[Cite as Canada v. Blakenship, 2018-Ohio-4781.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




KATRINA CANADA,

        PLAINTIFF-APPELLANT,                            CASE NO. 9-18-16

        v.

GARY BLANKENSHIP,                                       OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                                 Family Division
                           Trial Court No. 16 DR 0064

                                    Judgment Affirmed

                          Date of Decision: December 3, 2018




APPEARANCES:

        Robert C. Nemo for Appellant

        G. Scott McBride for Appellee
Case No. 9-18-16


SHAW, J.

       {¶1} Mother-Appellant, Katrina Canada (“Katrina”) appeals the April 10,

2018 judgment of the Marion County Court of Common Pleas, Family Division,

granting a Motion for Contempt and Modification of Parental Rights and

Responsibilities filed by Father-Appellee, Gary Blankenship (“Gary”). On appeal,

Katrina argues: that the trial court erred in finding a change in circumstances

occurred to modify the parties’ prior custody order; that the trial court abused its

discretion when it only permitted Katrina to have two hours of supervised visitation

per week with the parties’ child in its new custody order; that the trial court erred

when it failed to appoint a guardian ad litem; and that the trial court allowed

impermissible hearsay evidence to be presented at the hearing on Gary’s motion.

                      Relevant Facts and Procedural History

       {¶2} The parties were at one time married. In 2015, G.B. was born as issue

of the marriage. The parties subsequently filed for a dissolution of their marriage

and on June 20, 2016, the trial court granted the dissolution and adopted the parties’

parenting plan, under which Katrina was named residential parent and Gary was

given visitation with G.B. every other weekend, as well as additional times

throughout the year for holidays and vacations.

       {¶3} On February 17, 2017, Katrina filed a Motion to Modify Parental Rights

and Responsibilities claiming her older daughter, J.C., from another relationship,


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was “extremely apprehensive” being around Gary and requesting that an order

directing all parenting time exchanges relating to G.B. occur at the CareFit Center

in Marion, Ohio. The record established that underlying this motion were Katrina’s

allegations that Gary sexually abused J.C. The trial court subsequently issued an

order granting Katrina’s request. The record further indicated that Katrina filed a

petition for a Civil Protection Order (“CPO”) against Gary. Said petition was later

dismissed.

       {¶4} On March 24, 2017, Gary filed a Motion for Modification of Shared

Parenting Plan/Parenting Time seeking additional parenting time than previously

agreed upon by the parties in the prior parenting plan.

       {¶5} On June 16, 2017, the parties agreed to modify the existing custody

order, giving Gary additional parenting time on a rotating two week basis, with

exchanges to occur at the Marion Meijer. This resulted in the parties having close

to equal parenting time with G.B. The parties continued to exchange parenting time

pursuant to the agreed judgment entry, however Gary’s parents facilitated the

exchanges with Katrina so that the parties did not have to interact with one another.

       {¶6} On or about October 13, 2017, Katrina failed to meet Gary’s parents at

the agreed upon point of exchange. It later came to light that Katrina was alleging

that Gary had molested two-year old G.B. and refused to permit him to have contact

with G.B. The record indicates that Katrina took G.B. to be examined by a Sexual


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Assault Nurse Examiner (“SANE”), who found no evidence of trauma. Law

enforcement and children services investigated Katrina’s allegations against Gary

and found them to be unsubstantiated.

       {¶7} On October 30, 2017, Gary filed a Motion for Order to Have Law

Enforcement Assist & Enforce the Court’s Parenting Order, claiming that Katrina

had denied him parenting time and made false allegations against him. The same

day, Gary also filed a Motion for Contempt and Modification of Parental Rights and

Responsibilities, seeking to be designated the residential parent of G.B.

       {¶8} On November 8, 2017, the trial court conducted a hearing on temporary

orders, where both Katrina and Gary testified. Gary testified to instances when

Katrina unilaterally denied him his parenting time with G.B. Katrina admitted to

denying Gary his parenting time in contravention of the agreed judgment entry

based on her claim that Gary had sexually abused G.B. and her older daughter, J.C.

Gary denied the accusations. Gary further testified that Katrina had made similar

accusations regarding J.C. and prior male paramours while they were married. Gary

also expressed concern about other members of Katrina’s family fabricating

allegations of sexual abuse by him on his daughter, and testified that he feared for

G.B.’s mental and emotional well-being.        Gary requested that he be granted

temporary custody of G.B. and that Katrina exercise supervised visitations through

CareFit in Marion.


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       {¶9} On November 13, 2017, the trial court issued temporary orders granting

Gary temporary custody of G.B. and permitting Katrina to have weekly one-hour

supervised visitations at CareFit. In a separate judgment entry, the trial court also

issued an Order of Referral to Family Services Coordinators, so that an investigation

and report could be completed. The Family Service Coordinator’s report was filed

on February 6, 2018.

       {¶10} On March 1 and 22, 2018, the trial court conducted a contested hearing

on the matter, where several people testified including Gary, Katrina, several

members of their respective families, the law enforcement officer who investigated

Katrina’s accusations that Gary sexually abused G.B., and the SANE who examined

G.B.

       {¶11} On April 10, 2018, the trial court issued a judgment entry finding

Katrina in contempt for violating the parties’ prior custody order and granting

Gary’s motion to modify the order. Specifically, the trial court designated Gary as

G.B.’s residential parent and legal custodian. The trial court permitted Katrina to

exercise two-hour weekly supervised visitations with G.B. at CareFit.

       {¶12} Katrina filed this appeal, asserting the following assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FINDING THAT A CHANGE IN CIRCUMSTANCES HAD
       OCCURRED COMMENCING JUNE 16, 2017.


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                       ASSIGNMENT OF ERROR NO. 2

       EVEN IF APPELLEE PROVED A CHANGE IN
       CIRCUMSTANCE, THE TRIAL COURT ABUSED ITS
       DISCRETION BY ALLOWING APPELLANT ONLY TWO
       HOURS PER WEEK OF SUPERVISED VISITATION WITH
       THE PARTIES’ MINOR CHILD.

                       ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED BY FAILING TO APPOINT A
       GUARDIAN AD LITEM.

                       ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED BY ALLOWING HEARSAY
       EVIDENCE.

       {¶13} For ease of discussion, we elect to address the first and second

assignments of error together.

                      First and Second Assignments of Error

       {¶14} In these assignments of error, Katrina claims that the trial court abused

its discretion in finding that a modification of the parties’ prior custody order was

supported by the evidence in the record.

                                 Standard of Review

       {¶15} In reviewing the trial court’s custody determination, we are mindful

that “[t]he discretion which a trial court enjoys in custody matters should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court’s determination will have on the lives of the parties concerned.            The


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knowledge a trial court gains through observing the witnesses and the parties in a

custody proceeding cannot be conveyed to a reviewing court by a printed record.”

Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “Accordingly, an abuse of discretion

must be found in order to reverse the trial court’s award of child custody.” Barto v.

Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25; Masters v. Masters,

69 Ohio St.3d 83, 85 (1994). An abuse of discretion suggests the trial court’s

decision is unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

                                 Relevant Authority

       {¶16} Under R.C. 3109.04, a trial court in determining whether a

modification of a decree allocating parental rights and responsibilities is appropriate

must conduct two-step analysis. First, the trial court must determine whether a

change in circumstances has occurred since the prior decree was issued. Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 33, 36. R.C. 3109.04(E)(1)(a).

With regards to finding a change in circumstances, R.C. 3109.04(E)(1)(a) states:

       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. In applying these standards, the
       court shall retain the residential parent designated by the prior


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       decree or the prior shared parenting decree, unless a modification
       is in the best interest of the child and one of the following applies:

       (i) The residential parent agrees to a change in the residential
       parent or both parents under a shared parenting decree agree to
       a change in the designation of residential parent.

       (ii) The child, with the consent of the residential parent or of
       both parents under a shared parenting decree, has been
       integrated into the family of the person seeking to become the
       residential parent.

       (iii) The harm likely to be caused by a change of environment is
       outweighed by the advantages of the change of environment to the
       child.

       {¶17} R.C. 3109.04(E)(1)(a). While a trial court does not have to use the

explicit language “change in circumstances” it must be clear from the record that

the trial court applied the appropriate factors. Brumfield v. Brumfield, 3d Dist.

Marion No. 9-17-35, 2018-Ohio-901, ¶ 49, citing Nigro v. Nigro, 9th Dist. Lorain

No. 04CA008461, 2004-Ohio-6270, ¶ 6. Notably, a change in circumstance “must

be a change of substance, not a slight or inconsequential change;” however, the

statute does not require a “substantial” change. Davis v. Flickinger, 77 Ohio St.3d

415, 418, 1997-Ohio-260.

       {¶18} If the trial court determines that a change in circumstances has

occurred, the trial court must then determine whether a modification of the prior

decree is in the best interest of the child. The factors that a trial court must consider

in this determination are listed in R.C. 3109.04(F)(1), which provides as follows:


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      (F)(1) In determining the best interest of a child pursuant to this
      section, whether on an original decree allocating parental rights
      and responsibilities for the care of children or a modification of a
      decree allocating those rights and responsibilities, the court shall
      consider all relevant factors, including, but not limited to:

      (a) The wishes of the child’s parents regarding the child’s care;

      (b) If the court has interviewed the child in chambers pursuant
      to division (B) of this section regarding the child's wishes and
      concerns as to the allocation of parental rights and responsibilities
      concerning the child, the wishes and concerns of the child, as
      expressed to the court;

      (c) 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;

      (d) The child’s adjustment to the child’s home, school, and
      community;

      (e) The mental and physical health of all persons involved in the
      situation;

      (f) The parent more likely to honor and facilitate court-
      approved parenting time rights or visitation and companionship
      rights;

      (g) Whether either parent has failed to make all child support
      payments, including all arrearages, that are required of that
      parent pursuant to a child support order under which that parent
      is an obligor;

      (h) Whether either parent or any member of the household of
      either parent previously has been convicted of or pleaded guilty
      to any criminal offense involving any act that resulted in a child
      being an abused child or a neglected child; whether either parent,
      in a case in which a child has been adjudicated an abused child or
      a neglected child, previously has been determined to be the
      perpetrator of the abusive or neglectful act that is the basis of an

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       adjudication; whether either parent or any member of the
       household of either parent previously has been convicted of or
       pleaded guilty to a violation of section 2919.25 of the Revised Code
       or a sexually oriented offense involving a victim who at the time
       of the commission of the offense was a member of the family or
       household that is the subject of the current proceeding; whether
       either parent or any member of the household of either parent
       previously has been convicted of or pleaded guilty to any offense
       involving a victim who at the time of the commission of the offense
       was a member of the family or household that is the subject of the
       current proceeding and caused physical harm to the victim in the
       commission of the offense; and whether there is reason to believe
       that either parent has acted in a manner resulting in a child being
       an abused child or a neglected child;

       (i) Whether the residential parent or one of the parents subject
       to a shared parenting decree has continuously and willfully denied
       the other parent’s right to parenting time in accordance with an
       order of the court;

       (j) Whether either parent has established a residence, or is
       planning to establish a residence, outside this state.

                              Evidence at the Hearing

       {¶19} The following evidence was adduced from the two-day evidentiary

hearing on Gary’s Motion for Contempt and Modification of Parental Rights and

Responsibilities. It is undisputed by the parties that they amicably co-parented G.B.

from the dissolution of their marriage in June of 2016 to January of 2017, when

Katrina refused to facilitate Gary’s parenting time with G.B. for the first time.

       {¶20} Gary testified that in early January 2017, a few days prior to his

scheduled parenting time with G.B., he had made a post on Facebook which

included disparaging remarks about Katrina’s sudden marriage to a man, whom

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Gary claimed to be Katrina’s first cousin. Gary recalled the reaction of Katrina and

her family members; specifically that “the whole family blew it up.” (Tr. at 187).

A day or two later when Gary attempted to meet Katrina to exchange parenting time,

Katrina refused to allow Gary to have G.B. Katrina admitted to denying Gary his

parenting time, but claimed that she did so based upon accusations made by her

older daughter, then-seven-year-old J.C., that Gary had sexually abused her.

       {¶21} Gary vehemently denied the accusations and recalled that J.C. had

made similar accusations against a former boyfriend of Katrina’s. Gary testified

that during their marriage, Katrina had told him that J.C. admitted to fabricating the

allegations about Katrina’s prior boyfriend and Katrina told J.C. “it’s not right to lie

about people.” (Tr. at 183). Gary recalled that Katrina also claimed that she and

her sisters had been molested as children. At the hearing, Katrina denied making

these statements to Gary.

       {¶22} Nevertheless, Katrina maintained that she withheld G.B. from Gary

for her protection and offered to pay for Gary to take a lie detector test to prove he

did not abuse J.C. As a result, Gary did not have contact with G.B. for several weeks

until the parties went to court in the middle of March 2017. At that time, the trial

court dismissed Katrina’s request for a CPO against Gary and Gary was given

limited parenting time with G.B. until a pending motion for custody modification

was resolved.


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         {¶23} In May of 2017, while the parties’ custody proceedings were pending,

and following the determination by law enforcement and children services that

Katrina’s claims against Gary regarding J.C. could not be substantiated,1 Katrina’s

sister, Twila, authored a post on Facebook titled in all capitalized letters: THIS

POST IS REGARDING GARY BLANKENSHIP, FEEL FREE TO SHARE. (Def.

Ex. D). In this post, Twila stated “It’s truly a sad day when a seven year old girl

speaks up to admit she was raped and the rapist gets no punishment.” (Id.). The

post continues to outline the accusation that Gary sexually abused J.C. and ended

with “But you’ll get your karma you piece of shit, I hope you rot in hell. And again,

THIS IS ABOUT GARY BLANKENSHIP, HE DID UNTHINKABLE THINGS

TO A LITTLE SEVEN YEAR OLF [sic] GIRL AND GETS TO WALK AWAY

WITH NO CHARGES, HOW SAD, KEEP YOUR CHILDREN AWAY FROM

HIM!!!!!!!!!! And to add to all of this. This man works for health companies that

provide for individuals with disabilities, so he is alone with people with disabilities,

probable [sic] doing the same thing!” (Id.).

         {¶24} Another one of Katrina’s sisters, Mariah, shared the post “publically”

with the comment “Everyone please share this and get this horrible man locked up!

He still gets his own child, HIS DAUGHTER, after raping a seven year old girl.


1
  Exhibits admitted into the record demonstrate that in January of 2017, Katrina filed a report with children
services and the Marion County Sheriff’s Office based upon the accusations that Gary sexually abused J.C.
A forensic interview with J.C. was completed. However, the record indicates that the investigation of the
allegations against Gary did not result in criminal charges.

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PLEASE get justice for this little girl.” (Id.). In a comment underneath the post,

Katrina’s mother, Wendy, posted a picture of Gary and wrote “Here’s his pic since

there’s so many Gary Blankenship [sic].” (Id.). The post garnered comments from

others threatening to kill or inflict physical harm on Gary. Katrina’s mother also

reported the unsubstantiated accusations to Gary’s employer.

       {¶25} Despite the behavior of Katrina’s family members, Gary signed the

June 16, 2017 Agreed Judgment Entry granting the parties shared custody on a

rotating two-week basis based on his belief that “[w]ell, honestly, I thought we were

over all of this. That’s why I signed the shared parenting plan.” (Tr. at 291). Gary

explained that he did take precautions in light of Katrina’s and her family members’

conduct. Specifically, his parents handled all of the exchanges with Katrina, and

his mother, with whom he lived, changed, diapered and bathed G.B. to preemptively

avoid the opportunity for Katrina to make sexual abuse allegations against him.

       {¶26} However, on or about October 13, 2017, Katrina again unilaterally

denied Gary his parenting time with G.B. when she refused to meet Gary’s parents

to facilitate the exchange. Katrina claimed that she had observed strange behavior

from G.B., appearing to convey pain in genital area, and suspected that Gary had

been molesting G.B. Katrina took G.B. to the hospital where SANE Nurse, Annetta

Sipes, conducted a sexual assault exam. Nurse Snipes’ report was admitted as an

exhibit and she also testified at the hearing.


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       {¶27} Nurse Sipes recalled great difficulty trying to get the two-year-old to

cooperate and enlisted the help of Katrina to conduct the exam. Nurse Sipes testified

that she initially noticed some redness of the hymen, which gave her concern and

she administered the SANE kit which “is a collection different swabs * * * from

head to toe.” (Tr. at 15). However, Nurse Sipes testified that she did not observe

any evidence of trauma. Based on her exam, Nurse Sipes could neither conclusively

confirm nor deny that sexual abuse to G.B. had occurred.

       {¶28} The record indicates that during the investigation of her allegations of

sexual abuse of G.B., which ultimately ended with the local Prosecutor’s Office

declining to file criminal charges, Katrina continued to deny Gary all contact with

G.B. until October 30, 2017 when the trial court granted Gary’s motion seeking the

assistance of law enforcement to compel Katrina to comply with the June 16, 2017

shared custody order. The same day, Gary filed a motion to effectively terminate

the shared custody agreement between the parties and designate him residential

parent and legal custodian of G.B.

       {¶29} Gary expressed that his primary concern prompting him to seek the

change of custody was G.B.’s mental and emotional health. He stated that he feared

that as G.B. grew older Katrina and her family would continue to perpetrate false

accusations against him in the presence of G.B. or directly to her. Therefore, Gary

testified that he believed it is in G.B.’s best interest for him to be named her


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residential parent. However, Gary also testified to his belief that it is in G.B.’s best

interest to maintain a relationship with Katrina and that she should be granted

weekly supervised visitations.

       {¶30} At the hearing, Katrina remained steadfast in her claim that Gary had

sexually abused J.C. and G.B., despite the lack of evidence to substantiate the

claims. This sentiment was reiterated in the testimony of Katrina’s mother and two

sisters, who admitted to posting content on social media accusing Gary of raping

J.C. However, Katrina, her mother, and sisters all claimed at the hearing that they

had never said anything derogatory about Gary to others or in front of G.B., or

discussed the accusations with her. Katrina also claimed that she would follow any

future custody order issued by the trial court.

       {¶31} The parties admitted as a joint exhibit Katrina’s records from Marion

Area Counseling Center which indicated that she was treated for anxiety, trauma,

inattention, and sleep problems. These issues manifested in excessive worry, panic

attacks, and impulsivity. Katrina was prescribed Buspar at the time. Gary testified

that he was with Katrina when she first started counseling and that Katrina initially

took the medication but kept it in a lock box under her bed. He recalled that

Katrina’s mother found the medication and flushed it down the toilet, expressing

that Katrina needed church over medication. Gary described Katrina as constantly

overprotective of J.C., “she always thought somebody was going to hurt her


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daughter.” (Tr. at 181). Katrina denied Gary’s recollection of her mother disposing

of the medication but admitted she no longer took the medication. However, she

claimed that it was simply prescribed to her to help with her sleep problems.

       {¶32} The evidence at the hearing also established that from the time of the

temporary orders, G.B. exclusively lived with Gary and his parents in their home.

According to the testimony, G.B. is very bonded to Gary’s mother who watched the

child while Gary worked. Gary also had regular parenting time with his older

children from another marriage, with whom G.B. also has forged a strong

relationship.

       {¶33} The report of the Family Service Coordinator was admitted as the

Court’s exhibit at trial. In the report, Family Service Coordinator’s interview with

Katrina reflected that Katrina felt a considerable amount of distain toward Gary.

For example, “Mother cannot think of any strengths regarding father’s parenting

skills because ‘he raped my child.’ * * * She said that she doesn’t think that father

should be a part of [G.B.’s] life after he molested her.” (Court Ex. 1 at 2). Katrina

denied making these statements to the Family Service Coordinator when confronted

with them at the hearing. In conducting her assessment, the Family Service

Coordinator also observed the strong bond between G.B., her father, and her

paternal grandparents.    The Family Service Coordinator made the following

recommendation to the trial court:


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        It is the recommendation of the Family Service Coordinator that
        [G.B.] continue to be in the care and custody of her father.
        Mother has demonstrated that she will not allow visitation with
        father regardless of a court order. Mother has a strong belief that
        father sexually abused [G.B.].         Marion Child Welfare
        investigation regarding this sexual abuse was unsubstantiated.
        Mother is insisting that a GAL complete an investigation. During
        the course of this assessment mother challenged the Family
        Service Coordinator on almost everything that was discussed.
        Mother said that the final pretrial was going to be continued
        because she wants a GAL to protect [G.B.’s] rights.

        It is also recommended that visitation between mother and [G.B.]
        continue at Care.fit. [G.B] has adjusted to visiting with her
        mother at Care.fit. Care.fit continues to provide supervision at a
        Tier IV level which allows for continued supervision throughout
        the entire visit.

(Id. at 7).

                                 Discussion

A.      Change in Circumstances

        {¶34} On appeal, Katrina claims that the trial court abused its discretion in

finding that a change in circumstances had occurred since the prior custody decree

to warrant a modification of the parties’ custody order. Specifically, Katrina

contends that the trial court erred in considering evidence regarding Katrina’s and

her family’s conduct on social media accusing Gary of “raping” J.C. since such

conduct occurred prior to the parties entering into the June 16, 2017 Agreed

Judgment Entry. Katrina also argues that Gary simply demonstrated that the




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accusations made against him by her and her family members negatively affected

him, as opposed to having a materially adverse effect on G.B.

       {¶35} At the outset we note that the parties and their counsel continually

referred to the June 16, 2017 Agreed Judgment Entry as a “shared parenting plan”

throughout the hearing before the trial court and Gary’s motion effectively requested

a termination of the sharing parenting agreement. With regard to the termination of

a shared parenting plan, “nothing in R.C. 3109.04(E)(2)(c) requires the trial court

to find a change of circumstances in order to terminate a shared parenting

agreement.” Curtis v. Curtis, 2d Dist. Montgomery No. 25211, 2012-Ohio-4855, ¶

7. Therefore, when terminating a shared parenting plan, rather than modifying it,

the trial court does not have to find that a change in circumstances occurred. See

Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197; Warner v. Thomas,

3d Dist. Shelby No. 17-14-04, 2014-Ohio-3544, ¶¶ 9-10. Instead, the trial court

must find that “shared parenting is not in the best interest of the children.” R.C.

3109.04(E)(2)(c). Accordingly, insofar as the parties considered their prior custody

arrangement a “shared parenting plan,” the trial court was not required to consider

the threshold issue of a change in circumstances. This may explain why the record

does not contain an express finding of such by the trial court.

       {¶36} In any event, we find that the record supports the determination that a

change in circumstances had occurred in this case. Here, the record indicates that


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after the prior custody order was in place, Katrina made accusations that Gary had

sexually abused G.B. Moreover, her testimony at trial demonstrated that she

continued to believe that Gary had molested G.B., despite an investigation by law

enforcement and children services determining Katrina’s accusations to be

unsubstantiated. Other courts have held that the making of a false sexual abuse

accusation has been deemed to be “(in and of itself) a ‘factual circumstance.’ The

making of such a false accusation, subsequent to an initial award of custody, is

clearly a ‘change’ in circumstances irrespective of any detrimental impact on the

minor child. Such change frequently deprives both the child and the noncustodial

parent of visitation.” In re Russell, 4th Dist. Washington No. 98CA525 at *5 (Aug.

4, 1999), quoting Beekman v. Beekman, 96 Ohio App. 3d 783, 788-89 (4th Dist.

1994). “Moreover, we do not believe it requires any great leap in logic to find that

a false accusation of sexual abuse by one parent against another always has a

detrimental impact.” In re Russell, supra at *5.

       {¶37} In addition, Katrina’s continued and willful interference with Gary’s

parenting time constituted a sufficient change in circumstances for the trial court to

consider the modification of the prior custody order. See, e.g., In re M.O.E.W., 6th

Dist. Ottawa No. OT-17-022, 2018-Ohio-3512, ¶ 33; In re F.M.B., 4th Dist.

Washington No. 10CA28, 2011-Ohio-5368, ¶ 22; see also Pathan v. Pathan, 2d

Dist. Montgomery No. 18254, *3 (Sept. 15, 2000) (recognizing that continued


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interference with a non-custodial parent’s visitation can constitute a change in

circumstances even if the interference was raised in connection with a prior

unsuccessful custody motion); see Beckman, supra, at 789 (“When a court makes a

custodial decision, it makes a presumption that the circumstances are such that the

residential parent will promote both maternal and paternal affection * * * Where the

evidence shows that after the initial decree the residential parent is not living up to

the court’s presumption and is attempting to poison the relationship between the ex-

spouse and the children, this is a change of circumstances that warrants a

modification of the prior custody decree.”). Therefore, to the extent that the decision

of the trial court was required to be based upon a change in circumstances, we do

not find an abuse of discretion in the determination of the trial court based on the

record before it.

B. Best Interest

       {¶38} Katrina also argues that the trial court abused its discretion in

determining that granting her two-hour weekly supervised visitations is in G.B.’s

best interest. Specifically, Katrina directs us to her testimony that she would honor

all further court orders and testimony from both her and her family members that

they would refrain from making disparaging remarks about Gary and from

discussing the accusations of sexual abuse in front of G.B.




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       {¶39} In its judgment entry issuing the new custody order, the trial court

addressed each best interest factor listed in R.C. 3109.04(F)(1). The trial court

specifically found the evidence in the record demonstrating the lengths that Katrina

and her family members took to disparage and malign Gary, in spite of two

investigations resulting in a lack of evidence to support the accusations perpetuated

by Katrina and her family, Katrina’s propensity to make false accusations of sexual

abuse against Gary, and Katrina’s pattern of willfully and unilaterally denying Gary

his court-ordered parenting time with G.B. to be persuasive in its determination to

designate Gary G.B.’s residential parent and to give Katrina limited supervised

visitations.

       {¶40} With regards to Katrina’s and her family members’ representations at

the hearing, the trial court specifically found their testimony “not credible.” (Doc.

No. 75 at 4). As previously noted, the trial court was in the best position to evaluate

the credibility of the witnesses who testified in this matter. Deferring to the trial

court on matters of credibility is “crucial in a child custody case, where there may

be much evident in the parties’ demeanor and attitude that does not translate to the

record well.” In re A.M., 4th Dist. Athens No. 17CA43, 2018-Ohio-2072, at ¶ 42,

quoting, Davis v. Flickinger, 77 Ohio St.3d 415, 419 (1997).

       {¶41} In addition, the report of the Family Service Coordinator corroborated

the testimony from Gary and his mother that G.B. had forged strong bonds with the


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members in that household and appeared to be well-adjusted living in the home.

The Family Service Coordinator further observed Katrina’s extreme negativity

toward Gary and a lack of willingness to cooperate or abide by the court’s order.

       {¶42} Based upon our review of the record, we find the trial court’s decision

was supported by the manifest weight of the evidence. Accordingly, we conclude

that the trial court did not abuse its discretion in designating Gary the residential

parent and legal custodian of G.B. Moreover, in light of the evidence in the record

demonstrating Katrina’s apparent lack of respect for the trial court’s orders and

unwillingness to facilitate Gary’s parenting time, we do not find that the trial court

abused its discretion in only granting her supervised visitations. Therefore, the first

and second assignments of error are overruled.

                              Third Assignment of Error

       {¶43} In her third assignment of error, Katrina argues that the trial court erred

in failing to appoint a guardian ad litem to the case. At the outset, we note that R.C.

3109.04(B)(2)(a) which governs appointment of guardians ad litem when modifying

parental rights and responsibilities provides, in part, that “[i]f the court interviews

any child pursuant to division (B)(1) of this section * * * [t]he court, in its discretion,

may and, upon the motion of either parent, shall appoint a guardian ad litem.” Here,

a review of the record reflects that due to G.B.’s young age the trial court did not

interview her in chambers. “However, in accordance with the plain language of the


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statute, where the trial court does not meet with the child before entering its

judgment, it is not required to appoint a guardian ad litem.” Ralston v. Ralston, 3d

Dist. No. 9-08-30; 2009-Ohio-679, ¶ 22; See, also, Feltz v. Feltz, Mercer App. No.

10-04-04, 2004-Ohio-4160 at ¶ 5 (stating that although appellant requested a GAL,

the court was not required to appoint one under R.C. 3109.04 because the court did

not meet with the children before entering judgment).

       {¶44} Moreover, the record demonstrates that even though Katrina initially

requested the appointment of a guardian ad litem to the case prior to the submission

of the Family Services Coordinator’s report, she did not renew her request for a

guardian ad litem before the evidentiary hearing or object to the submission of the

Family Services Coordinator report on that basis. Thus, the matter being purely

within the discretion of the trial court, and absent an interview of the child, we

cannot conclude that the trial court abused its discretion in failing to appoint a

guardian ad litem. Therefore, the third assignment of error is overruled.

                           Fourth Assignment of Error

       {¶45} In her fourth assignment of error, Katrina argues that the trial court

erred in allowing impermissible hearsay to be presented at the evidentiary hearing.

Specifically, Katrina points to Gary’s testimony regarding J.C.’s admission to

fabricating allegations of sexual abuse in the past, testimony related to Katrina’s

sister’s disparaging Facebook post regarding Gary, and Gary’s testimony regarding


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phone records. Although Katrina admits that the testimony which she now claims

to be hearsay was not objected to at the hearing, she nevertheless contends any

reliance of the trial court on such evidence constitutes plain error.

       {¶46} For his part, Gary argues that each piece of evidence pointed to by

Katrina was not hearsay. Specifically, Gary argues that the testimony regarding

J.C.’s statements and the phone records were offered to rebut Katrina’s prior

testimony accusing Gary of sexually abusing J.C., and claims that she had

unsuccessfully attempted to make consistent contact with G.B. after the temporary

custody orders were issued in this case, but Gary’s family never returned her calls.

Furthermore, Gary argued that Katrina’s sister’s Facebook posting was not offered

for the truth of the matter asserted—i.e., to prove that Gary sexually abused J.C.,

but instead to show a pattern of conduct, motive, and state of mind of Katrina and

her family members, whom Katrina permitted G.B. to be around on a constant basis.

See Evid. R. 803(3).

       {¶47} In our review of the record, we find no plain error in the admission of

the disputed evidence even if it were hearsay. Where a trial judge acts as the finder

of fact, as in this case, a reviewing court should be reluctant to overturn a judgment

on the basis of the admission of inadmissible testimony, unless it appears that the

trial court actually relied on such testimony in arriving at its judgment, because the




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trial judge is presumed capable of disregarding improper testimony. In re T.M., III,

8th Dist. Cuyahoga No. 83933, 2004-Ohio-5222, ¶ 24.

       {¶48} Katrina offers no evidence which demonstrates that the trial judge

relied on any of the alleged hearsay in arriving at her judgment. Likewise, we find

no evidence in the record that overcomes the presumption that the judge disregarded

any evidence that was not properly before her. Accordingly, the fourth assignment

of error is overruled.

       {¶49} Based on the foregoing, the assignments of error are overruled and the

judgment of the trial court is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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