IN RE: S.M.T.
No. 97181
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 19, 2012
[Cite as In re S.M.T., 2012-Ohio-1745.]
Stewart, P.J., Sweeney, J., and Cooney, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. CU 07111618
RELEASED AND JOURNALIZED: April 19, 2012
Mark S. Shearer
8193 Avery Road, Suite 201
Broadview Heights, OH 44147
ATTORNEY FOR APPELLEE MOTHER
John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Building, Suite 220
700 West St. Clair Avenue
Cleveland, OH 44113-1274
GUARDIAN AD LITEM
Thomas Kozel
P.O. Box 534
North Olmsted, OH 44070-0534
{¶1} Appellant-father, B.F., appeals from a juvenile division order that denied his motion to determine custody of child, S.M.T., and named appellee-mother, M.C., the residential parent. Father argues that the court abused its discretion by naming the mother as the residential parent because the mother‘s conduct toward the father in preventing or obstructing visitation made her unfit as a parent and the court further erred by refusing to allow the child‘s guardian ad litem to testify to his recommendation that the father be named residential parent.
I
{¶2} Before addressing the merits of the appeal, we note that the mother did not file an appellate brief.
{¶3} Some appellate decisions have incorrectly referred to
{¶4} Our discretion extends only to accepting the father‘s statement of the facts as correct. We choose to do so in this appeal, but we necessarily consider those facts in conjunction with the father‘s legal arguments to determine the correctness of the court‘s judgment.
II
A
{¶5} The father‘s motion for modification of parental rights and responsibilities is controlled by
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.
{¶6} “While
{¶7} The father argued that a change of circumstances existed because of the mother‘s repeated interference with his visitation rights. It is beyond question that a custodial parent‘s interference with visitation by a noncustodial parent may be considered a change of circumstances that would allow for a modification of custody. C.G. v. C.L., 8th Dist. No. 90341, 2008-Ohio-3135, ¶ 13. See also Sheppeard v. Brown, 2d Dist. No. 2007 CA 43, 2008-Ohio-203; Scaffold v. Scaffold, 9th Dist. No. 04CA0068-M, 2005-Ohio-4546; Holm v. Smilowitz, 83 Ohio App.3d 757, 773, 615 N.E.2d 1047 (4th Dist. 1992). This is because the court recognizes the importance of a child having a strong relationship with both parents, so an award of custody in favor of the parent “who is most likely to foster a relationship between the child and the other parent is in the child‘s best interests.” Borris, Interference with Parental Rights of Noncustodial Parent as Grounds for Modification of Child Custody, 8 No. 1 DIVLIT 1 (1997). When a custodial parent so obstructs the visits between the child and the noncustodial parent, then the best interest of the child is no longer being served.
{¶8} Interference with visitation is particularly aggravating when the custodial parent wilfully ignores a visitation order and obstructs the child‘s visits with the noncustodial parent. The noncustodial parent has few options in such cases. Ohio does not provide for civil damages resulting from one parent‘s interference with the visitation
B
{¶9} S.M.T. was born out of wedlock, and the mother became the custodial parent. Both mother and father lived in Ohio at the time of the child‘s birth, and the mother allowed the father to visit the child even though there was no visitation order in place. The voluntary visitation ended when the mother learned that the father had married and shortly before the father, an officer in the United States Marine Corps, was deployed to Iraq for combat duty. Knowing that he would be posted to a remote area, off-base, with very limited access to telephones or the internet, father wished to visit with the child before his deployment. The court granted visitation. During his deployment, the father
{¶10} When the father returned from Iraq, he was stationed at Marine Corps Base Camp Lejeune, in North Carolina. The mother and child then lived in West Virginia, but neither party took steps to transfer jurisdiction of the matter to a different court under the Uniform Child Custody Act. When the father tried to visit with the child, the mother repeatedly hampered or interfered with his attempts, prompting him to file a motion for an order naming him as the residential parent and legal custodian of the child. The father is now stationed at Marine Corps Base Quantico, in Virginia.
{¶11} The father detailed a significant history showing how the mother interfered with his visitation rights. That history was fully corroborated by the court‘s own findings of fact. In a clear case of understatement, the court concluded that “there was significant evidence presented regarding ongoing parental conflict directed from mother to father.” The court found that the mother showed an “unwillingness to reschedule missed parenting time and to facilitate the other parent‘s parenting time rights without court order.” She had shown herself “at times to be mean, vindictive and unforgiving, all to the detriment of the father.” Although the father had attempted to cooperate and appease the mother, the court found “at times, there was no appeasing mother‘s harassment and rages.” Her “actions and verbal assaults upon the father in the presence of the child are clearly degrading and serve to diminish his parental status for her parental gain.” The mother‘s vitriol against the father was not isolated. A West Virginia guardian ad litem for the
{¶12} The most serious example of the mother‘s conduct was her claim that the child‘s stepmother had intentionally injured the child by dragging her by the ankle. The stepmother denied the allegations, and the West Virginia guardian ad litem assigned to investigate the case found no basis for concluding that the child had suffered any injury as a result of mistreatment by the father or the stepmother. Addressing the mother‘s allegations, the court found that the child might have suffered an injury, but of the two different explanations offered by the opposing parties, the stepmother‘s explanation “was not unreasonable or suspicious” while the mother‘s explanation “could not be substantiated.” The court found that the allegation against the stepmother “was overblown and exploited by the mother,” that it created “another barrier to the father‘s parenting time,” and that the mother used her allegations to “minimize or eliminate mother‘s obligations to provide contact between the child and father.”
{¶13} The mother received her information about alleged abuse from the child. But the child‘s veracity was dubious — the West Virginia guardian ad litem noted that the child had a “vivid imagination,” a conclusion that even the mother was forced to concede during her testimony at the hearing. In fact, during her interview with the West Virginia
{¶14} Regardless of whether the child could be believed, the evidence showed that the mother harbored great animosity toward the stepmother, making unprovoked comments in front of the child that the stepmother was a “slut” and a “whore.” This animosity caused the mother to latch onto any statement by the child that might paint the father and stepmother in a poor light. For example, the mother claimed that the father had locked the child in a closet, but the West Virginia guardian ad litem found it “apparent” that the father and child had been playing “hide and seek.” The mother admitted that the child “makes up stories all the time.” But instead of determining the veracity of the child‘s statements, no matter how incredible they might be, given the child‘s history of fabricating stories, the mother used them against the father in her attempt to harm his relationship with the child.
{¶15} We could go on with more facts from the record, but to do so would be redundant. The court did not expressly state that there was a change in circumstances, but no other finding could rationally be supported on the record. Indeed, the court proceeded to analyze the case solely on whether the child‘s best interest warranted a
III
{¶16} In order to establish the best interest of the child, the court is required to consider all relevant factors, including those set forth in
A
{¶17} Our recitation of the court‘s findings relative to the mother‘s repeated interference with the father‘s visitation rights applies equally to the determination of the child‘s best interest. Given the basic proposition that, apart from truly exceptional cases, it is in a child‘s best interest to have a strong relationship with both parents, the mother‘s repeated interference with the father‘s visitation rights was a prior act that was not in the child‘s best interest. She moreover gave no indication that she would cease her conduct if allowed to remain the residential parent.
{¶18} The mother‘s repeated attempts to interfere with the father‘s visitation was a factor under
Both parents provide appropriate care; however, they nurture the child differently according to the roles they play in the child‘s life, to wit: mother and father. At times, father appears to be more cooperative, provide more appropriate care and nurturing, particularly during periods of high parental conflict. The Court finds that most significantly, mother has and continues to be the primary caretaker of the child; the child has special needs and mother has engaged medical service providers, and monitors her needs closely. While father has the same concern for the child‘s needs, but as active military, father does not have a permanent residence and much of the child‘s care may fall to her step mother relating to father‘s work hours, inaccessibility, or change in orders or duty station. Mother provides a stable, permanent residence for the child and her family, and the child has been substantially integrated into the home, school and community settings, including medical specialists.
{¶19} The father contests some of these findings; for example, that the child has “special needs.” The court did not state what those special needs were and our review of the record fails to show any mental or physical condition of the child that would warrant that characterization. As the term “special needs” is commonly used, it implies a child with an identified disability, health, or mental health condition requiring intervention, special education services, or other specialized services and support.
{¶20} The child is asthmatic and takes medication to control that condition. While many medical conditions undeniably constitute a special need, there was nothing in the record to suggest that the child‘s asthma was so severe that the father would be unable to deal with it as effectively as the mother. The court made no findings specific to the father‘s ability to care for the child‘s asthma, but the findings it did make regarding each parent‘s ability to care for the child showed that “[e]ach parent provides an appropriate level of care and supervision of the child[.]”
B
{¶22} The court was also concerned with the father‘s ability to establish a permanent residence given his active service in the military. This was presumably a factor under
C
{¶24} We review a court‘s determination of the best interest of a child for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). The court‘s discretion is not unlimited, however, and a decision will be overturned as an abuse of discretion if it is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Baxter v. Baxter, 27 Ohio St.2d 168, 172-173, 271 N.E.2d 873 (1971).
{¶26} On the other hand, the court found that “[a]t times, father appears to be more cooperative, provide more appropriate care and nurturing, particularly during periods of high parental conflict.” Unlike the mother, he was not ordered to engage in counseling “to address anger management, emotional stability and co-parenting.” It is irrational for the court to conclude that the mother who so lacked emotional stability and parenting abilities that she was ordered to seek counseling to address those issues would provide a better parenting experience than the father who could provide more appropriate care and who, most importantly, would not interfere with the mother‘s visitation rights.
{¶28} This case is very similar to In re D.M., 196 Ohio App.3d 50, 2011-Ohio-3918, 962 N.E.2d 334 (12th Dist.), in which the Twelfth District Court of Appeals found that the juvenile division abused its discretion by granting custody of a child to a mother with a documented history of obstructing a father‘s parenting time. Although the Twelfth District found that both parents in that case “stand on an equal footing under several of the statutory factors in
{¶29} We find no basis for distinguishing the facts of this case from D.M. and are compelled to conclude that this is the rare case where the court abused its discretion by denying the motion for a change of custody and keeping the child in the mother‘s custody. In reaching this conclusion, we stress that we are not substituting our judgment for that
{¶30} We are acutely aware that the child has only lived with the mother, but that fact alone cannot be a basis for affirming the court‘s refusal to change custody. The court found that the child has “adjusted to both homes and communities of the parents,” so her relocation into the father‘s custody would not necessarily be traumatic. And the child‘s adjustment to the mother‘s home is not paramount over the child and father‘s right to a relationship free from harassment and interference by the mother. For us to hold otherwise would reward the mother‘s conduct of interfering with the father‘s visitation and deprive the child of a meaningful relationship with the father.
{¶31} Consistent with the judgment rendered in D.M., we sustain the first assignment of error. Our holding renders the remaining assignments of error moot. See
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas — Juvenile Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., CONCURS;
JAMES J. SWEENEY, J., CONCURS IN JUDGMENT ONLY