings related to divorce, dissolution, and annulment, and are

not tailored to proceedings involving abused, neglected, or dependent children.

       {¶22} The language of R.C. 3109.04 (pertaining to custody) also does not refer to legal

custody proceedings after a child has been adjudicated abused, neglected, or dependent, but

specifically applies to “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[.]”
                                                 8


Nevertheless, R.C. 2151.23(F)(1) provides that “[t]he juvenile court shall exercise its jurisdiction

in child custody matters in accordance with sections 3109.04 and 3127.01 to 3127.53 of the

Revised Code[.]” This Court has long recognized that the best interest factors set forth in R.C.

3109.04 apply to a trial court’s determination of legal custody following an adjudication of abuse,

neglect, or dependency. See, e.g., In re A.M., 9th Dist. Summit No. 29388, 2019-Ohio-5221, ¶ 12;

In re K.A., 9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-Ohio-1, ¶ 17.

        {¶23} Although R.C. 3109.051 does not refer to parenting time in proceedings involving

an abused, neglected, or dependent child, there is no statute that does. In fact, R.C. 3109.051 is

the only statute pertaining to parenting time and has been applied in similar situations to the one

before us on appeal. In re J.S., 2012-Ohio-4461, at ¶ 31. Custodians have failed to demonstrate

that the trial court erred in applying the best interest factors of R.C. 3109.051 in its decision to

modify Mother’s parenting time.

        {¶24} Finally, Custodians argue that the trial court had no authority to award Mother a

standard parenting time order because she did not explicitly request a standard order. They cite

no authority to support their argument that a trial court’s determination of parenting is confined to

what the parent requests. R.C. 3109.051(A) provides that “the trial court shall make a just and

reasonable order * * * [of] parenting time with the child at the time and under the conditions that

the court directs[.]”

        {¶25} Further, “[w]henever possible, the order * * * shall ensure the opportunity for [the]

parent[] to have frequent and continuing contact with the child[.]” R.C. 3109.051(A). The Ohio

Supreme Court has held that “[p]ursuant to R.C. 3109.051(D), the trial court shall consider the

fifteen factors enumerated therein, and in its sound discretion shall determine visitation that is in

the best interest of the child.” Braatz v. Braatz, 85 Ohio St.3d 40 at paragraph two of the syllabus.
                                                 9


Custodians have failed to demonstrate that the trial court abused its discretion by granting Mother

the “standard” order of parenting time. Custodians’ second and third assignments of error are

overruled.

                                                III.

       {¶26} Custodians’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                         10




CALLAHAN, P. J.
CARR, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellants.

S. J., pro se, Appellee.

GINA D’AURELIO, Guardian ad Litem.
