[Cite as In re A.K.C, 2017-Ohio-847.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

          IN THE MATTER OF:                    :
                                               :
                          A.K.C.               :   Appellate Case No. 2016-CA-16
                                               :
                                               :   Trial Court Case No. 2016-JH-06
                                               :
                                               :   (Juvenile Appeal from
                                               :    Common Pleas Court)
                                               :
                                               :

                                         ...........

                                         OPINION

                            Rendered on the 10th day of March, 2017.

                                         ...........

J.D.B.
         Appellant, pro se

T.L.C.
         Appellee, pro se

                                        .............




HALL, P.J.
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       {¶ 1} J.D.B. (“Father”) appeals pro se from the trial court’s judgment entry denying

his petition for visitation with his minor child, A.K.C.

       {¶ 2} In his sole assignment of error, Father contends the trial court erred in

denying him visitation while he is incarcerated.

       {¶ 3} The record reflects that Father filed his petition in March 2016. (Doc. #2).

According to Father’s petition, the child at issue was born in October of 2013 while the

child’s Mother, T.L.C., was in prison. But Father was, and is, in prison also. “I [J.D.B.] was

and still am incarcerated in the Ohio Department of Corrections and will be until

September 19, 2022.” (Id.) The petition asserted that Mother had been released from

prison and was residing with the child. Father claimed he had relatives who were willing

to bring the child to prison to visit him if Mother was unwilling or unable to do so. Finally,

Father asserted that “some type of visitation” (i.e., in person or phone calls) would be

beneficial to his relationship with the child. (Id.).

       {¶ 4} The trial court overruled Father’s petition in a brief May 25, 2016, entry that

also addressed a name-change request. (Doc. #7). With regard to visitation, the trial court

simply stated: “The Court’s policy is to not order parenting time when a parent is

incarcerated. Therefore, the Petition for Reasonable Visitation is denied.” (Id.).

       {¶ 5} Upon review, we conclude that the trial court erred in denying Father’s

petition based on a blanket policy of not ordering parenting time when a parent is

incarcerated. Visitation or, more properly, “parenting time” is governed by statute. In

particular, R.C. 3109.051(D) identifies non-exclusive factors for a trial court to consider

when determining whether to grant parenting time to a non-residential parent. We see
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nothing in that statute or elsewhere authorizing a trial court to adopt a per se rule denying

parenting time to incarcerated parents. To the contrary, this court has recognized that a

non-custodial parent who is incarcerated retains residual parental rights, which include

reasonable visitation or parenting time. In re C.K., 2d Dist. Montgomery No. 25728, 2013-

Ohio-4513, ¶ 14. Moreover, incarcerated parents “ ‘have the right to present evidence in

an attempt to meet their burden of proof’ ” to establish that an award of parenting time is

in their child’s best interest. Id. at ¶ 15, quoting In re Jergens, 2d Dist. Montgomery No.

16848, 1998 WL 336702, *2 (June 26, 1998). We also recognized in Jergens “[i]f [a parent

is] unable to attend a visitation hearing, [the parent] can always file affidavits or testify by

deposition. Id.

       {¶ 6} We recognize that it is a quandary as to whether visitation is in a child’s best

interests when a parent is incarcerated. In the final analysis, the matter of parenting time

is within a trial court’s sound discretion. But on this record, we perceive that the trial court

did not exercise its discretion. Instead, it denied Father’s petition by reference to a per se

policy of not ordering parenting time when a parent is incarcerated. The trial court denied

Father’s petition based on a blanket policy, apparently without considering the child’s best

interest or the pertinent factual circumstances. To that extent, the trial court erred and

Father’s assignment of error is therefore sustained.

       {¶ 7} The trial court’s May 25, 2016 judgment entry denying Father parenting time

is reversed, and the cause is remanded for further proceedings consistent with this

opinion.

                                       .............
                                         -4-


DONOVAN, J., and FROELICH, J., concur.



Copies mailed to:

J.D.B.
T.L.C.
Hon. Brett A. Gilbert
