In re H.P. ( 2021 )

[Cite as In re H.P., 2021-Ohio-4446.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re H.P. Court of Appeals No. L-21-1090
Trial Court No. JC 16255015
DECISION AND JUDGMENT
Decided: December 17, 2021
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Christopher S. Clark, for appellant.
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MAYLE, J.
I. Introduction
{¶ 1} H.P., the father and appellant herein, appeals a May 10, 2021 judgment by
the Lucas County Court of Common Please, Juvenile Division that denied his request for
parenting time. As set forth below, we affirm.
II. Background
{¶ 2} This case originated with the filing of a complaint in dependency and
neglect by Lucas County Children’s Services on April 25, 2016. After months of case-
planning with both parents, the juvenile court awarded legal custody of H.P., Junior
(d.o.b. 07/27/2010 and hereinafter referred to as “H.P. Jr.”) to his maternal aunt and
uncle, H.F. and A.F. The court ordered parenting time for mother “by agreement of the
parties.” With regard to father’s parenting time, the order provided as follows:
Father has [mental health] issues that interfere with his parenting of
child. He says he attends Zepf, but has failed to sign releases to prove he is
receiving treatment. He has not had visitation with child for over a year. *
* * Due to father’s current [mental health] status, no parenting time order
will issue at this time. Should father in the future wish to establish
parenting time, he will need to file a proper motion with this court that
includes documentation from his [mental health] therapist that his [mental
health] issues are addressed and have been stabilized for at least 6 months.”
(Nov. 13, 2017 J.E.).
{¶ 3} At issue in this appeal is father’s November 9, 2020, “Motion to Modify
Parental Rights and Responsibilities,” filed pro se. In response to the motion, a
magistrate ordered father to undergo a urine screen and a home study, to be completed by
LCCS.
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{¶ 4} A home study could not be conducted because, according to LCCS, father
failed the urine screen (alcohol and diluted creatinine) and because father continued to
refuse treatment, despite “a history of significant and severe mental health diagnosis.”
{¶ 5} Following an evidentiary hearing before a magistrate, father’s motion was
denied. Father filed objections and requested that the trial court order his son, H.P. Jr., be
seen by father’s psychiatrist. The trial court adopted the magistrate’s decision and denied
father’s objections on May 10, 2021.
{¶ 6} Through counsel, father appealed and assigns a single assignment of
error for our review. No other parties entered an appearance in this matter or filed
a brief.
The trial court abused its discretion in denying appellant’s motion to
modify parental rights and responsibilities as the court’s decision is against
the manifest weight of the evidence, as visitation is in the best interest of
the child.
III. Law and Analysis
{¶ 7} As an initial matter, we note that father’s motion appears to have been
incorrectly styled, in that father was not seeking to change a shared parenting plan or to
change the designation of the sole residential parent and legal custodian. Rather, father
sought to modify the trial court’s previous order that denied him parenting time. Indeed,
father testified at hearing that he “just want[ed] visitation so [he] can spend time with
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[his] son.” Accordingly, we interpret father’s request as a motion to modify parenting
time. Accord In re X.L., 5th Dist. Licking No. 13CA6, 2013-Ohio-2421, ¶ 11.
{¶ 8} When considering a motion for parental visitation, following an adjudication
of dependency under R.C. 2151.353, the juvenile court is required to focus “solely” on
the best interest of the child. In re N.F., 9th Dist. Summit No. No. 29508, 2020-Ohio-
2701, ¶ 20; see also In re J.S., 11th Dist. Lake No. 2011-L-162, 2012-Ohio-4461. In In
re J.S., the court rejected the legal custodian’s argument that a parent seeking visitation
must demonstrate that a “change of circumstances” had occurred. Id. at ¶ 32; accord In
re X.L. at ¶ 12-13 (Trial court commits reversible error by requiring a parent to show a
change in circumstances).
{¶ 9} The best interest factors set forth in R.C. 3109.051 (“Parenting time rights”)
apply in these cases. In re N.F. at ¶ 23.1 The statute provides, in part,
(A) If a divorce, dissolution, legal separation, or annulment
proceeding involves a child and if the court has not issued a shared
parenting decree, the court * * * shall make a just and reasonable order or
decree permitting each parent who is not the residential parent to have
parenting time with the child at the time and under the conditions that the
court directs, unless the court determines that it would not be in the best
1
In his brief, father cites R.C. 3109.04(B)(1), which also contains a “best interest of the
child” standard. But, R.C. 3109.04 applies to the issue of legal custody following an
adjudication of abuse, neglect or dependency,” not parenting time. In re N.F. at ¶ 22
citing In re A.M., 9th Dist. Summit No. 29388, 2019-Ohio-5221, ¶ 12.
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interest of the child to permit that parent to have parenting time with the
child and includes in the journal its findings of fact and conclusions of law.
{¶ 10} Although R.C. 3109.051 does not refer to parenting time in proceedings
involving an abused, neglected, or dependent child, “there is no statute that does.” In re
N.F. at ¶ 23. Moreover, R.C. 3109.051 is “the only statute pertaining to parenting time
and has been applied in similar situations to the one before us on appeal.” Id. Thus,
pursuant to R.C. 3109.051(D), the juvenile court was required to consider the following
best interest factors:
(1) The prior interaction and interrelationships of the child with the
child’s parents, siblings, and other persons related by consanguinity or
affinity, and with the person who requested companionship or visitation if
that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the
distance between those residences, and if the person is not a parent, the
geographical location of that person’s residence and the distance between
that person's residence and the child’s residence;
(3) The child’s and parent’ available time, including, but not limited
to, each parent’s employment schedule, the child’s school schedule, and the
child’s and the parent’ holiday and vacation schedule;
(4) The age of the child;
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(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, regarding the wishes and concerns of the child
as to parenting time by the parent who is not the residential parent or
companionship or visitation by the grandparent, relative, or other person
who requested companionship or visitation, as to a specific parenting time
or visitation schedule, or as to other parenting time or visitation matters, the
wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend
with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time
and to facilitate the other parent’s parenting time rights, and with respect to
a person who requested companionship or visitation, the willingness of that
person to reschedule missed visitation;
(11) In relation to parenting time, whether 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
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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 the
adjudication; 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;
(12) In relation to requested companionship or visitation by a person
other than a parent, whether the person 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 the person, 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 the adjudication; whether either parent
previously has been convicted of or pleaded guilty to a violation of section
2919.25 of the Revised Code 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 previously has
been convicted of an 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
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believe that the person has acted in a manner resulting in a child being an
abused child or a neglected child;
(13) 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;
(14) Whether either parent has established a residence or is planning to
establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other
than a parent, the wishes and concerns of the child’s parents, as expressed by them
to the court;
(16) Any other factor in the best interest of the child.
{¶ 11} We now turn to the juvenile court’s judgment that overruled father’s
objections and adopted the magistrate’s decision to deny his request for parenting time.
Pursuant to Juv.R. 40(D)(4)(d), if timely objections to a magistrate’s decision are filed,
the juvenile court “shall undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately
applied the law.” We review a trial court’s decision with respect to visitation under an
abuse of discretion standard. In re J.S. at ¶ 19. This standard requires that the trial
court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or
unconscionable,” because the trial judge is best equipped to determine and weigh the
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credibility of the proffered testimony. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶ 12} In its decision, the juvenile court found,
After reviewing the record, the Court finds Father’s objection
unpersuasive. Indeed, the Magistrate clearly ordered [in 2017] that Father
provide documentation that his mental health issues have been stabilized
for at least six months. Although the court commends Father for providing
evidence that he was recently seen by a psychiatrist, the doctor also noted
that it was only the first time evaluating Father. Accordingly, Father must
continue to be evaluated by his psychiatrist for, at least, another six months
before the Court will allow parenting time between Father and the minor
child. As for psychiatric evaluations for the minor child, custodians [H.F.
and A.F.] may choose to allow the minor child to be seen by Father’s
psychiatrist; however, the Court makes no such order to do so at this time.
Based on the foregoing, Father’s objection is denied.
{¶ 13} On appeal, father argues that the trial court abused its discretion in denying
his request for parenting time. He claims that H.P. Jr.’s best interests would be served by
“allowing [H.P. Jr.] the opportunity to develop a relationship with his natural father and
allow [father] the opportunity to have a relationship with his natural son.” Father points
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to his “stable income” and the fact that he owns his own home just “four blocks from
[H.P. Jr.]” as factors supporting visitation.
{¶ 14} In applying the best interest factors, the trial court clearly afforded the most
weight to R.C. 3109.051(D)(9), regarding father’s mental health. Given father’s long-
standing history of unaddressed mental health issues, we see no abuse of discretion by the
trial court in placing more weight on that factor than the others. Indeed, a trial court has
discretion in determining which best interest factors are relevant, and “each factor may
not necessarily carry the same weight or have the same relevance, depending upon the
facts before the trial court.” (Quotations and internal citations omitted.) Haldy v.
Hoeffel, 3d Dist. Henry No. 7-19-08, 2020-Ohio-975, ¶ 32. The record also supports the
court’s consideration of R.C. 3109.051(D)(1), regarding father and son’s “prior
interaction and interrelationship.” According to LCCS, H.P. Jr. was “fearful of [father]
and has not had visitation [with him] in several years.”
{¶ 15} The record supports that the trial court considered R.C. 3109.051(D)
through its independent review of the magistrate’s decision. That is, in deciding whether
to grant father’s motion to modify parenting time, the trial court considered whether the
request was appropriate and in H.P. Jr.’s best interest by weighing the relevant statutory
factors under R.C. 3109.051(D). After our review of the record, we cannot say that the
trial court’s balancing of those factors or its application of the weight assigned to each
factor was arbitrary, unreasonable, or unconscionable.
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IV. Conclusion
{¶ 16} For the reasons expressed above, we find that the juvenile court’s decision
to deny father’s motion was not an abuse of discretion, and therefore we find that father’s
assignment of error is without merit. The May 10, 2021 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24, costs of
this appeal are assessed to father.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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