[Cite as In re C.K., 2013-Ohio-4513.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: C.K. and T.K. :
: C.A. CASE NO. 25728
: T.C. NO. 2012-4179
2012-4181
:
(Civil appeal from Common
: Pleas Court, Juvenile
Division)
:
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OPINION
Rendered on the 11th day of October , 2013.
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J.K.
Appellee
R.M. and B.M.
Appellees
T.K., Jr.
Appellant
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DONOVAN, J.
2
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of the father
of T.K. and the step-father of C.K., hereinafter “Father.” Father, who is incarcerated in
Chillicothe, Ohio, appeals from the April 10, 2013 decision of the juvenile court that
overruled his objections to the magistrate’s decision that dismissed his petitions for
visitation with T.K. and C.K., overruled his motion to compel his attendance at the visitation
hearing, and denied his request for findings of fact and conclusions of law. No response was
filed to Father’s brief herein
{¶ 2} By way of background, on June 6, 2012, R.M. and B.M. filed petitions in the
juvenile court seeking custody of T.K. and C.K. The petitions indicate that R.M. is the
children’s maternal grandmother, and that their mother, J.K. has custody of them, although
the children reside with A.G., their great-grandmother. The petitions provide that T.K. was
born on December 18, 2002, and that C.K. was born on September 13, 2001, and that C.K.’s
father is deceased. Each petition provides that J.K. “is an alcoholic, she is not able to take
care of her children[.] Their Great-Grandmother [A.G.] is getting too old to be able to handle
them.” Father is listed on the instructions for service for the petition regarding the custody
of T.K.
{¶ 3} On June 8, 2012, the juvenile court set the matter for a hearing on September
17, 2012. On October 16, 2012, the “Magistrate’s Decision and Judge’s Order of Legal
Custody” was issued. It provides as follows:
***
Present at the hearing were: [B.M.], Grandfather and [R.M.],
Grandmother.
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All interested parties or persons have appeared or have been served
due legal notice of this proceeding. This Court fully explained to all parties
their legal rights, including the right to counsel, and the possible
consequences of this hearing, whereupon said parties acknowledged to the
Court that they understood the same.
For good cause shown and the Court finding it to be in the children’s
best interest, therefore orders (sic) that legal custody of the children be and
hereby is granted to the maternal grandparents, [B.M. and R.M.], * * *
***
{¶ 4} On October 29, 2012, Father filed his pro se objections, request for findings
of fact and conclusions of law, and request for appointed counsel. On December 21, 2012,
the court overruled Father’s objections and adopted the Magistrate’s decision as follows:
***
* * * [Father] objects contending he was provided inadequate notice
and legal custody to maternal grandparents was not in the best interest of the
children. Further, [Father] requests findings of fact and conclusions of law
pursuant to Juv.R.40(D)(3)(a)(ii) as well as the appointment of counsel.
Upon careful review of the available record, the Court hereby
OVERRULES the same. Pursuant to Juv.R.40(D)(3)(b)(iii), an objection to
a factual finding shall be supported by a transcript of all the evidence
submitted to the Magistrate relevant to that finding. The Court notes that
[Father] failed to provide the Court with a transcript of the hearing, which
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would allow the Court to more thoroughly review the record to determine if
the Magistrate was correct in her Decision. Without said transcript, the
Court shall accept as true the Magistrate’s findings of fact. Therefore, based
upon review of the available record, the Court finds the Decision of the
Magistrate was properly supported by the factual findings.
Pursuant to Juv.R.40(D)(3)(b)(iii), a request for findings of fact and
conclusions of law shall be made before the entry of a magistrate’s decision
or within seven (7) days after the filing of a magistrate’s decision. The
record indicates [Father’s] request for findings of fact and conclusions of law
was filed October 29, 2012, six (6) days untimely. Therefore, the request for
findings of fact and conclusions of law is DENIED.
[Father] contends he was provided inadequate notice as he was not
included in the original complaint and the notice he did receive gave no
indication the hearing was for final disposition of legal custody. The record
indicates that [Father] was included in the original complaint for custody of
[T.K.], filed June 6, 2012. [Father] was not included in the original
complaint for custody of [C.K.] filed June 6, 2012, as he is not the child’s
biological father. Further, the record indicates the notice served upon
[Father] by Certified US Mail on June 12, 2012 indicated the hearing
concerned the petition for custody. Therefore, the court finds [Father]
received proper notice.
[Father] also requests the appointment of counsel. A proceeding for
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legal custody is considered a civil matter excepted from an entitlement from
appointed counsel for an indigent party. As [Father] is not legally entitled to
appointed counsel, said motion is hereby DENIED.
{¶ 5} On February 5, 2013, Father filed his Petitions for Visitation for both
children, and no response thereto was filed. His supporting memoranda provide that he
“believes that his incarceration should not be the sole determining factor in considering
Granting him Visits with his Children. [His] incarceration does not include a crime of
violence or is there an offenses (sic) against his Children or family.” Father further
“maintains his innocence in his criminal case and has been diligently working to clear his
name through several different governmental agencies, and the Courts.” We note that the
nature of Father’s criminal history is not part of the record before us. Father set forth the
following proposed visitation schedule:
1. [Father] is asking for a four hour visit a month for three (3) months,
until such time that the children recognize that he is their Father, and
Step-Father;
2. That visiting continue on a Quarterly basis, for a period of four
hours, with the inclusion of letter writing and phone calls;
3. However if [Father] is still incarcerated, that personal visit may be
replaced with Video Visits, via, Skype;
4. [Father] is also asking that he be permitted updated pictures of the
children, and he will in exchange provide (sic) the same of himself and their
sibling.
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{¶ 6} Father asserted that his “request[s] are not unreasonable, considering that he
and his family have been denied access to the children for over six years. He believes that
[R.M.] is suitable to supervise these visits, and at some point [Father] will be able to provide
some financial support. [C.K. and T.K.] are BiRacial (sic) children, and it is more then (sic)
a benefit for them to see and learn from both sides of their culture.”
{¶ 7} The juvenile court issued notice that a hearing on Father’s petition was set
for April 15, 2013. On February 25, 2013, Father filed a “Motion to Compel Appearance of
Petitioner,” via telephone conference or video. Father asserted that he “wants to protect his
Right to be heard, while eliminating to inconvenience (sic) of being transported out to
Court.” Also on February 25, 2013, Father filed “Petitioner’s Request for Appointment of
Counsel.”
{¶ 8} On March 4, 2013, the Magistrate issued a decision that provides:
This came before Magistrate Rebecca J. Wolf administratively on
February 27, 2013 for a hearing regarding the motion for visitation * * * , the
motion for appointment of counsel * * * , and the motion to compel * * *.
And for good cause shown, it is ordered that the same be and hereby
is dismissed. It is further ordered that the hearing set for April 15, 2013
be and hereby is vacated.
An amended decision was issued on March 6, 2013, to correct Father’s address.
{¶ 9} On March 13, 2013, Father filed his objections and request for findings of
fact and conclusions of law. Father asserted that he objects “solely because the matter for
Visitation was Set for a Hearing on April 15, 2013.” He further asserted as follows:
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[Father] filed a Motion for Counsel, and Motion to Compel to make
sure that he would be heard on his Petition. He was not afforded the right to
be heard on the Original Case of Custody file (sic) by [R.M. and B.M.]
Every effort [Father] made to file a response was to properly (sic) submitted
to the Court, by the Clerk’s office. There are children involved in this case,
and as the father or Legal Step-Father, [Father] is only asking for a fair
opportunity to be heard, and have a relationship with his children.
The Magistrate Dismissed the Visitation Request without any reason
or fact that would conclude that [Father] or his family should be again denied
access to his children. Since this matter was not heard in Open Court, but
however Administratively heard, there is no transcript of the proceeding. It
would be a further miscarriage of justice to deny [Father] Facts and Findings
and Conclusions of Law for the Dismissal of these Motions.
WHEREFORE, [Father] prays this Court will accept[] his reasonable
request and issue Facts and Findings and Conclusions of Law and permit him
to properly Appeal this Decision.
{¶ 10} The trial court’s April 10, 2013 decision provides, “Upon careful review of
the available record, the court hereby OVERRULES the [objections]. Further, the Court
DENIES the request for findings of fact and conclusions of law.”
{¶ 11} Father asserts three assignments of error herein. We will consider Father’s
first two assigned errors together. They are as follows:
“THE TRIAL COURT ABUSED ITS DISCRETION DENYING APPELLANT’S
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REQUEST FOR VISITATION WITHOUT A HEARING.”
And,
“THE TRIAL COURT’S DETERMINATION AND FINDING THAT THE
APPELLANT[’] (sic) REQUEST FOR VISITATION WHILE INCARCERATED IS NOT
WELL FOUNDED IS BASED UPON THE ABUSE OF DISCRETION OF THE TRIAL
COURT JUDGE.”
{¶ 12} As this Court has previously noted:
[P]arental rights [of] visitation are within the sound discretion of the
trial court. * * * Indeed, the trial court’s discretion regarding visitation is
even broader than its discretion regarding custody. Not only is the trial court’s
discretion very broad, but a parent who seeks to modify a previous visitation
arrangement is the one who bears the burden of proof as to whether the
arrangement is not in the best interest of the children. * * * . It is also the
rule that while a parent’s right of visitation with his or her children is an
important right, it is subservient to the welfare of the children. * * * . In re
Jergens, 2d Dist. Montgomery No. 16848, 1998 WL 336702, *1 (June 26,
1998).
An abuse of discretion is also the standard of review for visitation determinations involving
a non-parent. Collins v. Collins, 12th Dist. Fayette No. CA2003-06-007, 2004-Ohio-5653,
¶ 8.
{¶ 13} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d
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1248 (1985). A decision is unreasonable if there is no sound reasoning process that would
support that decision. AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).” Feldmiller v.
Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.
{¶ 14} We note that, as to T.K., Father has “residual parental rights, privileges, and
responsibilities,” which means “those rights, privileges, and responsibilities remaining with
the natural parent after the transfer of legal custody of the child, 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.”
R.C. 2151.011(B)(48).
{¶ 15} In In re Jergens, this Court noted that “there is nothing in the law that
mandates that the incarcerated parent has a right to attend any visitation hearing concerning
his children.” Id., *2. We further recognized, “however, that parents have the right to
present evidence in an attempt to meet their burden of proof. If they are unable to attend a
visitation hearing, they can always file affidavits or testify by deposition.” Id.
{¶ 16} In administratively dismissing the matter, without notice, almost 6 weeks
before the scheduled hearing, the Magistrate denied Father his right to present evidence that
granting him visitation rights is in the children’s best interest. Accordingly, we conclude
that the trial court abused its discretion in adopting the Magistrate’s decision, and Father’s
first two assigned errors are sustained.
{¶ 17} Father’s third assigned error is as follows:
“THE TRIAL COURT’S DETERMINATION AND FINDING THAT THE
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APPELLANT[’]S REQUEST FOR COURT APPOINTED COUNSEL IS NOT REQUIRED
UNDER THE CURRENT RULES OF THE COURT IS AN ABUSE OF DISCRETION.”
{¶ 18} R.C. 2151.352 provides:
A child, the child’s parents or custodian, or any other person in loco
parentis of the child is entitled to representation by legal counsel at all stages
of the proceedings under this chapter or Chapter 2152 of the Revised Code.
If, as an indigent person, a party is unable to employ counsel, the party is
entitled to have counsel provided for the person pursuant to Chapter 120 of
the Revised Code except in civil matters in which the juvenile court is
exercising jurisdiction pursuant to division (A)(2) * * * of section 2151.23 of
the Revised Code.
{¶ 19} Father’s petition requested visitation, the court exercised jurisdiction
pursuant to R.C. 2151.23(A)(2), and Father was therefore not entitled to appointed counsel.
Accordingly, Father’s third assigned error is overruled.
{¶ 20} Having sustained Father’s first two assigned errors, the matter is reversed
and remanded for proceedings consistent with this opinion.
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FAIN, P.J. and FROELICH, J., concur.
Copies mailed to:
J.K.
R.M. and B.M.
T.K., Jr.
Hon. Nick Kuntz