[Cite as In re O.A. , 2023

- Ohio

- 1782.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE:

O.A. :

:

:

:

:

: CASE NO. CA 202 2

- 10

- 067

O P I N I O N

5/30/2023

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

JUVENILE DIVISION

Case No. 2021 JG 26515

Rollman & Conyers LLC, and Jeffrey M. Rollman

, for appell ant

.

Cornetet, Meyer, Rush & Stapleton, and Karen P. Meyer, for appell ee

.

Katherine Montgomery, guardian ad litem.

M

. POWELL

, J.

{¶ 1} Appellant ("Mother") appeals a decision of the Clermont County Court of

Common Pleas, Juvenile Division, granting companionship rights to her son's paternal

grandparents ("Grandmother" and " Grandfather " respectively, and "Grandparents"

collectively.)Clermont CA2 0 2 2

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- 067

- 2

- {¶ 2} Mother and Father are the parents of Owen who was born in March 2018. 1

Mother and Father were never married to each other. For the first year of Owen's life, he

and his parents resided with Grandparents

. During th at time, Grandparents provided

childcare for Owen while M other was working and assisted with Owen's day

- to

- day care.

After Father, M other, and Owen moved out of Grandparents ' home, Grandparents

continued to see Owen on weekends and often babysat him during the week.

{¶ 3} Father engaged in domestic violence against M other and verbally abused her

throughout their relationship. Mother confided in Grandmother multiple times about Father's

domestic violence

, and Grandmother witnessed Father's verbal abuse of Mother. Father

has a history of inpatient and outpatient mental health interventions. At some point in time,

M other separated from Father ; in October 2020, she obtained a civil protection order

("CPO") against him

, effective until 2025.

{¶ 4} The CPO provided that F ather have parenting time with Owen

, supervised by

Grandparents. From December 2020 until April 2021, Grandparents

, either individually or

together

, supervised F ather ' s alternating weekend parenting time with Owen

. During this

time period, Grandparents also saw Owen five days a week one week and three days the

following week. Father eventually violated the CPO and was arrested and incarcerated in

July 2021

. Nevertheless

, Grandparents continued to e njoy alternating weekend visits with

Owen until August 2021, when Mother stopped communicating with Grandparents

. This

occurred after Grandmother sent a text to Mother stating

, " [E] verything that [Father] did was

awful

, but you allowed it

. Don't blame anyone for that but yourself." In September 2021,

Mother moved to Indiana to live with a man she had met a month earlier. Thereafter, Mother

did not permit Grandparents to visit with Owen.

1

. " Owen " is a pseudonym, adopted in the opinion for purposes of privacy and readability

.Clermont CA2 0 2 2

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- 3

- {¶ 5} The record indicates that Father was in jail from July 2021 until October 2021.

While incarcerated, Father regularly called Grandmother

. Owen was present during some

of Grandmother's telephone conversations with Father. During his jail calls

, Father at times

ma de threats to harm M other ; Grandmother informed M other of these threats.

Grandmother advised F ather that M other had moved and discuss ed Mother's likely

whereabouts with Father

. During one of the jail call s and at Father's request, Grandmother

provided him with M other ' s telephone number. Thereafter, F ather made threatening

telephone calls to M other. Upon release from jail

, Father moved into Grandparents ' home.

{¶ 6} On October 29, 2021, F ather filed a complaint in the juvenile court seeking

custody of and parenting time with Owen

. A g uardian ad litem ( " GAL " ) was appointed. On

March 31, 2022, Grandmother fi led a complaint for custody of Owen or

, alternatively

,

companionship time with him. The record shows that Grandmother had Father move out

of Grandparents' ho me prior to filing her complaint

. In May 2022, Father withdrew his

complaint for custody and parenting time with Owen; Grandmother then withdrew her prayer

for custody, leaving her prayer for companionship time pending.

{¶ 7} A hearing was held on Grandmother ' s complaint for companionship time with

Owen

. Grandparents and M other were present and represented by counsel ; Father did not

appear at the hearing. The juvenile court heard testimony from Mother, Grandmother,

Grandfather

, Owen's maternal grandmother

, and the GAL

. The juvenile court also received

the GAL's report which noted the positive and loving relationship between Grandparents

and Owen

. In her report, the GAL recommended that Grand mother have companionship

time with Owen every other weekend and FaceTime or other video conferencing when

Grandmother is not exercising her companio nship time. At the hearing, the GAL changed

her companionship time recommendation to one weekend per month because of the two

hour d riving distance between Grandparents' home and Mother's home

. However, theClermont CA2 0 2 2

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- GAL's report had already noted that Grandparents and Mother live 100 miles apart.

{¶ 8} On October 7, 2022, the juvenile court awarded Grandparents companionship

time with Owen on the first Saturday of each month from noon until Sunday at 6:00 p.m.,

conditioned upon their completion of a supervised parenting program and taking reasonable

action to prevent any contact between Owen and F ather. In granting companionship time

to Grandparents, the juvenile court underlined Grandparents' "extraordinary relationship

with [ Owen ]

, " and noted that Mother's sole basis for objecting to Grandparents' request for

companionship time was her concern they would not be able to protect Owen from Father

.

The juvenile court found it was in Owen's best interest to maintain his relationship with

Grandparents

. The court further found it was also in Owen's best interest to be protected

from Father.

{¶ 9} Mother now appeals, raising two assignments of error.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT AWARDED

COMPANIONSHIP TIME TO PATERNAL GRANDFATHER.

{¶ 12} Mother argues that the juvenile court erred in granting companionship time to

Grandfather because only Grandmother filed a complaint for companionship time with

Owen.

{¶ 13} "A juvenile court may exercise jurisdiction only if expressly granted the

authority to do so by statute." Rowell v. Smith

, 133 Ohio St.3d 288, 2012

- Ohio

- 4313, ¶ 13,

citing Article IV, Section 4(B)

, Ohio Constitution

. "Any person with standing may file a

complaint for the determination of any other matter over which the juvenile court is given

jurisdiction by the Revised Code." Juv.R. 10 ; In re C.W.

, 9th Dist. Lorain Nos. 16CA011044,

17CA 011162, and 17CA011165, 2018

- Ohio

- 5265, ¶ 22

. The complaint is "the legal

document that sets forth the allegations that form the basis for juvenile court jurisdiction."Clermont CA2 0 2 2

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- 5

- Juv.R. 2(F). "The term 'jurisdiction' encompasses both subject

- matter jurisdiction, i.e., the

court's power to adjudicate the merits of a case, and the exercise of that jurisdiction." Rowell

at ¶ 13. An appellate court reviews de novo a juvenile court's determination regarding its

subject

- matter jurisdiction

— whether the juvenile court has or lacks jurisdiction in the first

place

— because su ch a determination is a matter of law. In re S.C.R.

, 12th Dist. Clinton

No. CA2017

- 11

- 018, 2018

- Ohio

- 4063, ¶ 12

.

{¶ 14} The Ohio legislature has enacted several statutes to give standing to

nonparent s when seeking companionship or visitation rights

, to wit, R.C. 3109.11 ( visitation

when the child's parent has died) ; R.C. 3109.12 (visitation when a child is born to an

unmarried woman) ; R.C. 3109.051(B)(1) ( visitation in a divorce, dissolution of marriage,

legal separation, annulment, or child support proceeding); and R.C. 3107.15(C) (visitation

with an adopted child). In re N.C.W.

, 12th Dist. Butler No. CA 2013

- 12

- 229, 2014

- Ohio

3381, ¶ 24. "The Ohio nonparental

- visitation statutes limit the parties who can petition the

court for visitation[.]" Harrold v. Collier

, 107 Ohio St.3d 44, 2005

- Ohio

- 5334, ¶ 41.

"Grandparents may be granted visitation rights upon their motion [under R.C. 3109.11,

3109.12, or 31 09.051 (B)(1)]

, when such rights are found to be in the best interest of the

grandchild. " (Emphasis added.) In re H.W.

, 114 Ohio St.3d 65, 2007

- Ohio

- 2879, ¶ 9.

{¶ 15} Applicable her e is R.C. 3109.12(A) which provides

, in relevant part

If a child is born to an unmarried woman and if the father of the

child has acknowledged the child * * * or has been determined *

* * to be the father of the child, the father may file a complaint

requesting that the court of appropriate jurisdiction of the county

in which the child resides grant him reasonable parenting time

rights with the child and the parents of the father and any relative

of the father may file a complaint requesting that the court grant

them reasonable companionship or visitation rights with the

child.

(Emphasis added.) In turn, R.C. 3109.12(B) provides that "[t]he court may grant the

parenting time rights or companionship or visitation rights requested under division (A) ofClermont CA2 0 2 2

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- this section[.]" (Emphasis added.)

{¶ 16} T he juvenile court granted the "Complaint for Companionship Time filed

herein by the Paternal Grandparents ," thereby granting companionship time to both

Grandmother and Grandfather. However, only Grandmother filed a complaint for

companionship time with Owen. Grandfather did not join in Grandmother's complaint, did

not otherwise move for companionship time with Owen, and did not seek to intervene in the

matter. In other words, at no point in the proceedings has Grandfather invoked the juvenile

court's jurisdiction pursuant to R.C. 3109.12. The juvenile court

, therefore, did not have

subject

- matter jurisdiction to grant companionship time to Grandfather and clearly erred in

assuming it had such jurisdiction

. See In re C.W

. , 2018

- Ohio

- 5265.

{¶ 17} Mother's first assignment of error is well

- taken and sustained.

{¶ 18} Assignment of Error No. 2:

{¶ 19} THE TRIAL COURT ERRED BY AWARDING COMPANIONSHIP TIME TO

PATERNAL GRANDMOTHER/PATERNAL GRANDPARENTS.

{¶ 20} Mother argues that the juvenile court erred in granting companionship time to

Grandmother because the juvenile court failed to give special weight to Mother's wishes

and concerns regarding Grandmother's companionship time with Owen

. 2

{¶ 21} An appellate court will not reverse a trial court's decision granting or denying

visitation rights absent an abuse of discretion. King v. King

, 12th Dist. Warren No. CA2006

-

01

- 009, 2006

- Ohio

- 5985, ¶ 8. An abuse of discretion implies that the trial court's decision

was unreasonable, arbitrary, or unconscionable. Id.

{¶ 22} A parent has a fundamental right to make decisions regarding the care,

2

. In her second assignment of error, Mother challenges the juvenile court's grant of companionship time to

both Grandmother and Grandfather. However, in light of our holding under the first assignment of error, we

will only address the juvenile court's gran t of companionship time to Grandmother.Clermont CA2 0 2 2

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- custody, and control of his or her own child. Troxel v. Granville

, 530 U.S. 57, 66, 120 S.Ct.

2054 (2000); In re P.R.P.

, 12th Dist. Butler No. CA2017

- 02

- 026, 201 8

- Ohio

- 216, ¶ 18.

G randparents

, however, have no constitutional right of association with their grandchildren.

In re Martin

, 68 Ohio St.3d 250, 252, 1994

- Ohio

- 506

. In addition, "the law does not provide

grandparents with inherent legal rights based simply on the family relationship." In re H.W.

,

2007

- Ohio

- 2879 at ¶ 9. Instead, companionship or visitation rights for g randparents and

other nonparents are only as provided by statute. In re Martin at 252

. Because a parent

has a fundamental right to parent whereas the nonparent has only a statutory right to

request visitation, the nonparent has the burden to prove that visitation will be in the child's

best interest. In re P.R.P. at ¶ 18.

{¶ 23} As applicable here, R.C. 3109.12( B ) provides that a trial court may grant

companionship rights to a grandparent only if it determines that such visitation is in the best

interest of the child. In determining whether to grant visitation rights to a grandparent, the

trial court is required to consider all relevant factors, including the 16 factors listed in R.C.

3109.051(D ). As especially pertinent to this case, and pursuant to the 15th factor, a trial

court must consider " the wishes and concerns of the child's parents, as expressed by them

to the court ." R.C. 3109.051(D)(15). "Although the trial court can consider any factors it

considers relevant, consideration of the parent s' wishes and concerns is mandatory."

Harrold

, 2005

- Ohio

- 5334 at ¶ 42. Th is factor is of "particular importance" because of the

United S t ates Supreme Court's ruling in Troxel

. In re P.R.P. at ¶ 20; M.H. v. B.K.

, 10th Dist.

Franklin No. 21AP

- 493, 2022

- Ohio

- 4777, ¶ 41.

{¶ 24} Although rebuttable, there is a presumption that "fit parents act in the best

interest of their children." Troxel

, 530 U.S. at 68; Harrold at ¶ 44

. Absent an allegation of

parental unfitness, the parents' determination of their child's best interest must be afforded

"special weight." Troxel at 69 ; Harrold at ¶ 12, 42

- 43 (Ohio courts are obligated to affordClermont CA2 0 2 2

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- some special weight to a parent's wishes when considering petitions for nonpa r ental

visitation under R.C. 31 09.12). 3 We note that there are no allegations in the record that

Mother is an unfit parent. The juvenile court observed there was no evidence suggesting

that Mother was an "unfit" parent

, " nor was there any evidence to give the Court concern

for [Owen's] physical and mental well

- being while in the care of Mother."

{¶ 25} Under Ohio's nonparental visitation statutes, a trial court "afford[s] parental

decisions the requisite special weight, [and] take[s] into consideration the best interest of

the child and balance [s] that interest against the parent's desires." Harrold

, 2005

- Ohio

5334 at ¶ 43. When determining whether it is in the best interest of the child to grant

nonparental visitation, the parent's wishes and concerns must also be weighed against the

other factors listed under R.C. 3109.051(D). Celek v. Celek

, 1st Dist. Hamilton No. C

0811 1 7, 2009

- Ohio

- 4990, ¶ 10. "[T]he manner in which this standard is to be applied to

each case must be 'elaborated with care.' Thus, there must be some meaningful rationale

given for either abiding by or overriding the wishes of the parent." Id.

, citing Troxel

, 530

U.S. at 73.

{¶ 26} Upon reviewing the record, we find that the juvenile court did not give the

requisite special weight to Mother's wishes and concerns

.

{¶ 27} The single overriding concern in this case is whether Grandparents will permit

Father to have contact with Owen. It is uncontroverted that Father is a violent individual,

has been abusive to Mother, has threatened to harm her, and is undeterred by court orders

3

. This court has previously used the phrases "extreme deference" and "great deference" in describing the

special weight to be afforded a parent's position with respect to nonparent visitation claims. See In re N. C.W.

, 12th Dist. Butler No. CA2013

- 12

- 229, 2014

- Ohio

- 3381

, ¶ 38 ; In re A.B

. , 12th Dist. Butler No. CA 2015

- 06

- 104,

2016

- Ohio

- 2891, ¶ 41 ; In re E.T.B. , 12th Dist. Clermont No. CA2014

- 07

- 051, 2015

- Ohio

- 2991, ¶ 30; In re

J.T.S. , 12th Dist. Preble No. CA2014

- 09

- 009, 2015

- Ohio

- 364, ¶ 26. N either the United States Supreme Court

nor the Ohio Supreme Court ha ve defined "special weight." As we have stated, this court no longer uses

descriptive phrases for the "special weight" to be afforded a parent's wishes. In re P.R.P. , 12th Dist. Butler

No. CA 2017

- 02

- 026, 2018

- Ohio

- 216, ¶ 26 . " The law is clear that regardless of a parent's motivations, a court

is required to give special weight to their wishes in accordance with Troxel and Harr old

. " Id.Clermont CA2 0 2 2

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- to keep away from her

. Mother testified that she continues to be fearful of Father, that she

had to quit her job in Ohio because Father knew where she worked, that she moved out of

Ohio without telling anybody, including her family, because Grandparents were contacting

her family in their attempt to locate her and she was worried it would get back to Father,

and that despite Mother's move to Indiana, Father continues to find out things about her life

because Grandparents give him updates

. Mother testified that before th e y moved to

Indiana, Owen would kick, hit, bite, and punch

. Eventually Mother started seeing numerous

similarities between Owen's behavior and that of Father. Since the move to Indiana, Owen

is doing a lot better, knows right from wrong, and is sweet and loving

. The maternal

grandmother likewise testified that Owen used to fight and use foul language before the

move to Indiana

, but that since moving to Indiana, he is more love able and not as defensive

.

{¶ 28} Testimony at the hearing shows that Mother confided in Grandmother multiple

times about Father's domestic violence, that Grandmother always expressed a lot of

sympathy, that Grandmother witnessed Father's verbal abuse of Mother

, and that

Grandmother informed Mother of the threats of harm Father made during jail calls.

Testimony also shows that Grandparents have resisted and pushed back against Father on

occasions

. However, testimony also revealed that Grandmother informed Father that

Mother had moved and discussed with him Mother's whereabouts, and that at Father's

request, she gave him Mother's phone number. Grandmother's testimony indicates that

Father manipulated her into giving him Mother's phone number. Grandmother also

expressed her belief that with mental health treatment

, Father could once again have

parenting time with Owen one day

.

{¶ 29} Based upon the foregoing, Mother testified she does not trust that

Grandparents can keep Father away from Owen : " I'm worried that things would be let go or

ignored or he'll be able to talk his way out of things [.] I feel like there's just been not a greatClermont CA2 0 2 2

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- amount of accountability and I don't want [Owen] to lose his honesty and his integrity. It

worries me to have him in the environment that [Father] came out of. * * * I know how well

[Owen] is doing now and I don't want that to change."

{¶ 30} In granting Grandmother's motion for companionship time with Owen, the

juvenile court made several findi ngs of fact

, including that "Mother is opposed to the

Grandparents having companionship time, for the reason that the Father is capable of

manipulating them. She is not confident that the Grandparents can 'keep the child away'

from the Father." The juvenile court then considered and discussed the 16 factors in R.C.

3109.051(D) in determining whether granting companionship rights to Grandparents was in

O wen's best interest. The juvenile court prefaced its consideration of th e factors by noting

that Troxel "made it abundantly clear that the [trial court] must 'apply a presumption that fit

parents act in the best interest of their children. '" In addressing the 15th factor

— a parent's

wishes and concerns

— the juvenile court acknowledg ed the Troxel require ment that special

weight be given to a fit parent ' s decision to deny nonparental visitation, observed there was

no evidence t hat M other was an "unfit" parent

, and stated, "As a result, the Court gives

special weight and consideration to the Mother's testimony wherein she stated definitively

that she was opposed to the Grandmother having a regular schedule of visitation with

[Owen]."

{¶ 31} The juvenile court then proceeded to note that for a significant portion of

O wen's life, Grandparents had " an extraordinary relationship with him, beyond the bounds

of a traditional grandparent relationship ;" O wen ha d lived in their home and Grandparents

provided him daily care; after O wen moved out of their home, Grandparents " continued a

regular and consistent schedule of visitation with him " and provided child care wh en M other

was working; M other acknowledged the positive relationship O wen has with Grandparents;

M other was complimentary of the relationship she enjoyed with Grandparents; and M otherClermont CA2 0 2 2

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- expressed no concerns about Grandparents ' love and commitment to O wen. The juvenile

court noted that Mother's reason for objecting to Grandparents' request for companionship

time was h er concern they w ould n ot be able to protect O wen from Father. Based upon the

foregoing, the juvenile court found that it was in Owen's best interest that he maintain his

relationship with Grandparents, while also recognizing that it was in Owen ' s best interest to

be protected from F ather.

{¶ 32} N otwithstanding its reference to Troxel and acknowledgment of the "special

weight" to be given to a parent's wishes and concerns, the juvenile court did not discuss

Mother's wishes and concerns other than to state her opposition to Grand mother's request

for companionship time with Owen

, did not give special weight to those wishes and

concerns

, and did not explain why Mother's valid concerns were insufficient to overcome

what the court considered were the other best interest factors favoring granting

companionship time with Grandmother.

{¶ 33} Stated otherwise, despite the genuine and serious concerns that Mother had,

the juvenile court dismissed such concerns in light of factors it determined weighed in favor

of companionship time. The juvenile court's written decision does not demonstrate,

however, that the court weighed the balancing factors while giving sufficient weight to

Mother's wishes. The juvenile court did not address specifically the reasons behind

Mother's opposition to Grandmother's request for companionship time and did not address

the evidentiary basis upon which Mother's valid concerns were based. Nor did the court

recognize that Mother's wishes carry with it the presumption that she is acting in the best

interest of Owen by asking that companionship time be denied. See In re N.C.W.

, 2014

-

Ohio

- 3381 at ¶ 33 ; In re K.M.

- B.

, 6th Dist. Lucas No. L

- 15

- 1037, 2015

- Ohio

- 4626, ¶ 48

( juvenile court should have started with the presumption that M other, as a fit parent, acted

in the best interest of her child when choosing to deny visitation with grandmother ).Clermont CA2 0 2 2

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- {¶ 34} Instead, the juvenile court primarily

, if not solely, focused upon the

"extraordinary" relationship and close bond between Grand mother and Owen

. We do not

question the juvenile court's determination that Owen enjoys a good and positive

relationship with Grandmother and that he would benefit from maintaining such relationship.

However, in view of Mother's legitimate reasons for opposing companionship time,

something more is required in order for Mother's constitutional right to the care and

management of Owen to be subordinated to Grand mother's statutory right to

companionship time. See Troxel

, 530 U.S. at 72

- 73. A trial court may not presume

visitation with a grandparent is in the best interest of the child. Rather, the burden is on the

grandparent to prove visitation would be in the best interest of the child

. M.H.

, 2022

- Ohio

4777 at ¶ 46

. While we have no issue with finding that Owen's relationship with

Grandmother is important to the decision and overall weighing of the factors, we find it

unreasonable that the juvenile court did not weigh this limited basis for why companionship

time should be granted more specifically against the fact that Mother opposes

companionship time and that Mother was acting in Owen's best interest by opposing

Grandmother's request for companionship time. See In re N.C.W. at ¶ 3 5.

{¶ 35} We fully acknowledge that a fit parent's wishes to end visitation with a

nonparent are not irrebuttable, as nothing in Troxel suggests that a parent's wishes should

be placed before a child's best interest. See Rowell

, 2012

- Ohio

- 4313 at ¶ 21

. Even so, the

well

- established law is that a fit parent is presumed to act in the best interest of h is or h er

child. The juvenile court's decision did not incorporate that presumption into its analysis of

the factors

. We therefore find that the juvenile court abused its discretion by granting

Grandmother 's complaint for companionship time with Owen. Mother's second assignment

of error is well

- taken and sustained.

{¶ 36} In light of all of the foregoing, we reverse the judgment of the juvenile courtClermont CA2 0 2 2

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- granting Grandmother's complaint for companionship time with Owen and remand the

matter for the juvenile court to accord special weight to Mother ' s wishes and concerns as

set forth in this opinion and based upon the record before the juvenile court. In doing so,

the juvenile court must recognize and start with t he presumption that Mother is acting in

Owen's best interest by opposing Grandmother's request for companionship time and

requesting that it be denied.

{¶ 37} Judgment reversed and remanded for further proceedings consistent with this

opinion

.

HENDRICKSON

, P.J., and BYRNE

, J., concur.