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In the Matter of:

October 17, 2011

IN THE MATTER OF: J.L.H., J.A.H. AND F.K.H..


Civil Appeal from Stark County Court of Common Pleas, Family Court Division, Case Nos. 2008JCV0724 and 2009JCV01490

The opinion of the court was delivered by: Edwards, J.

Cite as

In re J.L.H.,

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

JUDGES: W. Scott Gwin, P.J. John W. Wise, J. Julie A. Edwards, J.

OPINION

Affirmed In Part and Reversed and Remanded In Part

{¶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 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 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 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.

{ΒΆ15} Appellants, on October 2, 2009, filed an objection to the interim order of custody to appellees. On October 6, 2009, they filed a motion ...


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