IN THE MATTER OF: I.C.
CASE NO. CA2016-11-019
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
7/17/2017
2017-Ohio-5851
HENDRICKSON, P.J.
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 12 AD 0596
Mark J. Pitstick, 224 North Fayette Street, Washington C.H., Ohio 43160, for appellant, C.D.
OPINION
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, C.D. (“Mother“), appeals the decision of the Fayette County Court of Common Pleas, Juvenile Division, denying her motion to modify visitation and her motion to reinstitute supervised visitation with her son, I.C. For the reasons set forth below, we affirm the decision of the juvenile court.
{¶ 2} I.C. was born on December 5, 2003, to Mother and S.C. (“Father“). Father was killed in 2003 while serving in the United States Armed Forces. In August 2012, P.L.E., the
{¶ 3} The parties abided by the terms of the Agreed Entry for a period of time, with Mother exercising her visitation rights with I.C. at the Visitation Center. On December 23, 2015, Mother filed a motion to modify visitation, seeking to have visitation moved from the Visitation Center to the child‘s maternal grandmother‘s home in Washingtоn Courthouse, Ohio. Mother also sought to modify the visitation schedule to that of “Option One” of the Fayette County Companionship Guidelines for NonResidential Parents so that she could have parenting time on holidays and alternating weekends.
{¶ 4} In March 2016, while Mother‘s motion to modify visitation was pending, the Visitation Center stopped Mother‘s visitation with I.C. due to rule violations. Mother had given I.C. the phone number of an extended relative and asked I.C. to contact the relative in contravention of the Center‘s rules. On March 18, 2016, in response to the termination of visitatiоn, Mother filed a motion asking that visitation be reinstated pursuant to the terms in the Agreed Entry.
{¶ 5} On March 22, 2016, the trial court sua sponte appointed a guardian ad litem to
{¶ 6} On July 12, 2016, the guardian ad litem filed a report recommending that Mother not be given visitation with I.C. at this time. Thereafter, on August 30, 2016, Mother‘s motion to modify visitation and her motion to reinstate supervised visitation came before the court for a hearing. Mother was the only witnеss who testified at the hearing.
{¶ 7} Mother explained that she regularly used heroin from 2010 to March 2016, with her longest period of sobriety being about a month. She testified that in addition to I.C., she has four other children. These children are in the custody of her mother as she and the children‘s father were unable to care for them. According to Mother, she is no longer in a relationship with the children‘s father, who she acknowledged also abused drugs.
{¶ 8} From April 2015 to February 2016, Mother testified she either lived on the streets or was staying “place to place.” During this time Mother was not employed. In order to obtain money for heroin Mother would steal. She testified that she has been arrested and convicted of petty theft.
{¶ 9} Mother claimed the last time she used heroin was in March 2016, when her visits with I.C. terminated. She stated that since then she has stopped using because shе wants to get her life back together. She lives with her sister in Bloomingburg, Fayette County, Ohio. In June 2016, Mother began receiving Vivitrol injections for her dependency
{¶ 10} Mother admitted that she was not truthful when speaking to the guardian ad litem about her sobriety. Although Mother told the guardian ad litem she had been sober since February 2016, she had relapsed in March 2016. She also admitted that if her use of heroin in March 2016 had not required her to be hospitalized, no one would have known she was using again.
{¶ 11} Mother testified she and I.C. have a “good relationship” and that he was excited to see her when she visited him at the Visitation Center. She testified that they would play games together and talk about his friends, his siblings, and his schooling. Mother admitted that she would visit with I.C. at the Visitation Center after using heroin, and that she did not give consideration to the effect her drug use had on I.C. when she visitеd him while under the influence. Mother knew she was being selfish, but stated she did not want to miss out on her visits or cause I.C. to think that she did not want to be with him. Mother acknowledged that I.C. knows she is a drug user. She explained that her drug use around I.C. was what caused her to lose custody of I.C. in 2012.
{¶ 12} Mother stated that her visitatiоns with I.C. at the Visitation Center were terminated in March 2016, because of rule violations. Mother admitted that she gave I.C. the phone number for a sick uncle who was hospitalized in Texas. Mother explained that the uncle was dying and wished to speak to I.C. Mother stated she thought she was only breaking Paternal Grandmother‘s rules when she gave I.C. the phone number and did not realize her actions violated the Visitation Center‘s rule against exchanging items with the child without receiving prior approval from the Center. Mother also admitted that the
{¶ 13} The juvenile court continued the matter until October 27, 2016, at which time the court, in the presence of the guardian ad litem, conducted an in camera interview of I.C. Later that day, the court issued a Judgment Entry denying Mother‘s motion to modify visitation and her motion to reinstate supervised visitation with I.C. The court found, “[b]ased upon the testimony, the interview with the child, the reports submitted by the [g]uardian ad litem and the court‘s review of the file, * * * it is not in the best interest of the child to reestаblish contact between himself and [Mother] at this time.”
{¶ 14} Mother appealed the juvenile court‘s decision, raising two assignments of error. As the assignments of error are related, we will address them together.
Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED BY TERMINATING ALL OF APPELLANT‘S CONTACT WITH HER SON.
Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ABUSED ITS DISCRETION IN THAT ITS DECISION IS UNCONSCIONABLE AND VIOLATES THE PUBLIC‘S SENSE OF RIGHT AND WRONG.
{¶ 19} In her first and second assignments of error Mother argues the juvenile court abusеd its discretion in “terminating all of her parental rights” with I.C. She contends the court erred by “considering sobriety as the major reason for not reinstating supervised visitation” and further argues that it is in I.C.‘s best interest to have contact re-established, especially as there was “no evidencе presented that supervised visitation with a heroin addicted mother had any direct adverse impact on [the child].”
{¶ 20} A juvenile court has broad discretion in deciding matters regarding the visitation rights of a nonresidential parent. Otten v. Tuttle, 12th Dist. Clermont No. CA2008-05-053, 2009-Ohio-3158, ¶ 13. A juvenile court‘s decision is subject to reversal only where there is abuse of discretion. Id.; Shafor v. Shafor, 12th Dist. Warren No. CA2008-01-015, 2009-Ohio-191, ¶ 7. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding that the trial court acted arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 21} “While a change in circumstances is required where there is a change in custody arrangеments, any changes to visitation, or parenting time, are not subject to the same requirement.” Shafor at ¶ 8, citing Braatz v. Braatz, 85 Ohio St.3d 40, 44-45 (1999).
{¶ 22} To further a child‘s best interest, the juvenile court has the discretion to limit or restrict visitation rights. Id. at ¶ 9, citing Anderson v. Anderson, 147 Ohio App.3d 513, 2002-
{¶ 23} Having thoroughly reviewed the record in the present case, we find no error in the juvenile court‘s decision to deny Mother‘s motion to modify visitation and her motion to reinstate supervised visitation. The juvenile court took into aсcount several relevant factors in determining that it was in I.C.‘s best interest not to have visitation with Mother. The court considered evidence demonstrating that Mother had abused heroin since 2010, that she did not have custody of I.C.‘s four siblings as a result of her addiction, that she lived on the streets “on and off” up until February 2016, that she stole to support her addiction, and that she used heroin and was under the influence when visiting I.C. at the Visitation Center. Although Mother disputes that her heroin use had “any direct adverse impact” on I.C., the guardian ad litem‘s report indicates otherwise. I.C. recаlled and described the drug raid that caused him to be placed in Paternal Grandmother‘s custody, stated he knew Mother had bought and sold drugs, and he expressed fear over his Mother‘s choices.
{¶ 24} I.C., who was 12 years old at the time Mother‘s motions were heard, also made his wishes known with respect to visitation with Mother.2 I.C. was interviewed by the court in camera and he spoke with the guardian ad litem. I.C. expressed that he does not want to visit with Mother. Although Mother believes she and I.C. have a “good relationship,” the guardian ad litem reported that I.C. has a “disturbed history” with his maternal family,
{¶ 25} Additionally, Mother‘s motion to modify visitation and her motion to reinstate supervisеd visitation were filed in December 2015 and March 2016, respectively. At the time Mother filed her motions, she was still using heroin and had not begun treatment to address her dependency issues. Mother began taking the Vivitrol shot and attending counseling in June 2016, only a few months before her motions were heаrd by the court. While Mother‘s recent sobriety and her actions in undergoing treatment and counseling are commendable, we cannot say that the juvenile court abused its discretion in determining it was not in I.C.‘s best interests to reestablish visitation with Mother “at this time.” The juvenile court‘s decision is supрorted by the record and is not arbitrary, unreasonable, or unconscionable.
{¶ 26} In upholding the denial of Mother‘s motions, we reject Mother‘s contention that the juvenile court “decided to terminate all of her parental rights” with I.C. Paternal Grandmother has legal custody of I.C. Unlike permanent custody, the grant of legal custody does not terminate the parent-child relationship. In re C.L.H., 12th Dist. Butler No. CA2016-11-217, 2017-Ohio-2925, ¶ 20. “Legal custody vests in the custodian the physical care and control of the child while residual parental rights and responsibilities remain intact.” Id., citing In re M.M., 12th Dist. Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7. Mother remains able to petition the court for visitation with I.C. or for change of custody at a later date.
{¶ 27} Accordingly, for the reasons set forth above, we find no merit to Mother‘s arguments and hereby overrule her first and second assignments of error.
{¶ 28} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.