In re C.P. , 2023 Ohio 1350 ( 2023 )

[Cite as In re C.P., 2023-Ohio-1350.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: C.P. C.A. No. 30382
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 16 01 0046
DECISION AND JOURNAL ENTRY
Dated: April 26, 2023
STEVENSON, Judge.
{¶1} Appellant Father appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that awarded legal custody of his child to the child’s maternal great aunt
(“Aunt K.”) and ordered restricted parenting time for Mother and Father. This Court affirms in
part, reverses in part, and remands.
I.
{¶2} Mother and Father are the biological parents of C.P., born December 11, 2011.
Mother was married to B.B. who was the child’s father-figure during the first few years of her life,
although the record does not disclose whether he and Mother were married when the child was
born. B.B.’s parents, Mr. and Mrs. S., assumed the role of grandparents for the child. Father had
no role in the child’s life during that time and did not establish paternity until C.P. was four years
old.
2
{¶3} In 2014, Summit County Children Services Board (“CSB” or “the agency”)
received a sexual abuse referral based on an allegation that B.B. was sleeping naked in bed with
the then-two-year-old C.P. The agency could not substantiate the referral.
{¶4} Thereafter, Mother’s relationship with B.B. faltered and she began dating S.J., a
Tier III sexual offender with a history of perpetrating offenses against children. Mother and S.J.
became engaged and he moved into Mother’s home. After Mother began leaving four-year-old
C.P. in the care of S.J. and another sexual offender while she worked, CSB and Mother entered
into a voluntary safety plan whereby the child began residing with her maternal grandmother
(“Grandmother”). The agency asked Mother to obtain a mental health assessment and S.J. to
obtain a psychological evaluation with a sexual offender component to determine his risk of
reoffending. Neither Mother nor S.J. submitted to assessments, and Mother continued to let S.J.
babysit the child.
{¶5} In January 2016, CSB filed a complaint alleging that C.P. was a dependent child.
The juvenile court placed the child in the emergency temporary custody of Grandmother under the
agency’s protective supervision, ordered no contact between the child and S.J., and allowed
Mother only supervised visitation. The court further directed Mother to provide names of possible
fathers of the child. Shortly thereafter, genetic testing established Father’s paternity of C.P. Over
the next six years, the child would be the subject of ongoing police and child welfare referrals,
allegations of abuse, and acrimonious custodial and visitation disputes.
{¶6} The juvenile court adjudicated C.P. a dependent child and placed her in the
temporary custody of Grandmother under the protective supervision of CSB. The court required
supervision for all parental visits and maintained the no contact order between S.J. and the child.
3
That no contact order remained in effect throughout the juvenile court’s involvement and continues
today.
{¶7} Fifteen months after CSB filed its complaint, the juvenile court journalized the
parents’ agreement granting them joint legal custody pursuant to a shared parenting plan and
naming Father the residential parent. Mother enjoyed liberal visitation. The juvenile court
docketed the case closed. Two months later, Mother filed motions for contempt, modification of
the shared parenting plan, interim temporary custody, and an order requiring supervision of
Father’s visits. Father countered by filing motions for contempt, child support, the reallocation of
parental rights and responsibilities, modification of parenting time, and an order allowing only
supervised visits for Mother. In addition, Father notified the juvenile court of his intent to relocate
with the child from Ohio to Virginia.
{¶8} After thirteen months, eight various hearings, multiple interim orders, and an
objection, Mother and Father reached another agreement whereby C.P. would remain in the
parents’ joint legal custody, with Father serving as the residential parent. The juvenile court
ordered that the child would reside with Aunt K. while in Ohio for visitation with Mother. In
addition, Aunt K. would supervise all visits by Mother and Grandmother. Mr. and Mrs. S. could
see the child only in the discretion of Aunt K. On August 8, 2018, the juvenile court again docketed
the case closed.
{¶9} Three months later, after Father had filed a case in Virginia seeking legal custody
of C.P., Father moved the Summit County juvenile court to stay Mother’s parenting time and
relinquish further jurisdiction regarding the child. The juvenile court denied Father’s motions.
Mother then moved the court to hold Father in contempt for, among other allegations, denying her
visitation during the Thanksgiving holiday and make up visitation during the child’s winter break.
4
During this round of disputes, it took Mother and Father six and a half months to reach another
agreement that was very similar to their most recent agreement. Particular to this judgment,
however, was an order that B.B., Mr. S., and Mrs. S. were to have no contact with C.P. while she
was in Ohio to visit Mother in recognition that the purpose of those visits was to nurture the
Mother-child relationship. The juvenile court again docketed the case closed.
{¶10} In less than a month, Mother filed an emergency ex parte motion to enforce the
juvenile court’s recent judgment and restrain Father from removing the child from Ohio. Someone
had made another allegation of sexual abuse of the child, this time naming Mother as the
perpetrator. The report necessitated the fifth sexual abuse investigation and physical examination
the child was forced to endure in her seven-year life. The juvenile court granted Mother’s motions
and C.P. resided with maternal family members throughout the summer of 2019. The trial court
again closed the case.
{¶11} Thereafter, Father continued to attempt to circumvent the Ohio juvenile court’s
jurisdiction, purportedly obtaining an order of sole legal custody of the child from the family and
juvenile court in Virginia Beach (“VBFJC”). The Summit County juvenile court denied Father’s
motion to transfer the case to VBFJC and continued to exercise jurisdiction over the parties. In
the summer of 2021, the parties entered into another agreement regarding visitation. The juvenile
court approved both Aunt K. and another maternal great aunt (“Aunt D.”) to supervise Mother’s
visits, individually or together. Again, the agreement prohibited Mr. and Mrs. S. from having any
contact whatsoever with the child when she was in Ohio for the purpose of visiting Mother. Instead
of closing the case at that time, the juvenile court scheduled a status hearing a month later to
evaluate the posture of the case.
5
{¶12} During her investigation at this time, the guardian ad litem identified several
concerns regarding Father and Mr. and Mrs. S. Specifically, the guardian ad litem reported, inter
alia, that Father and his wife punished C.P. when she had accidents due to a diagnosed medical
condition and when the child denied that Mother and/or her stepfather sexually abused her; that
punishments were excessive; that Mr. and Mrs. S. continued to make untruthful allegations of
abuse regarding the child and influence Father’s belief that C.P. is unsafe with her maternal family;
that Father had deprived Mother of physical contact with the child for almost two years contrary
to court orders; and that Father had lied to the guardian ad litem about the child’s presence in Ohio
to visit with Mr. and Mrs. S.
{¶13} Based on the concerns raised by the guardian ad litem, Mother moved to add CSB
as a party to the ongoing case and for emergency temporary custody of the child to Aunt K. under
the protective supervision of the agency. The juvenile court granted those motions; limited
Mother’s and Father’s visits to one 30-minute phone call per week with no in-person visitation;
and ordered that the child would have no contact with her stepfather, B.B., or Mr. and Mrs. S.
{¶14} Mother moved for legal custody to Aunt K., recognizing that the child could not
live with Mother because she was married to a Tier III sexual offender. Father moved for legal
custody to Mr. and Mrs. S., asserting that he no longer wanted the child to reside in his home
because the ongoing disputes had become too disruptive to his wife and their four other children.
Prior to the hearing on the parents’ motions, the juvenile court reinstated supervised physical
visitation for Mother and Father. The court authorized either Aunt K. or Aunt D. to supervise the
parents’ separate visits.
{¶15} The magistrate held a hearing on Mother’s and Father’s competing motions for
legal custody to third parties and thereafter granted Mother’s motion for legal custody to Aunt K.
6
and issued various visitation orders for the parents, as well as the child’s half- and step-siblings.
Father timely objected, challenging both the custody and visitation orders as contrary to the best
interest of the child. Mother and the guardian ad litem responded in opposition to Father’s
objections. Upon consideration of the parties’ briefs and the hearing transcript, the juvenile court
overruled Father’s objections, granted legal custody of C.P. to Aunt K., and issued orders regarding
visitation. Father timely appealed and raises three assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE JUVENILE COURT[’]S DECISION GRANTING MOTHER’S MOTION
TO PLACE THE MINOR CHILD IN THE CUSTODY OF [AUNT K.] AND
DENYING FATHER[’]S MOTION TO PLACE THE CHILD WITH [MR. AND
MRS. S.] IS NOT IN THE BEST INTERESTS OF THE MINOR CHILD,
CONSTITUTES AN ABUSE OF DISCRETION AND IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.
{¶16} Father argues that the juvenile court’s judgment awarding legal custody of C.P. to
Aunt K. is against the manifest weight of the evidence. This Court disagrees.
{¶17} This Court has held:
On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
court does not have discretion to enter a judgment that is adverse to that interest.
Thus, our standard of review is whether a legal custody decision is against the
manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶18} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
7
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman,
132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always
be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶19} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or
set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal
custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-
7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. In that regard,
the juvenile court is guided by the best interest factors enunciated in R.C. 2151.414(D) relating to
permanent custody. In re B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In re
T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17. Those factors include the interaction
and interrelationships of the child, the child’s wishes, the custodial history of the child, the child’s
need for permanence, and whether any of the factors in R.C. 2151.414(E)(7)-(11) are applicable.
R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist. Summit Nos. 26976 and 26977, 2014-
Ohio-2748, ¶ 16.
{¶20} In addition, the juvenile court may also look to the best interest factors in R.C.
3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860,
2017-Ohio-1, ¶ 17. While some factors overlap with those above, others include the child’s
adjustment to his or her environment; the mental and physical health of all persons involved; the
8
parents’ history of providing support and honoring companionship orders; certain indicia of
violence, abuse, or neglect in any household involved; and whether a parent plans to or has
established a residence outside of Ohio. R.C. 3109.04(F)(1).
{¶21} C.P.’s custodial history is set out in great detail above. She resided with Aunt K.
during the six months prior to the legal custody hearing. Aunt K. has legal custody of two other
children who are close in age to C.P. The three children get along well. C.P. is very comfortable
in Aunt K.’s home and refers to Aunt K. as her “best friend.”
{¶22} Aunt K. had been involved in the child’s case for four years, providing a residence
for the child during extended visitation periods for the maternal family and supervising visits in
both her home and the community. Aunt K. is familiar with the child’s maternal family, as well
as Father. Mr. and Mrs. S. live around the corner from Aunt K.
{¶23} At the time of the legal custody hearing, C.P. was ten years old and in fourth grade.
She loves school, where she does well and has many friends. The child has been in counseling for
several years. Earlier counseling was geared toward determining whether the child had been
sexually abused, as Mr. and Mrs. S. alleged on multiple occasions. All allegations of sexual abuse
were unsubstantiated, and the child’s counseling now focuses on her adjustment to her current
situation after repeated custodial and visitation disputes.
{¶24} C.P. was diagnosed a couple years ago with encopresis, a condition wherein her
bowels seep after becoming impacted. The child would have soiling accidents which she could
neither sense nor control. Stress exacerbates the symptoms. While in Aunt K.’s care, C.P. was
diagnosed by medical professionals and placed on a treatment protocol which greatly alleviated
the symptoms which caused embarrassment for the child. Her prognosis anticipates that it will
9
take a couple years before her nerves regenerate so that she redevelops sensation allowing her to
fully control her bowel movements.
{¶25} C.P. is comfortable discussing her bowel issues and symptoms indicating the need
for a cleanse or enema with Aunt K. Aunt K. provides the child with sanitary pads which prevent
her from soiling her clothing and becoming embarrassed. Father, on the other hand, has not
allowed the child to wear pads and has punished her harshly for having bowel accidents. Father
believes the assertions of Mr. and Mrs. S. who have determined, without input from medical
professionals, that C.P.’s bowel issues stem from sexual abuse and interactions with Mother,
despite no evidence to support that.
{¶26} Aunt K. testified that she supports following the recommendations of professionals
involved with the child and she will maintain C.P. in counseling and continue daily and bimonthly
treatments for encopresis. Mr. and Mrs. S. were not familiar with the child’s medical diagnosis.
Mr. S. testified that he would seek a second opinion regarding it, even though Aunt K. and the
guardian ad litem testified that the child’s current treatment protocols were managing her
symptoms well. Mr. and Mrs. S.’s adult daughter, with whom C.P. has spent time, is a registered
nurse. Nevertheless, she was not familiar with the term “encopresis,” and testified that she
believed the child was merely incontinent and that it seemed odd to treat the child as if she were
constipated. Mr. and Mrs. S.’s daughter also speculated that the child’s bowel issues were related
to abuse.
{¶27} C.P. has not wavered from expressing love and affection for Mother, Father, her
half- and step-sisters, and many members of her maternal family. She told both the CSB
caseworker and the guardian ad litem that she wants to live with Aunt K. The caseworker and
guardian ad litem each testified, however, that C.P. was adamant that she did not want to live with
10
or even see Mr. and Mrs. S. In fact, the caseworker and Aunt K. testified that the child referred to
Mrs. S. as both “weird” and “creepy.”
{¶28} The guardian ad litem opined that legal custody to Aunt K. would be in the child’s
best interest because of the strong bond and excellent relationship the two shared, the consistent
care the child received in that home, and their blood relationship. The guardian ad litem observed
the child in Aunt K.’s home and found it to be a safe and appropriate environment. On the other
hand, the guardian ad litem had no opportunity to observe C.P. in the home of Mr. and Mrs. S.
because neither they nor Father informed her that the child was in that home during the summer
for a two-week visit. Significantly, Father did not inform Mother that the child was in Ohio with
Mr. and Mrs. S. during that time either. The guardian ad litem testified that legal custody to Mr.
and Mrs. S. would be contrary to the child’s best interest because they had no realistic
understanding of the child’s history, and instead incessantly made (or caused to be made) referrals
alleging sexual abuse of the child by Mother and stepfather and lack of proper supervision by
maternal relatives, none of which could be substantiated by child welfare agencies or law
enforcement. After speaking at length with the Akron Police Department detective who
investigated and debunked Mr. and Mrs. S.’s repeated allegations of abuse, the guardian ad litem
testified that she could not seriously consider the couple as legal custodians for the child.
{¶29} Aunt K. testified that she understood the ramifications of legal custody and that
Mother and Father would retain residual parental rights and responsibilities. She testified that she
would seek minimal child support from the parents. She agreed to facilitate visitation for Mother,
Father, and the child’s siblings. Aunt K. testified that she was willing to supervise parental visits,
prohibit the child’s contact with her stepfather, and honor all other court orders.
11
{¶30} On the other hand, Mr. S. testified that he was willing to recognize parental rights
“[a]s long as [C.P.’s] safe.” He had a history of believing the child was at risk with her maternal
relatives despite evidence to the contrary. Mrs. S. testified that she understood that the case
involving C.P. was to determine how best to maintain the relationship between the child and
Father. Mrs. S. did not seem concerned about maintaining the child’s relationship with Mother
and testified that any Mother-child visits “need[ ] to be highly supervised” at a private visitation
center based on prior issues Mrs. S. perceived regarding the child’s safety with Mother. Mrs. S.
acknowledged allegations that her son B.B. had slept naked with the child when she was two years
old, but Mrs. S. discounted those allegations because the then-two-year-old C.P. had not articulated
any abuse. Mrs. S. testified that B.B. continues to live in her home.
{¶31} C.P.’s custody and visitation with family members has fluctuated for six years as
Mother and Father have engaged in ongoing disputes and third parties have repeatedly alleged
various types of abuse to the child. The child deserves stability in a safe environment with a
custodian who takes her medical needs seriously while not subjecting the child to trauma
associated with unsubstantiated allegations of abuse. Aunt K. has been a stable, loving, and
protective presence in the child’s life for many years. She testified that she is willing and able to
provide a permanent home for the child until adulthood. The juvenile court found her to be a
suitable legal custodian for two other children, a great niece and a great nephew, in another case.
Aunt K. asserted her willingness to facilitate and supervise visitation for both parents.
{¶32} Mr. and Mrs. S. had not communicated with the child for six months at the time of
the hearing. They expressed their willingness to provide a home for C.P. during her minority, as
well as to facilitate visitation for Father and the child’s half- and step-siblings. They have
historically interfered with Mother’s visitation and relationship with the child, insisting that C.P.
12
acknowledge sexual abuse by Mother and stepfather, despite lacking evidence to support those
allegations.
{¶33} Based on a thorough review of the record, this is not the exceptional case in which
the trier of fact clearly lost its way and created a manifest miscarriage of justice by awarding legal
custody of C.P. to Aunt K. Aunt K. has demonstrated a commitment to the child throughout the
lengthy juvenile court case by supervising family visits, working with others involved with the
child, and assuming the role as C.P.’s temporary custodian. Aunt K. has exercised caution and
sound judgment regarding the child’s safety, obeying court orders and prohibiting contact between
the child and unauthorized persons. C.P. is happy, comfortable, and thriving in Aunt K.’s home.
The child has been able to maintain a relationship and bond with both maternal and paternal family
members. Aunt K. complies with the recommendations of the mental health and medical
professionals who work with the child. C.P. wishes to live with Aunt K. The child adamantly
asserted that she did not want to see Mr. and Mrs. S. at this time. The guardian ad litem opined
that an award of legal custody to Aunt K. would meet the child’s best interest because Aunt K. is
willing and able to meet the child’s basic and special needs and the two have a strong bond and
familial relationship. On the other hand, Mr. and Mrs. S. have historically interfered with Mother’s
visitations and engaged in activities that have subjected the child to multiple sexual abuse
interviews and physical examinations where no evidence supported those allegations.
{¶34} After six years of ongoing disputes regarding the child’s custody and relationships
with her parents, C.P. deserves stability with a custodian who recognizes her need to maintain a
relationship with both paternal and maternal family members. The evidence demonstrates that
Aunt K. is likely to facilitate those relationships for the child, whereas Mr. and Mrs. S. are not.
Under the circumstances, the juvenile court’s findings that an award of legal custody to Aunt K.
13
is in the child’s best interest, while legal custody to Mr. and Mrs. S. is not, are not against the
manifest weight of the evidence. Father’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE JUVENILE COURT[]’S DECISION CONCERNING MOTHER’S
COMPANIONSHIP TIME WITH THE MINOR CHILD IS NOT IN THE BEST
INTERESTS OF THE MINOR CHILD, CONSTITUTES AN ABUSE OF
DISCRETION AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED.
{¶35} Father argues that the juvenile court abused its discretion by allowing Mother to
visit with the child under the supervision of only one of the child’s maternal great aunts, i.e., either
Aunt K. or Aunt D., and not under the joint supervision of both. This Court disagrees.
{¶36} This Court reviews a trial court’s visitation order for an abuse of discretion. In re
K.D., 9th Dist. Summit No. 28459, 2017-Ohio-4161, ¶ 26. Unless the trial court was unreasonable,
arbitrary, or unconscionable in ordering visitation, we must uphold the judgment. Id., citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion
standard of review, we may not substitute our judgment for that of the trial court. Pons v. Ohio
State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶37} When a child is placed in the legal custody of a third party, parents retain residual
rights, privileges, and responsibilities, which include the “privilege of reasonable visitation[.]” See
R.C. 2151.353(A)(3)(c). Moreover, R.C. 2151.359(A)(1) allows the juvenile court to limit any
person’s interactions with a child if those restrictions are necessary for the welfare of the child.
This “includes the authority to limit or even prohibit parental visitation with a child placed in the
legal custody of another adult.” In re C.T., 9th Dist. Summit No. 30156, 2022-Ohio-3464, ¶ 17,
citing In re M.B., 9th Dist. Lorain Nos. 11CA010060 and 11CA010062, 2012-Ohio-5428, ¶ 34.
“In determining the appropriate visitation for a parent who has lost legal custody of the child, the
14
trial court must consider the totality of circumstances affecting the best interest of the child.” In
re L.S., 9th Dist. Lorain No. 21CA011770, 2022-Ohio-3281, ¶ 30.
{¶38} Father argues that the juvenile court erred by only requiring either Aunt K. or Aunt
D. to supervise Mother’s visits with the child, rather than requiring that both aunts supervise every
visit. The trial court found that Aunt K. was suitable to provide a safe and stable home for C.P.
Moreover, the court had also earlier approved Aunt D. as an appropriate visitation supervisor.
Father cites to no evidence that the child suffered any harm or was at risk for harm at any time
either aunt provided care for the child or supervised any visits. Moreover, Father fails to cite to
any evidence demonstrating that Mother has been inappropriate in her interactions with the child
or has exposed C.P. to her stepfather. Nevertheless, in an abundance of caution, the juvenile court
continued to restrict Mother to supervised visitation. As both Aunt K., the current legal custodian,
and Aunt D. had demonstrated their commitment to the child’s welfare and well-being, the juvenile
court was not unreasonable when it ordered that either aunt could supervise Mother’s visits.
Accordingly, the trial court did not abuse its discretion by not requiring two visitation supervisors
at each of Mother’s visits. Father’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE JUVENILE COURT’S DECISION CONCERNING FATHER’S
COMPANIONSHIP TIME WITH THE MINOR CHILD IS NOT IN THE BEST
INTERESTS OF THE MINOR CHILD, CONSTITUTES AN ABUSE OF
DISCRETION AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED.
{¶39} Father argues that the juvenile court abused its discretion by failing to grant him
any in-person visits with the child and limiting his visitation to merely telephone or video
visitation. This Court agrees.
15
{¶40} The general standard of review regarding visitation orders is set forth under
Father’s second assignment of error. Father also argues that the juvenile court was unreasonable
in depriving him of in-person visitation that the magistrate had awarded him in consideration of
the best interest of the child. “While this Court generally reviews the trial court’s action with
respect to a magistrate’s decision for an abuse of discretion, we do so with reference to the nature
of the underlying matter.” In re J.B., 9th Dist. Lorain No. 18CA011424, 2019-Ohio-1929, ¶ 7.
{¶41} After considering the evidence adduced at the hearing, the magistrate awarded
Father weekly telephonic or electronic (video) visitation, as well as opportunities for in-person
visits. Setting those parameters, the magistrate ordered:
During summer vacation from school, Father may visit [with C.P.] when he travels
to Ohio for this purpose from 10:00 am to 7:00 pm in the community as agreed to
by the legal custodian. When the child’s counselor or therapist determine that she
is ready to expand the location of summer visitation by Father the 5 day summer
visitation may, with the agreement of the legal custodian and the child’s counselor
take place including overnight visitation in the home of Father’s in-laws in Salem
Ohio. Further, Father shall provide 14 days[’] notice to the legal custodian when
he wishes to have any summer visitation. If there is no agreement for Father’s
proposed visitation location Father may arrange for visitation at Common Ground
at Father’s expense. Father’s visitation shall not take place at the home of [Mr. and
Mrs. S.] and they are not to be included during any visitation by Father until
approved by the Legal Custodian and the child’s counselor[.]
Moreover, the magistrate ordered that “[v]isitation by either parent can be expanded or modified
upon the agreement or recommendation of the child’s counselor or therapist and the legal
custodian.”
{¶42} Only Father filed objections to the magistrate’s decision. No other party challenged
the provisions for in-person visits between Father and the child. In ruling on Father’s objections,
the juvenile court recognized that, as to his challenge regarding his visitation award, “Father
requests that, should [Aunt K.] retain Legal Custody, he be permitted to visit [C.P] at [Mr. and
Mrs. S.’s] home[.]” The juvenile court overruled that objection, finding that “the Visitation Orders
16
for Mother and Father should remain unchanged.” More specifically, the trial court found that
“the Magistrate’s restrictions of Father’s visits are appropriate given [Mr. and Mrs. S.’s] past
involvement in [the child’s] case.” The juvenile court noted that “[Aunt K.] is able and willing to
implement and supervise visitation with [the child’s] parents and other approved individuals [the
child] wishes to see.” After reiterating the order awarding Father weekly telephonic or electronic
visitation, the juvenile court further ordered that “Father’s visitation shall not take place at the
home of [Mr. and Mrs. S.], and they are not to be included during any visitation by Father until
approved by the Legal Custodian and [C.P.’s] counselor.”
{¶43} The juvenile court made no findings that would indicate it believed that in-person
visitation with Father posed an inherent threat to the child. It did not find that the best interest of
the child required limiting Father’s contact with C.P. to mere remote interactions. Nevertheless,
the juvenile court appears to have modified Father’s visitation in a way that drastically restricted
his contact with the child. No other party argues that Father retained the opportunity to visit in
person with the child, and this Court’s reading of the enumerated orders in pari materia supports
the conclusion that the final judgment is too vague to grant Father more than remote visitation.
Based on the juvenile court’s evidentiary findings, it appears that the omission of any order
granting Father in-person visits with C.P. was an oversight by the trial court that requires
clarification. As the juvenile court’s pronouncement that “[a]ll other orders not in conflict with
those contained herein shall remain in full force and effect[ ]” is too vague to support enforcement
of any attempt by Father to exercise in-person visits, this Court is compelled to remand the matter
to the trial court for such clarification. See In re K.D., 2017-Ohio-4161, at ¶ 30. Father’s third
assignment of error is sustained.
17
III.
{¶44} Father’s first and second assignments of error are overruled. His third assignment
of error is sustained. The judgment of the Summit County Court of Common Pleas, Juvenile
Division, is affirmed in part, reversed in part, and the cause remanded for further proceedings
consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
18
SUTTON, P. J.
CONCURS.
HENSAL, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶45} I concur in the majority’s resolution of Father’s first and second assignments of
error. I respectfully dissent, however, as to the majority’s resolution of Father’s third assignment
of error, as I would conclude that Father retained the opportunity for in-person visitation with the
child.
{¶46} After addressing the specific terms of telephonic/electronic visits with the child for
Father and her half- and step-siblings, the juvenile court issued an order addressing Father’s
visitation in general. That order proscribed any involvement by Mr. and Mrs. S. in Father’s visits
until certain conditions were met. The following order stated that “[a]ll other orders not in conflict
with those contained herein shall remain in full force and effect.”
{¶47} The juvenile court addressed Father’s objection to the magistrate’s decision that
prohibited him from visiting with C.P. in the home of Mr. and Mrs. S. Given the juvenile court’s
overruling that specific objection, coupled with its findings that the parents’ visitation orders
“should remain unchanged[,]” and that Aunt K. was “able and willing to implement and supervise
visitation with [the child’s] parents[,]” I would conclude that the judgment is not too vague to
maintain the prior orders allowing Father in-person summer visitation and the opportunity for
expanded and modified visitation. Accordingly, I would overrule Father’s third assignment of
error and affirm the juvenile court’s judgment in full.
19
APPEARANCES:
MICHAEL A. PARTLOW, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
ANGELA M. KILLE, Attorney at Law, for Appellee.
ALEXANDRA HULL, Guardian ad Litem.