[Cite as In re B.P., 191 Ohio App.3d 518, 2010-Ohio-6458.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ADAMS COUNTY


In re B.P.;                                       :               Case No. 10CA890

Purvis, et al.,                                   :

        Appellee,                                 :               DECISION AND
                                                                  JUDGMENT ENTRY
v.                                                :

Hazelbaker,                                       :               Released 12/22/10

        Appellant.                                :

______________________________________________________________________
                            APPEARANCES:

Kris D. Blanton, for appellees Debra and Keith Heaton.

Lauren R. Weller, Southeastern Ohio Legal Services, for appellant.

______________________________________________________________________

        Per Curiam.

        {¶ 1} After finding Robin Hazelbaker to be an “unsuitable” parent, the Adams

County Juvenile Court awarded legal custody of her daughter, B.P., to the child’s

paternal grandparents, Debra and Keith Heaton.1 Hazelbaker argues that the trial court



1
  The trial court’s entry refers to the grandparents “retaining” custody rather than custody being “awarded”
to them. Previously, the trial court had awarded custody to the grandparents, but we reversed this
decision after concluding that the trial court applied the wrong legal standard. Purvis v. Hazelbaker, 181
Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489. Upon remand, the trial court granted the
grandparents’ request to retain custody of B.P. pending the court’s redetermination of the custody dispute
between the Heatons and Robin Hazelbaker. We assume that this procedural history is the basis for the
trial court’s use of the word “retaining” rather than “awarding” when the court reexamined the issue.
Thus, the effect of the court’s most recent entry was to grant custody to the grandparents, and we refer to
the trial court’s decision as an award of custody.
Adams App. No. 10CA890                                                                                     2


abused its discretion because the record lacks competent and credible evidence to

support its finding that her retention of custody would be detrimental to the child.

        {¶ 2} For various reasons, Hazelbaker contends that the following findings of

fact do not justify the court’s conclusion that she is an unsuitable parent: (1) she

withheld B.P. from visiting with the Heatons on a number of occasions,; (2) she was

alienated from her other three children, (3) the Heatons provided B.P. a “safe and

stable” home; (4) she was unable or unwilling to provide B.P. with a safe and stable

home; and (5) she had several boyfriends and allegedly sent nude photographs of

herself to one of them.

        {¶ 3} Our decision here is guided by the “unsuitability” analysis set forth in In re

Perales (1977), 52 Ohio St.2d 89, 369 N.E.2d 1047. Under Perales, a court may not

change custody from a parent to a nonparent without first finding that retaining custody

in the parent would be detrimental to the child, i.e., the parent is “unsuitable.” Id. at

syllabus.2 After reviewing the record, we agree that some of the court’s findings of fact

are not relevant to the unsuitability analysis. The findings of fact related to the Heatons’

“safe and stable” home are potentially relevant in a “best interest” type analysis but not

to an “unsuitability analysis. We also conclude that the trial court erred to the extent it

premised its finding of unsuitability on Hazelbaker’s pattern of romantic relationships

and sending nude photographs to a former boyfriend. There is no evidence in the

record establishing that B.P. has or is about to suffer any detriment because of her

mother’s sexual conduct. And finally, there is some evidence supporting the trial court’s

2
  We note that under Perales, parental unsuitability may also be established if the court finds that the
parent has (1) abandoned the child, (2) contractually relinquished custody of the child, or (3) become
incapable of supporting or caring for the child. However, none of these additional findings establishing
unsuitability are relevant in this appeal.
Adams App. No. 10CA890                                                                       3


findings that Hazelbaker prevented B.P. from visiting the Heatons for a period of time

and that Hazelbaker is alienated from her adult children. However, these two factors

alone do not demonstrate that it would be detrimental for Hazelbaker to retain custody

of her daughter. Consequently, we agree that the trial court abused its discretion when

it found that Hazelbaker was an unsuitable parent.

                                           I. Background

                          A. Events Leading Up to the Custody Dispute

       {¶ 4} B.P. was born in 2000 and is the natural daughter of Robin Hazelbaker

and Michael Purvis. The couple lived together for some period of time, but they were

never married and eventually separated in April 2005. Purvis filed a complaint in April

2006 to establish child support and a parent-child relationship. However, he was

subsequently incarcerated and failed to pursue his petition.

       {¶ 5} In May 2006, the Heatons, Purvis’s mother and stepfather, filed a motion

for grandparental visitation. Hazelbaker, acting pro se, and the Heatons, who were

represented by counsel, later reached an agreement on the “motion for grandparents

rights.” The agreed entry stated: “The Defendant and grandparents have agreed to

share in the parenting of the child. Defendant, Robin Hazelbaker shall retain custody of

the minor child. Keith and Debbie Heaton shall have visitation with the minor child every

weekend or as agreed upon by the parties.”

       {¶ 6} Purvis was released from prison in October 2006 and began living with the

Heatons. In November 2006, the Heatons filed a motion seeking custody of B.P.,

claiming that Hazelbaker was “unfit” to care for the child. On the same day, Hazelbaker

filed a petition for a civil stalking protection order against Purvis on behalf of herself and
Adams App. No. 10CA890                                                                     4


B.P. After filing for the protection order, Hazelbaker stopped sending B.P. to visit the

Heatons. In December 2006, the Heatons filed a motion for contempt, arguing that

Hazelbaker had withheld visitation with B.P. from them.

       {¶ 7} In December 2006, the court held a hearing on Hazelbaker’s petition for a

protection order. Although the Heatons were not a party to the civil-protection-order

proceeding, the Heatons and Hazelbaker apparently came to a temporary agreement so

that the Heatons would have visitation with B.P. over the Christmas holiday. Later, the

court granted Hazelbaker’s request for a protection order for herself, but denied a

request that B.P. remain a protected party under the protection order.

                                      B. The Initial Hearing

       {¶ 8} In January 2007, an initial hearing on the Heatons’ custody and contempt

motions occurred. In February 2007, the court issued an“agreed entry granting the

Heatons visitation with B.P. every other Sunday. The court also appointed a guardian

ad litem for the case. Then, in April 2007, Purvis filed a new motion for custody and

visitation. The court, upon the guardian ad litem’s recommendation, modified the

February 2007 agreed entry and granted additional visitation to Purvis and the Heatons.

       {¶ 9} Later, the guardian ad litem filed two reports with the court, the first of

which recommended that the court order psychological and/or custody evaluations of

the interested parties. In the second report, the guardian ad litem described custody

interviews with Hazelbaker and Purvis. She stated that she had concerns about

Purvis’s criminal background and Hazelbaker’s mental stability. Notably, she said that

both the Heatons’ home and Hazelbaker’s home were “appropriate and suitable” for the
Adams App. No. 10CA890                                                                    5


child. Ultimately, the guardian ad litem recommended that Hazelbaker and Purvis be

awarded shared parenting of B.P.

      {¶ 10} Dr. Eugene Smiley, a professional counselor, conducted the custody

evaluations of Purvis and Hazelbaker and filed a report with the court. Purvis told Dr.

Smiley that Hazelbaker was “promiscuous” and that all she did was “smoke and drink

beer.” Hazelbaker accused Purvis of being violent, volatile, and unstable. She also

claimed that Purvis and the Heatons had made unfounded complaints to Adams County

Children Services, apparently in an attempt to gain custody of B.P.

      {¶ 11} Dr. Smiley wrote that he was concerned that both Hazelbaker and Purvis

exhibited “conflicted” behavior toward one another, which was having a negative effect

on B.P., who was “clearly and equally” bonded to both parents. He believed that Purvis

would benefit from anger-management courses and recommended them. Dr. Smiley

also stated that he contacted Adams County Children Services and confirmed that they

had conducted investigations at Hazelbaker’s home. They found all claims to be

unsubstantiated. Ultimately, he recommended that Hazelbaker retain custody of B.P.

and that Purvis have alternating weekend visitation with her.

      {¶ 12} Dr. Smiley later filed an addendum report after interviewing the Heatons

and Heather Hazelbaker, who is one of Hazelbaker’s older daughters from a prior

marriage. Heather was 17 years old at the time of the interview in 2007 and in the

custody of Hazelbaker’s ex-husband, Frank Hazelbaker. Dr. Smiley found that Heather

was “clearly alienated” from her mother. Heather told Dr. Smiley that when she was

living with Hazelbaker, as many as ten people were staying in the small house.” She

also claimed that her mother had posted hundreds of nude photographs of herself on
Adams App. No. 10CA890                                                                     6


the Internet. Heather described Hazelbaker as a “lying, cheating person who has done

horrible stuff.” Dr. Smiley noted that Heather could not think of one positive thing to say

about her mother, but that if the allegations were true, then Hazelbaker would “be well

advised to take more care in her choice of male and other companions, and to exercise

more discretion when determining who resides in her home with [B.P.]”

       {¶ 13} The Heatons told Dr. Smiley that they were concerned about B.P.’s

welfare while she was being raised by Hazelbaker. They claimed that they were

concerned for her “safety, direction and support, and exposure to individuals that have

come into contact with [B.P.]’s home that do not meet with [their] approval.”

Additionally, they claimed that Hazelbaker had not allowed B.P. to participate in

activities “outside her mother’s home – no extracurricular school or church activities.”

After observing B.P. with the Heatons, Dr. Smiley noted that B.P. exhibited “a positive

and comfortable bond” with them.

       {¶ 14} Dr. Smiley again stated that he was concerned about the conflicts

between Purvis and Hazelbaker and that these would have a negative impact on B.P.

He also noted that B.P. had a lack of contact with her three older siblings, Elisha,

Nathan, and Heather. Ultimately, Dr. Smiley changed his recommendation to a shared

parenting arrangement between Hazelbaker and the Heatons.

       {¶ 15} Dr. Smiley also filed a third addendum to his recommendations after

realizing that he had forgotten to mention Purvis’s status. This clarification

recommended that the Heatons should have shared parenting rights with the

understanding that while B.P. was with the Heatons, Purvis would have full and

unsupervised visitation with B.P.
Adams App. No. 10CA890                                                                        7


                                     C. Subsequent Hearing

       {¶ 16} In late 2007 and early 2008, the court conducted a two-day hearing to

resolve the pending motions. First to testify was Dr. Smiley, who reiterated many of the

opinions in his custody evaluations, including his recommendation that the Heatons and

Hazelbaker have shared parenting of B.P. and that Purvis be allowed unsupervised

contact with B.P. while she was staying with the Heatons. Dr. Smiley stated that he had

no concerns for either Purvis’s or Hazelbaker’s mental state as it related to their ability

to parent. Dr. Smiley opined that Heather Hazelbaker came across as too “one-sided”

but that he did not necessarily believe that she was lying about or exaggerating her

claims.

       {¶ 17} Frank Hazelbaker testified that he was Hazelbaker’s ex-husband and,

after their divorce in the late 1990s, he obtained custody of two of their children, Elisha

(the oldest) and Nathan (the youngest). He later gained custody of Heather, their

middle child, in March 2007. Frank stated that Hazelbaker had visitation rights with

Nathan but had not exercised them.

       {¶ 18} Elisha explained that she lived at her mother’s house for about nine

months beginning in the summer of 2005. She claimed that her mother would often

leave her, and she was forced to babysit the children in the house while Hazelbaker

“went out.” She claimed that her mother would ask her for money and then leave the

house. Elisha claimed that Hazelbaker “slept all the time” and that there was never any

healthy food in the house. Elisha also stated that she had concerns about the

individuals that Hazelbaker was bringing in to the house and claimed that in the nine-
Adams App. No. 10CA890                                                                      8


month period when she was staying at Hazelbaker’s, she brought home four to five

men. She stated that she never observed any drug use in the home.

      {¶ 19} Nathan testified that he was mad at his mother because she had placed

Heather in a children’s home. Nathan very rarely visited Hazelbaker’s home and never

observed any drug use in the home. He claimed that when he would visit, he would

sometimes see men there. He was asked whether Elisha ever had to babysit him when

he visited, and he said that she “infrequently” babysat him. Nathan testified that he had

no concerns about his mother’s interactions with B.P.

      {¶ 20} Heather supplied the most damaging testimony against her mother. She

testified that Hazelbaker was doing a lot of dating while she lived at the house and that

there were “plenty of men” there. She claimed that sometimes she would go into the

living room at night and find strange men there. She also stated that there was an

inadequate supply of food and that her mother would bring home wine instead of food

when she was depressed. She claimed that her mother drank alcohol “all the time.”

She stated that the house has no heat and no air conditioning. Heather accused her

mother of trying to put her in a children-services home because she wanted to be

placed in her father’s custody.

      {¶ 21} Heather claimed that she witnessed violence between Hazelbaker and her

boyfriend, Kevin Hesler. She stated that police would “often” come to the house. She

also stated that she witnessed her mother smoking marijuana with Hesler in the home.

Heather claimed that she found one thousand sexually explicit photographs, which were

freely accessible, on a computer in her mother’s home. She explained that the

computer had separate accounts for everyone at the home; however, the password for
Adams App. No. 10CA890                                                                    9


each account was the same. Heather stated that she found the photographs in a

shared pictures folder and that there were no access restrictions on the photographs.

She claimed that in certain photographs, her mother was nude, standing by a Christmas

tree in the living room. Her mother’s boyfriend at the time, who was a soldier in Iraq,

appeared nude in a different photograph. She also claimed that there were pictures of

“naked parties” in which Hazelbaker was engaged in sexual acts with boyfriends and

“different guys.” Heather stated that B.P. used this computer although she did not

indicate that B.P. had viewed the photographs.

      {¶ 22} Heather explained that she transferred these photographs to five compact

discs (“CDs”) and that there were about 200 photographs contained on each CD. She

claimed that she gave the CDs to her mother but later found one of them on her

mother’s desk. She turned this CD over to the Heatons, apparently to help them secure

custody of B.P. Although the Heatons claimed that they had possession of the

photographs on the CD, they did not introduce them into evidence.

      {¶ 23} Heaton told the court about her large house, which sat on 300 acres and

had six bedrooms and a pool. Mrs. Heaton told the court that she had frequent

interactions with B.P. through weekend visitations between when the child was two

weeks old and October 2006. When B.P. was with them on the weekends, the Heatons

took her to 4-H classes and to Sunday school.

      {¶ 24} Mrs. Heaton testified that Hazelbaker was “paranoid” and would not

leave the house. She claimed that Hazelbaker slept a lot and had “questionable seizure

activity.” Mrs. Heaton opined that B.P.’s future would go “nowhere” if she stayed with

Hazelbaker. And Mrs. Heaton stated that while B.P. was staying with her one weekend,
Adams App. No. 10CA890                                                                  10


the Adams County Sheriff was called to Hazelbaker’s residence twice. She also stated

that in 2006, Purvis had to watch B.P. for two weeks when Hazelbaker took a trip to

Paris, France, with a boyfriend who was a soldier in Iraq.

       {¶ 25} Purvis testified that he had concerns about Hazelbaker’s having custody

of B.P. because she was “unpredictable.” Purvis admitted that he was on probation in

Brown County for three years for a theft conviction, that he was on probation in Adams

County for one year for a charge of theft by deception, and that he had been

incarcerated for a parole violation for a theft conviction in Highland County.

       {¶ 26} On the second day of the hearing, the court heard testimony from

Hazelbaker and her witnesses. Steve Darby testified that he is a guidance counselor at

North Adams High School and the advisor of a 4-H group at the school. Darby testified

that Heather attended 4-H meetings, and Hazelbaker brought her to the meetings when

they resided together. He further testified that Hazelbaker brought B.P. with her to the

meetings, that B.P. would play with the siblings of other 4-H participants, and that

Hazelbaker and B.P. had a good relationship. Finally, Darby testified that B.P.

participated in Lead Line classes at horse shows.

       {¶ 27} Winfield Rayburn, Hazelbaker’s father, testified that he would babysit B.P.

after she got out of preschool or kindergarten and before Hazelbaker came home from

work. Winfield testified that B.P. was a pleasant and talkative child. Winfield stated that

he had no concerns about the way that Hazelbaker was raising B.P.

       {¶ 28} Hazelbaker testified that she worked at Child Focus, Inc., where she

coordinated services for at-risk families with young children. Hazelbaker indicated that

her workplace required random drug tests and that she had never failed a drug test.
Adams App. No. 10CA890                                                                     11


She specifically denied ever taking any drugs. She claimed that there were never any

“strange men” in the house and denied that she slept all the time. She denied using

Elisha as a babysitter so that she could go out to the bars; she said that she rarely if

ever went out. Hazelbaker also stated that the house had heat and air conditioning.

       {¶ 29} Hazelbaker testified that B.P. had good grades while living with her.

Hazelbaker stated that she took B.P. to 4-H classes in Adams County and that she took

her to Lead Line horse riding classes. She produced various photographs showing B.P.

participating in Lead Line classes, at home with her sisters, and on vacation with her at

the Great Serpent Mound.

       {¶ 30} Concerning the nude photographs, Hazelbaker conceded that she sent

pictures taken in 2005 to a soldier stationed in Iraq whom she met online. Hazelbaker

claimed that she kept the pictures under a password-protected account and denied that

all the accounts on the computer had the same password. Hazelbaker also denied that

there were photographs on her computer of group sex and claimed no recollection of

those events. Hazelbaker stated that she believed that Heather was angry at her

because she attempted to place her in a children’s home after she suspected that

Heather had a drug problem.

       {¶ 31} Hazelbaker admitted that Adams County Children Services had been

called to her house at least five times. She believed that Purvis and/or the Heatons had

called them. She noted that Children Services investigated all the claims and found that

none were substantiated. Hazelbaker admitted that she filed bankruptcy in 2007 and

had 63 total creditors. However, she pointed out that 49 of these creditors were for a

failed construction business with Purvis. Hazelbaker also admitted that she called the
Adams App. No. 10CA890                                                                  12


sheriff’s office out to her home twice one weekend in 2006 because of a domestic

dispute between Hesler and herself.

      {¶ 32} Hazelbaker explained that she kept B.P. from visiting with the Heatons

one weekend because she had family coming into town from Alabama and she wanted

them to meet B.P. She indicated that she had asked the Heatons if she could keep

B.P., but they refused. She also admitted that she kept B.P. from visiting with the

Heatons for approximately two months after she obtained a protection order against

Purvis. However, she claimed that she kept B.P. upon the advice of the sheriff’s office,

which informed her that as long as the protection order was in effect, she should not

send B.P. to stay with the Heatons while Purvis was living with them.

      {¶ 33} In June 2008, the court issued its decision, effectively granting custody to

the Heatons and parenting time to Hazelbaker. After Hazelbaker appealed that

decision, we reversed, holding, among other things, that the court must find that

Hazelbaker was “unsuitable” before it could grant custody of B.P. to the Heatons. See

Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, at ¶ 2.

                                   D. Remand Proceedings

      {¶ 34} In April 2009, the court held a hearing after our remand, apparently to

receive any new evidence that had arisen since the 2008 hearing. Ty Shipley testified

that he was engaged to Hazelbaker, whom he had known for 20 years. Hazelbaker had

been living with him at his home since December 2008, and B.P. had made overnight

visits to his residence during Hazelbaker’s parenting time. Shipley testified that he had

observed the relationship between Hazelbaker and B.P. and it was “typical” and “good.”

Shipley stated that he has grown children of his own.
Adams App. No. 10CA890                                                                   13


      {¶ 35} Hazelbaker testified that B.P. has a good relationship with Shipley and

that they play soccer together. She stated that there had been no police or children-

services investigations at Shipley’s home. Hazelbaker admitted that she had lost the

home that she was living in previously to foreclosure. She stayed at her father’s home

for a few months before moving in with Shipley. Before she moved there, she had been

in a relationship with another man for approximately three months. Their relationship

ended because he died in a car accident. Hazelbaker stated that she had very little

contact with the Heatons, and most of the information regarding what B.P. was doing

with them was obtained through Purvis.

      {¶ 36} Subsequently, the guardian ad litem issued an additional report. She

found that B.P. was doing well in school and continued to thrive while in the Heatons’

care. B.P. was participating in softball and going to church camp. The Heatons told the

guardian ad litem that Hazelbaker had been resistant to extracurricular activities

involving B.P. They claimed that Hazelbaker had brought the child to softball practice

but left early, after about 45 minutes, because B.P. was not feeling well. The Heatons

reported that exchanges of B.P. with Hazelbaker had been uneventful. Ultimately, the

guardian ad litem recommended that the court grant custody of B.P. to the Heatons and

opined that custody by either parent would be detrimental to B.P.

      {¶ 37} The court issued its decision in September 2009 and found by “clear and

convincing” evidence that Hazelbaker was not a suitable parent and that her retaining

custody of B.P. would be detrimental to the child. Accordingly, the court ordered that

custody of the child “should remain with the grandparents, Keith and Debbie Heaton.”
Adams App. No. 10CA890                                                                              14


After Hazelbaker requested findings of fact and conclusions of law, the court delayed

issuing a journal entry until February 8, 2010. The entry found:

       1. Defendant has without cause withheld the child from her father and her
       grandparents on several occasions.

       2. The Defendant demonstrates limited parenting skills, not only because
       she does not seem to understand the value of the child’s association with
       grandparents and the father but also by the alienation of her other
       children.

       3. The grandparents have provided a safe and stable home for the child
       and have seen to it that the child has contact with the Defendant at all
       ordered times.

       4. Defendant’s home in Adams County was unsuitable, and although she
       has moved in with yet another adult male in Brown County who has a
       good residence, her behavior of going from one boyfriend to another
       causes the court to question her stability. Indeed, testimony about her
       having sent nude photos of herself to a previous male friend, among the
       other matters listed above, drew the court to the conclusion that she is not
       a suitable custodian for a young child.

       5. The grandparents have provided a home and stability for this child
       when no one else was able or willing to do so, and she has thrived in their
       care.

       {¶ 38} Hazelbaker has appealed from this judgment entry.3

                                         II. Assignments of Error

       {¶ 39} Hazelbaker presents a single assignment of error:

             The trial court committed an abuse of discretion by granting
       custody to a nonparent when the record does not support a finding that
       custody to mother would be detrimental to the child, and thus that mother
       would be an unsuitable parent.

                             III. Custody Disputes Involving a Nonparent




3
  Although a party to this matter, Purvis did not file a brief. Subsequent to the court’s journal entry
awarding custody of B.P. to the Heatons, Purvis filed a new motion for change of custody and now claims
that Debbie Heaton “manipulates [his] daughter’s time so that [his] parenting time is limited.”
Adams App. No. 10CA890                                                                    15


       {¶ 40} In her sole assignment of error, Hazelbaker argues that the trial court

abused its discretion by finding that she is an unsuitable parent because the record

lacks competent and credible evidence that her retention of custody would be

“detrimental” to B.P. We agree.

                          A. The Parent’s Paramount Right to Custody

       {¶ 41} The right to raise one’s child is regarded as essential and fundamental.

See In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169. “[I]t has been

deemed ‘cardinal’ that the custody, care and nurture of the child reside, first, in the

parents.” Id., quoting Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct. 438.

The United States Supreme Court, in Troxel v. Granville (2000), 530 U.S. 57, 65-66,

120 S.Ct. 2054, held that a parent has a fundamental right to make decisions

concerning his or her children. Courts have therefore “sought to effectuate the

fundamental rights of parents by severely limiting the circumstances under which the

state may deny parents the custody of their children.” In re Hockstok, 98 Ohio St.3d

238, 2002-Ohio-7208, 781 N.E.2d 971, at ¶ 17, citing Perales, 52 Ohio St.2d 89, 369

N.E.2d 1047, at syllabus.

       {¶ 42} Accordingly, “in a child custody proceeding [under R.C. 2151.23(A)(2)]

between a parent and nonparent, a court may not award custody to the nonparent

‘without first determining that a preponderance of the evidence shows that the parent

abandoned the child; contractually relinquished custody of the child; that the parent has

become totally incapable of supporting or caring for the child; or that an award of

custody to the parent would be detrimental to the child.’ [Perales at syllabus.] If a court

concludes that any one of these circumstances describes the conduct of a parent, the
Adams App. No. 10CA890                                                                     16


parent may be adjudged unsuitable, and the state may infringe upon the fundamental

parental liberty interest of child custody.” In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-

7208, 781 N.E.2d 971, at ¶ 17.

       {¶ 43} A “preponderance of the evidence” is “evidence which is of greater weight

or more convincing than the evidence which is offered in opposition to it.” Black’s Law

Dictionary (6th Ed.1998) 1182.

                                  B. Standard of Review

       {¶ 44} Although a trial court possesses broad discretion in custody matters,

Reynolds v. Goll (1996), 75 Ohio St.3d 121, 124, 661 N.E.2d 1008, it does not have

discretion to terminate a parent’s right to custody when the finding of unsuitability is not

supported by the record. Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047. Thus, we will

review the record under a manifest-weight-of-the-evidence standard to see whether

competent, credible evidence supports the trial court’s finding of unsuitability. See C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578, cited

with approval in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, at ¶ 24; State v. Schiebel (1990), 55 Ohio St.3d 71, 74-75, 564 N.E.2d 54.

                             C. Findings of Detriment to B.P.

       {¶ 45} Hazelbaker contends that the trial court erred in concluding that she is an

unsuitable parent. Generally, she argues (1) that certain findings of fact are irrelevant to

the “unsuitability” analysis, i.e., they are actually considerations under the “best interest”

analysis, and (2) that other findings simply do not support the conclusion that it would

be detrimental to B.P. for her to retain custody. We will review each finding of fact to

determine whether (1) it is a relevant consideration under the Perales unsuitability
Adams App. No. 10CA890                                                                    17


analysis and (2) there is some competent and credible evidence in the record to support

it.

       1. Defendant has without cause withheld the child from her father and her
          grandparents on several occasions.

       {¶ 46} Hazelbaker admits that facilitating court-approved parenting time is a best-

interest- analysis factor under R.C. 3109.04(F)(1), but she argues that the evidence did

not demonstrate that B.P. suffered any detriment from missing court-ordered visitation

time. The Heatons argue that the evidence demonstrates that Hazelbaker used B.P. as

a “bartering tool” to get the Heatons to “bend to her wishes.”

       {¶ 47} Hazelbaker did not send B.P. to stay with the Heatons one weekend in

late 2006 when Hazelbaker’s family visited from out of town and she wanted B.P. to

meet them. And Hazelbaker discontinued visitation with the Heatons for a period of

approximately two months in late 2006 after she filed for a protection order against

Purvis, naming herself and B.P. as protected parties (Purvis was residing with the

Heatons during this period). Hazelbaker explained that the reason she did not send

B.P. to the Heatons was because a sheriff’s office employee told her that if she had a

protection order against Purvis that included B.P. as a protected party, she should not

send B.P. where he was living.

       {¶ 48} The Heatons exercised visitation regularly with B.P. from 2000 up until the

incidents of withholding in late 2006. In fact, Mrs. Heaton testified that the Heatons saw

B.P. very freely until October 2006, even when Hazelbaker and Purvis were not in a

relationship. Hazelbaker voluntarily signed paperwork so the Heatons could take B.P.

with them to visit Purvis while he was incarcerated.
Adams App. No. 10CA890                                                                                  18


        {¶ 49} There is no evidence in the record of any visitation disputes between the

Heatons or Purvis and Hazelbaker following the December 2006 agreement to

recommence visitation, and Hazelbaker has never been held in contempt of court for

violating a visitation agreement. In fact, Purvis testified that Hazelbaker allowed him

and the Heatons two days of visitation with B.P. over the Thanksgiving 2007 holiday

even though it had been her turn to spend the holiday with B.P., and that Purvis and

Hazelbaker have “trick or treated,” thrown a joint birthday party for B.P., and taken B.P.

Christmas shopping together.

        {¶ 50} Although there is evidence in the record to support the trial court’s finding

that Hazelbaker withheld visitation with B.P. from the Heatons and Purvis for a period in

2006, there is no evidence that these actions have been detrimental to B.P.

Significantly, none of the parties or other witnesses testified to any detrimental effect on

B.P. as a result of Hazelbaker’s actions or introduced any other evidence to support

such a finding.4

        {¶ 51} We do acknowledge that a court may infer a detrimental effect on a child

when a parent engages in such a pattern of withholding visitation as to demonstrate that

the parent is clearly interfering in a child’s relationship with her other parent or

grandparents. However, there is no competent and credible evidence that such a

pattern exists here. Even assuming that Hazelbaker’s decision to withhold visitation

from the Heatons while B.P. was listed on the protection order against Purvis was

unjustified, this was a brief period in an otherwise continuous relationship between B.P.

and her paternal family. Even the testimony of Mrs. Heaton and Purvis establishes that


4
 We do not suggest that contempt sanctions for withholding visitation must be based upon a finding of
detriment. However, contempt of court is not the issue here.
Adams App. No. 10CA890                                                                         19


Hazelbaker generally allowed them visitation with B.P., even whenit was not required by

the court.

       {¶ 52} We conclude that although there is some evidence to support the trial

court’s finding that Hazelbaker withheld visitation without cause, the court’s conclusion

that these actions establish that Hazelbaker’s retention of custody would be detrimental

to B.P. is not supported by the record.

       2. The Defendant demonstrates limited parenting skills, not only because
       she does not seem to understand the value of the child’s association with
       grandparents and the father but also by the alienation of her other
       children.

       {¶ 53} The first aspect of this finding -- that Hazelbaker failed to understand the

value of B.P.’s association with her grandparents -- appears to be directed to the

missed visitation in 2006. Thus, we decline to reexamine that finding here and rely

upon our previous analysis.

       {¶ 54} Concerning the alienation of her other children, Hazelbaker argues that

this sort of finding is improper in the unsuitability analysis because the focus should be

on the individual child in question. Stated otherwise, she contends that the record lacks

competent and credible evidence that the alienation from her other children caused

detriment to B.P. She further argues that the testimony of her children about her “bad

mothering” was only relevant to the year prior to their testimony, which was received in

2007. And Hazelbaker contends that we should view Heather’s testimony as “suspect”

because Heather was angry at her.

       {¶ 55} Hazelbaker’s children are clearly alienated from her. Based upon a

parent’s poor relationship with that parent’s other children, a court might infer that it is

only a matter of time until an existing good relationship with the child in question
Adams App. No. 10CA890                                                                                  20


degenerates into an unsatisfactory one. However, the standard for awarding custody to

a nonparent under Perales is whether an award of custody to the parent would be

detrimental to the child, not whether such an award of custody could be detrimental to

the child in the future. In the absence of some evidence that the schism is having a

detrimental effect upon B.P., the trial court could not conclude that Hazelbaker is

presently an unsuitable parent to B.P.

        {¶ 56} There is certainly other testimony from Elisha, Heather, and Nathan to

establish instances of limited parenting skills that may affect B.P., i.e., purchasing

alcohol instead of food, excessive sleeping instead of caring for her children, going out

frequently, and permitting or participating in drug usage in the home. However, the

court made no findings of fact based upon any of this testimony; therefore, we can only

conclude that the trial court either did not find much of the testimony credible5 or did not

believe this conduct was having a detrimental effect on B.P.

        {¶ 57} We conclude that merely being alienated from other children does not

mean it would be detrimental to award custody of a different child to the parent.

Therefore, we search for evidence suggesting that Hazelbaker’s alienation from her

other children is causing detriment to B.P.

        {¶ 58} Dr. Smiley stated in his second custody evaluation that he had “concerns”

about B.P.’s lack of contact with Elisha, Heather, and Nathan. Apparently, due to the


5
  There were conflicts in the testimony of the three older children. For example, Elisha testified that she
frequently babysat her younger siblings so that Hazelbaker could go out, but Nathan testified that Elisha
“infrequently” babysat him during their visits. Heather testified that she observed drug use by Hazelbaker
and her then boyfriend, but Elisha testified that she never observed any drug use in the home. There
were also instances of conflict between Hazelbaker’s children and other evidence in the record. For
example, Heather testified that there was no heat or air conditioning in Hazelbaker’s home, but the
guardian ad litem report found the home to be adequate. Additionally, although Hazelbaker was
apparently reported to and investigated by Adams County Children Services on multiple occasions, the
agency never concluded that the home was inadequate or lacking basic necessities such as food.
Adams App. No. 10CA890                                                                         21


other children’s general dislike of their mother, they would see B.P. only when she

visited with the Heatons. Thus, the record contains some support for the trial court’s

finding that lack of contact with her half-siblings would cause some level of harm to B.P.

However, because B.P. maintains a relationship with her half-siblings through the

Heatons, it is unreasonable to conclude that B.P.’s limited relationship with her now

grown half-siblings would constitute such a detriment under Perales as to demonstrate

that Ms. Hazelbaker is an unsuitable parent.

       3. The grandparents have provided a safe and stable home for the child
       and have seen to it that the child has contact with the Defendant at all
       ordered times.

       {¶ 59} Hazelbaker argues that the first aspect of this finding of fact, i.e., the

Heatons’ safe and stable home, is a proper consideration under the R.C. 3109.04(F)(1)

best-interest analysis but has no import in determining whether retaining custody of B.P.

would be detrimental to her under Perales. Hazelbaker is correct. “The Perales

‘suitability’ test is distinguishable from the ‘best interest’ test. Under the best interest

test, the court looks for the best situation available to the child and places the child in

that situation. [In re] Lowe [(Jan. 16, 2002), Columbiana App. No. 00CO62, 2002 WL

75937]. The suitability test, on the other hand, requires a detriment to the child be

shown before the court takes him/her away from an otherwise suitable parent.” In re

Davis, Mahoning App. No. 02-CA-95, 2003-Ohio-809, at ¶ 12. “Under the suitability

test, ‘[s]imply because one situation or environment is the “better” situation does not

mean the other is detrimental or harmful to the child. ’” Id., quoting Lowe at *2.

       {¶ 60} Accordingly, though there was competent and credible evidence in the

record to support a finding that the Heatons’ home was safe and suitable, this factor is
Adams App. No. 10CA890                                                                        22


irrelevant to the unsuitability analysis. Moreover, even if we were to assume that the

implication here is that Hazelbaker’s home was not safe and suitable, the record

squarely contradicts such a finding. Although there were allegations that there was

drug use in Hazelbaker’s home in Adams County and that strange men were sometimes

there, this testimony was apparently not credited by the trial court, as it made no finding

in this regard. Moreover, the guardian ad litem expressly found that Hazelbaker’s home

was suitable for B.P. And notably, there was no evidence presented that there were

any issues with Hazelbaker’s current home, i.e., Shipley’s residence. Shipley explained

that B.P. had a room to herself while she stayed there on her visits, and the residence

passed a home inspection ordered by the trial court. Accordingly, this aspect of the trial

court’s decision fails to support an unsuitability determination, and the trial court erred

as a matter of law to the extent it relied upon it.

       {¶ 61} The trial court’s finding that the Heatons ensured that B.P. had contact

with Ms. Hazelbaker at all ordered times is similarly irrelevant to the unsuitability

analysis. Assuming that the record contains competent and credible evidence of this

finding, it is simply not pertinent to whether Hazelbaker’s retaining custody would be

detrimental to B.P. The focus of the unsuitability determination must necessarily be on

the parent’s acts or omissions. The Heatons’ admirable adherence to honoring court-

ordered custody arrangements has no logical nexus to a finding that awarding custody

to Hazelbaker would be detrimental to B.P.

        4. The Defendant’s home in Adams County was unsuitable, and although
       she has moved in with yet another adult male in Brown County who has a
       good residence, her behavior of going from one boyfriend to another
       causes the court to question her stability. Indeed, testimony about her
       having sent nude photos of herself to a previous male friend, among the
Adams App. No. 10CA890                                                                      23


       other matters listed above, drew the court to the conclusion that she is not
       a suitable custodian for a young child.

       {¶ 62} Hazelbaker challenges the court’s assertion that her home in Adams

County was unsuitable. She points to the guardian ad litem’s supplemental report,

which stated that both her home and the grandparents’ home were suitable. We agree

that the guardian ad litem found the Adams County home to be suitable.

       {¶ 63} In concluding that Hazelbaker was not a suitable custodian for B.P., the

trial court’s findings indicate two reasons it was concerned about her stability: (1) her

behavior of going from one boyfriend to another and (2) her decision to send nude

photographs of herself to a previous boyfriend. However, there is no evidence in the

record that Hazelbaker’s sexual activities had a negative impact on B.P.

       {¶ 64} We reject the notion that having several boyfriends over a multiyear span

establishes the sort of parental deficiency that could support a finding of parental

unsuitability. The evidence demonstrated that one of Hazelbaker’s ex-boyfriends, Kevin

Hesler, may have engaged in a domestic dispute or even been violent with her.

However, Hazelbaker lived with Hesler for only a four- month period in 2006. Moreover,

when this dispute occurred, B.P. was in the Heatons’ care. Regardless, there is no

evidence in the record that Hazelbaker’s romantic relationships had any detrimental

effect on B.P.

       {¶ 65} The nude photographs clearly demonstrate that Hazelbaker exercised

poor judgment in 2005. But again, there was no competent and credible evidence

presented either at the preremand hearing or the postremand hearing demonstrating

that these nude photographs caused any detriment to B.P. While it was undoubtedly

unwise for Hazelbaker to store nude photographs of herself on a computer that her
Adams App. No. 10CA890                                                                        24


young daughter could potentially access, there was no competent and credible

evidence in the record demonstrating that B.P. suffered any actual, direct harm from the

existence of these photographs. Accordingly, the trial court abused its discretion to the

extent that it relied upon the mother’s behavior of having several boyfriends over a five-

year period and possessing nude photographs on her computer to justify its decision

that Hazelbaker was an unsuitable parent.

         5. The grandparents have provided a home and stability for this child
         when no one else was able or willing to do so, and she has thrived in their
         care.

         {¶ 66} Hazelbaker contends that this finding of fact does not support the trial

court’s decision that she is an “unsuitable” mother because the evidence also showed

that she had provided a home and stability for the child and that the child has thrived in

her care. She further argues that the guardian ad litem’s report found that both her

home and that of the Heatons were appropriate and suitable for the child. Additionally,

Hazelbaker points to Dr. Smiley’s report, which indicated that B.P. felt safe and secure

while living with Hazelbaker. Ultimately, Hazelbaker contends that the trial court simply

determined that the Heatons’ home provided a better home environment for B.P., a

consideration not appropriate in determining whether she was suitable to raise her own

child.

         {¶ 67} Concerning the first aspect of this finding of fact—the Heatons’ home – we

again defer to our analysis concerning finding-of-fact three. Accordingly, we reject this

finding as supportive of the trial court’s unsuitability determination.

         {¶ 68} Finally, the court’s finding that “no one was able or willing” to provide a

home or stability for B.P. is simply unsupported by the record. There is no evidence
Adams App. No. 10CA890                                                                       25


that Hazelbaker was unable or unwilling to provide a home for B.P. In fact, Hazelbaker

has consistently fought to maintain custody of B.P. while providing the Heatons with

visitation opportunities. Neither her home in Adams County nor her current residence in

Brown County has been deemed unsuitable for B.P. to reside in.

                                   D. Totality of Findings

       {¶ 69} We recognize that the trial court’s discretion in custody matters should be

accorded the utmost respect; however, we find that the court’s ultimate conclusion that

retention of custody by Hazelbaker would be detrimental to B.P. is simply not supported

by competent and credible evidence. Although the trial court made factual findings in

support of its decision, some of these findings were simply irrelevant because they

pertained only to a “best interest” analysis that was inapplicable here. Other findings do

not sustain the unsuitability determination because there is no evidence that B.P. has

suffered or would suffer any detriment by a continuation of custody with Hazelbaker. In

fact, the testimony from all witnesses established that B.P. is a happy, healthy child who

performs well in school and loves all the adults in her life.

       {¶ 70} Furthermore, although there is certainly evidence demonstrating that

Hazelbaker is not a flawless parent, this is not the standard for an unsuitability finding

under Perales. A review of other cases involving unsuitability findings reveals far more

substantial evidence to support a finding that parental custody is detrimental to a child.

See, e.g., In re Z.A.P., 177 Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342 (while

child lived with mother, he had serious behavior problems and took several medications

for behavior; child claimed physical abuse by mother’s live-in boyfriend; mother’s house

was dirty and in disarray; several unrelated individuals lived in the house including a
Adams App. No. 10CA890                                                                    26


known “druggie”; child had no structure at mother’s home; child would be “emotionally

devastated” if forced to return to home; and child’s behavior had significantly improved

and he had been removed from medications while he lived outside of mother’s home);

In re A.W.-G., Butler App. No. CA2003-04-099, 2004-Ohio-2298 (mother unable to

maintain employment and housing, child experiences rash due to lack of hygiene while

in mother’s care, mother does not consistently provide care for child’s medical issues);

Karr v. Dunn, Pickaway App. No. 03CA22, 2004-Ohio-928 (mother returned to work

when child was three weeks old without arranging childcare, failed to provide financial

support for child, abandoned child for several weeks, lived in six homes over four-year

period, failed to provide consistent medical care for child ; also home lacked electricity

and running water and was unsanitary).

                                      IV. Conclusion

       {¶ 71} We conclude that the trial court’s finding that Hazelbaker is an unsuitable

parent because her retention of custody of B.P. would be detrimental to B.P. is not

supported by the record. The trial court’s ultimate conclusion is based on findings that

are irrelevant to the analysis or unsupported by competent and credible evidence of

detriment. Therefore, the trial court’s decision to award custody to the Heatons was

unreasonable.

                                                                       Judgment reversed
                                                                     and cause remanded.

       MCFARLAND, P.J., and KLINE, J., concur.

       HARSHA, J., dissents.
