I agree with the decision of the majority which sustains the sole assignment of error of the appellant and finds that the trial court wrongly placed the burden of proof on the non-moving party. I agree that the moving party (in this case the appellee) has the burden of going forward with evidence that establishes that a change of legal custody, from the Department of Human Services to the moving party, is in the best interest of the child. I also agree that the moving party must prove his case by a preponderance of the evidence to prevail. However, I write separately to indicate why I disagree with the argument presented by the appellant that the appellee must prove his case by clear and convincing evidence to prevail. The appellant relies on two (2) cases in arguing that the burden of proof on the movant is by clear and convincing evidence. The first case is In Re Patterson (1984), 475 N.E.2d 160. The Patterson court relies on Rule 29(E)(4) of the Ohio Rules of Juvenile Procedure in determining that a party seeking modification of a dispositional custody order must prove by clear and convincing evidence that the modification is in the best interest of the child. I find that reliance is misplaced. I do concede that Rule 29(E)(4) does state that the Court shall determine the issues in dependency, neglect and abuse cases by clear and convincing evidence, but Rule 29 applies to adjudicatory hearings and not dispositional hearings. The second case relied upon by the appellant is In Re Pryor (1993), 620 N.E.2d 973. However, the court in Pryor was not examining the weight of the evidence question on appeal. The clear and convincing language appears in Pryor on page 975 when the court states, "[f]indings of fact and conclusions of law issued by the [trial] court expressly state '[t]hat as between Galen Keith Dennison and Charles Taylor it has been proven by clear and convincing evidence that it would be [in the] best interest of Paulina . . . for legal custody to be awarded to . . . Dennison.'" The law specifically sets forth that the clear and convincing evidence burden must be met by the State when it is trying to establish that a child is abused, neglected or dependent, trying to obtain permanent custody of a child (O.R.C. 2151.414(B) and Santosky v. Kramer (1982), 455 U.S. 745, 102 S. Ct. 1388, 71 LEd 2d 599), trying to obtain long term foster care of a child (2151.415(C)(1) and2151.353(5)) or trying to extend temporary custody with the State for beyond one year (2151.415(D)(1)). I do not find in the law that the clear and convincing evidence standard is necessary when a parent is trying to modify an order of temporary custody from the State to the parent. In the 1986 case of In Re Willmann, 24 Ohio App.3d 191, the court, in its syllabus, states "[i]n an action seeking temporary custody of a child who is alleged to be a 'dependent child' pursuant to Revised Code 2151.04(C), the standard of proof in the adjudicatory portion of the proceedings is by clear and convincing evidence and the standard of proof in the dispositional portion of the proceedings is by a preponderance of the evidence. (R.C. 2151.35 and Juv. R. 29(E)(4) applied.)" I am cognizant that there may be a good public policy argument for requiring that a parent who seeks to gain custody of his and/or her child from the county Department of Human Services (or similar agency) after the county Department of Human Services has obtained temporary custody as the result of a finding of abuse, neglect or dependency must establish by clear and convincing evidence that the change of custody is in the child's best interest. However, there are instances where the parent seeking custody was not involved in the actions which comprise the dependency, neglect or abuse finding. In addition, I just do not find that the clear and convincing evidence standard of proof is required in the law.

OPINION

Appellant Gina Sitra is appealing the decision of the Stark County Court of Common Pleas, Juvenile Division, that granted a change of legal custody, of Cherie Steiner, from the Stark County Department of Human Services ("Department") to Appellee Stanley Steiner. The following facts give rise to this appeal. On January 12, 1998, the trial court conducted an emergency shelter care hearing in regards to allegations of neglect of Levi Sitra, Matthew Sitra and Cherie Steiner. The magistrate found probable cause at the emergency shelter care hearing and awarded legal custody to the Department. The trial court temporarily placed Cherie Steiner with Appellee Stanley Steiner. On March 30, 1998, following an evidentiary hearing, the magistrate found the children neglected and awarded temporary custody to the Department. The children, including Cherie Steiner, continued to live where they had originally been placed. Prior to the evidentiary hearing, Appellee Stanley Steiner filed a motion to change legal custody of Cherie Steiner, from the Department, to himself, on January 30, 1998. The trial court conducted an adjudicatory hearing, on appellant's motion, on August 21, 1998. The parties could not resolve this matter and the trial court scheduled an evidentiary hearing for November 3, 1998. At the hearing, on November 3, 1998, the magistrate terminated the Department's custody of Cherie Steiner, awarded legal custody of Cherie Steiner, from the Department, to Appellee Stanley Steiner and designated appellee the residential parent. Appellant filed objections on November 3, 1998. The trial court conducted the objection hearing on December 8, 1998, and overruled appellant's objections. Appellant timely filed a notice of appeal and sets forth the following assignment of error for our consideration:

I. THE TRIAL COURT MISAPPLIED THE STANDARD FOR GRANTING A CHANGE IN LEGAL CUSTODY FROM THE DEPARTMENT OF HUMAN SERVICES TO STANLEY STEINER BECAUSE IT PLACED THE BURDEN OF PROOF ON THE NON-MOVING PARTY, MOTHER GINA SITRA. CONSEQUENTLY, THE TRIAL COURT, CONTRARY TO LAW, GRANTED LEGAL CUSTODY TO THE MOVING PARTY, FATHER STANLEY STEINER EVEN THOUGH NO SWORN TESTIMONY OR EVIDENCE WAS GIVEN THAT IT WAS IN CHERIE STEINER'S BEST INTEREST TO CHANGE LEGAL CUSTODY FROM THE DEPARTMENT OF HUMAN SERVICES TO HER FATHER.

For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby reversed and remanded for proceedings consistent with this opinion. Costs to appellee.

By: Wise, P. J. Farmer, J. concurs.

Edwards, J., concurs separately.