In re L.H.

917 N.E.2d 829, 183 Ohio App. 3d 505
CourtOhio Court of Appeals
DecidedJune 19, 2009
DocketNo. 23157
StatusPublished
Cited by4 cases

This text of 917 N.E.2d 829 (In re L.H.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re L.H., 917 N.E.2d 829, 183 Ohio App. 3d 505 (Ohio Ct. App. 2009).

Opinions

Grady, Judge.

{¶ 1} This is an appeal from an order of the juvenile court granting rights of visitation with a minor child to a person who is not the child’s parent, pursuant to R.C. 3109.051(B)(1).

{¶ 2} L.H. was born on January 23, 2001. Custody of L.H. was subsequently awarded by the juvenile court to appellant Katrina Ross, who was then married to appellee, Neil Boggs. Neither is the biological parent of L.H.

{¶ 3} Ross and Boggs were divorced in October 2003. Boggs thereafter moved for and was awarded rights of visitation with L.H. by the juvenile court.

{¶ 4} Katrina Ross married Robert Ross in 2005. In July 2007, the probate court granted the Rosses’ petition to adopt L.H. The Rosses thereafter moved to terminate Boggs’s right of visitation with L.H. that the juvenile court had awarded.

{¶ 5} The motion was referred to a magistrate for hearings. The magistrate filed a decision finding that Boggs and L.H. had formed a positive and significant bond, that L.H. viewed Boggs as a father figure, and that both Robert Ross and Boggs had a positive influence on L.H. The magistrate noted that the guardian ad litem for L.H. in the proceeding stated that terminating Boggs’s right of visitation would have a detrimental effect on L.H. The magistrate found that it would be in the best interest of L.H. to deny the motion that the Rosses filed to terminate Boggs’s right of visitation. The juvenile court adopted the decision as the court’s judgment pursuant to Juv.R. 40(D)(4)(e).

{¶ 6} Katrina and Robert Ross filed timely objections to the magistrate’s decision. Their first objections were that the decision was against the manifest weight of the evidence. When a transcript of the proceedings before the magistrate was filed, the Rosses filed supplemental objections that the decision was not supported by clear and convincing evidence.

{¶ 7} The juvenile court overruled the objections that the Rosses filed, relying on R.C. 3109.051(B)(1). That section provides:

[507]*507{¶ 8} “In a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child, the court may grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity or affinity, or any other person other than a parent, if all of the following apply:

{¶ 9} “(a) The grandparent, relative, or other person files a motion with the court seeking companionship or visitation rights.

{¶ 10} “(b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child.

{¶ 11} “(c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child.”

{¶ 12} In overruling the Rosses’ objections, the juvenile court wrote:

{¶ 13} “The Court finds Mr. Boggs is not related to the child by consanguinity or affinity, but has acted as a father figure for the child since said child was taken into the custody of Mrs. Ross. Tr. Vol. I, pg. 92. The record shows Mr. Boggs motioned for visitation on July 30, 2004, and was granted visitation on March 10, 2005. The Court finds from the record that Mr. Boggs has an interest in the welfare of the child as he has acted as a father figure for said child and is very bonded with said child. Tr. Vol. I, Pg. 17, 26, 92-93. Further, due to the role Mr. Boggs has played in said child’s life the Court finds it would be in the best interest of said child to continue visitation with Mr. Boggs, which the Court finds to be a positive relationship with a father figure. Further, the Court does not find any credible evidence that said child’s visitation with Mr. Boggs is detrimental to said child. Balancing the factors listed in R.C. 3109.051(D), the Court finds that visitation is proper under the analysis of R.C. 3109.051.”

{¶ 14} The juvenile court adopted the magistrate’s decision. The Rosses filed a timely notice of appeal.

Assignment of Error

{¶ 15} “The trial court erred in denying appellant’s motion to terminate visitation as the juvenile court has no jurisdiction to order visitation post adoption pursuant to Ohio Revised Code 3107.15.”

{¶ 16} R.C. 3107.15(A) states:

{¶ 17} “A final decree of adoption and an interlocutory order of adoption that has become final as issued by a court of this state, or a decree issued by a jurisdiction outside this state as recognized pursuant to section 3107.18 of the Revised Code, shall have the following effects as to all matters within the jurisdiction or before a court of this state, whether issued before or after May 30, 1996:

[508]*508{¶ 18} “(1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and the adopted person’s relatives, including the adopted person’s biological or other legal parents, so that the adopted person thereafter is a stranger to the adopted person’s former relatives for all purposes including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the person by name or by some designation not based on a parent and child or blood relationship.”

{¶ 19} The Rosses argue that the juvenile court erred in continuing its prior order of visitation in favor of Boggs following the decree of the probate court granting their petition to adopt L.H. because R.C. 3107.15(A)(1) prevents the juvenile court from awarding visitation to Boggs pursuant to R.C. 3109.051.

{¶ 20} R.C. 3107.15(A) provides that its prohibitions apply “to all matters within the jurisdiction or before a court of this state.” R.C. 2151.23(F)(1) provides that the juvenile court shall exercise its jurisdiction in child-custody matters in accordance with several sections of the Revised Code. R.C. 3109.051(B)(1) is not among them.

{¶ 21} Juv.R. 40(D)(3)(b)(iv) states:

{¶ 22} “Waiver of right to assign adoption by court as error on appeal. Except 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, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”

{¶ 23} The Rosses did not argue as grounds for their objections to the magistrate’s decision that R.C. 3107.15 prevents the juvenile court from applying R.C. 3109.051 to grant rights of visitation to Boggs. We are nevertheless permitted to review the error assigned for plain error. In appeals of civil cases the courts apply the plain-error test “with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 124, 512 N.E.2d 640.

{¶ 24} We find that the plain-error test is satisfied. In In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 574 N.E.2d 1055

Free access — add to your briefcase to read the full text and ask questions with AI

Related

M.T.O. v. A.O.
2026 Ohio 454 (Ohio Court of Appeals, 2026)
In re L.D.R.S.
2023 Ohio 3765 (Ohio Court of Appeals, 2023)
Davis v. Nathaniel
2020 Ohio 6858 (Ohio Court of Appeals, 2020)
Holfinger v. Stonespring/Carespring, L.L.C.
2016 Ohio 7982 (Ohio Court of Appeals, 2016)
In re H.A.
2014 Ohio 3751 (Ohio Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
917 N.E.2d 829, 183 Ohio App. 3d 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lh-ohioctapp-2009.