[Cite as In re J.L.H., 2011-Ohio-5586.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN THE MATTER OF: : W. Scott Gwin, P.J.
: John W. Wise, J.
J.L.H., J.A.H. and F.K.H.. : Julie A. Edwards, J.
:
: Case No. 2010CA00266
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas, Family
Court Division, Case Nos.
2008JCV0724 and 2009JCV01490
JUDGMENT: Affirmed In Part and Reversed
and Remanded In Part
DATE OF JUDGMENT ENTRY: October 17, 2011
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
MATTHEUW OBERHOLTZER TYLER J. WHITNEY
116 Cleveland Avenue, North 137 South Main Street
Suite 650 Suite 201
Canton, Ohio 44702 Akron, Ohio 44308
[Cite as In re J.L.H., 2011-Ohio-5586.]
Edwards, J.
{¶ 1} Appellants, F.H. and E.H., appeal from the August 25, 2010, Judgment
Entry of the Stark County Court of Common Pleas, Family Court Division.
STATEMENT OF THE FACTS AND CASE
{¶ 2} Appellants, who are married, are the parents of J.L.H. (DOB 3/17/05),
J.A.H. (DOB 2/28/07) and F.K.H. (DOB 4/28/09). Appellees Thomas and Kathleen
Shimko are the maternal grandparents and appellees Thomas and Judit Shimko are the
maternal aunt and uncle.
{¶ 3} On June 30, 2008, appellees Thomas and Kathleen Shimko filed a
complaint in Case No. 2008 JCV 0724 seeking custody of J.L.H. and J.A.H. Appellees,
in their complaint, alleged that appellant E.H. was mentally retarded and that they had
reason to believe that appellant F.H. physically and/or sexually abused the children.
Appellees, in their motion, asked that they be awarded visitation. On the same date,
appellee Thomas and Kathleen Shimko filed a motion asking to be designated the
temporary residential and legal custodian of the two children and for an oral hearing. A
hearing was scheduled for September 8, 2008.
{¶ 4} On September 2, 2008, appellant E.H. filed a motion asking that the
complaint for custody filed by appellees Thomas and Kathleen Shimko be dismissed on
the basis that the facts alleged in the complaint did not provide a sufficient basis to
interfere with her fundamental right to the custody, care and control of her children, that
the childrens’ parents had not invoked the jurisdiction of any court concerning the
children and that “this is not a matter brought to the court under the authority of children
services.” Appellant E.H., in her motion, also alleged that there was no “precipitating
Stark County App. Case No. 2010CA00266 3
event” that would grant appellees Thomas and Kathleen Shimko the right to seek
visitation with the children. Appellant E.H. noted that she had been investigated three
times by the Stark County Department of Job and Family Services and that all three
times, the cases had been closed with no finding of neglect or abuse.
{¶ 5} Pursuant to a Magistrate’s Order filed on September 9, 2008, the
Magistrate overruled appellant E.H.’s motion and granted appellees Thomas and
Kathleen Shimko leave to amend their complaint to join appellant F.H. as a necessary
party. The Magistrate also granted appellees Thomas and Kathleen Shimko weekly
unsupervised companionship with the two children on Saturdays from 11:00 a.m. to
4:00 p.m. A pretrial was scheduled for November 5, 2008.
{¶ 6} On September 10, 2008, appellees Thomas and Kathleen Shimko filed an
amended complaint for custody, alleging that appellants were unfit and/or unsuitable to
raise J.L.H and J.A.H.
{¶ 7} Appellant F.H., on September 12, 2008, filed a pro se objection to
unsupervised visitation. Appellant E.H., on September 19, 2008, filed a Motion to Set
Aside Magistrate Order for Unsupervised Visitation.
{¶ 8} Thereafter, on October 24, 2008, appellants filed a Motion for Immediate
Termination of Interim Visitation Order, arguing that they were not unfit in any way and
that appellees’ allegations against them were false and without merit. A hearing on the
same was scheduled for November 5, 2008.
{¶ 9} The Guardian Ad Litem, as memorialized in a report filed on November 5,
2008, indicated that he could not support the complaint for change of custody. The
Stark County App. Case No. 2010CA00266 4
Guardian Ad Litem stated that the appellees’ allegations did not establish that
appellants were unfit.
{¶ 10} A hearing was held on November 5, 2008 on appellees’ Motion for
Custody and appellants’ Motion to Terminate Visitation. A final pretrial was scheduled
for January 28, 2009 and the Motion to Terminate Visitation was scheduled for the
same day. (This pretrial was continued due to, inter alia, medical issues of counsel for
appellees and was not held until June 10, 2009).
{¶ 11} A hearing on appellant F.H’s September 12, 2008, objection to
unsupervised visitation and appellants’ October 24, 2008, Motion for Immediate
Termination of Interim Visitation Order was held on November 10, 2008. Pursuant to a
Judgment Entry filed on November 14, 2008, the objections were overruled.
{¶ 12} A pretrial hearing was held on June 10, 2009, before a Magistrate.
Pursuant to a Magistrate’s Order filed on June 11, 2009, the Magistrate set a trial for
September 30, 2009, and ordered the parties to submit to a custody evaluation with Dr.
Tully at appellees Thomas and Kathleen Shimko’s cost. The parties were to call for an
appointment no later than June 11, 2009.
{¶ 13} Appellees Thomas and Kathleen Shimko, on September 17, 2009, filed a
request to enter upon appellants’ land to inspect and photograph the same.
{¶ 14} Appellees Thomas and Kathleen Shimko, on September 25, 2009, filed a
Motion for Contempt against appellants, alleging, in part, that they had violated court
orders by failing to complete a custody evaluation with Dr. Tully and by failing to allow
their attorney onto appellant’s property. A show cause hearing was scheduled for
September 30, 2009, before a Magistrate. The Magistrate, as memorialized in an Order
Stark County App. Case No. 2010CA00266 5
filed on September 30, 2009, found that appellant F.H. had stated to the Guardian Ad
Litem that appellants would not complete the psychological evaluation with Dr. Tully and
that without such evaluation, the issue of appellants’ suitability could not be determined.
The Magistrate continued the trial and also granted an interim order of custody of J.A.H.
and J.L.H. to appellees Thomas and Kathleen Shimko. Appellees dismissed their
pending contempt action on September 30, 2009.
{¶ 15} Appellants, on October 2, 2009, filed an objection to the interim order of
custody to appellees. On October 6, 2009, they filed a motion for immediate termination
of such order.
{¶ 16} A hearing on appellants’ October 2, 2009, objection to change of custody
and other motions was held on November 9, 2009. The trial court, as memorialized in a
Judgment Entry filed on November 10, 2009, stated, in relevant part, as follows: “No
transcript was provided and Attorney Oberholtzer [appellees’ attorney] moved to dismiss
on those grounds but the court has heard from both parties and has considered the
merits of these matters. The parents motions are all OVERRULED/DISMISSED and this
case is closed.” The trial court’s Judgment Entry contained the following language:
{¶ 17} “A party may, pursuant to Rules 3 and 4 of the Rules of Appellate
Procedure, appeal a final order of this court by filing a Notice of Appeal within thirty days
of the filing of the Entry by the Trial Court. A party shall not assign as error on appeal
the court’s adoption of any finding of fact or conclusion of law in this decision unless the
party timely and specifically objects to that finding or conclusion as described herein.
Failure to file a timely Notice of Appeal could result in a party waiving his or her right to
appeal.”
Stark County App. Case No. 2010CA00266 6
{¶ 18} Thereafter, on November 24, 2009, appellees Thomas Shimko and Judit
Shimko, maternal aunt and uncle, filed a complaint in Case No. 2009 JCV 01490
seeking legal custody of F.K.H., who was born on April 28, 2009. On the same date,
they filed a motion asking to be designated temporary residential and legal custodian of
the minor child. A hearing was scheduled for January 25, 2010. Pursuant to a
Magistrate’s Order filed on January 27, 2010, a pretrial was scheduled for March 24,
2010 and appellees’ motion for immediate placement/transfer of physical custody was
overruled.
{¶ 19} On January 7, 2010, appellants had filed a Motion for Return of Custody in
Case No. 2008 JCV 0724. Appellants, in their motion, had stated that since such case
had been dismissed, they had both submitted to psychological evaluations and been
involved in counseling.
{¶ 20} A hearing before a Magistrate was held on March 24, 2010. The
Magistrate, in an order filed on March 26, 2010 in both cases, ordered all parties to
submit to a parenting evaluation with Dr. Robin Tener and granted appellants visitation
with J.A.H. and J. L.H. The Magistrate also scheduled a pretrial for June 30, 2010. The
Magistrate ordered appellants to pay 20% of the costs of the parenting evaluation. The
Magistrate also indicated that she was taking the issue of visitation with F.K.H. under
advisement.
{¶ 21} On April 1, 2010, appellees Thomas and Judit Shimko filed a Motion in
Case No. 2009 JCV 01490 to Set Aside the Magistrate’s Order, arguing that the
Magistrate should have granted them visitation with F.K.H. A hearing on such motion
was set for April 27, 2010. Neither appellants nor their attorney appeared at such
Stark County App. Case No. 2010CA00266 7
hearing. As memorialized in a Judgment Entry filed on April 27, 2010, the trial court
sustained the Motion to Set Aside and granted custody of F.K.H. to appellees Thomas
and Judit Shimko. The trial court indicated that the Guardian Ad Litem was concerned
about appellants’ home and “possible mental health issues of the parties which may
place this child in danger.” The trial court stated, in its entry, that it would consider
“appropriate visitation with the parents upon compliance with court orders and proper
application.” Appellants filed a Motion for Relief from Judgment on April 28, 2010,
alleging, in part, that appellants were never notified of the hearing date.
{¶ 22} On April 28, 2010, appellees Thomas and Judit Shimko filed a motion in
Case No. 2009 JCV 01490 requesting that a bench warrant be issued for appellants.
Appellees, in their motion, indicated that they had been to appellants’ home on two
separate occasions and that appellants had not been present. In their motion, they
indicated that they believed that appellants had fled with F.K.H. Pursuant to a
Judgment Entry filed on the same date, appellants were ordered to immediately turn
over custody of F.K.H. to appellees Thomas and Judit Shimko. After appellants failed
to do so, appellees Thomas and Judit Shimko filed a motion for contempt against them.
Appellees, in their motion, also alleged that appellant had violated previous court orders
by not paying the court-ordered psychologist and scheduling a psychological
examination and by refusing to allow the Guardian Ad Litem into their house to conduct
a home visit. A hearing on such motion was scheduled for May 4, 2010.
{¶ 23} Appellees, Thomas and Kathleen Shimko, on April 28, 2010, filed a motion
in Case No. 2008 JCV 0724 requesting that visitation between the minor children and
appellants be terminated. Appellees, in their motion, indicated that in the companion
Stark County App. Case No. 2010CA00266 8
case (Case No. 2009 JCV 01490), their son and daughter-in-law had been granted legal
custody of F.K.H. and that it was believed that appellants had fled the jurisdiction with
F.K.H. Appellees further indicated that they were concerned that appellants might show
up at their house for visitation and then attempt to flee the jurisdiction with J.L.H. and
J.A.H. As memorialized in a Judgment Entry filed on April 28, 2010, such motion was
granted and visitation was terminated until further order of court.
{¶ 24} As memorialized in a Judgment Entry filed on May 4, 2010 in Case No.
2009 JCV 01490, the trial court found that appellant F.H. had been given the
opportunity to reveal the whereabouts of J.F.H. and had indicated that the child was at
home with appellant E.H. The trial court found probable cause for law enforcement to
enter the home, secure the child and return the child to his custodians. Pursuant to a
Judgment Entry filed in such case on May 5, 2010, the trial court took the Motion for
Relief under Advisement and ordered that the contempt be merged to the pretrial.
{¶ 25} On May 6, 2010, appellants filed a motion in Case No. 2008 JCV 0724 for
modification of the trial court’s March 26, 2010, order. Appellants, in their motion,
indicated that they were indigent and could not pay the $1,200.00 deposit for their share
of the psychological evaluations by Dr. Tener. A hearing on such motion was scheduled
for June 30, 2010. An amended motion to modify was filed on June 29, 2010.
{¶ 26} A hearing on appellants’ Motion for Return of Custody and appellees
Thomas and Judit Shimko’s Motion for Custody of F.K.H. was held on June 30, 2010,
before a Magistrate. The Magistrate, in an order in both cases, found that appellants
had not paid for the psychological evaluation. The Magistrate ordered that a final pretrial
Stark County App. Case No. 2010CA00266 9
be scheduled for August 25, 2010, and that prior orders regarding placement of the
children remain in effect.
{¶ 27} Appellants, on August 17, 2010, filed a motion in Case No. 2008 JCV
0724 seeking visitation with their minor children during the pendency of the case and
also filed a motion seeking to modify the court order requiring them to submit to a
psychological evaluation with Dr. Robin Tener. Appellants alleged that they could not
afford Dr. Tener’s fee and that they had found another psychologist who would be able
to perform a psychological evaluation for a lesser cost. A hearing on the motion to
modify was scheduled for August 25, 2010.
{¶ 28} On August 17, 2010, appellants filed a Motion for Visitation in Case No.
2009 JCV 01490, seeking visitation with their youngest child during the pendency of the
case. On such date, appellants also filed a motion to modify the order requiring them to
submit to a psychological evaluation with Dr. Tener.
{¶ 29} Pursuant to a Judgment Entry filed on August 26, 2010, in both cases the
trial court dismissed all pending motions in Case No. 2008 JCV 0724 without prejudice1
and ordered that appellees’ motions and interim orders be made the final orders in Case
No. 2009 JCV 01490. The trial court ordered that both cases be closed and that any
party may “refile similar motions affecting custody/visits regarding these children if
accompanied by the completed Dr. Tener report and an additional deposit of $1000 for
the GAL…” The trial court, in its Judgment Entry, made the following findings of fact:
{¶ 30} “Parties appeared for PT and these parents have still not complied with
the court’s orders, especially regarding the needed custody evaluations. The court did
hear from all parties present.
1
Because the motions were dismissed without prejudice, they presumably can be refiled.
Stark County App. Case No. 2010CA00266 10
{¶ 31} “The court is not able to properly consider these motions and the parents
have failed to prosecute their motions as a result. These parents present with
substantial mental health issues and have secreted these children from the authorities
in the past. The father also indicated in open court in a prior proceeding, while they
were hiding children, that the mother was suicidal and the children may in fact be in
danger. The court has heard and considered the recommendations of the GAL as to
the best interests of these children.”
{¶ 32} Appellants now raise the following assignments of error on appeal:
{¶ 33} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
APPELLEES CUSTODY OF THE APPELLANTS THREE MINOR CHILDREN IN
VIOLATION OF THEIR CONSTITUTIONAL RIGHTS.
{¶ 34} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
APPELLEES CUSTODY OF THE APPELLANTS THREE MINOR CHILDREN
WITHOUT AN EVIDENTIARY HEARING AND WITHOUT A FINDING OF
UNSUITABILITY.
{¶ 35} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
APPELLEES CUSTODY OF THE APPELLANT’S THREE MINOR CHILDREN AND
CLOSING THE CASES FOR THE REASON THAT APPELLANTS ALLEGEDLY
FAILED TO COMPLY WITH COURT ORDERS.
{¶ 36} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
APPELLEES VISITATION WITH THE APPELLANTS TWO MINOR DAUGHTERS
WITHOUT CONSIDERING THE APPELLANTS WISHES AND/OR BEST INTERESTS
OF THE CHILDREN.
Stark County App. Case No. 2010CA00266 11
{¶ 37} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING
THE APPELLANTS REASONABLE VISITATION WITH THEIR MINOR CHILDREN
DURING THE PENDENCY OF THE CASES AS WELL AS IN THE FINAL
DISPOSITION OF THESE CASES.”
I, II, III
{¶ 38} Appellants, in their first three assignments of error, argue that the trial
court erred in granting custody of J.L.H. and J.A.H. to appellees Thomas and Kathleen
Shimko and F.K.H. to appellees Thomas and Judit Shimko.
{¶ 39} As is stated above, the Magistrate in Case No. 2008 JCV 0724 as
memorialized in an Order filed on September 30, 2009, granted an interim order of
custody of J.A.H. and J.L.H. to appellees Thomas and Kathleen Shimko. Appellants, on
October 2, 2009, filed an objection to the interim order of custody to appellees and, on
October 6, 2009, filed a motion for immediate termination of such order.
{¶ 40} A hearing on appellants’ October 2, 2009 objection to change of custody
and other motions was held on November 9, 2009. The trial court, as memorialized in a
Judgment Entry filed on November 10, 2009, stated, in relevant part, as follows: “No
transcript was provided and Attorney Oberholtzer moved to dismiss on those grounds
but the court has heard from both parties and has considered the merits of these
matters. The parents motions are all OVERRULED/DISMISSED and this case is
closed.” The trial court’s Judgment Entry contained the following language:
{¶ 41} “A party may, pursuant to Rules 3 and 4 of the Rules of Appellate
Procedure, appeal a final order of this court by filing a Notice of Appeal within thirty days
of the filing of the Entry by the Trial Court. A party shall not assign as error on appeal
Stark County App. Case No. 2010CA00266 12
the court’s adoption of any finding of fact or conclusion of law in this decision unless the
party timely and specifically objects to that finding or conclusion as described herein.
Failure to file a timely Notice of Appeal could result in a party waiving his or her right to
appeal.”
{¶ 42} Appellants did not timely appeal from the trial court’s November 10, 2009
Judgment Entry which finalized the grant of custody of J.A.H. and J.L.H. to appellees
Thomas and Kathleen Shimko. Because they did not timely appeal the decision to
award legal custody of the two children to appellees Thomas and Kathleen Shimko, we
do not have jurisdiction to consider appellants’ claims in Case No. 2008 JCV 0724. See
In the Matter of M.D.D., Butler App. No. CA2009-06-170, 2010-Ohio-326. While the trial
court did not specifically state that custody was granted to Thomas and Kathleen
Shimko, it appears the parties understood that the order of November 10, 2009, was a
grant of custody to maternal grandparents Thomas and Kathleen Shimko. In appellants’
January 7, 2010, Motion for Return of Custody, appellants’ counsel stated, “the parents
have not had any contact with their daughters since the Court order granting Maternal
Grandparents custody of them.” (Emphasis added).
{¶ 43} However, appellants also challenge the award of legal custody of J.F.H. to
appellees Thomas and Judit Shimko in Case No. 2009 JCV 01490. As is stated above,
the trial court, pursuant to a Judgment Entry filed on August 26, 2010, made the interim
order of custody of appellants’ son, to appellees Thomas and Judit Shimko, final and
closed the case. The trial court also ordered that appellants were to have no contact
with their children.
Stark County App. Case No. 2010CA00266 13
{¶ 44} From the record it is clear, and appellees admitted at the oral argument in
this matter, that no evidentiary hearing was ever scheduled on appellees Thomas and
Judit Shimko’s complaint seeking custody of F.K.H. and that none was ever held. It is
clear from the record that the trial court granted custody of such child to appellees
Thomas and Judit Shimko as punishment for appellants’ failure to submit to a
psychological evaluation by Dr. Tener.
{¶ 45} We find that the trial court violated appellants’ due process rights by
granting custody of F.K.H. to appellees Thomas and Judit Shimko, without taking any
evidence or giving appellants a right to be heard, as punishment for non-compliance
with court orders. “Generally, due process requires that ‘a deprivation of life, liberty, or
property be preceded by notice and opportunity for hearing appropriate to the nature of
the case.’ Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct.
1487, 84 L.Ed.2d 494, (citing Mullane v. Central Hanover Bank & Trust Co. (1950), 339
U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865). At a minimum, due process of law requires
notice and opportunity for a hearing, that is, an opportunity to be heard. Mathews v.
Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. See also McGeorge v.
McGeorge (May 22, 2001), Franklin App. No. 00AP 1151, 2001 WL 537037.” In Re
Roberson, Stark App. No. 2003CA00393, 2004–Ohio–4996, ¶ 22.
{¶ 46} Parents who are suitable have a paramount right to custody of their minor
children. In re Perales (1977), 52 Ohio St.2d 89, 97, 369 N.E.2d 1047. “In a child
custody case arising out of a parentage action between a natural parent of the child and
a nonparent, a trial court must make a parental unsuitability determination on the record
Stark County App. Case No. 2010CA00266 14
before awarding legal custody of the child to the nonparent.” In re Hockstok, 98 Ohio
St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, at the syllabus.
{¶ 47} As noted by the court in Tabler v. Snider, Noble App. No. 08 NO 357,
2010-Ohio-1545, “It is well recognized that the right to raise a child is an ‘essential’ and
‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680, citing In re
Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. Moreover, a parent's right to
custody of his child is paramount. Id., citing Perales at 97, 369 N.E.2d 1047. Because a
parent has a fundamental liberty interest in the custody of his or her child, this important
legal right is “protected by law and, thus, comes within the purview of a ‘substantial
right’[.]” Murray at 157, 556 N.E.2d 1169. “Therefore, parents ‘must be afforded every
procedural and substantive protection the law allows.’ “In re Hayes, 79 Ohio St.3d at
48, 679 N.E.2d 680, quoting In re Smith (1991), 77 Ohio App.3d 1, 601 N.E.2d 45.”
{¶ 48} “Accordingly, it is well settled that in custody disputes between parents
and nonparents, “a court may not award custody to the nonparent ‘without first
determining that a preponderance of the evidence shows that the parent abandoned the
child; contractually relinquished custody of the child; that the parent has become totally
incapable of supporting or caring for the child; or that an award of custody to the parent
would be detrimental to the child.’ “Hockstok at ¶ 17, quoting Perales, syllabus.” Id at
paragraphs 21-22.
{¶ 49} In the case sub judice, we find that the trial court violated appellants’ due
process rights by granting legal custody of F.K.H. to appellees Thomas and Judit
Shimko without an evidentiary hearing. The trial court did not take any evidence and
thus denied appellant’s due process right to the opportunity for a hearing. Moreover,
Stark County App. Case No. 2010CA00266 15
the trial court appears to have granted legal custody as a means of punishing appellants
for failing to comply with prior orders of the court regarding paying for psychological
evaluations. This Court previously has held that a change of custody is not to be used
as punishment. See In the Matter of E.J.M., Stark App. No. 2010CA00171, 2011-Ohio-
977.
{¶ 50} Appellants’ first three assignments of error are sustained in part and
overruled in part.
IV
{¶ 51} Appellants, in their fourth assignment of error, argue that the trial court
erred in granting appellees visitation with J.A.H. and J.L.H. without considering
appellants’ best wishes and/or the best interests of the children.
{¶ 52} We note that appellants are challenging orders that were made prior to the
November 10, 2009, Judgment Entry finalizing the grant of custody of J.A.H. and J.L.H.
to appellees Thomas and Kathleen Shimko.
{¶ 53} Because the November 10, 2009, final order was not timely appealed, we
find appellants’ appeal of such orders is untimely.
{¶ 54} Appellants’ fourth assignment of error is, therefore, overruled.
V
{¶ 55} Appellants, in their fifth assignment of error, argue that the trial court erred
in not awarding them reasonable visitation with their minor children during the pendency
of the cases as well as in the final disposition of the cases.
Stark County App. Case No. 2010CA00266 16
{¶ 56} We note that a non-custodial parent’s right of visitation with his or her
children is a natural right and should be denied only under extraordinary circumstances.
Pettry v. Pettry (1984), 20 Ohio App.3d 350, 312, 486 N.E.2d 213.
{¶ 57} As is stated above, appellants failed to file a timely appeal in Case No.
2008 JCV 0724. This Court, therefore, cannot address this assignment as it pertains to
visitation during the pendency of such case and prior to the final order of November 10,
2009. Moreover, after appellants, on January 7, 2010, filed a Motion for Return of
Custody in Case No. 2008 JCV 0724, the Magistrate, as memorialized in an order filed
on March 26, 2010, granted them visitation with J.A.H. and J.L.H. Appellees Thomas
and Kathleen Shimko, on April 28, 2010, then filed a motion to terminate visitation,
alleging that appellants had fled the jurisdiction with F.K.H. and that they feared that
they would flee also with J.A.H. and J.L.H. The trial court, pursuant to a Judgment
Entry filed on April 28, 2010, ordered that visitation be terminated until further order of
this Court.
{¶ 58} Thereafter, on August 17, 2010, appellants filed a Motion for Visitation in
Case No. 2008 JCV 0724 seeking visitation during the pendency of the Motion for
Return of Custody and a hearing on the same was scheduled for August 25, 2010.
However, on August 25, 2010, the trial court dismissed, without prejudice, all the
pending motions in Case No. 2008 JCV 0724 and ordered that the children have no
contact with the parents. This entry was filed on August 26, 2010. The trial court found
that the appellants had failed to prosecute their motions in Case No. 2008 JCV 0724
because the appellants had not obtained the court ordered custody evaluations with Dr.
Tener. The court found “[t]hese parents present with substantial mental health issues
Stark County App. Case No. 2010CA00266 17
and have secreted these children from the authorities in the past. The father also
indicated in open court in a prior proceeding, while they were hiding the children, that
the mother was suicidal and the children may in fact be in danger.”
{¶ 59} Assuming arguendo that the dismissal of all motions in Case No. 2008
JCV 0724 is a final, appealable order, we find the dismissal without prejudice, for failure
to prosecute, was not error. The custody evaluations could provide extremely valuable
information to the court regarding the parenting abilities of the appellants. We do have
a concern however. It is unclear from the record whether the trial court held a hearing
on the appellants’ motion to reconsider the order that appellants pay 20% of Dr. Tener’s
bill for the custody evaluation. Because the appellants cannot refile a motion for
custody or visitation without Dr. Tener’s evaluation, the trial court should, if it has not
already held a hearing on appellants’ ability to pay, hold a hearing on a future motion of
this nature filed by appellants.
{¶ 60} In Case No. 2009 JCV 01490, appellants, on August 17, 2010, eight days
prior to the final pre-trial, filed a Motion for Visitation with their youngest child during the
pendency of the case. As is discussed above in our disposition of appellants’ first three
assignments of error, we found that the trial court erred by granting custody of F.K.H. to
appellees Thomas and Judit Shimko without an evidentiary hearing. We find, therefore,
that any challenge to the visitation orders is premature because visitation will be
considered in any final order issued after such hearing. In addition, a new Motion for
Visitation of F.K.H. during the pendency of the custody case can be refiled upon remand
of this case to the trial court.
{¶ 61} Appellants’ fifth assignment of error is, therefore, overruled.
Stark County App. Case No. 2010CA00266 18
{¶ 62} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division, is affirmed in part and reversed and remanded in part.
By: Edwards, J.
Gwin, P.J. and Wise, J. concur.
______________________________
______________________________
______________________________
JUDGES
JAE/d0719
[Cite as In re J.L.H., 2011-Ohio-5586.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
J.L.H., J.A.H. and F.K.H. :
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2010CA00266
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Family Court Division, is
affirmed in part and reversed and remanded in part to the trial court for further
proceedings. Costs assessed to appellants in the appeal from Case No. 2008 JCV
0724 and to appellees, Thomas and Judit Shimko in Case No. 2009 JCV 01490
_________________________________
_________________________________
_________________________________
JUDGES