In re N.S. , 2022 Ohio 3988 ( 2022 )

[Cite as In re N.S., 2022-Ohio-3988.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: N.S. AND C.S. : APPEAL NO. C-220066
TRIAL NO. F15-2432X
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 9, 2022
Bailey Law Office, LLC, and Donyetta D. Bailey, for Appellant father,
Victor Dwayne Sims, for Appellee grandfather.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Father appeals from the trial court’s judgment awarding
companionship time of his children, N.S. and C.S. to grandfather. In three
assignments of error, father argues that the trial court failed to give special weight to
father’s wishes regarding visitation with grandfather, wrongfully placed the burden of
proof on father to establish that visitation with grandfather was not in the children’s
best interest, and abused its discretion in ultimately determining that visitation with
grandfather was in the children’s best interest.
{¶2} While we understand father’s position, our review of the record reveals
no abuse of discretion on the part of the trial court. We therefore find father’s
assignments of error to be without merit and affirm the trial court’s judgment.
Factual and Procedural Background
{¶3} At the start of this litigation, father had legal custody of N.S. and C.S.
Grandfather (father’s father) filed a request for an emergency hearing and a petition
for custody of N.S. and C.S. on December 23, 2020. In a supporting affidavit,
grandfather alleged that the children were in imminent danger due to constant
physical and mental abuse by father. Following a hearing, a juvenile court magistrate
denied grandfather’s motion for an emergency order of custody because the testimony
presented established that the most recent alleged physical abuse that left any mark
on the children occurred more than nine months earlier, and the court could not make
a finding of imminent risk of harm without a recent event of serious harm to the
children. The order further provided that no one was allowed to use physical discipline
on the children pending further order of the court.
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{¶4} On January 7, 2021, grandfather filed another request for an emergency
order of custody. In a supporting affidavit, grandfather alleged that approximately a
week earlier, on New Year’s Eve, father had choked N.S. by lifting her off the floor by
her neck. The magistrate issued an order granting emergency custody to grandfather
after finding that testimony at a hearing established that father had used corporal
punishment in contravention of the magistrate’s previous order. The matter was set
for a subsequent hearing on January 13, 2021. Father did not appear on that date, and
the magistrate continued the emergency grant of interim custody to grandfather.
{¶5} On January 14, 2021, father filed a petition for custody of N.S. and C.S.
and a request for an emergency hearing, alleging that the children’s basic needs were
not being met under grandfather’s care and that they wanted to return home.
Following a hearing, the magistrate denied father’s motion.
{¶6} Father then filed a motion to set aside the magistrate’s order granting
interim custody to grandfather, arguing that he had been unable to join the remote
hearing on grandfather’s motion and present his case. The trial court granted father’s
motion to set aside the magistrate’s order, finding that father was erroneously notified
of a remote hearing, when the hearing had been held in person, and it remanded the
case for a new hearing. On remand, the magistrate issued an order denying
grandfather’s motion for an emergency order of interim custody and ordered that the
children be returned to father.
{¶7} Grandfather modified his motion for custody of N.S. and C.S. to a
motion for visitation with the children. At a hearing on his motion, grandfather
testified that he had an excellent relationship with his grandchildren. He explained
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that he often watched them after school, from the time that they got off the school bus
until late in the evening.
{¶8} Grandfather testified that he had concerns about father abusing the
children. He stated that after N.S. told him that father had “whooped” her with a belt
and left a mark on her skin, he told father that father had crossed a line and that “I
didn’t say he couldn’t whoop them. I said he couldn’t break—breaking their skin and
putting welts on them was over the line.” Grandfather identified several pictures
depicting various injuries to N.S. that he stated resulted from discipline by father,
including a cut on N.S.’s thigh that occurred when she was “whooped” and an injury
to her mouth and lip incurred when father smacked her. According to grandfather,
these injuries occurred over a period of time from September of 2017 to October of
2020. During this period of time, grandfather never contacted authorities about his
concerns with father’s treatment of the children, but rather attempted to resolve his
concerns “in house.” Grandfather also spoke to Denise Shamel, father’s mother, about
his concerns. He and Shamel planned for Shamel to tell father that if father ever felt
like he needed to “whoop” the children, he should take them to Shamel’s and leave
them with her.
{¶9} Father testified and addressed grandfather’s allegations that he had
caused the injuries to N.S. depicted in the photographs. He denied the allegations,
explaining that one of the depicted injuries was caused when N.S. got into a “scuffle”
with another girl, and that N.S. suffered another injury when she was punched in the
mouth while being bullied on the school bus. Father also denied grandfather’s
allegations that he had caused injury to N.S. on New Year’s Eve. He stated that he
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OHIO FIRST DISTRICT COURT OF APPEALS
believed grandfather fabricated those allegations as retribution for him telling
grandfather that he was no longer welcome in father’s life.
{¶10} Father testified that while he had previously used corporal punishment
on his children, he did not currently do so, and that he had not physically disciplined
them in the past several years. And he stated that grandfather had never approached
him with grandfather’s concerns about his treatment of the children.
{¶11} Father stated that he was opposed to grandfather being granted
visitation with N.S. and C.S. He told the court that the children were traumatized
following the court’s temporary grant of emergency custody to grandfather. Their
grades fell during that period, they were not as happy, and they were withdrawn.
Father testified that when the children were returned to his care, father enrolled them
in therapy, and that their grades and mental health have since improved.
{¶12} Father’s testimony corroborated that offered by grandfather concerning
the time that grandfather spent with the children after school and in the evenings.
Father explained that he no longer works such long hours and is able to do more for
the children himself.
{¶13} Father also presented testimony from his sister Abiona Jamison and his
mother Denise Shamel. Both testified that they spent New Year’s Eve with father and
the children, and that they did not see father discipline N.S. or C.S. Jamison
elaborated that she had never seen any signs of abuse on the children, and that neither
child had ever told her that their father abused them. Shamel likewise testified that
she had never seen father abuse the children and that the children had never reported
abuse by father. She acknowledged that grandfather had conveyed to her his concern
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OHIO FIRST DISTRICT COURT OF APPEALS
that father was too rough with the children, but stated that she did not share
grandfather’s concerns.
{¶14} Shamel testified that grandfather is not a truthful person, and that she
felt that he disrespects her in front the children. Both father’s brother, Devante
Shamel, and father’s girlfriend, Konta Perkins, also testified that grandfather is not a
truthful person and that they had never seen father abuse the children.
{¶15} In addition to the testimony presented, the magistrate conducted an in
camera interview with N.S. The magistrate issued a decision denying grandfather’s
request for visitation. The decision stated that, after conducting the in camera
interview, the magistrate did not believe that grandfather’s allegations were
meritorious and that father’s explanations of the children’s injuries were accurate. The
magistrate considered the relevant statutory factors before determining that visitation
with grandfather was not in the children’s best interest. The decision provided that:
[T]he court has grave concerns about allowing grandfather to have
visitation with the children. His motivation for documenting marks on
the children does not appear to be what he stated. The court does not
believe that the children would have reported abuse to grandfather but
not reported it to anyone else. They simply do not appear to have had
that kind of close relationship. This is further buttressed by the fact that
no one else ever observed any concerning behavior from father or the
children that would have indicated abuse.
{¶16} Grandfather filed objections to the magistrate’s decision, arguing that
the magistrate’s findings were contrary to the testimony and to the manifest weight of
the evidence, and that the decision was not in the children’s best interest. Transcripts
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OHIO FIRST DISTRICT COURT OF APPEALS
were not filed, but to facilitate its review of the objections, the trial court reviewed the
audio-visual record of the proceedings. The trial court found grandfather’s objections
to be well taken, stating that the magistrate did not properly determine the factual
issues or appropriately apply the law. It indicated that the hearing before the
magistrate had focused on whether father had abused the children, when the actual
focus of the hearing should have been on whether visitation with grandfather was in
the children’s best interest. Because of this misguided focus, the court found, the
magistrate allowed his disbelief that abuse had occurred to color his interpretation of
the testimony.
{¶17} The trial court did not find father’s witnesses to be credible, stating that
“[f]ather’s witnesses claimed to be regularly involved with the children, some even on
a daily basis, but denied any knowledge of ever seeing any injuries on the children or
hearing about the children having issues with other children” and that “there appeared
to be personal issues at play regarding the nature of the witnesses’ relationship with
Grandfather that made their testimony additionally questionable.” The court further
found that father’s description of the children’s relationship with grandfather lacked
credibility, stating that “Grandfather has a long-standing relationship with these
children and was involved in their daily care until the very recent past when the
relationship between Grandfather and Father became strained.”
{¶18} The trial court considered the relevant statutory best-interest factors
and determined that visitation or companionship time with grandfather was in the
children’s best interest. The court accordingly set aside the magistrate’s decision,
granted grandfather’s motion for visitation, and denied father’s pending motion for
custody because father already held legal custody of the children.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Father now appeals.
Grandparent Visitation
{¶20} In three related assignments of error, father challenges the trial court’s
entry granting visitation to grandfather. Before addressing father’s arguments, a
discussion of the statutes governing grandparent visitation is instructive.
{¶21} R.C. 3109.12, applicable in this case, provides that if a child is born to
an unmarried woman, the father of the child has acknowledged paternity, and that
acknowledgement has become final or officially determined, then “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.” R.C.
3109.12(A). The trial court may grant a grandparent companionship or visitation
rights if it determines that doing so is in the best interest of the child. R.C. 3109.12(B).
In determining whether visitation with a grandparent is in a child’s best interest, “the
court shall consider all relevant factors, including, but not limited to, the factors set
forth in division (D) of section 3109.051 of the Revised Code.” Id.{¶22} The best-interest factors set forth in R.C. 3109.051(D) are as follows:1
(1) The prior interaction and interrelationships of the child with * * * the
person who requested companionship or visitation if that person is not
a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the
distance between those residences, and if the person is not a parent, the
1The factors set forth in R.C. 3109.051(D)(11), (13), and (14) are not relevant in this appeal, as they
solely concern the child’s parents, and not a family member seeking visitation.
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OHIO FIRST DISTRICT COURT OF APPEALS
geographical location of that person’s residence and the distance
between that person’s residence and the child’s residence;
(3) The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and the
child’s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, * * * 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 time and
to facilitate the other parent’s parenting time rights, and with respect to
a person who requested companionship or visitation, the willingness of
that person to reschedule missed visitation;
* * *
(12) In relation to requested companionship or visitation by a person
other than a parent, whether the person previously 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 neglected child; whether
the person, in a case in which a child has been adjudicated an abused
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OHIO FIRST DISTRICT COURT OF APPEALS
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; * * * and whether there is reason to believe that the person
has acted in a manner resulting in a child being an abused child or a
neglected child;
* * *
(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.
1. Standard of Review
{¶23} We review a trial court’s decision to grant a nonparent’s motion for
companionship or visitation time for an abuse of discretion. In re Flynn, 10th Dist.
Franklin No. 20AP-506, 2021-Ohio-4456, ¶ 15; In re A.B., 12th Dist. Butler No.
CA2015-06-104, 2016-Ohio-2891, ¶ 39. An abuse of discretion indicates “more than
a mere error of law or judgment; it implies that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.” State v. Griffin, 2020-Ohio-3707, 155
N.E.3d 1028, ¶ 38 (1st Dist.).
2. Father’s Wishes
{¶24} In his first assignment of error, father argues that the trial court erred
and abused its discretion by failing to give special weight to father’s wishes when
determining whether to grant visitation to grandfather. Father’s argument concerns
the best-interest factor set forth in R.C. 3109.051(D)(15), which, as set forth above,
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OHIO FIRST DISTRICT COURT OF APPEALS
provides that the trial court should consider “the wishes and concerns of the child’s
parents, as expressed by them to the court.”
{¶25} A parent has a fundamental right to make decisions that concern the
care, custody, and control of her or his own child. Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohi0-5334, 836 N.E.2d 1165, ¶ 40; In re E.T.B., 12th Dist. Clermont No.
CA2014-07-051, 2015-Ohio-2991, ¶ 27. Grandparents, on the other hand, “have no
constitutional right of association with their grandchildren” and are only entitled to be
granted visitation rights as provided for by statute. In re E.T.B. at ¶ 27. Because fit
parents possess this fundamental right concerning the care of their children, the
preferences of a fit parent regarding visitation should be accorded great deference. In
re E.T.B. at ¶ 30.
{¶26} As such, to protect a parent’s due-process rights, a trial court must give
special weight to R.C. 3109.051(D)(15) when making a visitation determination.
Collier at ¶ 42; Estep v. Celek, 1st Dist. Hamilton No. C-081117, 2009-Ohio-4990, ¶ 9.
However, a parent’s wishes should not be placed before the best interest of the child,
and the parent’s wishes are not “the sole determinant of the child’s best interest.”
Collier at ¶ 44; Estep at ¶ 9. Rather, “the trial court must take into consideration the
15 other factors set forth in R.C. 3109.051(D) and balance those factors against the
parent’s desires to determine the child’s best interest.” Estep at ¶ 9; see Collier at ¶
43.
{¶27} While trial courts must accord special weight to a parent’s wishes,
neither the applicable statutes or the relevant case law define what exactly constitutes
“special weight.” In Estep, this court discussed the trial court’s obligation to accord
special weight to a parent’s wishes, stating:
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OHIO FIRST DISTRICT COURT OF APPEALS
a trial court is not required to find ‘overwhelmingly clear circumstances’
before ordering visitation for the benefit of the child over the opposition
of the parent. Instead, because a parent’s wishes are to be given some
special weight, those wishes must be weighed against the other factors
under R.C. 3109.051(D) bearing upon whether it is in the best interest of
the child to grant non-parental visitation. And the 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.
Estep at ¶ 10, quoting Collier at ¶ 46, and Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct.
2054, 147 L.Ed.2d 49 (2000). Several of our sister districts have interpreted the
phrase “special weight” to mean “extreme deference.” Boling v. Thacker, 2d Dist.
Clark No. 2018-CA-109, 2019-Ohio-3683, ¶ 16; Ford v. Frazier, 4th Dist. Hocking No.
02CA8, 2003-Ohio-1087, ¶ 28; Oliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-
3209, 776 N.E.2d 499, ¶ 61 (7th Dist.); In re N.C.W., 2014-Ohio-3381, 17 N.E.3d 119,
¶ 21 (12th Dist.). And one district has recognized that while a trial court must accord
special weight to a parent’s wishes, the court is not required to use the words “special
weight” in a decision determining visitation. Williams v. McGuire, 9th Dist. Lorain
No. 21CA011784, 2022-Ohio-3598, ¶ 5.
{¶28} Some additional guidance as to the meaning of the phrase “special
weight” can also be found in Collier, in which the Supreme Court of Ohio considered
whether a trial court had given special weight to a father’s wishes that his child not
have visitation with grandparents. Collier, 107 Ohio St.3d 44, 2005-Ohi0-5334, 836
N.E.2d 1165. When evaluating the trial court’s decision, the Collier court held that:
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OHIO FIRST DISTRICT COURT OF APPEALS
The court ultimately decided that [child’s] best interests in maintaining
her relationship with appellees outweighed appellant’s desire for no
visitation. While the trial court did not use the words ‘special weight,’ it
is clear that the court gave due deference to appellant’s wishes and
concerns regarding visitation before determining that it was in [child’s]
best interest to grant appellees’ motion for grandparent visitation.
Id. at ¶ 45.
{¶29} Here, the trial court considered father’s wishes that grandfather not be
granted visitation with the children. When doing so, the court noted that father had
concerns that grandfather would fabricate additional allegations of physical abuse by
father if he was granted access to the children. The court ultimately did not find
father’s concerns to be credible, stating that “The history of the case and evidence
presented does not demonstrate that Grandfather was responsible for the fabrication
of allegations or that the allegations were false. Father’s own testimony indicated that
he believes in and utilizes corporal punishment. Grandfather presented photographic
evidence of the child’s injuries.” Also impacting its assessment of father’s wishes was
the court’s disbelief of father’s description of the relationship between grandfather and
the children. On this point, the court stated:
While the Magistrate discounted the nature of the children’s
relationship with Grandfather, as described by Grandfather, to not be
credible based on their interpretation that the abuse allegations were
not credible, the Court disagrees. Here, Grandfather described his daily
routine with the children, including his daily involvement in their school
transportation and transportation to their Grandmother’s home, and
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OHIO FIRST DISTRICT COURT OF APPEALS
the long-lasting nature of their relationship generally, including regular
overnight visits and weekly dinners. Father did not deny this
relationship and arrangement existed but rather attempted to diminish
Grandfather’s role just as somewhat of a taxi service.
{¶30} We are mindful of a fit parent’s fundamental right to make decisions
that concern the care, custody, and control of her or his child. We recognize that
generally, a parent has the right to choose people with whom her or his child
associates, even as to visitation with close relatives. And courts must give the parents’
wishes due deference when considering the best interest of the child. Nonetheless, in
this case, the trial court made a specific credibility finding regarding father. That
credibility determination, which we will not second guess, impacted the court’s
assessment of father’s proffered reasons for not wanting grandfather to be allowed
visitation with N.S. and C.S. The court simply did not believe father when he testified
that the children’s grades suffered and that they required therapy as a result of
visitation with grandfather. Nonetheless, the court was still required to give the
father’s wishes special consideration.
{¶31} The record establishes that the court accorded father’s wishes due
deference and provided a meaningful rationale for overriding them. See Estep, 1st
Dist. Hamilton No. C-081117, 2009-Ohio-4990, at ¶ 10. In addition to considering
father’s wishes, the trial court considered the other factors in R.C. 3109.051(D). After
considering and weighing all factors, the court determined that granting visitation to
grandfather was in the children’s best interest. While the court’s determination was
in contravention to father’s wishes, that does not mean that the court failed to give due
deference or special weight to those wishes.
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{¶32} Because the record demonstrates that the trial court did not fail to give
special weight to father’s wishes, we find that the trial court did not err or abuse its
discretion and we overrule the first assignment of error.
3. Burden of Proof
{¶33} In his second assignment of error, father argues that the trial court erred
and abused its discretion by placing the burden of proof on father to establish that
visitation with grandfather was not in the children’s best interest.
{¶34} In support of his argument, father directs us to two specific statements
by the trial court. First, father takes issue with the trial court’s response to father’s
testimony that the children are in therapy as a result of their removal from his home.
In addressing father’s testimony, the trial court stated:
Father produced no evidence of the children being in therapy, or, if so,
the source of their alleged trauma or therapeutic treatment plans. While
the Court has not been presented with sufficient evidence to
demonstrate that the children’s mental health has been effected [sic] by
their prior removal from Father’s home, the Court does not doubt that
the rift in the relationship between Grandfather and Father has caused
turmoil for these children, given the nature of their past relationship as
a family.
{¶35} Father also directs us to the trial court’s treatment of his testimony that
the children’s schoolwork suffered while they were in grandfather’s care. In
considering the factor in R.C. 3109.051(D)(5) pertaining to the children’s adjustment
to home, school, and community, the court stated:
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OHIO FIRST DISTRICT COURT OF APPEALS
Father claims that the children did not do well in school for a period due
to their removal from his home. However, no evidence was presented
to indicate the accuracy of this claim or the extent and timeliness of any
maladjustment. Furthermore, Father reports that the children are
presently doing well. No evidence was presented that would indicate
that the children are not well-adjusted to each home environment or
related community.
{¶36} Father is correct in his assertion that grandfather bore the burden of
proof to establish that visitation with grandfather was in the children’s best interest.
Collier, 107 Ohio St.3d 44, 2005-Ohi0-5334, 836 N.E.2d 1165, at ¶ 45. But we do not
agree with father’s contention that the trial court’s statements, as quoted above, reflect
that the trial court switched the burden of proof to father to establish that visitation
with grandfather was not in the children’s best interest.
{¶37} Father is also correct in arguing that the trial court’s statements that he
provided “no evidence” were incorrect. Father’s testimony on these issues is evidence.
Rather, we interpret the trial court to be saying that there was no corroborating
evidence presented.
{¶38} In response to father’s argument, we first note that these two comments
by the trial court are two isolated comments taken from the trial court’s multiple-page
entry. Outside of these comments, the record contains no indication that the trial
court, when weighing the relevant factors and considering the evidence presented,
placed the burden of proof on father. Second, in our view, the trial court’s comments
reflect the court’s credibility determination regarding father, rather than a switching
of the burden of proof. It is clear from the trial court’s entry that the court did not find
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OHIO FIRST DISTRICT COURT OF APPEALS
father to be a credible witness. The court stated that it “does not find Father’s
description of the children’s relationship with Grandfather to be credible” and that it
believed that when describing grandfather’s relationship with the children, father
“attempted to diminish Grandfather’s role just as somewhat of a taxi service.”
{¶39} The statements that father takes issue with illustrate the credibility, or
lack thereof, that the trial court accorded to father’s testimony. The court considered
father’s superficial or base testimony that the children needed therapy following their
time in grandfather’s care and that their grades suffered while in his care. Given its
assessment of father’s credibility, the court looked for other evidence in the record to
corroborate father’s assertions.
{¶40} We hold that the trial court did not err or abuse its discretion by
erroneously placing the burden of proof on father, and we overrule the second
assignment of error.
4. Best-Interest Determination
{¶41} In his third assignment of error, father argues that the trial court erred
and abused its discretion by finding that grandparent visitation was in the best interest
of the children because the court’s factual findings were against the manifest weight of
the evidence.
{¶42} In determining whether visitation with grandfather was in the
children’s best interest, the trial court considered the factors set forth in R.C.
3109.051(D). Father takes issue with the trial court’s findings in support of these
factors and argues that the court discounted the testimony offered by father’s
witnesses. For example, father argues that the trial court ignored the testimony from
multiple witnesses that grandfather has a propensity to lie and that it ignored the
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony from Denise Shamel regarding grandfather’s treatment of her in front of the
children and his treatment of the children themselves.
{¶43} The trial court’s consideration of the witnesses’ testimony reflects the
credibility that the court accorded that testimony. In addition to finding that father
lacked credibility, the trial court found the testimony offered by father’s witnesses to
also be lacking in credibility. The court stated:
Father’s witnesses claimed to be regularly involved with the children,
some even on a daily basis, but denied any knowledge of ever seeing any
injuries on the children or hearing about the children having issues with
other children. Furthermore, there appeared to be personal issues at
play regarding the nature of the witnesses’ relationship with
Grandfather that made their testimony additionally questionable.
{¶44} Other statements by the trial court reflect its determination that
grandfather was a credible witness. The court made the following statements
concerning grandfather’s credibility:
The history of the case and evidence presented does not demonstrate
that Grandfather was responsible for the fabrication of allegations or
that the allegations were false. Father’s own testimony indicated that
he believes in and utilizes corporal punishment. Grandfather presented
photographic evidence of the child’s injuries. The Court’s record
indicates prior receipt of audio recordings of the child disclosing abuse,
which the Court had found sufficient to grant Interim Custody to
Grandfather on an emergency basis.
* * *
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OHIO FIRST DISTRICT COURT OF APPEALS
While the Magistrate discounted the nature of the children’s
relationship with Grandfather, as described by Grandfather, to not be
credible based on their interpretation that the abuse allegations were
not credible, the Court disagrees.
{¶45} The trial court, which viewed the audio-visual recordings of the
proceedings, was in the best position to judge the credibility of the witnesses and we
will not second guess its determinations. See State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus; State v. Shepard, 1st Dist. Hamilton
No. C-190747, 2021-Ohio-964, ¶ 62.
{¶46} The trial engaged in a thorough and detailed best-interest
determination. Although this court, under a de novo review, may have reached a
different conclusion, the trial court’s decision was not unreasonable, arbitrary, or
unconscionable.
{¶47} Because the trial court did not abuse its discretion in determining that
a grant of visitation to grandfather was in the children’s best interest, the third
assignment of error is overruled. The judgment of the trial court is accordingly
affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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