[Cite as Baten-Sica v. Ramos, 2023-Ohio-1495.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CLEMENTE BATEN SICA JUDGES:

Hon. W. Scott Gwin, P.J.

 Plaintiff-Appellant Hon. William B. Hoffman, J.

Hon. Craig R. Baldwin, J.

-vsCase No. 2022 AP 09 0030

INICIA SICA RAMOS AND SIMON

BATEN HERNANDEZ 

 Defendant-Appellee O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court 

of Common Pleas, Juvenile Division, Case 

No. 2022CC00102

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 3, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

GWENDOLYN STARDA INICIA SICA RAMOS AND

148 E. Liberty Street – Suite #224 SIMON BATEN HERNANDEZ 

Wooster, Ohio 44691 c/o Aldea Cruz Chex

Aguacatan, Huehuetenango, Guatemala
Tuscarawas County, Case No. 2022 AP 09 0030 2

Hoffman, J.

{¶1} Plaintiff-appellant Clemente Baten-Sica appeals the judgment entered by 

the Tuscarawas County Common Pleas Court, Juvenile Division, denying his complaint 

for custody of his minor brother, R.S. Defendant-appellees are Inicia Sica Ramos and 

Simon Baten Hernandez, the natural parents of R.S. and Appellant.1

STATEMENT OF THE FACTS AND CASE

{¶2} R.S. was born in Guatemala on November 11, 2005, and is a citizen of 

Guatemala currently residing with Appellant and another brother in New Philadelphia, 

Ohio. In February of 2021, R.S. entered the United States. R.S. left Guatemala, paying 

4,000 pesos to a guide to bring him to the United States. Appellees gave R.S. the money 

to travel to the United States. R.S. desired to go to school, and believed more 

opportunities existed in the United States for him.

{¶3} R.S. was arrested upon entering the country, but released from federal 

custody to live with Appellant and another brother in Ohio. R.S. has lived with Appellant 

since entering the United States in 2021. Appellees have not visited R.S. and have not 

sent money for his care, but Appellees have cell phones and communicate with R.S. 

weekly. 

{¶4} Appellant filed the instant action seeking custody of R.S., alleging R.S. is 

dependent and neglected because Appellees abandoned R.S. The case proceeded to a 

hearing in the trial court.

{¶5} At the hearing, Appellant testified Appellees could take care of R.S., but 

there are a lot of threats in Guatemala, and he believed it would be dangerous for R.S. to 

1 Appellees waived service of the summons in the trial court, and have not entered an appearance in either 

the trial court or before this Court. Appellant’s brief reflects service on Appellees in Guatemala.
Tuscarawas County, Case No. 2022 AP 09 0030 3

return. Appellant testified R.S. had his lunch money stolen from him at school in 

Guatemala. The court called R.S. as its own witness. R.S. testified he wanted to come 

to the United States for a better life, and he wanted to go to school. 

{¶6} The trial court found R.S. was not dependent or neglected, and was not 

abandoned by Appellees. The trial court denied Appellant’s request for custody.

{¶7} It is from the August 23, 2022 judgment of the trial court Appellant 

prosecutes his appeal, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION, ERRED AS A 

MATTER OF LAW AND FACT AND VIOLATED THE APPELLANT’S AND 

CHILD’S DUE PROCESS AND CIVIL RIGHTS BY DENYING THE 

COMPLAINT BASED ON NATIONAL ORIGIN AND IMMIGRATION 

STATUS. 

II. THE TRIAL COURT FAILED TO MAKE A FINDING AS TO 

WHETHER THE CHILD WAS NEGLECTED AND ABANDONED 

PURSUANT TO ORC §2151.03(A)(1) AND §2151.011(C).

III. THE TRIAL COURT ABUSED ITS DISCRETION, ERRED AS A 

MATTER OF LAW AND FACT AND WENT AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE WHEN FINDING THAT THE CHILD WAS 

NOT ABUSED, NEGLECTED, OR ABANDONED BECAUSE THE CHILD 

“DECIDED” TO LEAVE HIS HOME.
Tuscarawas County, Case No. 2022 AP 09 0030 4

{¶8} This case comes to us on the accelerated calendar. App.R. 11.1, which 

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall 

be sufficient compliance with App.R. 12(A) for the statement of the reason 

for the court's decision as to each error to be in brief and conclusionary 

form.

The decision may be by judgment entry in which case it will not be 

published in any form.

{¶9} This appeal shall be considered in accordance with the aforementioned 

rule.

I.

{¶10} In his first assignment of error, Appellant argues the trial court erred in 

denying the complaint for custody based on the national origin and immigration status of 

Appellant and R.S. While the trial court considered the immigration status of Appellant 

and R.S. as a part of the factual background of the case, we find the trial court did not 

base its decision on the immigration status of Appellant and R.S., but rather on a finding 

the child was not neglected or dependent as a matter of law because Appellees had not 

abandoned the child. 

{¶11} The first assignment of error is overruled.
Tuscarawas County, Case No. 2022 AP 09 0030 5

II.

{¶12} In his second assignment of error, Appellant argues the trial court erred in 

failing to make a finding R.S. was a neglected child because he had been abandoned by 

his parents.

{¶13} R.C. 2151.03(A) defines a neglected child:

(A) As used in this chapter, “neglected child” includes any child:

(1) Who is abandoned by the child's parents, guardian, or 

custodian[.]

{¶14} R.C. 2151.011(C) sets forth a statutory presumption of abandonment of a 

child:

(C) For the purposes of this chapter, a child shall be presumed 

abandoned when the parents of the child have failed to visit or maintain 

contact with the child for more than ninety days, regardless of whether the 

parents resume contact with the child after that period of ninety days.

{¶15} Appellant argues he need only show R.S.’s parents failed to visit or failed 

to maintain contact with R.S., and because they failed to visit for more than ninety days,

R.S. was presumed to be abandoned despite the fact Appellees maintained contact with 

R.S. on a weekly basis. We disagree with Appellant’s interpretation of statutory language. 

The statute sets forth a presumption of abandonment if the parents neither visited nor 
Tuscarawas County, Case No. 2022 AP 09 0030 6

maintained contact with the child for more than ninety days. The statute provides a means 

by which a parent who is unable or prohibited from visiting with a child may avoid a 

presumption of abandonment by maintaining contact with the child:

Moreover, despite Mother's inability to visit with J.H., R.C. 

2151.011(C) does not limit a finding of abandonment to lack of visitation. 

Rather, the statute addressing abandonment also includes a failure to 

maintain contact with the child. Mother was not prohibited from otherwise 

maintaining contact with the child via gifts, mail correspondence, or other 

forms of contact outside of court-ordered visitation. Thus, despite her ability 

to do so, the record reflects Mother chose not to maintain any contact with 

her child throughout most of the case. Under these circumstances, we find 

no error in the juvenile court's determination that the child was abandoned 

as contemplated by R.C. 2151.011(C) and 2151.414(B)(1)(b). In re B.J. at 

¶ 31-36.

{¶16} In re J.N.L.H., 12th Dist. Butler No. CA2022-06-063, 2022-Ohio-3865, ¶ 41.

{¶17} In the instant case, Appellant testified Appellees communicate weekly by 

telephone. The record in this case does not support a presumption Appellees abandoned 

R.S., and the trial court did not err in failing to find R.S. was neglected because he was 

abandoned by Appellees.

{¶18} The second assignment of error is overruled.
Tuscarawas County, Case No. 2022 AP 09 0030 7

III.

{¶19} In his third assignment of error, Appellant argues the trial court’s finding 

R.S. was not neglected, dependent, or abandoned because he chose to leave home is 

against the manifest weight of the evidence.

{¶20} Ohio courts have 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 Perales, 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047 (1977), 

syllabus. In a child custody proceeding 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.” Id. If a 

court concludes any one of these circumstances describes the conduct of a parent, the 

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, ¶ 17. Thus, a finding of parental unsuitability is a necessary first 

step in child custody proceedings between a natural parent and a nonparent. Id. at ¶18. 

In a dispute between a parent and a nonparent for custody, the best interest standard set 

forth in R.C. 3109.04 does not apply. Id. at ¶19.

{¶21} Appellant argues the trial court improperly focused on the fact R.S. chose 

to leave home in finding Appellees did not abandon R.S. However, examining the 

evidence as a whole, we find the trial court’s finding the child was not abandoned is not 

against the weight of the evidence. Appellant testified he had not received money from 
Tuscarawas County, Case No. 2022 AP 09 0030 8

Appellees to support R.S., but Appellant testified Appellees were able to take care of R.S., 

and R.S. came to the United States because of other threats in Guatemala. Appellant 

testified Appellees have cell phones, and call weekly. Appellant and R.S. both testified 

R.S. came to the United States because of conditions in Guatemala and a belief R.S. 

could have a better life and obtain an education in the United States. While those 

considerations would be relevant to the best interests of the child in a custody dispute 

between parents, a custody dispute between a parent and a nonparent requires a finding 

of parental unsuitability, and not the best interests of the child. We find the trial court’s 

finding R.S. was not abandoned is not against the manifest weight of the evidence, and 

the trial court did not err in denying Appellant’s complaint for custody of R.S.

{¶22} The third assignment of error is overruled.

{¶23} The judgment of the Tuscarawas County Common Pleas Court, Juvenile 

Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur