[Cite as In re B.P., 191 Ohio App.3d 518, 2010-Ohio-6458.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

 ADAMS COUNTY 

In re B.P.; : Case No. 10CA890 

Purvis, et al., : 

 Appellee, : DECISION AND

 JUDGMENT ENTRY

v. : 

Hazelbaker, : Released 12/22/10 

 Appellant. : 

 

______________________________________________________________________ 

APPEARANCES: 

Kris D. Blanton, for appellees Debra and Keith Heaton. 

Lauren R. Weller, Southeastern Ohio Legal Services, for appellant. 

______________________________________________________________________ 

Per Curiam. 

{¶ 1} After finding Robin Hazelbaker to be an “unsuitable” parent, the Adams 

County Juvenile Court awarded legal custody of her daughter, B.P., to the child’s 

paternal grandparents, Debra and Keith Heaton.1

 Hazelbaker argues that the trial court 

 

1

 The trial court’s entry refers to the grandparents “retaining” custody rather than custody being “awarded” 

to them. Previously, the trial court had awarded custody to the grandparents, but we reversed this 

decision after concluding that the trial court applied the wrong legal standard. Purvis v. Hazelbaker, 181 

Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489. Upon remand, the trial court granted the 

grandparents’ request to retain custody of B.P. pending the court’s redetermination of the custody dispute 

between the Heatons and Robin Hazelbaker. We assume that this procedural history is the basis for the 

trial court’s use of the word “retaining” rather than “awarding” when the court reexamined the issue. 

Thus, the effect of the court’s most recent entry was to grant custody to the grandparents, and we refer to 

the trial court’s decision as an award of custody.
Adams App. No. 10CA890 2 

abused its discretion because the record lacks competent and credible evidence to 

support its finding that her retention of custody would be detrimental to the child. 

{¶ 2} For various reasons, Hazelbaker contends that the following findings of 

fact do not justify the court’s conclusion that she is an unsuitable parent: (1) she 

withheld B.P. from visiting with the Heatons on a number of occasions,; (2) she was 

alienated from her other three children, (3) the Heatons provided B.P. a “safe and 

stable” home; (4) she was unable or unwilling to provide B.P. with a safe and stable 

home; and (5) she had several boyfriends and allegedly sent nude photographs of 

herself to one of them. 

{¶ 3} Our decision here is guided by the “unsuitability” analysis set forth in In re 

Perales (1977), 52 Ohio St.2d 89, 369 N.E.2d 1047. Under Perales, a court may not 

change custody from a parent to a nonparent without first finding that retaining custody 

in the parent would be detrimental to the child, i.e., the parent is “unsuitable.” Id. at 

syllabus.2

 After reviewing the record, we agree that some of the court’s findings of fact 

are not relevant to the unsuitability analysis. The findings of fact related to the Heatons’ 

“safe and stable” home are potentially relevant in a “best interest” type analysis but not 

to an “unsuitability analysis. We also conclude that the trial court erred to the extent it 

premised its finding of unsuitability on Hazelbaker’s pattern of romantic relationships 

and sending nude photographs to a former boyfriend. There is no evidence in the 

record establishing that B.P. has or is about to suffer any detriment because of her 

mother’s sexual conduct. And finally, there is some evidence supporting the trial court’s 

 

2

 We note that under Perales, parental unsuitability may also be established if the court finds that the 

parent has (1) abandoned the child, (2) contractually relinquished custody of the child, or (3) become 

incapable of supporting or caring for the child. However, none of these additional findings establishing 

unsuitability are relevant in this appeal. 
Adams App. No. 10CA890 3 

findings that Hazelbaker prevented B.P. from visiting the Heatons for a period of time 

and that Hazelbaker is alienated from her adult children. However, these two factors 

alone do not demonstrate that it would be detrimental for Hazelbaker to retain custody 

of her daughter. Consequently, we agree that the trial court abused its discretion when 

it found that Hazelbaker was an unsuitable parent. 

I. Background 

A. Events Leading Up to the Custody Dispute 

{¶ 4} B.P. was born in 2000 and is the natural daughter of Robin Hazelbaker 

and Michael Purvis. The couple lived together for some period of time, but they were 

never married and eventually separated in April 2005. Purvis filed a complaint in April 

2006 to establish child support and a parent-child relationship. However, he was 

subsequently incarcerated and failed to pursue his petition. 

{¶ 5} In May 2006, the Heatons, Purvis’s mother and stepfather, filed a motion 

for grandparental visitation. Hazelbaker, acting pro se, and the Heatons, who were 

represented by counsel, later reached an agreement on the “motion for grandparents 

rights.” The agreed entry stated: “The Defendant and grandparents have agreed to 

share in the parenting of the child. Defendant, Robin Hazelbaker shall retain custody of 

the minor child. Keith and Debbie Heaton shall have visitation with the minor child every 

weekend or as agreed upon by the parties.” 

{¶ 6} Purvis was released from prison in October 2006 and began living with the 

Heatons. In November 2006, the Heatons filed a motion seeking custody of B.P., 

claiming that Hazelbaker was “unfit” to care for the child. On the same day, Hazelbaker 

filed a petition for a civil stalking protection order against Purvis on behalf of herself and 
Adams App. No. 10CA890 4 

B.P. After filing for the protection order, Hazelbaker stopped sending B.P. to visit the 

Heatons. In December 2006, the Heatons filed a motion for contempt, arguing that 

Hazelbaker had withheld visitation with B.P. from them. 

{¶ 7} In December 2006, the court held a hearing on Hazelbaker’s petition for a 

protection order. Although the Heatons were not a party to the civil-protection-order 

proceeding, the Heatons and Hazelbaker apparently came to a temporary agreement so 

that the Heatons would have visitation with B.P. over the Christmas holiday. Later, the 

court granted Hazelbaker’s request for a protection order for herself, but denied a 

request that B.P. remain a protected party under the protection order. 

B. The Initial Hearing 

{¶ 8} In January 2007, an initial hearing on the Heatons’ custody and contempt 

motions occurred. In February 2007, the court issued an“agreed entry granting the 

Heatons visitation with B.P. every other Sunday. The court also appointed a guardian 

ad litem for the case. Then, in April 2007, Purvis filed a new motion for custody and 

visitation. The court, upon the guardian ad litem’s recommendation, modified the 

February 2007 agreed entry and granted additional visitation to Purvis and the Heatons. 

{¶ 9} Later, the guardian ad litem filed two reports with the court, the first of 

which recommended that the court order psychological and/or custody evaluations of 

the interested parties. In the second report, the guardian ad litem described custody 

interviews with Hazelbaker and Purvis. She stated that she had concerns about 

Purvis’s criminal background and Hazelbaker’s mental stability. Notably, she said that 

both the Heatons’ home and Hazelbaker’s home were “appropriate and suitable” for the 
Adams App. No. 10CA890 5 

child. Ultimately, the guardian ad litem recommended that Hazelbaker and Purvis be 

awarded shared parenting of B.P. 

{¶ 10} Dr. Eugene Smiley, a professional counselor, conducted the custody 

evaluations of Purvis and Hazelbaker and filed a report with the court. Purvis told Dr. 

Smiley that Hazelbaker was “promiscuous” and that all she did was “smoke and drink 

beer.” Hazelbaker accused Purvis of being violent, volatile, and unstable. She also 

claimed that Purvis and the Heatons had made unfounded complaints to Adams County 

Children Services, apparently in an attempt to gain custody of B.P. 

{¶ 11} Dr. Smiley wrote that he was concerned that both Hazelbaker and Purvis 

exhibited “conflicted” behavior toward one another, which was having a negative effect 

on B.P., who was “clearly and equally” bonded to both parents. He believed that Purvis 

would benefit from anger-management courses and recommended them. Dr. Smiley 

also stated that he contacted Adams County Children Services and confirmed that they 

had conducted investigations at Hazelbaker’s home. They found all claims to be 

unsubstantiated. Ultimately, he recommended that Hazelbaker retain custody of B.P. 

and that Purvis have alternating weekend visitation with her. 

{¶ 12} Dr. Smiley later filed an addendum report after interviewing the Heatons 

and Heather Hazelbaker, who is one of Hazelbaker’s older daughters from a prior 

marriage. Heather was 17 years old at the time of the interview in 2007 and in the 

custody of Hazelbaker’s ex-husband, Frank Hazelbaker. Dr. Smiley found that Heather 

was “clearly alienated” from her mother. Heather told Dr. Smiley that when she was 

living with Hazelbaker, as many as ten people were staying in the small house.” She 

also claimed that her mother had posted hundreds of nude photographs of herself on 
Adams App. No. 10CA890 6 

the Internet. Heather described Hazelbaker as a “lying, cheating person who has done 

horrible stuff.” Dr. Smiley noted that Heather could not think of one positive thing to say 

about her mother, but that if the allegations were true, then Hazelbaker would “be well 

advised to take more care in her choice of male and other companions, and to exercise 

more discretion when determining who resides in her home with [B.P.]” 

{¶ 13} The Heatons told Dr. Smiley that they were concerned about B.P.’s 

welfare while she was being raised by Hazelbaker. They claimed that they were 

concerned for her “safety, direction and support, and exposure to individuals that have 

come into contact with [B.P.]’s home that do not meet with [their] approval.” 

Additionally, they claimed that Hazelbaker had not allowed B.P. to participate in 

activities “outside her mother’s home – no extracurricular school or church activities.” 

After observing B.P. with the Heatons, Dr. Smiley noted that B.P. exhibited “a positive 

and comfortable bond” with them. 

{¶ 14} Dr. Smiley again stated that he was concerned about the conflicts 

between Purvis and Hazelbaker and that these would have a negative impact on B.P. 

He also noted that B.P. had a lack of contact with her three older siblings, Elisha, 

Nathan, and Heather. Ultimately, Dr. Smiley changed his recommendation to a shared 

parenting arrangement between Hazelbaker and the Heatons. 

{¶ 15} Dr. Smiley also filed a third addendum to his recommendations after 

realizing that he had forgotten to mention Purvis’s status. This clarification 

recommended that the Heatons should have shared parenting rights with the 

understanding that while B.P. was with the Heatons, Purvis would have full and 

unsupervised visitation with B.P. 
Adams App. No. 10CA890 7 

C. Subsequent Hearing 

{¶ 16} In late 2007 and early 2008, the court conducted a two-day hearing to 

resolve the pending motions. First to testify was Dr. Smiley, who reiterated many of the 

opinions in his custody evaluations, including his recommendation that the Heatons and 

Hazelbaker have shared parenting of B.P. and that Purvis be allowed unsupervised 

contact with B.P. while she was staying with the Heatons. Dr. Smiley stated that he had 

no concerns for either Purvis’s or Hazelbaker’s mental state as it related to their ability 

to parent. Dr. Smiley opined that Heather Hazelbaker came across as too “one-sided” 

but that he did not necessarily believe that she was lying about or exaggerating her 

claims. 

{¶ 17} Frank Hazelbaker testified that he was Hazelbaker’s ex-husband and, 

after their divorce in the late 1990s, he obtained custody of two of their children, Elisha 

(the oldest) and Nathan (the youngest). He later gained custody of Heather, their 

middle child, in March 2007. Frank stated that Hazelbaker had visitation rights with 

Nathan but had not exercised them. 

{¶ 18} Elisha explained that she lived at her mother’s house for about nine 

months beginning in the summer of 2005. She claimed that her mother would often 

leave her, and she was forced to babysit the children in the house while Hazelbaker 

“went out.” She claimed that her mother would ask her for money and then leave the 

house. Elisha claimed that Hazelbaker “slept all the time” and that there was never any 

healthy food in the house. Elisha also stated that she had concerns about the 

individuals that Hazelbaker was bringing in to the house and claimed that in the nine-
Adams App. No. 10CA890 8 

month period when she was staying at Hazelbaker’s, she brought home four to five 

men. She stated that she never observed any drug use in the home. 

{¶ 19} Nathan testified that he was mad at his mother because she had placed 

Heather in a children’s home. Nathan very rarely visited Hazelbaker’s home and never 

observed any drug use in the home. He claimed that when he would visit, he would 

sometimes see men there. He was asked whether Elisha ever had to babysit him when 

he visited, and he said that she “infrequently” babysat him. Nathan testified that he had 

no concerns about his mother’s interactions with B.P. 

{¶ 20} Heather supplied the most damaging testimony against her mother. She 

testified that Hazelbaker was doing a lot of dating while she lived at the house and that 

there were “plenty of men” there. She claimed that sometimes she would go into the 

living room at night and find strange men there. She also stated that there was an 

inadequate supply of food and that her mother would bring home wine instead of food 

when she was depressed. She claimed that her mother drank alcohol “all the time.” 

She stated that the house has no heat and no air conditioning. Heather accused her 

mother of trying to put her in a children-services home because she wanted to be 

placed in her father’s custody. 

{¶ 21} Heather claimed that she witnessed violence between Hazelbaker and her 

boyfriend, Kevin Hesler. She stated that police would “often” come to the house. She 

also stated that she witnessed her mother smoking marijuana with Hesler in the home. 

Heather claimed that she found one thousand sexually explicit photographs, which were 

freely accessible, on a computer in her mother’s home. She explained that the 

computer had separate accounts for everyone at the home; however, the password for 
Adams App. No. 10CA890 9 

each account was the same. Heather stated that she found the photographs in a 

shared pictures folder and that there were no access restrictions on the photographs. 

She claimed that in certain photographs, her mother was nude, standing by a Christmas 

tree in the living room. Her mother’s boyfriend at the time, who was a soldier in Iraq, 

appeared nude in a different photograph. She also claimed that there were pictures of 

“naked parties” in which Hazelbaker was engaged in sexual acts with boyfriends and 

“different guys.” Heather stated that B.P. used this computer although she did not 

indicate that B.P. had viewed the photographs. 

{¶ 22} Heather explained that she transferred these photographs to five compact 

discs (“CDs”) and that there were about 200 photographs contained on each CD. She 

claimed that she gave the CDs to her mother but later found one of them on her 

mother’s desk. She turned this CD over to the Heatons, apparently to help them secure 

custody of B.P. Although the Heatons claimed that they had possession of the 

photographs on the CD, they did not introduce them into evidence. 

{¶ 23} Heaton told the court about her large house, which sat on 300 acres and 

had six bedrooms and a pool. Mrs. Heaton told the court that she had frequent 

interactions with B.P. through weekend visitations between when the child was two 

weeks old and October 2006. When B.P. was with them on the weekends, the Heatons 

took her to 4-H classes and to Sunday school. 

{¶ 24} Mrs. Heaton testified that Hazelbaker was “paranoid” and would not 

leave the house. She claimed that Hazelbaker slept a lot and had “questionable seizure 

activity.” Mrs. Heaton opined that B.P.’s future would go “nowhere” if she stayed with 

Hazelbaker. And Mrs. Heaton stated that while B.P. was staying with her one weekend, 
Adams App. No. 10CA890 10 

the Adams County Sheriff was called to Hazelbaker’s residence twice. She also stated 

that in 2006, Purvis had to watch B.P. for two weeks when Hazelbaker took a trip to 

Paris, France, with a boyfriend who was a soldier in Iraq. 

{¶ 25} Purvis testified that he had concerns about Hazelbaker’s having custody 

of B.P. because she was “unpredictable.” Purvis admitted that he was on probation in 

Brown County for three years for a theft conviction, that he was on probation in Adams 

County for one year for a charge of theft by deception, and that he had been 

incarcerated for a parole violation for a theft conviction in Highland County. 

{¶ 26} On the second day of the hearing, the court heard testimony from 

Hazelbaker and her witnesses. Steve Darby testified that he is a guidance counselor at 

North Adams High School and the advisor of a 4-H group at the school. Darby testified 

that Heather attended 4-H meetings, and Hazelbaker brought her to the meetings when 

they resided together. He further testified that Hazelbaker brought B.P. with her to the 

meetings, that B.P. would play with the siblings of other 4-H participants, and that 

Hazelbaker and B.P. had a good relationship. Finally, Darby testified that B.P. 

participated in Lead Line classes at horse shows. 

{¶ 27} Winfield Rayburn, Hazelbaker’s father, testified that he would babysit B.P. 

after she got out of preschool or kindergarten and before Hazelbaker came home from 

work. Winfield testified that B.P. was a pleasant and talkative child. Winfield stated that 

he had no concerns about the way that Hazelbaker was raising B.P. 

{¶ 28} Hazelbaker testified that she worked at Child Focus, Inc., where she 

coordinated services for at-risk families with young children. Hazelbaker indicated that 

her workplace required random drug tests and that she had never failed a drug test. 
Adams App. No. 10CA890 11 

She specifically denied ever taking any drugs. She claimed that there were never any 

“strange men” in the house and denied that she slept all the time. She denied using 

Elisha as a babysitter so that she could go out to the bars; she said that she rarely if 

ever went out. Hazelbaker also stated that the house had heat and air conditioning. 

{¶ 29} Hazelbaker testified that B.P. had good grades while living with her. 

Hazelbaker stated that she took B.P. to 4-H classes in Adams County and that she took 

her to Lead Line horse riding classes. She produced various photographs showing B.P. 

participating in Lead Line classes, at home with her sisters, and on vacation with her at 

the Great Serpent Mound. 

{¶ 30} Concerning the nude photographs, Hazelbaker conceded that she sent 

pictures taken in 2005 to a soldier stationed in Iraq whom she met online. Hazelbaker 

claimed that she kept the pictures under a password-protected account and denied that 

all the accounts on the computer had the same password. Hazelbaker also denied that 

there were photographs on her computer of group sex and claimed no recollection of 

those events. Hazelbaker stated that she believed that Heather was angry at her 

because she attempted to place her in a children’s home after she suspected that 

Heather had a drug problem. 

{¶ 31} Hazelbaker admitted that Adams County Children Services had been 

called to her house at least five times. She believed that Purvis and/or the Heatons had 

called them. She noted that Children Services investigated all the claims and found that 

none were substantiated. Hazelbaker admitted that she filed bankruptcy in 2007 and 

had 63 total creditors. However, she pointed out that 49 of these creditors were for a 

failed construction business with Purvis. Hazelbaker also admitted that she called the 
Adams App. No. 10CA890 12 

sheriff’s office out to her home twice one weekend in 2006 because of a domestic 

dispute between Hesler and herself. 

{¶ 32} Hazelbaker explained that she kept B.P. from visiting with the Heatons 

one weekend because she had family coming into town from Alabama and she wanted 

them to meet B.P. She indicated that she had asked the Heatons if she could keep 

B.P., but they refused. She also admitted that she kept B.P. from visiting with the 

Heatons for approximately two months after she obtained a protection order against 

Purvis. However, she claimed that she kept B.P. upon the advice of the sheriff’s office, 

which informed her that as long as the protection order was in effect, she should not 

send B.P. to stay with the Heatons while Purvis was living with them. 

{¶ 33} In June 2008, the court issued its decision, effectively granting custody to 

the Heatons and parenting time to Hazelbaker. After Hazelbaker appealed that 

decision, we reversed, holding, among other things, that the court must find that 

Hazelbaker was “unsuitable” before it could grant custody of B.P. to the Heatons. See 

Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, at ¶ 2. 

D. Remand Proceedings 

{¶ 34} In April 2009, the court held a hearing after our remand, apparently to 

receive any new evidence that had arisen since the 2008 hearing. Ty Shipley testified 

that he was engaged to Hazelbaker, whom he had known for 20 years. Hazelbaker had 

been living with him at his home since December 2008, and B.P. had made overnight 

visits to his residence during Hazelbaker’s parenting time. Shipley testified that he had 

observed the relationship between Hazelbaker and B.P. and it was “typical” and “good.” 

Shipley stated that he has grown children of his own. 
Adams App. No. 10CA890 13 

{¶ 35} Hazelbaker testified that B.P. has a good relationship with Shipley and 

that they play soccer together. She stated that there had been no police or childrenservices investigations at Shipley’s home. Hazelbaker admitted that she had lost the 

home that she was living in previously to foreclosure. She stayed at her father’s home 

for a few months before moving in with Shipley. Before she moved there, she had been 

in a relationship with another man for approximately three months. Their relationship 

ended because he died in a car accident. Hazelbaker stated that she had very little 

contact with the Heatons, and most of the information regarding what B.P. was doing 

with them was obtained through Purvis. 

{¶ 36} Subsequently, the guardian ad litem issued an additional report. She 

found that B.P. was doing well in school and continued to thrive while in the Heatons’ 

care. B.P. was participating in softball and going to church camp. The Heatons told the 

guardian ad litem that Hazelbaker had been resistant to extracurricular activities 

involving B.P. They claimed that Hazelbaker had brought the child to softball practice 

but left early, after about 45 minutes, because B.P. was not feeling well. The Heatons 

reported that exchanges of B.P. with Hazelbaker had been uneventful. Ultimately, the 

guardian ad litem recommended that the court grant custody of B.P. to the Heatons and 

opined that custody by either parent would be detrimental to B.P. 

{¶ 37} The court issued its decision in September 2009 and found by “clear and 

convincing” evidence that Hazelbaker was not a suitable parent and that her retaining 

custody of B.P. would be detrimental to the child. Accordingly, the court ordered that 

custody of the child “should remain with the grandparents, Keith and Debbie Heaton.” 
Adams App. No. 10CA890 14 

After Hazelbaker requested findings of fact and conclusions of law, the court delayed 

issuing a journal entry until February 8, 2010. The entry found: 

1. Defendant has without cause withheld the child from her father and her 

grandparents on several occasions. 

2. The Defendant demonstrates limited parenting skills, not only because 

she does not seem to understand the value of the child’s association with 

grandparents and the father but also by the alienation of her other 

children. 

3. The grandparents have provided a safe and stable home for the child 

and have seen to it that the child has contact with the Defendant at all 

ordered times. 

4. Defendant’s home in Adams County was unsuitable, and although she 

has moved in with yet another adult male in Brown County who has a 

good residence, her behavior of going from one boyfriend to another 

causes the court to question her stability. Indeed, testimony about her 

having sent nude photos of herself to a previous male friend, among the 

other matters listed above, drew the court to the conclusion that she is not 

a suitable custodian for a young child. 

5. The grandparents have provided a home and stability for this child 

when no one else was able or willing to do so, and she has thrived in their 

care. 

{¶ 38} Hazelbaker has appealed from this judgment entry.3

II. Assignments of Error 

{¶ 39} Hazelbaker presents a single assignment of error: 

The trial court committed an abuse of discretion by granting 

custody to a nonparent when the record does not support a finding that 

custody to mother would be detrimental to the child, and thus that mother 

would be an unsuitable parent. 

III. Custody Disputes Involving a Nonparent 

 

3

 Although a party to this matter, Purvis did not file a brief. Subsequent to the court’s journal entry 

awarding custody of B.P. to the Heatons, Purvis filed a new motion for change of custody and now claims 

that Debbie Heaton “manipulates [his] daughter’s time so that [his] parenting time is limited.” 
Adams App. No. 10CA890 15 

{¶ 40} In her sole assignment of error, Hazelbaker argues that the trial court 

abused its discretion by finding that she is an unsuitable parent because the record 

lacks competent and credible evidence that her retention of custody would be 

“detrimental” to B.P. We agree. 

A. The Parent’s Paramount Right to Custody 

{¶ 41} The right to raise one’s child is regarded as essential and fundamental. 

See In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169. “[I]t has been 

deemed ‘cardinal’ that the custody, care and nurture of the child reside, first, in the 

parents.” Id., quoting Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct. 438. 

The United States Supreme Court, in Troxel v. Granville (2000), 530 U.S. 57, 65-66, 

120 S.Ct. 2054, held that a parent has a fundamental right to make decisions 

concerning his or her children. Courts have therefore “sought to effectuate the 

fundamental rights of parents by severely limiting the circumstances under which the 

state may deny parents the custody of their children.” In re Hockstok, 98 Ohio St.3d 

238, 2002-Ohio-7208, 781 N.E.2d 971, at ¶ 17, citing Perales, 52 Ohio St.2d 89, 369 

N.E.2d 1047, at syllabus. 

{¶ 42} Accordingly, “in a child custody proceeding [under R.C. 2151.23(A)(2)] 

between a parent and nonparent, a court may not award custody to the nonparent 

‘without first determining that a preponderance of the evidence shows that the parent 

abandoned the child; contractually relinquished custody of the child; that the parent has 

become totally incapable of supporting or caring for the child; or that an award of 

custody to the parent would be detrimental to the child.’ [Perales at syllabus.] If a court 

concludes that any one of these circumstances describes the conduct of a parent, the 
Adams App. No. 10CA890 16 

parent may be adjudged unsuitable, and the state may infringe upon the fundamental 

parental liberty interest of child custody.” In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio7208, 781 N.E.2d 971, at ¶ 17. 

{¶ 43} A “preponderance of the evidence” is “evidence which is of greater weight 

or more convincing than the evidence which is offered in opposition to it.” Black’s Law 

Dictionary (6th Ed.1998) 1182. 

B. Standard of Review 

{¶ 44} Although a trial court possesses broad discretion in custody matters, 

Reynolds v. Goll (1996), 75 Ohio St.3d 121, 124, 661 N.E.2d 1008, it does not have 

discretion to terminate a parent’s right to custody when the finding of unsuitability is not 

supported by the record. Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047. Thus, we will 

review the record under a manifest-weight-of-the-evidence standard to see whether 

competent, credible evidence supports the trial court’s finding of unsuitability. See C.E. 

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578, cited 

with approval in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 

1264, at ¶ 24; State v. Schiebel (1990), 55 Ohio St.3d 71, 74-75, 564 N.E.2d 54. 

C. Findings of Detriment to B.P. 

{¶ 45} Hazelbaker contends that the trial court erred in concluding that she is an 

unsuitable parent. Generally, she argues (1) that certain findings of fact are irrelevant to 

the “unsuitability” analysis, i.e., they are actually considerations under the “best interest” 

analysis, and (2) that other findings simply do not support the conclusion that it would 

be detrimental to B.P. for her to retain custody. We will review each finding of fact to 

determine whether (1) it is a relevant consideration under the Perales unsuitability 
Adams App. No. 10CA890 17 

analysis and (2) there is some competent and credible evidence in the record to support 

it. 

1. Defendant has without cause withheld the child from her father and her 

grandparents on several occasions. 

{¶ 46} Hazelbaker admits that facilitating court-approved parenting time is a bestinterest- analysis factor under R.C. 3109.04(F)(1), but she argues that the evidence did 

not demonstrate that B.P. suffered any detriment from missing court-ordered visitation 

time. The Heatons argue that the evidence demonstrates that Hazelbaker used B.P. as 

a “bartering tool” to get the Heatons to “bend to her wishes.” 

{¶ 47} Hazelbaker did not send B.P. to stay with the Heatons one weekend in 

late 2006 when Hazelbaker’s family visited from out of town and she wanted B.P. to 

meet them. And Hazelbaker discontinued visitation with the Heatons for a period of 

approximately two months in late 2006 after she filed for a protection order against 

Purvis, naming herself and B.P. as protected parties (Purvis was residing with the 

Heatons during this period). Hazelbaker explained that the reason she did not send 

B.P. to the Heatons was because a sheriff’s office employee told her that if she had a 

protection order against Purvis that included B.P. as a protected party, she should not 

send B.P. where he was living. 

{¶ 48} The Heatons exercised visitation regularly with B.P. from 2000 up until the 

incidents of withholding in late 2006. In fact, Mrs. Heaton testified that the Heatons saw 

B.P. very freely until October 2006, even when Hazelbaker and Purvis were not in a 

relationship. Hazelbaker voluntarily signed paperwork so the Heatons could take B.P. 

with them to visit Purvis while he was incarcerated. 
Adams App. No. 10CA890 18 

{¶ 49} There is no evidence in the record of any visitation disputes between the 

Heatons or Purvis and Hazelbaker following the December 2006 agreement to 

recommence visitation, and Hazelbaker has never been held in contempt of court for 

violating a visitation agreement. In fact, Purvis testified that Hazelbaker allowed him 

and the Heatons two days of visitation with B.P. over the Thanksgiving 2007 holiday 

even though it had been her turn to spend the holiday with B.P., and that Purvis and 

Hazelbaker have “trick or treated,” thrown a joint birthday party for B.P., and taken B.P. 

Christmas shopping together. 

{¶ 50} Although there is evidence in the record to support the trial court’s finding 

that Hazelbaker withheld visitation with B.P. from the Heatons and Purvis for a period in 

2006, there is no evidence that these actions have been detrimental to B.P. 

Significantly, none of the parties or other witnesses testified to any detrimental effect on 

B.P. as a result of Hazelbaker’s actions or introduced any other evidence to support 

such a finding.4

 

{¶ 51} We do acknowledge that a court may infer a detrimental effect on a child 

when a parent engages in such a pattern of withholding visitation as to demonstrate that 

the parent is clearly interfering in a child’s relationship with her other parent or 

grandparents. However, there is no competent and credible evidence that such a 

pattern exists here. Even assuming that Hazelbaker’s decision to withhold visitation 

from the Heatons while B.P. was listed on the protection order against Purvis was 

unjustified, this was a brief period in an otherwise continuous relationship between B.P. 

and her paternal family. Even the testimony of Mrs. Heaton and Purvis establishes that 

 

4

 We do not suggest that contempt sanctions for withholding visitation must be based upon a finding of 

detriment. However, contempt of court is not the issue here. 
Adams App. No. 10CA890 19 

Hazelbaker generally allowed them visitation with B.P., even whenit was not required by 

the court. 

{¶ 52} We conclude that although there is some evidence to support the trial 

court’s finding that Hazelbaker withheld visitation without cause, the court’s conclusion 

that these actions establish that Hazelbaker’s retention of custody would be detrimental 

to B.P. is not supported by the record. 

2. The Defendant demonstrates limited parenting skills, not only because 

she does not seem to understand the value of the child’s association with 

grandparents and the father but also by the alienation of her other 

children. 

{¶ 53} The first aspect of this finding -- that Hazelbaker failed to understand the 

value of B.P.’s association with her grandparents -- appears to be directed to the 

missed visitation in 2006. Thus, we decline to reexamine that finding here and rely 

upon our previous analysis. 

{¶ 54} Concerning the alienation of her other children, Hazelbaker argues that 

this sort of finding is improper in the unsuitability analysis because the focus should be 

on the individual child in question. Stated otherwise, she contends that the record lacks 

competent and credible evidence that the alienation from her other children caused 

detriment to B.P. She further argues that the testimony of her children about her “bad 

mothering” was only relevant to the year prior to their testimony, which was received in 

2007. And Hazelbaker contends that we should view Heather’s testimony as “suspect” 

because Heather was angry at her. 

{¶ 55} Hazelbaker’s children are clearly alienated from her. Based upon a 

parent’s poor relationship with that parent’s other children, a court might infer that it is 

only a matter of time until an existing good relationship with the child in question 
Adams App. No. 10CA890 20 

degenerates into an unsatisfactory one. However, the standard for awarding custody to 

a nonparent under Perales is whether an award of custody to the parent would be 

detrimental to the child, not whether such an award of custody could be detrimental to 

the child in the future. In the absence of some evidence that the schism is having a 

detrimental effect upon B.P., the trial court could not conclude that Hazelbaker is 

presently an unsuitable parent to B.P. 

{¶ 56} There is certainly other testimony from Elisha, Heather, and Nathan to 

establish instances of limited parenting skills that may affect B.P., i.e., purchasing 

alcohol instead of food, excessive sleeping instead of caring for her children, going out 

frequently, and permitting or participating in drug usage in the home. However, the 

court made no findings of fact based upon any of this testimony; therefore, we can only 

conclude that the trial court either did not find much of the testimony credible5

 or did not 

believe this conduct was having a detrimental effect on B.P. 

{¶ 57} We conclude that merely being alienated from other children does not 

mean it would be detrimental to award custody of a different child to the parent. 

Therefore, we search for evidence suggesting that Hazelbaker’s alienation from her 

other children is causing detriment to B.P. 

{¶ 58} Dr. Smiley stated in his second custody evaluation that he had “concerns” 

about B.P.’s lack of contact with Elisha, Heather, and Nathan. Apparently, due to the 

 

5

 There were conflicts in the testimony of the three older children. For example, Elisha testified that she 

frequently babysat her younger siblings so that Hazelbaker could go out, but Nathan testified that Elisha 

“infrequently” babysat him during their visits. Heather testified that she observed drug use by Hazelbaker 

and her then boyfriend, but Elisha testified that she never observed any drug use in the home. There 

were also instances of conflict between Hazelbaker’s children and other evidence in the record. For 

example, Heather testified that there was no heat or air conditioning in Hazelbaker’s home, but the 

guardian ad litem report found the home to be adequate. Additionally, although Hazelbaker was 

apparently reported to and investigated by Adams County Children Services on multiple occasions, the 

agency never concluded that the home was inadequate or lacking basic necessities such as food. 
Adams App. No. 10CA890 21 

other children’s general dislike of their mother, they would see B.P. only when she 

visited with the Heatons. Thus, the record contains some support for the trial court’s 

finding that lack of contact with her half-siblings would cause some level of harm to B.P. 

However, because B.P. maintains a relationship with her half-siblings through the 

Heatons, it is unreasonable to conclude that B.P.’s limited relationship with her now 

grown half-siblings would constitute such a detriment under Perales as to demonstrate 

that Ms. Hazelbaker is an unsuitable parent. 

3. The grandparents have provided a safe and stable home for the child 

and have seen to it that the child has contact with the Defendant at all 

ordered times. 

{¶ 59} Hazelbaker argues that the first aspect of this finding of fact, i.e., the 

Heatons’ safe and stable home, is a proper consideration under the R.C. 3109.04(F)(1) 

best-interest analysis but has no import in determining whether retaining custody of B.P. 

would be detrimental to her under Perales. Hazelbaker is correct. “The Perales

‘suitability’ test is distinguishable from the ‘best interest’ test. Under the best interest 

test, the court looks for the best situation available to the child and places the child in 

that situation. [In re] Lowe [(Jan. 16, 2002), Columbiana App. No. 00CO62, 2002 WL 

75937]. The suitability test, on the other hand, requires a detriment to the child be 

shown before the court takes him/her away from an otherwise suitable parent.” In re 

Davis, Mahoning App. No. 02-CA-95, 2003-Ohio-809, at ¶ 12. “Under the suitability 

test, ‘[s]imply because one situation or environment is the “better” situation does not 

mean the other is detrimental or harmful to the child. ’” Id., quoting Lowe at *2. 

{¶ 60} Accordingly, though there was competent and credible evidence in the 

record to support a finding that the Heatons’ home was safe and suitable, this factor is 
Adams App. No. 10CA890 22 

irrelevant to the unsuitability analysis. Moreover, even if we were to assume that the 

implication here is that Hazelbaker’s home was not safe and suitable, the record 

squarely contradicts such a finding. Although there were allegations that there was 

drug use in Hazelbaker’s home in Adams County and that strange men were sometimes 

there, this testimony was apparently not credited by the trial court, as it made no finding 

in this regard. Moreover, the guardian ad litem expressly found that Hazelbaker’s home 

was suitable for B.P. And notably, there was no evidence presented that there were 

any issues with Hazelbaker’s current home, i.e., Shipley’s residence. Shipley explained 

that B.P. had a room to herself while she stayed there on her visits, and the residence 

passed a home inspection ordered by the trial court. Accordingly, this aspect of the trial 

court’s decision fails to support an unsuitability determination, and the trial court erred 

as a matter of law to the extent it relied upon it. 

{¶ 61} The trial court’s finding that the Heatons ensured that B.P. had contact 

with Ms. Hazelbaker at all ordered times is similarly irrelevant to the unsuitability 

analysis. Assuming that the record contains competent and credible evidence of this 

finding, it is simply not pertinent to whether Hazelbaker’s retaining custody would be 

detrimental to B.P. The focus of the unsuitability determination must necessarily be on 

the parent’s acts or omissions. The Heatons’ admirable adherence to honoring courtordered custody arrangements has no logical nexus to a finding that awarding custody 

to Hazelbaker would be detrimental to B.P. 

 4. The Defendant’s home in Adams County was unsuitable, and although 

she has moved in with yet another adult male in Brown County who has a 

good residence, her behavior of going from one boyfriend to another 

causes the court to question her stability. Indeed, testimony about her 

having sent nude photos of herself to a previous male friend, among the 
Adams App. No. 10CA890 23 

other matters listed above, drew the court to the conclusion that she is not 

a suitable custodian for a young child. 

{¶ 62} Hazelbaker challenges the court’s assertion that her home in Adams 

County was unsuitable. She points to the guardian ad litem’s supplemental report, 

which stated that both her home and the grandparents’ home were suitable. We agree 

that the guardian ad litem found the Adams County home to be suitable. 

{¶ 63} In concluding that Hazelbaker was not a suitable custodian for B.P., the 

trial court’s findings indicate two reasons it was concerned about her stability: (1) her 

behavior of going from one boyfriend to another and (2) her decision to send nude 

photographs of herself to a previous boyfriend. However, there is no evidence in the 

record that Hazelbaker’s sexual activities had a negative impact on B.P. 

{¶ 64} We reject the notion that having several boyfriends over a multiyear span 

establishes the sort of parental deficiency that could support a finding of parental 

unsuitability. The evidence demonstrated that one of Hazelbaker’s ex-boyfriends, Kevin 

Hesler, may have engaged in a domestic dispute or even been violent with her. 

However, Hazelbaker lived with Hesler for only a four- month period in 2006. Moreover, 

when this dispute occurred, B.P. was in the Heatons’ care. Regardless, there is no 

evidence in the record that Hazelbaker’s romantic relationships had any detrimental 

effect on B.P. 

{¶ 65} The nude photographs clearly demonstrate that Hazelbaker exercised 

poor judgment in 2005. But again, there was no competent and credible evidence 

presented either at the preremand hearing or the postremand hearing demonstrating 

that these nude photographs caused any detriment to B.P. While it was undoubtedly 

unwise for Hazelbaker to store nude photographs of herself on a computer that her 
Adams App. No. 10CA890 24 

young daughter could potentially access, there was no competent and credible 

evidence in the record demonstrating that B.P. suffered any actual, direct harm from the 

existence of these photographs. Accordingly, the trial court abused its discretion to the 

extent that it relied upon the mother’s behavior of having several boyfriends over a fiveyear period and possessing nude photographs on her computer to justify its decision 

that Hazelbaker was an unsuitable parent. 

5. The grandparents have provided a home and stability for this child 

when no one else was able or willing to do so, and she has thrived in their 

care. 

{¶ 66} Hazelbaker contends that this finding of fact does not support the trial 

court’s decision that she is an “unsuitable” mother because the evidence also showed 

that she had provided a home and stability for the child and that the child has thrived in 

her care. She further argues that the guardian ad litem’s report found that both her 

home and that of the Heatons were appropriate and suitable for the child. Additionally, 

Hazelbaker points to Dr. Smiley’s report, which indicated that B.P. felt safe and secure 

while living with Hazelbaker. Ultimately, Hazelbaker contends that the trial court simply 

determined that the Heatons’ home provided a better home environment for B.P., a 

consideration not appropriate in determining whether she was suitable to raise her own 

child. 

{¶ 67} Concerning the first aspect of this finding of fact—the Heatons’ home – we 

again defer to our analysis concerning finding-of-fact three. Accordingly, we reject this 

finding as supportive of the trial court’s unsuitability determination. 

{¶ 68} Finally, the court’s finding that “no one was able or willing” to provide a 

home or stability for B.P. is simply unsupported by the record. There is no evidence 
Adams App. No. 10CA890 25 

that Hazelbaker was unable or unwilling to provide a home for B.P. In fact, Hazelbaker 

has consistently fought to maintain custody of B.P. while providing the Heatons with 

visitation opportunities. Neither her home in Adams County nor her current residence in 

Brown County has been deemed unsuitable for B.P. to reside in. 

D. Totality of Findings 

{¶ 69} We recognize that the trial court’s discretion in custody matters should be 

accorded the utmost respect; however, we find that the court’s ultimate conclusion that 

retention of custody by Hazelbaker would be detrimental to B.P. is simply not supported 

by competent and credible evidence. Although the trial court made factual findings in 

support of its decision, some of these findings were simply irrelevant because they 

pertained only to a “best interest” analysis that was inapplicable here. Other findings do 

not sustain the unsuitability determination because there is no evidence that B.P. has 

suffered or would suffer any detriment by a continuation of custody with Hazelbaker. In 

fact, the testimony from all witnesses established that B.P. is a happy, healthy child who 

performs well in school and loves all the adults in her life. 

{¶ 70} Furthermore, although there is certainly evidence demonstrating that 

Hazelbaker is not a flawless parent, this is not the standard for an unsuitability finding 

under Perales. A review of other cases involving unsuitability findings reveals far more 

substantial evidence to support a finding that parental custody is detrimental to a child. 

See, e.g., In re Z.A.P., 177 Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342 (while 

child lived with mother, he had serious behavior problems and took several medications 

for behavior; child claimed physical abuse by mother’s live-in boyfriend; mother’s house 

was dirty and in disarray; several unrelated individuals lived in the house including a 
Adams App. No. 10CA890 26 

known “druggie”; child had no structure at mother’s home; child would be “emotionally 

devastated” if forced to return to home; and child’s behavior had significantly improved 

and he had been removed from medications while he lived outside of mother’s home); 

In re A.W.-G., Butler App. No. CA2003-04-099, 2004-Ohio-2298 (mother unable to 

maintain employment and housing, child experiences rash due to lack of hygiene while 

in mother’s care, mother does not consistently provide care for child’s medical issues); 

Karr v. Dunn, Pickaway App. No. 03CA22, 2004-Ohio-928 (mother returned to work 

when child was three weeks old without arranging childcare, failed to provide financial 

support for child, abandoned child for several weeks, lived in six homes over four-year 

period, failed to provide consistent medical care for child ; also home lacked electricity 

and running water and was unsanitary). 

IV. Conclusion 

{¶ 71} We conclude that the trial court’s finding that Hazelbaker is an unsuitable 

parent because her retention of custody of B.P. would be detrimental to B.P. is not 

supported by the record. The trial court’s ultimate conclusion is based on findings that 

are irrelevant to the analysis or unsupported by competent and credible evidence of 

detriment. Therefore, the trial court’s decision to award custody to the Heatons was 

unreasonable. 

Judgment reversed 

and cause remanded. 

 MCFARLAND, P.J., and KLINE, J., concur. 

 HARSHA, J., dissents.