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In re F.B.

Court of Appeals of Ohio, Seventh District, Belmont

June 22, 2018

IN RE: F.B., MINOR CHILD

          Civil Appeal from the Court of Common Pleas, Juvenile Division of Belmont County, Ohio Case No. 10 JG 714

          Affirmed. Atty. Michael J. Shaheen, and Atty. Alaire Mancz, Shaheen Law Group, P.O. Box 579, Saint Clairsville, Ohio 43950, for Appellee

          Atty. Elgine Heceta McArdle, McArdle Law Office, 2139 Market Street, Wheeling, West Virginia 26003, for Appellant.

          BEFORE Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, J.

         {¶1} Appellant-father, K.D., challenges the judgment of the Belmont County Court of Common Pleas, Juvenile Division, granting Appellee-mother S.T.'s motion to suspend Appellant's visitation with the parties' minor child. Appellant argues the trial court effectively terminated his parental rights without reviewing the evidence using the clear and convincing standard. Appellant further contends the trial court erred in favoring one of three polygraph examinations of Appellant in making its determination. Finally, Appellant argues the trial court's judgment is against the manifest weight of the evidence. For the reasons expressed below, none of Appellant's arguments have merit. The trial court did not terminate his parental rights or issue a no-contact order. Instead, Appellant's visitation was modified and the trial court maintained continuing jurisdiction over the matter. Moreover, although the court did utilize the wrong statutory factors, the entirety of the trial court's judgment establishes that the court thoroughly and thoughtfully considered a multitude of facts which do comprise the proper visitation modification factors found in R.C. 3109.051(D). Therefore, the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} The parties' minor child was born on November 5, 2009. The parties were never married but Appellant had DNA testing performed and paternity was established. Appellant had been exercising regular standard visitation until December of 2013. At that time, the child began behaving unusually after returning from Appellant's home. The child also made disturbing disclosures regarding sexual abuse which the child indicated took place while she was under Appellant's care. Initially, the child said that "Downtown" had "peed" on her and performed other lewd acts. The child did not identify "Downtown," but was clear that the incidents happened while she was with Appellant. In response, Appellee denied Appellant visitation with the child throughout January of 2014 and filed a motion to suspend Appellant's parenting time on January 10, 2014. The matter was set for a hearing on February 12, 2014. Appellant filed a motion in contempt on January 14, 2014, based on the denial of his parenting time. On January 16, 2014, Appellee filed a motion for immediate ex parte relief, seeking an immediate suspension of Appellant's parenting visitation. Accompanying Appellee's motion was an affidavit executed by Trina Palmer ("Palmer"), intake care manager with the Belmont County Department of Job and Family Services. In Palmer's affidavit she stated that she had interviewed the child and the child relayed instances of sexual abuse while with Appellant. Palmer stated that the child did not directly accuse Appellant of these acts but that Appellant was present and "did not protect the minor child." (1/16/14 Palmer Aff.) Palmer indicated she was concerned about the child's health and safety and recommended that it was in the child's best interest to suspend Appellant's visitation while the matter was investigated. On January 16, 2014, the trial court granted Appellee's motion for ex parte relief, noting Appellant could "request an immediate hearing" on the matter. Appellant filed a motion for an immediate hearing and the matter was set for January 31, 2014. Appellant subsequently withdrew his motion for an immediate hearing because the parties had worked out a temporary visitation arrangement, allowing the matter to proceed on the originally-scheduled February 12 hearing date. On February 12, 2014, the parties read a temporary agreement into the record, which contained the following relevant provisions: (1) Appellant would submit to a polygraph examination at the Belmont County Department of Job & Family Services, Children Services Division; and (2) Appellant would exercise alternating weekend visitation but only at paternal grandmother's home with paternal grandmother present during all visitation.

         {¶3} On May 15, 2014, Appellee filed a motion for immediate ex parte relief, seeking suspension of Appellant's visitation. Accompanying Appellee's motion was an affidavit executed by Elizabeth Albert, LISW ("Albert"), a social worker who had conducted numerous therapy sessions with the minor child. According to Albert's affidavit, the child disclosed that the perpetrator of the alleged sexual abuse was her father, Appellant. Albert's clinical notes regarding the child's disclosures were attached to the motion. In the motion Appellee requested that a guardian ad litem ("GAL") be appointed. The trial court granted Appellee's motion on May 15, 2014, effective immediately. The court again stated that Appellant could request an immediate hearing. Counsel for Appellant filed a motion requesting an immediate hearing, which was set for June 6, 2014, and a GAL was appointed. Appellant's counsel filed a motion to withdraw as counsel, which was granted. Following a series of continuances requested by both parties and new counsel being obtained by both parties, a pretrial hearing was held on November 3, 2014. The GAL filed a report for pretrial. While there was no record made of the hearing, in the extensive report the GAL stated that the child, both parents, the child's stepfather, Albert, the paternal grandmother, paternal step-grandfather, Appellant's girlfriend and Appellant's employer were all interviewed. The GAL reviewed the child's therapy treatment notes and spoke with Palmer, the caseworker in the matter. After reviewing the background and summarizing each interview the GAL made the following recommendation:

It is my belief, as the GAL for [F.B.], that it is in her best interest to remain in the care and custody of her mother, [Mother]. Furthermore, based on information currently known to me, I would recommend that visitation by and between [Father] and his daughter continue to be placed on hold, but subject to the exception, discussed infra. It is clear to this GAL that something has occurred. [F.B.] has demonstrated time and time again during therapy sessions that she is over-sexualized. I have witnessed minor examples of this behavior during home visits wherein the child is rather demonstrative with her acts. Her knowledge appears to be far beyond that of children of a like age. It appears that something has occurred, ostensibly while in the care and control of the father, [Father]. Originally [F.B.] only identified the perpetrator as "Hunter or "Downtown" and not as her father. This disclosure came later through therapy sessions at Southeast Health Care Services through various modes of assessment (art therapy/dolls/discussions etc).

(11/5/14 GAL Report, p. 10.)

         {¶4} The GAL reviewed the extent of the child's behavior changes and fear of Appellant:

The alleged acts included "Downtown" peeing in her mouth. Although not identifying "Downtown" as her father, [the child] told the therapist that her dad calls her a "small fuck". During this period where visits were occurring with the father, her behaviors, upon returning home to the mother worsened. She began acting out by biting, hitting and sassing back to her mother. She also exhibited anxiety with respect to upcoming visits with her father. These behaviors were reported to [Albert] by the mother but were also demonstrated by [the child] during sessions. * * * She told the therapist that she did not feel safe with her daddy and that "he lied to my face" saying he would sleep somewhere else but came to sleep with me. She again stated to the therapist that daddy calls me a "lil fuck" and Makes [sic] me keep secrets. By the end of March it was reported that [the child] had began [sic] peeing the bed again.

(11/5/14 GAL Report, p. 6.)

         {¶5} The GAL as further noted:

In a [sic] April 22, 2014 therapy session she recounted that "hunter touched me with his pee pee when Grandma was gone. It was during this time frame that [the child] was showing symptoms of emotional distress and began sleeping with her mother. During these sessions she began demonstrating a fear for her mother's safety and often checked on her mother during sessions. In a May 13, 2014 session, [the child] stated to the therapist and showed through art therapy by drawing Mr. Downtown's pee pee that "Mr. Downtown" peed in my mouth. She then, when playing with dolls, gives details of how "Downtown" took her clothes off, bit her ear, kissed my mouth, my pee pee and my butt. Then he peed in my mouth. [The child] then beats the male doll with the female doll expressing anger.

(11/5/14 GAL Report, p. 6.)

         {¶6} The GAL concluded:

When viewed in its totality, all information available to this GAL would suggestion [sic] that the safety of [F.B.] is better served by temporarily remaining separated from her father. He may not have committed the alleged acts but [F.B.] has expressed fear of [Father] to this GAL and that cannot be ignored.

(11/5/14 GAL Report, p. 11.)

         {¶7} A series of three full hearings were conducted in the matter. The first occurred on February 27, 2015, where testimony was heard from Mathew Speckman, ("Speckman"), an investigator with the Bureau of Criminal Investigations ("BCI") who had performed a polygraph examination of Appellant; Dallas Wolfe ("Wolfe") a private investigator hired by Appellant to conduct a polygraph examination of Appellant; and Bobby Miller, a psychiatrist hired by Appellant to conduct a psychiatric evaluation of Appellant.

         {¶8} Between the first and second hearings, the GAL filed an updated report which included additional interviews. The GAL reiterated his recommendation that it was in the best interest of the minor child to remain in the care and custody of Appellee and that visitation between Appellant and his daughter not be permitted. The GAL noted that the child had suffered trauma that caused her fear. While the GAL recommended that the paternal grandmother have visitation with the child, he requested that Appellant not be present. He opined that as the minor child aged, reunification with Appellant may be possible if the paternal grandmother maintained a relationship, but that any current visitation between Appellant and the child should be prohibited.

          {¶9} The second hearing was held on April 17, 2015. Testimony was presented from Albert, Palmer and Amber McConnell, Appellant's girlfriend. The trial court also admitted transcripts of interviews between the child and her therapist, a deposition of Ryan Allar, a detective sergeant with the Belmont County Sheriffs Department, as well as therapy notes from the child's therapy sessions and text messages sent to Appellee from Appellant's girlfriend. These messages indicated that during the time Appellant had visits with the child he was living in a house with several friends where there was drug use and drinking.

         {¶10} The final day of hearings was held on May 27, 2015, with testimony from Appellant, Appellee, the ...


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