[Cite as In re L.A., 2013-Ohio-5757.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
IN THE MATTER OF: L.A. :
: C.A. CASE NO. 2013 CA 33
: T.C. NO. 13JC11
: (Civil appeal from Common Pleas Court, Juvenile Division) :
..........
OPINION
Rendered on the 27th day of December, 2013.
CASSIE L. SCRENGI, Atty. Reg. No. 0084895, 130 W. Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Appellant, Mother
RICHARD A. MEYER, Atty. Reg. No. 0032921, One Monument Square, Suite 200, Urbana, Ohio 43078 Attorney for Appellee, Paternal Grandmother
JANE NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Appellee Champaign County Department of Job & Family
KIRK ELLIS, Atty. Reg. No. 0055275, 121 S. Main Street, Urbana, Ohio 43078 Attorney for Appellee, Father
REBEKAH S. NEUHERZ, Atty. Reg. No. 0072093, 121 S. Main Street, Urbana, Ohio 43078 Guardian Ad Litem 2
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of the mother of L.A.
(“Mother”), filed July 25, 2013. Mother appeals from the July 3, 2013 decision of the juvenile
court that determined that it is in L.A.’s best interest to remain in the legal custody of Mother;
denied parenting time to L.A.’s father (“Father”); granted visitation to L.A.’s paternal
grandmother (“K.W.”); and granted protective supervision to the Champaign County Department
of Job and Family Services (“CCDJFS”). L.A.’s date of birth is May 8, 2009.
{¶ 2} On February 20, 2013, CCDJFS filed a Complaint alleging that L.A. was the
victim of “sexual activity.” The Complaint alleged that CCDJFS received a report of abuse on
February 6, 2013, and that L.A. was interviewed at Nationwide Children’s Hospital Child
Assessment Center, in Columbus, on February 12, 2013, based upon CCDJFS’s prior experience
with L.A.’s family. According to the Complaint, L.A. disclosed sexual abuse by Father in the
course of the interview, and L.A.’s physical examination revealed no signs of trauma. CCDJFS
requested that Father’s visitation with L.A. be suspended.
{¶ 3} Regarding CCDJFS’s prior history with L.A., the Complaint alleged that on
August 22, 2011, the agency received a report of sexual abuse involving L.A. and an unknown
perpetrator. The Complaint provides that Mother took L.A. to Dayton Children’s Medical
Center (“DCMC”) on August 21, 2011 “due to the child’s vagina being red and swollen and the
Child having a rash on the vaginal area and because the Child was not acting normally. It was
reported the child was putting her finger in her vagina during the exam. DCMC stated concerns
that the Child ‘did not protect’ during the physical exam and lay with legs open.” According to 3
the Complaint, Mother reported that L.A. was with Father prior to the examination. The
Complaint further alleged that CCDJFS was unable to interview L.A. at the time due to L.A’s
“limited verbal skills.” Subsequent examinations of L.A. were normal, and “[u]pon completion
of CCDJFS’ investigation the report was unsubstantiated.”
{¶ 4} Additionally, the Complaint provides that CCDJFS received a report of sexual
abuse on June 6, 2012 involving L.A. and Father, in which L.A. told Mother that Father
“‘touched pee pee,’” and “‘pee pee hurt.’” According to the Complaint, in the course of an
attempted interview with L.A., the child repeatedly left the interview room to join Mother in
another room and did not disclose sexual abuse by Father. The Complaint provides that the
reported abuse was unsubstantiated.
{¶ 5} The Complaint alleges that Father contacted CCDJFS after learning of the June,
2010 investigation and denied touching L.A. The Complaint alleges that Father reported that
K.W. and another adult were always present to supervise his visitations with L.A., and that L.A.
told him that Mother “says those things” that were in the report. CCDJFS sought to have L.A.
adjudicated an abused/dependent child and requested protective supervision of L.A.
{¶ 6} On February 15, 2013, the Juvenile Court issued an ex parte order suspending
Father’s and K.W.’s visitation with L.A. The court held a probable cause and shelter care
hearing on February 19, 2013, after which it concluded that probable cause existed for the ex
parte order.
{¶ 7} On March 15, 2013, following a pre-adjudication hearing, the court granted K.W.
visitation with L.A. once per week under the supervision of CCDJFS. The court’s entry reflects
that it did so based upon the recommendation of the Guardian Ad Litem. 4
{¶ 8} On May 1, 2013, the court issued an entry regarding an April 26, 2013
adjudication hearing. It noted that Mother, Father and K.W. submitted to drug testing prior to
the hearing, and that Mother tested negative for all substances, Father tested positive for
marijuana and cocaine, and K.W. tested positive for marijuana. The court granted CCDJFS’
request to amend its Complaint to include a charge of neglect pursuant to R.C. 2151.03(A)(2).
The court noted that all “parties were in agreement that it is in the best interests of the child for a
finding of neglect and dependency and to dismiss the charge of abuse.” The court determined,
pending disposition, that Mother retain custody of L.A., that Father’s visitation remain
suspended, and that K.W. receive one visitation on April 26, 2013, at the agency. The court set
the matter for disposition on May 6, 2013.
{¶ 9} On May 6, 2013, K.W. filed a Motion for Custody of L.A. At the hearing,
Rebekah Neuherz, L.A.’s Guardian Ad Litem, recommended that L.A. remain in Mother’s
custody “so long as mom continues to work a case plan with the Agency,” that L.A. and Mother
receive counseling, and that Mother attend parenting classes. She recommended that L.A. “have
parenting time with [K.W.], supervised at this point in time, so that we can figure out maybe
what’s going on through some counseling at someplace like Gibault and anger management
classes for mom.” Neuherz recommended that “there be no parenting time” for Father, who
did not attend the hearing. Neuherz stated that she did not meet Mother’s boyfriend in the
course of her investigation. She also stated that she did not meet with Father, and that she and
Father “had a scheduled meeting in my office and he did not appear for it.”
{¶ 10} On cross-examination by counsel for Mother, Neuherz stated that L.A. and
Mother have a strong bond. Neuherz stated that L.A. is not old enough “to express her wishes 5
and concerns,” and that she did not interview her regarding the sexual abuse allegations. She
stated that she observed K.W. with L.A. during a supervised visit, and that “there is obviously a
strong bond between [L.A.] and her grandmother. I think that [L.A.] was fairly calm with
grandmother.” Neuherz stated, “at least during my visit grandmother handled questions about
mom and where mom was and whether [L.A.] could go to her house appropriately I thought.”
Neuherz testified as follows:
* * * I did a home visit with [K.W.] this past weekend, and I asked her - -
one of my concerns obviously was what happens. Would she allow [Father] to
be around during visits because I don’t think that’s safe for [L.A.] right now.
And I asked her. She said she would not. I said what would you do if he just
showed up, and she said she would tell him to leave. And I said - - but I pushed
her a little bit because I wanted to really know, and I said well, what if he didn’t
leave. And she said well, then I would probably call the sheriff.
{¶ 11} Neuherz stated K.W. was not an appropriate supervisor for visits between L.A.
and Father, and that K.W indicated to her that she does not want to supervise Father’s visits.
The following exchange occurred:
Q. Do you also think it would be appropriate for [K.W.] to have
unsupervised visits with [L.A.] at this point?
A. I really want to have a better handle of what’s going on with [L.A.]. I want [L.A.] to
have some counseling before that happens. I think that it’s probably best for all parties
concerned that that take place because of disclosures that [L.A.] herself made. 6
Q. Then in terms of disclosures that [L.A.] herself made, what are you
referring to?
A. [L.A.’s] interview with, I want to say it’s the Child Advocate Center. I
don’t remember the name of the agency specifically, but where she indicated that
[Father ] inappropriately touched her and did that at [K.W.’s] house.
Q. * * * And you had indicated in your report you had some concerns, and
on the stand you indicated as well you had some concerns about mom. Do you
think that those concerns can be remediated through involvement with the
Agency?
A. I would certainly hope so.
Q. * * * Are you aware that very recently mom has volunteered to undergo
a mental health assessment for the Agency?
A. * * * No. I think that’s a good idea, but I was not aware of that.
Q. * * * And are you also aware that my client tested negative last week
for illegal drugs on a urine screen?
A. Yes. I was aware of that. I was not - - I am
not concerned about mom’s current
use. I was concerned that mom did
not reveal that prior use to the
Agency.
***
A. Because it was significant. 7
Q. Are you also aware that she’s begun parenting classes?
A. No. I was not aware of that.
Q. Do you think that that’s something good for her to do as well?
A. I think that’s a great idea.
Q. Do you think at this moment as we stand here if the Agency is
involved with this family that [L.A.] is safe with her mother?
A. I’m not as - - I hope so. I am - - I remain concerned - - especially
because I have not yet met him - - about mom’s relationship with her boyfriend.
There has been a history of domestic violence there. That concerns me. But
from my discussions with the caseworker, mom has been open to working with
the Agency, open to a voluntary plan. I have some concerns. I believe that
[L.A.] is physically safe with mom, yeah.
{¶ 12} On cross-examination by counsel for K.W., Neuherz indicated that Mother
brought L.A. to K.W.’s visitation, and that when L.A. attempted to get off of Mother’s lap when
K.W. arrived, Mother “would not let her up. Mom was very hesitant, very - - had an almost
fearful kind of demeanor which after a couple minutes kind of transferred onto [L.A.] because
when we first got there [L.A.] was very excited to see people and then she got a little hesitant.”
Neuherz stated, “when we went back, mom said to [L.A.] specifically, do you want to go back
with Rebekah and Christina, kind of leaving [K.W.] out of that, and [L.A.] hesitated for a second,
which to me appeared to be a result of mom’s own hesitancy, because once we got back there,
there was no hesitation, no fear, no concern.” 8
{¶ 13} Neuherz stated that K.W. lives in the country in a three-bedroom home that is
“[v]ery neat, very clean.” She stated that K.W.’s home is an appropriate place for a child to visit
and live. Neuherz stated that K.W. does not have domestic violence issues. She stated that
Mother and Father had suicidal tendencies, but K.W. does not. Regarding the perpetrator of the
alleged sexual abuse of L.A., Neuherz stated, “As far as who that is, I don’t know that [L.A.] is
the most reliable person at this point. I do believe that there have been discussions with her
about that. But my biggest concern is getting to the bottom of what has happened to this child.”
Neuherz stated that ongoing counseling is appropriate to address the issue, but she concluded that
“[w]e may never know exactly who did what.” Neuherz stated that she is concerned that “there
has been some hesitation on [K.W.’s] part to recognize the extent of her son’s mental illness,”
although K.W. “tells me now that she does recognize that.” The following exchange occurred:
Q. Does anybody have any evidence whatsoever that [K.W.] allowed
[Father] to be around the child while that CPO was in effect?
A. I have not seen any, no. But I think that [for] both your client and the
child it makes sense for there to be some counseling underway before things
change. It’s not my position that your client should never have unsupervised
parenting time with [L.A.] It’s not my position that she shouldn’t have parenting
time with [L.A.] at all because there is a bond there, but I think we need to know a
little bit more than we do now.
Q. And your - - you believe that comparatively speaking that the child
may be at risk when she’s * * * with grandma if she’s not supervised and
comparatively speaking is not at risk with mom based on her whole history of 9
domestic violence and suicide attempts and cutting herself?
A. I’ve never said that I believe the child is not at all at risk with mom.
In fact, I think my report indicates strictly opposite that. I do have concerns
absolutely, but the child has been placed with mom for her entire life, and I
believe that she’s at least physically safe with mom.
And mom has been willing to work with the Agency as well. So then the
question becomes is it best for this child to rip her out of her home based upon
concerns that do have some date to them as well. I mean these, the suicide
attempts, the cutting, we’re talking 2010, 2011.
Q. And at the same period of time has grandma from December of 2010
been involved with visiting this child on a regular basis?
A. Yes. To my knowledge, yes.
Q. So we’ve cut that down?
A. Yes.
Q. Isn’t it possible that that’s or even probable that’s one of the more
stable things that this child’s had in her life?
A. Parenting time or time with her grandmother, probably, yeah. That’s
why I’m not recommending it stop. I think she needs to continue to see her
grandmother. She loves her grandmother.
Q. Do you believe that other than the [Father] factor of maybe being
present that there’s any other reason that [K.W.] shouldn’t be having parenting 10
time with her granddaughter?
A. That’s a pretty big factor to take out, but no. I think that your client
did indicate to me that [L.A.] can be a lot to handle for extended periods of time,
but that certainly doesn’t preclude a night a weekend or something like that, no, of
course not. But at this point in time I’m not recommending that that happen.
I’m recommending that it continue to be supervised.
I would like to see visitation moved to Gibault though. I think it’s a more
relaxed atmosphere than where she is now.
Q. The only reason your recommendation would make sense to me, and
correct me if I’m wrong, would be if you believe that [L.A.] was sexually
molested or touched wrongfully while [K.W.] was in charge of supervision and
[Father] touched her?
A. I think you’re wrong.
Q. How so?
A. I believe - - I know that that’s what [L.A.] said. Whether or not it’s
the truth I don’t know, and that uncertainty leads me to err on the side of caution
essentially until such time as we are able to hopefully get more information.
Again, I’m not talking about forever, but I want at least this child to begin
counseling.
Q. Aren’t you isolating the child by recommending only a short period of
visitation supervised as opposed to a weekend with grandma? 11
A. I disagree with you.
{¶ 14} On cross-examination by counsel for Father, Neuherz acknowledged that she is
not comfortable with her recommendation, and that she does not “think there’s any really good
answer here.” The following exchange occurred:
Q. And I don’t want to beat a dead horse, but I know Attorney Meyer
asked a few questions about mom’s home. And if [Father] lived in another
country right now, would you be recommending * * * grandma to have parenting
time in the home?
A. Absolutely.
Q. So really it’s the concern of [Father] showing up and grandma not
doing anything about it?
A. That and I don’t know where [Father] is. He won’t tell me where he
lives. He won’t tell me - - he won’t come in and see me so yeah. I don’t know
what’s going on there.
{¶ 15} Christina Isenbarger testified that she is “the ongoing social service worker at
Champaign County”, and that she also sometimes investigates allegations of abuse or neglect.
She stated that in February, 2012, there “was an allegation of a physical altercation between
[Mother] and her boyfriend,” in which Mother threw a bag of cookies at the boyfriend in L.A.’s
presence. Isenbarger stated that physical abuse was substantiated, “and we had also indicated
neglect, * * * due to the home conditions.” Isenbarger stated that counseling was recommended
for Mother and the boyfriend, and “they were very inconsistent with participating in counseling.”
{¶ 16} Isenbarger also discussed the allegation and investigation of sexual abuse in 12
June, 2012, in which “[L.A.] was the alleged child victim and [Father] was the alleged
perpetrator.” According to Isenbarger, “[L.A.] did not disclose any sexual abuse during the
interview.” Isenbarger stated that the abuse was unsubstantiated, and she stated that L.A.
received some counseling but “it wasn’t long term.”
{¶ 17} Regarding the allegation of abuse in February, 2013, Isenbarger stated that it
“was reported to us that [L.A.] was playing with her cousin, who I believe was a four-year-old
female, and that the cousin had made a comment to the cousin’s mother that [L.A.] had put her
finger in her, I believe she called it her pee hole and her butt hole. And when [Mother] asked
her why she did that, [L.A.] responded that ‘this is what [Father]’ does to me.” Isenbarger stated
that the matter was referred to the Child Advocacy Center, which is affiliated with Nationwide
Children’s Hospital in Columbus. Isenbarger stated that she was present when L.A. was
interviewed in Columbus, and she identified a disc of the interview, in which she stated that L.A.
“did disclose that [Father] had touched her. She had disclosed that she had touched [Father’s]
pee pee and that [Father] had stuck his finger in her butt hole is what she said.” Isenbarger
stated that she reported the allegations to the Union County Sheriff. She stated that to her
knowledge no charges were filed, and “Union County indicated to me that they would be closing
it out.”
{¶ 18} Isenbarger recommended that custody of L.A. remain with Mother under
protective supervision. She noted that L.A. has always lived with Mother, and that Mother “does
work voluntarily with us and she always allows access to the child. L.A. appears comfortable in
the home when I’m there for visits.” Isenbarger stated that she does not know where Father
resides. She did not opine regarding K.W.’s visitation with L.A. 13
{¶ 19} On cross-examination by counsel for Mother, Isenbarger acknowledged that if
in fact abuse occurred at K.W.’s home, a concern exists and supervision “could be an issue with
[K.W.].” When asked about K.W.’s positive drug test and marijuana usage, Isenbarger
responded, “I would be more concerned if I had concerns for her using or it affecting her ability
to care for [L.A.], but she doesn’t indicate that she uses in front of [L.A.]”
{¶ 20} On cross-examination by counsel for K.W., when asked about the August 22,
2011 report of abuse, Isenbarger stated that L.A. was approximately two years of age, and that
“at the time I believe the child was in diapers so to have a rash in that area wouldn’t be
abnormal.” Isenbarger stated that the alleged perpetrator was unknown, and she acknowledged
that there “may or may not have been a perpetrator.” On cross-examination by counsel for
Father regarding the possibility that L.A. may have been coached regarding the allegations of
abuse, Isenbarger responded, “There are concerns that someone could’ve said something to
[L.A.], yes.” Isenbarger stated that in the course of the interview, “I believe [L.A.] said my mom
told me to talk to you.” Isenbarger stated that there were several inconsistencies in L.A.’s
interview due to the age of the child.
{¶ 21} Dawn Dennis testified on K.W.’s behalf. She stated that she is friends with
K.W., and that she knows her “from working at Honda.” She further stated that she knows
Father, and that she volunteered to supervise his visitation with L.A., along with K.W., in K.W.’s
home. She stated that Father’s parenting time in the summer of 2012 was on Sundays from
12:00 p.m. to 4:00 p.m., every other week. In the course of the supervision, Dennis stated that
she “was with [L.A.] all the time I was there,” and that Father was never alone with the child.
Dennis stated that K.W. watched over L.A., and that K.W. and L.A. got along “[r]eal great.” 14
Dennis stated that K.W. loves L.A. and protects her, and that Father did not have visitation
without K.W.’s supervision. On cross-examination for CCDJFS, Dennis stated that she
supervised Father’s visitation from June, 2012, until August, 2012. On cross-examination by
counsel for Mother, Dennis indicated that she has known K.W. and Father for about 15 years.
Dennis stated that K.W. has expressed concerns to her regarding Father’s mental health, and
“she’s mentioned that he needs help.” Dennis stated that she is aware that K.W. smokes
marijuana
{¶ 22} After the lunch recess, Mother requested and was granted a continuance due to
the fact that her step-father was undergoing emergency surgery; the hearing was rescheduled for
June 7, 2013, and the court ordered that K.W.’s previous weekly visitation resume in the interim.
{¶ 23} On June 7, 2013, Diane Sparks testified on behalf of Mother, whom she has
known for seven and a half years. According to Sparks, Mother is “a friend but like a daughter
to me too.” She stated that she has babysat for L.A., and that on one such occasion, a year and a
half ago, L.A. told her that Father “plays with my pee pee,” and “I seen my daddy naked.”
According to Sparks, these alleged incidents happened at K.W.’s home. Sparks stated that L.A.
does not like Father. Regarding K.W.’s marijuana use, Sparks stated that one year K.W. “had a
jewelry party and we was out there, and after the jewelry party and all she and her friends went
out on the porch and started smoking.” When asked if she knew whether K.W. smoked
marijuana while L.A. is in her care, Sparks responded, “the way [L.A.] talks once in a great while
she smokes something, but I don’t take it no further from there. You know, if the little girl
wants to say something, she say (sic) it.” Sparks acknowledged that she has not observed K.W.
smoke marijuana in the presence of L.A. 15
{¶ 24} T.H. also testified on behalf of Mother. According to T.H., she and Mother
“think of each other as sisters but now, technically, I’m her step mom.” T.H. stated that once
while L.A. was at T.H.’s home, in the summer of 2012, “she was playing and all of a sudden she
said, [Father] hurt my pee pee. And I asked her, I said what. She said, [Father] hurt my pee
pee” with his hand. T.H. stated that “there was a point when [L.A.] said it quite a bit,” and that
Father had visitation rights with L.A. at the time. When asked if she noticed a change in the
child’s behavior after L.A. visited Father, T.H. stated, “there were a couple times when she
stayed down at the house that she would wake up screaming and crying and like she didn’t want
anybody to touch her. She was afraid of anybody to touch her.” T.H. further stated, “there was
one time that we had her after a visit with [K.W.] and [Father], and she was just a complete
horror. Now, I’m not saying that, you know, I know a two and a half year-old, three year-old, I
know they can be bad, but she - - you could tell that there was something going on.” T.H. stated
that at that time L.A. was difficult to control, that she had a lot of tantrums, and that she wet the
bed. She stated that the child’s behaviors “just started to calm down if she wasn’t seeing them.”
{¶ 25} A.H. testified that she is Mother’s sister-in-law, and that she has known L.A.
since birth. A.H. stated that she has one child, G.H., who at the time of the hearing was four and
a half years old. A.H. stated that L.A. and G.H. play together on the weekends, and that in
February, 2013, while the girls were playing at Mother’s home, “the girls walked by me, and I
heard my daughter say oh, [L.A.] is going to go and play with my pee pee. * * * And I yelled out
to [Mother]. * * * And she went in there and she was like why did you play with her pee pee.
She goes oh, because [Father] plays with my pee pee.” 16
{¶ 26} Mother testified that at the time of the hearing, L.A. visited with K.W. every
Tuesday at Children’s Services, and that LA. previously visited with K.W. every other weekend
at K.W.’s home. When asked about Father’s visitation, Mother stated, “[i]n the beginning he
was allowed Sundays from like four hours and then it went to six hours, and [K.W.] was
supposed to be supervising it at that time.” Mother stated that Father has lived with K.W. off
and on since Mother has known him. Mother stated that she tried to commit suicide in March,
2011, and that she is now on medication which is “very helpful.”
{¶ 27} Mother stated that she does not think K.W. is an appropriate person to care for
L.A., and that she does not believe that L.A. is safe with K.W. Mother stated that she does not
believe that K.W. would appropriately supervise Father if he were granted supervised parenting
time. Mother stated that she is able to meet L.A.’s needs and that the child should remain in her
care.
{¶ 28} On cross-examination by counsel for K.W., Mother stated that she takes Lithium
and Prozac for bipolar disorder. She stated that she never left K.W. alone with L.A. The
following exchange occurred between the court and Mother:
THE COURT: * * * The court’s question is if [Father] is not present, do
you think [L.A.] is safe with [K.W.]?
THE WITNESS: No.
THE COURT: Why?
THE WITNESS: She smokes pot. She gave pot to [Father] which he told
the guardian ad litem when he was 10 years-old. If that happened to her (sic), 17
what could happen to [L.A.]? What if she goes and smokes a bowl and [L.A.] is
not being supervised? What could happen to my child?
I don’t - - my child is not safe around somebody who thinks it’s safe to get
high.
Yes, I did it, but I did it before I ever had my children. And I think I have
that right to say whether or not my child is around somebody who thinks it’s okay.
If somebody thinks it’s okay to do drugs, what else is it okay to do around a
child?
Unless something is supervised, how does the Court know that he’s really
not there?
THE COURT: You have been aware that [K.W.] smokes marijuana for
some time now; is that correct?
THE WITNESS: Yes.
THE COURT: Do you know about what year that was?
THE WITNESS: 2007, 2008. It was before I got pregnant with my
daughter [L.A.]
THE COURT: So you’ve been aware of the fact that she smokes
marijuana since then, at least since then?
THE WITNESS: Uh-huh.
THE COURT: On numerous occasions in the past you have agreed with
[K.W.] having visitation with [L.A.]?
THE WITNESS: She took a drug test at the hospital because her attorney 18
told her to so she knew it was coming up and she passed it so I couldn’t.
THE COURT: Have you agreed in the past with [K.W.] having visitation
with [L.A.]?
THE WITNESS: As advise to an attorney, yes, I did (sic).
{¶ 29} Father testified that he was serving a four month sentence on drug charges in
North Carolina when the first allegation of sexual abuse was reported. He stated that he was
released in November of 2011. He denied ever abusing L.A., and he stated that in the course of
his visitations with her he was never unsupervised. He stated that he has been diagnosed with
manic depression and takes prescribed medication. Father stated that he lives in an R.V. He
denied being diagnosed with paranoid schizophrenia, and he denied being diagnosed with mood
disorder, non-specific with psychotic disorder, but he stated that he has mood swings and that
“Satan is in my head sometimes.” He stated that he uses cocaine and marihuana occasionally,
and he stated that his illegal drug use does not affect his prescription medication. In response to
a question by the court about visitation, Father responded, “* * * I’d be happy with every other
week like every other dad in the world. I’m no threat to [L.A.] or anybody else. This is just
one big mess because [Mother] doesn’t want us to see [L.A.], and that’s her way of getting what
she wants. I don’t think there’s anybody in the world that could give [L.A.] more than my
mother.”
{¶ 30} The following exchange occurred during cross-examination by counsel for
Mother:
Q. * * * Do you recall reporting to Consolidated Care that you believe
your mom has mental health issues? 19
A. No.
Q. You reported that she has anger management issues?
Q. She’s violent?
A. Can be.
Q. Can be. How can she be violent?
A. She’s not like a violent - - she don’t hit or nothing, but, you know, she
has a temper like everybody else. You know, she’ll yell. You know, she’s only
human. * * *
Q. Do you typically describe people with a normal temper as violent?
A. No. My mom is not violent.
Q. But you just said a second ago that she can be.
A. She can be, but she never hit somebody or hurt anybody.
Q. Did she ever hit you?
A. I got whipped growing up like every other kid in the world, yeah.
Q. Did she ever hit [L.A.?]
A. Never.
{¶ 31} K.W. testified that she owns her own home, and that she is employed at Honda
of America, where she has worked for almost 27 years. She stated that she is 52 years old and
lives alone. She stated that in the first six months to a year of L.A.’s life, Mother often stayed at
her home with L.A. K.W. stated that L.A. is the “love of my life.” According to K.W., Mother 20
“all of a sudden started seeing [J.] and sent a letter to me saying that she was no longer going to
allow [Father] or I to ever seen L.A. again.” K.W. stated that she filed for and was granted
visitation, and “there was a civil protection order against [Father] that [Father] was not allowed
to see her at that time, and that is when [Father] went to North Carolina because he felt like if he
was not going to be able to see his child he did not want to be here.” K.W. stated that Father did
not see L.A. after the civil protection order was in place in her presence. She stated that after
Father returned from North Carolina, he was granted visitation for four or five hours every other
Sunday during her visitation time. She stated that Father’s visitation was supervised by her and
her friend, Dawn Dennis. K.W. stated that she always supervised Father, that Dennis was
always present, and that Father was never alone with L.A. K.W. stated that there was a
subsequent agreed order “that [Father] could visit any time during my visitation, which my
visitation was every other weekend from Friday until Sunday, and [Father] could visit any time
during that time.” K.W. stated that she was required to supervise Father and that she did so.
{¶ 32} K.W. stated that she does not believe that it is good for L.A. to be alone with
Father “because of his mental stability.” K.W. stated that she is able to provide a stable home
for L.A., and that she will comply with any restrictions imposed by the court, including the denial
of Father’s visitation. She stated that Father lived with her when he returned from North
Carolina at the end of 2011. At the time, K.W. stated that her visitation was limited to Sundays,
and that Father would leave her home to visit other family during L.A.’s visitation. She stated
that Father was never in her home, even for a short period of time, while L.A. was there. After
Father was allowed to be present during the visitation, K.W. stated that he “never gave [L.A.] a
bath. He never even so much as took her to the rest room because I didn’t want any type of 21
allegations of that sort.” K.W. stated that she took her responsibility to supervise Father
seriously, and she stated that it is “[a]bsolutely not” possible that L.A. was sexually molested
while in her care. Regarding the reported abuse from August of 2011, K.W. stated that she
“didn’t know anything about that at that time. [Father] wasn’t even in the picture. He was in
North Carolina.” K.W. stated that she can protect L.A.
{¶ 33} K.W. admitted that she smoked marijuana with Father and Mother, and that she
still occasionally smokes marijuana. She stated that she very rarely drinks alcohol. K.W. stated
that she has never smoked marijuana or consumed alcohol, or used any other illegal drugs while
L.A. is in her care. She stated that Father lived in her home upon his return from North Carolina
until October, 2012. She stated that Father has not returned to her home to live, and that there
are no plans for him to do so. She said her home has three bedrooms on three acres, and that
L.A. loves being there. K.W. stated that L.A. had “a whole closet full of clothes, brand new,
nice clothes” at K.W.’s house. She stated that when L.A. spends the night, she sleeps with
K.W., but that L.A. also has her own room with “a bed and there’s toys and stuff in there.”
{¶ 34} Regarding the statements that L.A. made regarding inappropriate touching by
Father, K.W. stated, “I believe that she might think she’s telling the truth,
but I think she’s telling the truth of what someone has told her and led her
to believe.” K.W. acknowledged that Father “has mental health issues.”
When asked if she believed that she can keep Father from visiting L.A. at
her house, K.W. responded, “[o]f course I can.” K.W. stated that if Father
came to her home while L.A. was present, she would “definitely” call the
sheriff. 22
{¶ 35} At the close of the hearing, counsel for Mother advised the court that Mother
wanted “[t]o have the child remain with her where she’s been for her entire life. No parenting
time for dad, supervised visitation only for grandma.” The juvenile court determined as follows:
* * * the Court finds that it is in the best interest of [L.A.] to remain in the
legal custody of her mother * * * . The mother has been the primary caregiver
since birth, there are no physical safety concerns if [L.A.] remains with her
mother, there is a strong bond between [L.A.] and her mother, and the mother
actively cooperates and participates with CCDJFS. However, the Court also
believes that the involvement with CCDJFS should continue due to concerns
regarding home conditions and mother’s live-in boyfriend.
The Court finds that the father has severe mental health issues, has
continued his
drug and
alcohol use
(possibly
abuse), has
refused to
cooperate at
all with
CCDJFS or
the Guardian
ad Litem, and 23
has never had
stable housing.
Therefore,
the Court has
serious
concerns
regarding any
parenting time
for the father.
Furthermore,
the ongoing
revelations by
[L.A.] of
inappropriate
touching by
the father
cannot be
ignored.
As for the paternal grandmother, the Court finds that she is and has been
an important figure in [L.A.’s] life. They have a strong bond and the Court
believes that having extended family in her life can only benefit [L.A.].
The court ordered that K.W. “[s]hall have visitation with [L.A.] the second weekend of every 24
month from Saturday at 9:00
A.M. to Sunday at 5:00
P.M..”
{¶ 36} Mother asserts four assignments of error which we will consider together. They
are as follows:
“THE COURT IS ENDANGERING THE SAFETY OF THE MINOR CHILD BY
ALLOWING PARENTING TIME TO OCCUR WITH PATERNAL GRANDMOTHER AS
SHE IS KNOWN DRUG ABUSER.”
And,
ALLOWING PARENTING TIME TO OCCUR WITH PATERNAL GRANDMOTHER AS
SHE HAS PREVIOUSLY FAILED TO PROTECT THE CHILD FROM SEXUAL ABUSE.”
DISREGARDING THE GUARDIAN AD LITEM’S RECOMMENDATION THAT
PATERNAL GRANDMOTHER’S VISITATION BE SUPERVISED.”
“THE TRIAL COURT DID NOT APPLY THE BEST INTEREST STANDARD IN
DETERMINING WHETHER CONTINUING COMPANIONSHIP TIME WAS
APPROPRIATE.”
{¶ 37} “We review the trial court’s decision regarding nonparent visitation and its 25
corresponding analysis of the best-interest factors, including the wishes of a parent, for an abuse
of discretion.” In re F.D., 2d Dist. Montgomery No. 23358, 2009-Ohio-4788, ¶ 10. “Abuse of
discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.
Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is
unreasonable if there is no sound reasoning process that would support that decision. AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553
N.E.2d 597 (1990). Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,
2012-Ohio-4621, ¶ 7.
{¶ 38} Regarding Mother’s assertion in her first assigned error that K.W. is a “known
drug abuser,” the record does not support such a conclusion. Mother merely speculated about
K.W.’s marijuana use in L.A.’s presence, and she did not present any evidence thereof. While
K.W. admitted to occasional marijuana usage, she testified that she does not use marijuana in
L.A.’s presence, and the court clearly credited her testimony over Mother’s speculation. We
note that Isenbarger’s testimony supported K.W.’s regarding her marijuana usage. We cannot
conclude that K.W.’s drug use endangers L.A.’s safety, and an abuse of discretion is not
demonstrated. Mother’s first assigned error is overruled.
{¶ 39} Regarding Mother’s second assigned error, the record further does not support a
conclusion that K.W. previously failed to protect L.A. from sexual abuse. Father was in prison
at the time of the first reported abuse, and there was no evidence that K.W. allowed Father to
violate the CPO subsequently issued against him. Neuherz stated that she had seen no such
evidence, and K.W., Dennis, and Father testified that Father was never alone with L.A. at K.W.’s
home. The trial court clearly credited their testimony over that of Sparks’ regarding alleged 26
incidents of abuse in K.W.’s home, and that of T.H. and A.H. regarding L.A.’s allegations of
abuse by Father. We defer to the trial court’s assessment of credibility. We note that Neuherz,
Isenbarger and K.W. each expressed concerns regarding the veracity of L.A.’s allegations of
sexual abuse, and each suggested that the child may have been coached. K.W. stated that she
understands that it is not good for L.A. to be in Father’s presence, due to his mental health
problems, and she stated that she will comply with any restrictions placed upon her by the court.
K.W. stated that she is able to protect L.A., and we conclude that L.A.’s safety is not endangered
by K.W.’s failure to protect her. An abuse of discretion is not demonstrated, and Mother’s
second assigned error is overruled.
{¶ 40} Regarding Mother’s third assigned error, as K.W. asserts, “[a]lthough a juvenile
court must consider the recommendation of the guardian ad litem, it is not required to follow the
recommendation. In re Haywood, Allen App. Nos. 1-99-93, 1-99-94, 1-99-95, 2000-Ohio-1740.”
In re P.P., 2d Dist. Montgomery No. 19582, 2003-Ohio-1051, ¶ 24. We note that Neuherz
testified that her concerns were based upon a lack of knowledge regarding the identity of L.A.’s
abuser, Father’s whereabouts, Mother’s unknown boyfriend, and whether or not K.W. would
contact authorities to protect L.A. As noted above, Neuherz acknowledged that she has not
seen any evidence that K.W. allowed L.A. to be in Father’s presence while the C.P.O. was in
place, and while she expressed concern that K.W. advised her that she would “probably call the
sheriff” if Father “showed up,” K.W. testified that she would “definitely” contact authorities if
Father appeared at her home while L.A. is there. Further, Neuherz acknowledged, consistent
with K.W.’s and Dennis’ testimony, that K.W. understands the extent of Father’s mental illness.
We cannot conclude that the court abused its discretion and endangered L.A.’s safety by 27
disregarding Neuherz’s recommendation regarding the supervision of K.W.’s visitation, and
Mother’s third assigned error is overruled.
{¶ 41} Finally, regarding Mother’s fourth assigned error, she directs our attention to
R.C. 3109.051(D), which provides the factors for the court to consider in determining whether to
grant visitation rights to a grandparent. Specifically, Mother cites the following factors, which
she alleges the court ignored:
(4) The age of the child;
(7) The health and safety of the child;
(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.
{¶ 42} Pursuant to R.C. 3109.051(D)(4) and (7), Mother asserts that L.A., due to her
age, “does not have the ability to self-protect from abuse, nor does she have the knowledge to
know if [K.W.] is under the influence of drugs or alcohol,” and that L.A.’s safety “has been
repeatedly jeopardized” in K.W.’s home. As noted above, the record does not support the
conclusion that K.W. uses drugs in L.A.’s presence, or that she will fail to protect L.A. or 28
jeopardize the child’s safety. Regarding the mental and physical health of all parties, pursuant to
R.C. 3109.051(D)(9), Mother asserts that testimony “was provided that father has severe mental
deficits. Testimony was provided that Grandmother has an anger problem as well as a substance
abuse issue.” As previously noted, K.W. understands the extent of Father’s mental health
problems and the need to protect L.A. The only testimony regarding K.W.’s alleged anger
problem came from Father, and his testimony was inconsistent and contradictory. Neuherz
testified that K.W. does not have any domestic violence issues.
{¶ 43} Regarding the trial court’s failure to follow Mother’s wishes regarding K.W.’s
visitation, we note that in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 147 L.Ed.2d 49
(2000), the Supreme Court “recognized that parents have a fundamental right to make decisions
regarding the care, custody, and control of their children and established that a parent’s decision
regarding nonparent visitation is entitled to ‘some special weight.’” In re F.D., 2d Dist.
Montgomery No. 23358, 2009-Ohio-4788, ¶ 6. Before granting visitation, the court must
consider all relevant factors, including those set forth in R.C. 3109.051(D). In re F.D., ¶ 7.
Regarding R.C. 3109.051(D)(15), this Court noted in In re F.D.:
* * * “[A]trial court must give special weight to [this] factor in making its
visitation determination, thus protecting a parent’s due process rights.” * * * This
does not mean that a parent’s wishes regarding nonparent visitation necessarily
will prevail. * * * “Ohio’s nonparental visitation statutes not only allow the trial
court to afford parental decisions the requisite special weight, but they also allow
the court to take into consideration the best interest of the child and balance that
interest against the parent’s desires.” * * * “[W]hile Troxel states that there is a 29
presumption that fit parents act in the best interest of their children, nothing in
Troxel indicates that this presumption is irrefutable. The trial court’s analysis of
the best interests of a child need not end once a parent has articulated his or her
wishes. By stating in Troxel that a trial court must accord at least some special
weight to the parent’s wishes, the United States Supreme Court plurality did not
declare that factor to be the sole determinant of the child’s best interest.
Moreover, nothing in Troxel suggests that a parent’s wishes should be placed
before a child’s best interest.” * * * Id., ¶ 8.
{¶ 44} While Mother requested that K.W.’s visitation be supervised, Mother’s wishes
are not the sole determinant of L.A.’s best interest, and for the reasons set forth above, namely
that K.W. is not a drug abuser, and that she can protect L.A., we conclude that the trial court’s
decision regarding the grant of unsupervised visitation to K.W. is in L.A.’s best interest and not
an abuse of discretion; the record reflects the strong bond between L.A. and K.W., K.W.’s home
is neat, clean and an appropriate place for the child to visit, and as the trial court concluded,
“having extended family in her life can only benefit [L.A.]”. There being no merit to Mother’s
fourth assigned error, it is overruled.
{¶ 45} Since an abuse of discretion is not demonstrated, the judgment of the trial court
is affirmed.
HALL, J., concurs.
WELBAUM, J., concurring in judgment:
{¶ 46} The majority concluded that K.W. was not a drug abuser. Actually, K.W.’s 30
admission corroborated other evidence that she smoked marijuana occasionally. However, K.W.
denied this activity occurred when she supervised L.A. The trial court credited K.W.’s
testimony to be credible. Therefore, I agree with the majority and find no abuse of discretion.
Copies mailed to:
Cassie L. Screngi Richard A. Meyer Jane Napier Kirk Ellis Rebekah S. Neuherz Hon. Lori L. Reisinger