Purvis v. Hazelbaker , 191 Ohio App. 3d 518 ( 2010 )

[Cite as In re B.P., 191 Ohio App. 3d 518, 2010-Ohio-6458.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
In re B.P.; : Case No. 10CA890
Purvis, et al., :
Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Hazelbaker, : Released 12/22/10
Appellant. :
______________________________________________________________________
APPEARANCES:
Kris D. Blanton, for appellees Debra and Keith Heaton.
Lauren R. Weller, Southeastern Ohio Legal Services, for appellant.
______________________________________________________________________
Per Curiam.
{¶ 1} After finding Robin Hazelbaker to be an “unsuitable” parent, the Adams
County Juvenile Court awarded legal custody of her daughter, B.P., to the child’s
paternal grandparents, Debra and Keith Heaton.1 Hazelbaker argues that the trial court
1
The trial court’s entry refers to the grandparents “retaining” custody rather than custody being “awarded”
to them. Previously, the trial court had awarded custody to the grandparents, but we reversed this
decision after concluding that the trial court applied the wrong legal standard. Purvis v. Hazelbaker, 181
Ohio App. 3d 167, 2009-Ohio-765, 908 N.E.2d 489. Upon remand, the trial court granted the
grandparents’ request to retain custody of B.P. pending the court’s redetermination of the custody dispute
between the Heatons and Robin Hazelbaker. We assume that this procedural history is the basis for the
trial court’s use of the word “retaining” rather than “awarding” when the court reexamined the issue.
Thus, the effect of the court’s most recent entry was to grant custody to the grandparents, and we refer to
the trial court’s decision as an award of custody.
Adams App. No. 10CA890 2
abused its discretion because the record lacks competent and credible evidence to
support its finding that her retention of custody would be detrimental to the child.
{¶ 2} For various reasons, Hazelbaker contends that the following findings of
fact do not justify the court’s conclusion that she is an unsuitable parent: (1) she
withheld B.P. from visiting with the Heatons on a number of occasions,; (2) she was
alienated from her other three children, (3) the Heatons provided B.P. a “safe and
stable” home; (4) she was unable or unwilling to provide B.P. with a safe and stable
home; and (5) she had several boyfriends and allegedly sent nude photographs of
herself to one of them.
{¶ 3} Our decision here is guided by the “unsuitability” analysis set forth in In re
Perales (1977), 52 Ohio St. 2d 89, 369 N.E.2d 1047. Under Perales, a court may not
change custody from a parent to a nonparent without first finding that retaining custody
in the parent would be detrimental to the child, i.e., the parent is “unsuitable.” Id. at
syllabus.2 After reviewing the record, we agree that some of the court’s findings of fact
are not relevant to the unsuitability analysis. The findings of fact related to the Heatons’
“safe and stable” home are potentially relevant in a “best interest” type analysis but not
to an “unsuitability analysis. We also conclude that the trial court erred to the extent it
premised its finding of unsuitability on Hazelbaker’s pattern of romantic relationships
and sending nude photographs to a former boyfriend. There is no evidence in the
record establishing that B.P. has or is about to suffer any detriment because of her
mother’s sexual conduct. And finally, there is some evidence supporting the trial court’s
2
We note that under Perales, parental unsuitability may also be established if the court finds that the
parent has (1) abandoned the child, (2) contractually relinquished custody of the child, or (3) become
incapable of supporting or caring for the child. However, none of these additional findings establishing
unsuitability are relevant in this appeal.
Adams App. No. 10CA890 3
findings that Hazelbaker prevented B.P. from visiting the Heatons for a period of time
and that Hazelbaker is alienated from her adult children. However, these two factors
alone do not demonstrate that it would be detrimental for Hazelbaker to retain custody
of her daughter. Consequently, we agree that the trial court abused its discretion when
it found that Hazelbaker was an unsuitable parent.
I. Background
A. Events Leading Up to the Custody Dispute
{¶ 4} B.P. was born in 2000 and is the natural daughter of Robin Hazelbaker
and Michael Purvis. The couple lived together for some period of time, but they were
never married and eventually separated in April 2005. Purvis filed a complaint in April
2006 to establish child support and a parent-child relationship. However, he was
subsequently incarcerated and failed to pursue his petition.
{¶ 5} In May 2006, the Heatons, Purvis’s mother and stepfather, filed a motion
for grandparental visitation. Hazelbaker, acting pro se, and the Heatons, who were
represented by counsel, later reached an agreement on the “motion for grandparents
rights.” The agreed entry stated: “The Defendant and grandparents have agreed to
share in the parenting of the child. Defendant, Robin Hazelbaker shall retain custody of
the minor child. Keith and Debbie Heaton shall have visitation with the minor child every
weekend or as agreed upon by the parties.”
{¶ 6} Purvis was released from prison in October 2006 and began living with the
Heatons. In November 2006, the Heatons filed a motion seeking custody of B.P.,
claiming that Hazelbaker was “unfit” to care for the child. On the same day, Hazelbaker
filed a petition for a civil stalking protection order against Purvis on behalf of herself and
Adams App. No. 10CA890 4
B.P. After filing for the protection order, Hazelbaker stopped sending B.P. to visit the
Heatons. In December 2006, the Heatons filed a motion for contempt, arguing that
Hazelbaker had withheld visitation with B.P. from them.
{¶ 7} In December 2006, the court held a hearing on Hazelbaker’s petition for a
protection order. Although the Heatons were not a party to the civil-protection-order
proceeding, the Heatons and Hazelbaker apparently came to a temporary agreement so
that the Heatons would have visitation with B.P. over the Christmas holiday. Later, the
court granted Hazelbaker’s request for a protection order for herself, but denied a
request that B.P. remain a protected party under the protection order.
B. The Initial Hearing
{¶ 8} In January 2007, an initial hearing on the Heatons’ custody and contempt
motions occurred. In February 2007, the court issued an“agreed entry granting the
Heatons visitation with B.P. every other Sunday. The court also appointed a guardian
ad litem for the case. Then, in April 2007, Purvis filed a new motion for custody and
visitation. The court, upon the guardian ad litem’s recommendation, modified the
February 2007 agreed entry and granted additional visitation to Purvis and the Heatons.
{¶ 9} Later, the guardian ad litem filed two reports with the court, the first of
which recommended that the court order psychological and/or custody evaluations of
the interested parties. In the second report, the guardian ad litem described custody
interviews with Hazelbaker and Purvis. She stated that she had concerns about
Purvis’s criminal background and Hazelbaker’s mental stability. Notably, she said that
both the Heatons’ home and Hazelbaker’s home were “appropriate and suitable” for the
Adams App. No. 10CA890 5
child. Ultimately, the guardian ad litem recommended that Hazelbaker and Purvis be
awarded shared parenting of B.P.
{¶ 10} Dr. Eugene Smiley, a professional counselor, conducted the custody
evaluations of Purvis and Hazelbaker and filed a report with the court. Purvis told Dr.
Smiley that Hazelbaker was “promiscuous” and that all she did was “smoke and drink
beer.” Hazelbaker accused Purvis of being violent, volatile, and unstable. She also
claimed that Purvis and the Heatons had made unfounded complaints to Adams County
Children Services, apparently in an attempt to gain custody of B.P.
{¶ 11} Dr. Smiley wrote that he was concerned that both Hazelbaker and Purvis
exhibited “conflicted” behavior toward one another, which was having a negative effect
on B.P., who was “clearly and equally” bonded to both parents. He believed that Purvis
would benefit from anger-management courses and recommended them. Dr. Smiley
also stated that he contacted Adams County Children Services and confirmed that they
had conducted investigations at Hazelbaker’s home. They found all claims to be
unsubstantiated. Ultimately, he recommended that Hazelbaker retain custody of B.P.
and that Purvis have alternating weekend visitation with her.
{¶ 12} Dr. Smiley later filed an addendum report after interviewing the Heatons
and Heather Hazelbaker, who is one of Hazelbaker’s older daughters from a prior
marriage. Heather was 17 years old at the time of the interview in 2007 and in the
custody of Hazelbaker’s ex-husband, Frank Hazelbaker. Dr. Smiley found that Heather
was “clearly alienated” from her mother. Heather told Dr. Smiley that when she was
living with Hazelbaker, as many as ten people were staying in the small house.” She
also claimed that her mother had posted hundreds of nude photographs of herself on
Adams App. No. 10CA890 6
the Internet. Heather described Hazelbaker as a “lying, cheating person who has done
horrible stuff.” Dr. Smiley noted that Heather could not think of one positive thing to say
about her mother, but that if the allegations were true, then Hazelbaker would “be well
advised to take more care in her choice of male and other companions, and to exercise
more discretion when determining who resides in her home with [B.P.]”
{¶ 13} The Heatons told Dr. Smiley that they were concerned about B.P.’s
welfare while she was being raised by Hazelbaker. They claimed that they were
concerned for her “safety, direction and support, and exposure to individuals that have
come into contact with [B.P.]’s home that do not meet with [their] approval.”
Additionally, they claimed that Hazelbaker had not allowed B.P. to participate in
activities “outside her mother’s home – no extracurricular school or church activities.”
After observing B.P. with the Heatons, Dr. Smiley noted that B.P. exhibited “a positive
and comfortable bond” with them.
{¶ 14} Dr. Smiley again stated that he was concerned about the conflicts
between Purvis and Hazelbaker and that these would have a negative impact on B.P.
He also noted that B.P. had a lack of contact with her three older siblings, Elisha,
Nathan, and Heather. Ultimately, Dr. Smiley changed his recommendation to a shared
parenting arrangement between Hazelbaker and the Heatons.
{¶ 15} Dr. Smiley also filed a third addendum to his recommendations after
realizing that he had forgotten to mention Purvis’s status. This clarification
recommended that the Heatons should have shared parenting rights with the
understanding that while B.P. was with the Heatons, Purvis would have full and
unsupervised visitation with B.P.
Adams App. No. 10CA890 7
C. Subsequent Hearing
{¶ 16} In late 2007 and early 2008, the court conducted a two-day hearing to
resolve the pending motions. First to testify was Dr. Smiley, who reiterated many of the
opinions in his custody evaluations, including his recommendation that the Heatons and
Hazelbaker have shared parenting of B.P. and that Purvis be allowed unsupervised
contact with B.P. while she was staying with the Heatons. Dr. Smiley stated that he had
no concerns for either Purvis’s or Hazelbaker’s mental state as it related to their ability
to parent. Dr. Smiley opined that Heather Hazelbaker came across as too “one-sided”
but that he did not necessarily believe that she was lying about or exaggerating her
claims.
{¶ 17} Frank Hazelbaker testified that he was Hazelbaker’s ex-husband and,
after their divorce in the late 1990s, he obtained custody of two of their children, Elisha
(the oldest) and Nathan (the youngest). He later gained custody of Heather, their
middle child, in March 2007. Frank stated that Hazelbaker had visitation rights with
Nathan but had not exercised them.
{¶ 18} Elisha explained that she lived at her mother’s house for about nine
months beginning in the summer of 2005. She claimed that her mother would often
leave her, and she was forced to babysit the children in the house while Hazelbaker
“went out.” She claimed that her mother would ask her for money and then leave the
house. Elisha claimed that Hazelbaker “slept all the time” and that there was never any
healthy food in the house. Elisha also stated that she had concerns about the
individuals that Hazelbaker was bringing in to the house and claimed that in the nine-
Adams App. No. 10CA890 8
month period when she was staying at Hazelbaker’s, she brought home four to five
men. She stated that she never observed any drug use in the home.
{¶ 19} Nathan testified that he was mad at his mother because she had placed
Heather in a children’s home. Nathan very rarely visited Hazelbaker’s home and never
observed any drug use in the home. He claimed that when he would visit, he would
sometimes see men there. He was asked whether Elisha ever had to babysit him when
he visited, and he said that she “infrequently” babysat him. Nathan testified that he had
no concerns about his mother’s interactions with B.P.
{¶ 20} Heather supplied the most damaging testimony against her mother. She
testified that Hazelbaker was doing a lot of dating while she lived at the house and that
there were “plenty of men” there. She claimed that sometimes she would go into the
living room at night and find strange men there. She also stated that there was an
inadequate supply of food and that her mother would bring home wine instead of food
when she was depressed. She claimed that her mother drank alcohol “all the time.”
She stated that the house has no heat and no air conditioning. Heather accused her
mother of trying to put her in a children-services home because she wanted to be
placed in her father’s custody.
{¶ 21} Heather claimed that she witnessed violence between Hazelbaker and her
boyfriend, Kevin Hesler. She stated that police would “often” come to the house. She
also stated that she witnessed her mother smoking marijuana with Hesler in the home.
Heather claimed that she found one thousand sexually explicit photographs, which were
freely accessible, on a computer in her mother’s home. She explained that the
computer had separate accounts for everyone at the home; however, the password for
Adams App. No. 10CA890 9
each account was the same. Heather stated that she found the photographs in a
shared pictures folder and that there were no access restrictions on the photographs.
She claimed that in certain photographs, her mother was nude, standing by a Christmas
tree in the living room. Her mother’s boyfriend at the time, who was a soldier in Iraq,
appeared nude in a different photograph. She also claimed that there were pictures of
“naked parties” in which Hazelbaker was engaged in sexual acts with boyfriends and
“different guys.” Heather stated that B.P. used this computer although she did not
indicate that B.P. had viewed the photographs.
{¶ 22} Heather explained that she transferred these photographs to five compact
discs (“CDs”) and that there were about 200 photographs contained on each CD. She
claimed that she gave the CDs to her mother but later found one of them on her
mother’s desk. She turned this CD over to the Heatons, apparently to help them secure
custody of B.P. Although the Heatons claimed that they had possession of the
photographs on the CD, they did not introduce them into evidence.
{¶ 23} Heaton told the court about her large house, which sat on 300 acres and
had six bedrooms and a pool. Mrs. Heaton told the court that she had frequent
interactions with B.P. through weekend visitations between when the child was two
weeks old and October 2006. When B.P. was with them on the weekends, the Heatons
took her to 4-H classes and to Sunday school.
{¶ 24} Mrs. Heaton testified that Hazelbaker was “paranoid” and would not
leave the house. She claimed that Hazelbaker slept a lot and had “questionable seizure
activity.” Mrs. Heaton opined that B.P.’s future would go “nowhere” if she stayed with
Hazelbaker. And Mrs. Heaton stated that while B.P. was staying with her one weekend,
Adams App. No. 10CA890 10
the Adams County Sheriff was called to Hazelbaker’s residence twice. She also stated
that in 2006, Purvis had to watch B.P. for two weeks when Hazelbaker took a trip to
Paris, France, with a boyfriend who was a soldier in Iraq.
{¶ 25} Purvis testified that he had concerns about Hazelbaker’s having custody
of B.P. because she was “unpredictable.” Purvis admitted that he was on probation in
Brown County for three years for a theft conviction, that he was on probation in Adams
County for one year for a charge of theft by deception, and that he had been
incarcerated for a parole violation for a theft conviction in Highland County.
{¶ 26} On the second day of the hearing, the court heard testimony from
Hazelbaker and her witnesses. Steve Darby testified that he is a guidance counselor at
North Adams High School and the advisor of a 4-H group at the school. Darby testified
that Heather attended 4-H meetings, and Hazelbaker brought her to the meetings when
they resided together. He further testified that Hazelbaker brought B.P. with her to the
meetings, that B.P. would play with the siblings of other 4-H participants, and that
Hazelbaker and B.P. had a good relationship. Finally, Darby testified that B.P.
participated in Lead Line classes at horse shows.
{¶ 27} Winfield Rayburn, Hazelbaker’s father, testified that he would babysit B.P.
after she got out of preschool or kindergarten and before Hazelbaker came home from
work. Winfield testified that B.P. was a pleasant and talkative child. Winfield stated that
he had no concerns about the way that Hazelbaker was raising B.P.
{¶ 28} Hazelbaker testified that she worked at Child Focus, Inc., where she
coordinated services for at-risk families with young children. Hazelbaker indicated that
her workplace required random drug tests and that she had never failed a drug test.
Adams App. No. 10CA890 11
She specifically denied ever taking any drugs. She claimed that there were never any
“strange men” in the house and denied that she slept all the time. She denied using
Elisha as a babysitter so that she could go out to the bars; she said that she rarely if
ever went out. Hazelbaker also stated that the house had heat and air conditioning.
{¶ 29} Hazelbaker testified that B.P. had good grades while living with her.
Hazelbaker stated that she took B.P. to 4-H classes in Adams County and that she took
her to Lead Line horse riding classes. She produced various photographs showing B.P.
participating in Lead Line classes, at home with her sisters, and on vacation with her at
the Great Serpent Mound.
{¶ 30} Concerning the nude photographs, Hazelbaker conceded that she sent
pictures taken in 2005 to a soldier stationed in Iraq whom she met online. Hazelbaker
claimed that she kept the pictures under a password-protected account and denied that
all the accounts on the computer had the same password. Hazelbaker also denied that
there were photographs on her computer of group sex and claimed no recollection of
those events. Hazelbaker stated that she believed that Heather was angry at her
because she attempted to place her in a children’s home after she suspected that
Heather had a drug problem.
{¶ 31} Hazelbaker admitted that Adams County Children Services had been
called to her house at least five times. She believed that Purvis and/or the Heatons had
called them. She noted that Children Services investigated all the claims and found that
none were substantiated. Hazelbaker admitted that she filed bankruptcy in 2007 and
had 63 total creditors. However, she pointed out that 49 of these creditors were for a
failed construction business with Purvis. Hazelbaker also admitted that she called the
Adams App. No. 10CA890 12
sheriff’s office out to her home twice one weekend in 2006 because of a domestic
dispute between Hesler and herself.
{¶ 32} Hazelbaker explained that she kept B.P. from visiting with the Heatons
one weekend because she had family coming into town from Alabama and she wanted
them to meet B.P. She indicated that she had asked the Heatons if she could keep
B.P., but they refused. She also admitted that she kept B.P. from visiting with the
Heatons for approximately two months after she obtained a protection order against
Purvis. However, she claimed that she kept B.P. upon the advice of the sheriff’s office,
which informed her that as long as the protection order was in effect, she should not
send B.P. to stay with the Heatons while Purvis was living with them.
{¶ 33} In June 2008, the court issued its decision, effectively granting custody to
the Heatons and parenting time to Hazelbaker. After Hazelbaker appealed that
decision, we reversed, holding, among other things, that the court must find that
Hazelbaker was “unsuitable” before it could grant custody of B.P. to the Heatons. See
Purvis v. Hazelbaker, 181 Ohio App. 3d 167, 2009-Ohio-765, 908 N.E.2d 489, at ¶ 2.
D. Remand Proceedings
{¶ 34} In April 2009, the court held a hearing after our remand, apparently to
receive any new evidence that had arisen since the 2008 hearing. Ty Shipley testified
that he was engaged to Hazelbaker, whom he had known for 20 years. Hazelbaker had
been living with him at his home since December 2008, and B.P. had made overnight
visits to his residence during Hazelbaker’s parenting time. Shipley testified that he had
observed the relationship between Hazelbaker and B.P. and it was “typical” and “good.”
Shipley stated that he has grown children of his own.
Adams App. No. 10CA890 13
{¶ 35} Hazelbaker testified that B.P. has a good relationship with Shipley and
that they play soccer together. She stated that there had been no police or children-
services investigations at Shipley’s home. Hazelbaker admitted that she had lost the
home that she was living in previously to foreclosure. She stayed at her father’s home
for a few months before moving in with Shipley. Before she moved there, she had been
in a relationship with another man for approximately three months. Their relationship
ended because he died in a car accident. Hazelbaker stated that she had very little
contact with the Heatons, and most of the information regarding what B.P. was doing
with them was obtained through Purvis.
{¶ 36} Subsequently, the guardian ad litem issued an additional report. She
found that B.P. was doing well in school and continued to thrive while in the Heatons’
care. B.P. was participating in softball and going to church camp. The Heatons told the
guardian ad litem that Hazelbaker had been resistant to extracurricular activities
involving B.P. They claimed that Hazelbaker had brought the child to softball practice
but left early, after about 45 minutes, because B.P. was not feeling well. The Heatons
reported that exchanges of B.P. with Hazelbaker had been uneventful. Ultimately, the
guardian ad litem recommended that the court grant custody of B.P. to the Heatons and
opined that custody by either parent would be detrimental to B.P.
{¶ 37} The court issued its decision in September 2009 and found by “clear and
convincing” evidence that Hazelbaker was not a suitable parent and that her retaining
custody of B.P. would be detrimental to the child. Accordingly, the court ordered that
custody of the child “should remain with the grandparents, Keith and Debbie Heaton.”
Adams App. No. 10CA890 14
After Hazelbaker requested findings of fact and conclusions of law, the court delayed
issuing a journal entry until February 8, 2010. The entry found:
1. Defendant has without cause withheld the child from her father and her
grandparents on several occasions.
2. The Defendant demonstrates limited parenting skills, not only because
she does not seem to understand the value of the child’s association with
grandparents and the father but also by the alienation of her other
children.
3. The grandparents have provided a safe and stable home for the child
and have seen to it that the child has contact with the Defendant at all
ordered times.
4. Defendant’s home in Adams County was unsuitable, and although she
has moved in with yet another adult male in Brown County who has a
good residence, her behavior of going from one boyfriend to another
causes the court to question her stability. Indeed, testimony about her
having sent nude photos of herself to a previous male friend, among the
other matters listed above, drew the court to the conclusion that she is not
a suitable custodian for a young child.
5. The grandparents have provided a home and stability for this child
when no one else was able or willing to do so, and she has thrived in their
care.
{¶ 38} Hazelbaker has appealed from this judgment entry.3
II. Assignments of Error
{¶ 39} Hazelbaker presents a single assignment of error:
The trial court committed an abuse of discretion by granting
custody to a nonparent when the record does not support a finding that
custody to mother would be detrimental to the child, and thus that mother
would be an unsuitable parent.
III. Custody Disputes Involving a Nonparent
3
Although a party to this matter, Purvis did not file a brief. Subsequent to the court’s journal entry
awarding custody of B.P. to the Heatons, Purvis filed a new motion for change of custody and now claims
that Debbie Heaton “manipulates [his] daughter’s time so that [his] parenting time is limited.”
Adams App. No. 10CA890 15
{¶ 40} In her sole assignment of error, Hazelbaker argues that the trial court
abused its discretion by finding that she is an unsuitable parent because the record
lacks competent and credible evidence that her retention of custody would be
“detrimental” to B.P. We agree.
A. The Parent’s Paramount Right to Custody
{¶ 41} The right to raise one’s child is regarded as essential and fundamental.
See In re Murray (1990), 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169. “[I]t has been
deemed ‘cardinal’ that the custody, care and nurture of the child reside, first, in the
parents.” Id., quoting Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S. Ct. 438.
The United States Supreme Court, in Troxel v. Granville (2000), 530 U.S. 57, 65-66,
120 S. Ct. 2054, held that a parent has a fundamental right to make decisions
concerning his or her children. Courts have therefore “sought to effectuate the
fundamental rights of parents by severely limiting the circumstances under which the
state may deny parents the custody of their children.” In re Hockstok, 98 Ohio St. 3d
238, 2002-Ohio-7208, 781 N.E.2d 971, at ¶ 17, citing Perales, 52 Ohio St. 2d 89, 369
N.E.2d 1047, at syllabus.
{¶ 42} Accordingly, “in a child custody proceeding [under R.C. 2151.23(A)(2)]
between a parent and nonparent, a court may not award custody to the nonparent
‘without first determining that a preponderance of the evidence shows that the parent
abandoned the child; contractually relinquished custody of the child; that the parent has
become totally incapable of supporting or caring for the child; or that an award of
custody to the parent would be detrimental to the child.’ [Perales at syllabus.] If a court
concludes that any one of these circumstances describes the conduct of a parent, the
Adams App. No. 10CA890 16
parent may be adjudged unsuitable, and the state may infringe upon the fundamental
parental liberty interest of child custody.” In re Hockstok, 98 Ohio St. 3d 238, 2002-Ohio-
7208, 781 N.E.2d 971, at ¶ 17.
{¶ 43} A “preponderance of the evidence” is “evidence which is of greater weight
or more convincing than the evidence which is offered in opposition to it.” Black’s Law
Dictionary (6th Ed.1998) 1182.
B. Standard of Review
{¶ 44} Although a trial court possesses broad discretion in custody matters,
Reynolds v. Goll (1996), 75 Ohio St. 3d 121, 124, 661 N.E.2d 1008, it does not have
discretion to terminate a parent’s right to custody when the finding of unsuitability is not
supported by the record. Perales, 52 Ohio St. 2d 89, 369 N.E.2d 1047. Thus, we will
review the record under a manifest-weight-of-the-evidence standard to see whether
competent, credible evidence supports the trial court’s finding of unsuitability. See C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 280, 376 N.E.2d 578, cited
with approval in State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, at ¶ 24; State v. Schiebel (1990), 55 Ohio St. 3d 71, 74-75, 564 N.E.2d 54.
C. Findings of Detriment to B.P.
{¶ 45} Hazelbaker contends that the trial court erred in concluding that she is an
unsuitable parent. Generally, she argues (1) that certain findings of fact are irrelevant to
the “unsuitability” analysis, i.e., they are actually considerations under the “best interest”
analysis, and (2) that other findings simply do not support the conclusion that it would
be detrimental to B.P. for her to retain custody. We will review each finding of fact to
determine whether (1) it is a relevant consideration under the Perales unsuitability
Adams App. No. 10CA890 17
analysis and (2) there is some competent and credible evidence in the record to support
it.
1. Defendant has without cause withheld the child from her father and her
grandparents on several occasions.
{¶ 46} Hazelbaker admits that facilitating court-approved parenting time is a best-
interest- analysis factor under R.C. 3109.04(F)(1), but she argues that the evidence did
not demonstrate that B.P. suffered any detriment from missing court-ordered visitation
time. The Heatons argue that the evidence demonstrates that Hazelbaker used B.P. as
a “bartering tool” to get the Heatons to “bend to her wishes.”
{¶ 47} Hazelbaker did not send B.P. to stay with the Heatons one weekend in
late 2006 when Hazelbaker’s family visited from out of town and she wanted B.P. to
meet them. And Hazelbaker discontinued visitation with the Heatons for a period of
approximately two months in late 2006 after she filed for a protection order against
Purvis, naming herself and B.P. as protected parties (Purvis was residing with the
Heatons during this period). Hazelbaker explained that the reason she did not send
B.P. to the Heatons was because a sheriff’s office employee told her that if she had a
protection order against Purvis that included B.P. as a protected party, she should not
send B.P. where he was living.
{¶ 48} The Heatons exercised visitation regularly with B.P. from 2000 up until the
incidents of withholding in late 2006. In fact, Mrs. Heaton testified that the Heatons saw
B.P. very freely until October 2006, even when Hazelbaker and Purvis were not in a
relationship. Hazelbaker voluntarily signed paperwork so the Heatons could take B.P.
with them to visit Purvis while he was incarcerated.
Adams App. No. 10CA890 18
{¶ 49} There is no evidence in the record of any visitation disputes between the
Heatons or Purvis and Hazelbaker following the December 2006 agreement to
recommence visitation, and Hazelbaker has never been held in contempt of court for
violating a visitation agreement. In fact, Purvis testified that Hazelbaker allowed him
and the Heatons two days of visitation with B.P. over the Thanksgiving 2007 holiday
even though it had been her turn to spend the holiday with B.P., and that Purvis and
Hazelbaker have “trick or treated,” thrown a joint birthday party for B.P., and taken B.P.
Christmas shopping together.
{¶ 50} Although there is evidence in the record to support the trial court’s finding
that Hazelbaker withheld visitation with B.P. from the Heatons and Purvis for a period in
2006, there is no evidence that these actions have been detrimental to B.P.
Significantly, none of the parties or other witnesses testified to any detrimental effect on
B.P. as a result of Hazelbaker’s actions or introduced any other evidence to support
such a finding.4
{¶ 51} We do acknowledge that a court may infer a detrimental effect on a child
when a parent engages in such a pattern of withholding visitation as to demonstrate that
the parent is clearly interfering in a child’s relationship with her other parent or
grandparents. However, there is no competent and credible evidence that such a
pattern exists here. Even assuming that Hazelbaker’s decision to withhold visitation
from the Heatons while B.P. was listed on the protection order against Purvis was
unjustified, this was a brief period in an otherwise continuous relationship between B.P.
and her paternal family. Even the testimony of Mrs. Heaton and Purvis establishes that
4
We do not suggest that contempt sanctions for withholding visitation must be based upon a finding of
detriment. However, contempt of court is not the issue here.
Adams App. No. 10CA890 19
Hazelbaker generally allowed them visitation with B.P., even whenit was not required by
the court.
{¶ 52} We conclude that although there is some evidence to support the trial
court’s finding that Hazelbaker withheld visitation without cause, the court’s conclusion
that these actions establish that Hazelbaker’s retention of custody would be detrimental
to B.P. is not supported by the record.
2. The Defendant demonstrates limited parenting skills, not only because
she does not seem to understand the value of the child’s association with
grandparents and the father but also by the alienation of her other
children.
{¶ 53} The first aspect of this finding -- that Hazelbaker failed to understand the
value of B.P.’s association with her grandparents -- appears to be directed to the
missed visitation in 2006. Thus, we decline to reexamine that finding here and rely
upon our previous analysis.
{¶ 54} Concerning the alienation of her other children, Hazelbaker argues that
this sort of finding is improper in the unsuitability analysis because the focus should be
on the individual child in question. Stated otherwise, she contends that the record lacks
competent and credible evidence that the alienation from her other children caused
detriment to B.P. She further argues that the testimony of her children about her “bad
mothering” was only relevant to the year prior to their testimony, which was received in
2007. And Hazelbaker contends that we should view Heather’s testimony as “suspect”
because Heather was angry at her.
{¶ 55} Hazelbaker’s children are clearly alienated from her. Based upon a
parent’s poor relationship with that parent’s other children, a court might infer that it is
only a matter of time until an existing good relationship with the child in question
Adams App. No. 10CA890 20
degenerates into an unsatisfactory one. However, the standard for awarding custody to
a nonparent under Perales is whether an award of custody to the parent would be
detrimental to the child, not whether such an award of custody could be detrimental to
the child in the future. In the absence of some evidence that the schism is having a
detrimental effect upon B.P., the trial court could not conclude that Hazelbaker is
presently an unsuitable parent to B.P.
{¶ 56} There is certainly other testimony from Elisha, Heather, and Nathan to
establish instances of limited parenting skills that may affect B.P., i.e., purchasing
alcohol instead of food, excessive sleeping instead of caring for her children, going out
frequently, and permitting or participating in drug usage in the home. However, the
court made no findings of fact based upon any of this testimony; therefore, we can only
conclude that the trial court either did not find much of the testimony credible5 or did not
believe this conduct was having a detrimental effect on B.P.
{¶ 57} We conclude that merely being alienated from other children does not
mean it would be detrimental to award custody of a different child to the parent.
Therefore, we search for evidence suggesting that Hazelbaker’s alienation from her
other children is causing detriment to B.P.
{¶ 58} Dr. Smiley stated in his second custody evaluation that he had “concerns”
about B.P.’s lack of contact with Elisha, Heather, and Nathan. Apparently, due to the
5
There were conflicts in the testimony of the three older children. For example, Elisha testified that she
frequently babysat her younger siblings so that Hazelbaker could go out, but Nathan testified that Elisha
“infrequently” babysat him during their visits. Heather testified that she observed drug use by Hazelbaker
and her then boyfriend, but Elisha testified that she never observed any drug use in the home. There
were also instances of conflict between Hazelbaker’s children and other evidence in the record. For
example, Heather testified that there was no heat or air conditioning in Hazelbaker’s home, but the
guardian ad litem report found the home to be adequate. Additionally, although Hazelbaker was
apparently reported to and investigated by Adams County Children Services on multiple occasions, the
agency never concluded that the home was inadequate or lacking basic necessities such as food.
Adams App. No. 10CA890 21
other children’s general dislike of their mother, they would see B.P. only when she
visited with the Heatons. Thus, the record contains some support for the trial court’s
finding that lack of contact with her half-siblings would cause some level of harm to B.P.
However, because B.P. maintains a relationship with her half-siblings through the
Heatons, it is unreasonable to conclude that B.P.’s limited relationship with her now
grown half-siblings would constitute such a detriment under Perales as to demonstrate
that Ms. Hazelbaker is an unsuitable parent.
3. The grandparents have provided a safe and stable home for the child
and have seen to it that the child has contact with the Defendant at all
ordered times.
{¶ 59} Hazelbaker argues that the first aspect of this finding of fact, i.e., the
Heatons’ safe and stable home, is a proper consideration under the R.C. 3109.04(F)(1)
best-interest analysis but has no import in determining whether retaining custody of B.P.
would be detrimental to her under Perales. Hazelbaker is correct. “The Perales
‘suitability’ test is distinguishable from the ‘best interest’ test. Under the best interest
test, the court looks for the best situation available to the child and places the child in
that situation. [In re] Lowe [(Jan. 16, 2002), Columbiana App. No. 00CO62, 2002 WL
75937]. The suitability test, on the other hand, requires a detriment to the child be
shown before the court takes him/her away from an otherwise suitable parent.” In re
Davis, Mahoning App. No. 02-CA-95, 2003-Ohio-809, at ¶ 12. “Under the suitability
test, ‘[s]imply because one situation or environment is the “better” situation does not
mean the other is detrimental or harmful to the child. ’” Id., quoting Lowe at *2.
{¶ 60} Accordingly, though there was competent and credible evidence in the
record to support a finding that the Heatons’ home was safe and suitable, this factor is
Adams App. No. 10CA890 22
irrelevant to the unsuitability analysis. Moreover, even if we were to assume that the
implication here is that Hazelbaker’s home was not safe and suitable, the record
squarely contradicts such a finding. Although there were allegations that there was
drug use in Hazelbaker’s home in Adams County and that strange men were sometimes
there, this testimony was apparently not credited by the trial court, as it made no finding
in this regard. Moreover, the guardian ad litem expressly found that Hazelbaker’s home
was suitable for B.P. And notably, there was no evidence presented that there were
any issues with Hazelbaker’s current home, i.e., Shipley’s residence. Shipley explained
that B.P. had a room to herself while she stayed there on her visits, and the residence
passed a home inspection ordered by the trial court. Accordingly, this aspect of the trial
court’s decision fails to support an unsuitability determination, and the trial court erred
as a matter of law to the extent it relied upon it.
{¶ 61} The trial court’s finding that the Heatons ensured that B.P. had contact
with Ms. Hazelbaker at all ordered times is similarly irrelevant to the unsuitability
analysis. Assuming that the record contains competent and credible evidence of this
finding, it is simply not pertinent to whether Hazelbaker’s retaining custody would be
detrimental to B.P. The focus of the unsuitability determination must necessarily be on
the parent’s acts or omissions. The Heatons’ admirable adherence to honoring court-
ordered custody arrangements has no logical nexus to a finding that awarding custody
to Hazelbaker would be detrimental to B.P.
4. The Defendant’s home in Adams County was unsuitable, and although
she has moved in with yet another adult male in Brown County who has a
good residence, her behavior of going from one boyfriend to another
causes the court to question her stability. Indeed, testimony about her
having sent nude photos of herself to a previous male friend, among the
Adams App. No. 10CA890 23
other matters listed above, drew the court to the conclusion that she is not
a suitable custodian for a young child.
{¶ 62} Hazelbaker challenges the court’s assertion that her home in Adams
County was unsuitable. She points to the guardian ad litem’s supplemental report,
which stated that both her home and the grandparents’ home were suitable. We agree
that the guardian ad litem found the Adams County home to be suitable.
{¶ 63} In concluding that Hazelbaker was not a suitable custodian for B.P., the
trial court’s findings indicate two reasons it was concerned about her stability: (1) her
behavior of going from one boyfriend to another and (2) her decision to send nude
photographs of herself to a previous boyfriend. However, there is no evidence in the
record that Hazelbaker’s sexual activities had a negative impact on B.P.
{¶ 64} We reject the notion that having several boyfriends over a multiyear span
establishes the sort of parental deficiency that could support a finding of parental
unsuitability. The evidence demonstrated that one of Hazelbaker’s ex-boyfriends, Kevin
Hesler, may have engaged in a domestic dispute or even been violent with her.
However, Hazelbaker lived with Hesler for only a four- month period in 2006. Moreover,
when this dispute occurred, B.P. was in the Heatons’ care. Regardless, there is no
evidence in the record that Hazelbaker’s romantic relationships had any detrimental
effect on B.P.
{¶ 65} The nude photographs clearly demonstrate that Hazelbaker exercised
poor judgment in 2005. But again, there was no competent and credible evidence
presented either at the preremand hearing or the postremand hearing demonstrating
that these nude photographs caused any detriment to B.P. While it was undoubtedly
unwise for Hazelbaker to store nude photographs of herself on a computer that her
Adams App. No. 10CA890 24
young daughter could potentially access, there was no competent and credible
evidence in the record demonstrating that B.P. suffered any actual, direct harm from the
existence of these photographs. Accordingly, the trial court abused its discretion to the
extent that it relied upon the mother’s behavior of having several boyfriends over a five-
year period and possessing nude photographs on her computer to justify its decision
that Hazelbaker was an unsuitable parent.
5. The grandparents have provided a home and stability for this child
when no one else was able or willing to do so, and she has thrived in their
care.
{¶ 66} Hazelbaker contends that this finding of fact does not support the trial
court’s decision that she is an “unsuitable” mother because the evidence also showed
that she had provided a home and stability for the child and that the child has thrived in
her care. She further argues that the guardian ad litem’s report found that both her
home and that of the Heatons were appropriate and suitable for the child. Additionally,
Hazelbaker points to Dr. Smiley’s report, which indicated that B.P. felt safe and secure
while living with Hazelbaker. Ultimately, Hazelbaker contends that the trial court simply
determined that the Heatons’ home provided a better home environment for B.P., a
consideration not appropriate in determining whether she was suitable to raise her own
child.
{¶ 67} Concerning the first aspect of this finding of fact—the Heatons’ home – we
again defer to our analysis concerning finding-of-fact three. Accordingly, we reject this
finding as supportive of the trial court’s unsuitability determination.
{¶ 68} Finally, the court’s finding that “no one was able or willing” to provide a
home or stability for B.P. is simply unsupported by the record. There is no evidence
Adams App. No. 10CA890 25
that Hazelbaker was unable or unwilling to provide a home for B.P. In fact, Hazelbaker
has consistently fought to maintain custody of B.P. while providing the Heatons with
visitation opportunities. Neither her home in Adams County nor her current residence in
Brown County has been deemed unsuitable for B.P. to reside in.
D. Totality of Findings
{¶ 69} We recognize that the trial court’s discretion in custody matters should be
accorded the utmost respect; however, we find that the court’s ultimate conclusion that
retention of custody by Hazelbaker would be detrimental to B.P. is simply not supported
by competent and credible evidence. Although the trial court made factual findings in
support of its decision, some of these findings were simply irrelevant because they
pertained only to a “best interest” analysis that was inapplicable here. Other findings do
not sustain the unsuitability determination because there is no evidence that B.P. has
suffered or would suffer any detriment by a continuation of custody with Hazelbaker. In
fact, the testimony from all witnesses established that B.P. is a happy, healthy child who
performs well in school and loves all the adults in her life.
{¶ 70} Furthermore, although there is certainly evidence demonstrating that
Hazelbaker is not a flawless parent, this is not the standard for an unsuitability finding
under Perales. A review of other cases involving unsuitability findings reveals far more
substantial evidence to support a finding that parental custody is detrimental to a child.
See, e.g., In re Z.A.P., 177 Ohio App. 3d 217, 2008-Ohio-3701, 894 N.E.2d 342 (while
child lived with mother, he had serious behavior problems and took several medications
for behavior; child claimed physical abuse by mother’s live-in boyfriend; mother’s house
was dirty and in disarray; several unrelated individuals lived in the house including a
Adams App. No. 10CA890 26
known “druggie”; child had no structure at mother’s home; child would be “emotionally
devastated” if forced to return to home; and child’s behavior had significantly improved
and he had been removed from medications while he lived outside of mother’s home);
In re A.W.-G., Butler App. No. CA2003-04-099, 2004-Ohio-2298 (mother unable to
maintain employment and housing, child experiences rash due to lack of hygiene while
in mother’s care, mother does not consistently provide care for child’s medical issues);
Karr v. Dunn, Pickaway App. No. 03CA22, 2004-Ohio-928 (mother returned to work
when child was three weeks old without arranging childcare, failed to provide financial
support for child, abandoned child for several weeks, lived in six homes over four-year
period, failed to provide consistent medical care for child ; also home lacked electricity
and running water and was unsanitary).
IV. Conclusion
{¶ 71} We conclude that the trial court’s finding that Hazelbaker is an unsuitable
parent because her retention of custody of B.P. would be detrimental to B.P. is not
supported by the record. The trial court’s ultimate conclusion is based on findings that
are irrelevant to the analysis or unsupported by competent and credible evidence of
detriment. Therefore, the trial court’s decision to award custody to the Heatons was
unreasonable.
Judgment reversed
and cause remanded.
MCFARLAND, P.J., and KLINE, J., concur.
HARSHA, J., dissents.