[Cite as In re A.B.,
2016-Ohio-2891.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
A.B., et al. : CASE NO. CA2015-06-104
: OPINION
5/9/2016
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JS2010-1188 and JS2007-0595
Laura L. Hornish, 212 East Court Street, Suite 102, Sidney, Ohio 45365, for appellants G.B.
and C.B.
Am. B., 1883 Harvard Street, Hamilton, Ohio 45015, appellee, pro se
HENDRICKSON, J.
{¶ 1} Appellants, C.B. and G.B., the maternal grandmother and maternal uncle,
respectively, appeal the decisions of the Butler County Court of Common Pleas, Juvenile
Division, terminating their companionship and visitation rights with two minor children. For
the reasons set forth below, we affirm.
{¶ 2} In October 2012, C.B. ("Grandmother") and G.B. ("Uncle") reached an
agreement with appellee, Am.B. ("Mother"), regarding companionship and visitation with
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Mother's two minor children, Ar.B. and P.C.B. Pursuant to this agreement, which was
adopted as a court order, appellants were permitted companionship time with the children
every other weekend and overnight on alternating Thursday evenings. Appellants
consistently visited with the children in accordance with the court's order until early 2013.
{¶ 3} In early 2013, Mother's relationship with appellants deteriorated, and Mother
unilaterally stopped following the terms of the visitation order. On March 31, 2014, appellants
filed a motion to have Mother found in contempt for failing to abide by the visitation order.1
Mother responded by filing motions to terminate appellants' companionship rights. In her
affidavit in support of terminating appellants' visitation rights, Mother averred as follows:
4. [There have been] numerous incidents of extreme concern
and safety issues result[ing] [from] the companionship time my
children had with … [G]randmother and [U]ncle.
5. My family has refused to return the children after their
scheduled time with the children requiring me to obtain police
assistance.
6. Specifically, in January 2013, [Grandmother] locked herself
and the children in the bedroom and would not release them to
me. There have been similar incidents where I have had to
involve the police to have my children returned to me.
7. When I got my phone to call the police, [Uncle] forcibly
grabbed my cell phone from me harming my hand.
8. When I attempted to leave the house to go for help, he
physically shoved me down and stood in front of the door.
9. My children began to come home frightened reporting that
[Grandmother] was going to kill their dad and [paternal
grandmother].
10. The children reported they were so frightened that when
they visited their father, they were afraid to go outside for fear
that their father and [paternal grandmother] would be killed.
11. During the scheduled time for them, [Grandmother] and
1. The motion for contempt was only filed in P.C.B.'s case, Case No. JS2007-0595. Appellants did not file a
corresponding contempt motion in Ar.B.'s case, Case No. JS2010-1188.
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[Uncle] moved and did not notify me and I had no idea where to
get my children and had to threaten to call the police to get the
new address.
12. The children reported after another visit that [Grandmother]
and [Uncle] don't like mommy's boyfriend [C.L.] and he needs to
be killed because he does bad things to kids.
13. The children reported that their [Grandmother] and [Uncle]
reported that [Mother] is bad and that they do not have to listen
to me or do anything that I say.
14. [Grandmother] and [Uncle] admitted calling Children's
[S]ervices on me with no reason, including resulting in an
allegation that my daughter's great-grandmother sexually abused
her that led to my child having to undergo an evaluation at
Children's hospital. This was unsubstantiated.
15. [Grandmother] would come to my child's school and remove
him without my permission outside of the court ordered time.
…
17. Finally, my children have reported that [Grandmother] told
them they would never see me again because she knew people
who lived far away and she would hide my children from me.
18. I am gravely concerned about my children's safety and well
being [sic] if allowed to continue to have contact with
[Grandmother] and [Uncle].
{¶ 4} A hearing on the motions was held before a magistrate on September 17, 2014
and November 26, 2014. At the hearing, the magistrate heard testimony from Grandmother,
Uncle, the principal at P.C.B.'s former school, Mother's boyfriend, a friend of Mother's, and
Mother. The children's biological father was not present and did not participate in the
proceedings.
{¶ 5} Grandmother testified she has lived with Uncle since at least 2012, and they
currently reside in Middletown, Ohio. Grandmother stated she has a loving relationship with
Ar.B. and P.C.B. and the children are bonded to her, Uncle, and Uncle's two children.
Grandmother explained that in 2012, she had regular and frequent contact with the children
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as Mother and the children lived with Grandmother and Uncle for a period of time. During
this time, Grandmother began to develop concerns that Mother was using drugs.
Grandmother stated Mother began acting "very odd" and "had large pupils." Grandmother
admitted, however, she had no prior contact with illegal drugs and she could not say
specifically what type of drugs she suspected Mother of abusing.
{¶ 6} In January 2013, Mother allowed her boyfriend, C.L., to stay at Grandmother
and Uncle's home. After finding some paperwork in a bag C.L. had left in the home,
Grandmother and Uncle discovered C.L. had been convicted in 2007 of attempted unlawful
sexual conduct with a minor and was a registered sex offender. Grandmother claims she
attempted to talk to Mother about C.L.'s offender status, but Mother would not talk about it
other than to say that C.L. "was a sex offender [but] [i]t's okay now." Mother became upset
and decided to leave the residence with the children. Although Mother claims Grandmother
locked herself in a bedroom with Ar.B. and P.C.B. in an effort to prevent Mother from leaving
with the children, Grandmother denies that such events took place. Grandmother does
admit, however, things got heated between the parties and she called the police.
Grandmother was advised by law enforcement to permit Mother to leave with the children,
and Grandmother allowed this to happen.
{¶ 7} Grandmother testified she does not have any animosity towards Mother, but
admitted on cross-examination that Ar.B. and P.C.B. have been exposed to "police
involvement" due to issues between her and Mother on at least three occasions.
Grandmother explained she brought the police with her when she came for visitation with the
children at Mother's house because C.L. was present. Grandmother also stated she called
the police "at least a couple of times" to ask them to do well-being checks on the children
while the children were with Mother. The well-being checks did not result in the children
being removed from Mother's custody.
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{¶ 8} Grandmother also admitted she had called Butler County Children Services
"multiple times" since 2006, regarding Mother's care of the children. In November 2010,
Grandmother made allegations of neglect and physical abuse of both Ar.B. and P.C.B.
These allegations were found to be unsubstantiated by children services. In February 2013,
Grandmother made allegations that Ar.B. was being sexually abused by her paternal great-
grandmother. Ar.B. was evaluated at the Mayerson Clinic, and the claims were also found to
be unsubstantiated.
{¶ 9} Grandmother testified about problems that have occurred in exchanging Ar.B.
and P.C.B. for visitation. For a while, Grandmother and Uncle would pick the children up
from school for their visitation. On one occasion, Grandmother picked the children up from
school when it was not her day for visitation, which resulted in Mother contacting the police.
The police were also contacted when Mother attempted to pick up the children from
Grandmother's and Uncle's home on the Saturday before Easter in March 2013. Although
Mother was entitled to have the children for the Easter holiday, Grandmother did not want to
allow Mother to take the children because it was "really late at night." The children ultimately
stayed overnight with Grandmother and Uncle.
{¶ 10} On cross-examination, Grandmother denied the allegations set forth in Mother's
affidavit in support of terminating appellants' companionship and visitation rights.
Grandmother stated she has never told the children that "Mother is bad" and they do not
need to listen to her. She also denied telling the children she would kill their dad and
paternal grandmother or that Mother's boyfriend needed to be killed because he "does bad
things to kids."
{¶ 11} Uncle testified that he, Grandmother, and his two children are bonded with
Ar.B. and P.C.B. He stated his children have a "typical brother-sister relationship" with Ar.B.
and P.C.B., and Grandmother has a "mother-child" relationship with the children. Although
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he admitted to having a troubled relationship with Mother, Uncle denied that either he or
Grandmother have threatened to harm Mother or Mother's boyfriend. He also claimed
Mother has never expressed any concerns over P.C.B. or Ar.B. being left in his or
Grandmother's care.
{¶ 12} Uncle testified that when the October 2012 visitation order first went into effect,
he and Grandmother were able to see Ar.B. and P.C.B. regularly. In fact, Mother and the
children lived with Uncle from the end of October 2012 until January 2013. However, in
January 2013, after Uncle found some paperwork in a bag belonging to C.L. that indicated
C.L. was a convicted sex offender, Mother moved out of the home and began to limit Uncle's
and Grandmother's time with the children.
{¶ 13} After Uncle found out about C.L.'s status as a sex offender, he and Mother got
into an argument because Uncle refused to allow C.L. to stay in his home. Uncle explained
he could not have a convicted felon staying at his home as it would interfere with his job as a
paramedic with a local fire department and the Butler County Sheriff's Office. Uncle testified
that during the course of this argument, Mother got angry and threw her phone at him before
leaving the home with Ar.B. and P.C.B. Uncle denied forcibly taking the phone away from
Mother in an effort to try to prevent her from leaving with the children or to stop her from
calling the police.
{¶ 14} Following this event, appellants continued to see the children. During one of
the time periods where appellants had visitation, they moved residences. Although Mother
denied being told where appellants had moved, Uncle claimed Mother knew where they and
the children were staying as Mother had asked if she and C.L. could stay there too. Uncle
claimed he told Mother she could stay at the new residence, but C.L. was not permitted at
the home.
{¶ 15} Uncle testified his and Grandmother's visitation with P.C.B. and Ar.B. was
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temporarily suspended near the end of February 2013, after Mother obtained a domestic
violence civil protection order based on the argument that had ensued in January 2013 over
C.L.'s sex offender status. Uncle explained the protection order was later dismissed and
visitations resumed for a "short period of time." However, after Mother was not allowed to
pick the children up from Uncle's on the Saturday before Easter, Mother stopped allowing
visitation. With respect to the Easter incident, Uncle testified that when Mother attempted to
pick up the children at 6:00 p.m. the day before Easter, he and Grandmother did not allow
the children to go with Mother because they believed it was still their visitation time pursuant
to the court's October 2012 order. Uncle testified Mother was very upset that she was not
allowed to take the children and the police were called to Uncle's home to deal with the
dispute. The children ultimately ended up staying with appellants overnight.
{¶ 16} After the Easter incident, Mother stopped permitting appellants visitation.
Mother would not allow Grandmother or Uncle to pick the children up from school, and
Mother stopped responding to their texts and phone calls. Uncle claimed he did not know
where Mother was staying so he was unable to pick the children up from Mother's residence.
{¶ 17} Although Mother ended appellants' visitations with the children after the Easter
incident, Grandmother and Uncle tried to maintain contact with the children by stopping by
the children's school. Grandmother and Uncle went to P.C.B.'s school on P.C.B.'s birthday
and had him pulled out of class so they could visit with him and give him presents.
Appellants also continued to try and pick the children up at the end of the school day. On
one occasion, Uncle encountered C.L., who was also trying to pick the children up from
school. Uncle did not allow the children to leave with C.L. On another occasion,
Grandmother and Uncle arrived at the school and took the kids home with them even though
it was not their day for visitation. After the police were contacted, the children were
eventually returned to Mother later that evening.
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{¶ 18} Testimony about appellants' interaction with the children was offered by Jeffrey
Banks, P.C.B.'s former principal. Banks testified that P.C.B. had attended the Babeck Early
Childhood Center in the Edgewood School District in 2012 and 2013 for kindergarten and
first grade. Banks explained that when P.C.B. was in kindergarten, Uncle and Grandmother
would pick P.C.B. up from school "regularly." However, once P.C.B. started first grade, it "got
sporadic" as there were issues with appellants picking up P.C.B. from school. The school
had allowed P.C.B. to be released to Grandmother on a Thursday that was not her visitation
day, which upset Mother and resulted in the police being called. Mother eventually removed
appellants from P.C.B.'s emergency contact forms, which meant the school could no longer
release P.C.B. to Grandmother or Uncle at the end of the day. However, even though
Grandmother and Uncle were no longer authorized to pick up P.C.B. from school, the
principal allowed Grandmother and Uncle to come to P.C.B.'s school so that they could bring
P.C.B. birthday presents. P.C.B. was pulled out of class to receive the presents from
appellants. According to Banks, P.C.B. "lit up" when he saw Grandmother at the school.
{¶ 19} Following appellants' visit with P.C.B. at the school, Mother contacted Banks to
express her displeasure with the school allowing Grandmother and Uncle contact with P.C.B.
Thereafter, P.C.B.'s attendance records significantly declined. While in first grade, P.C.B.
had 33 absences, tardies, or early releases before Mother ultimately removed him from the
school district in December 2013.
{¶ 20} Mother testified at the hearing that she believed it was in the children's best
interest to terminate visitation with appellants as appellants have interfered with her parenting
of the children, caused stress to the children, exposed the children to arguments and police
involvement on numerous occasions, and caused children services to conduct investigations
for unsubstantiated claims of neglect, physical abuse, and sexual abuse. Although Mother
testified it was important for her children to know their family, and she conceded it might be
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appropriate for Uncle to "one day" resume visitation with the children, Mother was quite
adamant that Grandmother should not have visitation with Ar.B. and P.C.B. According to
Mother, the children are happier when they do not have visitation with appellants.
{¶ 21} Mother explained she has always had a strained relationship with Grandmother
and, to a lesser extent, Uncle. Mother felt harassed by Grandmother's decisions to contact
children services and the police department to conduct well-being checks on the children.
Mother also felt harassed by Grandmother's conduct of constantly driving by Mother's work-
place and calling her at work. Mother explained she has worked at a gas station
convenience store for eight years, and Grandmother started calling the store so often that it
became disruptive. Grandmother would call and ask for Mother's work schedule and would
"cuss-out" Mother's co-workers when they would not share the information with Grandmother.
Eventually, Mother's boss had to ask Grandmother to stop calling.
{¶ 22} The January 2013 incident also created a strain on Mother's relationship with
Grandmother and Uncle. Mother testified appellants angrily approached her after finding
documents related to C.L.'s status as a sex offender. Mother claimed neither Grandmother
nor Uncle would let her explain the details of C.L.'s conviction. Rather than continue to fight
with them, Mother decided to take P.C.B. and Ar.B. and leave Uncle's home. However,
Grandmother and Uncle would not let the children leave with Mother as they did not want the
children around C.L. When Mother threatened to contact the police, Uncle knocked her cell
phone out of her hand. He also pushed Mother down and blocked her exit out of the home
when she threatened to go next door to call the police from a neighbor's house. While all of
this was happening, Mother reported the children got "hysterical" as they "didn't know what to
do." Grandmother locked the children in a bedroom with her so that Mother could not leave
with the children. Eventually, after the police were called, Mother was permitted to leave with
the children. About a month after this event took place, Mother obtained domestic violence
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civil protection orders against Grandmother and Uncle. The protection orders were later
dismissed.
{¶ 23} Mother testified she often felt like Grandmother and Uncle interfered with her
time with the children. When Mother was supposed to have the children on Easter,
appellants refused to abide by the terms of the visitation agreement and would not allow the
children to leave with her. As a result of appellants' actions, Mother did not get to celebrate
the holiday with her children on Easter morning.
{¶ 24} Appellants also interfered with Mother's parenting by challenging Mother's
decisions to allow certain family members and friends around the children. Appellants began
to make inappropriate statements to the children about the individuals whom appellants did
not believe should be a part of the children's lives. With respect to Mother's decision to
introduce C.L. into the children's lives, Mother testified she began dating C.L. with knowledge
of his conviction for attempted unlawful sexual conduct with a minor. Mother explained she
knew the victim from C.L.'s conviction, and Mother was comfortable with the children being
around C.L. In fact, Mother testified C.L. had a great relationship with P.C.B. and Ar.B.
According to Mother, C.L. is "like a father to them." C.L. currently lives with Mother, and the
two have a daughter together and another child on the way.
{¶ 25} Given Mother's close relationship with C.L., she is particularly troubled by
Grandmother's and Uncle's statements to the children that C.L. needs to be killed because
he "does bad things to kids" and is "going to do stuff to them." Mother is also troubled by
Grandmother's statements to Ar.B. and P.C.B. that she will kill their biological father and
paternal grandmother and that the children do not need to listen to Mother. Mother also
expressed concerns about Grandmother's threats to take Ar.B. and P.C.B. and leave the
state so that Mother cannot see them anymore.
{¶ 26} Because of Grandmother's and Uncle's statements and actions, Mother ended
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their visitation with the children after Easter 2013. Mother testified she removed
Grandmother and Uncle from school forms so that they could no longer pick the children up
from school. When Grandmother and Uncle continued to try to have contact with the children
at school, and even visited P.C.B. at school in the middle of the day, Mother began to
remove the children from school early. Mother explained this resulted in P.C.B. having a
number of early releases before she decided to remove P.C.B. from the school altogether.
P.C.B. has been enrolled in a new school in Fairfield, and he has been doing very well.
Mother introduced P.C.B.'s progress report card from his new school, which demonstrated
P.C.B. was doing satisfactory work in nearly all school subjects. Mother also introduced into
evidence a certificate from Ar.B.'s school which shows that she was the student of the month
in September 2014.
{¶ 27} C.L. testified at the hearing about his felony convictions and his interactions
with appellants. C.L. explained that in October 2007, he pled guilty to attempted unlawful
sexual conduct with a minor, a fifth-degree felony. As a result of this plea, C.L. became a
sexually oriented offender who was required to register his address. In January 2014, C.L.
was convicted of failing to provide notice of his change of address, a fifth-degree felony, and
he was placed on community control for five years. With respect to his 2007 conviction, C.L.
explained that he permitted a 15 or 16-year-old girl, who claimed to be 18 years old, to stay
over at his house. C.L. testified there had been "no force or un-consensual" activity between
himself and the minor girl. With respect to the 2014 conviction, C.L. testified he was
convicted for failing to notify the proper authorities that he was staying so frequently at
Mother's home. C.L. explained Mother was pregnant with their daughter at the time and was
working late hours, so he started staying at Mother's house to watch P.C.B. and Ar.B. C.L.
did not realize he needed to report Mother's address to law enforcement at this time.
{¶ 28} C.L. testified he has a good relationship with P.C.B. and Ar.B. C.L. often plays
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games with the children and helps them with homework. He explained he and Mother try to
keep the children in a set routine and visits with appellants often upset that routine.
According to C.L., P.C.B. and Ar.B. act differently when they come home from visitations with
Grandmother and Uncle. The children are angry and have behavioral problems for a while
until they get readjusted.
{¶ 29} C.L. testified that with respect to exchanging P.C.B. and Ar.B. for visitation with
appellants, "it's [been] nothing but problems." Whenever Grandmother encountered C.L. she
would make a slashing gesture across her neck. On one occasion, Grandmother attempted
to yank open C.L.'s car door and forcibly remove the children from his vehicle. On another
occasion, Grandmother entered C.L. and Mother's home uninvited and unannounced. C.L.
found Grandmother standing in the middle of the home after he got out of the shower. C.L.
stated no one had invited Grandmother to enter the home, and Grandmother's unauthorized
entry into the home resulted in him calling the police. C.L. could not recall if the date of this
incident aligned with one of the days Grandmother was supposed to have visitation with the
children.
{¶ 30} One of Mother's friends and co-workers at the convenience store also testified
at the hearing. This friend testified Mother has a "wonderful" and loving relationship with
Ar.B. and P.C.B and the children are bonded with C.L. The friend has overheard Ar.B. call
C.L. "dad" on occasion. The friend has been present to witness some of Mother's difficulties
in interacting with appellants. The friend testified that while she and Mother were working
together, Grandmother called the store "several times a day," and the calls became so
harassing that Grandmother was told not to call the store anymore. The friend was also
present when Mother had to leave work early to get her children from Grandmother and
Uncle because they refused to drop the children off with C.L.
{¶ 31} On December 26, 2014, after taking the foregoing testimony and evidence into
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consideration, the magistrate rendered opinions denying appellants' motion for contempt and
granting Mother's motions to terminate appellants' companionship rights. In terminating
appellants' companionship and visitation with the children, the court stated the following:
This Court's primary consideration is the best interest of the
child. When weighing all the factors, this court must also give
special weight and deference to the wishes of a fit parent. There
is no evidence in this Case that Mother is an unfit parent. Thus,
the Court finds that Mother's desire to terminate Maternal
Grandmother's and Uncle's current visitation order must be given
special weight by this Court. The Grandmother and Uncle have
the burden of proof that companion/visitation with them is in the
children's best interest.
The factor[s] weighing in favor of the Grandmother's and Uncle's
include the following: the Grandmother and Uncle were
previously a significant part of these children's lives and that
interaction was sometimes beneficial to the children. Until early
2013, both were actively involved in the children's lives and that
as a result of this interaction, they developed a close bond to
these children.
The remaining factors appear to weigh in Mother's favor. Most
importantly among them, are Mother's wishes and concern
related to the health and safety of the children. She believes
strongly that the conduct of Grandmother and Uncle is harmful to
the children. The court finds that Grandmother and Uncle have
failed to provide sufficient evidence that Mother's concerns
related to the children's physical, emotional and psychological
wellbeing are not rational and reasonable. When giving Mother's
wishes the appropriate elevated weight, the Court finds that
those wishes and her concerns outweigh the other best interest
factors which weighed in Grandmother's and Uncle's favor.
When weighing all the factors as required by law, the Court finds
that Grandmother and Uncle have failed to meet the burden of
proof regarding the best interest of these children, and that as a
result, their visits should be terminated.
{¶ 32} Appellants filed objections to the magistrate's decisions, arguing that Mother
"falsified testimony against [them] and the court system." On May 4, 2015, the juvenile court
overruled the objections and adopted the magistrate's decisions terminating companionship
and visitation.
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{¶ 33} Appellants timely appealed, raising two assignments of error. For ease of
discussion, we will address the assignments of error together.
{¶ 34} Assignment of Error No. 1:
{¶ 35} THE TRIAL COURT FAILED TO REVIEW THE COMPELLING REASONS AND
CIRCUMSTANCES THAT WOULD ALLOW THEM TO DISREGARD THE "SPECIAL
WEIGHT" GIVEN TO [MOTHER'S] WISHES REGARDING COMPANIONSHIP OF THE
CHILDREN WITH THE APPELLANTS.
{¶ 36} Assignment of Error No. 2:
{¶ 37} WHILE "SPECIAL WEIGHT" IS GIVEN TO A PARENT'S WISHES FOR
COMPANIONSHIP RIGHTS TO A NONPARENT, THE TRIAL COURT FAILED TO REVIEW
THAT APPELLANTS HAD SUCCESSFULLY REBUTTED THE PRESUMPTION THAT
[MOTHER] … ACTED IN THE CHILDREN'S BEST INTEREST, THEREFORE IT WAS IN
THE CHILDREN'S BEST INTEREST THAT THEY HAVE COMPANIONSHIP TIME WITH
THE APPELLANTS.
{¶ 38} Appellants argue the juvenile court's decision to terminate their companionship
with Ar.B. and P.C.B. was not in the children's best interest. They contend that "[t]he
potential harm of the children is a compelling interest that outweighs the 'special weight'
given to [Mother's] wishes," and further argue that visitation is necessary so that they can
"monitor to make sure the children are safe."
{¶ 39} It is well-established that a parent has a fundamental right to make decisions
regarding the care, custody, and control of her children. Troxel v. Granville, 530 U.S. 57, 66,
120 S.Ct. 2054 (2000); In re N.C.W., 12th Dist. Butler No. CA2013-12-229,
2014-Ohio-3381,
¶ 18. By contrast, grandparents and other nonparent relatives have no constitutional right of
association with the children. In re Martin,
68 Ohio St.3d 250, 252 (1994). Grandparents
and other nonparent relatives, therefore, may only be granted visitation rights as provided by
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statute. See id. at 252. "Given that a fit parent has a fundamental right to parent whereas
the nonparent has only a statutory right to request visitation, the nonparent advocating
visitation has the burden to prove that visitation will be in the child's best interest." (Emphasis
sic.) In re N.C.W. at ¶ 25. "The standards of legal review 'are not different for reviewing a
motion for termination of grandparents' [or nonparents'] visitation as they are for reviewing an
original complaint for establishment of grandparents' [or nonparents'] visitation.'" Id. at ¶ 19,
quoting In re Kaiser, 7th Dist. Columbiana No.
04 CO 9,
2004-Ohio-7208, ¶ 48. An appellate
court, therefore, will not reverse a trial court's decision to terminate or continue visitation
absent an abuse of discretion. Id. at ¶ 20, citing In re S.K.G., 12th Dist. Clermont No.
CA2008-11-105,
2009-Ohio-4673, ¶ 21. An abuse of discretion is more than an error of law
or judgment; it requires a finding that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶ 40} R.C. 3109.12(A) provides, in relevant part, that "[i]f a child is born to an
unmarried woman, the parents of the woman and any relative of the woman may file a
complaint requesting the court of common pleas of the county in which the child resides to
grant them reasonable companionship or visitation rights with the child." A trial court may
grant companionship or visitation to the nonparent relative only if it determines that such
visitation is in the best interest of the child. R.C. 3109.12(B). In determining whether to grant
visitation rights to a nonparent relative, the trial court is required to consider all relevant
factors, including the factors listed in R.C. 3109.051(D). See In re N.C.W., 2014-Ohio-3381
at ¶ 20; In re E.T.B., 12th Dist. Clermont No. CA2014-07-051,
2015-Ohio-2991, ¶ 29. These
factors include the following:
(1) The prior interaction and interrelationships of the child with
the child's parents, siblings, and other persons related by
consanguinity or affinity, and with the person who requested
companionship or visitation if that person is not a parent, sibling,
or relative of the child;
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(2) The geographical location of the residence of each parent
and the distance between those residences, and if 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;
(6) If the court has interviewed the child in chambers, … the
wishes and concerns of the child as to … companionship or
visitation by the grandparent, relative, or other person who
requested companionship or visitation …;
(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, and
with respect to a person who requested companionship or
visitation, the willingness of that person to reschedule missed
visitation;
(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 …;
(12) In relation to requested companionship or visitation by a
person other than a parent, whether the person 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 …;
(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;
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(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
(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.
R.C. 3109.051(D).
{¶ 41} Of particular importance in this case is the factor that requires a trial court to
consider "the wishes and concerns of the child's parents." R.C. 3109.051(D)(15). There is a
presumption that "fit parents act in the best interests of their children." Troxel, 530 U.S. at
68. See also Harrold v. Collier,
107 Ohio St.3d 44,
2005-Ohio-5334, ¶ 44. "Absent an
allegation of parental unfitness, the parents' determination of their child's best interest must
be afforded 'special weight.'" In re E.T.B.,
2015-Ohio-2991 at ¶ 30, citing
Troxel at 69. See
also Harrold at ¶ 12 ("Ohio courts are obligated to afford some special weight to the wishes
of parents of minor children when considering petitions for nonparental visitation").
Therefore, "a fit parent's decision regarding visitation should be afforded great deference." In
re E.T.B. at ¶ 30, citing In re J.T.S., 12th Dist. Preble No. CA 2014-09-009, 2014-Ohio-364, ¶
26.
{¶ 42} Under Ohio's nonparental visitation statutes, a trial court "afford[s] parental
decisions the requisite special weight … [and] take[s] into … consideration the best
interest of the child and balance[s] that interest against the parent's desires." Harrold at ¶ 43.
In determining whether it is in the children's best interest to grant nonparental visitation, the
parents' expressed wishes and concerns must be weighed against the other factors listed
under R.C. 3109.051(D). In re E.T.B. at ¶ 31, citing Celek v. Celek, 1st Dist. Hamilton No. C-
08117, 2009-Ohio-4990, ¶ 10.
{¶ 43} After reviewing the record, we find no error in the juvenile court's decision to
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grant Mother's motions to terminate appellants' visitation with Ar.B. and P.C.B. The juvenile
court evaluated the relevant statutory factors under R.C. 3109.051(D), acknowledged
Mother's concerns and wishes about continuing visitation with appellants, and gave special
weight to her wishes. Although there was evidence presented that Grandmother and Uncle
are bonded with P.C.B. and Ar.B. and were actively involved in their lives, consideration of
the best interest factors demonstrates it is not in the children's best interest for visitation to
continue.
{¶ 44} Appellants' actions have exposed Ar.B. and P.C.B. to verbal arguments,
physical altercations, and police involvement on a number of occasions. As the juvenile court
noted, one particularly concerning event took place in January 2013, when appellants
refused to allow Mother to leave Uncle's home with her children. The children were present
when a fight ensued between the parties and the police arrived to handle the dispute. The
children were also exposed to police involvement when appellants picked the children up
from school on a nonvisitation day and when appellants refused to return the children to
Mother on Easter weekend 2013.
{¶ 45} Appellants' actions not only exposed the children to police involvement, but
their actions significantly interfered with Mother's parenting of the children and caused
Mother grave concern. Appellants made statements to Ar.B. and P.C.B. that Mother is a
"bad" parent and they do not need to listen to her. Grandmother also made inappropriate
statements to the children about Mother's decisions to allow C.L., the children's biological
father, and paternal grandmother around the children. The children were disturbed by
Grandmother's threats to harm these individuals. Grandmother's threats to take the children
and move to another state were also particularly worrisome to Mother.
{¶ 46} Although appellants expressed concern about the children's safety when the
children are with Mother and C.L., there was no evidence presented establishing that Mother
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was unfit to care for her children or to make decisions about whom to allow around her
children. As the juvenile court noted, "there was no evidence provided … substantiating
Mother's alleged drug abuse" and there was no merit found to the neglect and abuse
allegations levied by Grandmother. Neither children services nor the police were ever able to
substantiate claims of abuse when conducting well-being checks on the children.
{¶ 47} Further, with respect to Mother's decision to allow C.L. around the children, the
juvenile court stated the following:
Mother does not believe there is any harm for [C.L.] to be with
the children. She testified she knows the victim in [C.L.'s] case
and that the victim was a teenager and [C.L.] was barely an adult
at the time of the offense. According to Mother, the sexual
encounter between [C.L.] and the victim was consensual. The
Court notes that the conviction is seven years old and there is no
evidence that [C.L.] has committed another offense of similar
import. Mother is in the best position to determine whether her
children should be around [C.L.].
…
The Court finds that the children are safe in Mother's care and
her relationship with [C.L.] does not affect the health or safety of
the children.
(Emphasis added.)
{¶ 48} We agree with the juvenile court's finding that it is appropriate for Mother to
determine whether C.L. should be allowed around her children. Based upon the evidence
presented at the hearing, there is no indication C.L. poses a threat of harm to the children.
Rather, from the testimony presented, it is apparent that P.C.B. and Ar.B. have benefited
from their relationship with C.L. as he has taken on a father-like role in the children's lives.
Appellants' fear of "potential harm" to the children is not a sufficient justification for
appellants' interference in Mother's parenting of Ar.B. and P.C.B.
{¶ 49} Given the foregoing, we find that the juvenile court did not abuse its discretion
in terminating appellants' companionship and visitation with the children. The record
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demonstrates the juvenile court gave Mother's serious and legitimate concerns about
continuing visitation with appellants the appropriate special weight in determining that
continued companionship and visitation was not in the children's best interest.
{¶ 50} Appellants' first and second assignments of error are, therefore, overruled.
{¶ 51} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
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