In re A.J. ( 2024 )

[Cite as In re A.J., 2024-Ohio-1836.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
A.J. : CASE NO. CA2023-11-121
: OPINION
5/13/2024
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2021-0291
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Garrett Law Offices, and Dawn S. Garrett, for appellant.
Andrew Brenner, for Mother.
Sandra Jones, legal custodian, pro se.
Amy Ashcraft, guardian ad litem.
M. POWELL, J.
{¶ 1} Appellant ("Father") appeals a decision of the Butler County Court of
Butler CA2023-11-121
Common Pleas, Juvenile Division, granting him visitation with his teenage daughter, A.J.
("Allie), at her discretion.1
{¶ 2} Allie was born in February 2007. On October 29, 2021, Butler County
Children's Services (the "Agency") filed a complaint alleging that Allie was a neglected
and dependent child. Allie was 14 years old. The complaint alleged that Allie's mother
("Mother") had chronically neglected Allie's medical needs, that Allie had not attended
school for a year, and that Mother claimed she could not afford food. Father lives in
Kentucky. The complaint reported that Father had very little contact with Allie. Temporary
custody was granted to the Agency, Allie was placed in foster care, and a guardian ad
litem ("GAL") was appointed.
{¶ 3} A pretrial hearing was held before a magistrate on December 3, 2021. The
GAL advised the magistrate that Allie wished to have discretion whether to visit with
Father. The GAL explained that Allie did not have a bond with Father and that she was
uncomfortable with the idea of visiting with Father. Mother supported the request. In an
order issued that day, the magistrate granted Allie the discretion whether to visit with
Father. This order remained unchanged throughout the proceedings.
{¶ 4} On January 11, 2022, upon Father's and Mother's stipulation, Allie was
adjudicated dependent; the neglect allegation was withdrawn. Subsequently, Father was
permitted supervised visitation with Allie at the Family Healing Center. During an April
2022 review hearing, the GAL advised the magistrate that Father was improperly
discussing the case with Allie and that he was trying to pressure her into agreeing to
unsupervised visits. During a July 2022 review hearing, the GAL advised the magistrate
that Father was still improperly discussing the case with Allie, that Allie did not want
1. Allie is a fictitious name for A.J. which we will use throughout the opinion for readability purposes.
-2-
Butler CA2023-11-121
unsupervised visitation with Father, and that the day before, the visit was ended because
Father could not be redirected. Father disputed that his visits were problematic, denied
he had done anything wrong, and requested that his visitation be unsupervised. Father
advised the magistrate that Allie "has a history of lying and that has been established
from the beginning of [the case]."
{¶ 5} On October 22, 2022, following difficult and unsuccessful placements in
foster care and group homes, Allie was placed in the temporary custody of her maternal
grandmother ("Grandmother") in Columbus, Ohio, where she has remained since. It is
undisputed that Allie has thrived in Grandmother's custody. Once Allie moved in with
Grandmother, Father neither visited Allie nor tried to visit.
{¶ 6} During a May 2023 review hearing, Father and Mother both agreed that
Grandmother be designated as Allie's legal custodian. Consequently, the Agency orally
moved the juvenile court to grant legal custody of Allie to Grandmother. A hearing was
scheduled for August 11, 2023, to determine Father's visitation with Allie. Father attended
the August 11, 2023 hearing remotely. At the outset of the hearing, Father advised he
was now opposed to Grandmother having legal custody of Allie. Father asked the court
to grant legal custody to Mother and to order mandatory visitation with him. As Mother
did not want legal custody of Allie and approved of Grandmother having legal custody,
the hearing proceeded on the Agency's motion to grant legal custody to Grandmother and
Father's request for legal custody, or alternatively, for mandatory visitation.
{¶ 7} Allie was 16 and one-half years old and in the 11th grade at the time of the
hearing. A social summary admitted at the hearing indicated that Allie has "remarkable
intelligence and excellent communication skills," advocates for her wants and needs, and
is doing very well in Grandmother's custody. The social summary also stated that Father
lives in Kentucky, that he failed to complete parenting classes, even though he was
-3-
Butler CA2023-11-121
permitted to attend remotely, that he was consequently terminated from the parenting
class program, and that he once again failed to complete the program when given a
second opportunity to do so. The record indicates that a home study was never
completed due to Father's non-compliance.
{¶ 8} The GAL recommended legal custody to Grandmother and visitation with
Father (and Mother) at Allie's discretion. The GAL stated that Allie has never wavered in
her wish that she not be placed with either of her parents, that Allie wants to remain in
Grandmother's custody and "learn life skills to move out on her own at 18," and that she
is not bonded with Father and does not want to visit with him.
{¶ 9} Testimony at the hearing revealed that despite Grandmother's offer to
facilitate Father's visits with Allie by meeting him halfway in Dayton, Ohio, Grandmother
sending Father $100 on a separate occasion, and the Agency offering Father free
transportation to Columbus if he would come to Cincinnati from his Kentucky residence,
Father never availed himself of these opportunities. Once Allie moved in with
Grandmother, Father never visited Allie. Father, who does not have a driver's license or
a car, claimed that traveling to Columbus necessarily involved using Uber or Lyft in
addition to Greyhound and was therefore cost-prohibitive. Father blamed Grandmother
for failing to facilitate visits, lamented that Grandmother had only once sent him $100,
and stated that Grandmother should pay 50 percent of his transportation costs. Father
testified he was "working on getting" his driver's license. Father also expressed concern
that Allie might not attend visitation if he travelled to see her.
{¶ 10} Father admitted he was absent from Allie's life for 13 years and that he
came back into her life when this case commenced. Father testified that although there
was some friction during their earlier supervised visits at the Family Healing Center
because he was learning how to address Allie's anxiety, their relationship was very good.
-4-
Butler CA2023-11-121
Father blamed the cancellation of one of these visits on the fact he "got a little irritated
because I kept getting corrected on things that had no business corrected on."
{¶ 11} Father testified that his current contact with Allie was solely through
Facebook Messenger and that it was very positive. On one hand, Father testified he was
"trying to let Allie have it her way where she's comfortable" and that he "would like to have
one on one visitation with [Allie] when she's comfortable." On the other hand, Father
repeatedly castigated Allie as being "unfairly mean" and full of animosity toward him,
testified he was clueless as to why there was so much animosity toward him from Allie,
and opined that Allie had abused the discretion granted to her regarding visitation.
Consequently, Father requested that Allie be required to visit with him.
{¶ 12} Upon being cross-examined by the Agency's counsel, Father became angry
and disconnected from the hearing. The magistrate observed that Father had "left the
hearing." As a result, the GAL was unable to cross-examine Father. Following closing
argument by Father's counsel and the GAL, Father came back to the hearing. He blamed
the earlier disconnection on his cellphone overheating while outside.
{¶ 13} On August 15, 2023, the magistrate awarded Grandmother legal custody of
Allie and ordered that visitation with Father (and Mother) be at Allie's discretion and as
arranged by Grandmother. In so holding, the magistrate found that (1) Father was not
involved in 13 of Allie's 16 years of her life, his relationship with Allie was strained, and
there was no bond between them; (2) Allie had demonstrated a willingness to arrange
contact with Father when given that discretion; however, Father never visited Allie after
she moved in with Grandmother and Father's reasons for failing to visit with Allie were
inexcusable; and (3) Father never availed himself of the transportation opportunities that
were presented to him and failed to successfully address his transportation issues in the
21 months the case had been pending. The magistrate concluded,
-5-
Butler CA2023-11-121
It is unfortunate that in-person visits ceased after placement
with grandmother in Columbus. However, [Allie's] best
interests were served by that placement as she was unhappy
in her group home placement and deserved to be in a family
home. Since that placement was made, Father has never
participated in the parenting program intended to assist him
with development of appropriate parenting of [Allie] and has
demonstrated a complete lack of effort to attend supervised
visitation with [Allie] as permitted. While Father is focused on
his parental rights when asking for [Allie] to be required to visit
with him, he fails to demonstrate how [Allie's] best interest are
served by being required to visit with him against her wishes.
[Allie] has experienced enough trauma over her lifetime, and
at her age, she should be given some amount of control over
her contact with her parents.
{¶ 14} Father filed objections to the magistrate's decision. On October 13, 2023,
the juvenile court overruled Father's objections and adopted the magistrate's decision.
{¶ 15} Father now appeals, raising one assignment of error:
THE TRIAL COURT'S DECISION WHICH IMPOSED ALL
THE EXPENSE FOR VISITATION, DID NOT SET A
MINIMUM SPECIFIC ORDER, AND LEFT VISITATION TO
THE DISCRETION OF THE CHILD WAS AN ABUSE OF
DISCRETION, NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND CONTRARY TO THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 16} Father challenges the juvenile court's visitation order, raising two issues for
review.
{¶ 17} In his first issue for review, Father argues that the juvenile court erred by
requiring him to bear the costs of traveling to Grandmother's home to visit Allie. Father
asserts the court should have ordered Grandmother to pay for some of Father's travel
costs because he is indigent and pays child support.
{¶ 18} We are precluded from reviewing this issue. Objections to a magistrate's
decision must be "specific and state with particularity all grounds for objection." Juv.R.
40(D)(3)(b)(ii). The failure to file specific objections is treated the same as the failure to
file any objections. In re K.L.F., 12th Dist. Butler Nos. CA2020-08-083 and CA2020-08-
-6-
Butler CA2023-11-121
084, 2021-Ohio-2290, ¶ 9. Juv.R. 40(D)(3)(b)(iv) provides that "[e]xcept for a claim of
plain error, a party shall not assign as error on appeal the court's adoption of any factual
finding or legal conclusion * * * unless the party has objected to that finding as required
by Juv.R. 40(D)(3)(b)."
{¶ 19} Although Father filed objections to the magistrate's August 15, 2023
decision, he did not specifically raise the issue of travel costs. Rather, Father challenged
the magistrate's visitation decision solely on the ground that Allie had sole discretion
whether to visit with him. Furthermore, Father does not claim or argue plain error on
appeal. "It is well recognized that the failure to draw a trial court's attention to possible
error when the error could have been corrected results in a waiver of the issue for
purposes of appeal." K.L.F. at ¶ 10. Father is therefore precluded from raising this issue
on appeal. Id.{¶ 20} In his second issue for review, Father argues the juvenile court erred by
ordering that visitation with Father be at Allie's discretion. Father asserts that the court
should have set a "minimum schedule of parenting time," such as "one 4-hour visit per
month."
{¶ 21} As a noncustodial parent in a dependency action, Father retains residual
parental rights and responsibilities, which include "the privilege of reasonable visitation *
* * and the responsibility for support." R.C. 2151.011(B)(50) and 2151.353(A)(3)(c); In re
A.S., 12th Dist. Warren No. CA2022-11-074, 2023-Ohio-1607. A juvenile court has broad
discretion in determining visitation issues, and its decision will not be reversed absent an
abuse of discretion. In re A.J., 12th Dist. Butler No. CA2016-09-175, 2017-Ohio-5848, ¶
30; In re S.S., 8th Dist. Cuyahoga Nos. 110793 and 110795, 2022-Ohio-520 (appellate
court's review of a juvenile court's decision regarding a parent's visitation rights in the
context of an abuse, neglect, or dependency action is for an abuse of discretion). The
-7-
Butler CA2023-11-121
court's primary consideration should always be the best interest of the child. Bristow v.
Bristow, 12th Dist. Butler No. CA2009-05-139, 2010-Ohio-3469, ¶ 18. To further the
child's best interest, the juvenile court has the discretion to limit or restrict visitation rights.
Id. 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 interests of the child. Id.{¶ 22} A challenge to the manifest weight of the evidence involves the inclination
of the greater amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶
12. In addressing a manifest weight challenge, "the reviewing court weighs the evidence
and all reasonable inferences, considers the 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 trial ordered." In re A.S. at ¶ 20.
{¶ 23} Upon thoroughly reviewing the record, we find that the juvenile court did not
abuse its discretion in ordering that visitation with Father be at Allie's discretion, nor do
we find the juvenile court's decision was against the manifest weight of the evidence.
{¶ 24} As stated above, a noncustodial parent in a dependency action has residual
parental rights, privileges, and responsibilities, including the "privilege of reasonable
visitation." R.C. 2151.011(B)(5) and 2151.353(A)(3)(c). However, such residual rights
are not absolute and are always subject to the best interest of the child. See In re S.S.,
8th Dist. Cuyahoga Nos. 110793 and 110795, 2022-Ohio-520; Bristow, 2010-Ohio-3469.
Allie is now 17 years old and is deemed mature, intelligent, and able to make her own
decisions, and she has demonstrated a willingness to arrange some visits with Father
despite her discomfort being around him. Father was absent from Allie's life for 13 years,
-8-
Butler CA2023-11-121
has failed to engage in a parenting program intended to assist him with developing
appropriate parenting, and has never visited Allie after she moved in with Grandmother.
In fact, Father has demonstrated a complete lack of effort to visit with Allie despite the
opportunities given to him and instead, blames Grandmother's general failure to
financially help him and Allie's meanness and animosity toward him for his failure to visit
with Allie. In light of the foregoing, it is in Allie's best interest to have discretion whether
to visit with Father. The juvenile court did not err by ordering that Father's visitation with
Allie be at Allie's discretion.
{¶ 25} Father's assignment of error is overruled.
{¶ 26} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
-9-