[Cite as In re K.G. , 2020-Ohio-4117.]

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

IN RE: K.G. C.A. No. 29668

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 18-05-0483

DECISION AND JOURNAL ENTRY Dated: August 19, 2020

SCHAFER, Judge. {¶1} Appellant A.D. (“Grandmother”) appeals the judgment of the Summ it County Court of Common Pleas, Juvenile Division, that denied her motio n for legal custody of her grandchild K.G. and placed the child in the legal custody of ap pellee R.G. (“Grandfather”). This

Court affirms.

I. {¶2} Mother and Father are the biological parents of K.G. (d.o.b. 3/ 12/16). Grandmother and Grandfather are the paternal grandparents of the child. Gr andmother and Grandfather were married and divorced many years ago, and each has remarried. T he grandparents, along with their spouses, have homes in Californi a, where they reside approximat ely 30 minutes away from each

other. {¶3} K.G. was born prematurely and at the parents’ home, as Mother d id not realize that she was pregnant. Immediately a fter his birth, the infant suff ered two rib fractures due to2

resuscitative efforts by paramedics. When the child was mature enough to be released from the hospital, he went home with his parents. {¶4} When Mother later took the child for a well-baby check, the doc tor referred him for

additional care based on the child ’s weight loss. At that poin t, medical providers determined that the child had suffered multiple additional fractures to his rib s, clavicle, and femur. The injuries were diagnosed as nonaccidental t rauma, and the hospital made a referral to Summit County Children Services Board (“CSB” or “the agency”). {¶5} Based on the child’s injuries, as well as other concerns, CSB f iled a complaint alleging that K.G. was an abuse d, neglected, and dependent chil d. Mother and Father later waived their rights to an adjudicatory hearing and stipulated that K.G . was dependent. CSB withdrew its allegations of abuse and neglect. By further agreement of the parties, the child was placed in the temporary custody of the agenc y. The juvenile c ourt adopted th e agency’s proposed case plan as an order of the court. The goal at that time was reunification of the child with his parents. {¶6} Immediately thereafter, CSB moved to modify the child’s disposi tion to an order of temporary custody to non-relative kinship caregivers with pr otective supervision by the agency. The kinship caregivers resided in Summit County, Ohio. Mother and Father agreed to that change in disposition. CSB then initiated Interstate Compact for the Placement of Children (“ICPC”)

assessments for both Grandmother and Grandfather in California. {¶7} Ten months into the case, CSB move d for a first six-month exten sion of temporary custody to the kinship caregivers. Although Mother and Father were noncompliant with their case plan objectives, the ICPC assessm ents for both Grandmother and Grandfather were expected to be completed soon. In the meantime, bot h grandparents were grante d leave to intervene as parties in

the case. Grandmother and Gra ndfather each filed a motion for legal custody of the child. At the3

time of the sunset hearing, Grandfather had been approved for p lacement, while Grandmother’s assessment remained pending. The juvenile court ordered a six- month extension of temporary custody to the kinship caregivers with protective supervision b y CSB. In addition, the court granted Grandfather’s motion for extended visita tion with the c hild. {¶8} CSB filed a notice that the agency and Grandfather agreed that K.G. would spend the entire month of July 2019, with G randfather in California. During that time, Grandfather was required to allow Grandmother vi sitation with the child without restrictions as to frequency, duration, and location, except th at Grandmother could not have overnight visitations during that time. After Grandmother’s ICPC assessment was approved in Augu st 2019, she too was granted

an extended visitation with the child in California, spanning t hree weeks in September and October 2019. Grandmother was required to allow Grandfather to visit w ith the child during that time. During both periods of extended visitation in California, each grandparent was required to

facilitate contact between the child and his parents. {¶9} After Grandfather’s extended vi sitation, but before Grandmother ’s, CSB filed a motion to modify the child’s disposition from temporary custody to kinship caregivers to legal custody to a relative, specifically Grandfather. Grandmother a nd Grandfather each maintained their respective motions for legal custody. Each grandparent s ubmitted a statement of understanding for legal custody. {¶10} At the final dispositional hearing, CSB orally withdrew its mot ion for legal custody to Grandfather. Instead, the assistant prosecutor asserted tha t the agency was not opposed to an award of legal custody to either grandparent, as each had been approved via ICPC assessment and their respective extended visitations went well. The guardian ad litem also remained neutral and recommended an award of legal custody to either grandparent, wi th a standard order of visitation4

for the other. She further recommended that Mother and Father have a minimum of two hours, twice a week, of supervise d phone, video, or in-person visitati on with the child. {¶11} After a hearing, the magistrate recommended granting Grandfathe r’s motion for legal custody, giving Grandmothe r visitation two weekends per m onth, and allowing limited supervised visitation for Mothe r and Father. The juvenile cour t adopted the magistrate’s decision the same day and ordered the case closed. Both Mother and Gran dmother filed timely objections. 1 Grandfather moved to lift the automatic stay imposed based on t he pending objections and for placement of K.G. with him in the interim in the interest of s tability and permanency for the child, given that both viable legal cus todians resided in California. The juvenile court initially denied the motion to lift the stay, but later granted it and ordered K .G. to be placed in California where he would spend alternating two-week periods with Grandfather an d Grandmother pending the resolution of the objectio ns and any appeals. {¶12} The juvenile court subsequently overruled Mother’s and Grandmot her’s objections. It awarded legal custody to Grandfather, as well as visitation for Grandmother, Mother, and Father. Grandmother filed a timely appeal in which she raises three ass ignments of error for review. This Court consolidates some assignments of error to facilitate revi ew.

II.

ASSIGNMENT OF ERROR I The trial court abused its discretion in not allowing [Grandmot her] to call rebuttal witnesses following [Grandfather’s] testimony.

1 CSB also filed objections regarding the closing of the case. The agency argued that it was statutorily required to provide ongoing supervision for up to six months pending the receiving state’s agreement to terminate t he sending state ’s jurisdiction

.5

{¶13} Grandmother argues that the juve nile court erred by refusing to allow her to recall

herself as a rebuttal witness after Grandfather’s testimony. T his Court disagrees. {¶14} This Court recognizes: “Rebutting evidence is that given to explain, refute, or dispro ve new facts introduced into evidence by the adverse party; it becomes relev ant only to challenge the evidence offered by the opponent, and its scope is limited by such evidence.” State v. McNeill , 83 Ohio St.3d 438, 446 (1998). “A party has an unconditional right to present rebuttal testimony on matters which are first addressed in an opponent’s case-in-chief and [is not testimony that should have been presented] in the rebutting party’s case-in-chief.” Phung v. Waste Mgmt. Inc. , 71 Ohio St.3d 408, 410 (1994). The trial court has discretion to determine which proper rebuttal evidence may be admitted. State v. Carrasquillo , 9th Dist. Lorain No. 09CA009639, 2010-Ohio-5063, ¶ 16. Estate of Hall v. Akron Gen. Med. Ctr. , 9th Dist. Summit No. 24066, 2011-Ohio-60, ¶ 4. “To

reverse on the basis of an abus e of discretion, this Court must conclude that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.” In re L.R. , 9th Dist. Lorain Nos. 18CA011378 and 18CA011385, 2019-Ohio-1152, ¶ 12, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶15} On appeal, Grandmother argues that the juvenile court abused it s discretion by refusing to allow her to rebut Grandfather’s testimony that Gra ndmother enabled Father’s substance abuse, that Grandmothe r historically failed to comply with the grandparents’ shared parenting plan when Father wa s a child, and that Father had exp ressed the desire that Grandfather have legal custody of the child. During the legal custody hear ing, however, Grandmother requested the opportunity to rebu t Grandfather’s testimony base d merely on a “bunch of accusations that came out * * *.” In an attempt to clarify the new issues she wished to rebut, Grandmother’s attorney merely stated that “[t]here were just a few things that were dangling out there that I’m not terribly comfortable just kind of leaving as they sat.” Grandmother failed to identify with any specificity Grandfather’s testimony she plann ed to rebut. Accordingly, the6

juvenile court could not determin e whether it was proper to per mit Grandmother to recall herself as a rebuttal witness. Moreover, because Grandmother failed to proffer her rebuttal testimony, this Court is likewise unable to determine whether the juvenile cour t’s refusal to allow Grandmother to present rebuttal evidence was unreasonable. See Minson v. Cook , 9th Dist. Summit No. 23972, 2008-Ohio-5231, ¶ 10. Grandmother’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II The trial court’s [judgment] was against the manifest weight of [the] evidence.

ASSIGNMENT OF ERROR III The trial court’s [judgment] wa s not in the best interest of th e minor child. {¶16} Grandmother argues that the juve nile court’s judgment was again st the manifest weight of the evidence as it was contrary to the best interest of the child. This Court disagrees. On appeal, an award of legal custody will not be reversed if th e judgment is supported by a preponderance of the evidence. Preponderance of the evidence entails the greater weight of the evidence, evidence that is mo re probable, persuasive, and possesses greater probative value. In other wo rds, when the best interest of the child is established by the greater weight of t he evidence, the trial court does not have discretion to enter a judgment that is adve rse to that interest. Thus, our standard of review is whether a legal custody decisio n is against the manifest weight of the evidence. (Internal citations and quotations omitted.) In re M.F. , 9th Dist. Lorain No. 15CA010823, 2016- Ohio-2685, ¶ 7. {¶17} In considering whether the juven ile court’s judgment is against the manifest weight of the evidence, this Court “weighs the evidence and all reason able inferences, considers the credibility of witnesses and determines whether in resolving co nflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest misca rriage of justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal quota tions omitted.) Eastley v. Volkman ,7

132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the ev idence, this Court “must always be mindful of the presumption in f avor of the finder of fact.” Id. at ¶ 21. {¶18} “Following an adjudication of neg lect, dependency, or abuse, th e juvenile court’s determination of whether to place a child in the legal custody of a parent or a relative is based solely on the best interest of the child.” In re K.H. , 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or set of criteria, but Ohio cour ts agree that the juvenile court must base its decision to award legal custody on the best interest of the child. In re B.B. , 9th Dist. Lorain No. 15CA010880, 2016-Ohio7994, ¶ 18, quoting In re N.P. , 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that reg ard, the juvenile court is guided by the best interest factors enunc iated in R.C. 2151.414(D) relating to permanent custody. In re B.G. , 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In re

T.A. , 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those fact ors include the interaction and interrelationships of the child, the child’s wishes, the cu stodial history of the child, the child’s need for permanence, and whether any of the factors in R.C. 215 1.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(a)-(e); see also In re B.C. , 9th Dist. Summit Nos. 26976, 26977, 2014-Ohio2748, ¶ 16. In addition, the juvenile court may also look to t he best interest factors in R.C. 3109.04(F)(1) for guidance. In re K.A. , 9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017- Ohio-1, ¶ 17. While some factor s overlap with those above, oth ers include the ch ild’s adjustment to his or her environment; the mental and physical health of al l persons involved; the parents’ history of providing support and honoring companionship orders; certain indicia of violence, abuse, or neglect in any household involved; and whether a pare nt plans to or has established a

residence outside of Ohio. R.C. 3109.04(F)(1).8

{¶19} Initially in the proceedings below, CSB supported an award of l egal custody of the child to Grandfather. The agency withdrew its motion for legal custody to Grandfather at the start of the hearing, citing the “need to just stay neutral[,]” given the ICPC approval of both grandparents’ homes. The guardia n ad litem also declined to re commend one of the grandparents over the other. Although she reported that joint custody of th e child by Grandmother and Grandfather would be ideal, th e guardian ad litem acknowledged that neither grandparent was willing to enter into such an agreement, given their prior diff iculties managing shared parenting of Father as a child. Therefore, the guardian ad litem opined tha t legal custody of K.G. to either would be in the child’s best interest. On appeal, CSB maintain s its neutrality after filing a notice of nonparticipation in the brief ing to this Court. The guardia n ad litem has also not filed an appellate brief. {¶20} There is no dispute that neither Mother nor Father is a suitabl e custodian for the child. The parents failed to comply with their case plan objec tives to address significant concerns regarding substance abuse, parenting, and the ability to meet t he child’s basic needs. Accordingly, the only consideration before t he juvenile court was whether th e best interest of the child would be met by an award of legal cus tody to either Grandmother or Gr andfather. {¶21} Both the caseworker and the guardian ad litem testified that th e significant considerations for the placement of every child include the saf ety of the home environment, whether the caregiver can meet the child’s basic needs, and the bond between the child and caregiver. A safe and stable home, where a child feels secure and is nurtured meets the best interest

of the child. {¶22} In this case, both grandparents’ homes were thoroughly vetted f or suitability. All household members were subjected to background checks. The ICP C assessments c oncluded that9

Grandmother’s and Grandfather’s homes were equally and unreserv edly appropriate for K.G. Father has half-siblings living in each home, so the child has exposure to extended family wherever he resides. Although Grandfather’s home is much larger than Gr andmother’s, the child would

have his own bedroom in each. {¶23} Both grandparents live in safe neighborhoods, with access to ne arby parks and playgrounds. The child would a ttend daycare for purposes of so cialization regardless of who was his legal custodian. Grandmoth er and Grandfather each had deve loped a plan for the child’s later

education in school. {¶24} The grandparents and their spouses all work, but one adult in e ach household has a flexible schedule which would facilitate accommodating the chil d’s schedule and needs.

Grandmother and Grandfather each recognized the spouse of the o ther as another grandparent to

the child. {¶25} There were no concerns during th e child’s extended visits in Ca lifornia with either grandparent. The child acclimate d to each home environment, wh ere all his basic needs were met. Both grandparents ensured that the child engaged in stimulating activities. {¶26} Grandmother’s main argument for reversal is her allegation that Grandfather would not facilitate K.G.’s relationship with other people significan t to the child. There is no dispute that

Grandmother’s and Grandfather’s r elationship was difficult when they shared joint custody of Father as a child. In addition, Mother has a strained relation ship with Grandfather, which

Grandfather attributes to the ro le he played in encouraging CSB involvement based on concerns about Mother’s and Father’s drug use. {¶27} The evidence established that Grandfather facilitated contact b etween the child and

others outside of Grandfather’s home. Grandmother had physical possession of the child for10

several days during Grandfathe r’s extended visit. In addition, Grandmother enjoyed video calls with the child on a regular basis. In fact, Grandfather enable d daily contact for the child with Grandmother and the kinship careg iver on alternating days. Gra ndfather remained in contact with Father, as well, as Father awaited the resolution of criminal c harges in South Carolina. Although Grandfather called and texted Mother approximately 22 times dur ing the child’s month-long stay, Mother never answered any calls or texts. Late in the visit, G randfather sought an alternative phone number for Mother from Gra ndmother. Mother failed to res pond to any communications

from Grandfather at that number either. The parties agreed tha t, given Mother’s strained relationship with Grandfather, she might be loath to accept any calls from him. In any event, Grandfather attempted repeatedly to facilitate the child’s cont act with Mother. {¶28} The CSB caseworker testified that Grandfather facilitated adequ ate family contact for the child during his extended visit. Moreover, the casewor ker believed that Grandfather would continue to do so in the future. When the guardian ad litem pr esented her report, she testified that

she had witnessed Grandfather’s attempts to contact Mother. Ac cordingly, despite Mother’s

concerns that Grandfather would impede her contact with K.G., t he guardian ad litem reported that

she had no reason to believe that Grandfather would not facilit ate the child’s contact with his family. Grandfather executed an affidavit of understanding for legal custody and also testified that he understood the parents’ right t o have contact with the child

. {¶29} Based on a thorough review of the evidence, this Court cannot s ay that this is the exceptional case in which the juvenile court clearly lost its w ay and committed a manifest injustice in awarding legal custody to Grandfather, rather than to Grandm other. Both grandparents were approved for placement via ICPC assessments, and both are capab le of meeting the basic needs of

the child. Extended visits in the homes of both Grandmother an d Grandfather went well. The11

child enjoyed visits and contacts during those extended visitat ions with other family members. The agency and guardian ad litem each remained neutral, explain ing that the child’s best interest and basic needs would be met in either grandparent’s home. As the record does not demonstrate that the juvenile cour t’s award of legal custody to Grandfather was against the manifest weight of the evidence, this Court declines to reverse the lower court’s judgment. Grandmother’s second and third assignments of error are overruled.

III. {¶30} Grandmother’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, J uvenile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30.12

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

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

APPEARANCES: ROBERT C. ALDRIDGE, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee. TAD ORVAL HOOVER and CHERYL L. GREEN, Attorneys at Law, for App ellee. DAVID LOWRY, Attorney at Law, for Appellee. LAURIE M. BOVEINGTON, Attorney at Law, for Appellee. SHUBHRA AGARWAL, Guardian ad Litem.