Wilfong v. Bush , 2023 Ohio 1256 ( 2023 )

[Cite as Wilfong v. Bush, 2023-Ohio-1256.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SHYNA WILFONG, : APPEAL NO. C-220308
TRIAL NO. F16-2192Z
Plaintiff-Appellant, :
O P I N I O N.
vs. :
BRANDON BUSH, :
Defendant-Appellee. :
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 19, 2023
Law Offices of Nicholas A. Kulik, LLC, and Nicholas A. Kulik, for Plaintiff-Appellant,
Arnold Law Firm, LLC, and Britt Born, for Guardian ad Litem.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} In this appeal we are asked to determine whether the trial court erred
when it suspended the parenting time of Shyna Wilfong (“mother”) with her children,
R.W. and B.B. Finding no abuse of discretion in the trial court’s decision to suspend
mother’s parenting time, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} R.W. and B.B. are the children of mother and Brandon Bush (“father”).
The Hamilton County Department of Job and Family Services (“HCJFS”) first became
involved with the family in 2016, after mother used a taser on father at a grocery store.
HCJFS was granted temporary custody of R.W. and B.B., and they were placed in the
care of their paternal grandmother. In June of 2018, father was awarded legal custody
of the children upon both his own motion and the motion of HCJFS to terminate
temporary custody and award legal custody to father. The juvenile court magistrate
who awarded legal custody to father also granted parenting time to mother in
accordance with a “Parenting Time Agreement” submitted by the parties.
{¶3} After father received custody, mother filed numerous motions alleging
child abuse by father and that father was in contempt of visitation. All motions were
denied.
{¶4} On March 2, 2020, father filed a motion to terminate mother’s
visitation. And on March 13, 2020, mother filed a motion to modify custody. In
February of 2021, while these motions were pending, R.W. suffered a traumatic injury
while in mother’s care. As a result of the incident, R.W. was hospitalized, placed on a
ventilator, and suffered from seizures and an orbital fracture. B.B. also had bruising
on her face that same night. Mother has given conflicting reports as to what caused
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R.W.’s injuries. After R.W.’s injury, a magistrate issued an order granting an
emergency motion to suspend mother’s visitation rights.
{¶5} In December of 2021, a joint hearing was conducted on father’s motion
to terminate mother’s visitation and mother’s motion to modify custody. At the
hearing, father testified that he wanted mother’s visitation modified in part because of
her vindictive nature and her hatred of father. He discussed the multiple contempt
motions that mother filed against him, and he told the court that mother encouraged
B.B. lie to detectives when filing sexual-assault charges—which were later found to be
frivolous—against him. Father also testified that mother has initiated violent acts
against him in front of the children, including tasing him, and that he has previously
obtained a restraining order against mother.
{¶6} Father additionally testified that mother kept the children and refused
to return them to his care from January to March of 2020. During this period, father
received reports from the children’s school that R.W. engaged in acts of self-harm,
including biting and smacking himself, and that B.B. was in a state of depression.
Father also noticed that R.W. developed a nervous tic during this time.
{¶7} R.W. has autism, is nonverbal, and suffers from cerebral palsy.
According to father, R.W. has sensory issues that were negatively affected by the
environment at mother’s home, which included loud music and people running in and
out of the house. According to father, R.W. becomes visibly anxious when being
transported to mother’s home.
{¶8} Father testified about his concerns for the traumatic injury that R.W.
suffered while in mother’s care. Father also discussed the services that he has
participated in and told the court that he has completed the Talbert House Fatherhood
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OHIO FIRST DISTRICT COURT OF APPEALS
Program as well as parenting classes. According to father, mother is unwilling to
coparent with him.
{¶9} Mother, in turn, testified that father has withheld the children from her
and at times would only let her see the children when he needed money from her. She
told the court that she has concerns with father’s aggression, and that the children
have often returned from their time with father with injuries that father has no
explanation for.
{¶10} Mother addressed the injury that R.W. suffered while in her care, but
she was unable to provide a concise explanation for what caused the injury. According
to mother, R.W. and B.B. had gone downstairs to get popsicles. Around that time, a
curtain fell, but mother stated that it did not hit R.W. Mother stated that R.W. ate his
popsicle and watched cartoons before beginning to vomit. Because R.W. appeared
disoriented and was not responding to her, she called 911. Mother stressed that the
children were never injured when in her care other than this incident.
{¶11} Mother acknowledged that R.W. experiences nervous tics, but stated
that they appeared for the first time when R.W. was at his paternal grandmother’s
house. She explained that she had R.W. examined and was told that the tics could
occur for numerous reasons, including if R.W. overexerted himself, and that she
should monitor the issue. Mother testified that she is able and willing to adhere to a
parenting schedule and to take the children to doctor’s appointments. She also
discussed the services that she has participated in, stating that she was successfully
discharged from the Talbert House for meeting her treatment goals, that she is
enrolled in the Women Helping Women Program, and that she has submitted to the
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OHIO FIRST DISTRICT COURT OF APPEALS
recommended drug screens. Mother stated that she has tested positive once for
marijuana, but that she has a prescription for the drug.
{¶12} Maria Turner, the guardian ad litem for R.W. and B.B., testified that it
was her opinion that father should retain custody of the children and that visitation
with mother should be limited until the investigation into R.W.’s injury was
completed, at which point mother should have supervised visits with the children
while engaging in services recommended by HCJFS. Turner stated that during her
investigation of this case, she was told by a detective that mother has a history of
making false allegations and that there is a concern that mother is grooming B.B. to
make false allegations of sexual abuse against father.
{¶13} Turner discussed issues concerning the children’s schooling, stating
that mother failed to participate in meetings for R.W. concerning his Individualized
Education Plan, and that truancy letters from the children’s school coincided with the
time that they remained solely in mother’s care. She testified that, although she has
no concerns with mother’s physical residence, she has concerns for the children’s
safety when in mother’s care, particularly because mother has been unable to explain
how R.W. was injured. Turner does not have similar concerns for the children’s safety
when they are in father’s care. She additionally testified that she notices a difference
in the children’s behavior based on which parent they are with, stating that R.W.
appears timid and sad with mother, but is seemingly happy with father.
{¶14} Following the hearing, the magistrate issued a decision denying
mother’s motion to modify custody. He found that mother failed to demonstrate that
a change in circumstances occurred, which was a necessary requirement for a change
in custody. He further found that even if there had been a change in circumstances, a
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OHIO FIRST DISTRICT COURT OF APPEALS
consideration of the relevant best-interest factors supported custody remaining with
father. The magistrate granted father’s motion to terminate mother’s parenting time.
He found that a consideration of the factors in R.C. 3109.051(D) supported a
determination that a suspension of mother’s visitation was in the children’s best
interest.
{¶15} Mother filed an objection to the magistrate’s decision with respect to the
granting of father’s motion, arguing that the decision to suspend her parenting time
was not in the children’s best interest. The trial court overruled mother’s objection
and adopted the magistrate’s decision. In doing so, it considered and discussed the
factors in R.C. 3109.051(D) and found that a suspension of mother’s parenting time
was in the children’s best interest.
{¶16} Mother now appeals.
Suspension of Parenting Time
{¶17} In a single assignment of error, mother argues that the trial court erred
in failing to properly weigh the factors in R.C. 3109.051(D) when determining mother’s
parenting time and that it abused its discretion in maintaining the suspension of her
parenting time.
{¶18} We review a trial court’s judgment modifying parenting time for an
abuse of discretion. Veach v. Adams, 1st Dist. Hamilton No. C-220072, 2022-Ohio-
4031, ¶ 10. An abuse of discretion will only be found where the trial court’s decision
was unreasonable or arbitrary. Id.{¶19} When one parent has been designated the legal custodian, as in this
case, modifications to parenting time are governed by R.C. 3109.051. Id. at ¶ 11;
Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-
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OHIO FIRST DISTRICT COURT OF APPEALS
2398, ¶ 28. A change in circumstances is not required for a modification of parenting
time. Id. at ¶ 30. Rather, the trial court must consider the factors set forth in R.C.
3109.051(D) and determine whether a modification to parenting time is in the
children’s best interest. Id.
{¶20} The factors set forth in R.C. 3109.051(D)1 are as follows:
(1) The prior interaction and interrelationships of the child with the
child’s parents, siblings, and other persons related by consanguinity or
affinity * * *;
(2) The geographical location of the residence of each parent and the
distance between those residences * * *;
(3) The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and the
child’s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, regarding the wishes and concerns of the
child as to parenting time by the parent who is not the residential parent
or companionship or visitation by the grandparent, relative, or other
person who requested companionship or visitation, as to a specific
parenting time or visitation schedule, or as to other parenting time or
visitation matters, the wishes and concerns of the child, as expressed to
the court;
1 The factors in R.C. 3109.051(D)(12) and (15) are not applicable to parents.
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(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time and
to facilitate the other parent’s parenting time rights * * *;
(11) In relation to parenting time, whether either parent previously has
been convicted of or pleaded guilty to any criminal offense involving any
act that resulted in a child being an abused child or a neglected child;
whether either parent, in a case in which a child has been adjudicated
an abused child or a neglected child, previously has been determined to
be the perpetrator of the abusive or neglectful act that is the basis of the
adjudication; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child or a
neglected child;
* * *
(13) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to
establish a residence outside this state;
* * *
(16) Any other factor in the best interest of the child.
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{¶21} We first consider mother’s contentions that the trial court did not
properly weigh the factors set forth in R.C. 3109.051(D)(1) and (7) concerning the
relationship of the children with their parents and the health and safety of the children.
With respect to the (D)(1) factor, the trial court found that “[R.W.] suffered severe
injuries while in Mother’s care, the cause of which is still unknown as Mother has
provided multiple different accounts of what transpired. Mother does not keep her
home quiet, which [R.W.] requires for his mental health, and Mother has physically
assaulted Father multiple times in front of the Children.” And with respect to the
(D)(7) factor, the trial court found that “[R.W.] has special needs, and suffered very
significant injuries while in Mother’s care. Mother has assaulted Father in the
presence of the children on multiple occasions, and Mother does not maintain a quiet
home, which [R.W.] needs for his mental health.”
{¶22} The trial court’s findings under these factors were supported by the
record. While mother correctly notes that no claims have been substantiated against
her for R.W.’s injuries, R.W. was indisputably injured while in mother’s care, and
mother has been unable to provide a concise explanation as to what caused that injury.
As to the noise level of mother’s home, father testified that R.W., who suffers from
sensory issues, was affected by the environment at mother’s home, which included
loud music and people running in and out of the house. As the trier of fact, the trial
court was in the best position to judge the credibility of the witnesses. See In re T.K.M.,
1st Dist. Hamilton No. C-190020, 2019-Ohio-5076, ¶ 31 (holding that matters as to
credibility of the evidence were for the trial court to decide). It was entitled to believe
father’s testimony on this topic, and we will not second guess the trial court’s
credibility determination. Supporting father’s testimony about R.W. being affected by
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the noise level in mother’s home was father’s testimony that R.W. becomes visibly
anxious when being transported to mother’s home, as well as Turner’s testimony that
R.W. appears sad with mother.
{¶23} Mother also challenges the trial court’s weighing of the factor in R.C.
3109.051(D)(5) pertaining to the children’s adjustment to their home, school, and
community. When considering this factor, the trial court found that “The Children are
adjusted to Father’s home, their school—where [R.W.] has an IEP—and their
community. [R.W.] has difficulty in Mother’s home as her home is not quiet.” As
discussed above, father’s testimony supported the trial court’s finding about the noise
level of mother’s home. And testimony from Turner also established that the
children’s behavioral problems at school coincided with the time that they were solely
in mother’s care, and that R.W.’s demeanor was noticeably happier with father than
with mother.
{¶24} Mother last takes issue with the trial court’s weighing of the factor in
R.C. 3109.051(D)(9) which directs the court to consider the mental health of the
parties. With respect to this factor, the trial court found that “The GAL has concerns
for mother’s mental health. Although Mother testified she complied with the
recommendations of HCJFS, Father and the GAL testified this was untrue.” While the
record contains no evidence that mother has a diagnosed mental health illness, it
establishes that a diagnostic assessment was recommended for mother, and that
following the assessment the recommendations for mother included individual
counseling and ongoing drug screens. The record reflects that the guardian ad litem
had concerns about mother’s mental health, and given the evidence in the record about
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mother’s behavior and history, the trial court was entitled to find that the guardian ad
litem’s testimony on this point was credible.
{¶25} The record does indicate that mother was more compliant with the
services recommended by HCJFS than was testified to by Turner. Mother introduced
evidence that she was successfully discharged from the Talbert House for meeting her
treatment goals and that she was enrolled in Women Helping Women. Mother
additionally testified that she submitted to at least two drug screens, although the
record is not clear on the overall amount of screens that mother should have submitted
to.
{¶26} Even if, however, the trial court could have accorded more weight under
this factor to mother being allowed parenting time, we cannot find, considering the
record as a whole and all the factors set forth in R.C. 3109.051(D), that the trial court
abused its discretion in determining that a suspension of mother’s parenting time was
in the children’s best interest. The trial considered each factor in this statute, and with
the exception of its discussion concerning mother’s mental health and treatment
compliance, the court’s findings were clearly supported by the record.
{¶27} Mother argues on appeal that the trial court could have considered a less
severe result that did not involve suspending her parenting time, such as supervised
visitation or allowing mother parenting time if she met certain conditions like
parenting classes. But mother never specifically asked the trial court to consider
imposing a less restrictive alternative. When asked what outcome she was asking the
trial court for, mother testified that she was requesting that father be ordered to
undergo anger management and that the children be placed in her sole custody.
Moreover, the trial court’s order does not foreclose the possibility that mother could
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seek to restore parenting time in the future should that become in her children’s best
interests.
{¶28} We are not unsympathetic to mother’s argument or to the effect of the
trial court’s decision on her relationship with her children. But given the evidence in
the record establishing that R.W. suffered a serious injury—the cause of which remains
unknown—while in mother’s care and that B.B. suffered injury that same day, that
mother kept the children from father for an approximately three-month period, that
the children’s behavior raised concerns at school during the time period that they were
solely in mother’s care, that R.W. becomes anxious when being transported to
mother’s home and is happier with father than mother, and that there is a history of
mother acting violently towards father and filing false charges against him, we can find
no abuse of discretion on the part of the trial court in suspending mother’s parenting
time rather than granting supervised visitation. The trial court’s decision was in no
manner unreasonable or arbitrary.
{¶29} We accordingly overrule mother’s assignment of error and affirm the
judgment of the trial court.
Judgment affirmed.
CROUSE, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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