In re A.J.

2024 Ohio 1836

Opinion

[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adjudicated dependent; the neglect allegation was withdrawn.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

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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.

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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,

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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-

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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

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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,

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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.

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