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In re J.L.C.

Court of Appeals of Ohio, Seventh District, Jefferson

June 28, 2019


          Civil Appeal from the Court of Common Pleas, Juvenile Division, of Jefferson County, Ohio Case No. 2018 CU 00032

          Sharon N. Bogarad, for Appellee.

          Francesca T. Carinci, Steubenville, Ohio 43952, for Appellant.

          BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.


          WAITE, P.J.

         {¶1} Appellant-mother, L.W. appeals the November 26, 2018 Jefferson County Common Pleas Court, Juvenile Division judgment entry overruling her objections to a magistrate's decision denying her motion to modify parenting time. She sought to change the parenting time granted by an earlier West Virginia Family Court order to the Jefferson County local parenting time schedule. Appellant argues the trial court abused its discretion in denying her motion to modify parenting time because the record does not support the court's determination that modification was not in the child's best interest. Appellee-father, J.C., contends that in the final custody determination order from the West Virginia Family Court, the West Virginia judge determined Appellant had alienated Appellee from the parties' two older children. Hence, the West Virginia order, along with the evidence presented in the Jefferson County hearing by Appellee, formed a sufficient basis for the trial court to deny Appellant's motion to modify parenting time. Based on the following, we conclude the trial court did not abuse its discretion in denying Appellant's motion to modify parenting time. Appellant's assignment of error is without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} While they never married, the parties have had a somewhat contentious relationship spanning several years while they resided in Brooke County, West Virginia. There are three children born of the relationship: twins born on 2/15/2001, and a third child born 12/1/2008. All three children have the same initials: J.L.C. At the time the parties finally ended their on-again, off-again relationship in 2011, they resided in Brooke County, West Virginia. An initial temporary parenting plan was issued in the West Virginia Family Court on June 24, 2011. On February 19, 2015, an agreed parenting plan was adopted by the West Virginia court providing week-to-week alternating parenting time with the three children. A stated goal of the plan was to minimize contact between the parties. Throughout the proceedings the parties' interactions were consistently acrimonious, with multiple allegations of domestic violence and abuse and neglect of the children from both parties. None of these allegations resulted in convictions or an adjudication of the children as abused or neglected. Neither party has ever been subject to supervised visitation or had restrictions placed on their parenting time.

         {¶3} Subsequent to entering the agreed parenting plan, the parties continued to behave with acrimony towards one another. Each party referred the other to the local children's services agency, West Virginia Department of Health and Human Services, based on allegations of abuse and neglect. As a result, each party agreed to enter into a voluntary safety plan regarding the children. The safety plan required each party to undergo a psychological evaluation and to submit to a home site supervision. Again, neither parent was subject to any supervised visitation or other restrictions on parenting time as a result.

         {¶4} On June 22, 2015, Appellee filed a petition in West Virginia to modify the prior custody and child support order. Appellee alleged that Appellant had alienated him from the two older children and that the existing custody order would cause Appellee to be alienated from the youngest child, as well. Appellee requested that Appellant's parenting time with the youngest child be supervised. Appellee also informed the court he intended to move to Jefferson County, Ohio, and sought to relocate the youngest child and enroll the child in school in Ohio. Due to their alienation, Appellee requested that no parenting time be ordered with the two older children.

         {¶5} Several days of testimony were held in the matter commencing December 4, 2015. A number of witnesses appeared, including: (1) Don Jones ("Jones"), a supervisor with the West Virginia Department of Health and Human Resources; (2) Casey Prettyman ("Prettyman"), who had conducted a psychological evaluation of Appellant; (3) Chad Thomas ("Thomas"), the social worker who had conducted the supervised home site visit of each parent; (4) Terry Mains ("Mains"), the youngest child's school teacher; and (5) T.C., Appellee's fiancée and now his wife. Both parties also testified at the hearing.

         {¶6} Jones testified that despite the implementation of a safety plan for the parties after the home visits, Appellant could not move past her animosity toward Appellee and would not follow the safety plan. Jones testified that he discussed with his supervisor whether to file an abuse/neglect allegation against Appellant for failing to follow the voluntary safety plan, but ultimately decided not to file when the trial court issued temporary orders designating Appellee as the primary residential parent for the youngest child.

         {¶7} Thomas testified that Appellant was defiant and refused to follow the safety plan or comply with the parenting plan in place. Thomas testified that while visiting Appellee's home, he witnessed the two older children acting out in a "very negative way" toward Appellee and his wife, including calling the wife names and harassing her. (12/29/15 J.E., p. 7.) Thomas testified that the youngest child only acted out when the child observed the actions of the two older children.

         {¶8} Mains testified that she had been able to observe both parents at the school and that she had experienced issues with Appellant, who constantly objected to the teacher's authority, and was unable to cooperate with the teacher to make sure the child's homework was completed. Mains also testified that Appellant failed to provide notice if the child was going to be absent for extended periods from school. The teacher also observed Appellant coming to the school to visit with the child during the weeks that Appellee exercised parenting time, in violation of the safety plan.

         {¶9} Appellee's wife testified, among other things, that Appellant had sprayed her in the face with pepper spray while she was standing in her own driveway. The three children were in Appellant's car and witnessed the incident.

         {¶10} At the conclusion of the hearing, the West Virginia trial court issued a final custody order, dated December 29, 2015. The order is several pages in length and includes fifty-nine findings of fact. A majority of the findings of fact relate primarily to Appellant's conduct. Although too numerous to recite in its entirety herein, the findings in the order include Appellant's allegation Appellee raped her and that she shared this allegation with the two older children; Appellant's apparent diagnosis of "histrionic personality" disorder; and Prettyman's conclusion that Appellant had "boundary issues" in sharing inappropriate information with her two older children, including giving them access to her social media accounts wherein the children "could observe the sexual comments that were made" between Appellant and "two men who communicated with her on social media. (12/29/15 J.E., p. 4.) The West Virginia court also found that, despite ongoing therapy, Appellant had not progressed and had alienated the two older children from Appellee.

         {¶11} In its judgment entry, the West Virginia court concluded that Appellee established by a preponderance of the evidence that Appellant had "so broken the relationship between [Appellee] and the two older children that such relationship cannot, at present, be repaired." (12/29/15 J.E., p. 12.) Also, the court concluded that Appellant's "diagnosed histrionic personality disorder impedes to her ability to modify her behavior to allow her to comply with any meaningful efforts to bring about reconciliation between [Appellee] and the older two children." (12/29/15 J.E., pp. 12-13.) Finally, the court concluded:

8. Without any hope that [Appellant] will act as a willing parent, no amount of increased parenting time * * * between [Appellee] and the two older children will help cure the adverse effects. And based upon [Appellant's] history of domestic violence allegations, unproven rape allegations, and inappropriate behavior with authority figures such as teachers and Department of Health and Human Resources representatives, as well as, dangerous behavior toward [Appellee's wife], this Court does not believe she is capable of co-parenting with [Appellee] in a manner that will reconcile the break with her two older children. In fact, the evidence shows that [Appellant] believes she has acted ...

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