In re A.R.

• Decision Date: 10 February 2023
• Docket Number: OT-22-023,OT-22-024,OT-22-025
• Parties: In re: A.R., J.R., C.R.
• Court: Ohio Court of Appeals

1

2023-Ohio-394

In re: A.R., J.R., C.R.

Nos. OT-22-023, OT-22-024, OT-22-025

Court of Appeals of Ohio, Sixth District, Ottawa

February 10, 2023

Trial Court Nos. 2020JUV252, 2020JUV253, 2020JUV254

Andrew R. Mayle, Benjamin G. Padanilam, and Ronald J. Mayle, for appellant.

Ann M Baronas, for appellee.

DECISION AND JUDGMENT

ZMUDA J.

{¶ 1} This consolidated matter is before the court on appeal of the judgment of the Ottawa County Court of Common Pleas, dismissing the complaint for grandparent visitation of appellant, B.H., for lack of standing under R.C. 3109.12(A). We affirm the dismissal for lack of standing but vacate the trial court's determination that the dismissal was on the merits and with prejudice.

I. Facts and Procedural History

{¶ 2} In 2020, appellant initiated proceedings in the juvenile court to obtain full legal custody of A.L.R. (d.o.b. 6/23/16), J.E.R. (d.o.b. 2/14/18), and C.L.R. (d.o.b. 3/16/19), alleging the parents could not provide proper care for the three children. All three children were born to appellee, J.R., who was not married at the time of giving birth to any of her children. The putative father (C.H.), who is appellant's son, opposed appellant's suit in the trial court but is not a party on appeal.

{¶ 3} In December 2020, the appellant and appellee reached a temporary agreement regarding visitation. Appellant agreed to hold her complaint for custody in abeyance for six months, with visitation, while appellee sought mental health treatment and participated in a voluntary parenting program through Ottawa County Job and Family Services. The record reflects that appellee's children have never been determined to be neglected or abused, requiring intervention and case plan services by children services.

{¶ 4} In March 2021, the court-appointed special advocate (CASA) reported to the trial court that appellee was doing well with her parenting plan and recommended custody remain with appellee, with continuing visitation for appellant. After appellant filed a motion to remove the CASA assigned to the case, alleging bias and deficient performance of the duties of a CASA, the trial court appointed an attorney as guardian ad litem for the children.

{¶ 5} In September 2021, the matter was called for trial on the complaint for custody. Appellant withdrew her complaint for custody and sought leave to file a complaint for visitation. Appellant subsequently filed an original complaint for grandparent visitation, pursuant to R.C. 3109.12, and on April 19, 2022, the matter proceeded to trial.

{¶ 6} At the trial, appellant proffered the testimony of Joann Hoffmann as evidence of paternity. Hoffman appeared as custodian of records for the Ottawa County Child Support Enforcement Agency (CSEA) and testified regarding the history of child support payments made for the two oldest children, with direct testimony regarding parentage as follows:

Q: When a Child Support Order is issued through your agency, is a legal determination of fatherhood or paternity normally made?

A: It's required.

Q: Okay. So, if there is a Child Support Order in effect, it is determined, required that the father be identified and that the person who is the obligor or obligee, depending on the situation, is found to be the actual parent of the children?

A: Correct.

Q: Thank you. Thank you.

{¶ 7} Counsel then reviewed documents with Hoffmann, supplied by her for the hearing, which detailed child support payments made by C.H. Counsel also proffered a copy of a court order for two of the children, ordering child support, and a Verification of Facts on Birth Record printout for each child, identifying C.H. as father. The trial court admitted the composite exhibit over the objection of appellee, who argued the documents were not disclosed prior to trial and the documents did not include paternity affidavits, or legal acknowledgments of paternity.

{¶ 8} Following the trial, the trial court denied and dismissed appellant's complaint, finding appellant failed to demonstrate the statutory prerequisites to seek visitation, as provided by R.C. 3109.12(A). As to Hoffmann's testimony and the requirement of a paternity determination, the trial court found the following:

I discounted Ms. Hoffmann's testimony on the issue of [C.H.] being 'the legal and lawful parent to all three of the minor children.' Ms. Hoffmann was only qualified to speak to the existence of the records and the process that led to their creation and maintenance - not their legal significance. She was never asked if her file contained acknowledgments of paternity or administrative or judicial determinations of paternity.

Testimony elicited at the hearing does not obviate the need for proof of the predicate conditions listed in R.C. 3109.12(A). Grandmother was required to submit either finalized acknowledgments of paternity for the children under R.C. 3111.21 or determinations of paternity under R.C. 3111 et seq., as required by the plain and unambiguous language of the statute. At a minimum, she was required to submit copies of the children's birth certificates so the court could infer the existence of paternity acknowledgments or paternity determinations, see R.C. 3705.09(G). She did not do that.

The legislative intent seems clear to me. Before a paternal grandmother may seek court-ordered visitation with her grandchildren, she must first show paternity is an established, unimpeachable fact by way of recorded acknowledgments of paternity or determinations of paternity under Chapter 3111.

{¶ 9} The trial court found appellant was not entitled to court-ordered visitation because she failed to first establish paternity as provided under R.C. 3109.12(A). The court's decision was limited to this standing requirement, with no consideration of the best interests of the children under R.C. 3109.12(B). However, despite limiting the decision to statutory standing, the trial court ordered the complaint for visitation dismissed "on the merits, with prejudice." {¶ 10} This appeal followed.

II. Assignments of Error

{¶ 11} In challenging the judgment, appellant raises the following as error:

1. The trial court erroneously held that before it could consider whether 'granting Grandmother visitation rights would be in the children's best interest,' it had to first determine whether the grandmother established the 'predicate conditions' mentioned in R.C. 3109.12(A).

2. Even if the appellant grandmother was required to prove paternity by showing that certain statutory 'predicate conditions' were fulfilled, the trial court still erred as a matter of law when it held that no such evidence was offered.

{¶ 12} Because the assignments of error each concern the statutory requirements and whether appellant demonstrated evidence to satisfy those requirements, we address the assignments of error together.

III. Analysis

{¶ 13} "[A]t common law, grandparents had no legal rights of access to their grandchildren." In re Martin, 68 Ohio St.3d 250, 252, 626 N.E.2d 82 (1994), citing In re Whitaker (1988), 36 Ohio St.3d 213, 214, 522 N.E.2d 563 (1988); see also Troxel v. Granville, 530 U.S. 57, 65-69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). There is also no constitutional right of association with grandchildren. Id., citing In re Schmidt, 25 Ohio St.3d 331, 336, 496 N.E.2d 952 (1986). In Ohio, grandparent visitation rights "must be provided for by statute[.]" Id.

{¶ 14} The General Assembly has provided relatives with visitation rights in limited situations: (1) R.C. 3109.051(B), in divorce, dissolution, separation, or annulment proceedings; (2) R.C. 3109.11, where the parent of the child is deceased; and (3) R.C. 3109.12, where the child is born to an unmarried mother and the father has acknowledged paternity or paternity has been determined in an action under R.C. Chapter 3111. In re K.M.-B., 2015-Ohio-4626, 48 N.E.3d 998, ¶ 21 (6th Dist); In re Martin at 252 (citation omitted.). "These statutes allow a relative visitation in these limited situations because the precipitating, disruptive event might give rise to a situation where a parent would deprive an estranged relative of a continued relationship with the child." In re K.M.-B. at ¶ 21, citing In re Gibson, 61 Ohio St.3d 168, 169, 573 N.E.2d 1074 (1991), citing In re Whitaker at 215.^[1]

{¶ 15} Appellant sought visitation pursuant to R.C. 3109.12. That statute permits a paternal grandparent complaint for visitation "if the father of the child has acknowledged the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or has been determined in an action under Chapter 3111. of the Revised Code to be the father of the child[.]" The trial court determined that appellant failed to satisfy the predicate requirement of paternity under R.C. 2151.232 or R.C. 3111.25, 3111.821, or under R.C. Chapter 3111.

{¶ 16} We ordinarily review a decision to grant or deny a nonparent's motion for visitation time for an abuse of discretion. In re K.M.-B.at ¶ 45, citing Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1029 (1989) (additional citation omitted); see also In re N.S., 1st Dist. Hamilton No. C-220066, 2022-Ohio-3988, ¶ 23, citing In re Flynn, 10th Dist. Franklin No. 20AP-506, 2021-Ohio-4456, ¶ 15; In re A.B., 12th Dist. Butler No. CA2015-06-104, 2016-Ohio-2891, ¶ 39. An abuse of discretion indicates more than an error of law or judgment and implies the trial court's decision was unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 17} Here, however, the trial court dismissed the petition for visitation for want of standing. Standing involves entitlement for a determination of the merits of the complaint....