In re H.P.

2021 Ohio 4446

• Court: Ohio Court of Appeals
• Decided: December 17, 2021
• Docket: L-21-1090
• Status: Published

Opinion

[Cite as In re H.P., 2021-Ohio-4446.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re H.P. Court of Appeals No. L-21-1090

Trial Court No. JC 16255015

DECISION AND JUDGMENT

Decided: December 17, 2021

*****

Christopher S. Clark, for appellant.

MAYLE, J.

I. Introduction

{¶ 1} H.P., the father and appellant herein, appeals a May 10, 2021 judgment by

the Lucas County Court of Common Please, Juvenile Division that denied his request for

parenting time. As set forth below, we affirm. II. Background

{¶ 2} This case originated with the filing of a complaint in dependency and

neglect by Lucas County Children’s Services on April 25, 2016. After months of case-

planning with both parents, the juvenile court awarded legal custody of H.P., Junior

(d.o.b. 07/27/2010 and hereinafter referred to as “H.P. Jr.”) to his maternal aunt and

uncle, H.F. and A.F. The court ordered parenting time for mother “by agreement of the

parties.” With regard to father’s parenting time, the order provided as follows:

Father has [mental health] issues that interfere with his parenting of

child. He says he attends Zepf, but has failed to sign releases to prove he is

receiving treatment. He has not had visitation with child for over a year. *

* * Due to father’s current [mental health] status, no parenting time order

will issue at this time. Should father in the future wish to establish

parenting time, he will need to file a proper motion with this court that

includes documentation from his [mental health] therapist that his [mental

health] issues are addressed and have been stabilized for at least 6 months.”

(Nov. 13, 2017 J.E.).

{¶ 3} At issue in this appeal is father’s November 9, 2020, “Motion to Modify

Parental Rights and Responsibilities,” filed pro se. In response to the motion, a

magistrate ordered father to undergo a urine screen and a home study, to be completed by

LCCS.

2. {¶ 4} A home study could not be conducted because, according to LCCS, father

failed the urine screen (alcohol and diluted creatinine) and because father continued to

refuse treatment, despite “a history of significant and severe mental health diagnosis.”

{¶ 5} Following an evidentiary hearing before a magistrate, father’s motion was

denied. Father filed objections and requested that the trial court order his son, H.P. Jr., be

seen by father’s psychiatrist. The trial court adopted the magistrate’s decision and denied

father’s objections on May 10, 2021.

{¶ 6} Through counsel, father appealed and assigns a single assignment of

error for our review. No other parties entered an appearance in this matter or filed

a brief.

The trial court abused its discretion in denying appellant’s motion to

modify parental rights and responsibilities as the court’s decision is against

the manifest weight of the evidence, as visitation is in the best interest of

the child.

III. Law and Analysis

{¶ 7} As an initial matter, we note that father’s motion appears to have been

incorrectly styled, in that father was not seeking to change a shared parenting plan or to

change the designation of the sole residential parent and legal custodian. Rather, father

sought to modify the trial court’s previous order that denied him parenting time. Indeed,

father testified at hearing that he “just want[ed] visitation so [he] can spend time with

3. [his] son.” Accordingly, we interpret father’s request as a motion to modify parenting

time. Accord In re X.L., 5th Dist. Licking No. 13CA6, 2013-Ohio-2421, ¶ 11.

{¶ 8} When considering a motion for parental visitation, following an adjudication

of dependency under R.C. 2151.353, the juvenile court is required to focus “solely” on

the best interest of the child. In re N.F., 9th Dist. Summit No. No. 29508, 2020-Ohio-

2701, ¶ 20; see also In re J.S., 11th Dist. Lake No. 2011-L-162, 2012-Ohio-4461. In In

re J.S., the court rejected the legal custodian’s argument that a parent seeking visitation

must demonstrate that a “change of circumstances” had occurred. Id. at ¶ 32; accord In

re X.L. at ¶ 12-13 (Trial court commits reversible error by requiring a parent to show a

change in circumstances).

{¶ 9} The best interest factors set forth in R.C. 3109.051 (“Parenting time rights”)

apply in these cases. In re N.F. at ¶ 23.1 The statute provides, in part,

(A) If a divorce, dissolution, legal separation, or annulment

proceeding involves a child and if the court has not issued a shared

parenting decree, the court * * * shall make a just and reasonable order or

decree permitting each parent who is not the residential parent to have

parenting time with the child at the time and under the conditions that the

court directs, unless the court determines that it would not be in the best

1 In his brief, father cites R.C. 3109.04(B)(1), which also contains a “best interest of the child” standard. But, R.C. 3109.04 applies to the issue of legal custody following an adjudication of abuse, neglect or dependency,” not parenting time. In re N.F. at ¶ 22 citing In re A.M., 9th Dist. Summit No. 29388, 2019-Ohio-5221, ¶ 12.

4. interest of the child to permit that parent to have parenting time with the

child and includes in the journal its findings of fact and conclusions of law.

{¶ 10} Although R.C. 3109.051 does not refer to parenting time in proceedings

involving an abused, neglected, or dependent child, “there is no statute that does.” In re

N.F. at ¶ 23. Moreover, R.C. 3109.051 is “the only statute pertaining to parenting time

and has been applied in similar situations to the one before us on appeal.” Id. Thus,

pursuant to R.C. 3109.051(D), the juvenile court was required to consider the following

best interest factors:

(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;

(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 parent’ available time, including, but not limited

to, each parent’s employment schedule, the child’s school schedule, and the

child’s and the parent’ holiday and vacation schedule;

(4) The age of the child;

5. (5) The child’s adjustment to home, school, and community;

(6) If the court has interviewed the child in chambers, pursuant to

division (C) of this section, regarding the wishes and concerns of the child

as to parenting time by the parent who is not the residential parent or

companionship or visitation by the grandparent, relative, or other person

who requested companionship or visitation, as to a specific parenting time

or visitation schedule, or as to other parenting time or visitation matters, the

wishes and concerns of the child, as expressed to the court;

(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;

whether either parent, in a case in which a child has been adjudicated an

6. abused child or a neglected child, previously has been determined to be the

perpetrator of the abusive or neglectful act that is the basis of the

adjudication; and whether there is reason to believe that either parent has

acted in a manner resulting 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; whether the person, in a

case in which a child has been adjudicated an abused child or a neglected

child, previously has been determined to be the perpetrator of the abusive

or neglectful act that is the basis of the adjudication; whether either parent

previously has been convicted of or pleaded guilty to a violation of section

2919.25 of the Revised Code involving a victim who at the time of the

commission of the offense was a member of the family or household that is

the subject of the current proceeding; whether either parent previously has

been convicted of an offense involving a victim who at the time of the

commission of the offense was a member of the family or household that is

the subject of the current proceeding and caused physical harm to the

victim in the commission of the offense; and whether there is reason to

7. believe that the person has acted in a manner resulting 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;

(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.

{¶ 11} We now turn to the juvenile court’s judgment that overruled father’s

objections and adopted the magistrate’s decision to deny his request for parenting time.

Pursuant to Juv.R. 40(D)(4)(d), if timely objections to a magistrate’s decision are filed,

the juvenile court “shall undertake an independent review as to the objected matters to

ascertain that the magistrate has properly determined the factual issues and appropriately

applied the law.” We review a trial court’s decision with respect to visitation under an

abuse of discretion standard. In re J.S. at ¶ 19. This standard requires that the trial

court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or

unconscionable,” because the trial judge is best equipped to determine and weigh the

8. credibility of the proffered testimony. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983).

{¶ 12} In its decision, the juvenile court found,

After reviewing the record, the Court finds Father’s objection

unpersuasive. Indeed, the Magistrate clearly ordered [in 2017] that Father

provide documentation that his mental health issues have been stabilized

for at least six months. Although the court commends Father for providing

evidence that he was recently seen by a psychiatrist, the doctor also noted

that it was only the first time evaluating Father. Accordingly, Father must

continue to be evaluated by his psychiatrist for, at least, another six months

before the Court will allow parenting time between Father and the minor

child. As for psychiatric evaluations for the minor child, custodians [H.F.

and A.F.] may choose to allow the minor child to be seen by Father’s

psychiatrist; however, the Court makes no such order to do so at this time.

Based on the foregoing, Father’s objection is denied.

{¶ 13} On appeal, father argues that the trial court abused its discretion in denying

his request for parenting time. He claims that H.P. Jr.’s best interests would be served by

“allowing [H.P. Jr.] the opportunity to develop a relationship with his natural father and

allow [father] the opportunity to have a relationship with his natural son.” Father points

9. to his “stable income” and the fact that he owns his own home just “four blocks from

[H.P. Jr.]” as factors supporting visitation.

{¶ 14} In applying the best interest factors, the trial court clearly afforded the most

weight to R.C. 3109.051(D)(9), regarding father’s mental health. Given father’s long-

standing history of unaddressed mental health issues, we see no abuse of discretion by the

trial court in placing more weight on that factor than the others. Indeed, a trial court has

discretion in determining which best interest factors are relevant, and “each factor may

not necessarily carry the same weight or have the same relevance, depending upon the

facts before the trial court.” (Quotations and internal citations omitted.) Haldy v.

Hoeffel, 3d Dist. Henry No. 7-19-08, 2020-Ohio-975, ¶ 32. The record also supports the

court’s consideration of R.C. 3109.051(D)(1), regarding father and son’s “prior

interaction and interrelationship.” According to LCCS, H.P. Jr. was “fearful of [father]

and has not had visitation [with him] in several years.”

{¶ 15} The record supports that the trial court considered R.C. 3109.051(D)

through its independent review of the magistrate’s decision. That is, in deciding whether

to grant father’s motion to modify parenting time, the trial court considered whether the

request was appropriate and in H.P. Jr.’s best interest by weighing the relevant statutory

factors under R.C. 3109.051(D). After our review of the record, we cannot say that the

trial court’s balancing of those factors or its application of the weight assigned to each

factor was arbitrary, unreasonable, or unconscionable.

10. IV. Conclusion

{¶ 16} For the reasons expressed above, we find that the juvenile court’s decision

to deny father’s motion was not an abuse of discretion, and therefore we find that father’s

assignment of error is without merit. The May 10, 2021 judgment of the Lucas County

Court of Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24, costs of

this appeal are assessed to father.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

11.