In re X.G.

[Cite as In re X.G., 2018-Ohio-4890.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: X.G. : Hon. W. Scott Gwin, P.J.
DEPENDENT CHILD : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, J.
:
:
: Case No. 2018 AP 04 0015
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Juvenile Division,
Case No. 15 JN 00166
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 6, 2018
APPEARANCES:
For - Appellant For - Appellee
SETH ARKOW JEFF M. KIGGANS
1435 Market Avenue, North Tuscarawas County Job & Family Services
Canton, OH 44714 389 16th St. SW
New Philadelphia, OH 44663
[Cite as In re X.G., 2018-Ohio-4890.]
Gwin, P.J.
{¶1} Appellant-mother A.B. appeals the March 8, 2018 judgment entry of the
Tuscarawas County Court of Common Pleas, Juvenile Division, finding it was not the best
interest of X.G. to have visitation with her at this time. Appellee is the Tuscarawas County
Department of Job and Family Services (“TCDJFS”).
Facts & Procedural History
{¶2} Appellant A.B. (“Mother”) is the biological mother of X.G., who was born on
April 18, 2012. This case began in 2015, when X.G.’s seven-year old sibling H.W.
appeared at school with a slap mark and bruising on his face, a mark on his foot, and
older bruises on his back. H.W. was seen at Akron Children’s Hospital where H.W.’s
account of physical abuse by Mother was substantiated. Mother denied any abuse. J.G.,
the biological father of X.G. (“Father”) took emergency custody of X.G. on May 14, 2015.
{¶3} At a shelter case hearing on June 19, 2015, the trial court granted temporary
custody of X.G. to Father. Mother did not appear at the shelter care hearing.
{¶4} TCDJFS filed a complaint for abuse, neglect, and dependency against
Mother and Father on June 22, 2015. On July 22, 2015, the trial court held an
adjudicatory hearing. Mother and Father stipulated to the amended complaint and the
trial court found X.G. was a dependent child pursuant to R.C. 2151.04. The trial court
ordered X.G. to remain in the temporary custody of Father under the protective
supervision of TCDJFS, with no visitation for Mother until the trial court received a report
from the counselor.
{¶5} Mother filed a motion for visitation on September 16, 2015. At a review
hearing on October 27, 2015, the trial court granted Mother supervised visitation.
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TCDJFS filed a motion to extend for six months on May 20, 2016, which was granted by
the trial court on July 5, 2016. TCDJFS filed a second motion to extend for six months
on December 1, 2016, which was granted by the trial court.
{¶6} On December 15, 2016, the trial court suspended Mother’s visitation
because she tested positive for THC. Mother filed a motion to reconsider. The trial court
denied Mother’s motion to reconsider, reasoning that Mother tested positive for marijuana
and opiates.
{¶7} TCDJFS filed a motion to modify disposition and terminate case. TCDJFS
stated full legal custody should be given to Father and that agency involvement in the
case was no longer necessary. Mother filed a motion for legal custody on June 19, 2017.
The trial court awarded Mother supervised visitation on June 28, 2017.
{¶8} The trial court conducted a trial on the competing motions for legal custody
on multiple dates: August 28, 2017, October 26, 2017, October 31, 2017, and December
6, 2017. On August 28, 2017, the first day of the trial, Mother tested positive for
methamphetamine.
{¶9} Stacia Stevens (“Stevens”), the TCDJFS caseworker assigned to the case
since 2015, testified that the first time Mother took responsibility for abusing H.W. was in
August of 2016 after she denied it repeatedly for a year. Stevens was concerned about
Mother’s drug use since she tested positive for marijuana three times during the pendency
of the case. Stevens stated she believes the agency used reasonable efforts to reunify
Mother and X.G. Stevens testified that Mother has done all case plan services, but
Stevens does not think Mother should get custody of X.G. because Father completed his
case plan, X.G. stabilized in Father’s home, and X.G. is happy and feels safe where he
Tuscarawas County, Case No. 2018 AP 04 0015 4
is. Stevens stated Father has taken seriously the services provided to him, he has done
a fantastic job, and it is in the best interest of X.G. to be placed in Father’s custody.
Stevens is concerned that Mother still tests positive for drugs even though she has
completed her case plan.
{¶10} Stevens testified that Mother and Father do not get along, as it is a power
struggle between them, and neither of them has a desire to come to an agreement.
Stevens stated more so Mother complains about Father, but Father complains about
Mother too. Stevens does not think there is anything the agency can do to fix it. Stevens
recommended Mother continue to have supervised visitation with X.G.
{¶11} Mother testified that she is a better parent than Father because she had
X.G. his whole life, Father does not have a clean past, and she took care of X.G. perfectly.
Further, that she has complied with her case plan and has not tested positive for drugs
since August. Mother stated the case was opened in 2015 because she slapped H.W. in
the face, which she was previously denying. Mother confirmed that when the children
were age 2 and 7, they left the house unattended and were picked up by police. Mother
stated the supervised visitations with X.G. are paid through TCDJFS. Mother has
concerns about Father’s willingness to facilitate visitation, and she does not believe
Father will show up for visits when TCDJFS is not involved. Mother does not think X.G.
is safe with Father because X.G. tells her he does not want to be there, X.G. has rug
burns on his forehead from throwing fits, Father has anger issues, and when they were
together, Father assaulted her. Further, Mother testified Father’s new wife assaulted her
in 2014. Mother stated she is not a danger to her son and that she is a decently good
parent who has always taken care of her children.
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{¶12} Father testified that his concerns with Mother include her dependency
issues and taking accountability. Father stated he is ok with Mother having supervised
visitation with X.G., as long as she is not on drugs. Father testified that every time he
and Mother engage, it ends badly. He stated he and Mother have a very strained
relationship, as he does not feel X.G. is safe with her.
{¶13} Brad Klein (“Klein”) supervised some of the visits between Mother and X.G.
He testified that the visits between Mother and X.G. went well, and he had no concerns.
Klein stated there is a lot of drama between Mother and Father, and he could tell they are
not happy with each other, so he always tried to keep them separated.
{¶14} Gerrit Denheijer, the guardian ad litem for X.G., testified it is in the best
interest of X.G. for Father to have legal custody and to terminate the involvement of
TCDJFS. He recommends Mother have supervised visitation.
{¶15} The trial court issued a judgment entry on March 8, 2018. The trial court
stated that there was a voluminous amount of information presented to the court, and that
“much of it consisted of the parties presenting derogatory information about each other.
A positive parental relationship does not exist between them.” Further, that both Mother
and Father’s behaviors have not been in the best interest of X.G. The trial court found
that Mother completed her case plan services and made some personal progress in her
life. However, she has “maintained a very defensive approach to this case and is a long
way from taking sincere responsibility for her actions that caused the removal of her
children.” The trial court found the personality traits that caused the removal of her
children still exist and Mother does not fully grasp the negative significance of her various
behaviors and sees herself as a victim of these proceedings. Further, that Mother has
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internalized little from the service providers in the case, as she continues to maintain
unstable relationships, did not stop using illegal drugs until well into the end of the case,
and thus her relapse into drug use is very likely. The trial court determined that while
Mother completed her case plan, she did not enable X.G. to return safely home.
{¶16} The trial court noted Father was honest about his parental defects and was
open about prior alcohol use. Further, that he has internalized more from the service
providers in the case. The trial court found X.G. is very happy in Father’s home and has
done incredibly well there.
{¶17} The trial court found it was in the best interest of X.G. to be placed in the
legal custody of Father.
{¶18} As to visitation, the trial court stated as follows:
The Court has also given tremendous thought to the appropriate
visitation between [X.G] and his mother. The Court finds it very likely that
[Mother] will attempt to undermine the relationship between [Father] and his
son if given the chance. Accordingly, the Court also finds that as [Mother]
has been an unfit mother, it is not in the best interest of [X.G.] to have any
visitation with his mother at this time.
{¶19} The trial court ordered X.G. be placed in the legal custody of Father with no
visitation with Mother at this time. Further, the trial court terminated the protective
supervision of TCDJFS and closed the case.
{¶20} Mother appeals the March 8, 2018 judgment entry of the Tuscarawas
County Court of Common Pleas, Juvenile Division, and assigns the following as error:
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{¶21} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SPECIFICALLY
ORDERING NO VISITATION AS BETWEEN THE MINOR CHILD AND MOTHER.
{¶22} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING
MOTHER TO BE AN ‘UNFIT MOTHER.’”
I.
{¶23} In her first assignment of error, Mother argues the trial court erred and
abused its discretion in ordering no visitation as there is no credible evidence in the record
to justify the denial of visitation and there is no evidence in the record that Mother would
attempt to undermine the relationship between X.G. and Father.
{¶24} We first note that this was a grant of legal custody, not permanent custody.
Legal custody does not divest parents of residual rights, privileges, and responsibilities.
In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188. This means Mother
may petition the court for a modification of custody and/or visitation in the future. In the
Matter of L.S. & D.S., 5th Dist. Holmes Nos. 12-CA-001, 12-CA-002, 2012-Ohio-3794.
{¶25} Unlike a permanent custody proceeding where a juvenile court’s standard
of review is by clear and convincing evidence, the standard of review in legal custody
proceedings is preponderance of the evidence. In the Matter of L.S. & D.S., 5th Dist.
Holmes Nos. 12-CA-001, 12-CA-002, 2012-Ohio-3794. In this type of dispositional
hearing, the focus must be on the best interest of the child. In re C.R., 108 Ohio St.3d
369, 2006-Ohio-1191, 843 N.E.2d 1188.
{¶26} A trial court enjoys broad discretion in deciding matters regarding the
visitation of non-residential parents. Appleby v. Appleby, 24 Ohio St.3d 39, 492 N.E.2d
831 (1986). However, a non-residential parent’s right of visitation is a natural right and
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should be denied under extraordinary circumstances, including unfitness of the
noncustodial parent or a significant risk of harm to the child. Cremeans v. Cheadle, 5th
Dist. Licking No. 07 CA 25, 2008-Ohio-2148. The standard of review concerning visitation
rights is whether the trial court committed an abuse of discretion. Booth v. Booth, 44 Ohio
St.3d 142, 541 N.E.2d 1028 (1989). An abuse of discretion implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983).
{¶27} 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. 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).
{¶28} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). The Ohio
Supreme Court has also explained, “A reviewing court should not reverse a decision
simply because it holds a different opinion concerning credibility of the witnesses and
evidence submitted before the trial court. A finding of an error of law is a legitimate
grounds for reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). As
Tuscarawas County, Case No. 2018 AP 04 0015 9
an appellate court, we neither weigh the evidence nor judge the credibility of the
witnesses. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Deferring to
the trial court on matters of credibility is “crucial in a child custody case, where there may
be much evidence in the parties’ demeanor and attitude that does not translate to the
record well.” Id.{¶29} Mother argues the trial court erred in awarding her no visitation with X.G.
because the witnesses that testified about visitation all testified that Mother should be
granted supervised visitation. We first note that the trial court is free to accept or reject,
in part or in whole, the testimony or the opinions of any witness. State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶30} Further, in its judgment entry, the trial court detailed the degree of hostility
between Mother and Father, Mother’s mentality that she is a victim of these proceedings,
and Mother’s focus on Father’s “bad past,” and determined that it is very likely that Mother
will attempt to undermine the relationship between X.G. and Father if given visitation at
this time.
{¶31} Stevens testified that Mother and Father do not get along, and it is a power
struggle between them. Stevens stated it was more so Mother complaining about Father,
but Father complains about Mother too. Stevens does not think there is anything the
agency can do to fix it. Mother and Father both testified to the hostility between them.
Father testified that every time he and Mother engage “it ends badly.” At the supervised
visits during the pendency of the case, those supervising the visits had to try to keep
Mother and Father separated. As noted in the counseling assessment, Mother is focused
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on what she “perceives the injustice and offense of her two sons being placed with their
fathers.”
{¶32} Additionally, in reviewing the exhibits submitted at trial, the hostility between
the parties is also evident, as is the constant struggle to accommodate visitation. The
parties were contacting service providers on a regular basis to express concerns about
visitation and complain about the other party. Mother and Father blamed each other for
missed visits and the location of the visits and distance each party had to travel for the
visits was also repeatedly an issue for both Mother and Father. Mother called to complain
about Father multiple times after her visitation with X.G., and her continual focus was that
she did not think X.G. should be living with Father.
{¶33} Accordingly, we find the trial court did not abuse its discretion in finding that,
once TCDJFS and the multiple services providers are no longer involved in the case, that
visitation with Mother is not in X.G.’s best interest at this time. Further, although the trial
court closed the case, it retains jurisdiction over X.G. pursuant to R.C. 2151.353(E)(1)
and Mother may move the trial court to modify its disposition. R.C. 2151.353(E)(2).
{¶34} Mother’s first assignment of error is overruled.
II.
{¶35} In her second assignment of error, Mother contends the trial court abused
its discretion in finding Mother to be an “unfit mother.” She argues that a determination
of parental unfitness can only be made pursuant to R.C. 2151.414(E), which requires a
hearing and a finding that one of the conditions in R.C. 2151.414(E)(1)-(16) exists. We
disagree.
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{¶36} R.C. 2151.414(E) details the requirements and determinations that must be
made upon the filing of a motion for permanent custody. However, as detailed above,
this is a grant of legal custody, not permanent custody. Thus, R.C. 2151.414(E) does not
apply.
{¶37} Mother’s second assignment of error is overruled
{¶38} Based on the foregoing, Mother’s assignments of error are overruled.
{¶39} The March 8, 2018 judgment entry of the Tuscarawas County Court of
Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur