Harrold v. Collier

• Decision Date: 10 October 2005
• Docket Number: No. 2004-1492.,No. 2004-1647.,2004-1492.,2004-1647.
• Citation: 107 Ohio St.3d 44,836 N.E.2d 1165,2005 Ohio 5334
• Parties: HARROLD et al., Appellees, v. COLLIER, Appellant.
• Court: Ohio Supreme Court

Page 1165

836 N.E.2d 1165

107 Ohio St.3d 44

2005-Ohio-5334

HARROLD et al., Appellees, v. COLLIER, Appellant.

No. 2004-1492.

No. 2004-1647.

Supreme Court of Ohio.

Submitted June 14, 2005.

Decided October 10, 2005.

Holland & Muirden, Gregory L. Hail, Sharon Center, and Jason R. Roach, for appellant.

Jackwood Law Office, Rosanne K. Shriner, and Renee J. Jackwood, for appellees.

Karen A. Wyle, Bloomington, IN, urging reversal for amicus curiae Coalition for the Restoration of Parental Rights.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Elise W. Porter, Assistant Solicitor, Kent M. Shimeall, Assistant Attorney General, and Rebecca L. Thomas, Assistant Solicitor, for amicus curiae Ohio Attorney General.

ALICE ROBIE RESNICK, J.

{¶ 1} Renee Harrold and appellant, Brian S. Collier, shared a relationship that produced a daughter, Brittany Renee Collier (born July 28, 1997). The two never married, and after Brittany's birth, Renee Harrold was designated as Brittany's residential parent. Appellant received supervised visitation with Brittany twice a week.

{¶ 2} From her birth, Brittany resided with her mother at the home of her maternal grandparents, appellees, Gary and Carol Harrold. Renee Harrold was suffering from cancer, and appellees took care of Renee until her death on October 10, 1999. Following Renee's death, appellees were granted temporary legal custody of Brittany.

{¶ 3} Appellant subsequently filed for legal custody of Brittany, and the Wayne County Juvenile Court designated him as Brittany's residential parent. On July 31, 2002, appellant removed Brittany from appellees' home, where she had lived for the previous five years, and refused to permit any further visitation between Brittany and appellees.

{¶ 4} Appellees filed a motion for grandparent visitation with Brittany. After hearing evidence on the motion, the juvenile court magistrate issued a decision granting appellees' motion for visitation. The magistrate expressly noted appellant's opposition to visitation between Brittany and appellees, but found that appellant's actions had not been in the best interest of Brittany. The magistrate reasoned that Brittany had been in the custody of appellees for three years following her mother's death and found that appellees provided an important link to Brittany's deceased mother. Therefore, the magistrate concluded that grandparent visitation with appellees was in Brittany's best interest. After conducting an independent review of the magistrate's findings and decision, the juvenile court judge issued an order granting appellees visitation with Brittany.

{¶ 5} Appellant objected to the juvenile court's decision granting appellees' motion for visitation. In ruling on the objections, the juvenile court found that Brittany's interest in maintaining her relationship with appellees outweighed appellant's wishes for no visitation. However, the juvenile court held that the United States Supreme Court's decision in Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, requires courts to find "overwhelmingly clear circumstances" that support forcing visitation for the benefit of the child over the opposition of the parent. Therefore, the juvenile court ruled that, although the statutory factors seemed to support visitation with appellees over the objection of appellant, there was insufficient proof in the record to find overwhelmingly clear circumstances for overruling the wishes of appellant. Consequently, the juvenile court sustained appellant's objections and dismissed appellees' motion for visitation.

{¶ 6} On appeal, the Ninth District Court of Appeals held that the juvenile court erred in its interpretation and application of Troxel to the case. Estate of Harrold v. Collier, Wayne App. No. 03CA0064, 2004-Ohio-4331, 2004 WL 1837186. The appellate court found that the United States Supreme Court reached a narrow holding in Troxel — namely, that the "sweeping overbreadth" of the Washington state nonparental-visitation statute rendered the statute unconstitutional when applied. Id. at ¶ 14 and 18. Because the Ninth District Court of Appeals found that the Washington state statute in Troxel was distinguishable from Ohio's nonparental visitation statutes, the appellate court ruled that Troxel did not invalidate Ohio's nonparental-visitation statutes. Accordingly, the court of appeals reversed the juvenile court's dismissal of appellees' motion for visitation and remanded the cause to the juvenile court for an assessment of the motion for visitation under the applicable Ohio statutes.

{¶ 7} Upon motion by appellant, the court of appeals found its judgment to be in conflict with the judgment of the Seventh District Court of Appeals in Oliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-3209, 776 N.E.2d 499, on the following issue: "Whether Ohio Courts are obligated to afford `special weight' to the wishes of the parents of minor children concerning non-parental visitation as outlined in Troxel v. Granville (2000), 530 U.S. 57 [120 S.Ct. 2054, 147 L.Ed.2d 49]." The cause is now before this court upon our determination that a conflict exists, as well as our acceptance of a discretionary appeal.

CERTIFIED CONFLICT ISSUE

{¶ 8} In Troxel, the United States Supreme Court reviewed an action arising out of a Washington statute that permitted "[a]ny person" to petition for visitation rights "at any time" and authorized a court to grant such rights whenever the visitation may serve a child's best interest. Id., 530 U.S. at 60, 120 S.Ct. 2054, 147 L.Ed.2d 49, quoting Wash.Rev.Code 26.10.160(3). In the case before the Supreme Court, the Troxels petitioned for visitation with their two granddaughters following the death of their son, the granddaughters' father. The girls' mother objected. The trial court granted visitation to the Troxels, finding that visitation was in the girls' best interests. The Washington Supreme Court held that the Troxels could not obtain visitation with their granddaughters, because the Washington state statute permitting such visitation unconstitutionally infringed on the fundamental right of parents to rear their children. Id. at 67, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 9} Upon review, the United States Supreme Court found that the state's visitation statute unconstitutionally infringed on the mother's fundamental right to make decisions concerning the care, custody, and control of her daughters. In so holding, the court recognized that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 10} The court found that the Washington trial court placed on the mother, the custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. In so doing, the court ruled, the trial court disregarded the traditional presumption that a fit parent acts in the best interest of his or her child. Id. at 69, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 11} A plurality of the Troxel court went beyond invalidating the statute to discuss the scope of the parental right and its required protections. The plurality stated that the problem was not that the trial court intervened into the private realm of the family, but that when it did, "it gave no special weight at all" to the mother's determination of her daughters' best interests. Id. The plurality stated that if a fit parent's decision regarding nonparental visitation becomes subject to judicial review, "the court must accord at least some special weight to the parent's own determination." (Emphasis added.) Id. at 70, 120 S.Ct. 2054, 147 L.Ed.2d 49. However, the plurality explicitly declined to "define * * * the precise scope of the parental due process right in the visitation context." Id. at 73, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 12} Therefore, adopting the plurality view in Troxel, we answer the certified-conflict issue in the affirmative. Ohio courts are obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to R.C. 3109.11 or 3109.12.

OHIO'S NONPARENTAL-VISITATION STATUTES

{¶ 13} In his discretionary appeal, appellant argues that Ohio's nonparental-visitation statutes, R.C. 3109.11 and 3109.12, unconstitutionally infringe on a parent's fundamental right to make decisions concerning the care, custody, and control of his or her child. We disagree.

{¶ 14} R.C. 3109.11 states:

{¶ 15} "If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best interest of the minor child. In determining whether to grant any person reasonable companionship or visitation rights with respect to any child, the court shall consider all relevant factors, including, but not limited to, the factors set forth in division (D) of section 3109.051 of the Revised Code."

{¶ 16} R.C. 3109.12 provides:

{¶ 17} "(A) If a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting the court of common pleas of the county in which the child resides to grant them reasonable companionship or visitation rights with the child. If a child is born to an unmarried woman and if the father of the child has acknowledged the child and that acknowledgement has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or...