[Cite as In re H.P. , 2021-Ohio-4446.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re H.P. Court of Appeals No. L-21-1090

Trial Court No. JC 16255015

DECISION AND JUDGMENT Decided: December 17, 2021

* * * * * Christopher S. Clark, for appellant.

* * * * * MAYLE, J.

I. Introduction {¶ 1} H.P., the father and appellant herein, appeals a May 10, 2021 j udgment by the Lucas County Court of Common Please, Juvenile Division that denied his request for parenting time. As set forth below, we affirm.2. II. Background {¶ 2} This case originated with the filing of a complaint in dependen cy and neglect by Lucas County Children’s Services on April 25, 2016. After months of caseplanning with both parents, the juvenile court awarded legal cu stody of H.P., Junior (d.o.b. 07/27/2010 and hereinafter referred to as “H.P. Jr.”) t o his maternal aunt and uncle, H.F. and A.F. The court ordered parenting time for moth er “by agreement of the parties.” With regard to father’s parenting time, the order pr ovided as follows: Father has [mental health] issues that interfere with his paren ting of child. He says he attends Zepf, but has failed to sign release s to prove he is receiving treatment. He has not had visitation with child for over a year. * * * Due to father’s current [mental health] status, no parentin g time order

will issue at this time. Should father in the future wish to e stablish parenting time, he will need to file a proper motion with this court that includes documentation from his [mental health] therapist that his [mental health] issues are addressed and have been stabilized for at le ast 6 months.” (Nov. 13, 2017 J.E.). {¶ 3} At issue in this appeal is father’s November 9, 2020, “Motion t o Modify Parental Rights and Responsibilities,” filed pro se. In respon se to the motion, a magistrate ordered father to undergo a urine screen and a home study, to be completed by

LCCS.3. {¶ 4} A home study could not be conducted because, according to LCCS, father failed the urine screen (alcohol and diluted creatinine) and be cause father continued to refuse treatment, despite “a history of significant and severe mental health diagnosis.” {¶ 5} Following an evidentiary hearing before a magistrate, father’s motion was denied. Father filed objections and requested that the trial c ourt order his son, H.P. Jr., be seen by father’s psychiatrist. The trial court adopted the mag istrate’s decision and denied father’s objections on May 10, 2021. {¶ 6} Through counsel, father appealed and assigns a single assignmen t of error for our review. No other parties entered an appearance i n this matter or filed

a brief. The trial court abused its discretion in denying appellant’s mo tion to modify parental rights and responsibilities as the court’s deci sion is against the manifest weight of the evidence, as visitation is in the be st interest of

the child. III. Law and Analysis {¶ 7} As an initial matter, we note that father’s motion appears to h ave been incorrectly styled, in that father was not seeking to change a shared parenting plan or to change the designation of the sole residential parent and legal custodian. Rather, father sought to modify the trial court’s previous order that denied h im parenting time. Indeed, father testified at hearing that he “just want[ed] visitation s o [he] can spend time with4. [his] son.” Accordingly, we interpret father’s request as a mo tion to modify parenting

time. Accord In re X.L., 5th Dist. Licking No. 13CA6, 2013-Ohio-2421, ¶ 11. {¶ 8} When considering a motion for parental visitation, following an adjudication of dependency under R.C. 2151.353, the juvenile court is requir ed to focus “solely” on

the best interest of the child. In re N.F., 9th Dist. Summit No. No. 29508, 2020-Ohio2701, ¶ 20; see also In re J.S., 11th Dist. Lake No. 2011-L-162, 2012-Ohio-4461. In In re J.S., the court rejected the legal custodian’s argument that a parent seeking visitation must demonstrate that a “change of circumstances” had occurred. Id. at ¶ 32; accord In

re X.L. at ¶ 12-13 (Trial court commits reversible error by requiring a parent to show a change in circumstances). {¶ 9} The best interest factors set forth in R.C. 3109.051 (“Parentin g time rights”) apply in these cases. In re N.F. at ¶ 23. 1 The statute provides, in part, (A) If a divorce, dissolution, legal separation, or annulment proceeding involves a child and if the court has not issued a s hared parenting decree, the court * * * shall make a just and reasona ble order or decree permitting each parent who is not the residential parent to have parenting time with the child at the time and under the conditi ons that the court directs, unless the court determines that it would not be in the best

1 In his brief, father cites R.C. 3109.04(B)(1), which also cont ains a “best interest of the child” standard. But, R.C. 3109.04 applies to the issue of legal custody following an adjudication of abuse, neglect or dependency,” not parenting ti me . In re N.F. at ¶ 22 citing In re A.M., 9th Dist. Summit No. 29388, 2019-Ohio-5221, ¶ 12.5. interest of the child to permit that parent to have parenting t ime with the child and includes in the journal its findings of fact and conc lusions of law. {¶ 10} Although R.C. 3109.051 does not refer to parenting time in proc eedings involving an abused, neglected, or dependent child, “there is n o statute that does.” In re

N.F. at ¶ 23. Moreover, R.C. 3109.051 is “the only statute pertaini ng to parenting time and has been applied in similar situations to the one before us on appeal.” Id . Thus, pursuant to R.C. 3109.051(D), the juvenile court was required t o consider the following

best interest factors: (1) The prior interaction and interrelationships of the child w ith the child’s parents, siblings, and other persons related by consang uinity or affinity, and with the person who requested companionship or vi sitation if that person is not a parent, sibling, or relative of the child; (2) The geographical location of the residence of each parent a nd the distance between those residences, and if the person is not a p arent, the geographical location of that person’s residence and the distan ce between that person's residence and the child’s residence; (3) The child’s and parent’ available time, including, but not limited to, each parent’s employment schedule, the child’s school sched ule, and the child’s and the parent’ holiday and vacation schedule; (4) The age of the child;6. (5) The child’s adjustment to home, school, and community; (6) If the court has interviewed the child in chambers, pursuan t to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential p arent or companionship or visitation by the grandparent, relative, or ot her person who requested companionship or visitation, as to a specific par enting time or visitation schedule, or as to other parenting time or visita tion matters, the wishes and concerns of the child, as expressed to the court; (7) The health and safety of the child; (8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties; (10) Each parent’s willingness to reschedule missed parenting t ime and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willing ness of that person to reschedule missed visitation; (11) In relation to parenting time, whether either parent previ ously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neg lected child; whether either parent, in a case in which a child has been adju dicated an7. abused child or a neglected child, previously has been determin ed to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that eithe r parent has acted in a manner resulting in a child being an abused child or a neglected child; (12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been con victed of or pleaded guilty to any criminal offense involving any act that r esulted in a child being an abused child or a neglected child; whether the p erson, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whethe r either parent previously has been convicted of or pleaded guilty to a violati on of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or househo ld that is the subject of the current proceeding; whether either parent pr eviously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or househo ld that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is r eason to8. believe that the person has acted in a manner resulting in a ch ild being an abused child or a neglected child; (13) Whether the residential parent or one of the parents subje ct to a shared parenting decree has continuously and willfully denied t he other parent’s right to parenting time in accordance with an order of the court; (14) Whether either parent has established a residence or is pl anning to establish a residence outside this state; (15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court; (16) Any other factor in the best interest of the child. {¶ 11} We now turn to the juvenile court’s judgment that overruled fat her’s objections and adopted the magistrate’s decision to deny his re quest for parenting time. Pursuant to Juv.R. 40(D)(4) (d), if timely objections to a magistrate’s decision are filed, the juvenile court “shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factu al issues and appropriately applied the law.” We review a trial court’s decision with resp ect to visitation under an

abuse of discretion standard. In re J.S. at ¶ 19. This standard requires that the trial court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or unconscionable,” because the trial judge is best equipped to de termine and weigh the9. credibility of the proffered testimony. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 12} In its decision, the juvenile court found, After reviewing the record, the Court finds Father’s objection unpersuasive. Indeed, the Magistrate clearly ordered [in 2017] that Father provide documentation that his mental health issues have been s tabilized for at least six months. Although the court commends Father fo r providing evidence that he was recently seen by a psychiatrist, the docto r also noted that it was only the first time evaluating Father. Accordingly , Father must continue to be evaluated by his psychiatrist for, at least, ano ther six months before the Court will allow parenting time between Father and t he minor child. As for psychiatric evaluations for the minor child, cus todians [H.F. and A.F.] may choose to allow the minor child to be seen by Fat her’s psychiatrist; however, the Court makes no such order to do so a t this time. Based on the foregoing, Father’s objection is denied. {¶ 13} On appeal, father argues that the trial court abused its discre tion in denying his request for parenting time. He claims that H.P. Jr.’s best interests would be served by “allowing [H.P. Jr.] the opportunity to develop a relationship with his natural father and allow [father] the opportunity to have a relationship with his natural son.” Father points10. to his “stable income” and the fact that he owns his own home j ust “four blocks from [H.P. Jr.]” as factors supporting visitation. {¶ 14} In applying the best interest factors, the trial court clearly afforded the most weight to R.C. 3109.051(D)(9), regarding father’s mental health . Given father’s longstanding history of unaddressed mental health issues, we see no abuse of discretion by the trial court in placing more weight on that factor than the othe rs. Indeed, a trial court has discretion in determining which best interest factors are relev ant, and “each factor may not necessarily carry the same weight or have the same relevanc e, depending upon the facts before the trial court.” (Quotations and internal citati ons omitted.) Haldy v. Hoeffel , 3d Dist. Henry No. 7-19-08, 2020-Ohio-975, ¶ 32. The record also supports the court’s consideration of R.C. 3109.051(D)(1), regarding father and son’s “prior interaction and interrelationship.” According to LCCS, H.P. Jr . was “fearful of [father] and has not had visitation [with him] in several years.” {¶ 15} The record supports that the trial court considered R.C. 3109.0 51(D) through its independent review of the magistrate’s decision. Th at is, in deciding whether to grant father’s motion to modify parenting time, the trial co urt considered whether the request was appropriate and in H.P. Jr.’s best interest by weig hing the relevant statutory factors under R.C. 3109.051(D). After our review of the record , we cannot say that the trial court’s balancing of those factors or its application of the weight assigned to each factor was arbitrary, unreasonable, or unconscionable.11. IV. Conclusion

{¶ 16} For the reasons expressed above, we find that the juvenile cour t’s decision to deny father’s motion was not an abuse of discretion, and the refore we find that father’s assignment of error is without merit. The May 10, 2021 judgmen t of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Pursuan t to App.R. 24, costs of this appeal are assessed to father. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _________________________

___ JUDGE Christine E. Mayle, J.

____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.