[Cite as In re K.M.-B., 2015-Ohio-4626.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


In re K.M.-B., T.M., E.M.                       Court of Appeals No. L-15-1037

                                                Trial Court No. JC 14241726



                                                DECISION AND JUDGMENT

                                                Decided: November 6, 2015

                                           *****

        Dan Nathan, for appellants.

        Karin L. Coble, for appellee.

                                           *****

        SINGER, J.

        {¶ 1} Appellants, H.M. and D.M., appeal from the January 23, 2015 judgment of

the Lucas County Court of Common Pleas, Juvenile Division, which awarded appellee,

C.M., visitation with her grandchildren. For the reasons which follow, we reverse.
              FIRST ASSIGNMENT OF ERROR:

              THE TRIAL COURT ERRED IN DETERMINING THAT IT HAD

       JURISDICTION TO AWARD GRANDPARENT VISITATION

       REGARDING EMILY.

              SECOND ASSIGNMENT OF ERROR:

              THE TRIAL COURT ERRED IN DETERMINING THAT IT HAD

       JURISDICTION TO AWARD GRANDPARENT VISITATION

       REGARDING TYLER.

              THIRD ASSIGNMENT OF ERROR:

              THE MANIFEST WEIGHT OF THE EVIDENCE DOES NOT

       SUPPORT THE TRIAL COURT’S DECISION THAT AN AWARD OF

       GRANDPARENT VISITATION IS IN THE CHILDREN’S BEST

       INTEREST.

              FOURTH ASSIGNMENT OF ERROR:

              THE TRIAL COURT ERRED BY FAILING TO GIVE THE

       CONSTITUTIONALLY REQUIRED WEIGHT TO THE PARENTING

       DECISION OF THE PARENTS.

       {¶ 2} C.M., the maternal grandmother of E.M., T.M., and K.M.-B. (hereinafter the

“grandmother”), petitioned the court on July 23, 2014, to establish non-parent visitation

with her grandchildren pursuant to R.C. 3109.11 or 3109.12. G. is the maternal




2.
grandfather of the children and is divorced from the grandmother. The grandmother is

currently married to J.M., whom she refers to as “Papa J.”

       {¶ 3} H.M. is the mother of all of the children (hereinafter referred to as the

“mother”). R.B. is the father of K.M.-B., who was born in 2005. The mother was never

married to R.B. D.M. is the father of E.M. and T.M. T.M. was born on December 11,

2007. The mother and D.M. were unmarried, but cohabitated, at the time of T.M.’s birth.

They were married approximately four months later on April 16, 2008. E.M. was born

on March 2, 2010.

       {¶ 4} A hearing was held on November 3, 2014, before a magistrate, and all of the

parties appeared pro se. While the parties referred to documents while they testified,

none of those documents were admitted into evidence and thus are not part of the record

on appeal. Furthermore, no objections were made during the presentation of the

evidence. The following evidence was admitted.

       {¶ 5} The grandmother testified the mother was a “loving and caring mother.”

However, the grandmother did not agree with the mother’s decision to isolate the

grandchildren from the grandmother. The grandmother testified she loved the children

and had participated in their lives since their births. She participated in family and school

events, as well as spending time alone with the children. She attended water parks and

festivals with the family. She would assist appellants when she was available. She

would take the children to a campground in the summer for a weekend. She purchased

clothing for the grandchildren. She entertained the children on overnight stays.




3.
Furthermore, the grandmother testified that she has always had a close and loving

relationship with appellants. The grandmother was a school bus driver since 2002 and

had received recognition from parents for her loyalty, patience, and safety. The

grandmother testified she had only been issued three traffic citations.

       {¶ 6} The grandmother further testified that she lived with appellants for a few

months after she separated from her first husband, J.M. On September 12, 2012, D.M.

and the grandmother had a verbal argument, which led to a tense environment for a few

days. When she returned home from work in the early morning hours of September 16,

2012, the locks had been changed. Both she and the mother called the police. The

grandmother testified that the mother told the police that the grandmother had voluntarily

moved out on September 14, but the grandmother denied having moved out. The

grandmother was instructed to leave the premises immediately. The mother testified the

grandmother was ticketed for excessive noise and that the police report indicated the

grandmother was exhibiting irrational behavior that night. The grandmother testified that

the ticket was dismissed. The mother testified that on April 10, 2013, the grandmother

was convicted of criminal damaging. The grandmother testified the conviction was later

expunged.

       {¶ 7} The grandmother further testified that after the September incident, the

relationship between the parties deteriorated. The mother testified that she had told the

grandmother specific rules that had to be complied with for the grandchildren to spend

time with her, but the grandmother refused to abide by those rules. The mother found




4.
that the only way to reason with the grandmother was to end contact with her. The

mother would allow the grandchildren to see the grandmother in public places but never

to go to the grandmother’s home where J.M. resided because of his criminal convictions

for DUI. The grandmother admitted that J.M. had been convicted of four DUI offenses.

       {¶ 8} The mother testified the grandmother had filed a small claims case arising

out of an incident where her bus had been blocked by trucks and she was forced to back

up the bus. The defendant in that case attested the grandmother refused to back up and

instead verbally confronted a truck driver over the issue and made offensive gestures.

The mother also testified the grandmother had attempted to falsify her paycheck. The

mother further testified that before the criminal damaging case, the mother and D.M. filed

suit in small claims against the grandmother and won the suit. The grandmother filed a

counterclaim that they had taken her property, but it was thrown out because the

grandmother did not appear.

       {¶ 9} The grandmother testified regarding two other specific events evidencing

K.M.-B.’s desire to see her grandmother. In June 2014, the grandmother attended a

sporting event for one of the children because a civil protection order against her had

expired.1 The mother’s father, the grandmother’s ex-husband, G., was also there. While

she was there, the grandmother gave K.M.-B. money for concessions. A few days later,


1
  We note that the grandmother stated a civil protection order had expired but later
testified that one was imposed after the October 14, 2014 incident. The record is unclear
whether there were two civil protection orders issued against the grandmother.




5.
the mother called the grandmother and told her not to attend the games when G. was also

attending because G. was upset that he could not afford to give the children money. The

grandmother refused to comply with the mother’s request and the mother did not call the

grandmother again.

       {¶ 10} On October 4, 2014, the grandmother attended another sporting event. The

grandmother spoke to K.M.-B., who wanted to invite the grandmother to a grandparent

breakfast at school. A few minutes afterward, the mother took the kids away. The

mother testified she left because the grandmother referred to “Papa J.” after the mother

had told the grandmother not to refer to J.M. as “Papa” to the children because he was not

related to them. The mother did not want to discuss the issues regarding J.M. with the

children. After that incident, a civil protection order was issued, and the grandmother

was separated from the children for approximately 19 months. While she could see the

children, the grandmother could not spend time with them as she had done prior to

September 2012.

       {¶ 11} K.G., the grandmother’s sister and the children’s great aunt, testified the

mother’s children wanted to see and spend time with their grandmother. In June 2014, at

the wedding of the great aunt’s daughter, the great aunt observed K.M.-B. crying

profusely and then D.M. talking to K.M.-B. for a short time. The great aunt approached

K.M.-B. to see what was wrong. K.M.-B. told the great aunt K.M.-B was not allowed to

see her grandmother. The grandmother also testified that she spoke to K.M.-B. that night

and learned that K.M.-B. was unhappy because she could not visit the grandmother. Both




6.
women testified that they were supportive and positive. The mother testified she also

spoke to her daughter and explained that she was not allowed to go to her grandmother’s

house because J.M. is not her “Papa” and K.M.-B. did not need to be around him. The

mother felt it was inappropriate to explain the problem to K.M.-B. because she was a

child.

         {¶ 12} The great aunt also testified that in July 2014, the mother and her children

were at a birthday party for the great aunt’s daughter when K.M.-B. asked to go to the

grandmother’s house. The mother said they had to go home and check first. Later at the

party when the great aunt and K.M.-B. were alone, K.M.-B. said she wanted to see her

grandmother. The great aunt had observed in the past that K.M.-B. enjoys visiting with

her grandmother and that K.M.-B. is upset by the current situation.

         {¶ 13} Another time, K.M.-B. was visiting the great aunt’s granddaughter and

K.M.-B. asked the great aunt to take her to her grandmother’s house. The great aunt did

not want to be put in the middle of the issue and feigned an excuse to avoid the issue.

The great aunt could not understand why there was a breakdown in the relationship

between the mother and the grandmother because the mother was a good mother and the

grandmother was a good grandmother. The great aunt just wanted the entire family to be

able to associate again like they had in the past.

         {¶ 14} The mother explained that E.M. and T.M. do not communicate with the

grandmother because they realize something is wrong and are uncomfortable. The two

children were at the house in September 2012 when the grandmother went around the




7.
house banging on the windows. The mother did not want to tell the children very much

about what was going on between the mother and their grandmother. She did not want

them to visit the grandmother when J.M. was present because he was not their grandpa

and he had just committed a fourth DUI offense. The mother also believed the

grandmother had acted irrationally at times and refused to abide by the mother’s rules.

The mother testified that she had found the only way she could deal with the grandmother

was to stop trying to talk to her and avoid contact for a time.

       {¶ 15} The magistrate concluded it was in the best interests of the children that

they have visitation with the grandmother. In a decision dated November 10, 2014, the

magistrate awarded the grandmother visitation with the children every other weekend

from 10:00 a.m. Saturday through 5:00 p.m. Sunday; the day after Christmas and the day

after Thanksgiving, from noon to 10:00 p.m. The magistrate required the grandmother to

provide transportation to and from her visits, not to allow J.M. to transport the children,

and not allow anyone to be under the influence of drugs or alcohol while the children

were present. The trial court adopted the decision on November 13, 2014.

       {¶ 16} On November 15, 2014, the grandmother arrived at the home of the

grandchildren with a police officer to pick up the kids for her first visitation, but no one

was home. She returned on November 16, 2014, and a police officer spoke to someone

who refused to send the children with the grandmother. Therefore, the grandmother filed

a motion to show cause.




8.
       {¶ 17} On November 21, 2014, the mother and D.M., through counsel, filed

objections to the magistrate’s decision. They argued that the decision is not in the best

interest of K.M.-B., is excessive, and did not give deference to the mother’s wishes. The

mother and D.M. argued that the magistrate lacked jurisdiction to make a visitation award

regarding T.M. and E.M.

       {¶ 18} In its January 23, 2015 judgment, the juvenile court agreed that it had relied

on R.C. 3109.051 instead of R.C. 3109.12(A) for jurisdiction to determine the visitation

issue regarding K.M.-B. However, the court found that the best interest determination

was proper. The determination was a discretionary matter, and the court found that the

magistrate had not abused his discretion. Furthermore, the court found that R.C.

3109.12(A) was not unconstitutional as applied regarding the visitation determination for

T.M. and applied the plain language of the statute. As to E.M., the juvenile court found

that R.C. 3109.051(B)(1) is unconstitutional as applied because it treats E.M. differently

than her siblings and violates the Equal Protection Clause of the Fourteenth Amendment.

Appellants filed an appeal from this judgment.

                            A. Nonparent Visitation Rights

       {¶ 19} Grandparents have no constitutional right to association with their

grandchildren. Troxel v. Granville, 530 U.S. 57, 65-69, 120 S.Ct. 2054, 147 L.Ed.2d 49

(2000); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 372, 696 N.E.2d 201

(1998); and In re Schmidt, 25 Ohio St.3d 331, 335, 496 N.E.2d 952 (1986). The

establishment of a home and the rearing of children is a fundamental liberty interest




9.
protected by the Fourteenth Amendment to the United States Constitution. Troxel at 66

and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Parental

autonomy entitles the parents the sole duty and right to the custody, care and nurture of

their child. Pierce v. Society of Sisters of the Holy Name of Jesus and Mary, 268 U.S.

510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Grandparents also have no common

law legal rights of access to their grandchildren. In re Whitaker, 36 Ohio St.3d 213, 214,

522 N.E.2d 563 (1988), citing In re Schmidt, supra, at 336 (grandparents have no right to

intervene in a custody proceeding). However, the state has an interest to protect the

welfare of children and may infringe upon the parental autonomy liberty interest if the

law is limited to serve a compelling state interest. Troxel at 65 and Prince v.

Massachusetts, 321 U.S. 158, 166-169, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

       {¶ 20} The relationships between grandparents and grandchildren, generally, are

viewed as relationships beneficial to the welfare of children and, therefore, are

relationships which must be statutorily protected if the bond is already formed or some

event has prevented the formation of the bond. Troxel at 64 and Judith L. Shandling, The

Constitutional Constraints on Grandparents’ Visitation Statutes, 86 Colum.L.Rev. 118

(1986).

       {¶ 21} The Ohio General Assembly enacted three statutes to give relatives

reasonable companionship or visitation rights to maintain a relationship with an

unmarried, minor child if requested and if such an award would be in the best interest of

the child. R.C. 3109.11 (visitation when parent deceased); R.C. 3109.12(A) (visitation if




10.
a child is born to an unmarried woman); and R.C. 3109.051(B) (visitation arising out of

“a divorce, dissolution of marriage, legal separation, annulment, or child support

proceeding”). These statutes allow a relative visitation in these limited situations because

the precipitating, disruptive event might give rise to a situation where a parent would

deprive an estranged relative of a continued relationship with the child. In re Gibson, 61

Ohio St.3d 168, 169, 573 N.E.2d 1074 (1991), citing In re Whitaker at 215. Ohio’s

nonparent-visitation statutes have been declared constitutional, facially and as applied.

Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 47

(regarding R.C. 3109.12(A) and 3109.51(D)), and Spivey v. Keller, 107 Ohio St.3d 100,

2005-Ohio-5973, 836 N.E.2d 1220 (regarding R.C. 3109.11 and 3109.051).

       {¶ 22} The juvenile court is a court of special jurisdiction conferred upon it by

statute and, therefore, cannot exceed its statutory authority. Section 4(B), Article IV,

Ohio Constitution and Gibson at 172. To invoke jurisdiction of the juvenile court, an

action must be brought pursuant to law. Spoors v. Cowen, 44 Ohio St. 497, 503, 9 N.E.

132 (1886).

                                 B. Visitation with E.M.

       {¶ 23} In their first assignment of error, appellants argue that the juvenile court

erred as a matter of law when it granted grandparent visitation regarding their daughter,

E.M., who was born after her parent’s marriage. Appellants argue that there is no statute

which gives the juvenile court jurisdiction to make such an award. The grandmother




11.
concedes that the trial court lacked jurisdiction to award nonparent visitation regarding

E.M.

       {¶ 24} In the case before us, the grandmother sought visitation pursuant to R.C.

3109.11 or 3109.12. Neither of these statues is applicable because E.M. was born to a

married woman and neither parent is deceased. The juvenile court relied on R.C.

3109.051(B)(1), which grants a domestic relations court subject-matter jurisdiction to

make a nonparent visitation order in a divorce, dissolution of marriage, legal separation,

annulment, or child support proceeding. However, no such precipitating, disruptive event

occurred and the juvenile court is not a domestic relations court.

       {¶ 25} Instead, the juvenile court found that R.C. 3109.051(B)(1) is

unconstitutional as applied to this case because it violates the Equal Protection Clause of

the United States Constitution by treating a woman’s child born within a marriage

differently from her children born outside of marriage. We find that the juvenile court

erred by applying R.C. 3109.051(B)(1) in this case because there was no termination of

a marriage. Because we conclude that the juvenile court erred as a matter of law by

awarding grandparent visitation regarding E.M., appellants’ first assignment of error is

found well-taken.

                                 C. Visitation with T.M.

       {¶ 26} In their second assignment of error, appellants argue that the trial court

erred when it determined that it had jurisdiction to award grandparent visitation regarding

T.M., who was born several months before his parent’s marriage.




12.
       {¶ 27} R.C. 3109.12(A) governs the issue of the grandmother’s right of visitation

with T.M. That section provides that

              [i]f 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.

R.C. 3109.12 (B) provides that

              [t]he marriage or remarriage of the mother or father of a child does

       not affect the authority of the court under this section to grant * * * the

       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.

       {¶ 28} In the case before us, appellants objected to the grandmother’s

petition for visitation on the ground that the statute is unconstitutional as applied

because it violates the Equal Protection Clause of the United States Constitution.

They argue that the statute treats children born to unmarried parents who marry

after the birth of their child differently from parents who are married at the time

their child is born without any compelling reason to do so.

       {¶ 29} 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.” Section 2, Article I of the Ohio




13.
Constitution provides that “[a]ll political power is inherent in the people. Government is

instituted for their equal protection and benefit, * * *.” These provisions provide the

same protection. Kinney v. Kaiser-Aluminum & Chem. Corp., 41 Ohio St.2d 120, 123,

322 N.E.2d 880 (1975). The Equal Protection Clause guarantees that laws will “operate

equally upon persons who are identified in the same class.” McCrone v. Bank One Corp.,

107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 20.

       {¶ 30} A statute may be declared unconstitutional facially or “as applied to a class

of persons or to an individual person.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-

Ohio-5334, 836 N.E.2d 1165, ¶ 36. Because statutes are presumed to be constitutional,

id. at ¶ 36, the party challenging that a statute is unconstitutional as applied to a particular

set of facts, “bears the burden of presenting clear and convincing evidence of a presently

existing set of facts that make the statutes unconstitutional and void when applied to

those facts.” Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629

(1944), paragraph six of the syllabus.

       {¶ 31} Two courts have held that through R.C. 3901.12, the “General Assembly

has provided a means for extended family members of children born to unwed parents to

involve themselves in the lives of such children, who do not benefit from a marital two-

parent nuclear home environment.” Rugola-Dye v. Dye, 5th Dist. Delaware No. 08 CAF

06 0038, 2009-Ohio-2471, ¶ 22. The statute also seeks to balance the rights of parents

and relatives of a child born out of wedlock. Nicoson v. Hacker, 11th Dist. Lake No.

2000-L-213, 2001 WL 1602666, *3 (Dec. 14, 2001). See also In re Whitaker, 36 Ohio




14.
St.3d at 214-215, 522 N.E.2d 563 (the purpose behind R.C. 3109.11 and 3109.05(B) is to

confer visitation rights upon nonparents because of a family disruption) and Jacobs v.

Jacobs, 102 Ohio App.3d 568, 573, 657 N.E.2d 580 (9th Dist.1995), abrogated on other

grounds, Braatz v. Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999) (“R.C. 3109.051

was enacted specifically to allow grandparents and other relatives to have visitation rights

and generally ‘to make other changes in the child visitation law.’ Title, Am.Sub.H.B.

No. 15, 143 Ohio Laws, Part II, 1964.”).

       {¶ 32} The justification for reasonable relative visitation rights is based on several

lines of thought. One purpose is to preserve family connections where the father of the

child is not present and the natural tension between in-laws could lead to the paternal

family being cut off from the child. Annotation, Validity of Grandparent Visitation

Statutes, 86 A.L.R.6th 1 (2013). Another purpose served by the statute is the protection

of a maternal or paternal relative’s relationship with a child of an unmarried couple which

developed, because of the lack of a marriage, and the need for a relative to undertake

parental-like duties to assist the mother. Oliver v. Feldner, 149 Ohio App.3d 114, 2002-

Ohio-3209, 776 N.E.2d 499, ¶ 62 (7th Dist.) (regarding R.C. 3109.11). See also Bennett,

Herbert, & McClellan, TO GRANDMOTHER’S HOUSE WE GO: EXAMINING

TROXEL, HARROLD, AND THE FUTURE OF THIRD-PARTY VISITATION, 74

U.Cin.L.Rev. 1549 (2006). Furthermore, with respect to grandparent visitation, there is a

desire to protect the unique nature of the grandparent/grandchild relationship. Whitaker

at 216, citing Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199 (1975), and Whitaker at




15.
216, fn. 3, citing Zablotsky, To Grandmother’s House We Go: Grandparent Visitation

after Stepparent Adoption, 32 Wayne L.Rev. 1, 46 (1985).

       {¶ 33} The grandmother first argues that no Equal Protection Clause issue can be

raised because an unmarried parent and the married parent at the time of the child’s birth

are not similarly situated. She argues that cohabitating parents do not have the same

rights as married parents and that the state has a legitimate interest in fostering marriage

and this statute is one of many ways that the state treats married and unmarried people

differently.

       {¶ 34} We disagree. While the state does have the power to designate that certain

rights arise out of the state of marriage, the state cannot control parental autonomy, a

fundamental liberty interest, which arises out of the circumstance of becoming a parent,

not marriage. It is only when parents are involved in a disruptive event that the state has

authority to infringe upon the parental autonomy liberty interest.

       {¶ 35} The grandmother also argues that the classification in this case does not

infringe upon a fundamental liberty interest and that only a rational basis test is

applicable. She argues that legitimate and illegitimate children are not a suspect class

and have often been classified differently by the legislature. Trimble v. Gordon, 430 U.S.

762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (concerning the constitutionality of a statute

allowing illegitimate children to inherit by intestate succession only from their mothers,

the court concluded that illegitimacy falls in the realm of less than strictest scrutiny).




16.
       {¶ 36} We find, however, that the classification in this case is not based on the

illegitimacy of the child, per se, but on whether the parents are involved in a disruptive

event, i.e., bearing a child out of wedlock. Because a relative’s statutory visitation right

is an infringement upon the parent’s fundamental liberty interest regarding the care,

custody, and control of their children, we must apply a strict scrutiny standard of review.

Troxel, 530 U.S. at 65, 120 S.Ct. 2054, 147 L.Ed.2d 49. If the statutory classification

involves a suspect class or a fundamental right, the statute will be examined with “stricter

scrutiny” to determine if “it is supported by sufficiently important state interests and is

closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S. 374,

388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Therefore, R.C. 3109.12 must be supported by

sufficiently important state interests (protecting the welfare of children born to a single

woman household) and be closely tailored to effectuate only those interests.

       {¶ 37} Where the parents marry after the child is born, several courts have held

that the statute is unconstitutional as applied because it violates the Equal Protection

Clause of the Fourteenth Amendment of the United States Constitution. Rugola-Dye, 5th

Dist. Delaware No. 08 CAF 06 0038, 2009-Ohio-2471, ¶ 22 (court found the statute

unconstitutional because it treats unmarried parents differently from married parents);

Nicoson, 11th Dist. No. 2000-L-213, 2001 WL 1602666, *3 (court found the statute is

not applicable to unmarried women who later marry the father of the child and the statute

was unconstitutional as applied); and In re A.Z., 4th Dist. Meigs No. 11CA3, 2011-Ohio-

6739 (the lower court found the Equal Protection Clause was violated where the parents




17.
of a child married before the visitation action was initiated, but the court of appeals did

not address the issue because appellant did not develop an assignment of error based on

what was decided by the trial court).

         {¶ 38} However, one court has held that R.C. 3109.12 applies even after marriage

of the parents because the disruptive event is the fact that the parents were not married at

the time of the child’s birth and that fact can never be changed by a later marriage. Stout

v. Kline, 5th Dist. Richland No. 96-CA-71, 1997 WL 219099, *2 (Mar. 28, 1997).

Another court has held that a visitation award will not terminate even if the child is later

adopted by a stepparent. Moore v. Strassel, 4th Dist. Pickaway No. 97 CA 32, 1998 WL

101354, *3 (Feb. 26, 1998).

         {¶ 39} We find, in the case before us regarding T.M., the purposes behind the

statute are not achieved by application of the statute. Here, the “unwed” mother was

living with the father of the child at time of his birth and they married shortly thereafter.

There was no absent father which caused a need for preservation of the paternal family.

Furthermore, because the intervening relative is the maternal grandmother, there was no

in-law issue. This was also not a case where a relative had to assume parental-like duties

because the child was born out of wedlock. The circumstances of the child’s birth did not

give rise to a relationship between a relative and the child. While the grandmother had

participated in the life of the grandchild since his birth, there was no evidence the

grandmother was more involved in the child’s life because of the circumstances of his

birth.




18.
       {¶ 40} We agree with appellants that in the factual situation before us, there was

no significant disruptive event which justified the state’s interference with the parents’

autonomy interests. Although the child was born to an unwed mother, she cohabitated

with the father of the child and the parents were married shortly after the child’s birth.

Furthermore, the grandmother did not assume any parental-like duties as a result of the

marital status of the parents. Therefore, we find the statute is unconstitutional as applied

to this case. Appellants’ second assignment of error is well-taken.

                                D. Visitation with K.M.-B.

       {¶ 41} Because of our ruling that the statute cannot be applied to E.M. or T.M., we

address the third and fourth assignments of error only with regard to K.M.-B., who was

born out of wedlock to parents never married. In the third assignment of error, the

mother argues that the manifest weight of the evidence does not support the trial court

decision to award grandmother visitation and the juvenile court wrongly placed the

burden of proof on the mother. In her fourth assignment of error, the mother argues that

the trial court failed to give sufficient weight to the wishes of the fit parent. Both

assignments of error are interrelated and will be addressed together.

       {¶ 42} The mother concedes that R.C. 3109.12 is applicable to K.M.-B. However,

she argues that the juvenile court did not give sufficient weight to the facts that 1) the

court had granted the mother a civil protection order for 19 months to keep the

grandmother from having contact with the grandchildren after her conviction for criminal

damaging; 2) the mother did not want her children to be around the grandmother’s




19.
current husband, J.M., who had four DUI convictions; and 3) the grandmother would not

abide by the mother’s rules regarding visitations in the past. The mother also argues that

the juvenile court placed the burden of proof upon her rather than the grandmother.

       {¶ 43} A presumption exists that fit parents determine the best interests of their

children. Therefore, absent allegations of unfitness, the court must give special weight to

the wishes of the parent. R.C. 3109.051(D)(15); Troxel, 530 U.S. at 68, 120 S.Ct. 2054,

147 L.Ed.2d 49; Harrold, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 12;

and In re E.T.B., 12th Dist. Clermont No. CA2014-07-051, 2015-Ohio-2991, ¶ 31. The

burden of proving the best interest of the child warrants nonparent visitation rests with

the nonparent. In re N.C.W., 12th Dist. Butler No. CA2013-12-229, 2014-Ohio-3381,

¶ 25-26.

       {¶ 44} The court must determine whether such grandparent visitation would be in

the child’s best interest after considering all relevant factors, including the factors listed

in R.C. 3109.051(D). In re K.C., 12th Dist. Butler No. CA2012-08-160, 2013-Ohio-

1949, ¶ 8 (applying the factors of former R.C. 3109.051(B), now incorporated into R.C.

3109.051(D)). See Appendix A.

       {¶ 45} First, we find the mother erroneously states that the appellate standard of

review of the juvenile court’s judgment is manifest weight. The juvenile court’s decision

regarding visitation rights is reviewed for an abuse of discretion. In re Newsome, 11th

Dist. Ashtabula No. 2007-A-0030, 2008-Ohio-2132, ¶ 22, and Booth v. Booth, 44 Ohio

St.3d 142, 144, 541 N.E.2d 1028 (1989). Such deference is necessary because oftentimes




20.
the crucial evidence lies in the demeanor and attitude of the parties, which cannot be

transcribed into the record. See Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d

1159 (1997). An abuse of discretion requires more than an error in judgment; the trial

court’s decision must be found to be unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 46} The following evidence was submitted relating to the applicable factors:

(1) The grandmother and her sister testified that the grandmother loves the children and

has been involved with the family and with K.M.-B. a couple of times a week since the

grandchild’s birth in the customary ways of spending time with the grandchildren,

babysitting the grandchildren, celebrating events or holidays with them, transporting the

grandchildren, buying the grandchildren things, etc.. The grandmother lived with the

family until she was charged with criminal damaging with intent to harm in 2012 after

having an argument with the parents and was barred from contacting the family pursuant

to a civil protection order for approximately 19 months. The record has since been

expunged and sealed. (2) There is little evidence regarding the location of the residences,

but it appears that the grandmother lives sufficiently near the grandchildren because she

has attended their sporting events. (3) No evidence was submitted regarding the

availability of K.M.-B. or her mother’s schedule. (4) At the time of the hearing, the

grandchild was nine years old. (5) No evidence was submitted regarding the grandchild’s

adjustment. (6) The grandchild indicated to her aunt and the court that she wanted to see

her grandmother and spend time with her. However, the mother testified that she has




21.
shielded the child from all of the facts that supported her reason for limiting the child’s

contact with her grandmother. (7) No evidence was submitted regarding the health of the

child. There was evidence the mother was concerned that the step-grandfather drinks and

has had four DUI convictions and that she believed he was involved in drugs. Even

though the mother had no actual proof of his drug involvement, her belief is a factor that

must be given some weight. (8) No evidence was submitted regarding the time the

grandchild would have to spend with siblings. (9) No evidence was submitted regarding

the mental or physical health of the parties, except that the grandmother exhibited

irrational behavior the night of the criminal damaging. (10) There was no evidence

regarding the willingness of the parties to reschedule missed visitation time. (11) The

grandmother and her sister both testified that the mother is a good mother. (12) There

was no evidence that the grandmother had been convicted or pled guilty to any criminal

offense regarding an abused or neglected child or an offense involving harm to a family

or household victim. There was evidence, however, that the grandmother had committed

criminal damaging with intent to harm at appellants’ home while the children were

present. (15) The mother testified that she does not want unsupervised visitation to occur

because of the grandmother’s prior criminal behavior, her inability to honor the mother’s

rules after the mother allowed visitation to occur after the civil protection order ended,

the grandmother refused to cooperate with the mother in limiting her attendance at

sporting events after an issue arose from her attending the same event as the paternal

grandfather (the grandmother’s former husband), and because the grandmother refused to




22.
avoid talking to the grandchildren about the step-grandfather and coming into contact

with him because he drinks, has had four DUI convictions, and has had prior drug

dealings. (16) No additional facts were presented.

       {¶ 47} The magistrate found that the grandmother was involved in K.M.-B.’s life

from birth, that she was a “significant and substantial part of the” child’s life, the

grandchild has a bonded relationship with the “maternal aunt” and some of the rest of her

family, and the mother will not allow the grandchild to see her grandmother after a

disagreement arose between the two, while the grandmother had a prior conviction for

criminal damaging in 2012, the conviction had been expunged, and the grandmother is a

school bus driver in good standing. The juvenile court adopted the decision of the

magistrate without any additional findings.

       {¶ 48} We find that the trial court abused its discretion in this case by determining

it would be in K.M.-B.’s best interests to have visitation with her grandmother. While we

do not find that the court shifted the burden of proof to the mother, we do find the court

did not give adequate deference and weight to the mother’s decision to limit the

grandmother’s visitation with K.M.-B. The juvenile court should have started with the

presumption that the mother, as a fit parent, acted in the best interest of her child when

choosing to deny the grandmother unsupervised visitation or visitation that met the

mother’s conditions. Instead, the juvenile court did not state that it gave the mother’s

wishes any consideration.




23.
       {¶ 49} The juvenile court was required to consider all the relevant factors in R.C.

3109.051(D) and determine that the presumption the mother’s decision was in the child’s

best interest had been refuted. In this case, however, the decision of the juvenile court

appears to have been based solely on the fact that the grandmother had been a part of

K.M.-B.’s life and that the grandmother and the child missed their time together. There

was little evidence presented as to the remaining factors and the juvenile court did not

address the factors in relation to the mother’s reasons for limiting contact. The juvenile

court also never addressed the fact that there had been a prior civil protection order issued

against the grandmother by another court. Therefore, we find that the trial court abused

its discretion by awarding the grandmother visitation with K.M.-B.

       {¶ 50} Furthermore, in light of our holding that the court lacked jurisdiction to

award visitation regarding the other two grandchildren, K.M.-B.’s best interest may no

longer support the trial court’s decision to award grandparent visitation only with

K.M.-B. We also question the amount of visitation time awarded, but we do not address

this issue because the case must be remanded for reconsideration of this issue.

       {¶ 51} Appellants’ third assignment of error is found not well-taken. Appellants’

fourth assignment of error is well-taken.

       {¶ 52} Having found that the trial court did commit error prejudicial to appellants,

the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is




24.
reversed. This case is remanded to the juvenile court for further proceedings consistent

with this decision. The grandmother is ordered to pay the court costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




25.
                                         Appendix A


      {¶ 53} R.C. 3109.051(D) states:

             (1) The prior interaction and interrelationships of the child with the

      child’s parents, siblings, and other persons related by consanguinity or

      affinity, and with the person who requested companionship or visitation if

      that person is not a parent, sibling, or relative of the child;

             (2) The geographical location of the residence of each parent and the

      distance between those residences, and if the person is not a parent, the

      geographical location of that person’s residence and the distance between

      that person’s residence and the child’s residence;

             (3) The child’s and parents’ available time, including, but not limited

      to, each parent’s employment schedule, the child’s school schedule, and the

      child’s and the parents’ holiday and vacation schedule;

             (4) The age of the child;

             (5) The child’s adjustment to home, school, and community;

             (6) If the court has interviewed the child in chambers, pursuant to

      division (C) of this section, regarding the wishes and concerns of the child

      as to parenting time by the parent who is not the residential parent or

      companionship or visitation by the grandparent, relative, or other person

      who requested companionship or visitation, as to a specific parenting time




26.
      or visitation schedule, or as to other parenting time or visitation matters, the

      wishes and concerns of the child, as expressed to the court;

               (7) The health and safety of the child;

               (8) The amount of time that will be available for the child to spend

      with siblings;

               (9) The mental and physical health of all parties;

               (10) Each parent’s willingness to reschedule missed parenting time

      and to facilitate the other parent’s parenting time rights, and with respect to

      a person who requested companionship or visitation, the willingness of that

      person to reschedule missed visitation;

               (11) In relation to parenting time, whether either parent previously

      has been convicted of or pleaded guilty to any criminal offense involving

      any act that resulted in a child being an abused child or a neglected child;

      whether either parent, in a case in which a child has been adjudicated an

      abused child or a neglected child, previously has been determined to be the

      perpetrator of the abusive or neglectful act that is the basis of the

      adjudication; and whether there is reason to believe that either parent has

      acted in a manner resulting in a child being an abused child or a neglected

      child;

               (12) In relation to requested companionship or visitation by a person

      other than a parent, whether the person previously has been convicted of or




27.
      pleaded guilty to any criminal offense involving any act that resulted in a

      child being an abused child or a neglected child; whether the person, in a

      case in which a child has been adjudicated an abused child or a neglected

      child, previously has been determined to be the perpetrator of the abusive

      or neglectful act that is the basis of the adjudication; whether either parent

      previously has been convicted of or pleaded guilty to a violation of section

      2919.25 of the Revised Code involving a victim who at the time of the

      commission of the offense was a member of the family or household that is

      the subject of the current proceeding; whether either parent previously has

      been convicted of an offense involving a victim who at the time of the

      commission of the offense was a member of the family or household that is

      the subject of the current proceeding and caused physical harm to the

      victim in the commission of the offense; and whether there is reason to

      believe that the person has acted in a manner resulting in a child being an

      abused child or a neglected child;

             (13) Whether the residential parent or one of the parents subject to a

      shared parenting decree has continuously and willfully denied the other

      parent’s right to parenting time in accordance with an order of the court;

             (14) Whether either parent has established a residence or is planning

      to establish a residence outside this state;




28.
             (15) In relation to requested companionship or visitation by a person

      other than a parent, the wishes and concerns of the child’s parents, as

      expressed by them to the court;

             (16) Any other factor in the best interest of the child.




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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