[Cite as In re A.M.S., 2012-Ohio-5078.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98384 

IN RE: A.M.S.

A Minor Child

(Appeal by Mother) 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Common Pleas Court 

Juvenile Division 

Case No. CU-06110796 

 BEFORE: Blackmon, A.J., Jones, J., and S. Gallagher, J. 

 RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT

Mary V.G. Walsh 

4403 St. Clair Avenue 

Euclid, Ohio 44103 

ATTORNEY FOR APPELLEE 

Teddy Sliwinski 

5800 Fleet Avenue 

Cleveland, Ohio 44105 

GUARDIAN AD LITEM 

Mark Witt 

6209 Barton Road 

North Olmsted, Ohio 44070 
PATRICIA ANN BLACKMON, A.J.: 

{¶1} Appellant E.S.1

 (“mother”) appeals the decision of the Cuyahoga County 

Court of Common Pleas, Juvenile Division, reallocating parental rights of her son, A.M.S., 

to his father, appellee, A.K. Mother assigns the following errors for our review: 

I. The trial court erred in finding that there had been a change of 

circumstances of the minor child or his legal custodian. 

II. The trial court abused its discretion in changing custody of the 

child. 

{¶2} Having reviewed the record and pertinent law, we affirm the juvenile court’s 

decision.2

 The apposite facts follow. 

{¶3} Pursuant to an agreed judgment entry, dated May 12, 2008, mother was 

awarded custody of the parties’ son, A.M.S. (d.o.b. 3/9/2006). A.M.S. was born with a 

hole in his heart, had undergone surgery in 2007, and will undergo more surgeries as he 

grows older. 

{¶4} The custodial agreement required mother to take A.M.S. to his doctor’s 

appointments and to share son’s medical information with father. Mother and father were 

also required to go through family counseling. In addition, because father had pleaded 

 1

The parties are referred to herein by their initials or title in accordance with 

this court’s established policy regarding nondisclosure of identities in juvenile cases.

2

Although our review has been limited, nothing herein precludes mother from 

filing a motion to modify parental rights if a change in circumstances occurs. See 

R.C. 3109.04. In re B.W., 8th Dist. Nos. 96550 and 96551, 2011-Ohio-4513.
guilty to telephone harassment of mother, there was supervised visitation with A.M.S. at a 

neutral location until father’s probation ended. 

{¶5} On June 21, 2011, father filed a motion for an emergency hearing alleging that 

mother was consistently late for the supervised visitation, had failed to provide medical 

information as required, and that A.M.S. was seriously overweight. Later, in September 

2011, father filed a motion to hold mother in contempt for consistently being late for the 

supervised visitation. At a hearing on November 18, 2011, mother agreed to have A.M.S. 

visit with father for a full week at his home to make up for the missed time. 

{¶6} In November 2011, father refiled a previously withdrawn motion to modify 

custody of A.M.S. The hearing was conducted on March 30, 2012. At the hearing, 

father testified that he was extremely concerned that A.M.S. was very overweight in light 

of his heart condition, that mother was not taking the appropriate steps to address son’s 

weight gain, and guard against the early onset of diabetes that is prevalent in father’s 

family. Father stated that mother’s smoking around A.M.S. poses an additional risk, and 

that, at times, he has smelled secondhand smoke on their son. 

{¶7} Father also testified that A.M.S. has a “crooked foot” that he brought to 

mother’s attention a year ago, but she had failed to have their son seen by a podiatrist. 

Father stated that mother has missed doctor’s appointments, has been uncooperative when 

he offers to take A.M.S. to the appointments, and continues to inadequately update him 

when the appointments are kept. 
{¶8} In addition, father testified that he is concerned that mother allows her 

stepfather, who was verbally and physically abusive to her, to babysit A.M.S. Father also 

stated that mother also allows niece’s boyfriend, a convicted heroin felon, to babysit 

A.M.S. 

{¶9} Father further testified that mother once filed a police report stating that 

A.M.S. was abused by children in father’s neighborhood. Mother reported it to 

696-KIDS, and after an investigation, the report was found to be unsubstantiated. Father 

stated that for a while after mother’s allegation, some of the children stopped playing with 

A.M.S. 

{¶10} Finally, father testified that he is now retired and thus available to provide 

the full-time care and attention that A.M.S. needs to combat his health condition. Father 

stated that he has been working to bring down A.M.S.’s weight through proper nutrition 

and that he had begun to lose weight. Father testified that his fiancee, who lives with 

him, is a registered nurse and has been helping A.M.S. to lose weight. Father stated that 

his home is located in a better school district than mother’s and A.M.S. would make more 

progress academically if custody was transferred. 

{¶11} Mark Witt, the guardian ad litem (“GAL”) for A.M.S., also testified about 

the medical issues surrounding the parties’ son, confirmed that there were communication 

difficulties between the father and mother regarding A.M.S.’s well being. The GAL 

confirmed that A.M.S. was very overweight given his heart condition, that he had a 
“crooked foot” that had not been addressed, and that there was a lack of medical 

attentiveness on the part of the mother. 

{¶12} The GAL testified that although A.M.S. was well adjusted at both homes and 

that both parents provided good environments in the respective locations, A.M.S. 

expressed a desire to live with his father. The GAL testified that the father had a bigger 

home with a large yard, that A.M.S. had developed friendships with other children in the 

neighborhood, and that he had a good relationship with father’s fiancee. The GAL 

recommended that the trial court should award custody to the father. 

{¶13} Mother testified that she advised father of A.M.S.’s medical appointments 

via email through the neutral visitation center and more recently through direct emails. 

Mother testified that she has been addressing medical needs, that she does not smoke in 

the house, and that her niece’s boyfriend does not babysit A.M.S. 

{¶14} After hearing the testimony, the magistrate recommended that custody be 

transferred immediately to father. On April 16, 2012, mother filed her objections to the 

magistrate’s recommendation. On April 19, 2012, the trial court adopted the 

magistrate’s recommendation and awarded custody of A.M.S. to his father. 

{¶15} Thereafter, mother requested finding of fact and conclusion of law. On 

May 18, 2012, mother filed the instant appeal, which rendered her request for finding of 

fact and conclusion of law moot. 

Child Custody and Change of Circumstances 
{¶16} We will address both assigned errors together because of their common basis 

in fact and law. Mother argues the trial court erred when it transferred custody of A.M.S. 

to his father. 

{¶17} Decisions concerning the allocation of parental rights and responsibilities rest 

within the sound discretion of the trial court. In re D.J.R., 8th Dist. No. 96792, 

2012-Ohio-698, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 

N.E.2d 1159. An abuse of discretion is more than an error in law; rather it connotes that 

the trial court’s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Under the abuse of discretion 

standard, an appellate court may not merely substitute its judgment for that of the trial 

court. Id. 

{¶18} As explained in In re L.S., 152 Ohio App.3d 500, 2003-Ohio-2045, 788 

N.E.2d 696 (8th Dist.): 

[W]here there exists competent credible evidence to support an award 

of custody, there is no abuse of discretion. * * * Davis [v. Flickinger 

(1997)], 77 Ohio St.3d at 418, 674 N.E.2d 1159. This highly deferential 

standard of review rests on the premise that the trial judge is in the best 

position to determine the credibility of witnesses because he or she is 

able to observe their demeanor, gestures, and attitude. Seasons Coal Co. 

v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273. 

This is especially true in a child custody case, since there may be much 

that is evident in the parties’ demeanor and attitude that does not 

translate well to the record. Davis, 77 Ohio St.3d at 419, 674 N.E.2d 

1159. 

{¶19} Pursuant to R.C. 2151.23(A)(2), the juvenile court has jurisdiction “to 

determine the custody of any child not a ward of another court of this state * * *.” 
Pursuant to R.C. 2151.23(F)(1), the best interest standard set forth in R.C. 3109.04 applies 

in initial actions to allocate parental rights in cases involving children of unmarried 

parents. See also In re Poling, 64 Ohio St.3d 211, 1992-Ohio-144, 594 N.E.2d 589 (1992); 

Francis v. Westfall, 7th Dist. No. 03-JE-21, 2004-Ohio-4543; In re Custody of Shepherd, 

4th Dist. No. 98 CA 2586, 1999 Ohio App. LEXIS 1238. 

{¶20} Pursuant to R.C. 3109.04(F)(1), the court must consider: 

(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 * * * 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; * * *. 

{¶21} Applying the foregoing, we conclude that the trial court did not abuse its 

discretion in awarding custody of A.M.S. to father. The record demonstrates that the trial 

court considered the factors outlined in R.C. 3109.04(F)(1), and in particular A.M.S.’s 

health. The evidence established that A.M.S., who was born with a hole in his heart, was 

significantly overweight. At the time of the hearing, A.M.S. was six years old, 

approximately four feet tall, and weighed 91 pounds. Father testified that the normal 

weight-height range should have been between 60-65 pounds. 

{¶22} We have reviewed pictures of A.M.S. by himself, as well as, in the company 

of other boys of similar height, and it is readily apparent that A.M.S. is overweight. 

Given A.M.S.’s health condition, a 30 pound deviation from the normal weight-height 

range poses a severe health risk. In addition, said deviation indicates that A.M.S.’s 

weight was not being adequately monitored or properly addressed while in mother’s care. 

{¶23} We conclude that this was credible evidence of a change in circumstances to 

justify the trial court’s decision awarding custody to father. We also conclude that there 

was credible evidence that it was in the best interest of A.M.S. to have custody awarded to 

his father. At the hearing, the father testified as follows about the steps he was taking to 

address A.M.S.’s weight: 

So I took [A.M.S.] to the nutritionist and I’m guessing in November 

because I had concerns about his weight. I took him there. They give 

us a new diet plan. I made [E.S.] aware of that diet plan and since then 

- - I had him for about ten days straight and I got his weight down about 

five pounds in ten days with him being with us. 
{¶24} Here, the record indicates that father is very proactive regarding son’s health 

concerns and is making progress in managing A.M.S.’s weight. In addition, the GAL 

testified that although A.M.S. is well adjusted at both homes, he has expressed the desire 

to live with his father. On this evidence, we find no abuse of discretion in the trial court’s 

decision to adopt the magistrate’s recommendation that father should be awarded custody. 

Accordingly, we overrule both assigned errors. 

{¶25} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE 

LARRY A. JONES, SR., J., and 

SEAN C. GALLAGHER, J., CONCUR