COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72514 IN RE: BRESLIN LOGAN ) ) ) JOURNAL ENTRY MICHAEL M. WHITE ) ) AND Plaintiff-Appellee ) ) OPINION -vs- ) ) TRACEE THOMAS Defendant-Appellant Date of Announcement of Decision DECEMBER 11, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Juvenile Court Division CP 9604446 Judgment Reversed and remanded. Date of Journalization Appearances: For Appellant: For Appellee: DENNIS P. LEVIN, ESQ. THOMAS A. BANI, ESQ. Park Center II Dinn, Hochman & Potter, P.L.L. 3681 Green Road 5885 Landerbrook Drive Cleveland, Ohio 44122-5716 Suite 205 Cleveland, Ohio 44124 JAMES M. PORTER, J.: Defendant-appellant Tracee Thomas appeals from the decision of the Juvenile Court changing permanent custody of her fifteen month 2 old son from her to the child's father, plaintiff-appellee Michael M. White. Appellant mother contends the court abused its discretion in changing custody without holding an evidentiary hearing or finding a change of circumstances. In addition, appellant contends the grounds for modifying custody were against the manifest weight of the evidence and the court abused its discretion in ordering the mother's visitation only after implementation of a shared parenting plan. We find the appeal well taken and reverse and remand the matter for proceedings consistent with this opinion. On December 3, 1995, appellant gave birth to Breslin Logan. Appellee was established to be the father of Breslin pursuant to paternity testing conducted through the Cuyahoga County Support Enforcement Agency. Appellee was also ordered to pay monthly child support in the amount of $594.25. After appellee was unsuccessful in making informal arrangements with the mother for visitation periods, he sought a visitation order from Juvenile Court. On May 7, 1996, the court entered an order granting the father visitation every other weekend. However, from June 1996 through December 1996 the father contended that the mother unilaterally, unjustifiably and continuously denied visitation. The father also complained that the mother used family members to thwart visitation. In November 1996, the mother was hospitalized for a period due to complications with the birth of her third child, not appellee's. 3 She apparently refused to make the defendant's child available to him during this period. Based on the mother's hospitalization and the father's continued inability to obtain visitation, he filed an emergency motion for temporary custody on December 6, 1996. On March 31, 1997, the Juvenile Court held a hearing on the motion for legal/permanent custody in spite of the fact no motion for legal custody was filed and no notice sent out regarding a change in proceedings. During the hearing, the court acknowledged the ongoing visitation problems between the parties and discussed the custody and visitation issues with the parties, their counsel and the guardian ad litem. Defendant's counsel orally motioned for a continuance, as he was not advised that the proceedings had been changed from temporary emergency custody to full legal custody, and he was unprepared to go forward. However, the trial court proceeded forward anyway, and, based on no evidence except for that of the unsworn testimony of the guardian ad litem, ordered a change in custody. On April 21, 1997, the court filed its judgment entry ordering legal custody to the father and ordered that visitation with the mother should commence immediately after a shared parenting plan. Appellant/mother filed a timely notice of appeal. We will address the assignments of error in the order asserted. I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING APPELLEE CUSTODY OF THE MINOR CHILD WITHOUT PROVIDING APPELLANT THE RIGHT TO AN EVIDENTIARY HEARING. 4 Defendant contends in this assignment of error that the trial court modified custody without first conducting an evidentiary hearing and that the trial court erred in not granting counsel's motion for a continuance in order to prepare for the custody hearing. This assignment of error has merit. The Ohio Supreme Court in In re Poling (1992), 64 Ohio St.3d 211, paragraph two of syllabus, held that when a juvenile court exercises jurisdiction over custody matters pursuant to R.C. 2151.23 it must do so in accordance with R.C. 3109.04. Pursuant to R.C. 3109.04(A), the trial court is to conduct a hearing in which the testimony of at least one of the parties is submitted before making any allocation of parental rights: [I]n any proceeding pertaining to the allocation of parental rights and responsi- bilities for the care of the child, upon hearing the testimony of either or both of the parents *** the court shall allocate the parental rights and responsibilities for the care of the minor children ***. The court in Snouffer v. Snouffer (1993), 87 Ohio App.3d 89, 91 in applying R.C. 3109.04(A) held: The statute clearly indicates that there is to be a hearing where both parents may testify before there is any allocation of parental rights and responsibilities ***. [W]hen the allocation of parental rights and responsibilities is contested, a hearing must be granted. [Emphasis in original.] Although hearings before the Juvenile Court can be informal, this Court in In re Fleming (July 22, 1993), Cuyahoga App. No. 63911, unreported, applied the above principles and held that where the custody of the child is disputed, evidence must be taken and if 5 testimony is taken it must be sworn. As the court in In re Sims (1983), 13 Ohio App.3d 37, 40 held: Informality does not mean abandoning the procedural and evidentiary rules which guide a court in search of the truth. Indeed, where one's fitness as a parent is being attacked *** where a potential end result is the loss of custody of one's child, and where the adjudication will be based on the resolution of conflicting testimony, the emphasis should be on the accurate search for the truth and not on informality. In the case herein, defendant's counsel maintained that the mother disputed the circumstance regarding the lack of visitation alleged by the plaintiff. However, no testimony was taken except for that of the guardian ad litem and that testimony was not sworn. Both attorneys proffered what their clients would testify to, but neither parent was permitted to testify. The trial court, without hearing any sworn evidence, stated that it agreed with the guardian ad litem's recommendation to change custody from the mother to the father. This was inappropriate pursuant to the procedure outlined in R.C. 3109.04. Since no sworn testimony was presented, the trial court should have denied the modification motion for failure to present supporting evidence. Although plaintiff contends that defendant's counsel acquiesced in the change of custody, such acquiescence is not as clear as plaintiff maintains. Defendant's counsel maintained his client's position that she would offer testimony to contradict or explain the visitation problems. The trial court's response in essence was that it did not want to hear anymore and that it had decided to follow the guardian ad litem's recommendation. When the 6 court asked how the baby was to be exchanged, the plaintiff's attorney responded that some of the visitation issues had been worked on and that possibly an agreement can be worked out. The visitation issues in general most likely had been discussed, but whether it was in conjunction with change of custody is another matter. Furthermore, counsel only stated that an agreement could possibly be worked out and not definitely and only conceded this point once the trial court had told him how it was going to rule. This can hardly be seen as voluntarily acquiescing in the change of legal custody. The trial court should have also granted the defendant's counsel's motion for a continuance. Defendant's counsel advised the court that he was under the impression that the hearing was to be about temporary emergency custody and did not find out until the hearing that it was to be a full blown custody hearing. Plaintiff's counsel claimed that at a hearing held in January of 1997 the parties were advised that the next hearing would be a full custody hearing. Since defendant's counsel, pursuant to the record, was not assigned until March 11, 1997 he would not have been present at the January hearing. Furthermore, a review of the docket does not indicate that a hearing was held in January of 1997, and there is no indication that notice was sent to the parties regarding a change in the proceedings. Plaintiff never even filed a motion for legal custody. In fact, even the trial court's journal entry changing the legal custody states that the hearing was being conducted upon the Motion for an Emergency Order 7 for Temporary Custody filed by the father. (Journal Entry, April 16, 1997). This Court in In re Fleming, supra, held that the failure to file a written motion for legal custody violated the appellant's due process ( Nothing in the record of the [hearing] indicates that appellant had advance notice that the guardian ad litem or the Agency were prepared to move for legal custody in favor of the paternal grandmother. Prior notice of such motion is necessary to give appellant an opportunity to respond to such motion and gather relevant evidence to oppose said motion. ). Although whether to grant a continuance is within the discretion of the trial court, we find, given the circumstances here, the trial court should have granted counsel a continuance as he was obviously unprepared and had received no notice of the change in proceedings. Assignment of Error I is sustained. Given the disposition of Assignment of Error I, it is unnecessary for us to review the remaining assignments of error, which are moot. App.R. 12(A)(1)(c). This matter is reversed and remanded to the trial court for proceedings consistent with this opinion. 8 It is ordered that appellant recover of appellee her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Juvenile Court Division 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. DAVID T. MATIA, P.J., and PATTON, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .