In re J.L.C.
Atty. Francesca T. Carinci, Suite 904-911, Sinclair Building, 100 North Fourth Street, Steubenville, Ohio 43952, for Appellant.
OPINION AND JUDGMENT ENTRY
WAITE, P.J.
{¶1} Appellant-mother, L.W. appeals the November 26, 2018 Jefferson County Common Pleas Court, Juvenile Division judgment entry overruling her objections to a
Factual and Procedural History
{¶2} While they never married, the parties have had a somewhat contentious relationship spanning several years while they resided in Brooke County, West Virginia. There are three children born of the relationship: twins born on 2/15/2001, and a third child born 12/1/2008. All three children have the same initials: J.L.C. At the time the parties finally ended their on-again, off-again relationship in 2011, they resided in Brooke County, West Virginia. An initial temporary parenting plan was issued in the West Virginia Family Court on June 24, 2011. On February 19, 2015, an agreed parenting plan was adopted by the West Virginia court providing week-to-week alternating parenting time with the three children. A stated goal of the plan was to minimize contact between the parties.
{¶3} Subsequent to entering the agreed parenting plan, the parties continued to behave with acrimony towards one another. Each party referred the other to the local children’s services agency, West Virginia Department of Health and Human Services, based on allegations of abuse and neglect. As a result, each party agreed to enter into a voluntary safety plan regarding the children. The safety plan required each party to undergo a psychological evaluation and to submit to a home site supervision. Again, neither parent was subject to any supervised visitation or other restrictions on parenting time as a result.
{¶4} On June 22, 2015, Appellee filed a petition in West Virginia to modify the prior custody and child support order. Appellee alleged that Appellant had alienated him from the two older children and that the existing custody order would cause Appellee to be alienated from the youngest child, as well. Appellee requested that Appellant’s parenting time with the youngest child be supervised. Appellee also informed the court he intended to move to Jefferson County, Ohio, and sought to relocate the youngest child and enroll the child in school in Ohio. Due to their alienation, Appellee requested that no parenting time be ordered with the two older children.
{¶5} Several days of testimony were held in the matter commencing December 4, 2015. A number of witnesses appeared, including: (1) Don Jones (“Jones”), a
{¶6} Jones testified that despite the implementation of a safety plan for the parties after the home visits, Appellant could not move past her animosity toward Appellee and would not follow the safety plan. Jones testified that he discussed with his supervisor whether to file an abuse/neglect allegation against Appellant for failing to follow the voluntary safety plan, but ultimately decided not to file when the trial court issued temporary orders designating Appellee as the primary residential parent for the youngest child.
{¶7} Thomas testified that Appellant was defiant and refused to follow the safety plan or comply with the parenting plan in place. Thomas testified that while visiting Appellee’s home, he witnessed the two older children acting out in a “very negative way” toward Appellee and his wife, including calling the wife names and harassing her. (12/29/15 J.E., p. 7.) Thomas testified that the youngest child only acted out when the child observed the actions of the two older children.
{¶8} Mains testified that she had been able to observe both parents at the school and that she had experienced issues with Appellant, who constantly objected to the teacher’s authority, and was unable to cooperate with the teacher to make sure the child’s homework was completed. Mains also testified that Appellant failed to provide notice if
{¶9} Appellee’s wife testified, among other things, that Appellant had sprayed her in the face with pepper spray while she was standing in her own driveway. The three children were in Appellant’s car and witnessed the incident.
{¶10} At the conclusion of the hearing, the West Virginia trial court issued a final custody order, dated December 29, 2015. The order is several pages in length and includes fifty-nine findings of fact. A majority of the findings of fact relate primarily to Appellant’s conduct. Although too numerous to recite in its entirety herein, the findings in the order include Appellant’s allegation Appellee raped her and that she shared this allegation with the two older children; Appellant’s apparent diagnosis of “histrionic personality” disorder; and Prettyman’s conclusion that Appellant had “boundary issues” in sharing inappropriate information with her two older children, including giving them access to her social media accounts wherein the children “could observe the sexual comments that were made” between Appellant and “two men who communicated with her” on social media. (12/29/15 J.E., p. 4.) The West Virginia court also found that, despite ongoing therapy, Appellant had not progressed and had alienated the two older children from Appellee.
{¶11} In its judgment entry, the West Virginia court concluded that Appellee established by a preponderance of the evidence that Appellant had “so broken the relationship between [Appellee] and the two older children that such relationship cannot, at present, be repaired.” (12/29/15 J.E., p. 12.) Also, the court concluded that Appellant’s
8. Without any hope that [Appellant] will act as a willing parent, no amount of increased parenting time * * * between [Appellee] and the two older children will help cure the adverse effects. And based upon [Appellant’s] history of domestic violence allegations, unproven rape allegations, and inappropriate behavior with authority figures such as teachers and Department of Health and Human Resources representatives, as well as, dangerous behavior toward [Appellee’s wife], this Court does not believe she is capable of co-parenting with [Appellee] in a manner that will reconcile the break with her two older children. In fact, the evidence shows that [Appellant] believes she has acted in no way inappropriately. If she does not recognize it, and won’t seek the help of a therapist to gain those insights, a reparative parenting plan is doomed to fail.
9. This same relational issue has not yet reached [the youngest child]. But it will if substantial change is not made, plainly because [Appellant] sees nothing wrong with her actions to this point and thus the [Appellant’s] same dysfunctional parenting, which has damaged the twins’ relationship with [Appellee], will be applied to [the youngest child].
10. Moreover, the older two children will teach [the youngest child] by example. Although it is not appropriate to prohibit all contact between the twins and [the youngest child], it is necessary to remove [the youngest child] from [Appellant’s] primary care, and allow [the youngest child] and the twin siblings time only during [Appellant’s] parenting time with [the youngest child].
(12/29/15 J.E., pp. 13-14.)
{¶12} The West Virginia court modified the parenting order to designate Appellee as the primary residential parent and custodian of the youngest child and Appellant as the primary residential parent for the two older children. The court did not order visitation between Appellee and the two older children. Appellant was granted parenting time with the youngest child on alternating weekends and alternating holidays.
{¶13} Both parties subsequently moved to Jefferson County, Ohio. On March 5, 2018, Appellant filed with the Jefferson County Court of Common Pleas, Juvenile Division to register the child custody order issued by the Brooke County, West Virginia Family Court as an Ohio order. Appellee did not object. Prior to this filing, on March 1, 2018, Appellant had filed a motion seeking to have her parenting time modified to conform to the Jefferson County local parenting time guidelines. The modification request was set for a hearing. According to Appellant, during pretrial negotiations Appellee continued to raise issues that were previously litigated in the West Virginia court. As a result, on April 20, 2018, Appellant filed a motion in limine seeking to restrict Appellee from relitigating previously decided issues and introducing any evidence aside from actions that had transpired since the 2015 West Virginia order. Appellee filed a motion in opposition on
{¶14} The matter proceeded to a full hearing on August 14, 2018. At the outset, the magistrate recognized that the two older children had been alienated and that the issue of modification of parenting time related only to the youngest child. The magistrate granted Appellant’s motion in limine and ruled that no evidence of events that occurred prior to the West Virginia order could be presented. While the West Virginia order was necessarily of record the court would hear only evidence relevant to whether a modification of that parenting order was in the child’s best interest. (8/14/18 Tr., pp. 4-9.)
{¶15} Appellant called Appellee as her first witness. Under cross-examination, Appellee testified that Appellant had been exercising alternating weekend visitation and alternative holidays without incident. He testified the child takes Adderall for attention deficit disorder (“ADD”) and has no academic problems at school. The child is enrolled in various sports and both parties take the child to extracurricular events without incident. Appellant calls the child every night and talks for 15 minutes, which was acceptable. Appellee testified that after visiting with Appellant the child returns to his home appropriately dressed. However, the child told him that Appellant allows the child to go to a park that is two blocks away from Appellant’s home alone, despite his disapproval.
It’s -- I don’t know if there’s been any arguments. There’s been disagreements about, I mean, her babying him. It was just at baseball actually. I told her -- she went into his dugout during the middle of the game and I told her stop babying him, to, you know, get out of the dugout.
(8/14/18 Tr., p. 31.)
{¶16} Appellee testified that he had not argued with Appellant since the baseball incident in August of 2017. Appellee also testified that he is the sole decision maker regarding the child’s medical care and that Appellant disagrees with how much Adderall the child is taking. Appellant does not always give the child the medication as prescribed during her parenting time.
{¶17} Appellee was asked on cross-examination if he was familiar with the Jefferson County parenting time schedule. He stated that he was not. When asked why he objected to modifying parenting time from the West Virginia schedule to the Jefferson County schedule he said he was not “100 percent sure what they are.” (8/14/18 Tr., p. 36.) Appellee’s attorney stated that Appellee objected to Appellant being granted any additional time. Appellee testified that he did not want Appellant to have any additional nights because he believed she would not honor bedtime, give the child medication, or make sure homework was complete. We note that the magistrate informed Appellee that
{¶18} On direct examination Appellee testified that, before he was designated as the primary residential parent, the child was earning Cs in school and now the child is an A student. Appellee testified that the child has not missed any days of school since he has had custody. Appellee informed the court that Appellant continues to visit the child at school when it is not her day to parent and that after spending time with Appellant the child behaves differently toward Appellee. “How [the child] treated me, what I saw was the twins. I visioned them two walking in and treating me. [The child] treated me just like they did, just like they did.” (8/14/18 Tr., p. 62.)
{¶19} Appellee also testified on direct that the child sleeps in bed with Appellant and her boyfriend every night when the child is with Appellant. Appellee told Appellant that this arrangement was inappropriate and she replied that the child was “her baby.” (8/14/18 Tr., p. 64.)
{¶20} Appellant called Appellant’s boyfriend to testify. The boyfriend testified Appellant does not disparage Appellee in front of the child. He also said that most of the communication about transportation for parenting time takes place via text messaging between himself, Appellant and Appellee’s wife. The boyfriend acknowledged that the child sleeps in Appellant’s bed every night that she has parenting time, but said that he does not sleep in the bed with them. On cross-examination he testified that he was not aware that the child went to the park alone.
{¶21} Appellant also testified. She said she has attended therapy appointments every other week for over two years. She is taking medications, including Adderall for
{¶22} On cross-examination Appellant testified that she was never diagnosed with histrionic personality disorder despite the West Virginia order determining that she had, however, she does have depression issues and ADD.
{¶23} Appellee called his mother-in-law as a witness. This witness testified that the child “comes home with an attitude, kind of rude and nasty” after spending time with Appellant. (8/14/18 Tr., p. 142.) She testified that after visiting with Appellant, the child is rude to Appellee’s wife and refuses to speak to her.
{¶24} Appellee also called his wife to testify. She testified that Appellant called her names in public during the child’s sports events and that Appellant took the child on vacation to South Carolina during the summer without telling Appellee beforehand. The wife testified that the child treats her differently after returning from parenting time with Appellant. She acknowledged that most of the communication between the parties occurred via text messaging. One of these communications involved an incident she found disturbing. She testified that the child brought a digital tablet to Appellee’s home after visiting with Appellant. Appellee’s wife noticed that Appellant’s social media account
{¶25} At the conclusion of the hearing, the magistrate took the matter under advisement. A magistrate’s decision was issued on September 10, 2018. It reads, in pertinent part:
The mother currently exercises parenting time every other weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m. The mother wants the parenting time expanded to include Thursday from 6:00 p.m. until Monday at 8:00 p.m. The father is opposed to this because of school. The father has worked a lot with the child to get him on a schedule and get his grades improved. The father is concerned that will all be for naught if the child’s routine is disturbed. Consistency is a big thing with this child. The father is willing, with hesitation, to permit additional time in the summer for the mother. He does this with hesitation because of the attitude the child comes home with after spending time at the mother’s home. The father does have some concerns when the child is with the mother. He cited the child going to the park without supervision and playing M rated video games. Finally, the father has issues with the mother and boundary issues.
The mother denies the child goes to the park without supervision. She denies the child plays violent video games. She denies that the father complains about any problems/concerns with the child with her. She denies any boundary issues.
The Court reviewed the factors contained in
3109.051(D)(1)-(16) of the Ohio Revised Code in deciding the case.The Court finds that modifying the mother’s Parenting Time Order is not appropriate as the Current Order is in the child’s best interests.
Based upon the testimony presented, the Court finds that the best interests of the child will be served by keeping the same parenting time order.
Therefore, the Magistrate recommends the Court deny the Motion for Modification of Parenting Time. The mother will continue to exercise parenting time as previously set by the West Virginia Court Order registered with this Court.
(9/10/18 J.E.)
{¶26} On September 25, 2018, Appellant objected to the magistrate’s decision, citing three reasons. First, Appellant objected to the magistrate’s denial of her motion since Appellant was asking to be awarded the local standard parenting order, the presumptive minimum for Jefferson County. Second, she objected to the magistrate’s denial of her motion because she allowed the child to go to the park unsupervised, as this was disputed at the hearing and no independent corroboration was provided. Third, she
{¶27} In a one-page judgment entry dated December 6, 2018, the trial court concluded that Appellant’s objections were overruled and adopted the magistrate’s decision.
{¶28} Appellant brings this timely appeal.
ASSIGNMENT OF ERROR
THE MAGISTRATE ERRED IN FINDING THAT THE APPELLANT SHOULD NOT BE GRANTED THE NEW GUIDELINES OF JEFFERSON COUNTY, OHIO AND DID NOT ADDRESS ANY REASON WHY SHE SHOULD NOT BE GRANTED THE STANDARD PARENTING TIME GUIDELINES.
{¶29} In her assignment of error Appellant contends the trial court erred in not addressing any of the factors enumerated in
{¶31} Visitation rights for a nonresidential parent are governed by
{¶32} In order to make a determination regarding whether to modify visitation when there is an existing order, the trial court must determine whether modification is in the child’s best interest by utilizing the fifteen factors enumerated in
{¶33} In making a visitation determination based on the factors in
{¶35} We begin our analysis by noting that Appellee is correct in his assertion that while Appellant requests to be granted the parenting time that is standard in Jefferson County, all determinations on this issue remain within the discretion of the trial court, and the schedule adopted by the court as its standard is not, in fact, mandatory. In the instant
{¶36} This record does not reveal that the trial court abused its discretion in denying Appellant’s motion. Appellant’s assignment of error is without merit and is overruled. The judgment of the trial court is affirmed.
Robb, J., concurs.
D’Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.