In re K.A.

[Cite as In re K.A., 2018-Ohio-3400.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
IN THE MATTER OF: :
:
K.A. & E.A. : Appellate Case No. 2018-CA-9
:
: Trial Court Case Nos. 2017-JG-33,
: 2017-JG-34
:
: (Appeal from Common Pleas Court,
: Domestic Relations, Juvenile, Probate
: Division)
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OPINION
Rendered on the 24th day of August, 2018.
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JOHN C. A. JUERGENS, Atty. Reg. No. 0037120, 1504 North Limestone Street,
Springfield, Ohio 45503
Attorney for Plaintiff-Appellee
CATHY J. WEITHMAN, Atty. Reg. No. 0020889, 201 West Court Street, Urbana, Ohio
43078
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} V.A. (“Grandmother”) appeals from a judgment of the Champaign County
Common Pleas Court, Domestic Relations, Juvenile, Probate Division, that denied her
motions for visitation with K.A. and E.A., the minor children of her deceased son. The trial
court’s judgment will be affirmed.
Factual Background and Procedural History
{¶ 2} Grandmother’s son died of suicide on February 28, 2017, at his home in
Champaign County, Ohio. At the time of his death, his daughters K.A. and E.A. were six
and two years of age, respectively. The children still reside in Champaign County with
their mother, while Grandmother resides in New Castle, Indiana, about a three-hour drive
away.
{¶ 3} On September 8, 2017, Grandmother filed two complaints in the trial court,
one seeking visitation with K.A. and the other seeking visitation with E.A. The girls’ mother
(“Mother”) opposed the visitation requests, asserting that Grandmother “has not exercised
visitation except one time per year since the minor children’s respective births,” and that
any visitation should be at Mother’s discretion. The court issued an interim order granting
Grandmother visitation during Thanksgiving weekend of 2017 at the home of M.B.,
another family member in Indiana, and set the matter for an evidentiary hearing.
{¶ 4} At the hearing held on January 30, 2018, Grandmother testified that she
wished to have overnight visits with K.A. and E.A. “[a]t least” four times a year near
holidays, extended to “three days or four at most” in the summertime, at the home of
Grandmother’s 81-year-old mother in Portland, Indiana. Grandmother said that her
mother’s home is one hour nearer to Mother’s residence than her own home, and that
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having visitation there would allow K.A. and E.A. to spend time with their father’s extended
family. She stated that she would “feel uncomfortable” visiting the girls in their home
because it was the site of her son’s suicide. “I don’t know if I can really handle that.”
Instead, she proposed that she and the girls’ mother “meet halfway” in Piqua, Ohio, to
transfer the girls for visits with Grandmother. Although she sought overnight visits,
Grandmother could not recall a time when the girls had spent a night away from their
mother’s house and with Grandmother’s family.1
{¶ 5} Mother testified that her husband’s suicide had been “[v]ery difficult” for K.A.
and E.A., and that she also had “emotional problems” since discovering her husband’s
body. All three were in counseling to help cope with lingering issues. Mother said that
E.A. “regressed with potty training” after her father’s death and had begun “getting
physically aggressive,” throwing toys and screaming “I hate you.” E.A. also was exhibiting
separation anxiety. Although she was enrolled in daycare, that had become “very
problematic.” “She cries a lot,” and “won’t let go of me.” As a result, E.A. had not been to
daycare for over a month.
{¶ 6} K.A. was in kindergarten at her local school when a shooting occurred on the
campus. Mother could not say which or how much of K.A.’s emotional problems stemmed
from that shooting versus the suicide of K.A.’s father the following month. She said both
girls “have night terrors and they wake up frequently screaming throughout the night,”
often crawling into bed with her. They also move from their beds to the couch during the
night to be closer to Mother, “because they don’t want to be far away in the house at
1 The girls’ visit during the Thanksgiving 2017 holiday weekend did not include an
overnight stay with Grandmother.
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night.”
{¶ 7} Mother testified that K.A. and E.A. did not have a close relationship with their
father’s family before his death. She described taking the girls to Indiana only for “a big
family gathering” around holidays. Mother said she did not feel that her late husband’s
family grasped the extent of her daughters’ emotional problems, nor did she feel secure
leaving K.A. and E.A. in the care of Grandmother and Grandmother’s mother. She stated
that she would feel “a little more comfortable” if M.B. were present during the visits, given
M.B.’s training as a nurse practitioner, but would prefer to be present personally during
K.A. and E.A.’s visits with Grandmother. She also would prefer to limit the visits to about
four hours, twice a year, with her taking the girls to Indiana once and Grandmother coming
to Champaign County on the other occasion. With a visit of eight hours or longer, “I’m
concerned for their emotional well-being and panic issues.” Mother continued:
[E.A.] * * * doesn’t stay away from me for that long. She’s never stayed
away. I don’t have people keep my kids usually overnight. Even people they
see every day. My kids won’t even stay with my mom most of the time
overnight because they don’t want to leave mommy. Like, I mean, [E.A.]
and [K.A.] both – I’ve had both of them curl up in the middle of the night with
me and sleep with me at least once in the last week, both of them, at one
point in time because they have issues being separated from me for so long.
{¶ 8} The girl’s maternal grandmother (“M.G.”) also testified at the hearing. She
said that she saw K.A. and E.A. “a couple times a week.” She stated that K.A. is “not
doing very well” emotionally since her father’s death, and that while E.A. “doesn’t really
understand a lot,” she still “feels the emotion that is there.” M.G. said that E.A. had
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regressed not only in potty training, but also in speech and language. Additionally, E.A.
was “acting out,” “slamming things around,” and “telling her mom when she gets mad that
she hates her.” M.G. did not often see E.A. without Mother present. “She won’t stay with
me because she wants to be with her mommy.” As to K.A., M.G. felt that she was
“confus[ed]” and didn’t fully comprehend her father’s death. K.A. “refuses to do what she’s
told to do by her mom” and “still has issues wetting the bed at night.”
{¶ 9} M.G. expressed concerns about K.A. and E.A.’s going to visit Grandmother
without Mother along. She said that Grandmother had been to their home town only two
or three times, and not at all since E.A. was born. She worried that E.A. “doesn’t know
who [Grandmother] is,” and that K.A. always wants to return home to Mother after only
one night with M.G., even though “she knows me very well” and “stays with me
frequently.”
{¶ 10} On February 5, 2018, the trial court denied Grandmother’s motion for
visitation, finding “that no evidence was presented to demonstrate that it would in the best
interests of the children for the paternal grandmother to have visitation.” Grandmother
appeals from that judgment, asserting one assignment of error:
The trial court erred and abused it’s [sic] discretion in finding that it would
not be in the best interests of the children to allow the paternal grandmother
visitation with the children.
Standard of Review
{¶ 11} A trial court’s decision on visitation involves an exercise of discretion that is
reviewed for an abuse of that discretion. In re A.H. & H.H., 2d Dist. Montgomery No.
26832, 2016-Ohio-1257, ¶ 15, citing Johntonny v. Malliski, 67 Ohio App.3d 709, 714, 588
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N.E.2d 200 (11th Dist.1990). “The term ‘abuse of discretion’ implies ‘that the court’s
attitude is unreasonable, arbitrary or unconscionable.’ ” Id., quoting Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Grandparent Visitation Rights
{¶ 12} A common pleas court may grant visitation to the parent of a minor child’s
deceased parent if: 1) the grandparent files a complaint requesting “reasonable” visitation
rights, and 2) the court finds that granting visitation “is in the best interest of the minor
child.” R.C. 3109.11. In deciding whether to grant visitation to a non-parent, “the court
shall consider all relevant factors, including, but not limited to, the factors set forth in
division (D) of section 3109.051 of the Revised Code.” Id.; see also In re F.D., 2d Dist.
Montgomery No. 23358, 2009-Ohio-4788, ¶ 7.
{¶ 13} R.C. 3109.051(D) sets forth the following factors to be among those
considered:
(1) The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or affinity* * *;
(2) * * * [I]f the person is not a parent, the geographical location of that
person’s residence and the distance between that person’s residence and
the child’s residence;
(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;
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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;
***
(15) In relation to requested companionship or visitation by a person other
than a parent, the wishes and concerns of the child’s parents, as expressed
by them to the court;
(16) Any other factor in the best interest of the child.
{¶ 14} Grandparents who seek visitation rights bear the burden of proving that
visitation would be in the best interest of their minor grandchild. See Harrold v. Collier,
107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 45. Additionally, although not
necessarily determinative, the factor set forth at R.C. 3109.051(D)(15) – i.e., “the wishes
and concerns of the child’s parents” – is entitled to “special weight.” Id. at ¶ 44, citing
Troxel v. Granville, 530 U.S. 57, 70, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see also In
re F.D. at ¶ 7, quoting Harrold, paragraph one of the syllabus (“Ohio courts are obligated
to afford some special weight to the wishes of parents of minor children when considering
petitions for nonparental visitation made pursuant to R.C. 3109.11”). “Special weight” in
that context has been interpreted to mean “extreme deference.” See In re N.C.W., 2014-
Ohio-3381, 17 N.E.3d 119, ¶ 21 (12th Dist.).
{¶ 15} We conclude that Grandmother did not sustain her burden of proving that
visitation on the terms she requested would be in K.A. and E.A.’s best interest. As
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recognized by the United States Supreme Court, fit parents generally are presumed “to
act in the best interests of their children.” Troxel at 68. There is no suggestion that K.A.
and E.A.’s mother is an unfit parent. As such, the wishes and concerns Mother expressed
during her hearing testimony are to be accorded “special weight” among the factors to be
considered in deciding a non-parent’s visitation request. See R.C. 3109.051(D)(15); In re
F.D. at ¶ 6; In re N.C. W. at ¶ 21 (“absent an allegation of parental unfitness, the parents’
determination of their child’s best interest must be afforded ‘special weight’”).
{¶ 16} Moreover, Mother articulated concrete and legitimate bases for the
concerns she expressed regarding Grandmother’s visitation request. Perhaps most
significantly, she was apprehensive about the separation anxiety that manifested after
K.A. and E.A. experienced the trauma of their father’s suicide and K.A. was subjected to
the added trauma of a shooting at her school. The “night terrors” and other symptoms she
described implicate both the “mental health” factor listed at R.C. 3109.051(D)(9) and the
“health and safety” factor listed at R.C. 3109.051(D)(7). In addition, both Mother and M.G.
indicated that K.A. and especially E.A. had limited prior interaction and familiarity with
Grandmother, a relevant consideration under R.C. 3109.051(D)(1). That limited familiarity
heightens the concerns evoked by the girls’ separation anxiety and related emotional
issues, which are further heightened by consideration of K.A. and E.A.’s relatively young
ages. See R.C. 3109.051(D)(4).
{¶ 17} In summary, the trial court did not abuse its discretion in concluding that the
evidence presented at the January 30, 2018 hearing did not demonstrate “that it would
be in the best interests of the children for the paternal grandmother to have visitation.”
Because the trial court did not abuse its discretion in making that determination,
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Grandmother’s assignment of error is overruled.
Conclusion
{¶ 18} For the foregoing reasons, the judgment of the trial court will be affirmed.
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WELBAUM, P. J. and HALL, J., concur.
Copies mailed to:
John C.A. Juergens
Cathy J. Weithman
Hon. Lori L. Reisinger