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In re M.E.

Court of Appeals of Ohio, Tenth District

June 20, 2013

In the Matter of: M.E., J.E., Appellant.

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch C.P.C. No. 08JU-02-2513

Tyack, Blackmore & Liston Co., L.PA., and Thomas M. Tyack, for appellant.

Roger Warner, for appellees R.B. and K.B.



{¶ 1} Appellant, J.E. ("Father"), is the father of M.E., a child born on December 7, 2007, and adjudicated a dependent child on May 28, 2008. Father, who is divorced from M.E.'s mother ("Mother"), is incarcerated following his conviction of rape of a minor under the age of ten years. M.E.'s maternal grandparents, R.B. and K.B. ("appellees"), are M.E.'s legal custodians.

{¶ 2} On March 18, 2011, when M.E. was three years of age, Father filed a motion in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile court"), seeking an order allowing him visitation with M.E. at the prison where he is incarcerated. The appellees contested the motion. The juvenile court denied Father's motion, finding that visitation with Father in prison would not be in M.E.'s best interest. For the following reasons, we affirm the court's denial of Father's motion for visitation.

I. Facts and Procedural History.

{¶ 3} On February 22, 2008, Franklin County Children Services ("FCCS") initiated this case by filing a complaint in the juvenile court alleging that M.E. was an abused, neglected, and dependent child. The trial court granted temporary custody of M.E. to FCCS on February 25, 2008, and the agency placed M.E. with appellees. On March 6, 2008, the court issued a temporary order granting temporary custody to appellees. On May 28, 2008, FCCS dismissed its claims that M.E. was abused and neglected and the court adjudicated M.E. to be a dependent child. In its dispositional order, the court awarded temporary custody of M.E. to appellees and issued an order of protective services to FCCS. As a result of these legal proceedings, M.E. has lived with appellees continuously since her initial placement with them as an infant. Throughout most of M.E.'s life, Mother has also resided at the home of her parents, the appellees.

{¶ 4} Father was a member of the armed services at the time of M.E.'s birth through his discharge from the Army on May 24, 2008. During this period, Father saw M.E. for only short periods of time. After Father's discharge from the Army, Mother and Father visited M.E. on a regular basis, but M.E. remained in the temporary custody of appellees. Father testified that, during the period between May 24 through July 2, 2008, he spent approximately five hours a day at appellees' household. Mother and Father eventually divorced.

{¶ 5} On July 2, 2008, Father was arraigned on a rape charge based on an incident that occurred on or about June 30, 2008. His victim, who was seven years of age on the date of the offense, was a step-grandson of appellee grandfather, R.B. The extended family regards the victim as they do all of M.E's other cousins.

{¶ 6} After the criminal charge was filed, the court ordered that Father's visits with M.E. be supervised by appellees. On December 16, 2008, the trial court reduced Father's supervised visitation to three hours per week. On July 22, 2009, Father entered a guilty plea to the indictment and began serving a five-year sentence. His expected release date is July 19, 2014. Father has not seen M.E. since his incarceration.

{¶ 7} On June 10, 2009, appellees moved for legal custody of M.E., which neither Mother nor Father opposed. One day prior to Father's guilty plea, on July 21, 2009, the court held a hearing on appellees' motion for legal custody of M.E. Following the hearing, which Father attended, the court terminated appellees' temporary custody of M.E., granted them legal custody, dismissed FCCS from the case, and continued its jurisdiction over M.E.

{¶ 8} Appellees have afforded Father's parents regular visitation with M.E., and M.E. has a positive relationship with both sets of grandparents. M.E. generally has been permitted monthly three-night visits with her paternal grandparents at their home in Newport, Ohio, which is a town on the Ohio River near Marietta, Ohio.

{¶ 9} At the hearing on Father's March 18, 2011 motion for visitation, M.E.'s paternal grandmother testified that, if the visitation motion were granted, she and paternal grandfather would transport M.E. to the prison in which Father is incarcerated once each month for a two-hour visit. She acknowledged that Father's prison is surrounded by barbed wire, located approximately three and one-half hours from their home in Newport, and that M.E. would be required to pass through prison security to reach the visitation room. She further testified that the prison accommodated visits by inmates' children and had established a reading room where inmates may read to their visiting children. She had personally observed other children visiting inmates. She further testified that Father and M.E. have spoken to each other on the telephone during M.E.'s visits at their home and that Father has sent greeting cards to M.E. at their home. She believed it would be in M.E.'s best interest to visit Father in prison because M.E. "needs to know who her father is, " the visits would allow M.E. to recognize that he "does have a lot of good qualities, not just bad things" and that it would be good for M.E. to begin knowing her father at her current age, rather than waiting until later. (Tr. 49.)

{¶ 10} Appellee maternal grandmother, K.B., testified that, during the period between Father's discharge from the Army and the filing of the criminal charges against him, Father visited M.E. three or four times a week for periods up to fifteen minutes. She further testified that, after the rape charge was filed against him and the court limited his visitation, Father did not visit M.E. for the maximum three hours per week available to him. Rather, during the approximate year that the charges were pending, Father visited M.E. at appellees' home approximately one time each week for periods up to 20 minutes. K.B. further testified that the fact that Father had victimized another of their 15 grandchildren created a "very emotional issue" in the family and she believed that M.E.'s visitation with her Father, if permitted, might create stress and confusion for M.E, and negatively impact the extended family. She did not believe that visiting with Father in prison would be in M.E.'s best interest. She testified that she had consulted with M.E.'s pediatrician and a family therapist and that these discussions had not changed her mind on that question. She testified that M.E. knew she had a father, as she had spoken to him and received letters and cards from him and had been told that her daddy lived far away "in jail" but that M.E. did not know what a jail is.

{¶ 11} Appellee maternal grandfather, R.B., testified that he is a pediatrician sub-specializing in pediatric allergy. In his view, prison visits would detrimentally affect M.E. as it would bring up questions beyond her comprehension. He also testified of his concern that M.E.'s mother, who receives treatment for depression and other mental health issues, might be negatively impacted should M.E. begin ...

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