Oliver v. Feldner
Annotate this Case
Download PDF
[Cite as Oliver v. Feldner, 149 Ohio App.3d 114 2002-Ohio-3209.] STATE OF OHIO, NOBLE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT IRENE OLIVER ET AL., ) ) ) ) ) ) PLAINTIFFS-APPELLEES, v. THERESA A. FELDNER, CASE NO. CA-290 O P I N I O N ) DEFENDANT-APPELLANT. ) ) CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Domestic Relations, Noble County, Ohio Case No. 98-0142 JUDGMENT: Reversed. Judgment entered in favor of Appellant. APPEARANCES: Hoffman Law Office and Grace L. Hoffman, for appellees. Tribbie, Scott, Plummer & Padden and Daniel G. Padden, for appellant. JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: WAITE, Judge. June 21, 2002 {¶1} Noble This timely appeal arises from a decision of the County Court of Common Pleas granting visitation rights to appellees, the grandparents of Laken A. Feldner ( Laken ). Theresa A. Feldner ( appellant ) argues that the trial court did not give special weight to her wishes that her daughter Laken have no visitation with appellees, as required by Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. For the following reasons, the judgment of the trial court is reversed and judgment is entered in favor of appellant. {¶2} This is the second time this case has been before this court. See Oliver v. Feldner (Jan. 25, 2001), 7th Dist. No. 271 ( Oliver I ). a paternity paternity action action and was The prior appeal arose out of a visitation initiated by petition. John T. The Oliver. Appellant married John T. Oliver in 1992, but they divorced shortly thereafter. Afterward, the two maintained relationship, although they never remarried. 1998, appellant gave birth to Laken. a On May 6, It was presumed that John T. Oliver was the father. Appellees are the parents of John T. Oliver and the paternal grandparents of Laken. Appellant allowed John T. Oliver to visit and assist in raising Laken until August 1998. Appellant visited appellees home with Laken approximately 4-5 times during 2 those months. {¶3} that On September 16, 1998, John T. Oliver requested the Noble County Child Support Enforcement ( CSEA ) determine the paternity of Laken. Laken submitted themselves for genetic Agency Appellant and testing. John T. Oliver was killed in an automobile accident on October 17, 1998, prior to his submission for genetic testing. {¶4} Kenneth Appellees, Oliver, along sent a with the notarized decedent s brother, statement to requesting that genetic testing be completed. CSEA The county coroner took a blood sample from the decedent, which was later used to establish that he was the father of Laken. {¶5} in the On December 3, 1998, appellees filed a complaint Noble County Court of Common Pleas against appellant, seeking visitation as paternal grandparents of Laken. After a full hearing, the trial court ruled on July 29, 1999, that it would be in Laken s best interests to have visitation with appellees. Appellant appealed this ruling, which resulted in the Oliver I decision. {¶6} In Oliver I, this court reversed and remanded the visitation decision on two grounds: did not articulate determination that specific visitation (1) the trial court findings would to be support in the its best interests of the minor child, nor did it indicate which of 3 the best-interests factors found in R.C. 3109.051(D) influenced the court s decision; and (2) the trial court did not afford due deference to appellant s decision with regards to the issue of visitation, as required by Troxel, supra. Oliver I at *6. On January 25, 2001, as a result of this court s Oliver I decision, the case was remanded to the trial court for further proceedings on the visitation issue. {¶7} On May 4, 2001, the trial court, without holding any additional hearings, again ruled that it was in Laken s best interests journal decision. entry The to have does not trial visitation mention court with this noted appellees. court s that it The Oliver should I give special weight to the decision of a parent, but ultimately rejected appellant s reasons for denying visitation. {¶8} The trial court proceeded to award appellees slightly more visitation rights than they were granted in its original decision. The original decision provided for four hours of visitation per month at either the home of appellees or appellant and allowed appellant transportation and be present during visitation. to provide (July 29, 1999 Journal Entry.) The subsequent decision allowed 4-5 hours of visitation only in appellees home and placed no restrictions on what persons 4 may be present during visitation. (May 4, 2001 Journal Entry.) {¶9} 2001. Appellant Although thirty-one filed the days this appeal after timely appears the trial appeal to on have court s June been 4, filed judgment, the thirtieth day was a Sunday. Pursuant to App.R. 14(A), the appeal is deemed timely filed. {¶10} Appellant presents three closely related assignments of error, which will be treated together for ease in analysis: {¶11} The trial court erred and abused its discretion when it failed to fully and adequately review the factors set forth in Ohio Revised Code Section 3109.051(D). {¶12} The trial court erred and abused its discretion by failing to afford the defendant-appellant s parental decision material or special weight. {¶13} The trial court erred and abused its discretion under the Fourteenth Amendment s Due Process Clause by granting grandparent visitation rights." {¶14} Appellant cites only one case in her brief: the Troxel case. {¶15} Appellant argues that the trial court once again failed to sufficiently consider the best-interests factors set forth in R.C. 3109.051(D). 5 Appellant particularly points to Laken s asthma, which appellant believes is aggravated by visitation in appellees home. {¶16} Appellant also points to evidence that appellees blame appellant for their son s death. Appellant does not specify which factor in R.C. 3109.051(D) is implicated by the alleged animosity. {¶17} Appellant further argues that the trial court did not give any special weight to her wishes as required both by Troxel and Oliver I. Appellant quotes extensively from Troxel in an attempt to define the meaning of special weight : {¶18} [T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Id., 530 U.S. at 66. {¶19} Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent s children. Id. at 68-69. {¶20} The Superior Court decisional directly framework contravened 6 employed the by the traditional presumption that a fit parent will act in the best interest of his or her child. Id. at 69. {¶21} In an ideal world, parents might always seek to cultivate the bonds grandchildren. from between grandparents and their Needless to say, however, our world is far perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make order in in this the first instance. Id. at 70. {¶22} [T]he unconstitutional visitation infringement on case Granville s was an fundamental right to make decisions concerning the care, custody, and control of her two daughters. Id. at 72. {¶23} [T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because believes a better decision could be made. a state judge Id. at 73. {¶24} Appellant argues that, according to Troxel, the weight to be afforded her desire to prevent her daughter from visiting substantial with and appellees that the should trial be court s significant mere and differing opinion should not overcome her fundamental right to raise her child according to her own decisions as to the child s best interests. 7 {¶25} Appellees argue that the trial court, on remand, reviewed the relevant factors in R.C. 3109.051(D) and stated them in his opinion. Appellees also argue that the arguments appellant raises concerning Laken s asthma and the enmity between the parties were raised prior to the trial court s original judgment and should not be reconsidered in this second appeal. {¶26} Appellees attempt to distinguish Troxel from the case at bar. unusually Appellees broad statute argue in which visitation rights at any time. visitation statutes apply that only Troxel any involved person could an seek Appellees argue that Ohio s after certain disruptive events have occurred, such as divorce or the death of one of the parents, or if the child s mother is unmarried. See R.C. 3109.051, 3109.11, 3109.12. {¶27} Appellees also indicate that the trial court specifically stated that it took appellant s wishes into consideration. Appellees argue that the requirements of Troxel were satisfied and that the overall decision of the trial court should be reviewed only for abuse of discretion, citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028, in support. Based on the history of this matter unpersuasive. and the Appellant s record argument 8 herein, has appellees merit and are the decision of the trial court is hereby reversed. {¶28} Very few Ohio cases have yet dealt with the implications of the Troxel decision on Ohio s visitation statutes. See Oliver I; Epps v. Epps (Aug. 9, 2001), 5th Dist. No. 01COA01403; In re Woodall (June 13, 2001), 9th Dist. Nos. C.A. 20346 and C.A. 20436. The Epps and Woodall cases give only a brief analysis of Troxel. This court, in Oliver I, basically deferred the questions raised by Troxel by remanding the matter so that the trial court could make its findings more specific. {¶29} The nonparental-visitation statutes which are relevant to the case sub judice are found in R.C. 3109.11 and 3109.12. R.C. 3109.11 states: {¶30} If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county parents in which and the other minor child relatives of resides the may deceased grant the father or mother reasonable companionship or visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation child. rights In is in determining the best whether 9 interest to grant of the any minor person reasonable companionship or visitation rights with respect to any child, 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. Divisions (C), (K), and (L) of section 3109.051 of the Revised Code apply to the determination of reasonable companionship or visitation rights under this section and to any order granting any such rights that is issued under this section. {¶31} The remarriage of the surviving parent of the child or the adoption of the child by the spouse of the surviving parent of the child does not affect the authority of the court companionship under or this section visitation rights to grant with reasonable respect to the child to a parent or other relative of the child's deceased father or mother. {¶32} R.C. 3109.12 states: {¶33} (A) If a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting the court of common pleas of the county reasonable child. in which the companionship child or resides visitation to rights grant with them the If a child is born to an unmarried woman and if the father of the child has acknowledged the child and that 10 acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or has been determined in an action under Chapter 3111. of the Revised Code 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 reasonable requesting companionship or that the visitation court grant rights with them the child. {¶34} (B) rights or The court companionship may or grant the visitation parenting rights time requested under division (A) of this section, if it determines that the granting of the parenting time rights or companionship or visitation rights is in the best interest of the child. In determining whether to grant reasonable parenting time rights or reasonable companionship or visitation rights with respect to any child, 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. Divisions (C), (K), and (L) of section 3109.051 of the Revised Code apply to the determination of reasonable parenting time 11 rights or reasonable companionship or visitation rights under this section and to any order granting any such rights that is issued under this section. {¶35} The marriage or remarriage of the mother or father of a child does not affect the authority of the court under reasonable this section parenting to time grant rights the or natural the father parents or relatives of the natural father or the parents or relatives of the mother of the child reasonable companionship or visitation rights with respect to the child. {¶36} Because Laken s father was deceased, and because appellant was unmarried when she gave birth to Laken and John T. Oliver was judicially acknowledged to be the father, appellees could request visitation with Laken under either statute. The trial court s standard of review for granting visitation, which is the same under both statutes, is the best interest standard, guided by the best- interest factors found in R.C. 3109.051(D). {¶37} Our statutes carry analysis a begins strong with presumption the of recognition that constitutionality and that the party challenging the constitutionality of a statute bears the burden of overcoming this presumption. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 224 12 N.E.2d 906. that the clearly Only if it appears beyond a reasonable doubt constitutional incompatible unconstitutional. provision will State the ex and the statute legislation rel. Dickman be v. are held as Defenbacher (1955), 164 Ohio St. 142, 147, 57 O.O. 134, 128 N.E.2d 59. Although legislative enactments are afforded a high degree of deference, reviewing courts have the duty to interpret statutes and declare them constitutionally inoperative if necessary. State Bd. of Edn. v. Walter (1979), 58 Ohio statute as St.2d 368, 383, 12 O.O.3d 327, 390 N.E.2d 813. {¶38} A party unconstitutional may either challenge on particular set of facts. its face a or as applied to a Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the syllabus. challenge will differ The effect of a successful depending on whether the strikes the statute on its face or as applied. statute is unconstitutional as applied, the court If a State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under Professional any Corp. v. circumstances. Voinovich 187, 193. 13 (C.A.6, Women s 1997), 130 Med. F.3d {¶39} A statute may be unconstitutional as applied to a class of persons, or it may be unconstitutional as applied to an individual Glucksberg person. e.g., 521 (1997), See, 702, 117 L.Ed.2d 772, fn. 4.{¶40} U.S. A court Washington S.Ct. generally v. 2258, 138 applies the rational-basis test in examining the constitutionality of a statute under substantive due process. (1996), 76 Ohio satisfy this St.3d test, a 350, 351, statute Adkins v. McFaul 667 need N.E.2d only 1171. bear a To rational relationship to a legitimate state purpose, and must not be arbitrary, State v. discriminatory, Thompkins N.E.2d 926. upon a examine (1996), 75 Ohio or unreasonable. St.3d 558, 561, 664 If, however, challenged legislation impinges fundamental the capricious, statute constitutional under the right, courts strict-scrutiny must standard. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 423, 633 N.E.2d 504; Clark v. Jeter (1988), 486 U.S. 456, 461, 108 S.Ct. 1910, standard, a fundamental 100 L.Ed.2d statute right 465. Under the unconstitutionally unless the statute strict-scrutiny infringes is upon necessary a to promote a compelling governmental interest and is narrowly tailored to achieve that interest. See Perry Edn. Assn. v. Perry Local Educators' Assn. (1983), 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794; Primes v. Tyler (1975), 43 Ohio 14 St.2d 195, 198-199, 72 O.O.2d 112, 331 N.E.2d 723; Sorrell, supra, at 423. acknowledged Burson v. The that a Freeman United law States rarely (1992), 504 Supreme survives U.S. Court such 191, 200, has scrutiny. 112 S.Ct. 1846, 119 L.Ed.2d 5. {¶41} If Ohio s nonparental-visitation statutes impinge upon a fundamental constitutional right, they must be reviewed under the strict-scrutiny test. Therefore, it must first be determined whether a fundamental right is at stake. {¶42} The Constitution Fourteenth provides Amendment that no to state the United shall States "deprive any person of life, liberty, or property, without due process of law." The Due Process Clause "includes a substantive component that 'provides heightened protection against government interference with certain fundamental rights and liberty interests.'" Troxel, 530 U.S. at 65, quoting Washington v. Glucksberg, supra, 521 U.S. at 720. {¶43} As the United States Supreme Court stated in Troxel, the "liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 530 U.S. at 65. The Ohio Supreme 15 Court has echoed this conclusion. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 372, 696 N.E.2d 201; State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 10, 15 O.O.3d 3, 399 N.E.2d 66. {¶44} In Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, the Supreme Court held as unconstitutional a statute that prohibited the teaching of certain foreign languages at an elementary school. The court reasoned that the Due Process Clause protects the rights of parents to "establish a home and bring up children" and "to control the education of their own." Id. at 399. {¶45} Two years later, in Pierce v. Soc. of Sisters (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the court held as unconstitutional a statute that required parents to send their children to public schools, reasoning that the statute interfered with the liberty rights of parents "to direct the upbringing and education of children under their control." The Pierce court explained that a "child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to additional obligations." recognize and prepare him for Id. at 535. {¶46} In Stanley v. Illinois (1972), 405 U.S. 645, 92 16 S.Ct. 1208, 31 unconstitutional children of L.Ed.2d a unwed statute fathers 551, that to the court attempted become wards held as to force the of the state after the death of the mother. The court reasoned: "The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection." Id. at 651. {¶47} In Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, the court held, both on grounds of fundamental Amendment rights right to and free on the exercise basis of of the religion, First that a state's compulsory-education law did not apply to a group of Amish children. The court held: "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This upbringing of primary their role children of is the now parents established debate as an enduring American tradition." in the beyond Id. at 232. {¶48} In Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, the court reiterated that, even during proceedings should be to terminated, determine freedom whether of parental personal rights choice in matters of family life is a fundamental liberty interest 17 protected by the Fourteenth Amendment." Id. at 753. {¶49} In Troxel, the court was called upon to review the constitutionality of the state of Washington s version of a nonparental-visitation statute. The Washington statute was broader than Ohio s, in that it allowed any person to petition the court at any time to grant visitation, with the only requirement being that the visitation serve the best interests of the child. 530 U.S. at 67. {¶50} The factual context of Troxel is very similar to that of the case at bar. In Troxel, Tommie Granville and Brad Troxel had two daughters together. Tommie and Brad never married, and they ended their relationship in 1991. In 1993 Brad committed suicide. His parents, i.e., the paternal to grandparents, petitioned maintain visitation rights with their grandchildren after their son s death. The mother did not oppose visitation altogether but disapproved of the amount of visitation requested by the grandparents. The parties agreed that the mother was fit to raise her children and to make childrearing decisions. {¶51} The Washington Supreme Court grandparents visitation petition and denied the declared the visitation statute to be unconstitutional on two grounds: (1) for the state to interfere with the parents right to raise their children, the United 18 States Constitution requires a showing of harm or potential harm to the children, and this factor was left out of the visitation statute; and (2) the statute was too broad, because it allowed anyone at anytime to ask a trial court to trump the decisions of parents deference to the concerning wishes of the visitation parents. without In re any Smith (1998), 137 Wash.2d 1, 15-20. {¶52} The United States Supreme Court agreed that the Washington statute different reasons Court. In was than Troxel, unconstitutional, those Justice of the albeit Washington O Connor, writing for Supreme for a plurality of the court (including Chief Justice Rehnquist, along with Justices Ginsburg and Breyer), found that the Washington statute was unconstitutional as applied because of its Troxel sweeping opinion breadth. also makes Troxel, it 530 clear U.S. that the at 73. The Washington statute was unconstitutional under any level of judicial scrutiny. Id. at 80 (Thomas, J., concurring). {¶53} The plurality further held that the case should be dismissed proceedings. rather Id. at than 75. The remanded court for reasoned additional that the burden of litigating a domestic relations proceeding can itself be so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make 19 certain basic determinations becomes implicated. for the child s welfare Id., quoting dissent of Kennedy, J., at 101. {¶54} The Stevens, plurality, expressly fundamental right children. well recognized Troxel, concurring), as to the 530 86-87 as that care U.S. (Stevens, Justices parents and at J., Thomas have custody 65, 80 of a their (Thomas, dissenting). and J., Justices Souter and Kennedy also acknowledged that parents have a due process upbringing right of in the companionship, their children. Id. at concurring), 95 (Kennedy, J., dissenting). 77 care, (Souter, and J., It is difficult to escape the conclusion, with eight of nine Supreme Court Justices agreeing that a fundamental due process right was at stake in Troxel, that a strict-scrutiny analysis must be undertaken in reviewing nonparental-visitation statutes. {¶55} In light of extensive Supreme Court precedent, Troxel concluded that "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel at 66. {¶56} Troxel also held that if a fit parent s decision of the kind at issue here becomes 20 subject to judicial review, the court must accord at least some special weight to the parent s own determination. Id., 530 U.S. at 70. This holding recognizes that there are at least two hurdles of constitutional analysis which must be overcome for a nonparental visitation order to be valid. The first hurdle, and that decision, which takes addresses up the whether major there part of are the Troxel compelling and narrowly tailored reasons for a court to be hearing the visitation case at all. The second hurdle addresses whether there are compelling and narrowly tailored reasons for the court to impose a specific visitation order on the parents. Assuming that the statute has overcome the first hurdle (i.e., there is a constitutionally valid reason for haling the parents into court), the Troxel court articulated the special weight rule to ensure that any resulting visitation order would also be narrowly tailored to serve a compelling governmental interest. {¶57} All three of appellant s assignments involve the second hurdle mentioned above. not argue that it brought into court argues that the was on a actual order is for order an error Appellant does unconstitutional visitation of her at all. to be She unconstitutional infringement of her fundamental right to raise her daughter as she sees fit. 21 {¶58} Troxel did not provide much guidance on how to evaluate a specific visitation order. Furthermore, Troxel did not define the special weight which the trial court must give to the parents wishes. Troxel noted that there was a traditional presumption that a fit parent will act in the best interest of his or her child. Id., 530 U.S. at 69. It is clear from Troxel that a strict-scrutiny analysis must be applied to both the nonparental-visitation statute and to the method in which the statute is applied, but the court cautioned that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with care. Id. at 73, quoting dissent of Kennedy, J. {¶59} The special weight requirement gives the trial court an opportunity to determine governmental interest is at stake. court did not define special that a compelling Even though the Troxel weight, previous Supreme Court decisions make it clear that special weight is a very strong term signifying extreme deference. See, e.g., Rodrigues v. Hawaii (1984), 469 U.S. 1078, 1080, 105 S.Ct. 580, 83 L.Ed.2d 691 (special weight is given to a verdict of acquittal, signifying a conclusive presumption that a second trial would be unfair); 22 Guardians Assn. v. Civ. Serv. Comm. (1983), 463 U.S. 582, 621, 103 S.Ct. 3221, 77 L.Ed.2d 866 consistent (special weight administrative given to longstanding interpretations of a and statute; court must defer to the interpretation even if the court would interpret the statute differently); Comstock v. Group of Institutional Investors (1948), 335 U.S. 211, 230, 68 S.Ct. 1454, 92 L.Ed. 1911 (findings of bankruptcy judge are given special weight; those findings). reviewing courts special weight The should defer to requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent s wishes will be overcome only by some compelling governmental interest and overwhelmingly clear circumstances supporting that governmental interest. {¶60} Traditionally, the compelling governmental interest in interfering with a parent s care and custody of children has been the protection of the children from harm. The state's compelling interest in protecting children from physical or mental harm clearly allows a court to deny custody to a parent who will not provide for the physical and mental needs of the child. Ohio St.3d 393, 398, 588 Pater v. Pater (1992), 63 N.E.2d 794. Although the termination of the rights of a natural parent should be an alternative of last resort, such an extreme disposition 23 is nevertheless necessary for expressly the sanctioned welfare of * the * * when is In child. it re Cunningham (1979), 59 Ohio St.2d 100, 105, 13 O.O.3d 78, 391 N.E.2d 1034. The state's authority over children's activities must, as we have already noted, be broader than it is over like activities of adults if those of tender years are to be protected against some clear and present danger. In re Willmann (1986), 24 Ohio App.3d 191, 199, 493 N.E.2d 1380. {¶61} The state also has a parens patriae interest in preserving the welfare of its children. Parens patriae means "parent of his or her country" and refers to the state in its role as sovereign, or the state in its capacity as a provider of protection to those unable to care for themselves. Steele v. Hamilton Cty. Community Mental Health Bd. (2000), 90 Ohio St.3d 176, 736 N.E.2d 10, fn.5. Generally, the state cannot intervene as parens patriae in matters of child custody and control unless the child is delinquent, neglected, or abused or the parents are unfit. Holderle v. Holderle (1967), 11 Ohio App.2d 148, 159, 40 O.O.2d 305, 229 N.E.2d 79. {¶62} Appellees interest for present interfering no with compelling governmental appellant s right to raise her daughter as she sees fit. 24 fundamental There is nothing in petition the for case at bar visitation potential harm to Laken. indicating arose to that prevent appellees actual or It is undisputed that appellant is a fit parent, so there was no reason for the court to intervene as parens parentiae. Furthermore, appellees did not seek visitation on the basis that they had functioned as de facto parents to Laken, which may at times serve as a compelling governmental interest in nonparental-visitation cases. See, e.g., Rideout v. Riendeau (Me. 2000), 761 A.2d 291, 301. {¶63} At the July 1, 1999 visitation petition hearing, when appellee Irene Oliver was asked why she wanted to have visitation with Laken, she replied: {¶64} Well, other side. I think she has the right to know the I ve seen cases where people want to know there [sic] parents, grand parents, why not learn what we are like growing up with cousins that they have. us, and know their nieces or I think it s her right to know her cousins. {¶65} Although appellee s attitude may be admirable, it does not reflect a compelling reason to interfere with appellant s right to control who does and does not come into contact with her child. {¶66} It is clear from Troxel that the special weight 25 that must be given to a parent s childrearing decisions has constitutional implications, and to overcome that special weight, there must be some showing of compelling reasons and circumstances to disregard the parent s wishes. We find no such compelling reasons either in the nonparentalvisitation statute or the evidence presented in this case. Because we find no compelling interest at stake, it is also apparent that we cannot find that the resulting visitation order was interest. narrowly tailored to achieve a compelling Therefore, as applied to the facts of this case, the trial court s decision must be overturned. {¶67} Typically, we would remand a case such as this for further proceedings. once. This matter has been remanded On remand the trial court did not give any type of special weight to appellant s wishes. The trial court also presumed that visitation with the grandparents was in the child s best interests. This presumption was rejected in Troxel, which held that a fit parent s wishes are presumed to be in the child s best interest. Troxel, 530 U.S. at 71-72. {¶68} Additionally, instead of giving appellant s safety and health concerns special weight, the trial court discredited those concerns and concluded that these are not safety issues, rather they are examples of grasping in 26 an attempt to find issues that do not exist. (May 4, 2001 Judgment Entry.) {¶69} The significant trial court concluded for appellant s explanation visitation was visitation. that appellant s that the refusal mother was only to allow against such It should be noted that appellant s mother did not testify in the visitation proceedings. Our review of the record indicates that the evidentiary basis for the trial court s conclusion could only have been the earlier hearsay and opinion testimony of one of appellant s coworkers. Nevertheless, the trial court concluded: This Court does not believe it is in a child s best interest to loose [sic] contact with grandparents, upon the untimely death of a parent, party s wishes. because of deference to (May 4, 2001 Judgment Entry.) some third It appears that the court fails to recognize that the third party to whom he refers is the child s mother. {¶70} Unfortunately, court substituted interests and its gave it own no appears judgment weight at as though as all to to the Laken s trial best appellant s expressed wishes. While it appears the court was looking to Troxel s ideal world, the court s actions here do not comport with Troxel s holding. We have before us precisely the type of unconstitutional state intervention that Troxel 27 attempts to guard against: [T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made. Troxel, 530 U.S. at 73. {¶71} For all of the aforementioned reasons, the decision of the trial court must be reversed and vacated. In keeping with Troxel, we enter judgment in favor of appellant. Judgment reversed. Vukovich, P.J., and Gene Donofrio, J., concur. 28
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
