In re L.T.

2023 Ohio 4109

• Court: Ohio Court of Appeals
• Decided: November 15, 2023
• Docket: 30381
• Status: Published

Opinion

[Cite as In re L.T., 2023-Ohio-4109.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: L.T. C.A. No. 30381 T.T. II B.T. A.T. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN15-02-92 DN15-02-93 DN15-02-94 DN15-02-95

DECISION AND JOURNAL ENTRY

Dated: November 15, 2023

STEVENSON, Judge.

{¶1} Appellant, M.T. (“Mother”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that denied her motion to modify her visitation time with her

four minor children. This Court affirms.

I.

{¶2} Mother is the biological mother of L.T., born July 21, 2007; T.T., born June 22,

2010; B.T., born April 6, 2011; and A.T., born July 23, 2013. The children’s father did not appeal

from the trial court’s judgment.

{¶3} This case began in January 2015, when Summit County Children Services Board

(“CSB”) filed complaints to allege that these children were abused, neglected, and dependent

because of illegal drug use and domestic violence in the parents’ home. The children were placed 2

in the emergency temporary custody of their paternal grandmother (“Grandmother”) under an

order of protective supervision by CSB.

{¶4} By agreement of the parties, the juvenile court later adjudicated the children

dependent and dismissed the allegations of abuse and neglect. The parents also agreed to the

children being placed in the temporary custody of Grandmother with an ongoing order of

protective supervision by CSB. Ultimately, the guardian ad litem moved for the children to be

placed in the legal custody of Grandmother and CSB supported that motion. Father alternatively

moved for the children to be placed in his legal custody.

{¶5} Following an evidentiary hearing on the competing dispositional motions, the

magistrate decided that the children should be placed in the legal custody of Grandmother. Shortly

afterward, the juvenile court granted each parent separate visitation time with the children, to be

supervised by an appropriate adult, because they had not complied with the domestic violence or

substance abuse components of the case plan. Neither parent raised a timely challenge to the

visitation order.

{¶6} The juvenile court later overruled the parents’ objections to the magistrate’s legal

custody decision, placed the children in the legal custody of Grandmother, and terminated

protective supervision. This Court affirmed the judgment on appeal. In re L.T., 9th Dist. Summit

Nos. 28788 and 28799, 2018-Ohio-1487, ¶ 1. Mother’s problem with substance abuse continued

and, six months later, she was convicted of offenses related to drug possession and driving under

the influence of drugs.

{¶7} During the next several years, Mother and Father continually filed motions with the

juvenile court regarding their residual parental rights and seeking to regain legal custody of the

children. Of relevance here, Mother, Father, and Grandmother filed various motions that 3

eventually proceeded to a contested hearing during April 2022. At the hearing, the parties

presented evidence on motions pertaining to a potential change of legal custody, both parents’

requests for expanded visitation and access to the children’s school and medical records, and

Grandmother’s motion to terminate or modify visitation.

{¶8} The hearing was held before a visiting judge, who considered the seven-year record

in this case as well as the evidence presented at the hearing. Each of the parties and the most recent

guardian ad litem testified at the hearing. The parties also introduced exhibits, which included

numerous audio and video recordings that the older children had secretly made in Grandmother’s

home at the request of Mother.

{¶9} The court later issued a comprehensive, 13-page judgment entry that ruled on the

various motions that were pending in this case. The trial court concluded that the parents had

failed to demonstrate the requisite change in circumstances that could justify a change in legal

custody. See R.C. 2151.42(B). Moreover, the court emphasized that Grandmother had been

meeting all the children’s needs while Mother had continually attempted to undermine

Grandmother’s role as legal custodian in a manner that had been emotionally damaging to the

children, particularly L.T. The court retained the children in Grandmother’s legal custody, denied

the parents’ access to the children’s medical and school records, and issued new visitation orders

pertaining to each parent. Mother appeals and raises one assignment of error.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT DENIED MOTHER’S MOTION TO MODIFY VISITATION[.]

{¶10} On appeal, Mother challenges only one aspect of the trial court’s judgment: its

denial of her request “to visit the children for more than 8 hours every other weekend and have 4

unsupervised visits in father[’]s home, mother[’]s home, and in public places[.]” The court denied

Mother increased and/or unsupervised visitation time with the children. In fact, the trial court

placed new restrictions on Mother’s visitation time with L.T. and A.T., partially granting

Grandmother’s motion to terminate or restrict Mother’s visitation with the children.

{¶11} Although Mother maintained a relatively positive relationship with T.T. and B.T.,

Mother does not directly challenge the trial court’s findings that there were problems in her

relationships with L.T. and A.T. Mother also admitted during her testimony that L.T. did not want

to see her. One year earlier, L.T. had attempted suicide and blamed her emotional problems on

Mother and Father. Because L.T. had not spoken to Mother for over a year and did not want to

see her, the trial court terminated Mother’s visitation with her at that time.

{¶12} A.T. had expressed apprehension about seeing Mother, although the source of her

discomfort had not yet been determined through her counseling. One of the other siblings had

reported to his counselor that Mother inappropriately touched A.T. in a sexual manner, but A.T.

denied that anything happened when the allegations were investigated in Trumbull County, where

the children reside with Grandmother. Because A.T. was apprehensive about seeing Mother,

however, the trial court modified her visitation order so that she was not required to visit if she did

not want to.

{¶13} Before reviewing Mother’s assigned error, this Court notes that Mother’s brief

alludes to issues that do not fall within her assignment of error. This Court focuses its review on

Mother’s stated assignment of error and supporting arguments, not on other matters that are not

related to her visitation rights. See App.R. 16(A)(7); In re C.R., 9th Dist. Summit No. 29608,

2020-Ohio-4676, ¶ 28-29. “This Court reviews a juvenile court order awarding parental visitation

for an abuse of discretion.” In re M.B., 9th Dist. Summit No. 30383, 2023-Ohio-1804, ¶ 34. An 5

abuse of discretion requires that the trial court’s judgment be “unreasonable, arbitrary, or

unconscionable.” Id., quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶14} “A parent who has lost legal custody of a child, but whose parental rights have not

been terminated, retains residual parental rights, including the ‘privilege of reasonable visitation.’”

In re K.D., 9th Dist. Summit No. 28459, 2017-Ohio-4161, ¶ 27, quoting R.C. 2151.353(A)(3)(c)

and former R.C. 2151.011(B)(48). The “privilege of reasonable visitation” does not guarantee that

a parent will be able to visit with her child. What is “reasonable” visitation will depend on the

particular facts of the case and is an issue to be determined by the juvenile court. See In re M.B.,

9th Dist. Lorain Nos. 11CA010060 and 11CA010062, 2012-Ohio-5428, ¶ 34.

{¶15} Pursuant to R.C. 2151.359(A)(1)(a), the trial court has the authority to “‘[c]ontrol

any [parental] conduct or relationship that will be detrimental or harmful to the child[,]’ which

includes the authority to limit or even prohibit parental visitation with a child placed in the legal

custody of another adult.” In re M.B., 2023-Ohio-1804, at ¶ 36. In determining the appropriate

visitation for a parent who has lost legal custody of her children, the trial court must consider the

totality of circumstances affecting the best interest of the child. In re K.D., 2017-Ohio-4161, at ¶

27.

{¶16} Mother does not challenge any specific aspect of the trial court’s visitation order.

Instead, she asserts that, when the court considered the totality of the circumstances in this case, it

erred by: 1) considering her history of parenting problems without considering evidence that she

had remedied those problems; 2) disregarding the recommendation of the guardian ad litem; 3)

finding Grandmother to be a more credible witness than Mother, and 4) failing to consider evidence

that Grandmother had alienated the children from Mother. This Court will address each argument

in turn. 6

Mother’s Parenting History

{¶17} Mother begins by asserting that the trial court erred by considering her past

problems with drug abuse, without considering evidence that she has resolved those problems.

The record reveals, however, that the trial court fully considered this evidence, but found that

Mother had not demonstrated that she had maintained sobriety. Mother’s parenting history was

directly relevant to the trial court’s best interest determination, as it pertained to Mother’s

relationship with the children and their custodial history. See R.C. 2151.414(D)(1); R.C.

3109.04(F)(1).

{¶18} Mother’s lengthy history of drug abuse was the primary reason that the children

had lived outside Mother’s custody for seven years and why her interaction with them had been

restricted to supervised visitation. The children were removed from Mother’s custody in 2015 and

placed temporarily with Grandmother. The children were later placed in Grandmother’s full legal

custody because Mother failed to resolve her drug abuse and other parenting problems after two

years of case planning services. The trial court had imposed restrictions on her visitation during

the 2015 case, requiring that a suitable adult supervise her visits because she had not demonstrated

a sustained period of sobriety or that she had resolved her other parenting problems.

{¶19} Another year after the trial court closed the 2015 case, Mother continued to struggle

with drug problems. She was convicted of aggravated drug trafficking and operating a motor

vehicle under the influence of alcohol or drugs. She was placed on community control for two

years and was required to submit to random drug screens during that period. Mother testified that

she tested negative throughout her period of community control, but she did not introduce results

of those drug screens into evidence. 7

{¶20} The guardian ad litem testified that he had seen some of Mother’s drug test results

from that time, but not all of them. Moreover, Mother’s period of community control ended

approximately 18 months before the hearing. The guardian ad litem admitted that he had not seen

any recent drug screens from Mother. Although Mother testified that she had been sober for the

past several years, the trial court did not believe her uncorroborated testimony. Mother has failed

to demonstrate that the trial court abused its discretion by considering her drug abuse history or by

concluding that she had failed to demonstrate that she had resolved that problem.

Guardian Ad Litem Recommendation

{¶21} Mother also asserts that the trial court erred by disregarding the recommendations

of the guardian ad litem. To begin with, despite Mother’s suggestion to the contrary, the guardian

ad litem did not recommend that Mother have expanded and/or unsupervised visitation time with

all four of her children. The guardian ad litem made that recommendation only for T.T. and B.T.

{¶22} In its judgment entry, the trial court explained why it “discounted” that

recommendation. The trial judge emphasized that, although the current guardian ad litem had been

assigned to this case for approximately two years, he had observed only one visit in Mother’s home

six months before the hearing, observed Mother and Father interact only once, made no

unannounced visits to their home, and lacked information about their criminal and drug history.

{¶23} Moreover, Mother’s brief exaggerates the positive nature of the report and

testimony of the guardian ad litem. The written report of the guardian ad litem recommended that

Mother have unsupervised visitation with T.T. and B.T., but he weakened his recommendation

when he testified by repeatedly using double negative statements. A summary of his testimony is

essentially that he did not see any reason why Mother should not have unsupervised visitation with

T.T. and A.T. because he had no reason to believe that she was still using drugs and the allegations 8

about Mother inappropriately touching A.T. had not been substantiated. The testimony of the

guardian ad litem concluded with, “I can’t pinpoint something to say that mom can’t be alone at

least with the boys.”

{¶24} In other words, in addition to his limited observation of Mother’s parenting ability,

the guardian ad litem did not offer an unequivocal opinion that it would be in the best interest of

T.T. and B.T. to have expanded or unsupervised visits with Mother. Mother has failed to

demonstrate that the trial court acted arbitrarily in discounting the recommendation of the guardian

ad litem.

Credibility Determinations

{¶25} Next, Mother asserts that the trial court erred by believing the testimony of

Grandmother instead of Mother. The trial judge, as trier of fact, had the opportunity to observe

the demeanor of the witnesses and was in the best position to assess their credibility. State v.

Adkins, 9th Dist. Wayne No. 22AP0022, 2023-Ohio-3000, ¶ 28.

{¶26} In its judgment entry, the trial court included a detailed assessment of the credibility

of the witnesses, including Mother and Grandmother. Following a one-page explanation of his

reasoning, the judge concluded that he “disbelieved almost everything the parents[] said that was

not verified by the [guardian ad litem], the Legal Custodian or reference to the court file.” He

emphasized the parents’ “evasive” testimony and opined that it “lacked candor” and was

“improbable, inconsistent, and not worthy of belief.”

{¶27} On the other hand, the trial judge found Grandmother’s testimony “to be truthful

based on her accurate memory and the logical answers” that she gave to questions both on direct

and cross-examination. He also emphasized that Grandmother was “patient” and “forthcoming” 9

when she testified and “maintained her composure” even while testifying about the traumatic

experience of discovering L.T. unconscious after the child had attempted suicide.

{¶28} The trial court gave detailed and reasonable explanations to support his conclusion

that Grandmother was a more credible witness than Mother. Mother has failed to demonstrate any

error by the trial court in believing the testimony of Grandmother instead of Mother.

Alleged Alienation by Grandmother

{¶29} As explained above, the trial court disbelieved most of Mother’s testimony. That

testimony included claims that Grandmother had made efforts to alienate the children from her.

The trial court instead found that Mother had made significant efforts to alienate the children from

Grandmother, by making false allegations that Grandmother mistreated them and by requiring the

children to secretly record Grandmother.

{¶30} Nevertheless, Mother’s alienation argument on appeal points to undisputed

evidence that, according to her, demonstrates efforts by Grandmother to alienate the children from

her. She specifically faults Grandmother for failing to immediately inform her after L.T. attempted

suicide and for continuing to believe unsubstantiated allegations that Mother had sexually touched

the youngest child, A.T.

{¶31} Grandmother did not immediately notify Mother about L.T.’s suicide attempt, but

there was no evidence to support Mother’s suggestion that the delayed communication was an

attempt to alienate her from L.T. The evidence revealed that Grandmother was primarily

concerned about seeking hospitalization and medical treatment for L.T., who was unconscious

when Grandmother found her. Grandmother also did not directly communicate with Mother

because they had a strained relationship and did not speak to each other. Moreover, L.T. also had

a poor relationship with Mother, blamed her for the suicide attempt, and did not want to see her. 10

Mother was informed by someone else about L.T.’s suicide attempt within a reasonable time and

there was no evidence before the court that Grandmother had attempted to impede the

communication of that information to Mother.

{¶32} The allegations that Mother had sexually touched A.T. came to light after her older

brother, B.T., made disclosures that he had witnessed the incident to his counselor, a mandatory

reporter. Although an abuse investigation in Trumbull County did not substantiate B.T.’s

allegations because A.T. denied that the touching occurred, the allegations were never disproven.

The evidence was also clear that, for some reason, A.T. was apprehensive about visiting Mother

and was sometimes uncomfortable around her. Even the guardian ad litem testified that A.T. was

uncomfortable around Mother and should not be forced to visit her if she is apprehensive.

{¶33} Despite Mother’s suggestions to the contrary, there was no evidence presented at

the hearing that Grandmother chose to believe false allegations about Mother improperly touching

A.T. Because B.T.’s allegations about witnessing Mother inappropriately touching A.T. had not

been disproven, Grandmother had chosen to err on the side of believing and protecting the children.

Mother’s arguments about Grandmother attempting to alienate the children are not supported by

the record.

{¶34} Mother has failed to demonstrate that the trial court acted unreasonably or

arbitrarily by maintaining or imposing restrictions on her visitation with her children. Mother’s

assignment of error is overruled.

III.

{¶35} Mother’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed. 11

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

SCOT STEVENSON FOR THE COURT

SUTTON, P. J. CARR, J. CONCUR.

APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

EDDIE SIPPLEN, Attorney at Law, for Appellee.

NOWAR KATIRJI, Guardian ad Litem.