Wilfong v. Bush

2023 Ohio 1256

• Court: Ohio Court of Appeals
• Decided: April 19, 2023
• Docket: C-220308
• Status: Published

Opinion

[Cite as Wilfong v. Bush, 2023-Ohio-1256.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

SHYNA WILFONG, : APPEAL NO. C-220308 TRIAL NO. F16-2192Z Plaintiff-Appellant, : O P I N I O N. vs. :

BRANDON BUSH, :

Defendant-Appellee. :

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 19, 2023

Law Offices of Nicholas A. Kulik, LLC, and Nicholas A. Kulik, for Plaintiff-Appellant,

Arnold Law Firm, LLC, and Britt Born, for Guardian ad Litem. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} In this appeal we are asked to determine whether the trial court erred

when it suspended the parenting time of Shyna Wilfong (“mother”) with her children,

R.W. and B.B. Finding no abuse of discretion in the trial court’s decision to suspend

mother’s parenting time, we affirm the trial court’s judgment.

Factual and Procedural Background

{¶2} R.W. and B.B. are the children of mother and Brandon Bush (“father”).

The Hamilton County Department of Job and Family Services (“HCJFS”) first became

involved with the family in 2016, after mother used a taser on father at a grocery store.

HCJFS was granted temporary custody of R.W. and B.B., and they were placed in the

care of their paternal grandmother. In June of 2018, father was awarded legal custody

of the children upon both his own motion and the motion of HCJFS to terminate

temporary custody and award legal custody to father. The juvenile court magistrate

who awarded legal custody to father also granted parenting time to mother in

accordance with a “Parenting Time Agreement” submitted by the parties.

{¶3} After father received custody, mother filed numerous motions alleging

child abuse by father and that father was in contempt of visitation. All motions were

denied.

{¶4} On March 2, 2020, father filed a motion to terminate mother’s

visitation. And on March 13, 2020, mother filed a motion to modify custody. In

February of 2021, while these motions were pending, R.W. suffered a traumatic injury

while in mother’s care. As a result of the incident, R.W. was hospitalized, placed on a

ventilator, and suffered from seizures and an orbital fracture. B.B. also had bruising

on her face that same night. Mother has given conflicting reports as to what caused

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R.W.’s injuries. After R.W.’s injury, a magistrate issued an order granting an

emergency motion to suspend mother’s visitation rights.

{¶5} In December of 2021, a joint hearing was conducted on father’s motion

to terminate mother’s visitation and mother’s motion to modify custody. At the

hearing, father testified that he wanted mother’s visitation modified in part because of

her vindictive nature and her hatred of father. He discussed the multiple contempt

motions that mother filed against him, and he told the court that mother encouraged

B.B. lie to detectives when filing sexual-assault charges—which were later found to be

frivolous—against him. Father also testified that mother has initiated violent acts

against him in front of the children, including tasing him, and that he has previously

obtained a restraining order against mother.

{¶6} Father additionally testified that mother kept the children and refused

to return them to his care from January to March of 2020. During this period, father

received reports from the children’s school that R.W. engaged in acts of self-harm,

including biting and smacking himself, and that B.B. was in a state of depression.

Father also noticed that R.W. developed a nervous tic during this time.

{¶7} R.W. has autism, is nonverbal, and suffers from cerebral palsy.

According to father, R.W. has sensory issues that were negatively affected by the

environment at mother’s home, which included loud music and people running in and

out of the house. According to father, R.W. becomes visibly anxious when being

transported to mother’s home.

{¶8} Father testified about his concerns for the traumatic injury that R.W.

suffered while in mother’s care. Father also discussed the services that he has

participated in and told the court that he has completed the Talbert House Fatherhood

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Program as well as parenting classes. According to father, mother is unwilling to

coparent with him.

{¶9} Mother, in turn, testified that father has withheld the children from her

and at times would only let her see the children when he needed money from her. She

told the court that she has concerns with father’s aggression, and that the children

have often returned from their time with father with injuries that father has no

explanation for.

{¶10} Mother addressed the injury that R.W. suffered while in her care, but

she was unable to provide a concise explanation for what caused the injury. According

to mother, R.W. and B.B. had gone downstairs to get popsicles. Around that time, a

curtain fell, but mother stated that it did not hit R.W. Mother stated that R.W. ate his

popsicle and watched cartoons before beginning to vomit. Because R.W. appeared

disoriented and was not responding to her, she called 911. Mother stressed that the

children were never injured when in her care other than this incident.

{¶11} Mother acknowledged that R.W. experiences nervous tics, but stated

that they appeared for the first time when R.W. was at his paternal grandmother’s

house. She explained that she had R.W. examined and was told that the tics could

occur for numerous reasons, including if R.W. overexerted himself, and that she

should monitor the issue. Mother testified that she is able and willing to adhere to a

parenting schedule and to take the children to doctor’s appointments. She also

discussed the services that she has participated in, stating that she was successfully

discharged from the Talbert House for meeting her treatment goals, that she is

enrolled in the Women Helping Women Program, and that she has submitted to the

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recommended drug screens. Mother stated that she has tested positive once for

marijuana, but that she has a prescription for the drug.

{¶12} Maria Turner, the guardian ad litem for R.W. and B.B., testified that it

was her opinion that father should retain custody of the children and that visitation

with mother should be limited until the investigation into R.W.’s injury was

completed, at which point mother should have supervised visits with the children

while engaging in services recommended by HCJFS. Turner stated that during her

investigation of this case, she was told by a detective that mother has a history of

making false allegations and that there is a concern that mother is grooming B.B. to

make false allegations of sexual abuse against father.

{¶13} Turner discussed issues concerning the children’s schooling, stating

that mother failed to participate in meetings for R.W. concerning his Individualized

Education Plan, and that truancy letters from the children’s school coincided with the

time that they remained solely in mother’s care. She testified that, although she has

no concerns with mother’s physical residence, she has concerns for the children’s

safety when in mother’s care, particularly because mother has been unable to explain

how R.W. was injured. Turner does not have similar concerns for the children’s safety

when they are in father’s care. She additionally testified that she notices a difference

in the children’s behavior based on which parent they are with, stating that R.W.

appears timid and sad with mother, but is seemingly happy with father.

{¶14} Following the hearing, the magistrate issued a decision denying

mother’s motion to modify custody. He found that mother failed to demonstrate that

a change in circumstances occurred, which was a necessary requirement for a change

in custody. He further found that even if there had been a change in circumstances, a

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consideration of the relevant best-interest factors supported custody remaining with

father. The magistrate granted father’s motion to terminate mother’s parenting time.

He found that a consideration of the factors in R.C. 3109.051(D) supported a

determination that a suspension of mother’s visitation was in the children’s best

interest.

{¶15} Mother filed an objection to the magistrate’s decision with respect to the

granting of father’s motion, arguing that the decision to suspend her parenting time

was not in the children’s best interest. The trial court overruled mother’s objection

and adopted the magistrate’s decision. In doing so, it considered and discussed the

factors in R.C. 3109.051(D) and found that a suspension of mother’s parenting time

was in the children’s best interest.

{¶16} Mother now appeals.

Suspension of Parenting Time

{¶17} In a single assignment of error, mother argues that the trial court erred

in failing to properly weigh the factors in R.C. 3109.051(D) when determining mother’s

parenting time and that it abused its discretion in maintaining the suspension of her

parenting time.

{¶18} We review a trial court’s judgment modifying parenting time for an

abuse of discretion. Veach v. Adams, 1st Dist. Hamilton No. C-220072, 2022-Ohio-

4031, ¶ 10. An abuse of discretion will only be found where the trial court’s decision

was unreasonable or arbitrary. Id.

{¶19} When one parent has been designated the legal custodian, as in this

case, modifications to parenting time are governed by R.C. 3109.051. Id. at ¶ 11;

Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-

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2398, ¶ 28. A change in circumstances is not required for a modification of parenting

time. Id. at ¶ 30. Rather, the trial court must consider the factors set forth in R.C.

3109.051(D) and determine whether a modification to parenting time is in the

children’s best interest. Id.

{¶20} The factors set forth in R.C. 3109.051(D)1 are as follows:

(1) The prior interaction and interrelationships of the child with the

child’s parents, siblings, and other persons related by consanguinity or

affinity * * *;

(2) The geographical location of the residence of each parent and the

distance between those residences * * *;

(3) The child’s and parents’ available time, including, but not limited to,

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

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

(4) The age of the child;

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

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

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

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

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

person who requested companionship or visitation, as to a specific

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

visitation matters, the wishes and concerns of the child, as expressed to

the court;

1 The factors in R.C. 3109.051(D)(12) and (15) are not applicable to parents.

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(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend with

siblings;

(9) The mental and physical health of all parties;

(10) Each parent’s willingness to reschedule missed parenting time and

to facilitate the other parent’s parenting time rights * * *;

(11) In relation to parenting time, whether either parent previously has

been convicted of or pleaded guilty to any criminal offense involving any

act that resulted in a child being an abused child or a neglected child;

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

an abused child or a neglected child, previously has been determined to

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

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

has acted in a manner resulting in a child being an abused child or a

neglected child;

* * *

(13) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other

parent’s right to parenting time in accordance with an order of the court;

(14) Whether either parent has established a residence or is planning to

establish a residence outside this state;

(16) Any other factor in the best interest of the child.

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{¶21} We first consider mother’s contentions that the trial court did not

properly weigh the factors set forth in R.C. 3109.051(D)(1) and (7) concerning the

relationship of the children with their parents and the health and safety of the children.

With respect to the (D)(1) factor, the trial court found that “[R.W.] suffered severe

injuries while in Mother’s care, the cause of which is still unknown as Mother has

provided multiple different accounts of what transpired. Mother does not keep her

home quiet, which [R.W.] requires for his mental health, and Mother has physically

assaulted Father multiple times in front of the Children.” And with respect to the

(D)(7) factor, the trial court found that “[R.W.] has special needs, and suffered very

significant injuries while in Mother’s care. Mother has assaulted Father in the

presence of the children on multiple occasions, and Mother does not maintain a quiet

home, which [R.W.] needs for his mental health.”

{¶22} The trial court’s findings under these factors were supported by the

record. While mother correctly notes that no claims have been substantiated against

her for R.W.’s injuries, R.W. was indisputably injured while in mother’s care, and

mother has been unable to provide a concise explanation as to what caused that injury.

As to the noise level of mother’s home, father testified that R.W., who suffers from

sensory issues, was affected by the environment at mother’s home, which included

loud music and people running in and out of the house. As the trier of fact, the trial

court was in the best position to judge the credibility of the witnesses. See In re T.K.M.,

1st Dist. Hamilton No. C-190020, 2019-Ohio-5076, ¶ 31 (holding that matters as to

credibility of the evidence were for the trial court to decide). It was entitled to believe

father’s testimony on this topic, and we will not second guess the trial court’s

credibility determination. Supporting father’s testimony about R.W. being affected by

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the noise level in mother’s home was father’s testimony that R.W. becomes visibly

anxious when being transported to mother’s home, as well as Turner’s testimony that

R.W. appears sad with mother.

{¶23} Mother also challenges the trial court’s weighing of the factor in R.C.

3109.051(D)(5) pertaining to the children’s adjustment to their home, school, and

community. When considering this factor, the trial court found that “The Children are

adjusted to Father’s home, their school—where [R.W.] has an IEP—and their

community. [R.W.] has difficulty in Mother’s home as her home is not quiet.” As

discussed above, father’s testimony supported the trial court’s finding about the noise

level of mother’s home. And testimony from Turner also established that the

children’s behavioral problems at school coincided with the time that they were solely

in mother’s care, and that R.W.’s demeanor was noticeably happier with father than

with mother.

{¶24} Mother last takes issue with the trial court’s weighing of the factor in

R.C. 3109.051(D)(9) which directs the court to consider the mental health of the

parties. With respect to this factor, the trial court found that “The GAL has concerns

for mother’s mental health. Although Mother testified she complied with the

recommendations of HCJFS, Father and the GAL testified this was untrue.” While the

record contains no evidence that mother has a diagnosed mental health illness, it

establishes that a diagnostic assessment was recommended for mother, and that

following the assessment the recommendations for mother included individual

counseling and ongoing drug screens. The record reflects that the guardian ad litem

had concerns about mother’s mental health, and given the evidence in the record about

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mother’s behavior and history, the trial court was entitled to find that the guardian ad

litem’s testimony on this point was credible.

{¶25} The record does indicate that mother was more compliant with the

services recommended by HCJFS than was testified to by Turner. Mother introduced

evidence that she was successfully discharged from the Talbert House for meeting her

treatment goals and that she was enrolled in Women Helping Women. Mother

additionally testified that she submitted to at least two drug screens, although the

record is not clear on the overall amount of screens that mother should have submitted

to.

{¶26} Even if, however, the trial court could have accorded more weight under

this factor to mother being allowed parenting time, we cannot find, considering the

record as a whole and all the factors set forth in R.C. 3109.051(D), that the trial court

abused its discretion in determining that a suspension of mother’s parenting time was

in the children’s best interest. The trial considered each factor in this statute, and with

the exception of its discussion concerning mother’s mental health and treatment

compliance, the court’s findings were clearly supported by the record.

{¶27} Mother argues on appeal that the trial court could have considered a less

severe result that did not involve suspending her parenting time, such as supervised

visitation or allowing mother parenting time if she met certain conditions like

parenting classes. But mother never specifically asked the trial court to consider

imposing a less restrictive alternative. When asked what outcome she was asking the

trial court for, mother testified that she was requesting that father be ordered to

undergo anger management and that the children be placed in her sole custody.

Moreover, the trial court’s order does not foreclose the possibility that mother could

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seek to restore parenting time in the future should that become in her children’s best

interests.

{¶28} We are not unsympathetic to mother’s argument or to the effect of the

trial court’s decision on her relationship with her children. But given the evidence in

the record establishing that R.W. suffered a serious injury—the cause of which remains

unknown—while in mother’s care and that B.B. suffered injury that same day, that

mother kept the children from father for an approximately three-month period, that

the children’s behavior raised concerns at school during the time period that they were

solely in mother’s care, that R.W. becomes anxious when being transported to

mother’s home and is happier with father than mother, and that there is a history of

mother acting violently towards father and filing false charges against him, we can find

no abuse of discretion on the part of the trial court in suspending mother’s parenting

time rather than granting supervised visitation. The trial court’s decision was in no

manner unreasonable or arbitrary.

{¶29} We accordingly overrule mother’s assignment of error and affirm the

judgment of the trial court.

Judgment affirmed.

CROUSE, P.J., and ZAYAS, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.