In re Erica

640 N.E.2d 623, 65 Ohio Misc. 2d 17, 1994 Ohio Misc. LEXIS 20
CourtCuyahoga County Common Pleas Court
DecidedJuly 11, 1994
DocketNo. 9406851
StatusPublished
Cited by6 cases

This text of 640 N.E.2d 623 (In re Erica) is published on Counsel Stack Legal Research, covering Cuyahoga County Common Pleas Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Erica, 640 N.E.2d 623, 65 Ohio Misc. 2d 17, 1994 Ohio Misc. LEXIS 20 (Ohio Super. Ct. 1994).

Opinion

Kenneth A. Rocco, Judge.

I. INTRODUCTION

The child in this matter, Erica, who is two years old, was determined by this court to be a dependent child on June 6, 1994, and temporary custody was granted to the Cuyahoga County Department of Children and Family Services (hereinafter referred to as “CFS”). Erica’s mother was murdered on April 12, 1994. Erica’s father, Eric, was arrested on April 25, and has since been charged with the aggravated murder of Erica’s mother. Facing the death penalty, Eric is currently being held in the county jail without bond. Eric requests that this court grant his motion for visitation with Erica, and order that she visit him in jail while he awaits trial. This court’s decision regarding this matter should be considered an interim one, pending the outcome of Eric’s trial. Should he be acquitted, this court anticipates that CFS would terminate Erica’s custody to him. Alternatively, this court expects that CFS would seek permanent custody of Erica if he is found guilty of aggravated murder or murder. See In re Henderson (1986), 30 Ohio App.3d 187, 30 OBR 329, 507 N.E.2d 418 (holding that a father’s lengthy term of imprisonment following the murder of the child’s mother was sufficient to justify the termination of his parental rights). Indeed, this court is mindful of a recent Pennsylvania Superior Court decision, holding that the father’s conviction for first-degree murder of the child’s mother was alone evidence of severe mental or moral deficiencies, sufficient to justify denial of visitation. Green v. Sneeringer (1993), 431 Pa.Super. 66, 635 A.2d 1074. In Green, the court stated, “Barring criminal acts committed upon the child, we can think of no action in which a parent could engage posing a graver threat to a child’s welfare than killing the other parent. In one grim swoop, the father has deprived his child of both parents’ guidance and support.” Id., 431 Pa.Super. at 71, 635 A.2d at 1077.

Erica has not seen her father since his arrest. She has been living with her maternal grandparents, where she will remain. Visitation would necessarily take place in the jail visiting room. Eric argues that he has not yet been convicted of his wife’s murder, and, as an innocent man, he should not be denied visitation with his daughter. Finally, he argues that it would be in Erica’s best interest to visit him. There is no denying, however, that Eric’s current incarceration is [19]*19based on a legal determination that there is probable cause to believe he is responsible for the aggravated murder of Erica’s mother.

II. DISCUSSION

Initially, Eric bases his argument on well-established Ohio law that a parent’s right of visitation with his child is a natural right, and although not absolute, should be denied only under extraordinary circumstances. Pettry v. Pettry (1984), 20 Ohio App.3d 350, 352, 20 OBR 454, 456, 486 N.E.2d 213, 215. Eric argues that his incarceration, while he awaits trial for the murder of his wife and Erica’s mother, should not be considered sufficiently extraordinary to require the suspension of his right to visitation with his daughter, and that visitation with him in jail is in Erica’s best interest.

A. Visitation With An Incarcerated Parent Is Presumptively Not In The Child’s Best Interest, And The Incarcerated Parent Bears The Burden Of Proving That The Visitation Is In The Child’s Best Interest.

Beyond the general statement concerning the nature of the parent-child relationship, Eric claims that his position is further supported by the decision in In re Hall (1989), 65 Ohio App.3d 88, 582 N.E.2d 1055. In re Hall is the only Ohio case which addresses the issue of a child’s visitation with a parent who is incarcerated. However, the holding in In re Hall does not support Eric’s position. In his brief in support of his motion for visitation, Eric states that In re Hall concluded that the burden of proof to show that visitation with the incarcerated parent is not in the child’s best interest rests on the party opposing the visitation. This is not the holding of In re Hall. In fact, In re Hall explicitly states that a young child’s visitation with an incarcerated parent “gives rise to an inference of harm to such child so that such visitation is not in the child’s best interest,” and that “such inference should not be drawn only if the incarcerated noncustodial parent offers evidence demonstrating that, under the circumstances involved, visitation with the noncustodial parent at the place of imprisonment will not be harmful to the child but, instead, will be in the child’s best interest.” 65 Ohio App.3d at 91, 582 N.E.2d at 1057. Eric bears the burden of proof to show that it is in Erica’s best interest to visit him in jail.

As Eric points out, the father in In re Hall had already been convicted and was imprisoned for a term of years. However, the rationale of the case does not require that its holding be limited to those instances where the parent has already been convicted, as the key to the holding is the place of visitation. Moreover, the In re Hall opinion does not indicate whether circumstances as extreme as those present in this case, where the father is accused of murdering the child’s mother, were present, and does not reveal the age of the child [20]*20involved. As will be explained further below, Erica’s extremely young age, and the circumstances which would necessarily encumber a visit at the jail, make it clear to this court that visitation with her father, while he is incarcerated, is not in her best interest.

Eric has presented no evidence to refute this presumption. While there is some evidence that he has been actively involved in caring for Erica in the past, this is not sufficient to overcome the presumption that visiting him in jail would not be in Erica’s best interest.

B. The Trial Court Has Broad Discretion In Determining The Best Interests Of The Child.

Eric also cites Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, in support of his request for visitation. The Malliski court held that the standard of proof for contesting visitation is clear and convincing evidence. This reliance is misplaced, as both Malliski, and Pettry v, Pettry, the case on which its holding is based, raise domestic relations issues. Although it is true that the holding of both these cases is that the party contesting visitation privileges bears the burden of proof, domestic relations courts play an entirely different role in resolving the issues of visitation arising in the context of divorce than does this court in this matter. Where neither parent has previously been found to be unfit, and CFS is uninvolved, the party contesting visitation may accurately be said to bear the burden of proof. However, because the juvenile court operates under the doctrine of parens patriae, it has been vested with broad discretion by the state in determining the best interests of the child. The holdings of Malliski and Pettry are simply irrelevant to this decision.

C.

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Cite This Page — Counsel Stack

Bluebook (online)
640 N.E.2d 623, 65 Ohio Misc. 2d 17, 1994 Ohio Misc. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-erica-ohctcomplcuyaho-1994.