In re L.G. , 2020 Ohio 3844 ( 2020 )

[Cite as In re L.G., 2020-Ohio-3844.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN RE:
CASE NO. 13-19-52
L.G.,
DEPENDENT CHILD.
OPINION
[MOLLY B. - APPELLANT]
IN RE:
CASE NO. 13-19-53
C.G.,
DEPENDENT CHILD.
OPINION
[MOLLY B. - APPELLANT]
Appeals from Seneca County Common Pleas Court
Juvenile Division
Trial Court Nos. 21650013 and 21650014
Judgments Affirmed
Date of Decision: July 27, 2020
APPEARANCES:
Michael R. Bassett for Appellant
Dean Henry for Appellee
Case Nos. 13-19-52 and 13-19-53
SHAW, P.J.
{¶1} Mother-appellant, Molly B. (“Molly”), brings these appeals from the
November 19, 2019 judgments of the Seneca County Common Pleas Court, Juvenile
Division, granting the motions to dismiss that had been filed by father-appellee,
Dennis G. (“Dennis”). On appeal, Molly argues that the trial court erred by granting
Dennis’s motions to dismiss, that the trial court improperly placed a condition
requiring Molly to progress in counseling before visitation would be modified, and
that the trial court erred in finding Molly was not in compliance with its order.
Background
{¶2} Molly and Dennis were married in 2010. They had two children
together: L.G., born in December of 2011, and C.G., born in September of 2013.
In early 2016, Dennis filed for divorce in a separate proceeding.
{¶3} On April 14, 2016, complaints were filed in the Seneca County
Common Pleas Court, Juvenile Division, by the Seneca County Department of Job
and Family Services (“the Agency”), claiming that the children of Molly and Dennis
were dependent pursuant to R.C. 2151.04(C). Prior to April 11, 2016, the Agency
received sixteen claims that Dennis was sexually abusing the children—claims that
Molly initially stated had been made to her by L.G.; however, after two children’s
services investigations—one by the Agency and one by a different agency in Iowa—
and one criminal investigation by the Tiffin Police Department, no charges were
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filed against Dennis. In fact, Dennis took a polygraph examination regarding the
allegations and “passed.” Conversely, Molly would not take a polygraph
examination.1 Aside from the abuse claims that Molly continued to believe, there
were concerns regarding the children’s environment, which included Molly
potentially leading the children’s answers with her questioning and creating a fearful
environment for the children.
{¶4} Following the filing of the dependency complaints, the Juvenile
Division took over jurisdiction with regard to the children from the domestic court
that was handling the parents’ divorce. Subsequently the children were removed
from their parents’ care and temporarily placed with a relative. A GAL was also
appointed for the children.
{¶5} The complaints proceeded to an adjudication hearing in May of 2016
wherein the parents admitted that the children were dependent as alleged. At that
time, the children remained in the temporary custody of a relative with the Agency
having protective supervision. In addition, the parties were ordered to submit to
forensic psychological evaluations.
{¶6} On July 1, 2016, the matters proceeded to disposition wherein the
parties submitted an agreed recommendation for temporary custody to remain with
the relative caring for the children with protective supervision provided by the
1
There is an indication in the record that Molly did later take a polygraph examination but there is no
indication as to what the results were.
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Agency. As the psychological evaluations had not been completed yet, the parents
were ordered to comply with the evaluations.
{¶7} The psychological evaluation of the parents was completed by Dr.
Hustak and filed with the trial court under seal on October 12, 2016. The report was
over 100 pages in length and detailed extensive analysis of, and interaction with, the
parents and the children. Importantly, the report diagnosed Molly with a “Histrionic
Personality Disorder.” The report elaborated, stating, inter alia, that, “On a
behavioral level, the histrionic person is over-reactive, volatile, and sometimes
engaging.” (Hustak Eval. at 58).
{¶8} Also of note, Dr. Hustak viewed video recordings Molly had made of
Molly questioning the children about alleged abuse. Dr. Hustak stated that, “the
dramatic way in which she [questioned] and the repetitive manner in which she
solicited information from her children would suggest that she would persist until
she got an answer that made much more sense to her, even if it didn’t make much
sense to the child. Molly sees this as protecting her child but she does not seem to
understand that this could be interpreted as leading a child.” (Emphasis sic) (Hustak
Eval. at 52). Dr. Hustak found that Molly “reached conclusions based upon
suspicions and not upon fact and she is very reactive to that.” (Id. at 46). For
example, despite Dennis never being violent she believed Dennis had been thinking
about killing her.
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{¶9} Moreover, Dr. Hustak noted that L.G. complained about her “pee”
hurting even when she was with her temporary custodian, that the child had frequent
urinary tract infections, and despite this Molly was still convinced that Dennis had
abused the children because L.G. had similar problems when she was around Dennis
(and Molly). Dr. Hustak’s report indicated that Molly would need specific coaching
about how not to reinforce L.G.’s fears.
{¶10} After Dr. Hustak’s report was filed, the GAL filed a report that
recommended Dennis be designated as residential and custodial parent of the
children. The GAL also recommended, per Dr. Hustak’s evaluation, that Molly
engage in therapy as specified in the case plan that had been filed. The case plan
detailed at least seven areas for Molly to work in through therapy.
{¶11} On November 23, 2016, Dennis filed a motion to be designated as
legal custodian and he requested a hearing on the matter.
{¶12} On December 1, 2016, Molly filed her own motion to be designated
as legal custodian and for a dispositional modification hearing.
{¶13} A hearing was held regarding a dispositional modification in
December of 2016. At that hearing, the parties represented to the trial court that an
agreement had been reached wherein Dennis would be awarded legal custody of the
children with Molly having supervised visitation with the children. All visitation
between Molly and the children would be supervised in person or monitored until
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March 14, 2017. Once that date was reached, unless an objection was filed,
visitation would be unsupervised. In addition, Molly was ordered to enter
counseling with a goal to craft a treatment plan consistent with the recommendations
of Dr. Hustak in his evaluation. Counselors were to provide progress reports and
detail Molly’s adherence to the treatment plan.
{¶14} On March 6, 2017, Dennis and the Agency filed a motion objecting to
Molly receiving unsupervised parenting time alleging, inter alia, that rather than
work on her issues in therapy, Molly was attempting to use her counselor to
challenge Dr. Hustak’s findings in his evaluation. Subsequently the trial court
stayed Molly’s unsupervised visitation.
{¶15} On March 16, 2017, Molly’s original attorneys filed motions to
withdraw contending that Molly had refused to follow legal advice and had become
combative. That motion was granted.
{¶16} On July 6, 2017, the trial court held a hearing on the objections filed
by Dennis and the Agency to Molly receiving unsupervised visitation. Ultimately
Molly’s visits remained supervised as previously ordered. The trial court noted
issues such as Molly seeing an unapproved therapist who did not appear to be
creating a treatment plan consistent with what had been ordered by the trial court.
The trial court also noted that the therapist should not be used for the purposes of
challenging the findings of Dr. Hustak’s evaluation; rather, the therapist should be
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used for the purposes of addressing the issues that had already been determined and
defined.
{¶17} On October 3, 2017, the GAL filed a supplemental report
recommending that Dennis remain the primary residential and custodial parent.
“This [GAL] believes that [Molly] should have no contact with the children until
both her therapy and [L.G.’]’s therapy indicate that it would be more appropriate
and less harmful [than] the contact that currently exists between [Molly] and her
two girls.” (Doc. No. 84).2
{¶18} On October 5, 2017, Molly’s new attorney moved to withdraw as
counsel of record due to a breakdown of the attorney/client relationship.
{¶19} A review hearing was held October 11, 2017, though Molly appeared
an hour late after the Agency went to her home to get her. Molly claimed that she
thought the hearing started later. After the issues Molly was having with her current
attorney were discussed, Molly’s counsel was permitted to withdraw and the matter
was continued so Molly could secure new legal counsel.
{¶20} The review hearing resumed on December 7, 2017. At that hearing
the trial court terminated the Agency’s protective supervision; however, the
previously ordered treatment plan remained as a condition for any motions by Molly
for unsupervised visitation. (Doc. No. 95).
2
The docket filings are largely identical but the numbering is slightly different. We have used the document
numbers from trial court case 21650013, corresponding to appellate number 13-19-52.
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{¶21} The next relevant filing in these cases for purposes of appeal occurred
over a year later, on February 28, 2019, when Molly filed “Motion[s] to Award
Mother Standard Local Visitation.”
{¶22} On April 16, 2019, the trial court held a pretrial hearing on Molly’s
motions, ordering Patchworks House, which had been supervising Molly’s
visitation, to prepare a summary of the supervised visitations since its last report to
the trial court. In addition, the trial court stated, “In order to determine compliance
with the prior orders of this Court, Mother, Molly * * * is to provide executed
Releases of Information in favor of the Court, the [GAL] (if applicable), and counsel
of record for each and every mental health/counseling provider with whom she has
treated or been referred since August 12, 2016.” (Doc. No. 114). An entry on the
matter was filed May 3, 2019.
{¶23} On June 5, 2019, another pretrial was held wherein “[n]umerous
threshold issues were discussed.” (Doc. No. 121). The issues included anticipated
discovery requests to determine if Molly had met the provisions of the previously
filed judgment entries for modification of her supervised visitation. The trial court
ordered any discovery requests to be made and responded to within thirty days.
Dennis made his discovery request on June 7, 2019.
{¶24} On August 9, 2019, Dennis filed “Motions to Dismiss” Molly’s
pending motions to modify visitation because Molly had failed to provide discovery
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as ordered by the trial court even though over two months had passed since the
request.
{¶25} On August 12, 2019, the trial court held another pretrial hearing
wherein it heard arguments regarding the motions to dismiss filed by Dennis.
Following the arguments, the trial court ordered Molly to supply evidence of
compliance and/or completion of the previously ordered treatment plan within
fourteen days by way of affidavit, supported by certification from a treatment
provider that was familiar with Dr. Hustak’s report and recommendations. The
GAL noted at this hearing “that it was not in the best interest of the children to
expose them to the interview and evaluation process which would be required for
the Court to consider the Mother[’]s Motion for unsupervised visits unless and until
Mother has demonstrated her compliance with the recommendations of Dr. Hustak
and this Court[’]s previous Orders.” (Doc. No. 127).3
{¶26} On August 26, 2019, Molly filed memorandums in opposition to
Dennis’s motions to dismiss. She argued that she had made good faith efforts to
comply with the treatment plan but could not achieve joint counseling due to
“Father’s Intransigence.” (Doc. 126). She attached five copies of progress reports
from therapy, though only three specifically dealt with her, dated September 7,
3
The trial court summarized this exchange in a later-filed judgment entry.
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2017; November 2, 2017; and November 21, 2017.4 Nothing was presented from
2018.
{¶27} On November 19, 2019, the trial court filed judgment entries granting
Dennis’s motions to dismiss. The trial court provided a brief overview of the history
of the matter, including a prior GAL report wherein the GAL and Dr. Hustak
discussed Molly’s “poor parenting interactions, which continue to promote fear and
anxiety and the idea that the children are not safe, [which] is extremely detrimental
to the children.” (Doc. No. 127). The trial court then reviewed the motions to
dismiss, the responses to them, and determined as follows.
Mother filed a Memorandum in Opposition to Motion to Dismiss
on August 26, 2019. The Memorandum as filed included New
Transitions Counseling Progress notes as evidence that L.G. was
progressing and doing well with her visits with her mother.
Mother further argued that Father was resisting a combined
counseling session citing the progress notes that “Dennis is
apprehensive” in response to discussion about combined session.
(progress note 1-4-17) The Court notes in reviewing the progress
notes as they relate to Molly the clinician checked the box Slight
Improvement (progress note 9-7-17) and Little or No
Improvement (progress note 11-2-17). The memorandum did not
include any affidavit, or certification for a treatment provider
that is familiar with Dr. Hustak’s report, that Mother has
completed or complied with the court[’]s previously ordered
treatment plan. While it is apparent that the child L.G. is making
progress, the Court has no evidence to determine mother[’s]
progress, compliance or completion of any treatment plan
intended to help her with the cognitive restructuring necessary in
learning how to relate to her children in a manner that is not
detrimental to them.
4
She attached two reports related to L.G. as well.
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Accordingly, since the Court[’]s previous Orders of March
3, 2017 and January 2, 2018 said such treatment was a condition
for any motions for unsupervised visitation, the Court Finds that
it would not be in the children’s best interest to allow this matter
to proceed until Mother has demonstrated compliance with the
Court[’]s previously ordered treatment plan. The father’s
Motion to Dismiss is Therefore GRANTED.
(Doc. No. 127). It is from these judgments dismissing Molly’s motions that Molly
appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The trial court denied appellant due process of law in dismissing
her motion for modification of visitation without a hearing.
Assignment of Error No. 2
The trial court inappropriately interposed a condition upon
appellant requiring counseling to take place before her motion
would be considered.
Assignment of Error No. 3
The trial court erred in finding appellant in noncompliance with
the treatment plan.
First Assignment of Error
{¶28} In her first assignment of error, Molly argues that the trial court
deprived her of due process by dismissing her motions for modification of visitation
“without a hearing.” We disagree.
{¶29} “The fundamental requirement of due process is the opportunity to be
heard “ ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge,
424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976), quoting Armstrong v. Manzo, 380 U.S.
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545, 552, 85 S.Ct. 1187, 1191 (1965). It is important to emphasize that for due
process compliance a hearing is not necessarily required; rather it is the opportunity
to be heard. See, e.g., Board of Trumbull Township Trustees v. Rickard, 11th Dist.
Ashtabula Nos. 2016-A-0044-45, 2017-Ohio-8143, ¶ 60.
{¶30} At the outset of our analysis in this case, we note that the trial court
has had years of experience dealing with these parties in this litigation. The previous
final judgment of the trial court awarded legal custody to Dennis with Molly having
supervised visitation. As a condition of having supervised visitation removed,
Molly had to progress through therapy that addressed her issues as identified by Dr.
Hustak in his evaluation. Thus when Molly filed for a motion to modify visitation,
and Dennis made a request for discovery related to Molly’s progress in therapy, the
trial court ordered Molly to comply and provide evidence.
{¶31} The trial court then held multiple pretrial hearings addressing potential
evidence that would be produced or would need to be produced, at which times
Molly was able to be heard. Nevertheless, after Dennis made his request for
discovery, Molly did not comply with the trial court’s discovery order. Dennis then
filed his motions to dismiss Molly’s motions for modification and only at that time,
after another hearing, did Molly respond and attach a total of five progress reports
to her memorandum in response, only three of which were related to her. Further,
all three of those reports were from 2017—there was nothing in 2018 and nothing
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from anyone who claimed to be familiar with Dr. Hustak’s report and
recommendations.
{¶32} Under these circumstances, we fail to see how Molly was deprived of
“due process” when she was repeatedly provided notice and an opportunity to be
heard. When she filed her motion, multiple pretrial hearings were held where she
was present and able to discuss the issues. She was then specifically notified that
she needed to comply with the discovery request regarding her therapy progress and
rather than respond to that request, she allowed the trial court’s deadline to lapse.
Only after Dennis filed motions to dismiss did she bother to respond at all, with no
actual evidentiary documentation. Instead of assembling her documentation and
presenting it to the trial court, or proceeding through therapy to acquire the
documentation if she did not have it, she filed an appeal with this Court seeking us
to determine that the trial court deprived her of due process. However, it is only
through Molly’s own lack of diligence that this case did not proceed further.
{¶33} In sum, Molly repeatedly received notice of the proceedings and
consistently had opportunities to be heard. She rejected those opportunities and we
will not save her from herself on appeal. Therefore, her first assignment of error is
overruled.
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Second Assignment of Error
{¶34} In Molly’s second assignment of error, she argues that the trial court
erred by requiring her to attend counseling before her motion to modify would be
considered. Notably, Molly cites no legal authority to support her position that the
trial court erred and we could disregard it or overrule it for this reason alone. See,
e.g., Huffer v. Brown, 10th Dist. Franklin No. 12AP-1086, 2013-Ohio-4384, ¶ 12.
However, we will proceed to address the argument that is made.
{¶35} “The juvenile court retains the authority to grant, limit, or
eliminate visitation rights with respect to a child when crafting the final disposition
of a case.” Matter of X.G., 5th Dist. Tuscarawas No. 2018 AP 04 0015, 2018-Ohio-
4890, ¶ 27. In order to further a child’s best interest, the trial court has
the discretion to limit or restrict visitation rights. Hurst v. Hurst, 5th Dist. Licking
No. 12-CA-70, 2013-Ohio-2674. “This includes the power to restrict the time and
place of visitation, to determine the conditions under which visitation will take
place, and to deny visitation rights altogether if visitation would not be in the best
interest of the child.” Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239, 2000
WL 652540 (May 12, 2000).
{¶36} As Dennis argues in his brief to this Court, “[t]he connection between
visitation and Molly B[.]’s compliance with the treatment plan and counseling is
amply demonstrated in the record.” (Appe.’s Br. at 11). Dennis contends that they
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are “inextricably linked to the best interests of the children.” (Id.) After reviewing
the record, we agree.
{¶37} Molly initially agreed to supervised visitation and the entry
implementing that visitation, and designating Dennis as legal custodian, required
Molly to attend counseling. She was specifically directed to address the concerns
proposed by Dr. Hustak before she could modify her visitation. Given that Molly’s
issues were a large part of what caused issues in this case, particularly per Dr.
Hustak’s report, we cannot find that the trial court erred by requiring Molly to seek
counseling before being awarded further visitation. Dr. Hustak’s report, and the
GAL as well, were concerned that Molly’s interaction with the children could be
harming them mentally and that she needed to learn how to appropriately interact
with her children. On the facts before us, and with Molly citing no legal authority
to the contrary, we cannot find that the trial court erred. Therefore her second
assignment of error is overruled.
Third Assignment of Error
{¶38} In Molly’s third assignment of error, she argues that the trial court
erred by finding that she was not in compliance with the treatment plan. In support,
she cites the progress notes that had been attached to the motion to dismiss, the latest
of which was dated in November of 2017, well over a year before Molly made her
motion.
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{¶39} Again, it is not just that Molly apparently failed to comply with her
treatment plan in this case, it is also that Molly failed to provide any evidence that
she was attending treatment at all beyond November of 2017. The trial court
specifically listed types of evidence Molly could produce to establish her
compliance and she produced none of what the trial court listed. See generally, In
re: A.B., 6th Dist. Lucas No. L-18-1136, 2018-Ohio-4206 (discussing evidence
supporting finding o noncompliance with juvenile court orders). On the basis of the
record before us, we cannot find that the trial court erred. Therefore, Molly’s third
assignment of error is overruled.
Conclusion
{¶40} For the foregoing reasons Molly’s assignments of error are overruled
and the judgments of the Seneca County Common Pleas Court, Juvenile Division,
are affirmed.
Judgments Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
/jlr
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