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In re P.R.P.

Court of Appeals of Ohio, Twelfth District, Butler

January 22, 2018

IN THE MATTER OF: P.R.P.

         APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JS2016-0085

          Repper, Pagan, & Cook, Ltd., Christopher J. Pagan, for appellants.

          F. Harrison Green, Executive Park, for appellee.

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellants, the paternal grandparents of P.R.P. ("Grandparents"), appeal the decision of the Butler County Common Pleas Court, Juvenile Division, denying their petition for companionship or visitation rights with P.R.P. For the reasons discussed below, this court affirms the juvenile court's decision.

         {¶ 2} Mother, the appellee, and Father married in 2010. Their child, P.R.P., was born in April 2012. Father, Mother, and P.R.P. lived next door to Grandparents, in a home they rented from Grandparents. In October 2015, Father collapsed at work and stopped breathing. Father was placed on life support but died several days later. The record is unclear as to the cause of Father's death. There was some indication in the record that Father may have had issues with substance abuse. However, the family ordered an autopsy, which revealed the death was from "natural causes."

         {¶ 3} While Father was alive, Mother's and Grandparents' relationship was strained. Following Father's death, the relationship deteriorated. In January 2016, Mother moved with P.R.P. out of the rented home and into her parents' home.

         {¶ 4} In February 2016, Grandparents filed a complaint requesting visitation with P.R.P. pursuant to R.C. 3109.11, which allows the relatives of a deceased parent to petition for visitation with the deceased's minor child. The complaint alleged that P.R.P. had lived next door to Grandparents for P.R.P.'s entire life, that Mother ceased all communications with Grandparents, and that Mother was not willing to allow Grandparents to communicate with P.R.P.

         {¶ 5} The court held a hearing over two days in August and November 2016. Mother, Grandparents, relatives, friends, and some of Grandparents' neighbors testified. Much of the testimony dealt with the longstanding interpersonal grievances between Mother and Grandparents and had little to do with P.R.P. In this regard, Mother testified that her relationship with Grandparents was "distant" and at times acrimonious.

         {¶ 6} With respect to P.R.P., Mother testified that Grandparents only began interacting with P.R.P. to any significant extent in the summer after his third birthday. This testimony was corroborated by Mother's friend who said that she spent significant time with Mother at Mother's house and rarely saw Grandparents until P.R.P. was three years old. Mother testified that Grandparents occasionally watched P.R.P. but that P.R.P.'s maternal grandmother was the child's primary caregiver when Mother was at work.

         {¶ 7} Mother stated that Grandfather confronted her and blocked her vehicle in the driveway when she was moving out of the rented home. Grandfather threatened to tell P.R.P. that Mother's behavior caused Father's death and that Mother was a "horrible" person. Grandfather also told Mother that P.R.P. would be "better off" being raised by Grandparents.

         {¶ 8} Mother testified that she did not want Grandparents to have visitation with P.R.P. because she believed they intended to seek custody of P.R.P. and that they intended to demean her in P.R.P.'s presence.

         {¶ 9} During his testimony, Grandfather denied that he accused Mother of causing Father's death and said that he knew that Father died of "natural causes." Later in his testimony, Grandfather conceded that he told Mother that "you could have saved" Father. Grandfather also admitted telling persons in the hospital that Mother finally "pushed [Father] over the edge" and that she could have been a better wife to Father. Grandfather explained that his comments referred to his belief that Mother had an affair and treated Father poorly during the marriage. Grandfather admitted that he received Father's cellular phone from Father's work and refused to return it to Mother despite her request.

         {¶ 10} Grandfather conceded that he would anger Mother by giving candy to P.R.P. despite Mother's instructions otherwise. Grandfather testified that he would give P.R.P. another piece of candy after Mother became angry with him. Father's sister also testified that Mother did not like for Grandparents to watch P.R.P. because they would give him candy and would not put him down for naps. Additionally, Grandparents would not give P.R.P. snacks at the time Mother requested.

         {¶ 11} Grandfather introduced numerous photographs taken in 2015 depicting Grandfather and the paternal side of the family playing with and interacting with P.R.P. Grandfather stated that he and Grandmother were seeking visitation with P.R.P. because P.R.P. loved spending time with them and that not seeing his grandparents would be "mental abuse."

         {¶ 12} Mother called several witnesses to testify. One witness testified that she was at the hospital following Father's collapse and heard Father's family expressing hatred towards Mother. Another witness said she heard Grandfather state that Mother killed Father, which he stated in front of many people.

         {¶ 13} Following the hearing, the court issued an order finding that Grandparents did not meet their burden to establish that it was in P.R.P.'s best interest to establish visitation with Grandparents. The court observed that Mother's desire to deny Grandparents visitation was neither "unreasonable" nor "irrational" because Grandparents did not respect Mother's rules regarding P.R.P.'s diet and nap times and because Grandfather threatened he would tell P.R.P. that Mother caused Father's death because of the stress Mother allegedly put Father through during their marriage.

         {¶ 14} Grandparents appeal, raising three assignments of error.

         {¶ 15} Assignment of Error No. 1:

         {¶ 16} THE COURT APPLIED THE WRONG TEST TO DETERMINE GRANDPARENT VISITATION.

         {¶ 17} Grandparents argue that the court analyzed their visitation petition by erroneously requiring them to prove that Mother's desire to deny them visitation was "irrational" or "unreasonable" before analyzing whether visitation was in P.R.P.'s best interest according to the factors set forth in R.C. 3109.051(D). Mother contends that the court applied the appropriate test for nonparental ...


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