[Cite as [J.S.] v. [K.V.], 2022-Ohio-487.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
[J.S.], et al. : : Plaintiffs-Appellees : Appellate Case No. 2021-CA-15 : v. : Trial Court Case Nos. 2019-JUV-96 : [K.V.] : (Appeal from Common Pleas Court- : Juvenile Division) Defendant-Appellant : :
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OPINION
Rendered on the 18th day of February, 2022.
JUSTIN C. NIDIFFER, Atty. Reg. No. 0091997, 10532 Success Lane, Dayton, Ohio 45458 Attorney for Plaintiffs-Appellees
JAMES D. MILLER, Atty. Reg. No. 0080357 and DALMA C. GRANDJEAN, Atty. Reg. No. 0024841, 110 North Main Street, Suite 1200, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
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WELBAUM, J. -2-
{¶ 1} Defendant-Appellant, K.V. (“Mother”) appeals from a trial court order
awarding legal custody of her daughter, S.V., to Plaintiffs-Appellees, J.S. and K.S. (“John
and Kim”).1 According to Mother, the trial court abused its discretion when it gave legal
custody to John and Kim, who are nonparents, because Mother is a suitable parent.
{¶ 2} We conclude that the trial court did not abuse its discretion in granting legal
custody of S.V. to Appellees. Ample evidence indicated that giving Mother legal custody
would be detrimental to S.V. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On April 4, 2019, Appellees filed a complaint for custody in the juvenile court,
asking the court to declare that S.V. was a dependent child. They also asked to be
designated legal custodians for S.V. due to Mother’s unsuitability. The same day,
Appellees filed a motion seeking emergency and interim custody of S.V. In the motion,
they alleged that they had cared for S.V. more than 50% of the time since July 2015, that
Kim and Mother had a mother-daughter relationship, and that S.V. was in significant
danger while in Mother's care for several reasons. These reasons included Mother's
failure to provide for S.V.'s basic needs and Mother's relationship with a convicted sex
offender, whom Mother allowed to provide care for S.V.
{¶ 4} The trial court initially denied the motion for emergency custody and set a
non-evidentiary pretrial for April 24, 2019, noting that it would rule on the temporary
1 These are not Appellees’ real names. To ensure the child’s privacy, we will use pseudonyms or initials where appropriate. We will also refer to John and Kim collectively as “Appellees.” -3-
custody request at that time. At Mother's request, the pretrial hearing was rescheduled
for April 29, 2019. After that hearing, the court filed an entry ordering that Mother be the
temporary legal custodian of S.V. and granting visitation to Appellees. The court also
scheduled evidentiary hearings and appointed a guardian ad litem (GAL).
{¶ 5} On June 19, 2019, the court ordered that Appellees would have visitation
with S.V. on June 23, 2019 and June 30, 2019, and that the GAL would provide the court
with a recommendation on interim visitation. On July 15, 2019, the court filed an interim
visitation order, stating that Appellees would have visitation with S.V. every other
weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
{¶ 6} In August 2019, the court granted Appellees’ request that the Ohio
Department of Rehabilitation and Correction release all communication, including video
calls, between Mother and inmate Travis D. (the convicted sex offender). The court
further ordered that Travis not have any contact with S.V., in person or otherwise, and
that Mother not permit any such contact. Entry and Order (Aug. 20, 2019), p. 1-2.
{¶ 7} On September 4, 2019, Appellees filed a motion to show cause and motion
to increase visitation. In the motion, Appellees alleged that Mother had violated the
interim visitation order. They also asked for additional visitation because Mother was
pregnant and Travis, the father of the unborn child, was due to be released from prison
and had been communicating with Mother. A show cause order was issued and a
hearing was set for November 4, 2019. Following this hearing, a magistrate held Mother
in contempt and sentenced her to three days of incarceration, suspended on the condition
that she purge the contempt by complying with court orders for one year.
{¶ 8} After holding evidentiary hearings on several days, the trial court filed an -4-
order on February 9, 2021, granting legal custody of S.V. to Appellees. In its decision,
the court found that Mother was unsuitable to serve as S.V.'s legal guardian and that
awarding custody to Mother would likely result in harm to S.V. Entry (Feb. 9, 2021), p.
17. Mother then filed a timely appeal.
II. Alleged Abuse of Discretion in Granting Legal Custody
{¶ 9} Mother's sole assignment of error states that:
The Trial Court Abused Its Discretion By Awarding Legal Custody of
the Minor Child, S.V., to a non-parent non-relative.
{¶ 10} Under this assignment of error, Mother sets out a lengthy discussion of
cases involving the test for awarding custody to nonparents, and she argues that the trial
court could not have found her unsuitable as a parent because she had stable housing,
consistent employment, health insurance, an established family relationship and family
ties, and a bond with S.V. Mother further argues that the trial court erred in emphasizing
Mother’s perceived character and moral flaws.
{¶ 11} Before addressing these issues, we will briefly outline the standard of
review. In reviewing legal custody decisions, we will reverse only if the lower court has
abused its discretion. In re I.R., 2d Dist. Montgomery No. 28160, 2019-Ohio-2037, ¶ 7.
An abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). However, “most instances of abuse of discretion will result in decisions that are
simply unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, -5-
161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning
process that would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.” Id.
{¶ 12} Where child custody proceedings are “between a parent and a nonparent,
the hearing officer may not award custody to the nonparent without first making a finding
of parental unsuitability[,] that is, without first determining that a preponderance of the
evidence shows that the parent abandoned the child, that the parent contractually
relinquished custody of the child, that the parent has become totally incapable of
supporting or caring for the child, or that an award of custody to the parent would be
detrimental to the child.” In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977),
syllabus. See also I.R. at ¶ 8.
{¶ 13} “If a court concludes that any one of these circumstances describes the
conduct of a parent, the parent may be deemed unsuitable, and the state may infringe
upon the fundamental parental liberty interest of child custody.” In re S.M., 160 Ohio
App.3d 794, 2005-Ohio-2187, 828 N.E.2d 1044, ¶ 11 (8th Dist.). Notably, the focus of
the last prong (that custody to the parent would be detrimental) is on “the harmful effect
of the [parental] custody on the child, rather than [on] * * * society's judgment of the parent
* * *.” Perales at 98. As we have stressed, under Perales, the court's “focus must be
on the detriment, or harm, to the child, as opposed to a value judgment about [the
parent's] morality, character, or lifestyle.” In the Matter of R.R.S., 2d Dist. Greene No.
2016-CA-25, 2018-Ohio-990, ¶ 8. -6-
{¶ 14} Notably, legal custody differs significantly from, and is “not as drastic a
remedy as, the termination of parental rights, because the parent still retains residual
rights ‘including, but not necessarily limited to, the privilege of reasonable visitation,
consent to adoption, the privilege to determine the child's religious affiliation, and the
responsibility for support.’ ” In re S.P., 2d Dist. Champaign No. 2021-CA-15, 2021-Ohio-
4335, ¶ 13, quoting R.C. 2151.011(B)(50) and R.C. 2151.353(A)(3)(c). Consequently, a
preponderance of the evidence standard applies. Id. This is defined as “ ‘evidence
which is of a greater weight or more convincing than the evidence which is offered in
opposition to it.’ ” In re Starks, 2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶ 15, quoting
Black's Law Dictionary 1182 (6th Ed.1998).
{¶ 15} An additional consideration is witness credibility. We have often stressed
that “[c]redibility of witnesses and the weight to be given their testimony” are primarily
matters for trier of fact to resolve. Buckeye Retirement Co., LLC v. Busch, 2017-Ohio-
4009, 82 N.E.3d 66, ¶ 55 (2d Dist.), citing State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967). This is “[b]ecause the factfinder, be it the jury or, as in this case, the
trial judge, has the opportunity to see and hear the witnesses * * *.” State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). Consequently, “[t]he
decision whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the witness.”
Id.; accord Buckeye Retirement at ¶ 56; In the Matter of P.L.H., 2d Dist. Greene No. 2021-
CA-6, 2021-Ohio-3522, ¶ 50.
{¶ 16} In arguing that the trial court erred, Mother pays little attention to the trial
court’s credibility decision and the predominant factors in this case, which were Mother’s -7-
deception, her continued relationship with Travis, a violent, convicted rapist and Tier III
sex offender, and her decision to expose her children, including S.V., to this individual,
which placed her relationship above the children’s welfare.
{¶ 17} At the time of the final hearing in this case on January 27, 2021, Mother was
30 years old. Transcript of Proceedings2 (Tr.5), p. 94. Mother had four children, with
four different fathers to whom she was not married. Tr.1 at p. 135. Mother’s first child,
S.V.1, was born in February 2010; Mother and S.V.1’s father do not have court-ordered
parenting time or child support, but they are able to cooperate. S.V.1’s father, Chris, has
parenting time every week from Thursday afternoon to Sunday evening. Tr.2 at p. 71-
74.
{¶ 18} Mother’s second child, N.V., was born in March 2011. N.V.’s father, Josh,
was granted legal custody of N.V. in early 2013. In awarding Josh custody, the court
noted “serious problems with Mother’s willingness to facilitate parenting time,” and that
Mother “had not acted in the child’s best interest but in such a way as to serve her own
needs by denying the Father contact with the child.” Tr.2 at p. 14; Plaintiff’s Ex. 24 (In re
N.V., Montgomery J.C. No. G 2011-1481 01, 0A (Feb. 1, 2013 Magistrate’s Decision and
Judge’s Order)), p. 2.
{¶ 19} In June 2017, Josh filed a motion asking the court to suspend Mother’s
visitation and for an order prohibiting Travis from having any contact with N.V. Plaintiff’s
Ex. 23 (In re: N.A.L.V., Montgomery J.C. No. H 2012-1481-OH, 01 (June 27, 2017)), p.
1. The motion to suspend visitation time was withdrawn, and the court granted the
2Because the transcripts for the five days of hearings are not sequentially numbered, we will refer to them as “Tr.”, followed by a number, i.e., “Tr.1”, “Tr.2”, and so on. -8-
motion prohibiting contact. Id. In this regard, the court stated that “[i]f mother allow [sic]
Travis * * * to have any contact with the child during her parenting time, it will be
suspended immediately.” Id.
{¶ 20} S.V. is Mother’s third child and was born in May 2015. Tr.4, p. 11. S.V.’s
father is Matthew, a soccer player from England. Mother became pregnant while
Matthew was in the United States for a summer. Paternity had never been established,
and Matthew had had no contact with S.V. Tr.1 at p. 182; Tr.4 at p. 12-13; Tr.5 at p. 94.
{¶ 21} Mother later had a fourth child with Travis.
{¶ 22} Kim had known Mother since Mother was about four years old (around
1995). Tr.1 at p. 112. Kim and Mother’s own mother, M.D., had worked together at
Cadillac Jack’s and became friends. Id. at p. 125; Tr.2 at p. 91-92. Kim and Mother
developed a close relationship when Mother was little, but at some point, Kim stopped
speaking to M.D. because M.D. was having an affair with a married man who abused her
children. That man ended up in prison for these actions. Another boyfriend of M.D. had
sexually abused Mother. Tr.1 at p. 125, 153, and 157; Tr.4 at p. 65.
{¶ 23} Around 2010, Kim and Mother were thrilled when they reconnected while
working at Steak and Shake. Kim was a manager in training and Mother was a server.
Tr.1 at p. 126, 153, and 157. In 2013, Kim also employed Mother as a fill-in waitress at
a bar Appellees had purchased. Id. at p. 127, 144, and 146; Tr.4 at p. 12. Kim and
Mother had always had a bond and became close. Tr.1 at p. 112 and 157; Tr.4 at p. 9.
During Mother’s pregnancy with S.V., they discussed plans for S.V.’s care when Mother
went back to work, and the plan was for S.V. to stay with Appellees. Tr.1 at p. 146 and
Tr.4 at p. 9. About a week before S.V. began to come to Appellees’ house, Kim’s adult -9-
son (and John’s stepson) died. Tr.1 at p. 146 and 183. The parties agreed that taking
care of S.V. was beneficial in Appellees’ grieving process and was also helpful to Mother.
Id.; see also Tr.4 at p. 10.
{¶ 24} S.V. was born in May 2015, and Appellees began babysitting her in July
2015. Consistent with Mother’s schedule with her other children, Appellees took care of
S.V. every Thursday through Sunday, including overnights. After three of four weeks of
this, Mother asked Appellees to become a bigger part of S.V.’s life because S.V. did not
have a father in her life. Tr.1 at p. 112-113. Over time, the visitation increased, but at
a minimum, it was Thursday through Sunday, and sometimes included Wednesday,
straight through with overnights. When S.V. was with Appellees, Mother did not come
to see her. Id. Appellees never asked Mother for any money for taking care of S.V.
Tr.2 at p. 102. They also paid the part of S.V.’s preschool expenses that Mother’s
assistance did not cover. Tr.1 at p. 139-140.
{¶ 25} In 2016, Appellees took care of S.V. six days a week while Mother was
taking classes at a community college. S.V. has her own bedroom, clothing, and toys at
Appellees’ house, and spent three of four Christmases with them, as well as Thanksgiving
and Halloween. Appellees also took S.V. alone on vacation for a week, and in 2017,
took both S.V. and Mother on vacation. Id. at p. 114-117 and 119. In 2018, S.V. stayed
with Appellees full-time between December 7 or 8 through New Year’s; Mother showed
up on Christmas Day, took S.V. for several hours, and then brought her back. Id. at p.
114-115. S.V. referred to Kim as “Grandma” and to John as “Papa.” Id. at p. 123.
{¶ 26} Between May 2015 and March 2019, Kim and Mother had a close
relationship. Both Kim and John considered Mother like family and were extremely -10-
involved in S.V.’s life. Id. at p. 112 and 164; Tr.5 at p. 29. Mother came to Kim with her
problems, and Kim was Mother’s support person. Tr.1 at p. 112, 122, 153, and 157.
{¶ 27} At some point before April 2017, Mother met Travis, who, as noted, is a
convicted rapist. After pleading guilty to a first-degree felony rape of a girlfriend in Preble
County, Ohio, Travis tried to entice an ex-girlfriend from Pennsylvania to come live with
him in Indiana; if she refused, he was going to put out a sex tape or some information on
social media. While awaiting sentencing on the rape conviction, Travis drove to
Pennsylvania and was found by the police outside the ex-girlfriend’s home with a fake
license plate taped over his own plate and a handgun in his car. Tr.1 at p. 38-39; Joint
Ex. 1 (Nov. 21, 2019 GAL report), p. 7-8.
{¶ 28} In connection with the Pennsylvania incident, Travis had 2011 convictions
for firearms possession and stalking; repeatedly communicating to cause fear; identity
theft; coercing/threatening to commit crime; selling obscene/sexual materials; loitering
and prowling at night; receiving stolen property and fraudulent use/removal of license
plate. He also had 2011 convictions for intimidating a witness or victim and two counts
of terroristic threats with intent to terrorize another. GAL Report at p. 7-8.
{¶ 29} After being returned to Ohio, Travis was sentenced to five years in prison
and was classified as a Tier III sex offender with a lifetime registration requirement. He
was imprisoned in Ohio from August 31, 2011 until August 10, 2016, when he was
released, subject to five years of post-release control. Id. at p. 7. See also Tr.1 at p.
36; Tr.5 at p. 35; Plaintiff’s Ex. 16; and Plaintiff’s Ex. 20.
{¶ 30} Mother and Travis met in 2017 and began dating (per her account) in April
2017. Appellees were not aware of the relationship until May 2017, when they -11-
vacationed with Mother and S.V. in Florida. Appellees drove with S.V. to Florida, and
Mother flew down two days later. Mother did not have her phone; she said she and her
boyfriend had gotten in an argument and the phone had been broken. However, she
claimed not to know how it had been broken. Tr.1 at p. 120-121.
{¶ 31} When Kim asked Mother why she had not told them about the boyfriend,
Mother said none of her friends approved of him and no one wanted her to be with him.
Mother further stated that her boyfriend had a record and was a sex-offender, but it was
not a big deal. Mother then shut down and would not say anything more, including
disclosing the offense of which he had been convicted. Id. at p. 121. After learning of
Travis's background, Mother continued to allow him contact with her children. In fact,
she said she had let him around her children “quite a bit after that” and had even let him
be around her children after he had broken into her house following a breakup. Joint Ex.
I at p. 6; Tr.1 at p. 22; Tr.5 at p. 39 and 65.
{¶ 32} As indicated, N.V.’s father went to juvenile court in June 2017 and obtained
an order stating that Travis was not to be around N.V., and that if it occurred, Mother’s
visitation would immediately be suspended.
{¶ 33} On July 11, 2017, Mother signed an affidavit stating that she had executed
a will providing that if she died while S.V. was still a minor, Appellees would be appointed
guardians of S.V. and S.V.’s estate. The affidavit further stated that Kim had been a
close personal friend of Mother and her family for more than 24 years. Plaintiff’s Ex. 13;
Tr.5 at p. 32. In addition, the affidavit stated that since S.V.’s birth, Appellees “have been
extremely involved in [S.V.’s] life, and she spends several nights a week at their home.”
Ex. 13 at p. 1. It also said that, “[a]lthough not biologically related, [Appellees] have -12-
essentially served as the role of [S.V.’s] grandparents.” Id. Mother stated in the affidavit
that she wished Appellees to be S.V.’s guardians if Mother were unable to do so or if
Mother were “deemed incompetent, determined in any way to be unfit to be [S.V.’s]
parent, or if for any other reason [S.V.] were removed from her custody.” Id.
{¶ 34} While Appellees were concerned about Mother’s relationship with Travis,
they knew that Mother was not allowed to have Travis present when N.V., S.V.’s brother,
was present. However, they later learned that Travis had been around S.V. a lot more
they had been led to believe, and that Mother had let Travis babysit for S.V. Tr.1 at p.
118, 121, 130, 167-168, and 182. Appellees were also concerned about S.V.’s hygiene
when she was with Mother and Mother’s failure to attend to S.V.’s medical and sleep
needs. Id. at p. 141, 156, 159, and 166.
{¶ 35} A few months after Kim found out about Travis, Mother would call Kim,
upset, saying that they were fighting and that Travis would get violent. Mother claimed
Travis had bugged her home and had put tracking devices in her phone. However,
Mother and Travis would then make up and Mother would claim it had been a
misunderstanding. Over time, the relationship became increasingly violent. Tr.1 at p.
122. In early 2018, Mother showed up at Appellees’ house without shoes, wearing only
a coat, bra, and sweatpants. It was cold out. At that time, Appellees had S.V. at their
home. Mother was hysterical, claiming that she and Travis had gotten into a fight and
that he was at her house and had taken her phone. Mother and Appellees lived about
three minutes away from each other, so Mother had just run out of her own home and
come to their house. Id.
{¶ 36} On November 28, 2018, Mother filed a petition for a domestic violence civil -13-
protection order (“CPO”) against Travis, which included both herself and her children,
including S.V. An ex parte CPO was issued that day. Plaintiff’s Exs. 10 and 11; Tr.3 at
p. 80; Tr.5 at p. 56. In the petition, Mother listed Travis as a family or household member
and checked that her relationship with him was that of a “[p]erson living as a spouse of
Respondent,” meaning “• now cohabitating; • or cohabitated within five years before the
domestic violence.” Id. at Ex. 10, p. 1.
{¶ 37} In the CPO petition, Mother stated, “I do not feel safe with Travis * * *. I
fear for myself and my children.” Id. at p. 2. She further said that the day before, Travis
had tracked her location on an app and had showed up at her sister’s workplace. Twenty
minutes earlier, Travis had texted her to ask how her “date” at a particular place was,
showing that he was tracking her. Id.; see also Tr.5 at p. 62. When Travis showed up
at the workplace, he bashed in the window of Mother’s car. Tr.3 at p. 33. At the time,
Mother’s sister was using the car. Id. at p. 44.
{¶ 38} In the CPO petition, Mother further recounted that, after she and Travis had
broken up the previous weekend, Travis had tried to enter her home around 3:00 a.m. by
using the keypad. He tried again a few hours later. Mother said she was “terrified
because he has succeeded in the past at breaking [in] [and physically assaulting me while
scream[ing] * * *.” Ex. 10 at p. 2.
{¶ 39} However, on January 4, 2019, Mother voluntarily dismissed her petition for
a CPO. See Plaintiff’s Ex. 13; Tr.4 at p. 41. According to Mother, she dismissed the
petition because Travis had talked to her and she did not feel that he had “done enough”
to get a restraining order. He also he did not give her much of a reason to continue
pursing it. At the time, Travis was still on parole for the 2011 conviction. Tr.4 at p. 38- -14-
39.
{¶ 40} Between December 7, 2018 and January 1, 2019, Mother was doing
commercial driver license training in Indiana. Tr.1 at p. 128; Tr.3 at p. 25. Appellees
cared for S.V. during that time. Although Mother claimed she and Travis had broken up
in October 2018 and did not have a relationship after that, Mother became pregnant with
Travis’s child (S.V.3), who was born as a full-term baby on September 16, 2019, about
11 months after the breakup. Tr.1 at p. 40-41, and 53; Tr.5 at p. 34. Mother believed
she got pregnant at the end of 2018 or the beginning of 2019, i.e., likely during the time
she was “not” in a relationship with Travis and Appellees were caring for her child. Tr.4
at p. 101.
{¶ 41} At some time before March 24, 2019, John asked Mother if he could talk to
her about some of her decisions and possibly taking custody of S.V. Tr.1 at p. 164. The
discussion lasted between three and five minutes, because Mother grabbed S.V. and took
her outside without a coat or shoes. Id. John was angry and upset because he was
concerned about S.V.’s welfare and Mother did not even want to discuss the subject. Id.
According to Mother, John told her he was going to drag her through the mud and bury
her; John denied saying this, although he did admit he raised his voice. Tr.4 at p. 20;
Tr.1 at p. 179. After this happened, Mother did not allow S.V. to go over to see
Appellees. Tr.2 at p. 122. On April 4, 2019, Appellees filed the complaint seeking
custody of S.V.
{¶ 42} A probation violation report dated September 20, 2019, stated that Travis’s
parole officer (“PO”) received information on March 27, 2019, that Travis had threatened
Mother and Josh’s wife. Plaintiff’s Ex. 6, p. 2. After obtaining police reports from three -15-
jurisdictions, the PO discovered that Mother had told Riverside Police on November 25,
2018, that Travis had broken into her home after they broke up. The reason for the
breakup was that Travis had choked Mother while driving a car. The PO further found
out that Mother had contacted the Huber Heights Police on March 19, 2019, concerning
a menacing complaint. After Travis reported to the probation department on March 28,
2019, he was arrested and taken to jail. Id.
{¶ 43} Following a hearing on April 24, 2019, Travis was found guilty of violating
parole and was sentenced to 122 days in prison, effective April 24, 2019. Plaintiff’s Ex.
9. Other sanctions included “No contact with [Mother] – No contact includes personal
contact, phone, text, social media, third party, etc.” Id. Neither Mother nor Travis
complied with this order.
{¶ 44} The GAL listened to recordings of Mother’s conversations with Travis while
he was in a local jail in April 2019 and when he was in state prison for the parole violation.
Mother and Travis spoke 25 times in April 2019 while Travis was in jail in Montgomery
County. Joint Ex. I at p. 12. The prison calls that the GAL reviewed took place between
May 24, 2019 and July 24, 2019. During that latter time period, Travis contacted Mother
367 times, and Mother answered the calls 230 times. Most calls lasted around 15
minutes. Joint Ex. I at p. 10, 12-13, and 17- 21.
{¶ 45} In its decision awarding Appellees legal custody, the trial court specifically
stated that Mother’s “testimony concerning her relationship with [Travis] is not at all
credible.” Entry (Feb. 9, 2020), at p. 12. The record contains many instances of
Mother’s deception and lies. For example, Mother told the GAL on May 22, 2019, that
she was not in a relationship with Travis and that while he currently tried to contact her, -16-
she refused to speak with him. Joint Ex. I at p. 5, 6, and 7. Contrary to this, Mother
spoke with Travis while he was in jail and in state prison. In a call on April 11, 2019,
Mother read Travis a statement she was going to give to the parole board. The
statement said that she and Travis had a “ ‘permanent relationship’ ” and “described
themselves as a ‘family.’ ” Joint Ex. I at p. 12.
{¶ 46} Mother also told the GAL on May 22, 2019, that Travis had never assaulted
her. Joint Ex. I at p. 5 and 8. However, in a prison call on June 25, 2019, Mother and
Travis discussed the violence that had “occurred between them in the past.” Id. at p. 20.
Mother said “she was scared when Travis broke into her home and threw her across the
bed” and “hurt her.” Id. Mother also mentioned that “thereafter his behavior got ‘worse
and worse.’ ” Id. And, as noted above, other violence occurred many times during their
relationship.
{¶ 47} Both in his report and in testimony during the custody hearings, the GAL
recounted numerous troubling conversations that Mother and Travis had while Travis was
in prison. Not only did Travis and Mother plan a life together, they also discussed ways
to sabotage the relationship between S.V. and Appellees. As the GAL noted, Mother
and Travis discussed “[p]rimarily how they’re going to get a home, they were going to
purchase a home, and then also how they can, you know, hide their relationship while
he’s still on parole * * *. They talked about potentially having another child together, * * *
him getting work and supporting her financially, things like that.” Tr.1 at p. 40.3
{¶ 48} Mother also discussed whether people could find out if they were talking,
3 Both in his report and during the hearing, the GAL recommended that legal custody be given to Appellees. See Tr.1 at p. 15; Joint Ex. I at p. 22-23. -17-
and they talked about changing contacts in Mother’s phone so that people could not
determine who she was talking to. Mother stated that she had Travis’s phone number
saved as “Lawyer” and said she wanted a phone that no one knew about. Joint Ex. I at
p. 17.
{¶ 49} Mother and Travis also discussed manipulating S.V. Their discussion
“[p]rimarily was regarding [S.V.’s] relationship with the [Appellees] and how * * * it was
important for * * * trying to get [S.V.] to say she hated them or at least putting that idea in
her head that * * * [Appellees] were trying to hurt her and [Mother] * * * and then try to
poison her that way in her relationship with [Appellees].” Tr.1 at p. 44.
{¶ 50} As noted above, Mother refused to let Appellees see S.V. from late March
2019 until the court-ordered visitation on June 23, 2019. After visitation was ordered,
Mother and Travis discussed ways to put Travis’s name on S.V.’s birth certificate, giving
him rights to S.V. so that he could do visitation exchanges with Appellees and “make them
miserable.” Joint Ex. I at p. 19; Tr.1 at p. 46. Consistent with the attempt to poison S.V.
against Appellees, the GAL noted the following details of phone conversations between
Mother and Travis:
On June 20, 2019 [prior to the first visit], mother informs Travis that
she told “her” to tell S.V. that [John] is gross and that he is going to hurt her.
Mother tells Travis that she told “her” to tell S.V. that every time [John] gets
into bed with her, he is going to do something bad to her and that she should
be scared. This Guardian believes “her” is [Alice], another child that -18-
mother cares for.4
On June 23, 2019 [the day of Appellees’ first visit with S.V. since
March], Mother tells Travis that when [John] came to the door for their initial
visit with S.V. that [S.V.] started giggling and ran to him. Mother told Travis
that S.V. jumped into [John’s] arms and that [Kim] got out of the car and
they were holding her and hugging her. Mother and Travis agree that
turning S.V. against the [Appellees] will require “more extreme measures.”
From the conversation this Guardian believes that Mother has had another
child, [Alice] tell S.V. negative things about the [Appellees]. During the
conversation, Travis says that she [Mother] should start doing it. Mother
responds that she cannot because if S.V. tells this Guardian that mother is
telling her to say these things then she is done. Mother goes on to tell
Travis that she told S.V. prior to the [Appellees] arriving that she did not
want S.V. to go, that the [Appellees] are not good people and that they are
not friends and they are not your family. Mother informed Travis that S.V.
disagreed on all three statements.
Joint Ex. I at p. 19-20.
4 S.V. co-slept with Appellees, because she was afraid to sleep alone. Tr.1 at p. 129. Also, Alice is not the child’s real name. Alice is Mother’s 10-year old cousin, who was being raised by Mother’s mother, M.D. Tr. 2 at p. 99. M.D. sees S.V. frequently, and Mother and M.D. also babysit for each other’s children when one of them is working. Id. at 94-95; Tr. 4 at p. 58. Alice, therefore, would have had regular contact with S.V. Mother told the GAL on May 22, 2019 that S.V. now called Appellees by their first names rather than Grandma and Papa, but she denied she had told S.V. to do this. Joint Ex. I at p. 8. A child of S.V.’s age (under four at the time) would not likely think of switching names on her own. At trial, M.D. admitted telling S.V. that Appellees were not S.V.’s family. Tr. 2 at p. 119-120. -19-
{¶ 51} The GAL report detailed various other instances of Mother’s attempts to
poison S.V., such as refusing to sleep with S.V. or watch television with her if she wanted
to go to Appellees’ house and telling S.V. that “she is not going to sleep with S.V. because
you would rather be with someone who wants to kill me.” Id. at p. 19.
{¶ 52} These were not the only instances of deception and poisoning, but we need
not discuss them further because the record clearly supports the GAL’s observation that
“the consistent theme of the conversations between mother and Travis [was] regarding
their relationship future, how they can hide it with others and how they can destroy the
relationship between S.V. and [Appellees].” Id. at p. 21-22.
{¶ 53} Travis was released from prison on the parole violation on August 24, 2019
and was still on parole. As part of his supervision conditions, he was ordered to have no
contact with Mother. See Plaintiff’s Ex. 5. Again, this included “no personal contact,
phone, text, social media, third party, etc.” Id.
{¶ 54} Appellees hired a private investigator, who documented Mother’s
whereabouts on a few occasions. The afternoon that Travis was released, Mother left
her car in a church parking lot near Travis’s home and disappeared from view while the
investigator turned his car around. Her car remained in the parking lot overnight, and
Travis was observed bringing Mother back to her car the next morning. See Plaintiff’s
Ex. 1A, photos 1-48; Tr.1 at p. 53-56, 62-63, and 68-75.
{¶ 55} On September 14, 2019, the investigator observed and photographed
Mother’s car parked in Travis’s garage, with a cardboard or wooden board behind the car,
obscuring the license plate. The investigator saw Mother leaving the house and also
photographed Travis next to Mother’s car while she was leaving his driveway. On -20-
September 15, 2019, the car was again in the garage, again obscured, and Mother was
once more photographed leaving the house. The car was followed to a Frisch’s
restaurant in Huber Heights (Mother was employed at Frisch’s). Plaintiff’s Ex. 1B and
1C; Tr.1 at p. 77-80.
{¶ 56} Mother gave birth to Travis’s child on September 16, 2019. According to a
Violation Report, Mother’s sister called Travis’s PO on September 19, 2019, and reported
that a friend had seen Travis visiting and having contact with Mother in the hospital.
When the PO visited the hospital, Mother admitted that Travis had been to her room to
see the baby, but denied she had spoken to him. Plaintiff’s Ex. 6, p. 1-3. On September
20, 2019, Travis reported to his PO’s office and was arrested. He was charged with
violations relating to the visits by Mother to his home and was held pending resolution of
the violations. After a continuance was granted for further investigation, Travis was
charged with three additional parole violations for September 18, 2019, relating to threats
of physical harm and serious physical harm to Mother and violation of the no contract
order. The physical harm violations were withdrawn at the hearing, and Travis was found
guilty of the no contact violations; he was sentenced to a sanction of 154 days in prison.
Plaintiff’s Exs. 7 and 8.
{¶ 57} The second custody hearing in this case took place on February 26, 2020.
At that point, Travis was scheduled to get out of prison in a few months. Tr.2 at p. 102.
At the February 2020 hearing, Mother presented testimony from Cory W., who was
Mother’s then boyfriend and had been dating Mother since shortly after S.V.1 was born
in September 2019. Id. at p. 33. According to Cory, they had been talking about moving
in together and possibly getting engaged. Id. at p. 35-36. -21-
{¶ 58} After Travis was released from prison in 2020, Mother saw him outside court
proceedings and got in his car because he made threats to her. According to Mother,
this was after a hearing related to a CPO. Mother indicated that she did file for a CPO
in February 2020, and the permanent order was issued on December 7, 2020. Tr.4 at
p. 44 and 46. In any event, Mother kept in contact with Travis for a few weeks but then
cut it off. Tr.4 at p. 47-48.
{¶ 59} The third hearing in this case was held on July 7, 2020. A few days earlier,
Travis came to a Kroger where Mother and Cory were shopping and hit Cory. Ex. 3 at
p. 87; Tr.5 at p. 43-44 and 51. During her testimony several months later, Mother first
said that Travis just randomly showed up at Kroger. She then said she had been talking
to him, but insisted that she did not tell him where she was. Id. at p. 44-45.
{¶ 60} The police report, however, included Mother’s statement that Travis had
called her and asked what she was doing. Mother told him she was shopping at Kroger
with Cory, and Travis then came there and hit Cory. Tr.5 at p. 49; Plaintiff’s Ex. 44, Ohio
Uniform Incident Report (July 5, 2020), p. 3. Cory told the police that he and Travis had
been having issues over dating Mother and stated multiple times that he did not want to
press charges. Id. Cory and Mother did not call the police about this incident; store
employees were the ones who called. Id.
{¶ 61} Mother also told the officer that “both subjects have been talking about
fighting for a while over her.” Id.; Tr.5 at p. 49. Travis left before the police came but
came back afterwards to see if charges were going to be pressed. Ultimately, there was
another argument, because in Mother’s words, “boys will be boys.” During this
argument, Travis came toward Mother at one point with his fists balled up and then left. -22-
Tr.4 at p. 45.
{¶ 62} Although no charges were filed, Travis was arrested and booked into jail on
July 6, 2020, for an alleged parole violation. Tr.3 at p. 43, and Defendant’s Ex. A. By
the time of the final January 2021 hearings, Mother was no longer with Cory, and Travis
was again in jail, with an expected release date in February 2021. Tr.4 at p. 46 and 52-
53.
{¶ 63} After hearing the evidence, the trial court issued a decision on February 9,
2021, granting legal custody of S.V. to Appellees. Contrary to Mother’s claim, the court
did not apply an incorrect test. The court explicitly stressed that it was “well aware that
his case is not simply a ‘best interest’ test.” Entry (Feb. 9, 2021), at p. 11. The court
further stated that: “As a general rule, biological parents have the right to parent their own
children, free of involvement of third parties. One exception to that rule is if the
‘parenting’ exercised by the biological parent is, or likely will be, detrimental to the child.”
Id. In addition, the court emphasized that Appellees’ burden was substantial. Id.
{¶ 64} These are the correct standards for awarding custody to a non-parent. The
court found, based on the credible evidence, that Mother was unable or unwilling to accept
Appellees’ substantial positive effect on S.V.’s life and that Mother had unresolved mental
health issues. Id. at p. 12. The court was very concerned over Travis’s imminent
release from prison and found that Mother’s testimony about their relationship was not
credible. Id.
{¶ 65} Moreover, the court found that Mother had not prioritized S.V. in her
decision-making process and that it would be detrimental for S.V. to remain in Mother’s
custody. Id. at p. 13. Based on our discussion above, we agree with the trial court on -23-
all these points. It is nearly beyond belief that Mother would continue a relationship with
an individual who even one of her own witnesses described as a “psychopath” that
“should stay in prison.” Tr.3 at p. 113. There was no question that Mother’s decisions
in this vein, as well as the deliberate efforts of Mother and her family to poison the
relationship between S.V. and people who had been a great benefit to her life, had already
harmed S.V. and would continue to do so if she remained in Mother’s custody.
{¶ 66} As a final point, we disagree with Mother’s claim that the trial court
improperly stressed her perceived character and moral flaws. The court was properly
focused on the effect Mother’s choices regarding Travis had on S.V.’s welfare and how
they could affect S.V. in the future. This was not a moral judgment; it was a recognition
of the danger to the child.
{¶ 67} Based on the preceding discussion, Mother’s sole assignment of error is
overruled.
III. Conclusion
{¶ 68} Mother’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Justin C. Nidiffer James D. Miller Dalma C. Grandjean Matthew J. Barbato Hon. Thomas J. Capper -24-