[Cite as Garrett v. Ewing, 2018-Ohio-3716.]




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




LETITIA N. GARRETT,

        PLAINTIFF-APPELLANT,                             CASE NO. 17-18-03

        v.

JESS E. EWING,                                           OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Shelby County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2011 SUP 0091

                                     Judgment Affirmed

                         Date of Decision: September 17, 2018




APPEARANCES:

        Jeremy M. Tomb for Appellant

        Jay M. Lopez for Appellee
Case No. 17-18-03


SHAW, J.

       {¶1} Plaintiff-appellant, Letitia Garrett (“Garrett”), brings this appeal from

the March 6, 2018, judgment of the Shelby County Common Pleas Court, Juvenile

Division, terminating the shared parenting plan between her and defendant-appellee,

Jess Ewing (“Ewing”), and awarding custody of the parties’ two children to Ewing.

On appeal, Garrett argues that the trial court erred by finding Garrett in contempt

for denying Ewing parenting time with the children, that the trial court erred in

finding that it was in the children’s best interest that Ewing be named sole residential

parent and legal custodian of the children, and that the trial court abused its

discretion when it excluded some statements made by one child to a mental health

professional.

                       Relevant Facts and Procedural History

       {¶2} The parties in this case were never married, but they were together for

approximately 10 years. They had two children together: S.E. born in July of 2003

and H.E. born in August of 2009. Following the parties’ separation, there was a

substantial amount of litigation related to custody of the children, beginning on

December 13, 2011, when Garrett filed a complaint seeking to be named residential

parent and legal custodian of the children. However, that initial issue was resolved

on April 20, 2012, when the parties voluntarily entered into a shared parenting plan

(“SPP”), agreeing to share parental rights and responsibilities of the children.


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           {¶3} Then, on January 29, 2014, Garrett filed a motion for reallocation of

parental rights and responsibilities. Ewing subsequently filed a motion to modify

the SPP. Both parties filed contempt motions, Ewing arguing that Garrett had

improperly denied him visitation with the children and claiming that Garrett had

improperly used the child tax exemption against court orders.

           {¶4} A guardian ad litem (“GAL”) was appointed for the children and she

filed a report on April 18, 2014. The GAL’s report indicated that Garrett stopped

sending the children for Ewing’s parenting time after an incident wherein S.E.

received a burn on his “bottom” from Ewing’s motorcycle. The GAL recommended

that Ewing receive makeup time for the time he lost with his children, and then

concluded that the SPP should continue.

           {¶5} A hearing was held before a magistrate on the pending issues May 13,

2014.1 On June 13, 2014, the magistrate rendered a decision keeping the SPP in

place, with minor alterations regarding the schedule. The magistrate’s decision did

find Ewing in contempt for her refusal to send the children for Ewing’s parenting

time and for using the tax exemption in violation of the SPP. No objections were

filed to the magistrate’s decision, and it was adopted as the order of the trial court

on July 17, 2014.




1
    There is no transcript of this hearing in the record.

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       {¶6} The next major action in this case began on April 2, 2015, when Garrett

filed an ex parte motion to suspend Ewing’s parenting time. She later also sought

the reallocation of parental rights and responsibilities.

       {¶7} On May 4, 2015, Ewing filed a motion to terminate the SPP, seeking to

be named as residential parent and legal custodian of the children.

       {¶8} On May 7, 2015, Ewing filed a contempt motion against Garrett for her

refusal to send the children for his parenting time.

       {¶9} A GAL was again appointed for the children, and on August 17, 2015,

the GAL filed her report. The GAL recommended that the SPP should be continued

and that the parties and H.E. should be in counseling.

       {¶10} The pending matter proceeded to a final hearing before a magistrate

on August 28, 2015. Just prior to the hearing, H.E. was interviewed in camera. The

evidence, as summarized by the magistrate, indicated that H.E. had been diagnosed

with a number of bladder infections, yeast infections, and UTIs. Garrett attributed

these infections to some failing on Ewing’s part, and accused him of sexual abuse

of H.E. This was the basis for her ex parte motion against Ewing.

       {¶11} The matter was investigated by the police and children’s services and

the allegations were determined to be unsubstantiated. However, it was clear that

H.E. did have a number of UTIs and yeast infections. As a result, H.E. was provided

with certain medications and creams that had to be applied to her private areas.


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        {¶12} Garrett took H.E. to the doctor often, and when the children were in

Ewing’s care, she called the police 4-5 times to do “well checks” on the children

despite no discernible reason to do so. No charges were ever filed against Ewing as

a result of Garrett’s calls. The magistrate then made the following analytical

summary of the evidence presented.

        Although Mother asserts that all of her conduct since the prior
        orders of the Court have been in good faith and in the best interest
        of the children, a summary of the evidence is that: 1) she made 4-
        5 unjustified “Well-Checks” upon father, 2) that she engaged in
        approximately 8 medical visits for [H.E.]’s vaginal infections
        (including 2 pelvic exams) without involving or consulting Father
        other than as noted, 3) that despite the unsubstantiated findings
        of medical examinations, Children’s Services or the Sheriff’s
        Office she persists in her belief that sexual abuse has occurred
        knowing full well that Father had, in fact, been required to make
        physical contact with [H.E.]’s private areas for needed treatment,
        4) that she knew or should have known full well the limitations of
        the information upon which the Counselor relied when advising
        her that sexual abuse occurred,2 and 5) that regardless of the best
        interest of [S.E.] and [H.E.] she continues to advocate that it
        would be her preference if neither of them were required to ever
        visit with their Father. She expresses no interest in family
        counseling that may have a better chance of dealing with the
        perceived issues. When looking at the totality of the evidence it is
        clear that Mother has construed each problem she has
        experienced to be one arising from an abusive or neglectful
        parenting of the Father. Her behavior has not been in the best
        interests of the children.




2
  H.E.’s counselor was not told about the creams that had to be applied to H.E. as a result of her medical
issues and thus when she asked H.E. about being touched by Ewing in her private areas the counselor
concluded sexual abuse was occurring.

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(Doc. No. 234). Despite this analysis, the magistrate did not recommend awarding

custody to Ewing at that time. Rather, the magistrate modified the SPP to a week-

on, week-off schedule.

       {¶13} The magistrate amended its decision to address additional issues.

Afterward, Garrett objected to the magistrate’s decision. On February 8, 2016, the

trial court overruled those objections after conducting an independent review, and

then adopted the recommendations of the magistrate.

       {¶14} The current litigation began on February 3, 2017, when Garrett filed,

inter alia, a motion to terminate the SPP.

       {¶15} On March 22, 2017, Ewing also filed a motion to terminate the SPP,

and a motion for contempt, seeking to have Garrett found in contempt for refusing

to send the children for his parenting time and for Garrett’s failure to send H.E. to

school.

       {¶16} On April 21, 2017, a GAL was appointed—a different GAL than had

worked on the case previously.

       {¶17} On June 20, 2017, the GAL filed a report, summarizing the history of

parenting between the parties as “one of allegations of abuse, numerous requests for

well child checks and denial of parenting time. The allegations of abuse concern

[H.E.] * * *[.] The claims of abuse have been investigated and determined to be

unfounded.” (Doc. No. 322).


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       {¶18} The GAL indicated that Garrett had requested an “outrageous number

of [well] child checks [to the point that] [t]he children have come to think this [i]s

normal.” (Id.) The GAL indicated that this case “in no way contains the ingredients

for shared parenting. Communication is abysmal and mother wants to totally

eliminate father’s parenting time with the daughter based upon no credible evidence

nor wishes of the child. There aren’t even any alternative facts in support of

mother’s position.” (Id.)

       {¶19} The GAL addressed all of the R.C. 3109.04(F)(1) best interest factors

individually, then concluded that the SPP should be terminated and Ewing should

be designated as residential parent of the children.

       {¶20} The matter proceeded to a final hearing before a magistrate on June

29, 2017. At the hearing, the GAL testified, as did Garrett and Ewing. In addition,

Ewing’s long-term girlfriend—who was the mother of another of his children—

testified, along with H.E.’s therapist. Further, an in camera interview of H.E. was

conducted.

       {¶21} On September 22, 2017, the magistrate filed its decision on the matter.

The magistrate made a number of factual findings including that Ewing had missed

a month of parenting time based on his testimony of the same. The magistrate noted

that Garrett claimed that H.E.’s repeated UTIs were as a result of Ewing giving her

Capri Sun to drink at his house. The magistrate did not find Garrett’s claims that


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H.E. missed so many school days because of illnesses credible, when H.E. had

missed 15 days of school by early January and only a couple of them were excused.3

Only one day was missed during Ewing’s parenting time.

           {¶22} The magistrate also found that Garrett had called the police on Ewing

approximately 10 times for “well child” checks over the prior year and Ewing was

never charged and nothing was done.

           {¶23} After reviewing all of the evidence the magistrate found that a change

in circumstances had occurred.                     The magistrate found that the lack of

communication, the failure to attend appropriate counseling, and the involvement

of children’s services and the police in this case was “over the top.” Combining this

with the parties’ wishes to terminate the SPP, the magistrate found a change in

circumstances. The magistrate then analyzed and addressed all of the best interest

factors in R.C. 3109.04(F) and found that Ewing should be awarded custody of the

children. In addition, Garrett was found in contempt for her failure to send the

children for Ewing’s parenting time.

           {¶24} On October 6, 2017, Garrett filed objections to the magistrate’s

decision. She took issue with a number of the magistrate’s factual findings, argued

that the magistrate’s ultimate conclusion was not supported, and claimed that the




3
    There was testimony that H.E. missed as many as 30 days the year prior.

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magistrate erred by excluding some testimony from H.E.’s counselor. Garrett later

supplemented the objections and Ewing filed a response.

       {¶25} On March 6, 2018, the trial court conducted an independent review of

the matter and overruled Garrett’s objections. The trial court then adopted the

magistrate’s recommendation to terminate the SPP and designate Ewing as

residential parent and legal custodian of the children, reasoning, in part, as follows.

       [T]he court finds little or no evidence of cooperation on any
       meaningful level and that it is having a negative effect on the
       children. The approach to counseling, medical care, complaints
       to Children Services, and police involvement have not been
       appropriate. Both parties generally acknowledge the problems
       and are each steadfast in their support for the termination of the
       plan for their own reasons.

(Doc. No. 345). The trial court addressed all of the relevant factors of R.C.

3109.04(F) related to best interest, and then designated Ewing as residential parent

and legal custodian of the children. It is from this judgment that Garrett appeals,

asserting the following assignments of error for our review.

                            Assignment of Error 1
       The trial court’s finding that Mother is in contempt regarding
       Father’s parenting time was not supported by sufficient credible
       evidence.

                             Assignment of Error 2
       The trial court’s decision that it was in the minor children’s best
       interest that Father be named sole legal custodian and residential
       parent was against the manifest weight of the evidence.




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                            Assignment of Error 3
       The trial court abused its discretion when it excluded statements
       made by the child to medical and mental health professionals.

                                 First Assignment of Error

       {¶26} In Garrett’s first assignment of error, she argues that the trial court

erred in finding her in contempt for failure to send the children for Ewing’s

parenting time. Specifically, she contends that Ewing’s testimony was not sufficient

to satisfy the clear and convincing burden of proof required.

                                 Standard of Review

       {¶27} A finding of contempt must be based on clear and convincing

evidence. Pugh v. Pugh, 15 Ohio St.3d 136, 139 (1984). “Clear and convincing

evidence is that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), at

paragraph 3 of syllabus.

                                      Analysis

       {¶28} In this case, Garrett argues that the trial court erred by finding her in

contempt for failure to provide Ewing his parenting time. She claims that the record

was not clear on how much time Ewing missed. Garrett argues that Ewing’s


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testimony that he missed “roughly around thirty” days of visitation, or perhaps a

little less, was not sufficient to establish the burden of proof. (Tr. at 209).

       {¶29} Contrary to Garrett’s testimony, Ewing repeatedly testified that he had

been denied parenting time, up to as much as a month, and that Garrett had let him

make up a week of that time. The GAL also found that Garrett had been denied

parenting time and recommended that he be permitted to make it up.

       {¶30} Moreover, and perhaps most importantly, Garrett actually admitted

that Ewing had missed some parenting days. She indicated that he had made up the

“week” that he had missed but there were some week days perhaps unaccounted for.

(Tr. at 82). Thus the only testimony in the record seems to support the conclusion

that Ewing had not received all his parenting time and that Garrett was willfully

preventing him from doing so.

       {¶31} The trial court was certainly free to believe the testimony of Ewing

that the time he missed was as much as a month, but even if the trial court thought

the total amount was less, it does not change the fact that Garrett refused Ewing at

least some parenting time in contravention of the court’s order even according to

her own testimony.       For these reasons Garrett’s first assignment of error is

overruled.

                             Second Assignment of Error




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       {¶32} In Garrett’s second assignment of error, she argues that the trial court

erred in finding that it was in the children’s best interest for Ewing to be named sole

legal custodian and residential parent of the parties’ children.



                                 Standard of Review

       {¶33} “ ‘Decisions concerning child custody matters rest within the sound

discretion of the trial court.’ ” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9–12–15, 2013–

Ohio–1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17–10–15,

2011–Ohio–3008, ¶ 22 and 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.” Walker, citing Barto v. Barto, 3d Dist. Hancock

No. 5-08-14, 2008-Ohio-5538, ¶ 25 and 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 Statutory Authority

       {¶34} Revised Code 3109.04(F)(1) governs the determination of best

interests related to a custody modification. It reads as follows.

       (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


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      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
      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

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       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.

                                       Analysis

       {¶35} In this case, the magistrate analyzed and addressed each of the best

interest factors individually, where applicable. Garrett objected to the magistrate’s

decision, and her objections were overruled. The trial court then also individually

addressed and analyzed each of the best interest factors. We will conduct a review

of the trial court’s findings in its entry regarding each of the best interest factors in

R.C. 3109.04(F)(1).

       {¶36} With regard to the wishes of the children’s parents for the children’s

care in factor (a), both parents wanted full custody of the children. However, Garrett

wanted Ewing’s contact with the children limited, and also wanted the exchanges to


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occur at the Sheriff’s Office. The trial court determined that Garrett’s insistence on

limitations she wanted placed on visitation were not credibly supported, indicated

that Ewing’s wishes were better received by the trial court.

       {¶37} With regard to the wishes of the children under factor (b), the trial

court conducted an interview of H.E. in chambers, but not S.E. (as it was not

requested). The trial court also reviewed the report of the GAL and the GAL’s

testimony.   Notably, the children did not have a problem with either parent.

Nevertheless, both children indicated that they favored Ewing. The GAL also

recommended that Ewing be granted custody.

       {¶38} With regard to factor (c) and the children’s interrelationship with

parents, siblings and others, Ewing has a live-in paramour and he has a child with

her. Ewing’s paramour testified that she had a great relationship with S.E., and that

her daughter and S.E. were very close. The trial court found that there were more

healthy relationships in Ewing’s household.

       {¶39} With regard to factor (d), and the adjustment to school, home and

community, the trial court noted that H.E. had missed a number of school days while

with Garrett, including 12 unexcused absences in the last school year, only one of

which was on Ewing’s parenting time. The trial court found that Ewing’s living

arrangements for the children were more appropriate than Garrett’s.




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       {¶40} With regard to factor (e), and the mental and physical health of all

involved, the court was concerned with Garrett’s behavior, particularly in calling

the police on up to 10 occasions for “well checks” on the children. The trial court

also noted that Garrett failed to utilize the court-ordered counselor or the Family

Wizard to facilitate better communication. In addition, the court was concerned

with Garrett electing to engage H.E. in counseling without involving Ewing in any

meaningful manner. The trial court determined that excluding Ewing from the

counseling process was not in H.E.’s best interest.

       {¶41} The trial court noted no issues with Ewing’s health; however, the trial

court did note there were concerns regarding H.E., as she saw a psychiatrist by

video. The psychiatrist prescribed H.E. Celexa for anxiety. Ewing did not feel it

was appropriate and wanted a second opinion due to H.E.’s young age. H.E.’s

counselor indicated that H.E. had adjustment disorder and anxiety.

       {¶42} The trial court indicated H.E. did have recurring UTIs, but stated that

there was no indication that either parent was failing to adequately care for her.

       {¶43} With regard to factors (f) and (i), concerning which parent was more

likely to honor and facilitate parenting time, and whether either parent had willfully

denied the other parenting time, the trial court determined that Ewing was more

likely to facilitate parenting time. This was based, in part, on the contempt findings




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of Garrett for failing to abide by the court’s orders, denying Ewing his parenting

time.

        {¶44} The trial court found that factors (g), (h), and (j) were not applicable.

        {¶45} After weighing all the factors, the trial court determined that Ewing

should be named sole legal custodian and residential parent of the children.

        {¶46} Garrett contests the trial court’s finding on appeal, focusing in

particular on factor (e), the mental and physical health of all involved. Garrett

argues that the trial court’s determinations were unfounded, and that the factor

actually weighed in her favor. Garrett also argues that the evidence indicated that

the children had a good relationship with her and were adjusted in her home. Garrett

contends that both parents wanted to be named residential parent, thus factor (a)

should not have weighed in Ewing’s favor.

        {¶47} The Supreme Court of Ohio has noted that “custody issues are some

of the most difficult and agonizing decisions a trial judge must make. Therefore, a

trial judge must have wide latitude in considering all the evidence * * * and such

a decision must not be reversed absent an abuse of discretion.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 1997-Ohio-260.              Under this standard, we provide

substantial deference to the trial court’s determination, as the trial court is in the best

position to evaluate custody matters.




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       {¶48} Here, the GAL carefully weighed the relevant factors and determined

that Ewing should be granted custody of the children, recommending as much to the

magistrate. The magistrate then looked into the matter after a full hearing, and after

interviewing H.E. in camera, and recommended that Ewing be named residential

parent and legal custodian. Then, after Garrett filed objections, the trial court

conducted an independent review and found that Ewing should be granted custody

of the children. All those closely involved who have looked at this case have

recommended that Ewing be granted custody.

       {¶49} To counter this, Garrett focuses on specific factual findings made by

the trial court, indicating that there was evidence weighing in her favor that was not

discussed or mentioned by the trial court. However, the trial court noted at the

beginning of its judgment entry that the omission of the trial court to make note of

specific facts did not mean the court failed to consider such facts.

       {¶50} Essentially, Garrett seeks to have this court reweigh the testimony,

discounting all testimony in Ewing’s favor, including the GAL’s recommendation

and the children’s wishes, and overturn the trial court’s judgment. We cannot agree

with Garrett. The trial court analyzed each and every factor and determined that

Ewing should be named residential parent and legal custodian. The trial court

illustrated a number of issues with Garrett that were all supported by the record.

Garrett may have argued that she had valid reasons for what she did, or that Ewing


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was worse in certain areas by comparison, but the trial court did not agree and we

cannot find that, on balance, the trial court abused its discretion.

       {¶51} Therefore, Garrett’s arguments are not well-taken, and her second

assignment of error is overruled.

                             Third Assignment of Error

       {¶52} In Garrett’s third assignment of error, she argues that the trial court

abused its discretion by excluding statements made by H.E. to medical and mental

health professionals.    Garrett argues that such statements should have been

admissible under Evid.R. 803(4), which concerns statements for purposes of

medical diagnosis or treatment.

                                  Standard of Review

       {¶53} “[A] trial court has broad discretion in the admission of evidence, and

unless it has clearly abused its discretion * * * an appellate court should not disturb

the decision of the trial court.” State v. Issa, 93 Ohio St.3d 49,64 (2001).

                                       Analysis

       {¶54} In this case, Garret argues that the trial court erred by excluding

testimony of statements H.E. made to her counselor. Specifically, Garrett contends

that H.E.’s counselor should have been permitted to testify that H.E. had made

certain statements to her for the purposes of medical diagnosis.




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       {¶55} At the outset, we note it is not clear what H.E.’s counselor’s testimony

would have been and how it would have had an impact on the final hearing. For

this reason alone we could overrule the assignment of error.

       {¶56} Nevertheless, if Garrett is referring to the “inappropriate touching”

allegations she made against Ewing, these issues had been discussed with the trial

court in the past and it was clear that no one found such allegations credible, with

the possible exception of the counselor, who did not receive complete information.

       {¶57} Moreover, the counselor’s diagnosis of H.E.—that H.E. had an

adjustment disorder and anxiety—was allowed into evidence. Furthermore, H.E.

was interviewed in camera and indicated that she was not scared of Ewing. Thus

we fail to see how any prejudicial error could have occurred here.

       {¶58} Notwithstanding all these points, part of the reason that the magistrate

excluded the testimony was because Garrett failed to timely disclose her witness list

and did not give any indication that H.E.’s counselor would be testifying at the final

hearing. The deadline for disclosure of witnesses was on May 22, 2017, and

Garrett’s witness list was not provided until June 26, 2017, only three days before

trial. Defense counsel indicated that he had not had a chance to prepare for the

testimony he was unaware he would be facing, and he actually moved to exclude all

of Garrett’s witnesses. The magistrate did not exclude the counselor’s testimony in

its entirety, but the magistrate did limit H.E.’s counselor’s testimony.


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       {¶59} In reviewing the matter on objections, the trial court indicated it would

have excluded the counselor’s testimony altogether. The trial court reasoned that

       The deadlines set by the Court for discovery were clear. Although
       Father did become aware of the Counselor’s ongoing involvement
       with the child this is not the same as knowing whether the
       Counselor would be testifying or would have anything substantial
       to present that would merit a vigorous response. Mother has long
       known of, and been participating in, the counseling * * * and
       wholly failed to timely identify the Counselor as a witness. She
       has been particularly aware of whether there was any significant
       testimony to be offered by the Counselor and elected not to timely
       identify the same. Now Mother’s contention is that the
       Counselor’s testimony is essential to assist in the determination of
       the children’s best interest, but, contradictorily, also asserts that
       it didn’t really matter that no one knew Mother was going to call
       the Counselor as a witness. The Court finds no merit to Mother’s
       implicit assertion that Father should have had to guess, or
       prepare, for witnesses she had not properly and timely identified
       for trial. In fact, the Court finds that the Counselor’s testimony
       should have been prohibited.

(Doc. No. 345).

       {¶60} After reviewing the trial court’s reasoning, we can find no abuse of

discretion in this case. Regardless, even if we did somehow find that the trial court

erred, there is no indication that the counselor would have provided any testimony

that would have altered the entire outcome of this case. Therefore, Garrett’s third

assignment of error is overruled.




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Case No. 17-18-03


                                   Conclusion

       {¶61} For the foregoing reasons Garrett’s assignments of error are overruled

and the judgment of the Shelby County Common Pleas Court, Juvenile Division, is

affirmed.

                                                              Judgment Affirmed

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

/jlr




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