[Cite as In re A.Z., 2011-Ohio-6739.]


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


In Re: [A.Z.],                                           :
                                                         :
                                                         :   Case No: 11CA3
                                                         :
                                                         :
                                                         :   DECISION AND
                                                         :   JUDGMENT ENTRY
                                                         :
                                                         :   Filed: December 21, 2011


                                             APPEARANCES:

Michael L. Barr, Little & Sheets, L.L.P., Pomeroy, Ohio, for Appellants.

Trenton J. Cleland, Pomeroy, Ohio, for Appellees.1


Kline, J.:

          {¶1}    Kent and Kim Eads (hereinafter the “Eadses”) appeal the judgment of the

Meigs County Court of Common Pleas, Juvenile Division, which dismissed the Eadses’

claim for reasonable companionship time with A.Z., a minor child. The juvenile court

found that, as applied in this case, R.C. 3109.12 violates the Equal Protection Clause.

On appeal, the Eadses make arguments based on (1) our decision in Moore v. Strassel

(Feb. 26, 1998), Pickaway App. No. 97 CA 32, and (2) the statutory interpretation of

R.C. 3109.12. Because these arguments are irrelevant to the equal-protection issues in

this case, we find no merit in the Eadses’ appeal. Accordingly, we affirm the judgment

of the trial court.

                                                        I.

1
    The Appellees did not participate in this appeal.
Meigs App. No. 11CA3                                                                2


       {¶2}   On August 15, 2008, Tiffany Willis (hereinafter “Willis”) gave birth to A.Z.

Kim Eads is Willis’s first cousin. Walid Zahran (hereinafter “Zahran”) is A.Z.’s biological

father, but Zahran and Willis were not married at the time of A.Z.’s birth.

       {¶3}   In late 2009, the juvenile court granted temporary custody of A.Z. to the

Eadses. Willis and Zahran, however, regained custody of A.Z. the following June.

       {¶4}   On September 17, 2010, the Eadses filed a complaint for reasonable

companionship time with A.Z. The Eadses based their complaint on R.C. 3109.12(A),

which provides the following: “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 in which the child resides to grant them reasonable

companionship or visitation rights with the child.”

       {¶5}   On September 20, 2010, Willis and Zahran were married.

       {¶6}   On October 4, 2010, Willis and Zahran filed a motion to dismiss the

Eadses’ complaint for reasonable companionship time. Willis and Zahran argued that,

as applied in this case, R.C. 3109.12 violates the Equal Protection Clause. Essentially,

Willis and Zahran claimed that R.C. 3109.12 unconstitutionally distinguishes between

(1) a mother who was married to the biological father at the time of the child’s birth and

(2) a mother who married the biological father sometime after the child’s birth.

       {¶7}   The juvenile court agreed with Willis and Zahran and found an “as applied”

equal-protection violation. As the juvenile court held, “[T]his court finds no rational basis

to differentiate married biological parents, who happen to be unmarried at the time that

a relative files a complaint seeking companionship rights, from married biological

parents who married before the child was born. Relatives, absent a showing of parental
Meigs App. No. 11CA3                                                                  3


unfitness, would not be able to obtain companionship rights with a child born after the

marriage of biological parents.

       {¶8}   “Therefore, the Court holds that Ohio Revised Code Section 3109.12 is

unconstitutional as applied to the particular facts and circumstances of this case. * * *.

       {¶9}   “Based on the foregoing, the Complaint for Companionship Rights is

dismissed.” January 4, 2011 Judgment Entry.

       {¶10} The Eadses appeal and assert the following assignment of error: I. “THE

TRIAL COURT COMMITTED PLAIN ERROR IN GRANTING APPELLEES’ MOTION

TO DISMISS APPELLANTS’ COMPLAINT FOR REASONABLE COMPANIONSHIP

TIME PURSUANT TO OHIO REVISED CODE [SECTION] 3109.12.”

                                              II.

       {¶11} On appeal, the Eadses contend that the trial court erred when it dismissed

their complaint for companionship time with A.Z. And although the trial court dismissed

the Eadses’ complaint based on equal-protection grounds, the Eadses do not make any

equal-protection arguments in their appellate brief. Instead, the Eadses argue that the

trial court should have followed our decision in Moore.

                                    A. Equal Protection

       {¶12} “Constitutional analysis is a question of law that we review de novo.”

State v. Rayburn, Jackson App. No. 09CA6, 2010-Ohio-5693, at ¶25 (citations omitted).

       {¶13} The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides that “[n]o State shall * * * deny to any person within its

jurisdiction the equal protection of the laws.” Similarly, the Ohio Constitution provides

that “[a]ll political power is inherent in the people. Government is instituted for their
Meigs App. No. 11CA3                                                                  4


equal protection and benefit[.]” Section 2, Article I of the Ohio Constitution. “The limit

placed upon governmental action by the Equal Protection Clauses of the Ohio and

United States Constitutions are nearly identical.” Sorrell v. Thevenir, 69 Ohio St.3d 415,

424, 1994-Ohio-38. Therefore, “the equal protection provisions of the Ohio and federal

Constitutions * * * require the same analysis.” Eppley v. Tri-Valley Local School Dist.

Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, at ¶11, citing State v. Thompson, 95

Ohio St.3d 264, 2002-Ohio-2124, at ¶11.

       {¶14} “The Equal Protection Clauses require that all similarly situated individuals

be treated in a similar manner.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d

122, 2008-Ohio-511, at ¶90, citing McCrone v. Bank One Corp., 107 Ohio St.3d 272,

2005-Ohio-6505, at ¶6. See, also, City of Cleburne v. Cleburne Living Ctr. (1985), 473

U.S. 432, 439 (stating that the Equal Protection clause “is essentially a direction that all

persons similarly situated should be treated alike”). In other words, “‘[t]he equal

protection of law implies that all litigants similarly situated may appeal to courts for both

relief and defense under like conditions, with like protection, and without

discrimination.’” Conley v. Shearer, 64 Ohio St.3d 284, 288, 1992-Ohio-133, quoting

Sexton v. Barry (C.A.6, 1956), 233 F.2d 220, 224.

       {¶15} “A statute may be challenged as unconstitutional on the basis that it is

invalid on its face or as applied to a particular set of facts. See, e.g., United States v.

Eichman (1990), 496 U.S. 310, 312[.] In an as-applied challenge, the challenger

‘contends that application of the statute in the particular context in which he has acted,

or in which he proposes to act, [is] unconstitutional.’ Ada v. Guam Soc. of Obstetricians

& Gynecologists (1992), 506 U.S. 1011[,] (Scalia, J., dissenting).” State v. Lowe, 112
Meigs App. No. 11CA3                                                                      5


Ohio St.3d 507, 2007-Ohio-606, at ¶17. In the proceedings below, the trial court found

that R.C. 3109.12 “is unconstitutional as applied to the particular facts and

circumstances of this case.” January 4, 2011 Judgment Entry (emphasis added).

                                   B. The Eadses’ Argument

       {¶16} According to the Eadses, “the trial court in this matter should have

followed the reasoning of the Moore court in rendering its decision.” Appellants’ Brief at

13. In Moore, we found that R.C. 3109.12 “specifically provides that the marriage or

remarriage of the mother does not affect the right of the court to order visitation

pursuant to the statute. The applicability of the statute hinges on whether the mother

was unmarried at the time the child was born.” Moore. Essentially, the Eadses base

their entire argument on (1) our decision in Moore and (2) the statutory interpretation of

R.C. 3109.12.

       {¶17} The trial court, however, based its decision on the equal-protection clause

-- a fact the Eadses completely ignore in their appellate brief. The Eadses do not make

any constitutional arguments in support of their assignment of error. In fact, the Eadses’

argument does not even contain the words “equal protection.” Furthermore, because

our decision in Moore did not involve an as-applied-equal-protection challenge to R.C.

3109.12, the Eadses’ reliance on Moore is completely misplaced. Simply put, the

Eadses’ argument based on (1) Moore and (2) the statutory interpretation of R.C.

3109.12 is irrelevant to both the trial court’s decision and the issues before this court.

       {¶18} Because the Eadses’ arguments are irrelevant, we find no merit in the

Eadses’ appeal. “If an argument exists that can support [an] assignment of error, it is

not this court’s duty to root it out. * * * It is not the function of this court to construct a
Meigs App. No. 11CA3                                                                  6


foundation for [an appellant’s] claims[.]” Coleman v. Davis, Jackson App. No. 10CA5,

2011-Ohio-506, at ¶13 (citations omitted) (alterations sic). In other words, “[i]t is not * * *

our duty to create an argument where none is made.” Deutsche Bank Natl. Trust Co. v.

Taylor, Summit App. No. 25281, 2011-Ohio-435, at ¶7. Therefore, we will not address

any potential equal-protection arguments when the Eadses’ failed to make those

arguments on appeal.

       {¶19} Finally, it would be inappropriate for us to create an argument on the

Eadses’ behalf. Under App.R. 16(A)(7), the appellants’ brief “shall include * * * [a]n

argument containing the contentions of the appellant with respect to each assignment of

error presented for review and the reasons in support of the contentions[.]” Here, the

Eadses presented their argument under App.R. 16(A)(7). Unfortunately, the reasons in

support of the Eadses’ contentions do not address the relevant issues before us on

appeal. And in our view, we would be circumventing the appellate rules if we created a

new argument for the Eadses.

       {¶20} Accordingly, we (1) reject the Eadses’ argument as irrelevant, (2) overrule

the Eadses’ assignment of error, and (3) affirm the judgment of the trial court.

                                                                   JUDGMENT AFFIRMED.
Meigs App. No. 11CA3                                                              7


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs
herein taxed.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Meigs County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.


       Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion.

                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
