Baten-Sica v. Ramos , 2023 Ohio 1495 ( 2023 )

[Cite as Baten-Sica v. Ramos, 2023-Ohio-1495.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CLEMENTE BATEN SICA JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 AP 09 0030
INICIA SICA RAMOS AND SIMON
BATEN HERNANDEZ
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court
of Common Pleas, Juvenile Division, Case
No. 2022CC00102
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 3, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
GWENDOLYN STARDA INICIA SICA RAMOS AND
148 E. Liberty Street – Suite #224 SIMON BATEN HERNANDEZ
Wooster, Ohio 44691 c/o Aldea Cruz Chex
Aguacatan, Huehuetenango, Guatemala
Tuscarawas County, Case No. 2022 AP 09 0030 2
Hoffman, J.
{¶1} Plaintiff-appellant Clemente Baten-Sica appeals the judgment entered by
the Tuscarawas County Common Pleas Court, Juvenile Division, denying his complaint
for custody of his minor brother, R.S. Defendant-appellees are Inicia Sica Ramos and
Simon Baten Hernandez, the natural parents of R.S. and Appellant.1
STATEMENT OF THE FACTS AND CASE
{¶2} R.S. was born in Guatemala on November 11, 2005, and is a citizen of
Guatemala currently residing with Appellant and another brother in New Philadelphia,
Ohio. In February of 2021, R.S. entered the United States. R.S. left Guatemala, paying
4,000 pesos to a guide to bring him to the United States. Appellees gave R.S. the money
to travel to the United States. R.S. desired to go to school, and believed more
opportunities existed in the United States for him.
{¶3} R.S. was arrested upon entering the country, but released from federal
custody to live with Appellant and another brother in Ohio. R.S. has lived with Appellant
since entering the United States in 2021. Appellees have not visited R.S. and have not
sent money for his care, but Appellees have cell phones and communicate with R.S.
weekly.
{¶4} Appellant filed the instant action seeking custody of R.S., alleging R.S. is
dependent and neglected because Appellees abandoned R.S. The case proceeded to a
hearing in the trial court.
{¶5} At the hearing, Appellant testified Appellees could take care of R.S., but
there are a lot of threats in Guatemala, and he believed it would be dangerous for R.S. to
1 Appellees waived service of the summons in the trial court, and have not entered an appearance in either
the trial court or before this Court. Appellant’s brief reflects service on Appellees in Guatemala.
Tuscarawas County, Case No. 2022 AP 09 0030 3
return. Appellant testified R.S. had his lunch money stolen from him at school in
Guatemala. The court called R.S. as its own witness. R.S. testified he wanted to come
to the United States for a better life, and he wanted to go to school.
{¶6} The trial court found R.S. was not dependent or neglected, and was not
abandoned by Appellees. The trial court denied Appellant’s request for custody.
{¶7} It is from the August 23, 2022 judgment of the trial court Appellant
prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION, ERRED AS A
MATTER OF LAW AND FACT AND VIOLATED THE APPELLANT’S AND
CHILD’S DUE PROCESS AND CIVIL RIGHTS BY DENYING THE
COMPLAINT BASED ON NATIONAL ORIGIN AND IMMIGRATION
STATUS.
II. THE TRIAL COURT FAILED TO MAKE A FINDING AS TO
WHETHER THE CHILD WAS NEGLECTED AND ABANDONED
PURSUANT TO ORC §2151.03(A)(1) AND §2151.011(C).
III. THE TRIAL COURT ABUSED ITS DISCRETION, ERRED AS A
MATTER OF LAW AND FACT AND WENT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE WHEN FINDING THAT THE CHILD WAS
NOT ABUSED, NEGLECTED, OR ABANDONED BECAUSE THE CHILD
“DECIDED” TO LEAVE HIS HOME.
Tuscarawas County, Case No. 2022 AP 09 0030 4
{¶8} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶9} This appeal shall be considered in accordance with the aforementioned
rule.
I.
{¶10} In his first assignment of error, Appellant argues the trial court erred in
denying the complaint for custody based on the national origin and immigration status of
Appellant and R.S. While the trial court considered the immigration status of Appellant
and R.S. as a part of the factual background of the case, we find the trial court did not
base its decision on the immigration status of Appellant and R.S., but rather on a finding
the child was not neglected or dependent as a matter of law because Appellees had not
abandoned the child.
{¶11} The first assignment of error is overruled.
Tuscarawas County, Case No. 2022 AP 09 0030 5
II.
{¶12} In his second assignment of error, Appellant argues the trial court erred in
failing to make a finding R.S. was a neglected child because he had been abandoned by
his parents.
{¶13} R.C. 2151.03(A) defines a neglected child:
(A) As used in this chapter, “neglected child” includes any child:
(1) Who is abandoned by the child's parents, guardian, or
custodian[.]
{¶14} R.C. 2151.011(C) sets forth a statutory presumption of abandonment of a
child:
(C) For the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days.
{¶15} Appellant argues he need only show R.S.’s parents failed to visit or failed
to maintain contact with R.S., and because they failed to visit for more than ninety days,
R.S. was presumed to be abandoned despite the fact Appellees maintained contact with
R.S. on a weekly basis. We disagree with Appellant’s interpretation of statutory language.
The statute sets forth a presumption of abandonment if the parents neither visited nor
Tuscarawas County, Case No. 2022 AP 09 0030 6
maintained contact with the child for more than ninety days. The statute provides a means
by which a parent who is unable or prohibited from visiting with a child may avoid a
presumption of abandonment by maintaining contact with the child:
Moreover, despite Mother's inability to visit with J.H., R.C.
2151.011(C) does not limit a finding of abandonment to lack of visitation.
Rather, the statute addressing abandonment also includes a failure to
maintain contact with the child. Mother was not prohibited from otherwise
maintaining contact with the child via gifts, mail correspondence, or other
forms of contact outside of court-ordered visitation. Thus, despite her ability
to do so, the record reflects Mother chose not to maintain any contact with
her child throughout most of the case. Under these circumstances, we find
no error in the juvenile court's determination that the child was abandoned
as contemplated by R.C. 2151.011(C) and 2151.414(B)(1)(b). In re B.J. at
¶ 31-36.
{¶16} In re J.N.L.H., 12th Dist. Butler No. CA2022-06-063, 2022-Ohio-3865, ¶ 41.
{¶17} In the instant case, Appellant testified Appellees communicate weekly by
telephone. The record in this case does not support a presumption Appellees abandoned
R.S., and the trial court did not err in failing to find R.S. was neglected because he was
abandoned by Appellees.
{¶18} The second assignment of error is overruled.
Tuscarawas County, Case No. 2022 AP 09 0030 7
III.
{¶19} In his third assignment of error, Appellant argues the trial court’s finding
R.S. was not neglected, dependent, or abandoned because he chose to leave home is
against the manifest weight of the evidence.
{¶20} Ohio courts have 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 Perales, 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047 (1977),
syllabus. In a child custody proceeding 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.” Id. If a
court concludes any one of these circumstances describes the conduct of a parent, the
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, ¶ 17. Thus, a finding of parental unsuitability is a necessary first
step in child custody proceedings between a natural parent and a nonparent. Id. at ¶18.
In a dispute between a parent and a nonparent for custody, the best interest standard set
forth in R.C. 3109.04 does not apply. Id. at ¶19.
{¶21} Appellant argues the trial court improperly focused on the fact R.S. chose
to leave home in finding Appellees did not abandon R.S. However, examining the
evidence as a whole, we find the trial court’s finding the child was not abandoned is not
against the weight of the evidence. Appellant testified he had not received money from
Tuscarawas County, Case No. 2022 AP 09 0030 8
Appellees to support R.S., but Appellant testified Appellees were able to take care of R.S.,
and R.S. came to the United States because of other threats in Guatemala. Appellant
testified Appellees have cell phones, and call weekly. Appellant and R.S. both testified
R.S. came to the United States because of conditions in Guatemala and a belief R.S.
could have a better life and obtain an education in the United States. While those
considerations would be relevant to the best interests of the child in a custody dispute
between parents, a custody dispute between a parent and a nonparent requires a finding
of parental unsuitability, and not the best interests of the child. We find the trial court’s
finding R.S. was not abandoned is not against the manifest weight of the evidence, and
the trial court did not err in denying Appellant’s complaint for custody of R.S.
{¶22} The third assignment of error is overruled.
{¶23} The judgment of the Tuscarawas County Common Pleas Court, Juvenile
Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur